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THIS month I want to clarify a waste operator’s duty of care concerning any business either producing, handling, or disposing of controlled waste. I will also cover the requirements for production of transfer notes relating to the Waste Regulations (England and Wales 2011).


While the detail within this article may have been repeated in previous editions, it is nevertheless important for operators to understand their responsibilities in relation to duty of care and waste transfer notes.


After reading the Environment Agency’s own guidance, if an operator believes they are exempt from duty of care obligations, then there is a signifi cant saving in waste management costs.


The duty of care only aff ects waste - therefore it is important to understand what waste is, and what it is not.


For clarity, waste is described in the Waste Framework Directive as a substance, or object, which the producer/person in possession of it discards, or is required to discard. Therefore something in continuous use - such as an oil drum - cannot be regarded as waste.


Once material has become waste, a three-stage test must be met to decide whether it is waste or non-waste. The test involves looking at whether:


- The waste has been converted into a distinct marketable product


- The process substance can be stored and used with no more environmental impact when compared to the material it is intended to replace


- The process substance can be used, in exactly the same way as non-waste


An operator can give the above criteria consideration through consultation with either the agency themselves, or an


THE RIGHT SIDE OF THE LAW


Always pay attention to detail


Philip W. Jones is a member of New Bailey Chambers in Liverpool, and has been a practicing Counsel for many years. He was employed by the Environment Agency as a lawyer, and heads a practice on regulatory, environmental and planning issues.


environmental specialist. If the material is not waste, then they do not need to consider duty of care obligations any further.


It is important to appreciate the transfer of waste between sites requires the production of a waste transfer note in accordance with the Waste Regulations (England and Wales 2011).


A transfer note must meet certain legal requirements such as: - Description of waste - Correct coding - Description of how the waste is contained - Correct identifi cation


- Correct identifi cation of the person to whom the waste is being passed to


- Amount of waste - Consideration of the waste hierarchy


Once a grasp of the legislated framework has been gained, then operators will always be in a better position to decide whether or not they have responsibility to dispose of waste at cost.


Early legal intervention reaps benefi t


I WAS discussing Duty of Care with Phil recently, and subsequently researched the information presently available about targeted prosecutions of small fi rms.


Available fi gures for HSE prosecutions of individual directors show there were 46 in 2015/16, which was a substantial increase from the 15 in the previous year.


It therefore looks like there is an increasing likelihood of individuals being prosecuted in the future.


My own theory is when a larger organisation is involved, there is less likelihood of individuals being prosecuted - as there are more layers of management, and individuals to be held to account.


The perception is the big boys are getting away with it, and smaller companies and individual directors are more likely to be prosecuted.


This can have the eff ect that some companies choose to distance themselves from health and safety, as the directors may feel they are increasing the chance of a prosecution when involved.


A couple of recent cases suggest the waste and construction industries are still being targeted, and a recent tragic incident led to one skip hire company being fi ned £60,000 and costs of £14,500 following the death of an employee.


After the incident an improvement notice was served for failing 22


SHM March, 2018


Dominic McNabb is an experienced solicitor in private practice with MJP solicitors. He has over 20 years’ experience defending individuals and companies, in both criminal and regulatory matters.


YOU CAN CALL HIM DIRECTLY: 0773 3264226 - OR EMAIL: dominic.mcnabb@mjpsolicitors.co.uk


to allow pedestrians and vehicles to circulate safely, and failing to implement systems and rules for loading operations.


Most waste operators have such systems, but whether they are adopted rather than just written down, is the eventual problem for any defendant company to overcome.


What can a company and individual director do to avoid such prospects? Obviously, putting safety fi rst and adopting and reviewing operations and providing training is essential.


Early involvement of competent lawyers can remedy and mitigate substantially when an incident occurs.


www.skiphiremagazine.co.uk


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