Road Legal

There are strict legal requirements in place which control both the carriage and the disposal of controlled waste and if you transport waste for disposal as part of your business, you must ensure that you comply with the relevant legislation.

The requirements apply to all “controlled waste” as defined in section 75 of the Environmental  Protection Act 1990, which includes all commercial, industrial and household wastes (including hazardous waste).

On this page we briefly summarise the steps you must take if you are transporting waste for disposal as part of your business.

Registration as a waste carrier

If you transport waste in the course of your business you must register with the Environment Agency (or the Scottish Environmental Protection Agency if you are in Scotland) as a waste carrier. This currently costs £140 for  any initial registration and is valid for three years. After that, the renewal fee is £96 every three years.

Generally, you do not need to register if you are the producer of the waste. However, you must still register as a waste carrier if you are carrying construction and demolition waste which you have produced. It is a criminal offence under section 1 of the Control of Pollution (Amendment) Act 1989 to transport controlled waste without being a registered waste carrier and carries a maximum penalty of a fine of up to £5,000 in a magistrates' court.

Waste management licensing

If you are keeping, treating, depositing or disposing of controlled waste at your operating site, you will in most circumstances require a waste management licence issued by the Environment Agency.

Any person not obtaining the appropriate waste management licence, or failing to comply with the conditions of their extant waste management licence, commits an offence under section 33 of the Environmental Protection Act 1990. If convicted in a magistrates' court, the maximum penalty is a term of imprisonment of up to 12 months or a fine of up to £50,000, or both. In a crown court, the potential fine is unlimited and the maximum term of imprisonment is five years. Again the potential sentence could include a combination of the two.

If the offence committed under section 33 relates to hazardous waste, the maximum penalty in a magistrates' court is a fine of up to £40,000 or a term of imprisonment of up to six months, or both. In a crown court, the maximum penalty remains a term of imprisonment of up to five years, or an unlimited fine, or both.

There are certain activities that are exempt from the requirement to obtain a waste management licence, which are set out in the Waste Management Licensing Regulations 1994. The majority of these exemptions do require a notification to be made to the Environment Agency or the local authority and a failure to do so is an offence which, upon conviction, could be subject to maximum fine of up to £1,000 in a magistrates' court, depending upon the activity carried out.

Duty of care

Every person involved in the waste chain, from production and collection through to processing and disposal, is subject to the duty of care imposed by section 34 of the Environmental Protection Act 1990, which is designed to ensure that waste is handled safely and in accordance with the law.

In order to comply with the duty of care you must:

• Seek to stop waste escaping from your control and prevent anyone keeping, depositing, disposing of or recovering your ‘controlled waste’ without a waste management licence or an exemption from the requirement to obtain a waste management licence.
• Ensure that waste is only transferred to an authorised person. If you are taking waste to a disposal facility you must ensure that that facility is authorised to deal with your particular type of waste.
• Ensure that when waste is transferred it is accompanied by a written description, usually by way of a “waste transfer note”, that will enable anyone receiving it to dispose of it or handle it in accordance with his or her own duty of care. This transfer note should be kept for two years following the transfer.

Transfer notes

The Environmental Protection (Duty of Care) Regulations 1991 set out in detail the information that must be supplied when waste is transferred. A waste transfer note must include the following information:

• a written description of the waste;
• details of the quantity of waste transferred;
• the type of container used;
• the time and place of the transfer;
• details of the transferor and transferee.

The failure to comply with any part of the duty of care is a criminal offence and upon conviction is subject to a potential maximum fine of £5,000 in a magistrates' court and an unlimited fine in a crown court.

Hazardous waste

If you produce or deal with waste that has certain hazardous properties, you will also have to comply with the requirements of the Hazardous Waste Regulations 2005. Hazardous waste includes, for example, asbestos, lead-acid batteries, oily sludges, solvents and chemical wastes. If hazardous waste is being produced at, or removed from any premises, then the following requirements apply:

• The premises must be notified to the Environment Agency unless an exemption applies. A unique “premises code” will then be assigned to the premises by the Environment Agency;
• The hazardous waste must not be removed from premises unless those premises have been notified to the Environment Agency or are otherwise exempt from doing so.
• Upon the transfer of hazardous waste a consignment note must be completed, the procedure and requirements of which are analogous to waste transfer notes, although the use of consignment codes means that each consignment will be assigned a unique code.

A failure to comply with the Hazardous Waste Regulations 2005 is a criminal offence and the majority of offences under the regulations are summary-only offences, which are dealt with only in a magistrates' court, and carry a maximum penalty of £5,000. For the offences that can be dealt with by a crown court, the maximum penalty remains the same in a magistrates' court and the maximum penalty available in a crown court is a term of imprisonment of up to two years, or an unlimited fine, or both.

You can register online as a producer of hazardous waste.

Powers of the regulators

The powers of the regulators have been strengthened in recent years and in addition to the normal criminal sanctions of a warning, enforcement notice, caution or prosecution for breaches of “waste offences”, they can now:

• issue fixed penalty notices;
• issue notices requiring you to produce waste transfer notes and/or details of your waste carrier registration details;
• seize vehicles in certain circumstances;
• seek to recover the costs of their investigation and any clean-up costs.

Landfill tax

If you are disposing of waste to landfill then landfill tax will be payable over and above any charges the landfill operator may make for disposing of waste at that facility.

The tax is designed to encourage businesses to produce less waste and to use alternative forms of waste management.

There are two rates of landfill tax and for the financial year 2006/2007:

• £2 per tonne for inert waste, such as rocks and soil;
• £21 per tonne for non-inert wastes.

Further information

• DEFRA’s recycling and waste home page
• HM Revenue & Customs information on Landfill Tax
• HM Revenue & Customs Notice LFT1 on Landfill Tax

Matthew Shaw is a solicitor at DLA Piper UK LLP.