Duty of care for waste - EPA 1990 s. 34
EPA 1990 s.34 imposes a duty of care on waste handlers to prevent illegal dumping, escape, and to secure written waste descriptions on transfer.
Subject to subsection (2) below, it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a dealer or broker , has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances— to prevent any contravention by any other person of section 33 above; to prevent any contravention by any other person of regulation 12 of the Environmental Permitting Regulations or of a condition of an environmental permit; to prevent the escape of the waste from his control or that of any other person; and on the transfer of the waste, to secure— that the transfer is only to an authorised person or to a person for authorised transport purposes; and that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section or regulation 12 of the Environmental Permitting Regulations , or a contravention of a condition of an environmental permit, and to comply with the duty under this subsection as respects the escape of waste. It shall be the duty of any person who is responsible for the management of extractive waste to take all such measures applicable to him in that capacity as are reasonable in the circumstances — to prevent any contravention by any other person of section 33 above; to prevent any contravention by another person of regulation 12 of the Environmental Permitting Regulations or of a condition of an environmental permit; and to prevent the escape of the waste from his control or that of any other person. The duty imposed by subsection (1) above does not apply to an occupier of domestic property as respects the household waste produced on the property. It shall be the duty of the occupier of any domestic property in England or Wales to take all such measures available to him as are reasonable in the circumstances to secure that any transfer by him of household waste produced on the property is only to an authorised person or to a person for authorised transport purposes. The following are authorised persons for the purposes of subsections (1)(c) and (2A) above— any authority which is a waste collection authority for the purposes of this Part; any person who is the holder of a waste management licence under section 35 below or of a disposal licence under section 5 of the Control of Pollution Act 1974; any person to whom section 33(1) above does not apply by virtue of regulations under subsection (3) of that section or by virtue of regulations under section 2 of the Pollution Prevention and Control Act 1999 ; any person registered as a carrier of controlled waste under section 2 of the Control of Pollution (Amendment) Act 1989; any person who is not required to be so registered by virtue of regulations under section 1(3) of that Act; and a waste disposal authority in Scotland. The Secretary of State may by regulations amend subsection (3) above so as to add, whether generally or in such circumstances as may be prescribed in the regulations, any person specified in the regulations, or any description of person so specified, to the persons who are authorised persons for the purposes of subsections (1)(c) and (2A) above. The following are authorised transport purposes for the purposes of subsections (1)(c) and (2A) above— the transport of controlled waste within the same premises between different places in those premises; the transport to a place in Great Britain of controlled waste which has been brought from a country or territory outside Great Britain not having been landed in Great Britain until it arrives at that place; and the transport by air or sea of controlled waste from a place in Great Britain to a place outside Great Britain; and “ transport ” has the same meaning in this subsection as in the Control of Pollution (Amendment) Act 1989. For the purposes of subsection (1)(c)(ii) above— a transfer of waste in stages shall be treated as taking place when the first stage of the transfer takes place, and a series of transfers between the same parties of waste of the same description shall be treated as a single transfer taking place when the first of the transfers in the series takes place. The Secretary of State may, by regulations, make provision imposing requirements on any person who is subject to the duty imposed by subsection (1) above as respects the making and retention of documents and the furnishing of documents or copies of documents. Any person who fails to comply with the duty imposed by subsection (1) , (1A) or (2A) above or with any requirement imposed under subsection (5) above shall be liable— on summary conviction, to a fine not exceeding the statutory maximum; and on conviction on indictment, to a fine. The Secretary of State shall, after consultation with such persons or bodies as appear to him representative of the interests concerned, prepare and issue a code of practice for the purpose of providing to persons practical guidance on how to discharge the duty imposed on them by subsection (1) above. The Secretary of State may from time to time revise a code of practice issued under subsection (7) above by revoking, amending or adding to the provisions of the code. A code of practice prepared in pursuance of subsection (7) above shall be laid before both Houses of Parliament ; or if it relates only to Scotland before the Scottish Parliament. A code of practice issued under subsection (7) above shall be admissible in evidence and if any provision of 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. Different codes of practice may be prepared and issued under subsection (7) above for different areas.
Text in force at .
Source: legislation.gov.uk — The National Archives (legislation.gov.uk), reproduced under licence Open Government Licence v3.0.
What it actually says
This section requires anyone who imports, produces, carries, keeps, treats, disposes of, or brokers controlled waste (including dealers) to take reasonable measures to prevent breaches of section 33 (unlawful deposit etc.), to prevent waste escaping, and to ensure that when waste is transferred it goes only to an authorised person and a written description of the waste is provided.
A separate duty applies to those responsible for managing extractive waste. Occupiers of domestic premises are exempt from the main duty but must ensure their household waste is transferred only to an authorised person or for authorised transport purposes.
Authorised persons include waste collection authorities, waste management licence holders, registered carriers, and others listed in subsection (3). Failure to comply is an offence punishable on summary conviction by a fine up to the statutory maximum or on indictment by an unlimited fine. The Secretary of State issues a code of practice giving practical guidance, which is admissible in court.
When it applies
- A construction company hires a skip firm to remove rubble – the company must check the firm is a registered waste carrier and provide a written description of the waste.
- A householder puts out bin bags for council collection – no written description needed, but must ensure only an authorised person (the council or its contractor) collects.
- A farmer stores slurry in a lagoon – duty to prevent escape of the waste.
- A waste dealer arranges for industrial solvent to be taken away – must ensure the carrier has a permit and that a transfer note with description is completed.
- A landlord gives old furniture to a tenant to dispose of – the landlord may be considered a producer and must ensure proper transfer to an authorised person.
What this section does not say
- This section does not require you to supervise the actual disposal of waste after transfer; the duty ends once you have taken reasonable steps to ensure the recipient is authorised and given a written description.
- It does not apply to waste that is not 'controlled waste' as defined elsewhere in the Act.
- It does not set specific standards for what constitutes 'reasonable measures' – that is left to the courts and the code of practice.
- It does not allow private individuals to sue for breach; enforcement is by the Environment Agency or local authorities.
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This page reproduces the text of EPA 1990 s. 34 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in England and Wales.