Waste transfer documentation often seems a dull subject. Yet with strict liability offences applying to such documentation, not to mention the risks to business reputation, it is important to get it right. This article is not a legal overview. Instead, Alan Field takes a practical look at the risks to be managed and the issues involved.
Controlling waste, and the need to document what has been done, is not a new topic. The basic legislation goes back to 1990 and there are many companies out there who will manage waste streams on behalf of Facilities Management (FM) contractors. The current trend, quite rightly, is towards waste minimisation, reuse and recycling.
In most instances, the producer of waste remains the party with the legal duty for its safe and appropriate disposal, and having the correct documentation to prove it. The criminal liability cannot be sub-contracted for this, so getting waste streams and the documentation right is important, even if you are the FM contractor who wants to avoid big compensation claims from an unhappy client.
Before the paperwork
There are some legal and procurement principles that need to be fully appreciated and which help to explain why waste management paperwork is so important.
Generally speaking, the producer of waste is legally responsible for that waste until its final destruction (eg incineration or landfill) or it has been recycled. Irrespective of the number of parties in that chain of custody, the producer still has a criminal liability if something goes wrong. Not only that, most of these offences are of strict liability. In other words, if you have committed the offence then there are no defences (or, occasionally, very technical ones). To say to the court that it was the fault of your contractor, even if they accept your submission, might only minimise the punishment, but it will not stop you being convicted.
Of course, you will often have some contractual rights to either deduct compensation from contractual payments and/or the right to sue the contractor. However, money does not help mitigate the damage to your reputation and your clean compliance record. Especially with larger organisations, it is much more likely that their peers or even the wider public will remember their name as the “criminal” — not the contractor.
Therefore, this has four practical outcomes.
The selection of waste contractors (including brokers) needs to be carefully managed. Remember you are looking at how they protect your legal compliance rather than whether they are meeting their contractual commitments to your organisation. This is an important difference in emphasis in day-to-day supervision of contractors.
All (not just some) waste transfer documentation needs to be correct; in other words you cannot just leave it all to the contractor to worry about. There needs to be a level of understanding of what contractors do, how they do it, and how they appoint and manage any sub-contractors of their own. Just relying on the protection of contractual penalties is not really an option.
Both the regulators and environmental law can vary in different parts of the UK and this can impact organisations that are multi-sited. There are different environmental regulators for Northern Ireland and Scotland. Indeed, Scotland has a completely different legal system to the rest of the UK. Although England and Wales has one legal system and regulator, Wales has some of its own specific regulations. The individual Channel Islands and the Isle of Man also have their own completely separate legal and regulatory systems. Of course, all these different regulators have different protocols and priorities, as well as enforcement regimes. So just because the London office does the waste transfer paperwork in one particular way, it should not be assumed that it will necessarily be compliant in Belfast, Edinburgh or even Cardiff.
Where there are recycling initiatives or corporate social responsibility policies in place (eg giving IT equipment to charities for them to redeploy in the developing world), the exact legal status of these movements needs to be determined and documented. It is not always wise simply to take the word of the charity or other parties — their good faith advice may not always be entirely correct. Remember that the producer of waste normally has a strict legal liability for the chain of custody, even where inadvertent waste transfers have taken place. A large organisation may actually get a consultant to review all its compliance risks with waste management, especially where recycling and reuse is a key part of waste strategy.
Whether one is the first tier contractor or the duty holder, detailed documentation on all the above matters needs to be maintained and continually monitored, ie it should be seen as risk management rather than just simple record keeping.
At site level, the documentation will depend on the waste streams involved and the parties involved in waste management. All waste streams need to be identified. This may sound obvious, but in the author’s experience, there may be confusion over streams that fall under the WEEE Regulations (certain electrical and electronic devices/parts) and feminine hygiene waste, to cite just two examples. Where different contractors or managers are responsible for different waste streams, there needs to be some co-ordination — assumptions and misunderstandings over who has done what need to be risk managed out. This part of the site risk, ie making sure everybody, whether they are staff or contractors, understands that criminal offences can arise from incorrect waste management transfer documentation, is a key risk control.
For example, what might be seen as comparatively straightforward points, such as the description and classification of waste, must be correct on all documentation. If, for example, the EWC code (from the European Waste Catalogue) is missing or incorrect from a WTN (waste transfer note), that is an offence. If there is any doubt as to what is the correct EWC code, this should be clarified in advance, eg sharps waste can fall under a number of different EWC codes, depending on their prior use before disposal.
The exact description of waste needs to be shown even if a contractor’s collection driver/representative may suggest otherwise. This is especially important with consignment notes for hazardous waste (known as special waste in Scotland) because, for one thing, it may impact on the eventual disposal method as well as the EWC code issue. This is an even higher risk if any waste is passing through a chain of custody of two, three or even four tiers of contractors. Are all these contractors always checking the necessary licencing parties and is there a system in place to ensure that these don’t expire without renewal? If the producer of waste is carrying the can, then it may want more than contractual liability to protect itself with such a long chain of compliance, ie this might involve audits or other on-site reviews.
Some waste contractors will encourage their clients to use a particular method of keeping waste transfer documentation. If this leads to the FM site staff having to use more than one system of documentation for different waste contractors, this is fine — there are no issues, as such, with this. However, it does mean there is a slightly higher risk of confusion — controls need to be in place to ensure differences in records or follow-up processes are consistent. This can be exacerbated where copy records (perhaps in electronic or hard copy form) are stored at, for example, site and head office.
Waste management is more than just keeping the paperwork straight and delegating responsibilities. It can be a significant compliance risk if it is not thought through. However, with a level of effective planning and risk management, it can be relatively plain sailing.
Last reviewed 24 June 2014