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Presented to Parliament and to the National Assembly for Wales pursuant to Section 34(9) of the Environmental Protection Act 1990.
The duty of care legislation makes provision for the safe management of waste to protect human health and the environment.
The code of practice (the Code) sets out practical guidance on how to meet your waste duty of care requirements. It is issued under section 34(7) of the Environmental Protection Act 1990 (the EPA) in relation to the duty of care set out in Section 34(1) of that Act.
This Code applies to you if you import, produce, carry, keep, treat, dispose of or, as a dealer or broker have control of, certain waste in England or Wales.
Failure to comply with the duty of care is an offence with no upper limit on the courts’ power to fine. In some instances a fixed penalty notice may be issued for failure to comply with the duty of care in place of prosecution. The Code is admissible as evidence in legal proceedings for Section 34(1) offences and its rules must be taken into account where relevant to questions raised in the case.
If your waste activities are authorised or registered in Scotland or Northern Ireland but you deal with waste in England or Wales, you need to follow this Code.
The occupiers of domestic property disposing of household waste from that property are exempted from the section 34(1) duty of care by and have a separate duty of care for the disposal of that waste under Section 34(2A). Non-statutory guidance is included at the end of the Code on how to meet that duty of care.
2. Scope of the duty of care
2.1 Duty of care: who it applies to
The duty of care applies to anyone who imports, produces, carries, keeps, treats, disposes of, or are a dealer or broker that has control of, controlled waste (referred to below for the purpose of this Code as a ‘waste holder’).
Waste producers are any person whose activities produce waste. This includes:
- private sector businesses such as shops, offices, factories and tradespersons (for example, electricians, builders, glaziers and plumbers)
- public sector services such as schools, hospitals and prisons, as well as charities and voluntary and community groups
- permitted operations or exempt facilities that produce waste as part of their activities
If you carry out a waste operation that changes the nature or composition of the waste, you are regarded as a producer of the waste. Waste producers play a key role under the duty of care requirements as they are in the best position to identify the nature and characteristics of the waste.
A waste carrier is any person, who normally and regularly collects, carries or transports waste in the course of any business or with a view to profit, including those that produce and transport their own waste - for example, builders and landscape gardeners.
A waste dealer is any person, business or organisation that buys waste with the aim of subsequently selling it, including in circumstances where the dealer does not take physical possession of the waste.
A waste broker is any person, business or organisation that arranges waste transportation and management of waste on behalf of another party, such as organisations contracting out waste collection services - for example, local authorities, supermarkets and producer responsibility compliance schemes.
A waste manager is any person involved in the collection, transport, recovery or disposal of controlled waste, including the supervision of these operations, the after-care of disposal sites and actions taken as a dealer or broker.
A separate duty of care applies to householders (occupiers of a domestic property), limited to taking all reasonable measures available to them to ensure their waste is only transferred to an authorised person.
For the purposes of this Code, occupiers of domestic property are not treated as a ‘waste holder’ as defined above, when dealing with household waste produced on that property.
Separate guidance on duty of care requirements for occupiers of domestic property are set out in section 5.
2.2 Waste holders: what your duty of care applies to
The duty of care requirements apply to household, industrial and commercial waste, also known as controlled waste.
Waste is any substance or object that the holder discards, intends to discard or is required to discard. The meaning of discard applies to disposal and recovery operations and processes and can be intentional or unintentional on the part of the holder. Whether a substance or object is waste is determined on a case by case basis. If you are unsure you can use the ‘legal definition of waste guidance’ to check if something is classified as waste.
The following definitions describe common waste operations and processes:
Recovery is any operation which has the main result of waste serving a useful purpose by replacing non-waste materials that would otherwise have been used to fulfil a particular function. An example is incineration for energy recovery (for further examples see Annex II to the Waste Framework Directive). Preparing for re-use and recycling are both recovery operations
Preparing for re-use is the operation or process of checking, cleaning or repairing products that have previously been discarded so that they can be re-used without any other pre-processing, for example repairing bicycles, furniture or electrical or electronic equipment which have been previously discarded by their owners
Recycling is any operation by which waste is reprocessed into products, materials or substances, whether for its original or other purposes, for example crushed waste glass graded for blasting or playground surfaces from waste tyres. (It does not include energy recovery or reprocessing into materials to be used as fuels or for backfilling operations.)
Disposal is any operation which is not recovery (even where the operation has a secondary consequence of reclaiming substances or energy). An example is landfill (for further examples see Annex I to the Waste Framework Directive)
Treatment is a recovery or disposal operation, including preparation prior to recovery or disposal
2.3 Waste holders: what your duty of care does not apply to
See Schedule 1 to the Controlled Waste (England and Wales) Regulations 2012 to check if your waste is controlled waste because of its source or type. Wastes not classed as controlled waste are:
- wastes listed in Article 2 of the Waste Framework Directive - for example, waste waters, decommissioned explosives, radioactive waste
- waste containing animal by-products where it is collected and transported in line with the Animal By-Products Regulation (see guidance for England and Wales)
- sewage, sludge or septic tank sludge where it is supplied, managed or used in the ways described in regulation 3 of the Controlled Waste (England and Wales) Regulations 2012
This Code does not cover the extractive waste duty of care. If you are responsible for managing waste from prospecting, extraction, treatment and storage of mineral resources and working quarries (extractive waste) under the EPA you are subject to different duty of care requirements.
2.4 Waste holders: how long your duty of care lasts
You have a responsibility to take all reasonable steps to ensure that when you transfer waste to another waste holder that the waste is managed correctly throughout its complete journey to disposal or recovery.
You can do this by:
- checking the next waste holder is authorised to take the waste - see section 3.4 for examples of authorisation
- asking the next waste holder where they are going to take the waste, and checking that the intended destination is authorised to accept that waste
- carrying out more detailed checks if you suspect the waste is not being handled in line with the duty of care - for example: requesting evidence that your waste has arrived at the intended destination and that it has been accurately described
If you receive waste you should cooperate with the previous waste holders in any measures that they are taking to comply with their duty of care. This includes supplying evidence that previous holders may need to ascertain that their waste has reached its end of waste location.
Each holder in the waste chain shares the duty of care obligations if you:
use a waste dealer or broker, you each have a responsibility to comply with your duty of care obligations and to ensure that the waste is only transferred to an authorised person or establishment
transfer waste to a waste treatment facility for preliminary treatment, you will generally still be responsible for the complete recovery or disposal operation (in accordance with Article 15(2) of the Waste Framework Directive)
carry out a waste operation that changes the nature or composition of the waste, you are regarded as a producer of the waste when it leaves your site
3. Waste holders: waste duty of care requirements
You must take all reasonable steps.
Prevent unauthorised or harmful deposit, treatment or disposal of waste (see section 3.1).
Prevent a breach (failure) by any other person to meet the requirement to have an environmental permit, or a breach of a permit condition (see section 3.2).
Prevent the escape of waste from your control (see section 3.3).
Ensure that any person you transfer the waste to has the correct authorisation (see section 3.4).
Provide an accurate description of the waste when it is transferred to another person (see sections 3.5 and 3.6).
Failure to comply with the duty of care requirements is a criminal offence and could lead to prosecution.
3.1 Prevent unauthorised or harmful deposit, treatment or disposal
It is also illegal to treat, keep or dispose of controlled waste in a way that is likely to cause pollution of the environment or harm to human health.
Examples of unauthorised or harmful deposit, treatment or disposal include the following:
operating illegal waste sites without the correct permit or appropriate exemption to accept or manage a particular waste
misclassification of waste as a non-waste or a waste that does not fit the written description
fly-tipping is the deliberate unlawful dumping of waste - for example, at the roadside or on privately owned land - the scale can vary from a single bin bag of waste to large quantities of waste dumped from trucks
If you suspect that someone is fly-tipping, illegally depositing, treating or disposing of waste, do not give your waste to them or take waste from them. If you suspect that you have unknowingly accepted misclassified waste, isolate the waste and report all the details to the regulator. You should report any suspected illegal activity to the EA or NRW.
3.2 Prevent a breach of an environmental permit or a breach of a permit condition
Normally the operator of a waste treatment or recovery or disposal activity needs an environmental permit or to register an exempt waste operation.
Environmental permits set out specific conditions on how a waste operation must be carried out. The conditions will include limits to the amount of waste that can be handled, restrictions to the types of waste that can be handled, and measures that need to be put in place to protect the environment and human health.
Some waste activities may qualify for a waste exemption rather than a permit. The exemption must be registered and these too are subject to strict conditions such as limits to the amount of waste that can be handled or how they are handled.
There are some operations which do not need to be registered. These relate to the temporary storage of waste pending collection. Although you do not have to register these operations, you must still comply with the conditions of the operation.
Examples of activity that would breach a permit condition or exemption limit include the transfer of waste:
to a facility that does not have an appropriate permit or exemption to accept or manage that type of waste
in a condition which means that it cannot be managed or stored safely pending removal - for example, waste being stored outside the confines of buildings or bunds
in a quantity that causes a facility to exceed the limits allowed by its permit or exemption - for example, increasing or expanding piles of waste
If you suspect that someone does not have an appropriate environmental permit or registered exemption, or that they are breaching a condition of their permit or exemption, you must not give them your waste or take waste from them. You should report suspected illegal activity or breaches to permits or exemptions to the EA or NRW.
3.3 Prevent the escape of waste
To prevent waste from escaping from your control, or from your employees’ or waste contractors’ control, you must make sure it is handled and stored safely and securely.
You can do this by:
using containers that are:
- clearly and correctly labelled
- suitable for the storage, transport and subsequent management activities by you and following waste holder
- designed to prevent leakage, contamination or spoiling of waste (spoiled waste is waste that cannot be managed in the way intended)
- limiting access to the waste to only those that are authorised to handle it. This will help prevent accidents, pests, incidents of vandalism and theft. It will also stop unauthorised people adding to the waste and so invalidating the waste description (see section 3.5)
- ensuring vehicles are covered and waste is secured appropriately for transport purposes
Before your waste is collected and disposed of or recovered you must assess and classify waste as set out in the waste classification guidance. This identifies whether the waste is hazardous or not, and which controls apply to the movement of the waste to prevent harm to people and the environment.
3.4 Transfer waste to an authorised person
You should check whether a person or business is authorised to take waste before you transfer your waste to them. An authorised person is one of the following:
- someone who has a valid registration as a carrier, broker or dealer of waste
- a waste management operator who has an environmental permit or registered exemption to accept such waste
You can ask the person or business you transfer your waste to or who arranges the transfer for evidence of their authorisation, such as a copy of their permit or proof of their exemption registration.
You should also use the public register to check any evidence they provide. The register contains information on:
- waste carrier, broker and dealer registrations
- environmental permits for waste operations
- waste exemptions
In England, you can check registration on the EA’s public register or call 03708 506 506.
In Wales you can check on the NRW’s public register or call 0300 065 3000.
The person receiving the waste must also check that the previous holder has complied with their duty of care. If you suspect that the previous waste holder has breached their duty of care (for example, misdescribing the waste or not properly storing it), do not accept the waste and report your suspicions to the EA or NRW.
Record any checks you make as you can use this as evidence that you have met your duty of care.
If you use a dealer or broker to manage your waste, they must be registered as a dealer or broker with their regulator, even if they do not take physical possession of the waste.
Where a dealer or broker is the transferor or transferee of the waste, their details (including their registration number) must be included in the waste transfer information.
Waste carriers, dealers and brokers must present evidence of registration if requested by a police constable, an authorised officer of the EA, NRW or local authority. It is an offence not to do so without reasonable excuse and you could be prosecuted under section 5 of the Control of Pollution (Amendment) Act 1989, or issued with a fixed penalty notice under section 5B of that Act. To register as a carrier, dealer or broker, contact the EA in England or NRW in Wales.
3.5 Provide an accurate description of waste
When you transfer waste to another person, you must ensure that:
1: A written description of the waste is agreed and signed by you and the next holder. The description is part of the waste information you must provide.
For non-hazardous waste you can do this by using:
- edoc – a free national electronic duty of care system that creates, shares, signs and stores waste transfer notes and season tickets for you online
- a paper waste transfer note– a form to fill in or you can use alternative documentation - for example, an invoice, as long as it contains all the required information
- a season ticket - a single waste transfer note that covers a series of non-hazardous waste transfers. The season ticket can last up to one year and be used for regular transfers of the same type of non-hazardous waste with the same carrier. If you have several sites serviced by the same carrier with the same types of waste collected, they can be listed in a schedule to the season ticket. You should keep a record of the collection times and the quantity of waste
A waste information note is not required for non-hazardous waste if the waste holder does not change on the transfer of waste - for example, the waste is moved to other premises belonging to the same business. However, it is best practice that the business understands who has responsibility for that waste and a record is kept of internal transfers for audit purposes.
For hazardous waste you need to use a:
- consignment note - this applies to all movements of hazardous waste including collections from businesses by registered waste carriers, movements from one premises to another within the same business and all movements from the waste producer’s premises. The only 2 exceptions where a consignment note is not needed are where domestic hazardous waste (other than asbestos waste) is removed from a domestic household or waste is imported or exported under international waste shipment controls (which uses an equivalent note)
2: The description contains a statement confirming that you have fulfilled your duty to apply the waste hierarchy as required by regulation 12 of the Waste (England and Wales) Regulations 2011 (see Waste Hierarchy Guidance for England and Wales.
3: The description of the waste is accurate and contains all the information you are reasonably in a position to provide to ensure the lawful and safe handling, transport, treatment, recovery or disposal by subsequent holders, including:
- classification of the waste by using the appropriate codes (referred to as the List of Wastes (LoW) or European Waste Catalogue (EWC)) - Appendix A of the Waste Classification Technical Guidance provides a list of the codes as well as advice on how to assess and classify waste
- its quantity and nature and whether it is loose or in a container
- if in a container, the type of container
- the time and place of transfer
- the SIC code of the transferor (current holder of the waste)
- the name and address of the transferor and transferee (person receiving the waste) and their signatures (the signature can be electronic as long as an enforcement officer can view it)
- the capacity in which the transferor and transferee are acting (for example, as a producer, importer or registered waste carrier, broker or dealer) and their relevant authorisation to act in that capacity (for example, their permit number or registration number)
You should also consider whether there are any problems associated with the waste that you need to describe so that subsequent users can handle it properly. Examples include whether the waste:
- needs a special container
- needs particular treatment or handling, for example batteries or waste electrical and electronic equipment (WEEE)
- can or cannot be mixed with other wastes
- could cause a problem during treatment or disposal - for example, dusty, smelly or otherwise offensive waste)
- has been processed (for example, undergone treatment) or had certain materials removed from it (for example, packaging) to meet basic characterisation requirements of wastes destined for landfill
- displays a hazardous property (for example, flammable) or presents a chemical hazard
- has other issues (for example, risk of spillage or leakage of liquids)
If you receive waste, you must ensure the waste matches the written description and that your permit allows you to accept such waste.
If you are operating under a waste exemption, you must ensure that by accepting any waste you are not contravening the exemption criteria - for example, waste limits.
3.6 Retention of waste documentation
You must keep a copy of the waste description for waste you have transferred or received (either electronically or on paper format) for:
- 2 years for non-hazardous waste
- 2 years for season tickets
- three years for hazardous waste consignment notes (different retention periods apply for consignees (receivers) of hazardous waste; see further detail in the hazardous waste guidance)
- six years if you are a landfill operator for non-hazardous waste (for landfill tax purposes)
- the lifetime of your permit if you are a landfill operator for hazardous waste
- the lifetime of an environmental permit (when the permit is surrendered, the regulator often requires a history of the types of waste received)
If an authorised officer of the EA, NRW or local authority asks you to provide the written description of waste, or a copy of it, and you fail to do so, they can issue a fixed penalty notice. Where the waste is hazardous waste, a variable monetary penalty for breach of the requirements to supply information may be issued.
4. Other waste laws for waste holders
A number of other waste laws are relevant to waste holders in particular circumstances. Some of these are briefly described below.
4.1 Hazardous waste
If you produce or deal with hazardous waste you must:
- comply with the Hazardous Waste Regulations
- follow specific requirements for consigning hazardous waste
4.2 Producer Responsibility Regulations
If you manufacture, import or sell packaging, electrical and electronic equipment (EEE), batteries, or end-of-life vehicles (ELVs) you must follow the Producer Responsibility Regulations in England and Wales.
4.3 Separate collection
If you collect waste paper, metal, plastic or glass you must comply with the rules on separate collection (see guidance for England and Wales. The rules require that you collect waste paper, plastic, metal and glass separately from each other and from other wastes where it is both:
- necessary to comply with the waste hierarchy and for the protection of human health and the environment, and to facilitate or improve recovery (see the Waste Hierarchy Guidance for England and Wales
- technically, environmentally and economically practicable (TEEP) (see European Commission guidance (paragraphs 4.3.4 and 4.4 for guidance on TEEP practicability tests)
Where waste paper, metal, plastic or glass has been collected separately, all reasonable steps must be taken to keep them separate from other waste or materials.
If you are a materials facility and receive household waste (or household waste like material) consisting of mixed glass, metal, paper or plastic for separating out you must:
- sample and test the materials you receive and send out
- record the information
- report every three months to the regulator
If you send waste to landfill or operate a landfill site:
the written description of waste must contain details of any pre-treatments or processes that have been applied to the waste
If your waste is being disposed of at a landfill site in Wales, you can check on the Welsh Revenue Authority list of landfill site operators to see if the landfill site is an authorised landfill site.
In Wales you may become liable to Landfill Disposals Tax on an unauthorised disposal if you knowingly caused or knowingly permitted an unauthorised disposal to be made. In some circumstances, it will be presumed that a person knowingly caused or knowingly permitted an unauthorised disposal. This is where, at the time of the disposal a person:
- controlled or was in a position to control a motor vehicle or trailer from which the disposal was made
- was the owner, lessee or occupier of the land on which the disposal was made
If HMRC find you have deliberately supplied false information or withheld information which causes another person to make an incorrect landfill tax declaration, you will be liable to a civil penalty. The maximum penalty for misrepresentation is equal to the amount of the under-declared landfill tax.
HMRC can also recover landfill tax from those who dispose of waste, or knowingly facilitate the disposal of waste, at sites without a permit. This also applies to material deposited at permitted sites if not expressly exempt.
The Welsh Revenue Authority (WRA) is also able to charge unauthorised disposal rate (initially £133.45 per tonne) on disposals made outside of an authorised landfill site (an unauthorised disposal). A person may become liable to the unauthorised disposals rate on an unauthorised disposal either where they made the disposal, or where they knowingly caused or knowingly permitted the disposal to be made.
In Wales you must be registered as an authorised landfill site with the WRA and you must comply with the Landfill Disposals Tax (Wales) Act 2017 (and legislation made under it) which makes provision for tax to be charged on taxable disposals in Wales.
4.5 Importing or exporting waste
If you import or export waste, you must comply with the European and UK rules that govern how you can ship waste into or out of the country and, in the case of exports, with the rules of the importing country.
5. Occupiers of domestic property: waste duty of care requirements
As an occupier of a domestic property, you have a duty to take all reasonable measures available to you to ensure you only transfer household waste produced on your property to an authorised person.
5.1 Who does this duty of care apply to?
The duty of care to ensure you only transfer waste to an authorised person applies to all occupiers of any domestic property when dealing with their household waste produced on that property.
The wider duty of care detailed in other sections of this code of practice, including the requirement for waste transfer notes (see section 3.5), specifically does not apply to the occupier of a domestic property when they are dealing with their household waste.
5.2 What waste is covered by this duty of care?
For the purpose of applying this duty of care, household waste is generally considered to be any waste produced within a domestic property. This is not just regular black bin bag waste, but other material you want to dispose of from your property such as old mattresses, furniture and household appliances. For the waste duty of care this includes septic tank sludge which is not used on agricultural land within the meaning of the Sludge (Use in Agriculture) Regulations 1989, and construction and demolition waste.
If a tradesperson carries out work on your property, they are responsible for the waste they produce including its transport and disposal. They must comply with their own duty of care obligations in relation to that waste, and the cost of its disposal should be included in what they charge for the work. As you are not transferring the waste to them your duty of care does not apply. If you have a tradesperson take away waste that you produced, for example if you add your own waste to their skip, the duty of care will apply for that waste.
Waste that comes from a property or part of a property that is mainly used for commercial business is regarded as commercial waste and subject to the duty of care set out in sections 2 to 4 of this code of practice. Waste resulting from the clearance of premises after they have been vacated, such as a landlord or letting agent clearing student housing, is also not considered to be household waste.
5.3 How should you dispose of your waste?
If you have household waste which cannot be appropriately disposed of through your normal local authority waste collection service (this may be provided by a contractor on behalf of the local authority) or within the boundary of your home[footnote 1] you can:
see if your local authority’s household waste and recycling centre accepts the waste and take it yourself
check if your local authority offers special collection services
use a private business that provides a waste collection service
take your waste to a site run by a private business with the appropriate authorisations
You should check whether a person or business is authorised to take waste before you transfer your waste to them. An authorised person includes:
the local authority that provides your normal waste collection service
someone who has a valid registration as a carrier, broker or dealer of waste
an operator of a waste site with an appropriate environmental permit or exemption
While important, meeting a local authority’s household waste collection requirements is a separate issue not covered by this duty of care.
5.4 What reasonable measures should you take when a private business takes your waste?
If you engage a private business (for example, skip hire, house clearance) to take away your waste rather than the local authority, in order to meet your duty of care you should check that they are an authorised carrier with up to date and valid upper tier registration. This includes a business which approaches you and offers to take your waste. Each carrier should have a registration number starting CBDU, followed by a set of numbers.
In England you can check whether a waste carrier is registered on the Environment Agency’s online public register of waste carriers, brokers and dealers using their registration number, business name, or postcode or call 03708 506 506. The site can also be used to find registered carriers near you.
In Wales you can check on the Natural Resources Wales public register of carriers, brokers and dealers or call 0300 065 3000.
An upper tier registration allows a person or organisation to transport other people’s waste, while lower tier registrations are primarily for organisations carrying their own waste.
Instances where a private business handling your household waste is exempt from registering, or can do so under a lower tier registration are very rare. However, charities, voluntary organisations and waste collection authorities can use lower tier registrations.
5.5 What reasonable measures should you take when taking your waste to a private waste site?
If you are transporting your own waste for disposal, you will typically want to take it to your local authority’s household waste and recycling centre, having first checked that they can accept that type of waste. If however, you take your waste to a site run by a private business, in order to meet your duty of care you should check that they have a registered permit or exemption.
In England you can check if a waste site has a permit or exemptions through the Environment Agency’s online public registers for waste operations and waste exemptions using their registration number, business name, or postcode, or call 03708 506 506.
In Wales you can check on the Natural Resources Wales public register of waste, water quality, water resources and installation permits or call 0300 065 3000.
5.6 What evidence can you use to demonstrate you have met your duty of care?
There is no legal requirement to keep records when you check a carrier is registered or a site is permitted or exempt, as described in sections 5.4 and 5.5 above, and a lack of records does not prove you did not meet your duty of care. However, if your waste is subsequently fly-tipped and investigated by the local authority, records can quickly show that you met your duty of care. For example, you could do one of the following:
record any checks you make, including the operator’s registration, permit or exemption number
keep a receipt for the transaction which includes the business details of a registered operator
ask for a copy or take a photograph of the carrier’s waste registration or site’s permit
record details of the business or of any vehicle used (registration, make, model, colour), which can be linked back to an authorised operator
These steps can help ensure your waste will be handled appropriately and not cause harm to others or the environment. These steps can also help enforcement officers catch those responsible if your waste is fly-tipped.
5.7 What happens if you do not meet your duty of care?
It is a criminal offence if you do not take all reasonable measures available to you to meet your duty of care. You could face prosecution and, on conviction, a fine and criminal record.
You may be given a fixed penalty notice for breaching the duty of care. While there is no obligation to pay this, if you choose to do so within the specified period, you cannot be prosecuted for the offence.
You may also provide evidence to the authority at any time that prosecution is not appropriate, either by demonstrating you met your duty of care, or that prosecution is not proportionate. It is at the authority’s discretion whether to proceed to prosecute.