Dealing with controlled waste
Where the official receiver becomes aware of waste in the possession of the insolvent, on property owned by the insolvent, or otherwise in circumstances to which the duty of care applies, he should obtain details of its nature and location as soon as possible. The official receiver should inspect the waste (where it is safe for him to do so) to establish whether it appears to him to pose an immediate threat to the environment or to human health. But in undertaking an inspection he should not put himself, his officers, any other person or the environment at risk in any way. It is preferable for such inspection to be undertaken with a waste management professional and a representative of the Environmental Agency or the local Environment Health Department. Reference should be made to the Code of Practice which provides general guidance on identifying and describing waste. The official receiver must give notice of the insolvency order to the Environment Agency and at the same time make enquiries regarding the existence of a waste permit, which should, if possible, be recovered from the insolvent’s papers (see also paragraph 82.6). The Environment Agency must also be informed of the existence of the waste (see paragraph 82.11). Notice of the insolvency order and details of the existence of the waste must also be sent to the local environmental health officer. Wherever possible, these notices should be submitted by facsimile transfer. The official receiver should remember the duty of care provisions (see paragraph 82.3) if he encounters controlled waste in the course of administering an insolvent estate (see paragraph 82.7).
Notes: [s33(1) EPA 90]
The official receiver should ensure that waste is being kept safely and reference should be made to the code of practice in this respect. In particular the official receiver should, where appropriate, check that the waste is correctly stored and the general safety of the containers used, particularly checking for any leakage, if it is safe to do so. The official receiver should also consider whether the method of storage could present a fire risk. Whenever the official receiver is examining or dealing with waste he must be certain that it is safe for him to take the action he intends. Generally only authorised persons may move waste (see paragraph 82.13). All reasonable steps should be taken to secure the premises upon which the waste is situated (see part 4 of chapter 8) and in all cases the official receiver should seek to obtain public liability insurance (see chapter 49). The official receiver should inform Technical Section at once if he encounters any difficulty in securing premises on which waste or potentially hazardous or toxic substances are situated. This situation should also be reported to the Environment Agency and the local environmental health department.
The official receiver will need to consider the cost of safely disposing of waste, which may be substantial, especially where potentially hazardous or toxic substances are concerned. The official receiver should not put himself in a position of danger by handling any dangerous substances. The Environment Agency and the local environmental health officer must be informed of the existence of the waste and the action which the official receiver is taking or is not taking in relation to it. The local environmental health officer may be able to assist in dealing with the waste. However, a debit balance should not be incurred or increased to dispose of waste without the prior consent of Technical Section (see paragraph 32.1.8). The official receiver as liquidator or trustee may disclaim waste (see paragraph 82.17). However, he should not do so if the cost of safely disposing of it is small.
Controlled waste should only be moved by:-
Even if the waste is harmless, it should not be moved by the official receiver to the local refuse dump (for example). Further, the official receiver’s agent should not undertake such work unless he is properly authorised (see (a) to (d) above) or exempt from registration. However, it is permissible to move waste from one point to another on the same premises particularly if this increases security of the waste but this removal must never be undertaken by a member of staff. There are no circumstances when a bankrupt or a company officer should be instructed or requested to remove waste.
Notes: [s34(1)(c) and (3) EPA 90] [s35 EPA 90] [s34(4)(a) EPA 90]
Waste should only be handled by authorised persons and the code of practice on selecting a contractor and the transfer of waste should be followed. Whenever agents are employed to deal with waste, all verbal and written instructions should make it clear that only authorised persons (as outlined in paragraph 82.6) should deal with the waste and any transport of waste must be by a registered waste carrier. Verbal instructions must always be confirmed in writing. The Department of the Environment has advised that if the official receiver’s usual agent does not hold the necessary permits or certificates, it is preferable for the official receiver to deal directly with agents who hold the necessary permits or certificates rather than instructing his usual agent to make the arrangements as that agent could then be viewed as being a ‘’broker’’ of waste and thus subject to registration. The agents should be provided with a clear description of the waste they are being asked to deal with, in as much detail as is available. The official receiver should also remind the agents of the documentation to be produced on the moving of the waste and that a copy is required by the official receiver (see also paragraph 82.15).
Notes: [s34(1) EPA 90]
Whenever the official receiver arranges for controlled waste to be removed, the agent retained by the official receiver and the carrier should complete a ‘’controlled waste transfer note’’ (see the code of practice for further details). A suggested example of the transfer note is included in Annex C of the code of practice. A copy of the transfer note should be retained on the official receiver’s file. It is important that the description of the waste is provided in detail as a written description should be made at the time of the transfer (under Regulation 2(1) of the Environmental Protection (Duty of Care) Regulations 1991). It may be an offence not to complete a controlled waste transfer note or to retain it for at least two years. A copy of the note should be made available to the Environment Agency on request.
Where controlled waste is deposited in or on a site in contravention of section 33(1) EPA 90, ie where a waste permit is not in force, the waste is not covered by the permit or is kept in such a manner likely to cause pollution of the environment or harm to human health, the Agency or waste collection authority may serve a notice requiring the occupier to remove the waste and/or take specified action to eliminate or reduce the consequences of the waste being deposited. When the service of a section 59 EPA 90 notice occurs/is threatened, the official receiver should act promptly to ascertain the cost and thus feasibility of carrying out the required work. In the event that the official receiver decides to disclaim the waste, it would also be necessary to disclaim the land or the tenancy of the land on which it is situated. A copy of the disclaimer should be served on the authority which has issued or is going to issue the notice (see paragraph 82.17). If the action required by the notice is not carried out, the authority which served the notice may carry out the work and recover the reasonable cost of doing so from the occupier. Such costs are provable in the proceedings.
Notes: [s33(1) EPA 90] [s59 EPA 90]
Waste may be disclaimed by the liquidator or trustee in accordance with the guidance in chapter 34. In addition to those persons outlined in chapter 34 (which will include the landlord or owner of the property where the waste is situated), whenever waste is disclaimed the official receiver should also serve notice of the disclaimer on the Environment Agency and the local environmental health officer. Waste should not be disclaimed where it is on land which is part of the insolvent’s estate unless the land or the tenancy to the land is also disclaimed. The reasons for this is that the liquidator or trustee may still be ‘’keeping’’ the waste and it is an offence to do so without an appropriate waste permit. Inevitably such a situation will require the official receiver to make an overall assessment of the worth of the land/tenancy and the cost of the work required to deal with the waste. It will not necessarily be the case that the existence of waste will lead to the disclaimer of the waste and the land or tenancy of the land on which it is situated. In some cases it will be beneficial to have the waste disposed of pending the realisation of the land asset. The advice of agents should always be sought when such action is contemplated.
Notes: [s178 or s315] [Form 4.53 or 6.61]
A waste permit may be transferred by submission of a joint written request, to the Environment Agency, by the transferor and transferee, which should be accompanied by the permit and appropriate fee. Before negotiating a possible transfer, the official receiver should ensure that no part of the permit has been revoked or suspended, that it has not been surrendered and is not in the process of being transferred. In addition the official receiver should establish the extent of any arrears of the annual fee. A transfer should only be attempted where there will be a benefit to the estate (see also paragraph 82.6). However, it must be remembered that it will be a matter for the Environment Agency to accept or reject a request for transfer based upon whether it considers the transferee to be a fit and proper person to hold such a permit.
Notes: [s40 EPA 90]
Following the decision of the Court of Appeal in the Case of The Official Receiver v The Environment Agency on 14 July 1999 the official receiver can now disclaim a waste management licence if it is onerous property. When the official receiver disclaims a waste management licence, any waste remaining at the site and, if appropriate, the land upon which the waste is situated should also be disclaimed. In certain circumstances the waste may have some value but this must be balanced against the cost of keeping it until it is sold and the need for the purchaser to have an appropriate licence to transport and deal with the waste. The value of the land must also be considered with the costs of maintaining or cleaning the site to the satisfaction of the Environment Agency.
The official receiver may disclaim his interest in a Pollution Prevention and Control permit and, in general, the guidance and information given in paragraph 82.18A should be followed. It should be noted, however, that the disclaimer of a Pollution Prevention and Control permit has yet to be tested in court and the Environment Agency has indicated that it would challenge such a disclaimer
A waste permit may be surrendered by the holder. Application for surrender is made by the holder of the permit completing and submitting a form provided by the Environment Agency and paying a fee. Surrender of the permit is only accepted where the condition of the land where the waste management activities have been carried out is such that pollution of the environment or harm to human health is considered likely. The official receiver should not become involved in the surrender of permits being unable to give assurances regarding the condition of the land.
Notes: [s39 EPA 90]
The Environment Agency is empowered to revoke waste permit where it considers that the holder of the permit has ceased to be "fit and proper’’. An insolvent permit holder is likely to be considered to have ceased to be "fit and proper’’ lacking the necessary funds to continue waste management work. By notifying the Environment Agency of the proceedings (see paragraph 82.17) the official receiver enables it to consider taking action regarding the permit.
Notes: [s38(3) and (4) EPA 90]
If the insolvent was involved in transporting waste, he should have obtained a waste carrier’s certificate from the Environment Agency. Whenever the official receiver becomes aware that a certificate has been issued, he should inform the Agency of the making of the insolvency order. Further, where such a business has been carried on and no certificate has been obtained, this should also be reported to the Environment Agency.