Are you responsible?

It is a common belief that the legal Duty of Care of waste producers ends when the waste is passed on to an authorised contractor. This is incorrect, the Duty firmly places ‘responsibility on waste producers to prevent the unauthorised or harmful disposal of their waste even if by another person and only ends when the waste has either been disposed of or fully recovered, regardless of how long this takes’.

Wastes that are abandoned or are mishandled by waste management contractors can still be the responsibility of a waste producer. Only by demonstrating that reasonable measures (i.e. reasonable care) had been taken can a waste producer escape responsibility.

Cheap is not cheerful

Waste disposal is an unwelcome cost to all businesses, and in attempting to reduce costs the temptation is to take the lowest quotation offered.

The questions: ‘Why is the quotation the lowest?’ and ‘Is it credible?’ are too rarely asked. Does a low price reflect a highly efficient operator or does it reflect an operator whose business is financially unsustainable or which is poorly or illegally operated?

The Duty of Care specifically refers to what the waste producer could have reasonably foreseen; not questioning why a quotation is ‘cheap’ suggests a head in the sand approach which is not reasonable care.

The cost of becoming a bona fide waste management contractor with the required authorisations to handle wastes is currently £127 for a carrier/broker licence from the Environment Agency. No qualifications, assets or facilities are required. Not surprisingly with this type of relaxed regulatory environment some 67,000 waste carriers and brokers are registered.

Once a contractor has his licence, all that is required to ‘be in business’ is a phone and perhaps access to a computer. Vehicles can be hired and if the intention is to take the waste to a disposal site, a few phone calls will establish outlets and costs for disposal.

Once the work is secured, the contractor has the choice of taking the waste to his nominated disposal contractor (and spending money, or not, see Box 1). If partially scrupulous the contractor will choose the lowest cost disposal contractor to accept the waste. If times are hard, a financially troubled transfer station or disposal site operator can take the waste in, create a stockpile of waste, bank the cash and cover the essential bills which may not include the proper disposal of the stockpiled wastes (Box 2).

Gone but not forgotten?

The Duty of Care ends when the waste is safely disposed or fully recovered. Where waste is moved on behalf of the producer to a transfer station, the waste is still that of the producer – albeit in the care of a contractor. In the case of packaged wastes, it is commonly the case that the waste producer is identified on each package. In the cases of Albion and Premiere (Box 2) this was certainly the case, and some items were complete with dates identifying the number of years the waste had been on site.

The use of deep well injection to fill a void in Lincolnshire, from which oil is being extracted, for the acceptance of hazardous liquid wastes raises some interesting questions. The site has historically been licensed as a landfill, but implementation of the Landfill Directive in July 2002 banned the landfill of hazardous liquid wastes.

The operation is continuing while the legal basis is determined by the courts. While the underground disposal of liquid hazardous wastes is now banned in Western Europe, the storage underground of certain solid hazardous waste is acceptable. In the United States, deep well injection is used for the disposal of certain liquid hazardous wastes if it can be demonstrated that the hazardous constituents of the waste will not migrate from the disposal site for 10,000 years or for as long as they remain hazardous. Is the Lincolnshire operation disposal or storage?

If the operation is a storage facility, it is implicit that at some time in the future the wastes must be removed for final disposal and the Duty of Care responsibilities of the waste producers met.

If the operation is deemed disposal then it would seem to be contrary to the Landfill Directive. The European Court would be expected to bring a case against the UK for non-compliance. If the UK should win such a case and the US view is correct in that it may take 10,000 years for the hazardous wastes deposited to become non-hazardous, it would seem waste producers have a long wait to end their Duty of Care liability. Should the UK lose, will the wastes deposited after the implementation of the Landfill Directive have to be removed? If so, how, when and at whose cost?

There are 7,700 licensed waste management sites in England and Wales and a further 120,000 sites exempted from licensing but registered with the Environment Agency. Exempt activities include spreading of certain wastes on agricultural land or on land as part of landscaping/remediation and ‘on farm’ composting operations. Much media attention has been paid to cases of contaminated, (i.e. hazardous), soils being used to construct golf courses or for landscaping. In such instances the wastes cannot be considered as ‘disposed’ and the requirements of the Duty of Care have not been met.

There has been little attention to date on wastes disposed directly to farm land or to farm composting operations. It is all too easy to see the foundations of the next crisis to damage UK farmers, food retailers and public health.

The stringent requirements to check individual consignments of wastes at licensed treatment and disposal facilities are seldom applied at these exempt sites. One therefore has to hope that any adhoc quality control measures used will ensure that the correct waste is dispatched and these wastes are not contaminated by other hazardous wastes, whether at the production site or during transport. It is also hoped that unscrupulous operators are not disguising hazardous waste as non-hazardous or beneficial waste as has been recently reported in Italy. Box 3 indicates what can happen when control measures are inadequate.

On-farm composting of green wastes from gardens and parks is increasingly being augmented by the addition of industrial wastes, and raises additional issues. The Law requires that all wastes destined for composting at an exempt site must be biodegradable for the exemption to be applicable.

The low cost, under-regulated nature of these operations has led to abuse. Industrial wastes which contain more than the minimum levels of water, inorganic contaminants (salts, heavy metals, clays), or biocides (preservatives, herbicides, pesticides) are not biodegradable in the context of this exemption, and waste producers disposing of such wastes are aiding and abetting a prosecutable offence as well as failing in their Duty of Care. Ignorance of the law is no defence.

Waste producers beware

The majority of waste producers and waste management contractors deal with waste professionally and safely. It is thought an unfortunate fact of society that there are individuals who are careless, thoughtless or who will break laws. Regulators cannot always be present to check that things are done correctly.

Duty of Care

A waste producer acting in a reasonable way to satisfy Duty of Care requirements should consider:

• what’s in the waste and what could affect this composition, whether routine process variations, poor housekeeping, errors by staff or any other factor which could be reasonably foreseen? This is a formal risk assessment the results of which, where they impact on the composition of waste, need to be made known to the waste contractor;

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• and with relevant insurance cover. This requires investigating the financial strength of the contractor. If the contractor were a customer (rather than supplier), would your company give them a significant level of credit?

• whether the contractor has experience of dealing with wastes over a period of years, is suitably equipped, has access to technical support to test wastes and is able to detail clearly how the waste is to be disposed of or fully recovered;

• if the contractor is using a transfer station or another third party, when and where will the waste be finally disposed/recovered (and the Duty of Care responsibility met) and how this can be demonstrated?

• visiting the final disposal or recovery site and talking to the people who will ultimately deal with the waste;

• if the contractor is using composting or land spreading operations what measures are in place to avoid contamination by hazardous wastes at your site and during transportation? What measures are in place to prevent and monitor whether contamination has taken place? A waste manager or buyer who would feel uncomfortable applying their waste to their vegetable garden and eating the produce should perhaps be choosing an alternative option;

• Are the costs credible compared with the alternatives, is the contractor an efficient operator or is a low price indicative of poor or illegal practice?

  Waste is an emotive subject, and getting it wrong in the short term can be very expensive in the long term. The current public and media penchant for scapegoats and a high level of concern from the general public means that mistakes – particularly where financial concerns have overcome taking reasonable care – will be severely punished.