Don’t Ignore The Duty Of Care

Simon-Colvin--H-&-SDon’t ignore the Duty of Care when it comes to dealing with waste crime, is the message from Simon Colvin, partner and national head of the environment team at Weightmans LLP, in this article about taking responsibility, doing the right thing and superfunds – a CIWM Journal Online Exclusive

The Defra waste crime consultation and call for evidence closed on 6 May. The focus of the combined document was how to address the growing problem of waste crime and the impact it has, not only on the environment and people, but also the waste sector as a whole.

One area conspicuous due to its absence from the consultation and call for evidence was the possible role for the Duty of Care further to s34 Environmental Protection Act 1990 and more recently the Waste Regulations 2011.

As we all know, the Duty of Care is there to ensure that waste is handled, transferred and transported, stored, disposed and/or recovered appropriately. The duty applies to all of those in the waste chain from the original producer to the final destination of the waste, whether that is for disposal or recovery.

A common misconception is that responsibility for waste can be passed from one party to another through an agreement between the two. That is not strictly correct. Two parties can agree between them who will have contractual responsibility for the waste, but an operator can only absolve itself of regulatory responsibility further to the Duty of Care (and other controls) if it has complied with the relevant obligations provided for by the Duty of Care. If it has not complied with those obligations then the operator can retain regulatory responsibility for the material and may be open to enforcement action by the regulators.

This ongoing responsibility has fallen down in relation to illegal waste operations. Many of the abandoned waste sites that exist in England (76 according to Defra at last count) contain mixed waste from a number of sources. When waste has been mixed in this way, regulators are very reluctant to try and pass any responsibility for the abandoned waste back to the producer/s, or others further up the Duty of Care chain, because of evidential problems in saying who is responsible for what.

What Happens Stateside?

In the US, this issue is partially overcome through the use of proportionate responsibility pursuant to the CERCLA regime. Very simply CERCLA applies to hazardous waste as well as contaminated land. Its effect is to make producers of hazardous waste strictly liable for their hazardous waste indefinitely. If the hazardous waste is treated and recovered that responsibility comes to an end. If the hazardous waste is disposed of in a landfill, that responsibility continues indefinitely. An insurance industry has sprung up around the need for ongoing protection, as has the super fund, which is used to address any orphaned or abandoned sites.

The role of a superfund in the UK for such sites is an option touched on by Defra in the consultation and call for evidence. However, they did not look at the role of an extended and more rigorously enforced duty of care. Is that a mistake?

fly-tipping tyres bricks woodPut very simply waste transfer or consignment notes will record the volumes of material entering a site. The operator of that site is then required to maintain appropriate records to show what has happened to that waste – has it been treated, sorted, handled recovered, transferred elsewhere etc… On that basis even if the waste materials are mixed, in the event a site is abandoned, it should be feasible to identify a proportion of the cost for the dealing with the abandoned waste that a producer, or others in the duty of care chain, should be responsible for.

Such an approach would not be without its problems, but we do have other regimes in the UK that work on the basis of proportionate liability (eg, the contaminated land regime).

Such an approach would put an increased burden on waste producers and others in the Duty of Care chain, but it would mean a much more robust and rigorous approach to compliance. It would also encourage a greater element of self policing.

Making a producer of waste responsible for the material it generated (even if it has paid another party to handle it on its behalf) is surely fairer than making a landowner responsible for the material pursuant to s59ZA of the Environmental Protection Act 1990? That is the outcome we are now seeing in relation to a very large proportion of the 76 abandoned sites in England.

Waste crime has a very significant impact on a wide range of people. A radical approach such as the extension and more robust enforcement of the Duty of Care might be one solution to what is a very difficult problem.

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