Duty of care: code of practice for managing controlled waste

8 Your Obligations as a Broker or a Dealer

What are my responsibilities?

Where you make arrangements for the recovery or disposal of waste on behalf of another party you are deemed to be acting as a broker and must be registered with SEPA or the Environment Agency. You are therefore also classified as having control of that waste, even though you may not physically hold the waste of which you are in control.

Where you buy or sell waste you are deemed to be acting as a dealer. You are also classified as controlling that waste and must be registered with SEPA or the Environment Agency. Dealers act in a similar way to brokers and therefore have similar obligations.

Waste brokers and dealers may also import or export waste. In any of these capacities, by arranging for the transfer of waste, you jointly hold responsibility for its proper transfer and management with the holders directly involved (producer, carrier, exporter or waste manager). You should therefore also be familiar with the responsibilities of the other holders described in this guidance. You should also ensure that you are compliant with the duty of care legislation for any country through which you are arranging the transport of waste.

Local authorities often act in the capacity of a waste broker. Where departments such as the waste disposal authority are acting in the capacity of broker they have the same responsibilities under the Duty of Care as any other party.

In summary, as a waste broker or dealer you jointly hold responsibilities with the waste producer.

As a waste broker or dealer, you must :

Apply the waste hierarchy as a priority order to the management of your waste and promote high quality recycling. Ensure that any waste in your control is handled and stored safely, without causing harm to the environment and in accordance with the law. Know the nature of the waste you are in control of, for example, if it is process waste to know its constituents and properties. Ensure care of the waste while it is stored, so it does not escape. Ensure that the waste description is accurate and contains all the information necessary for safe handling, transport, treatment, recovery or disposal (especially by landfill) by subsequent holders. Ensure that you have a valid registration with the Scottish Environment Protection Agency. Ensure the waste is transferred to someone who is authorised to receive it, for example, a registered waste carrier, or waste manager. Ensure transfers of waste are covered by a WTN including a full description of the waste and to retain the transfer note and waste details for two years. Ensure that the site of destination holds the appropriate environmental permit or exemption to accept the waste. This responsibility extends to destinations in other countries.

As a broker you should retain, for two years, a copy of the transfer notes used in any transfers of waste that you have arranged as evidence of your compliance with the Duty of Care. For an import or export, you should retain the documentation for three years.

Step 1 - Apply the waste hierarchy

You must take all reasonable steps to apply the waste hierarchy as a priority order to the management of your waste and promote 'high quality' recycling. The Waste Hierarchy Guidance describes the order for a range of common waste streams and further advice on how to apply it.

The duty to apply the waste hierarchy applies to all waste streams and therefore any material capable of being reused, recycled or otherwise recovered (such as dry recyclables, textiles, WEEE, wood, tyres, etc) should be segregated and the preferred management routes identified and applied in priority order.

For information on the requirement separately collect dry recyclables and food waste please see Sections 4 and 5.

Step 2 - Prevent the Escape of Waste

Although as a broker you may not physically hold the waste you are regarded by the law as having control of that waste. However you should still ensure that the physical holder of the waste under your direction manages it in order to prevent any waste materials escaping from their control or the control of others, for example during storage or transport.

What must I do when storing Waste?

All waste has the potential to pollute the environment if you do not handle or store it properly. When waste is being stored at your premises you must make sure that;

• waste is stored in safely and securely in suitable containers. If you store waste in skips or similar containers, ensure that they are covered or netted so the waste does not blow away. Store waste under cover if rain will prevent it from being reused or recycled, or cause contaminated run-off. Keep waste containers in good condition.
• containers are clearly labelled so that wastes can be properly segregated and people know what can and cannot be placed in them. If you reuse containers, make sure that labels are accurate and up to date so that the next holder of the waste can readily identify what the containers hold.
• the waste is stored in a secure location with access limited to responsible persons you have identified. If waste is not kept securely, loose materials or specific objects may be blown or washed away or even stolen. Less secure storage may also attract others to scavenge or mix their waste with your own. If this occurs then the waste carrier or contractor may refuse to accept the waste or charge you more.
• liquid wastes and pollutants are prevented from escaping into drains, watercourses or surrounding ground. Store liquid wastes on impermeable surfaces within a secondary containment system. Ideally this should be a bund which is large enough to hold the leaked contents of the storage containers. If you store liquids, refer to SEPA's guide to the storage and handling of drums & IBCs

Step 3 - Describe Your Waste

You must ensure that the waste being transferred is covered by a completed WTN (or in the case of imports and exports, Annex VII form or notification form and movement document) which should include an adequate written description that will enable anyone receiving it to manage it in accordance with his or her own Duty of Care. If something goes wrong and the waste is not described properly or you have not told the next Holder the properties of the waste, then you may be held responsible together with the waste producer.

What information must I provide?

You should ensure that a WTN (or in the case of imports and exports, Annex VII form or notification form and movement document) and waste description is produced covering yourself and the party(ies) you are brokering between. The WTN is your evidence that the waste was passed on and that it was adequately described. Guidance on the information that a transfer note must contain is provided in Chapter 10.

You must keep a copy of the WTN signed by yourself and the person you transfer waste to for two years, or three years in the case of a shipment to or from the UK. This can be an electronic copy for UK movements, including electronic signatures, provided an enforcement officer can view it. You also need to keep any additional information with this note such as any analysis results.

A ' season ticket' system can be used for waste of the same description which is transferred between the same transferor and transferee within Great Britain for a period up to 12 months. This avoids the need for a separate WTN for each waste load transferred although you should keep a log of individual loads collected from you under season ticket arrangements. "Season tickets" can be used, for example, for the weekly collection of waste from shops or repeat journeys of excavated materials from a construction project.

If the waste is Special Waste you have the same obligations under the Duty of Care. A consignment note, rather than a transfer note, is required to comply with the Special Waste (Scotland) Regulations 1996 (as amended).

What is an adequate description?

An adequate description will depend upon the nature of the waste and any treatment or sorting processes that it has already been through. The description must include any special problems associated with the waste in order for subsequent holders to handle the waste properly. For example;

• Can the waste be accepted at the intended waste management site?
• Can it be disposed of safely in a landfill site with other waste?
• Does the waste need a special container to prevent its escape or to protect it from the elements, e.g. loose waste?
• Does the waste require particular treatment or separate handling, e.g. dry recyclables, food waste, contaminated soil, batteries or WEEE?
• Is it likely to change its physical state during storage or transport, e.g. might it give off gas or become liquid, in which case sufficient headspace will need to be provided in containers?
• Are there any other issues with the waste which others should be aware of (smell, liquids leaching from the waste, etc)?

Waste described as "general rubbish" or "muck" does not constitute an adequate description.

Step 4 - Waste must only be transferred to an Authorised Person

Make sure that any person or business you are transferring waste to within the UK or who is organising waste transfers for you are registered to do so. If they are not registered you should confirm that they do not need to be before they take the waste. For imports and exports you should check the relevant national requirements for the registration of carriers. This is crucial in the effort to tackle waste crime.

Authorised persons are Registered Waste Carriers, such as waste management companies, or registered Professional Carriers and Transporters of waste such as Local Authorities and charities/voluntary organisations.

If you normally and regularly carry your own waste to a recycling or treatment facility, you will need to register as a Professional Carrier and Transporter of Waste.

Your Duty of Care as a producer of waste extends along the entire chain of management of the waste. The Duty is not discharged on handing over the waste to the next holder. You should take reasonable steps to make sure that the waste will be managed correctly and legally.

What must I do to check authorised persons details?

The detail of the checking required will depend on the quantity or nature of the waste you produce. As a minimum you must ask for:

• A copy of the carrier's registration certificate and check this against SEPA's online public registers to confirm that it is genuine and valid.
• Confirmation of the broker/dealers registration and check this against the SEPA's public register. If you choose to engage a waste broker to identify suitable carriers and/or waste management options for your waste then you will share equal responsibility for how the waste is stored, transported and ultimately managed. You must ensure any broker you use has a valid registration and check this against the SEPA's online public registers.
• The reference number of the site's Licence or Permit so that you can, if necessary, check this with SEPA's local teams to confirm that it is genuine and valid and evidence that it allows for deposit of your type of waste.

It is advisable to re-check carrier registration from time to time as many carrier registrations are renewable every three years and in some circumstances SEPA may have cancelled or revoked the registration.

You should also know where the carrier takes your waste for onward management. This is particularly relevant if you are arranging the management of:

• large amounts of waste,
• waste which can be difficult to manage e.g. hazardous waste
• waste which is commonly flytipped (eg tyres).

You should be aware of the destination of the waste and check the site's Licence or Permit reference number so that you can, if necessary, check with SEPA's local teams that the site is genuine and is allowed to accept the waste.

Step 5 - Prevent Your Waste Causing Harm

What is meant by harm?

Harm or pollution can be result from the unauthorised or inappropriate deposit, treatment, recovery, disposal or export of waste.

What can I do to check that my waste is correctly managed?

If you are acting on behalf of an original producer, it is not possible to draw a line at the gate of that person's premises and say that your and their responsibility for the waste ends there. You will have directed waste toward other holders and share with the producer all responsibilities required by the Duty of Care.

A broker remains responsible according to what he 'knows or should have foreseen'. You should take account of anything you see or learn about the way in which any party is subsequently handling it. For example you:

• should be suspicious of people or businesses offering unrealistically cheap waste services. This may be a sign that the waste is not being legally managed.
• need to ensure that waste is packaged correctly and that the vehicle is suitable for transport, as if it subsequently falls off the vehicle you could be deemed liable.
• should determine that waste has subsequently arrived at its intended destination especially if the waste has particular problematic properties or is being exported. You may also wish to check its final destination if it is to be recovered elsewhere. You could do this by requesting weighbridge or tip tickets or shipping documents.
• may notice a carrier apparently engaged in the unlawful dumping of someone else's waste. These would be grounds for suspecting illegal handling of your waste by the carrier. Whenever you become aware that your waste is being illegally dealt with you should tell SEPA.

A producer should act on any knowledge to stop the illegal handling of waste.

Whenever you become aware that your waste is being illegally dealt with you should inform SEPA through their 24 hour pollution hotline - 0800 80 70 60. You can also use Crimestoppers' anonymous online report form.