November 1997

Introduction

82.1 General (Amended July 2007)

The official receiver has certain responsibilities under the Environmental Protection Act 1990 (EPA 90) and the Environment Act 1995 (EA 95). It is intended that this chapter and the Code of Practice issued by the Department of the Environment (see paragraph 82.2) should provide guidance for the official receiver in complying with this legislation. Various definitions of the terms used in this chapter and the legislation are provided in the annex to this chapter including: "controlled waste" which covers all waste from households, commerce or industry, not just intrinsically harmful items. "Waste" may be defined as "any substance or object .... which the producer or the person in possession of it discards or intends or is required to discard." Guidance on the action required by the official receiver in relation to various unusual businesses, eg scrap metal dealers, can be found in chapter 59.

Formerly, the approval of waste management businesses was dealt with by the issue of Waste Management Licences by the Environment Agency.  These are gradually being phased out – being replaced by Pollution Prevention and Control permits, also issued by the Environment Agency.  Currently, both systems of approval are in still in operation and references in this chapter to “waste permits” can be taken to include both Waste Management Licences and Pollution Prevention and Control permits.

Notes: [s75 EPA 90] [Code of Practice, para 1.2]

82.2 Code of practice

The Department of the Environment has produced a booklet in relation to the EPA 90 called: "Waste Management - the duty of care - a code of practice". This booklet, which is available in each office (as part of the core collection), will be referred to in this chapter as "the code of practice". The code of practice provides details of the practical steps which should be taken by parties who have a duty of care in dealing with waste (see below).

82.3 Duty of care upon the OR

The official receiver will owe a duty of care under the EPA 90 whenever he is receiver and manager or trustee of an insolvent’s estate which is imported, produced, carried, kept, treated or disposed of controlled waste or, as a broker, has control of such waste. Where the official receiver is liquidator of a company which carried out such work, it is the company which owes the duty of care; however, the official receiver may be liable to prosecution if he causes the company to breach that duty of care. This situation and the duty of care mean that the official receiver/the company must take all reasonable measures:-

• to prevent the treatment, keeping or disposal of controlled waste in a manner likely to cause pollution to the environment or harm to human health;
• to prevent the escape of the waste from his control or that of any other person; and
• on transfer of the waste to secure:
• that the transfer is only to an authorised person or to a person for authorised transport purposes (see also paragraph 82.6); and
• that there is the required documentation regarding the transfer (see also paragraph 82.15).

The duty of care does not apply to the occupier of domestic property in respect of household waste. In practice this exemption will protect the official receiver from the liability to prosecution when he is acting as receiver and manager or trustee of a bankrupt’s estate when the bankrupt is still in occupation of the domestic premises. It should be noted that the fact that there is no statutory duty does not relieve the official receiver from potential liability at common law if he fails to act responsibly with regard to the environment or to the occupiers of neighbouring land. However, where the insolvent is the landlord of residential property, the duty of care may arise if the official receiver can be said to be "keeping" the waste. The term "keeping" used in paragraph (a) above is believed to include having the temporary possession or being in the presence of something, so the official receiver may be "keeping" waste when the property where it is situated forms part of the insolvent’s estate. An offence may be committed even if the waste is "kept" for only a short time. It is thus very important that the official receiver ensures that any controlled waste is dealt with quickly by a party with a permit to do so (see paragraph 82.6 and 82.7) or is disclaimed (see paragraph 82.17). If the waste cannot be disposed of safely and quickly, or the cost of doing so is prohibitive, the early appointment of a trustee, or the assumption of this office by the official receiver, should be sought so that the waste may be disclaimed. Whenever the official receiver encounters any difficulties in dealing with waste, he should consult Technical Section.

Notes: [s34(1) EPA 90 and Code of Practice Annex B] [s33(1)(c) EPA 90] [s33 EPA 90]

82.4 Breach of duty of care by OR

Failure to comply with the duty of care is a criminal offence and, as explained above, the official receiver, in whatever capacity he is acting, may have such a duty of care, or may have to ensure compliance with the duty of care. NB When he is liquidator, it is the company and not the official receiver which owes the duty of care (see paragraph 82.3). Any prosecution of a company will be subject to the provisions of section 130(2) of the Insolvency Act 1986.

In addition to any civil liability for nuisance or negligence, a civil liability arises under the EPA 90, giving rise to a claim for damages, unless the damage (including death or physical injury) was wholly the fault of the person who suffered it or was suffered by a person who voluntarily accepted the risk of the damage being caused. In all cases the official receiver should ensure that he takes all reasonable steps to discharge his duty of care to avoid the attraction of this liability. Additionally, wherever possible insurance cover, including public liability, should be obtained, or should be sought, in such circumstances. If he encounters any difficulties in dealing with waste, he should immediately contact Technical Section.

Notes: [S34(6) EPA 90] [s73(6) EPA 90]

82.5 The Environment Agency

The Environment Agency is responsible for :-

• the issue of waste permits and maintaining a register of persons holding such permits;
• the issue of certificates to waste carriers and maintaining a register of waste carriers; and
• preventing or pursuing offences under the EPA 90.

Notes: [s30(1) EPA 90] [s108 EA 95]

As far as possible, the Environment Agency will offer guidance on dealing with waste but it is unable to assist all wasteholders on how to deal with their waste. However, the Environment Agency maintains various registers of licensed professionals, the registers being available for any enquirer to examine and thus gain assistance. The registers are listed at Part 6 of The Code. The Environment Agency has various powers to enter premises and inspect them for environmental purposes and to require the production of documents. Whenever the official receiver receives a request from The Agency or its representative, he should comply with all reasonable request to inspect records or premises, provided these are under his control.

82.6 Waste permits – generally (Amended July 2007)

A waste permit should be held by anyone who deals with controlled waste which includes keeping it. The permit will include conditions which will usually limit the type and quantity of waste to be dealt with and the way in which it is managed. A permit issued under the EPA 90 will be for an unlimited time (continuing until it is revoked, suspended or surrendered) although an annual fee is payable. It may be possible to transfer an insolvent’s waste permit for a valuable consideration. (See paragraph 82.18).

Notes: [s39 EPA 90] [s40 EPA 90]

82.7 Waste permits - initial action to be taken (Amended July 2007)

Where an insolvent holds, or has recently held, a waste permit the official receiver should contact the Environment Agency as a matter of urgency to inform it of the insolvency proceedings.  Notice can be sent by e-mail to enquiries@environment-agency.gov.uk and should quote the name and registration number of the company or the name and address of the bankrupt, the waste permit reference number and the address(es) of the site(s).  Alternatively, the official receiver may telephone the Environment Agency on 08708 506506 with the same information.  The information will be forwarded internally with the Environment Agency to their regional legal teams and area inspection teams.  The Environment Agency will then be able to consider exercising its supervisory powers pursuant to section 42 EPA 90. It is possible that permit holders with financial difficulties may have been lax in their care of waste and the early involvement of the Environment Agency may be imperative to ensure that pollution to the environment, etc is avoided. If the Agency has to carry out emergency work, the expense of doing so is recoverable from the holder/former holder of the permit unless the holder can show that there was no emergency or need for expenditure. The amount of such expenditure is provable in the proceedings.

Notes: [s42(3) EPA 90] [s42(4) EPA 95]

82.8 Criminal offences under EPA 90 and EA 95

If the official receiver considers that the insolvent has committed a criminal offence under the EPA 90 or EA 95, he should report full details to Prosecution Unit at Headquarters. The Unit will then report the matter to the Investigation and Enforcement Directorate which will liase with the Environment Agency.

82.9 Breach of duty of care

If the official receiver becomes aware of any breaches of the duty of care, he should provide full details to the Environment Agency. When reporting on the conduct of directors any breach of the duty of care may be included as an example of unfit conduct as it may be taken into account in disqualification proceedings.

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