waste management the duty of care - a code of practice

8/3/2019 Waste Management the Duty of Care - A Code of Practice

1/48

waste

waste carrier

Authorised Waste

Facility

Waste Management

The Duty of Care - A Code of Practice


2/48


3/48

Waste and Contaminated Land (Northern Ireland) Order 1997

Waste Management

The Duty O Care

A Code o Practice

Issued under Article 5(9) o the 1997 Order - October 2002

Modied under Article 5(10) o the 1997 Order August 2004


4/48

Duty of Care - Code of Practice www.ni-environment.gov.uk

4

ContentsIntroduction 5

THE CODE OF PRACTICE

STEP BY STEPGUIDANCE

Identiy and describe the controlled waste 7

Keep the waste saely 11

Transer to the right person 13

Receiving waste 17

Checking up 19

Expert help and guidance 22

The duty o care and scrap metal 24

SUMMARY CHECKLIST 27

ANNEXES

The law on the duty o care 29A.

Responsibilities under the duty o care 34B.

Regulation on keeping records 37C.

Other legal controls 41D.

Waste management licensing 41i.

The registration o waste carriers 41ii.

Special waste 42iii.

Road transport o dangerous substances 42iv.

International waste transers 43v.

Health and saety 44vi.

E. Glossary o terms used in this code o practice 45


5/48

Duty of Care - A code of Practicewww.ni-environment.gov.uk

5

IntroductionThe code o practice consists o the guidance in Sections 1-7 togetheri.

with their related Annexes. It is issued by the Department o the

Environment (the department) in accordance with Article 5(9) o theWaste and Contaminated Land (Northern Ireland) Order 19971 (the 1997

Order). This introduction is not part o the code o practice.

Article 5 o the 1997 Order imposes a new duty o care on personsii.

concerned with controlled waste. The duty applies to any person who

produces, imports, carries, keeps, treats or disposes o controlled waste,

or as a broker has control o such waste. Breach o the duty o care is an

oence, which on summary conviction is liable to a ne not exceeding

the statutory maximum or, an unlimited ne i convicted on indictment.

Waste poses a threat to the environment and to human health i it is notiii.

managed properly and recovered o disposed o saely. The duty o careis designed to be an essentially sel-regulating system which is based

on good business practice. It places a duty on anyone who in any way

has a responsibility or controlled waste to ensure that it is managed

properly and recovered o disposed o saely. The purpose o this code is

to provide practical guidance or waste holders and brokers subject to

the duty o care. It recommends a series o steps which should normally

be enough to meet the duty. The code cannot cover every contingency.

The Legal obligation is to comply with the duty o care itsel rather than

with the code. Annex A gives a more detailed explanation o the law.

The code is divided into: -iv.

Sections 1-7: Step by step guidance on ollowing the duty;

A Summary check list; and

Annexes A: the law on the duty o care;

B: responsibilities under the duty;

C: Regulations on keeping records;

D: an outline o some other legal requirements; and

E: a glossary o terms used in the code.

Is it waste?The duty o care applies to waste which is controlled waste (seev.paragraphs 1. 1- 1.2 below). The rst question, thereore, is whether any

particular substance iswaste. Since 1 December 1998 the common

European denition o waste in the Waste Directive2 has been in orce.

The denition is:-

any substance or object - which the producer3 or the person in

possession o it discards or intends or is required to discard.

Whether or not a substance is waste must be determined on the acts

o the case; and interpretation o the Law is a matter or the Courts. In

the Departments view the purpose o the Waste Directive is to treat as

waste, and accordingly to supervise the collection, transport, storage,

recovery and disposal o, those substances o objects which all out

1 S.I. 1997 No.2778 (N.I.19)

3Producermeans anyone whoseactivities produce waste or whocarries out preprocessing, mixingor other operations resulting in achange in its nature or composition.

2 Council Directive 75/442/EEC asamended by Directives 91/156/EECand 91/692/EEC.


6/48


6

o the commercial cycle or out o the chain o utility. The Department

would suggest, thereore, that to determine whether a substance or

object has been discarded the ollowing question may be asked:-

Has the substance or object been discarded so that it is no longer part o

the normal commercial cycle or chain o utility?

I the answer to this question isnois a reasonable indication that the

substance or object concerned is not waste. As indicated, however, the

purpose o the Waste Directive is to supervise the collection, transport,

storage, recovery and disposal o waste; and these are activities which

themselves may be o a commercial nature. A distinction must be drawn,

thereore, between the normal commercial cycle and the commercial

cycle which exists or the purpose o collecting, transport, storage,

recovery or disposal. A substance or object, which is waste at the

point o its original production, should be regarded as waste until it is

recovered or disposed o.


7/48


7

STEP BY STEP GUIDANCESECTION 1

Identiy and descibe the controlled waste1.1 The duty o care applies to anyone who is the holder4 o controlledwaste5. The only exception to this is or the occupiers o domestic

property or the household waste which comes rom their home.

Anyone subject to the duty o care who has some controlled waste

must identity and describe the kind o waste it is.

Is it controlled waste?1.2 Controlled waste rom households6, commerce or industry. At

present, the main kinds o waste that are not controlled waste are

waste rom agricultural premises, waste rom mines and quarries,

explosives and most radioactive waste. Unless the context indicated

otherwise, subsequent reerences in the code towasteshould be readas reerences tocontrolled waste. Other wastes which are presently

subject to other control regimes (or example, mines, quarry and

certain agricultural wastes) will in uture (and ater due consultation

with interested bodies/persons) be brought into the controlled waste

category by means o Article 2(3) o the Order.

What are the problems o the waste?1.3 Waste cannot be simply divided between the sae and the hazardous.

There are sae ways o dealing with any waste. Equally, any waste can

be hazardous to human health or the environment i it is wrongly

managed. Deciding whether any waste poses a problem requires

consideration not only o its composition but also o what will happento it. For most waste it is not necessary to know more than what it is in

very general terms. But subsequent holders must be provided with a

description o the waste that is ull enough to enable them to manage

the waste properly. Even everyday items may cause problems in

handling or treatment.

1.4 In looking or waste problems it may help to ask such questions as:-

(a) does the waste need a special container to prevent its escape or to

protect it rom the elements;

(b) what type o container suits it and what material can the containerbe made o;

(c) can it saely be mixed with any other waste or are there wastes

with which it should not be mixed;

d) can it saely be crushed and transerred rom one vehicle to another;

(e) can it saely be incinerated or are there special requirements or its

incineration, such as minimum temperature and combination time;

4 Holder means a person whoimports, produces, carries, keeps,treats or disposes o controlled wasteor, as a broker, has control o it.

5 Only waste which is Directivewaste is treated as controlled waste -see the glossary o terms at Annex E.

6 Householders are exempt rom theduty o care or their own household

waste (Annex Aparagraph A 8).


8/48


8

(() can it be disposed o saely in a landll site with other waste; and

(g) is it likely to change its physical state during storage or transport?

1.5 Anything unusual in waste can pose a problem. So can anything which

is out o proportion. Ordinary household waste, and waste rom shopor oces, oten contains small amounts o potentially hazardous

substances. This may not matter i they are mixed in a large quantity

o other waste. What should be identied as potential problems in

a consignment o waste, are signicant quantities o an unexpected

substance, or unusual amounts o an expected substance.

1.6 Note that certain particularly dangerous or dicult wastes (special

wastes) are subject to strict legal controls quite apart rom, and

additional to, the requirements o the duty o care. The additional

requirements are in the Special Waste Regulations (Northern Ireland)

1998 (S.R 1998 No. 289). Special Waste is subject to the duty o care,

including the guidance in the code o practice and the requirementso the Controlled Waste (Duty o Care) Regulations 2002 (The 2002

Regulations), in the same way as other controlled waste.

Description o the Waste1.7 There must also be a description o the waste. This may be provided

separately or combined as a single document with the transer note.

The European Waste Catalogue (EWC) lists waste using a six-digit code

system based loosely on the source o the waste. This scheme provides a

comprehensive list o waste types, which may be generally accepted as

the reerence point or describing waste. The list will be periodically on

the basis o new knowledge and, in particular, o research results, and i

necessary revised in accordance with Article 18 o EC Directive 75/442/EEC. The description o waste thereore should reer to the appropriate

entry in the EWC. It is good practice to label drums or similar containers

with a description o the waste. Under the 2002 Regulations the parties

must keep the transer note and the description or two years. The

description should always mention any special problems, requirements

or knowledge. In addition it should include some combination o:-

(a) the type o premise or business rom which the waste comes;

(b) the name o the substance o substances:

(c) the process that produced the waste; and

(d) a chemical and physical analysis.

1.8 The description must provide enough information to enable subsequentholders to avoid mismanaging the waste. When writing a description it isopen to the holder to ask the manager who will handle the waste whathe needs to know. Most need only a simple description, in which caseeither 1.7 (a) or (b) above will do. However, in some cases it may not beenough simply to describe the waste as household, commercial or

industrial waste without providing a clearer idea of what the substanceis or providing details about the premises from which it originated. Eachelement of the description is dealt with in paragraphs 1.11-1.17 below.


9/48


9

Transer Note1.9 A transer note must be completed, signed and kept by the parties

involved i waste is transerred. This is a requirement o the 2002

Regulations. Any breach o the 2002 Regulations is an oence (see

Annex C on keeping records). Amongst other things, the transer note

must state:-

(a) the quantity o waste transormed most waste management

companies, in particular landll operators, receive quantities o waste by

weight. Wherever possible, thereore, a transer note should record the

weight o waste transormed;

(b) how it is packed whether loose or in a container; and

(c) i in a container, the kind o container.

Special problems

1.10 The description should always contain any inormation which mightaect the handling o the waste. This should include:-

(a) special problem identied under paragraph 1.3 to 1.6 above;

(b) any inormation, advice or instructions about the handling, recovery or

disposal o the waste given to the holder by the Departments Northern

Ireland Environment Agency7 or the suppliers o material or equipment;

(c) details o problems previously encountered with the waste;

(d) changes to the description since a previous load.

A) Source o the waste: type o premises or business1.11 It may sometimes be enough to describe the source o the waste by

reerring either to the use o the premises where the waste is producedor to the business o the waste producer.

1.12 Such a source o waste description is recommended as the commonsense simple description where businesses produce a mixture owastes none o which has special handling or disposal requirements; orwhere there are no special handling or disposal requirementswhich cannot be identied rom a simple description. Such adescription must make it clear what type o wastes are produced and

the contents o the wastes; and their proportions must be only such asmight be expected.

B) Name o the substance1.13The waste may be described by saying what it is made o. This may be in

physical and chemical terms or by the common name o the waste where

this is equally helpul. Such a description by name is recommended or

waste composed o a single material or a simple mixture.

C) Process producing the waste1.14 The waste may be described by saying how it was produced. Such a

description would include details o materials used or processed, the

equipment used and the treatment and change that produced the

7 In the case o processes regulatedunder Intergrated pollutionControl and Pollution Preventionand Control, the Northern IrelandEnvironment Agency may give

advice to the producer o wastethat is relevant to its subsequentmanagement prior to its fnaldisposal or treatment. Tis adviceshould also be included in thedescription.


10/48


10

waste. I necessary, this would include inormation obtained rom the

supplier o the materials and equipment.

1.15 This should orm part o the description or most industrial wastes and

some commercial wastes.

D) Chemical and physical analysis1.16 A description based on the process producing the waste (C) will not go

ar enough where the holder does not know enough about the source o

the waste. It will oten not be adequate where:-

(a) wastes, especially industrial wastes, rom diferent activities or

processes are mixed; or

(b) the activity or process alters the properties or composition o the

materials put in.

1.17 For such wastes an analysis will usually be needed. In cases o doubt,the holder may nd it helpul to consult the intended waste manager

as to whether he needs an analysis to manage the waste properly.

Where it is necessary the holder should detail the physical and chemical

composition o the waste itsel including, where diferent substances are

mixed, their dilutions or proportions. The holder might either provide

this inormation himsel or obtain a physical or chemical analysis rom a

laboratory or rom a waste management contractor.


11/48


11

KEEP THE WASTE SAFELYSECTION 2

The problem2.1 All waste holders must act to keep waste sae against

(a) corrosion or wear o waste containers;

(b) accidental spilling or leaking or inadvertent leaching rom waste

unprotected rom rainall;

(c) accident or weather breaking contained waste open and allowing

it to escape;

(d) waste blowing away or alling while stored or transported;

(e) odour emissions through correct storage provisions and maximum

storage durations o organic waste, which is subject to biological

decay; and

( ) scavenging o waste by animals or humans.

2.2 Holders should protect waste against these risks while it is in their

possession. They should also protect it or its uture handling

requirements. Waste should reach not only its next holder but also a

licensed acility or other appropriate destination without escape. Where

waste is to be mixed immediately, or example in a transer station, a

civic amenity site or a municipal collection vehicle, it only needs to bepacked well enough that immediate destination. Preventing its escape

ater that stage is up to the next holder. However, there are wastes that

may to reach a disposal or treatment site in their original containers,

or example, drummed waste. In such cases, holders will need to know

through how many subsequent hands; under what conditions; or how

long: and to what ultimate treatment their waste will go in order to

satisy themselves that it is packed securely enough to reach its nal

destination intact. I an intermediate holder alters waste in any way, by

mixing, treating or repacking it, then he will be responsible or observing

all this guidance on keeping waste sae.

Storing waste securely2.3 Security precautions at sites where waste is stored should prevent thet,

vandalism or scavenging o waste. Holders should take particular care

to secure waste material attractive to scavengers, or example, building

and demolition materials and scrap metal. Special care should also be

taken to secure waste which has a serious risk attached to it, or example

certain types o clinical waste. Waste holders should undertake regular

reviews o the waste in their possession to ensure that it has not been

disturbed or tampered with.

2.4 Segregation o dierent categories o waste where they are produced

may be necessary to prevent the mixing o incompatible wastes. For

example, avoiding reactions in mixtures. Segregation may assist the


12/48


12

disposal o waste to specialist outlets. Where segregation is practised

on sites, the waste holder should ensure that his employees and anyone

else handling waste there are aware o the locations and uses o each

segregated waste container.

Containers2.5 Waste handed over to another person should be in some sort ocontainer, which might include a skip. The only reasonable exception

would be loose material loaded into a vehicle and then covered

suciently to prevent escape beore being moved. Waste containers

should suit the material put in them.

2.6 It is good practice to label drums or similar closed containers with a note

o the contents when stored or handed over. This could be a copy o the

waste description. To avoid conusion, old labels should be removed

rom drums that are reused.

2.7 Waste let or collection outside premises should be in containers thatare strong and secure enough to resist not only wind and rain but also

animal disturbance, especially or ood waste. All containers let outside

or collection will thereore need to be secured or sealed. For example,

drums with lids, bags tied up, skips covered. To minimise the risks,

waste should not be let outside or collection longer than is necessary.

Waste should only be put out or collection on or near the advertised

collection times.


13/48


13

TRANSFER TO THE RIGHTPERSON

Section 33.1 Waste may be handed on only to authorised persons or to persons

or authorised transport purposes. This section o the code advises on

who these persons are; and what checks to carry out beore making an

arrangement or contract or transerring waste.

3.2 Article 5(3) o the 1997 Order, as amended8, sets out those who are

authorised persons. The list o authorised persons is:-

(a) any district council;

(b) any person who is the holder o a waste management licence underArticle 6 o the 1997 Order; or o a disposal licence under Article 7 o

the Pollution Control and Local Government (Northern Ireland) Order

19789 (The 1978 Order);

(c) any person to whom Article 4(1) o the 1997 Order does not apply by

virtue o regulations made under paragraph(3) o that Article;

(d) any person registered as a carrier o controlled waste under Article

39 o the 1997 Order;

(e) any persons exempt rom registration as a carrier o controlled waste

under regulation 2 o the Controlled Waste (Registration o Carriersand Seizure o Vehicles) Regulations (Northern Ireland) 199910;

() any person who is the holder o an authorisation under Article 6 o

the Industrial Pollution Control (Northern Ireland) Order 199711 which

enables him to accept waste;

(g) any person who is the holder o a permit granted under regulation10 o the Pollution Prevention and Control Regulations (Northern

Ireland) 200312 which authorises the carrying out o a specied waste

management activity within the meaning o those Regulations.

3.3 The Department has discretion by virtue o Article 5(4) o the 1997 orderto make regulations or the purpose o adding to the list o authorised

persons specied in Article 5(3).

3.4 The list o authorised transport purposes is set out in Article 5(5) o the

1997 Order, which is reproduced at the end o Annex A.

Public waste collection3.5 District Councils collect waste rom households and rom some

commercial premises. They do this either with their own labour or using

private contractors who will be registered carriers (Annex D paragraph

D.6-D.8). I there is any doubt whether or not a particular waste can go in

the normal collection, the producer should ask the local council.

11 S.I. 1997/2777 (N.I. 18)

8 S.R. 2004 No. 277

9 S.I. 1978/1049 (N.I.19)

10 S.R. 1999 No. 362

12 S.R. 2003 No. 46


14/48


14

Using a waste carrier3.6 A waste holder or broker may transer waste to someone who transports

it a waste carrier who may not also be a waste manager (Annex D

paragraph D.6-D.8). Subject to certain exemptions, anyone carrying

waste in the course o their businesses, or in any other way or prot,

must be registered with the Department. The Departments register ocarriers is open or public inspection. For the purpose o the duty o

care, holders may use this register as a reerence list o carriers who are

authorised to transport waste. However, inclusion on the Departments

register is not a recommendation or guarantee o a carriers suitability

to accept any particular type o waste. The holder or broker should

remain alert to any sign that the waste may not be legally dealt with by a

particular carrier.

3.7 Anyone intending to transer waste to a carrier will need to check that

the carrier is registered or is exempt rom registration. A registered

carriers authority or transporting waste is either his certicate o

registration or a copy certicate provided by the Department both owhich will show the date on which the carriers registration expires. The

certicate is printed on special paper and i photocopied, the word

INVALIDwill appear on the copy like a heavy watermark.

3.8 In all cases other than those involving repeated transers o waste,

the holder should check the details o the carriers certicate or copy

certicate o registration. In addition, beore using any carrier or the

rst time, the holder should check with the Department that the carriers

registration is still valid, even i his certicate appears to be current. The

holder should provide the Department with the carriers name and

registration number.

3.9 The ollowing are exempt rom registering as a waste carrier:-(a) a government department;

(b) charities and voluntary bodies;

(c) district councils collecting any waste themselves (through a councils

contractors are not exempt);

(d) the Northern Ireland Railways Company Limited when carrying

waste by rail;

(e) a erry operator in relation to the carriage on the erry o any vehicle

carrying controlled waste;

() erry operators where waste is to be disposed o under licence at sea;

(g) persons who are authorised under the Animal By-Products

Regulations (Northern Ireland) 2003 (Animal By-Products

Regulations ) to hold or deal with animal waste.


15/48


15

3.10 It should be noted that animal waste which is collected and transported

in accordance with regulations 8 o the Animal By-Products Regulations

is not controlled waste or the purposes o the duty o care (see annex A

paragraph A.9).

3.11 Any carrier who claims to be exempt rom carrier registration should beasked to substantiate his claim.

Sending waste or disposal or treatment or recovery3.12 A waste manager is anyone who stores waste or who processes it

in some intermediate way or who reclaims waste or who disposes

o it. Most o these activities are authorised by permits13 issued by

the Department o District Councils (see also paragraph 3.15 dealing

with exemptions). A permit normally includes conditions as to the

type and quantity o waste that may be dealt with, the way in which

it is managed, operating hours and pollution control measures to be

operated on site.

3.13 Beore choosing a waste manager as the next person to take waste, a

holder will need to:-

a) check that the manager has a permit; and

b) establish that the permit allows the manager to take the type and

quantity o waste involved.

3.14 A waste holder should check this not merely by asking the waste

manager but by examining his permit. The holder in turn should show

the manager the description o the waste involved. I the holder doubtswhether the permit covers his particular waste he can ask the waste

manager or, i he is still not satised, the body that issued the permit.

3.15 Some orms o waste, treatment or recovery do not require a permitbecause the activity concerned has been exempted by regulations.

I a selected waste manager claims that he is exempt rom being

permitted, the holder has a duty to satisy himsel as to the validity o

the exemption beore handing over his waste by examining the waste

managers exemption certicate. I in any doubt the holder should seek

advice rom the Department. (For more inormation on licensing and

exemptions see Annex D paragraphs D.2-D.3)

3.16 A holder o waste should make these same checks on permits and

exemptions whenever he delivers waste even i he is not the producer.

A carrier should always check that the next holder that he delivers to

is an authorised person and that the description o the waste that he

carries is within the permit or exemption o any waste manager to

whom he delivers, unless he is only providing the transport to a contract

directly between the producer and the waste manager. In that case the

producer should make all the checks on the waste manager.

13 Permits include waste managementlicences, disposal licences, disposallicences, resolutions, PPC permitsand IPC permits.


16/48


16

3.17 Disposal sites operated by district councils are subject to authorisation

by the Department. It is necessary to check that the local council

operates such sites and to establish that the permit allows the council

to take the type and quantity o waste involved.

Responsibility o brokers3.18 A broker, by arranging or the transer o waste, shares responsibility

or its proper transer with the two holders directly involved. He should

ollow the relevant part o the guidance in paragraphs 3.6-3.17 above

when undertaking check in connection with arrangements he intends

to make, o has made, or waste.

Checks on repetitive transers3.19 Full checks on carriers and waste managers do not need to be repeated

i transers o waste are repetitive the same type o waste rom the

same origin to the same destination. However, it would be advisable

to make occasional checks to ensure that the contents or compositiono the waste that is being transerred under cover o a season ticket

remains consistent with the waste description.

3.20 For a series o identical loads making up one transaction there is no

need to see the permit o a waste manager, proo o exemption or the

registration certicate o a waste carrier, every time a load o waste

transerred. Although, as a matter o good practice, periodic checks

should be carried out.

3.21 However, permits, carriers registration certicates, registration

or evidence o exemption should be examined aresh in the

ollowing cases:-

(a) whenever a new transaction is involved, that is i the description o

destination o the waste has changed;

(b) where several dierent carriers or disposers are collecting waste

at one place and there might be a danger o an unauthorised carrier

collecting a load. For example, a construction or demolition site

rom which several hauliers are taking waste away;

(c) as a minimum precaution, the permit, certicate o registration or

evidence o exemption should be seen and checked at least once

a year even i nothing appears to have changed in a series orepeated transers;

(d) where there has been a change in the permit conditions o the

destination;

or

(e) where there has been a change in the waste carrier.


17/48


17

RECEIVING WASTESection 4

4.1 The previous three sections o this code look at transers rom thepoint o view o the person transerring the waste to someone else.

This section oers guidance to persons receiving waste, whether at its

ultimate destination or as an intermediate holder.

Checking on the source o waste4.2 Checking is not only in one direction. No one should accept waste rom

a source that seems to be in breach o the duty o care. Waste may only

come either rom the person who rst produces or imports it or rom

someone who has received it. The person who receives it must be one o

the persons entitled to receive waste that is an authorised person or a

person or authorised transport purposes (section 3). On the handover

o waste, the previous holder and the recipient will complete a transernote in which the previous holder will declare which category o person

entitled to hold waste he is. The recipient should ensure that this is

properly completed beore accepting waste.

4.3 Recipients should not normally need to see any waste management

licence o the previous holder; and there is no explicit requirement or

a person receiving waste rom a waste carrier to check on whether or

not the carrier is registered. In the Departments view, it is not a breach

o Article 5(1) o the 1997 Order or a recipient to accept waste rom an

unregistered carrier. However, oences might have been committed

earlier in the chain, or example, by a waste producer who transers

waste to someone who is not authorised to accept it. This may bea carrier who was required to be registered but was not. The carrier

himsel would also be in breach o the carrier registration legislation i he

were required to be registered but was not.

Paragraphs 5.10-5.11 below provide guidance on reporting such

incidents to the Department.

4.4 However, as a matter o good practice, the rst time a carrier delivers

waste, the recipient should satisy himsel that he is dealing with

someone who is properly registered to transport the waste. In this case,

it would be reasonable to ask to see either the carriers registration

certicate or ocial copy certicate, or to request conrmation o the

type o exemption under which the carriers transporting the waste.

4.5 Beore receiving any waste, a recipient should establish that it is

contained in a manner suitable or its subsequent handling and nal

disposal or recovery. Where the recipient provides containers he should

advise what waste may be placed in them.

4.6 The recipient should also look at the description and seek more

inormation rom the previous holder i this is necessary to manage

the waste.


18/48


18

Co-operation with the previous holder4.7 Anyone receiving waste should co-operate with the previous holder

in any steps they are taking to comply with the duty. That means

in particular supplying correct and adequate inormation that the

previous holder may need.

4.8 The previous holder needs to know enough about the later handling

o his waste how it is likely to be carried, stored and treated to pack

and describe it properly. The recipient should give such inormation.

4.9 Under the 2002 Regulations (Annex C) anyone receiving waste must

receive a description o the waste and complete a transer note.

The recipient must declare on the transer note which category o

authorised person he is, with details. Beore making any arrangement

to receive waste, a waste manager should show to the previous holder

his permit or his exemption certicate; and a carrier should show his

certicate o registration, an ocial copy o his certicate o registration

or evidence o the type o exemption rom registration under whichhe transports waste. It would be sensible or every waste management

site oce to hold a copy o the permit or exemption certicate; and or

every vehicle used by a carrier to a carry an ocial copy o the permit or

exemption certicate; and or every vehicle used by a carrier to carry an

ocial copy o the carriers certicate o registration or evidence o the

type o exemption under which he transports waste.

4.10 A broker, by arranging or the transer o waste, shares responsibility or

its proper transer with the two holders directly involved. To enable the

broker and the other parties to the transer to discharge their duty o

care, inormation may need to be exchanged between the broker and

the previous holder or recipient o the waste, in line with the guidancein this Section.


19/48


19

CHECKING UPSection 5

5.1 The previous sections describe normal procedures or transerring wasterom the producer to its nal destination. Most o the checking that is

reasonable is already built into these procedures and the transer note

system (Annex C). This section gives guidance on what urther checks are

advisable and the action to take when the checks show that something

is wrong.

Checks ater transer5.2 Most waste transers require no urther action rom the person

transerring waste ater the waste has been transerred. A producer is

under no specic duty to audit his wastes nal destination. However,

undertaking such an audit and subsequent periodic site visits would

be a prudent means o protecting his position by being able todemonstrate the steps he had taken to prevent illegal treatment o

his waste.

5.3 One exception is where a holder makes arrangements with more than

one party. For example, a producer arranges two contracts, one or

disposal and another or transport to the disposal site. In that case the

producer should establish that he not only handed the waste to the

carrier but that it reached the disposer. Similar considerations apply to a

broker who may make arrangements on behal o a waste producer with

several parties (carrier, disposer etc.).

Checks ater receipt5.4 Any waste holder, but especially a waste manager receiving waste, has

a strong practical interest in ensuring that the description o the waste

is correct and contains adequate inormation. A permit will control the

quantities and types o waste that may be accepted and how they may

be managed. Anyone receiving waste should make at least a quick visual

check that it appears to match the description. For a waste manager

it would be good practice to go beyond this by ully checking the

composition o samples o waste received.

Causes or concern5.5 Every waste holder should be alert or any evidence that suggests that

the duty o care is not being observed or that illegal waste handling istaking place. Obvious causes or concern that any holder should notice

when he accepts or transers waste include:-

(a) waste that is wrongly or inadequately described being delivered to

a waste management site;

(b) waste being delivered or taken away without proper packing so that

it is likely to escape;

(c) ailure o the person delivering or taking waste to complete a

transer note properly, or an apparent alsehood on the transer note;


20/48


20

(d) an unsupported claim o exemption rom permitting or registration

as a carrier; and

(e) ailure o waste consigned via a carrier to arrive at a destination with

whom the transerring holder has an arrangement; or

( ) damage to, or intererence with containers.

5.6 Other causes o concern may come to light. Waste holders do not have

to check up ater waste is handed on, but they may become aware

o where it is going, and should act on such inormation i it suggests

illegal or careless waste management. Similarly, a broker who suspects

mismanagement o waste or which he has made arrangements

should take appropriate action. For instance, he may need to make

urther checks to establish the acts, or use dierent waste carriers and

managers unless and until problems are remedied. Paragraphs 5.10 and

5.11 give guidance on inorming the Department.

Action to take with other holders5.7 A holder who suspects that his waste is not being dealt with properly

should check his acts, in the rst instance with the next (or sometimes

the previous) holder. This may involve asking that urther details be

added to a waste description, or more inormation about the exact

status o the next holder or the purposes o waste management

licensing or carrier registration, why they may be entitled to an

exemption, or simply, where waste went to or came rom.

5.8 I a holder is not satised with any additional inormation provided or

is certain that waste he handles is being wrongly managed by another

person then his rst action should normally be to reuse to transer oraccept urther consignments o the waste in question to or rom that

person, unless and until the problem is remedied. Such a step may not

be practicable in all cases, or example, to avoid breach o a contract to

deliver or accept waste or because there is no other outlet immediately

available or the waste. Steps should be taken to minimise such

infexibility. One possible measure would be or new waste contracts to

provide or termination i a breach o the duty occurs and a notice to

rectiy is not complied with.

5.9 I an arrangement that has proved wrong in some respect has to

continue temporarily then the holder should take stringent precautions.

For example, where waste has been misdescribed he should analyseurther consignments; where waste has been collected or delivered

without being properly packed he should inspect each urther load; and

where it has not reach its legitimate destination he should check that

each subsequent load arrives at the appointed place. He should also,

i appropriate, bring the situation to the attention o the Department,

which may be able to oer guidance.


21/48


21

Reporting to the Department5.10 The Departments Northern Ireland Environment Agency (NIEA) is

responsible or the registration o waste carriers, waste management

licensing and or waste management generally. It has a major interest

in breaches o the duty and will carry out investigations o waste

holders to check compliance. NIEA is equipped with the powers andexpertise to prevent or pursue oences and to advise on the legal and

environmentally sound management o waste.

5.11 Any person who imports, produces, carries, keeps, treats, or disposes

o waste or who has control o it as a broker, is required to take all

reasonable measures to prevent the unlawul deposit, recovery or

disposal o the waste by themselves or another person. Holders should

inorm NIEA where they know or suspect that:

(a) there is a breach o the duty o care; or

(b) waste is being carried illegally by an unregistered carrier; or

(c) waste is stored, disposed o, treated or recovered without or in a way

not permitted by an IPPC permit, a waste management licence or an

exemption certicate.


22/48


22

EXPERT HELP AND GUIDANCESection 6

6.1 A waste holder may not always have the knowledge or expertise todischarge his duty o care and in that situation he should seek expert

help and guidance. However, the holder is still the person responsible

or discharging his own duty o care, a responsibility that cannot be

transerred to an expert adviser.

Help with analysing, describing and handling waste6.2 Where a waste holder is aced with an unknown substance or a known

waste but no disposal outlet, he needs to establish not only what it is,

but what special needs it has or storage, transport or treatment, and

what the possible outlets or it may be, whether disposal or reclamation.

Waste consultants and waste managers oer services to examine waste

problems, identiy wastes and recommend storage, handling anddisposal or recovery methods. A waste holder may also use a laboratory

to analyse unknown waste that he needs to describe.

Help with choosing a destination6.3 A consultant may put a waste holder in touch with a legitimate outlet or

his waste. Alternatively, waste managers or carriers themselves may oer

expert advice on a destination or a waste. A large waste management

organisation with a variety o disposal or recovery methods under its

control may be able to provide all the waste management services a

holder needs. Otherwise it may be necessary to ask several rms or

advice on whether or not they would accept a waste. I a consultant

arranges a waste transer to such an extent that he controls whathappens to the waste, he is a broker, and shares responsibility with

the two holders directly involved or the proper transer o the waste

(Section 3 paragraph 3.18 and Annex B paragraph B.12).

6.4 I the next holder is himsel a source o advice he may sometimes

undertake the analysis and write the waste description on behal o

the current holder. What he may not do is to undertake the checks or

complete a transer note or which the current holder is responsible.

Help rom relevant authoritiesDistrict councils

6.5 The local district council will be able to tell a waste holder whether aparticular type o waste may be collected as part o its normal waste

collection.

6.6 District councils have expertise in the management o all types o

controlled waste. Although they will help as ar as possible, they are not

in a position to oer advice to every waste holder on how he should

deal with his waste.


23/48


24/48


24

THE DUTY OF CARE ANDSCRAP METAL

Section 77.1 Scrap metal became a controlled waste or the purposes o duty o

care on 27 November 2003. The Duty o Care and the guidance in the

previous sections o this Code thereore apply to holders o scrap metal

as they do to holders o other types o controlled waste. The purpose

o this section is to supplement that guidance and, in doing so, to take

account o the distinctive eatures o scrap metal and the circumstances

in which it is recovered.

7.2 Scrap metal dealer operations are classied as recovery operations or

the purposes o waste management licensing. A scrap metal operator

is likely to have a sound knowledge o the materials he receives; andunlike many other types o controlled waste, a signicant proportion

o the scrap metal which he receives will have a positive value both

to the transeror and the transeree. A consequence o this is that the

operator is likely to have a direct interest in taking measures toprevent

the escape o waste rom his control15.Many sites operate under the

terms o exemptions rom waste management licensing. The terms o

these exemptions require that the activity concerned is carried out ata

secure place used or the recovery o scrap metal or the dismantling o

depolluted end o lie vehicles16

The transer note system

7.3 As explained in paragraph 1.9 above, i waste is transerred rom oneperson to another a transer note must be completed, signed and kept

by the parties to the transer. The ormat o the transer note is not

prescribed in the 2002 Regulations. The purpose o this was to allow

each sector o industry to use or adapt its existing systems. However,

the transer note must include the inormation shown on the suggested

standard orm or voluntary use at Annex C.

7.4 Prior to 27 November 2003, scrap metal dealers should have been

licensed by District Councils under the 1978 Order. Many o the duty o

care documentation requirements should thereore already be met by

scrap metal dealers because o the records that they would have been

required to keep by condition o their waste disposal licence. Detailedrecords must be kept in connection with all scrap metal received at the

site and all scrap metal either processed or despatched rom it. These

records could help to ull the requirements o the duty o care transer

note. All scrap metal dealers should note that they are now subject

to the 2002 Regulations and the Waste Management Licensing

Regulations (Northern Ireland) 2003.

16 Paragraph 45(1) and (2) o Part1 o Schedule 2 to the WasteManagement Licensing Regulations

(NI) 2003

15 Article 5(1)(b) o the 1997 Order.


25/48

Duty of Care - A code of Practice

25

www.ni-environment.gov.uk

17 I the transer is to a person orauthorised transport purposes, it isnecessary to speciy which o thosepurposes.

18 Regulation 2(2)(a)(iii) o the 2002Regulations. In the case o scrapmetal despatched rom the place

occupied by the dealer, the transernote should also record the timeo transer.

7.5 The only other inormation required by the 2002 Regulations is:-

(a) how the material is contained on its transer (i.e. whether it is loose

or in a container and the kind o any container, e.g. in sacks, a skip

or drums);

(b) whether the person transerring the waste is the producer or

importer o that material;

(c) to which category o authorised persons17 the person transerring the

waste and the person receiving the waste belongs; and

(d) the place o transer.18

7.6 Annex C paragraph C.8 provides guidance on the completion o

transer notes.

Keeping a record o transactions7.7 The 2002 Regulations speciy that copies o the transer note must be

kept by the transeror and the transeree or a period o 2 years, however,

it is not specied which o the two parties must complete the transer

note. Either party may complete it. However, both parties are required to

ensure that it is completed and must sign it and keep a copy.

7.8 Scrap metal dealers may wish, thereore, to assist those who transer

scrap metal to them by providing prepared documentation including

the required inormation which the transeror may then complete and

sign. I prepared documentation is provided the transeror should satisy

himsel that the details are correct.

Householders7.9 Householders are exempt rom the duty o care or their own household

waste (Annex A paragraph A.8). This means that a transer note does not

need to be completed when a householder brings his own household

waste to a scrap metal dealer; or when a householders own scrap metal

is collected rom his home.

Season tickets7.10 For regular customers and suppliers there is provision to agree aseason

ticket.In other words, one transer note, which will cover multiple

transers over a given period o time. The use o a season ticket is

however, only permissible where the parties involved in the serieso transers do not change and where the description o the waste

transerred remains the same (Annex C paragraph C.4).

Transerring and receiving waste7.11 The guidance provided in Sections 3 and 4 applies to anyone subject

to the duty o care, including scrap metal dealers. As those sections

explain, controlled waste may be transerred only to authorised persons

or to persons or authorised transport purposes. A ull list o authorised

persons is at Section 3, paragraph 3.2.


26/48


26

7.12 It is recognised that the scrap metal industry receives its material rom

diverse sources and that it could take considerable time to veriy carriers

or suppliers credentials at a site which undertakes a great number o

transactions each day. The Code is not intended to place dealers in

the position where they have to seek excessive verication rom their

suppliers to an extent that in time discourages them rom transerringscrap metal or recovery.

7.13 As Section 4 explains, checking back when waste is received need not

be as thorough as checking orward. There is no explicit requirement or

a person receiving waste rom a waste carrier to check on whether or

not the carrier is registered. In the Departments view, it is not an oence

under Article 5(1) o the 1997 Order or a scrap metal dealer 19 to accept

waste rom an unregistered carrier. However, an oence might have

been committed earlier in the chain. For example, a waste producer who

transers waste to someone who is not authorised to accept it. This may

be a carrier who was required to be registered but was not. The carrier

himsel would also be in breach o the carrier registration legislation ihe were required to be registered but was not.

7.14 However, it is good practice that at least the rst time a carrier delivers

waste, the recipient should satisy himsel that he is dealing with

someone who is properly registered to transport the waste. In this case

it would be reasonable to ask to see either the carriers registration

certicate or ocial copy certicate, or to request conrmation o the

type o exemption under which the carrier is transporting the waste.

19 Or any other person subject to theduty o care.


27/48


27

SUMMARY CHECKLISTThis section draws together in one place a simple checklist o the main steps

that are normally necessary to meet the duty o care. As with the code itsel,

this does not mean that completing the steps listed here is all that needs tobe done under the duty o care. The checklist cross-reers to key sections o

the code and to the introduction to the code or uller guidance. It should be

noted that the introduction to the code does not orm part o the code

o practice itsel.

Reer to

Sections/paragraphs

(a) is what you have waste? Introduction (paras v vii)

I yes,

(b) is it controlled waste? 1.2

I yes,

(c) is it special waste 1.6

(d) while you have it, protect and store it properly, Section 2

(e) write a proper description o the waste, covering:- 1.7 1.8

-any problem it poses: 1.3-1.6 & 1.10

and, as necessary to others who might deal with it later,

one or more o:-

-the type o premises the waste comes rom; 1.11 1.12

-what the waste is called; 1.13

-the process that produced the waste; and 1.14 1.15

-chemical and physical analysis; 1.16 1.17

( ) select someone else to take the waste. They must be an authorised

person or authorised or transport purposes. As such they should be

one or more o the ollowing and must prove that they are:-

- a registered waste carrier; 3.6 3.8

- exempt rom waste carrier registration 3.9 3.11

- waste manager permitted to 3.12 3.14

accept the waste;

-exempt rom waste management licensing; 3.15 3.16

- a district council; 3.5 and 3.17

- authorised transport purposes 3.4


28/48


28

(g) pack the waste saely when transerring it 2.5 2.7

and keep it in your possession until it is to

be transerred.

(h) check the next persons credentials when 3.7 3.11 and

transerring waste to them; 3.13 3.18

(i) complete and sign a transer note; 1.9

Annex C

(j) hand over the description and complete 1.7 1.9

a transer note when transerring Annex C

the waste;

(k) keep a copy o the transer note signed Annex C, C.5

by the person the waste was given to, and

a copy o the description, or two years;

(l) is the waste to be transerred internationally?; Annex D, D12-D13

(m) when receiving waste, check that the person 4.2 4.10

who hands it over is one o those listed in ( ), 5.4

or the producer o the waste, obtain a

description rom them, complete a transer

note and keep the documents or two years;

(n) whether transerring or receiving waste, be 5.5 5.11

alert or any evidence or suspicion that the

waste you handle is being dealt with illegally

at any stage, in case o doubt question theperson involved and i not satised, alert

the Northern Ireland Environment Agency.

(o) supplementary guidance or scrap metal Section 7

dealers.


29/48


29

ANNEX ATHE LAW ON THE DUTY OF CARE

What the duty requiresA.1 the duty o care is set out in Article % o the 1997 Order as amended20(a copy o the amended version is printed at the end o this Annex).

Those subject to the duty must try to achieve the ollowing our things:-

(a) to prevent any other person committing the oences o depositing,

disposing o or recovering controlled waste without a waste

management licence 21, contrary to the conditions o a waste

management licence 22, or in a manner likely to cause environmental

pollution or harm to human health;23

(b) to prevent any other person committing the oence o operating

an installation or mobile plant without being properly authorisedin accordance with regulation 9 o the Pollution Prevention and

Control Regulations (Northern Ireland) 2003; 24

(c) to prevent the escape o waste, that is, to contain it;

(d) to ensure that, i the waste is transerred, it goes only to an

authorised personor to a person orauthorised transport

purposes.A list o authorised persons is provided at paragraph 3.2.

The list o authorised transport purposes is set out in Article 5 (5) o

the 1997 Order which is printed at the end o this Annex;

(e) when waste is transerred, to make sure that there is also transerreda written description o the waste, a description good enough to

enable each person receiving it to avoid committing any o the

oences under (a) or (b) above; and to comply with the duty at (c)

above to prevent the escape o waste.

A.2 Those subject to the duty must also comply with the 2002 Regulations,

which require them to keep records and make them available to the

Department. The Regulations are summarised at Annex C.

A.3 Failing to observe the duty o care or the 2002 Regulations is a

criminal oence.

Who is under the duty?A.4 The duty and thereore this code apply to any person who:-

(a) imports, produces or carries controlled waste;

(b) Keeps, treats or disposes o controlled waste (awaste manager); or

(c) As a broker, has control o controlled waste.

21 Article 4(1)(a) o the 1997 Order.

22 Article 4(1)(b) o the 1997 Order.

23 Article 4(1)(c) o the 1997 Order.

20 S.R. 2004 No. 277

24 S.R. 2003 No. 46


30/48


30

A.5 In the code and its Annexes all the persons reerred to in paragraph A.4

above are reerred to asholderso waste. Brokers are included in this

term or convenience. However, the description in paragraph A.6 below

should be borne in mind by users o the code.

A.6 Article 5(14) o the 1997 Order denesbrokeror the purposes o theDuty o Care. A broker does not handle waste himsel or have it in his

own physical possessions but he controls what happens to it.

A.7 Employers are responsible or the acts and omissions o their employees.

They thereore should provide adequate equipment, training and

supervision to ensure that their employees observe the duty o care.

Exemption or householdersA.8 The only exemption o the duty is or occupiers o domestic property

orhousehold waste.(see entry orcontrolled wastein the Glossary o

terms) rom the property. Note that this does not exempt:-

(a) a householder disposing o waste that is not rom his property (or

example, waste rom his workplace; or waste rom his neighbours

property); or

(b) someone who is not the occupier o the property (or example, a builder

carrying out works to a house he does not occupy is subject to the duty

or the waste he produces).

Exemption or animal by-productsA.9 Animal waste which is collected and transported in accordance with

regulation 8 o the Animal By-Products Regulations (Northern Ireland)

200325 is not subject to the duty o care. Regulation 8 o the AnimalBy-Products Regulations contains a system o control on the transer o

waste, which broadly achieves the same objective as the duty o care.

What each waste holder has to doA.10 A waste holder is not responsible or ensuring that all the aims o

the duty o care (listed in paragraph A.1) are ullled. A holder is only

expected to take measures that are:-

(a) reasonable in the circumstances, and

(b) applicable to him in his capacity.

A.11 The circumstances that aect what is reasonable include:-

(a) what the waste is;

(b) the dangers it presents in handling and treatment;

(c) how it is dealt with; and

(d) what the holder might reasonably be expected to know or oresee.

25 S.R. 2003 No. 495


31/48


31

A.12 The capacity o the holder is who he is, how much control he has over

what happens to the waste and in particular what his connection

with the waste is. Dierent measures will be reasonable depending

on whether his connection with the waste is as an importer, producer,

carrier, keeper, treater, disposer, dealer or broker.

A.13 Waste holders can be responsible only or what waste is at some time

under their control. It is not a breach o the duty to ail to take steps

to prevent someone else rom mishandling any other waste. However,

a holders responsibility or waste, which he at any stage controls,

extends to what happens to it at other times, insoar as he knows or

might reasonably oresee. Further guidance on the reasonable limits o

responsibilities is in Annex B.

Oences and penaltiesA.14 Breach o the duty o care is a criminal oence. It is an oence

irrespective o whether or not there has been any other breach o the

law or any consequent environmental pollution or harm to humanhealth. The oence is punishable by a ne o up to 5,000 on summary

conviction or an unlimited ne on conviction on indictment.

The Code o PracticeA.15 The department is obliged under Article 5(9) o the 1997 Order to issue

practical guidance on how to discharge the duty. This code constitutes

that guidance and is a statutory document. Article 5(13) o the 1997

Order provides that i a provision o the code appears to a court to be

relevant to any question arising in the proceedings, it shall be taken

into account in determining that question.

Article 5 of the Waste and Contaminated Land (Northern Ireland) Order1997 as amended

S.I. No. 2778 (N.I.19) The Waste and Contaminated Land (Northern Ireland)

Order 1997

Duty of care etc., as respects waste

5.-(1) Subject to paragraph (2), any person who .imports, produces, carriers,

keeps treats or disposes o controlled waste or, as a broker, has control o

such waste, shall take all such measures applicable to him in that capacity as

are reasonable in the circumstances

(a) to prevent any contravention by any other person o Article 4;

(aa) to prevent any contravention by any other person o regulation 9 o

the Pollution Prevention and Control Regulations (Northern Ireland)

2003 or o a condition o a permit granted under regulation 10 o

those Regulations;

(b) to prevent the escape o the waste rom his control or that o any

other person; and


32/48


32

(c) on the transer o the waste, to secure

(i) that the transer is only to an authorised person or to a person or

authorised transport purposes; and

(ii) That there is transerred such a written description o the waste aswill enable other persons to avoid a contravention o that Article

or any condition o a permit granted under regulation 10 o those

Regulations and to comply with this paragraph as respects the

escape o waste.

(2) Paragraph (1) does not apply to an occupier o domestic property as

respects the household waste produced on the property.

(3) The ollowing are authorised persons or the purples o paragraph (1)(c)

(a) any district council;

(b) any person who is the holder o a waste management licence under

Article 6 or o a disposal licence under Article 7 o the Pollution

Control and Local Government (Northern Ireland) Order 1978;

(c) any person to whom Article 4(1) does not apply by virtue o

regulations under paragraph (3) o that Article;

(d) any person registered as a carrier o controlled waste under Article

39; and

(e) any person who is not required to be so registered by virtue o

regulations under Article 38(3).() Any person who is the holder o an authorisation granted under

Article 6 o the Industrial Pollution Control (Northern Ireland) Order

1997 in so ar as such authorization concerns controlled waste or the

purposes o this Article; and

(g) Any person who is the holder o a permit granted under regulation

10 o the Pollution Prevention and Control Regulations (Northern

Ireland) 2003 which authorises the carrying out o a specied waste

management activity within the meaning o those Regulations.

(4) Regulations may amend paragraph (3) so as to add, whether generally

or in such circumstances as may be prescribed, any person specied inthe regulations, or any description o person so specied, to the persons

who are authorised persons or the purposes o paragraph (1)(c).

(5) The ollowing are authorised transport purposes or the purposes o

paragraph (1)(c)

(a) the transport o controlled waste within the same premises between

dierent places in those premises;

(b) the transport to a place in Northern Ireland o controlled waste

which has been brought rom a country or territory outside Northern

Ireland not having been landed in Northern Ireland until it arrives at

that place; and

S.I 1978/1049(N.I.19)


33/48


33

(c) the transport by air or sea o controlled waste rom a place in

Northern Ireland to a place outside Northern Ireland.

(6) For the purposes o paragraph (1)(c)(ii)

(a) a transer o waste in stages shall be treated as taking place whenthe rst stage o the transer takes place; and

(b) a series o transers between the same parties o waste o the same

description shall be treated as a single transer-taking place when

the rst o the transers in the series takes place.

(7) Regulations make provision-imposing requirements on any person who

is subject to the duty imposed by paragraph (1) as respects the making

and retention o documents and the urnishing o documents or copies

o documents.

(8) Any person who ails to comply with paragraph (1) or with anyrequirement imposed under paragraph (7) shall be guilty o an oence

and shall be liable

(a) on summary conviction, to a ne not exceeding the statutory

maximum; and

(b) on conviction on indictment, to a ne.

(9) The Department shall, ater consultation with such persons or bodies

as appear to the Department representative o the interests concerned,

prepare and issue a code o practice or the purpose o providing to

persons practical guidance on how to discharge the duty imposed onthem by paragraph (1).

(10) The Department may issue modications o, or withdraw, a code o

practice issued under paragraph (9); but where a code is withdrawn,

the Department shall prepare and issue a new code under that

paragraph in substitution or it.

(11) The drat o the code prepared under paragraph (9) shall be laid beore

the Assembly.

(12) I within the statutory period beginning with the day on which a copy

o the drat is laid beore the Assembly, the Assembly so resolves, nourther proceedings shall be taken thereon but without prejudice to

the laying beore the Assembly o a new drat.

(13) A code o practice issued under paragraph (9) shall be admissible in

evidence and i any provision o such a code appears to the court to be

relevant to any question arising in the proceedings it shall be taken into

account in determining that question.

(14) In the Articlebrokermeans a person who has control o controlled

waste or the purposes o having carried out on behal o another

person any o the activities mentioned in paragraph (1).


34/48


34

ANNEX BRESPONSIBILITIES UNDER THE DUTY

OF CAREB.1 The main Sections o the code address all waste holders who are subject

to the duty o care. In law all the responsibilities or waste under the

duty are spread among all those who hold that waste at any stage. But

responsibilities are not spread evenly. Some holders will have greater

or less responsibility or some aspects o the duty, according to their

connection with the waste (see Annex A paragraphs A.10 A.13). This

Annex oers guidance or each category o waste holder on their

particular responsibilities. This Annex is neither comprehensive nor sel-

contained guidance or particular categories o waste holder. It only

draws out questions o the allocation o responsibility. All waste holders

should ollow the guidance in the main sections o the code o practice.

Waste producersB.2 The duty o care applies to a person who produces waste. Article 5

o the 1997 Order does not dene this term. However, in relation to

the denition owaste, Article 2(2) o the 1997 Order provides that

producer means any person whose activities produce waste or who

carriers out pre-processing, mixing or other operations resulting in a

change in its nature or composition.

B.3 Waste producers are solely responsible or the care o their waste

while they hold it. Waste producers are normally best placed to know

what their waste is and to choose the disposal, treatment or recoverymethod, i necessary with expert help and advice. They bear the main

responsibility or ensuring that the description o the waste which

leaves them is accurate and contains all the inormation necessary or

sae handling, disposal, treatment or recovery. I they also select a nal

disposal, treatment or recovery destination then they share with the

waste manager o that destination responsibility or ensuring that the

waste alls within the terms o any licence or exemption relevant to that

nal destination.

B.4 Producers bear the main responsibility or packing waste to prevent its

escape in transit. Waste leaving producers should be packed in a way

that subsequent holders can rely on.

B.5 Using a registered or exempt carrier does not necessarily let a producer

out o all responsibility or checking the later stages o the disposal

o his waste. The producer and the disposer may sometimes make all

o the arrangements or the disposal or recovery o waste, and then

contract with a carrier simply to convey the waste rom one to the other.

Such a case is very little dierent in practice rom that where there is no

intermediate carrier involved. I a producer arranges disposal or recovery

then he should exercise the same care in selecting the disposer or

recoverer as i he were delivering the waste himsel.

B.6 It is not possible to draw a line at the gate o producers premises


35/48


35

and say that their responsibility or waste ends there. A producer is

responsible according to what he knows or should have oreseen. So i

he hands waste to a carrier, not only should it be properly packed when

transerred, but also the producer should take account o anything

he sees or learns about the way in which the carrier is subsequently

handling it. The producer would not be expected to ollow the carrierbut he should be able to see whether the waste is loaded securely or

transport when it leaves, and he may come to learn or suspect that it

is not ending up at a legitimate destination. A producer may notice a

carriers lorries returning empty or urther loads in a shorter time than

they could possibly have taken to reach and return rom the nearest

lawul disposal site; or a producer may notice his carrier apparently

engaged in the unlawul dumping o someone elses waste. These would

be grounds or suspecting illegal disposal o his own waste. The same

reasoning applies when a producer makes arrangements with a waste

manager or the disposal, treatment or recovery o waste. The producer

shares the blame or illegal treatment o his waste i he ignores evidence

o mistreatment. A producer should act on knowledge to stop the illegalhandling o waste (see paragraphs 5.5 5.12).

Waste importersB.7 Waste importers and exporters ace stringent controls and in some cases,

prohibitions on transrontier shipments o waste. Consent to movements

o waste must be obtained rom the competent authorities involved and

ull details about each shipment must be given on a consignment note

(Annex D D.14 D.15).

Waste carriersB.8 A waste carrier is responsible or the adequacy o packaging while waste

is under his control. He should not rely totally on how it is packed orhanded over by the previous holder. He should at least look at how it

is contained to ensure that it is not obviously about to escape. His own

handling in transerring and transporting waste should take account

o how it is packed, or i necessary, he may need to repack it or have it

repacked to withstand handling.

B.9 A waste carrier would not normally be expected to take particular

measures to provide a new description o the waste he carried unless

he altered it in some way. The description would normally be provided

by the waste producer, unless the producer is a householder not

subject to the duty, in which case the person rst taking waste rom

the householder would have to ensure that a description was urnishedto the next holder. When accepting any waste the carrier should make

at least a quick visual inspection to see that it appears to match the

description, but he need not analyse the waste unless there is reason to

suspect an anomaly or the waste is to treated in some way not oreseen

by the producer.


36/48


36

B.10 I a carrier or any other intermediate holder does alter waste in any way,

by mixing, treating or repacking it, he will need to consider whether a

new description is necessary. The description received may continue to

serve or waste that is merely compacted or mixed with similar waste,

but i it has deteriorated or decomposed or i it has been altered in

any way that matters or handling and disposal then a new descriptionshould be written.

B.11 Where there is a contract between the producer and the waste

manager and a carrier is contracted solely to provide transport, he may

rely on the producer checking the scope o the licence or exemption o

the waste manager to whom the waste is delivered. In other cases the

carrier should check this himsel.

Waste brokersB.12 A waste broker arranging the transer o waste between a producer and

a waste manager, to such an extent that he controls what happens to

the waste, is taking responsibility or the legality o the arrangement.He should ensure that he is as well inormed about the nature o the

waste as i he were discharging the responsibilities o both producer

and waste manager. He is as responsible as either or ensuring that

a correct and adequate description is transerred, that the waste is

within the scope o any permit or registered exemption, that it is

carried only be a registered or exempt carrier and that documentation

id properly completed. As he does not directly handle the waste, he

cannot be held responsible or its packaging. However, he may be in

a position to advise producers on appropriate methods o packaging

or containment i he has greater knowledge o how the waste will be

handled once it is removed rom the producers premises. He should

also undertake the same level o checks ater transer, and the sameaction on any cause or suspicion, as a waste holder.

Waste managersB.13 Waste managers, like waste carriers, should normally be able to rely

on the description o waste supplied to them. However, in disposing,

treating or recovering waste they are in a stronger position to notice

discrepancies between the description and the waste and thereore

bear a greater responsibility or checking descriptions o waste they

receive. Sample checks on the composition o waste received would be

good practice.

B.14 Waste managers are also in a good position to notice that waste hasnot been properly dealt with or alsely documented beore it reaches

them. For example, a waste manager may receive waste that is

documented as coming directly rom one producer but which shows

signs o having been mixed or treated at some intermediate stage. A

manager is to some extent responsible or ollowing up evidence o

previous misconduct just as he is or subsequent mismanagement o

waste, that is to the extent that he knew or should have oreseen it and

to the extent that he can control what happens.


37/48


37

ANNEX CREGULATONS ON KEEPING RECORDS

C.1 The 2002 Regulations are made under Article 2(3) and 5(7) o the 1997Order and require all those subject to the duty to make records o waste

they receive and consign, to keep the records or at least 2 years and to

make them available to the Department.

C.2 The 2002 Regulations require each party to any transer to keep a

copy o the description which is transerred. An individual holder

might transer onward the description o the waste that he received

unchanged in which case it would be advisable or the sake o clarity

to endorse the description or onward transer to the eect that the

waste was sent onwards as received. I a dierent description o waste

is transerred onwards, whether or not this refects any change in the

nature or composition o the waste, then copies o both descriptionsmust be made. The holder making the copy need not be the author

o the description, which will oten be written only by the producer or

broker and reused unchanged by each subsequent holder.

C.3 The Regulations also require the parties to complete sign and keep a

transer note. The transer note contains inormation about the waste

and about the parties to the transer.

Season ticket provisionsC.4 While all transers o waste must be documented, the 2002 Regulations

do not require each individual transer to be separately documented.

Where a series o transers o waste o the same description is beingmade between the same parties, provision is made or the parties

to agree aseason ticket i.e., one transer note covering a series o

transers. Article 5(6) o the 1997 Order provides that:-

(a) a transer o waste in stages shall be treated as taking place when the

rst stage o the transer takes place; and

(b) a series o transers between the same parties o waste o the same

description shall be treated as a single transer taking place when

the rst o the transers in the series takes place.

A season ticket might be used, or example, or the weekly or dailycollections o waste rom shops or commercial premises, or the removal

o a large heap o waste by multiple lorry trips. In the Departments view,

however, a season ticket should not extend or a period o more than 12

months rom the date on which the rst o the transers subject to the

arrangements takes place.


38/48


38

Duty o care: Controlled waste transer noteC.5 The 2002 Regulations require these records (both the descriptions and

the transer notes) to be kept or at least two years. Holders (which

includes, where relevant, brokers) must provide copies o these records i

requested by the Department.

C.6 One purpose o documentation is to create an inormation source o use

to other holders. It is open to holders (including, where relevant, brokers)

to ask each other or details rom records, especially to check what

happened to waste ater it was consigned. A holder or broker might

draw conclusions and alert the Department to any suspected breach o

the duty i such a request were reused.

Format o the recordC.7 There is no compulsory orm or keeping these records. It is recognised

that a number o holders already keep records o waste in a manner

that meets the requirements o the 2002 Regulations with little or no

urther adaptation. The consignment note or special waste can beproperly completed so as to ull the duty o care requirements (Annex

D paragraphs D.9 D.11). Similarly, the consignment note system or

transrontier shipments o waste which involves the use o movement

and tracking orms should, i properly completed satisy the duty o care

arrangements (Annex D paragraphs D.14 D.15).

C.8 A suggested standard orm or voluntary use is included in this Annex.

It should be noted that the boxes on the model orm are consistent

with the requirements o Article 5(1) o the 1997 Order and with

the requirements o the 2002 Regulations. This means that where

existing documentation systems are adapted to meet the transer

note requirements o the duty o care, all o this inormation should beincluded.

C.9 Breach o any provision o the 2002 Regulations is an oence.


39/48


39

Section A Description of Waste

1. Please describe the waste being transerred:

2. What is the European Waste Catalogue (EWC) Code:

3. How is the waste contained?

Loosec Bagsc Skipc Drumc Otherc Please describe

4. What is the quantity o waste (number o bags, weight, etc.)

Section B Current holder of the waste (Transferor)

1. Full Name (BLOCK CAPITALS)

2. Name and Address o the Company:

3. Which o the ollowing are you? (please one or more boxes)

Producer o the wastec Holder o permit cg Permit Number:Issued by:

Importer o the wastec Exempt rom requirementcg Give reason: to have a permit

District Council c Registered waste carrier cg Registration number:

Exempt rom requirementcg Give reason:to register

Section C Person collecting the waste (Transferee)

1. Full Name (BLOCK CAPITALS)

2. Name and Address o the Company:

3. Which o the ollowing are you? (please one or more boxes)

Authorised or transport purposes cg Speciy whicho those purposes:

District Councilc Holder o permit cg Permit number:Issued by:

Exempt rom requirement cg Give reason: to have a permit

DUTY OF CARE: CONTROLLED WASTE TRANSFER NOTE


40/48


40

Section C (continued)

Registered waste carrier cg Registration number:

Exempt rom requirement cg

Give reason:

Section D

1. Address o place o transer/collection point:

2. Date o transer: 3. Time(s) o transer (or multiple

consignment, givebetweendate):

4. Name and address o broker who arranged this waste transer (i applicable):

Transferor5. Signed:

Full Name:

(BLOCK CAPITALS)

Representing:

TransfereeSigned:

Full Name:

(BLOCK CAPITALS)

Representing:


41/48


41

ANNEX DOTHER LEGAL CONTROLS

D.1 This code oers guidance on the discharge o a waste holders dutyo care under Article 4 o the 1997 Order. Holders are also subject to

other statutory requirements, some o the most important o which

are identied below. This is not intended to be comprehensive list or a

complete explanation o the law.

i.Waste management licensingD.2 The 1997 Order provides or a new system o waste management

licensing and or the transer o the licensing unction rom District

Councils to the Department. Under the 1997 Order, waste management

licences are required to authorise:-

(a) the deposit o controlled waste in or on land;

(b) the disposal and treatment (including recovery) o controlled waste;

(c) the use o certain mobile plant to dispose o or treat controlled waste.

D.3 Exclusions and exemptions rom these requirements are prescribed

in regulation 16 and 17 o and Part 1 o Schedule 2 to the Waste

management Licensing Regulations (Northern Ireland) 2003.26

ii.The registration o waste carriersD.4 Subject to certain exemptions, Article 38(1) o the 1997 Order makes it

an oence to t

waste management the duty of care - a code of practice

Documents