3 The duty of care

14.89 Section 34 of the Environmental Protection Act 1990 imposes a duty of care on any person who produces, imports, carries, keeps, treat or disposes of controlled waste. The duty also applies to a broker who has control of waste.

14.90 The duty of care requires any person who has control of controlled waste to take all reasonable steps and measures in the circumstances:

•To prevent any other person contravening waste management controls eg by making an unauthorised deposit if waste, keeping waste in breach of the licensing requirements, or treating or disposing of waste in breach of the legislation. This therefore requires that the landowner transferring waste to a third party for transport and disposal should take steps to ensure he knows where the waste is to be disposed of, that the site itself is licensed and that the carried intends to actually take it there. If the carrier ‘fly tips’ the waste this can result in liability attaching to the transferor of waste, if the circumstances are such that he cannot be said to have taken reasonable steps to ensure that it was being taken to a licensed site for disposal.

•To prevent the escape of waste,

•To ensure that waste is only transferred to an ‘authorised person’, such as a registered waste carrier, and

•To ensure that, where waste is transferred, to ensure that the necessary written formalities are complied with. These require that an adequate written description of the waste be given to anyone to whom it is transferred for disposal, and that a ‘transfer note’ is completed and signed by both parties to the transfer.²⁰¹ The transfer note must identify the waste, identify both transferor and transferee, and record the time and place of transfer. Copies of the written description and the transfer note must be kept by both parties for a minimum of 2 years form the date of transfer. These requirements are intended to make it easier to trace waste consignments.

14.91 A code of practice²⁰² has been published by the Environment Agency and gives practical guidance as to what will amount to ‘reasonable’ steps to fulfil the duty of care.²⁰³ The terms of the guidance will be relevant when deciding whether the duty of care has been complied with and when fixing a penalty for breach.²⁰⁴