Last reviewed 18 August 2015
Long overdue, an updated draft version of the Approved Code of Practice for the waste Duty of Care has now arrived. In contrast to the published Scottish guidance, this version is very concise at only 11 pages long. Which approach is most useful and practicable? Caroline Hand considers the content and quality of the guidance.
The Approved Code of Practice (ACOP) for the waste Duty of Care was published in 1996, when the Waste Management Licensing Regulations were still in force, hazardous waste was “special” and the Landfill Directive had not even been drafted. Nearly two decades late, following many promises and postponements, an updated draft version has finally arrived. At 11 pages long, the new document is very concise, relying on links to other government websites to fill in essential detail of the other waste regimes which dovetail with the Duty of Care.
This minimalist approach contrasts with the published Scottish guidance, which summarises other legislation, gives examples of good and bad practice, and is structured into separate sections for each member of the waste chain. The disadvantage of this is that it entails a good deal of repetition.
Defra’s new Duty of Care ACOP
This guidance document follows the spirit of the Government’s Smarter Guidance policy, which aims to keep guidance short, simple and accessible. It assumes that most readers will consult the guidance online rather than referring to a paper copy, and hence relies heavily on links to other websites. This contrasts with both the original 1996 duty of care guidance and the Scottish Environment Protection Agency’s (SEPA’s) guidance for Scotland. The introduction explains that Defra deliberately sought to avoid repetition and the use of case studies and examples.
A paraphrase for the non-expert?
At the outset it must be said that the draft ACOP does a good job of translating the Duty of Care legislation into clear, simple, everyday language. Some legal terms such as “broker” and “dealer” are well explained although other, more complex terms such as “basic characterisation” are not.
The requirements of the law are all covered but the guidance does not go far beyond the bare bones of the legislation. It could be said that this guidance is more a readable paraphrase of the law than a fleshing out of it. It does not even contain a sample transfer note. This contrasts with the original 1996 guidance, which was 66 pages long, gave practical guidance to each waste holder and included information on other relevant legislation such as the definition of waste and dangerous goods transport.
Two decades of change
Over the last two decades the waste landscape has been transformed. Back in 1996 over 80% of local authority-collected waste was going to landfill. That same year the Landfill Tax was introduced, followed by the Landfill Directive in 1999. Today only about a third of local authority waste is landfilled, with around 44% being recycled or recovered. So the Duty of Care is now far more about the supervision of waste going for treatment. Moreover, a far greater range of waste treatment options, including anaerobic digestion, is now available.
One of the main goals of the new ACOP was to take account of all the waste legislation that has come into force since 1996. This is extensive and includes:
the Hazardous Waste Regulations 2005 and EWC
the Environmental Permitting regime
the requirement to take the waste hierarchy into account, and certify on the transfer note that this has been done (Waste (England and Wales) Regulations 2011)
basic characterisation for waste going to landfill, and requirement to pre-treat it (Landfill Directive)
segregation of recyclables where Technically, Environmentally and Economically Practicable (TEEP)
changes to classification of hazardous waste (WM3)
Controlled Waste Regulations 2012 — changes to lists of household, commercial and industrial wastes, such as the inclusion of agricultural waste
producer responsibility legislation for WEEE, packaging and batteries
EDOC, the electronic duty of care.
References to all of these developments are made in the guidance, but in order to learn about them the reader has to follow a link to the relevant page on the gov.uk website. Surprisingly, no mention at all is made of scrap metal and the Scrap Metal Dealer’s Act 2013, which is highly relevant to many in the waste industry.
How useful are the links?
Some of the links are very helpful, for example the direct link to the Environment Agency’s public register of environmental permit holders and waste carriers. Others link directly to the original legislation, such as the EU Animal Byproducts Regulation, or to fairly complex and lengthy guidance pages on the gov.uk site (the pages on import and export of waste being the prime example of this).
The Scottish guidance gives a short summary of these related provisions for those who may not wish to immerse themselves in the detail. However, most of the links in the draft English ACOP lead to pages on the gov.uk website that seek to give a clear and accessible explanation of topics such as environmental permitting or waste classification. So Defra does succeed in its aim of making sure that readers only come across information that they actually need.
The 66 pages of Scottish guidance take a much more thorough and systematic approach, going through the duties of each waste holder (producer, carrier, waste manager, broker/dealer and exporter). There are useful summary checklists of the duties, which are then explained in more detail. This was a feature of the old 1996 guidance, which included a helpful table of the different responsibilities.
The Scottish guidance also does a better job of spelling out a few points that, although seemingly minor, are “frequently asked questions” of people new to waste management, such as the following.
Q: Does the original transfer note always follow the waste from cradle to grave?
A: No, a new note is raised if the waste is mixed with other consignments or treated at the transfer station.
Q: Do I need to register to carry my own waste?
A: Yes, if you do this as a regular part of your business. (This requirement is not mentioned at all in the Defra draft ACOP).
The Scottish guidance illustrates the legal requirements by giving brief examples of good and bad practice. For example:
describing inadequate storage containers and referring to the need for bunded storage for liquid wastes
highlighting behaviour by contractors that should arouse suspicion, eg a carrier who returns unexpectedly early
listing ways in which a waste producer may cause environmental damage or harm to human health, eg by burning waste on site.
Examples of this kind are relevant and helpful and it seems a shame that Defra should omit them purely for the sake of brevity. People may think that “preventing waste from escaping” refers to major incidents such as a skip overturning in the road, and fail to link this part of the duty to their own overfilled bins.
In a similar vein, the Scottish guidance spells out much more fully the practical responsibility to check up on those further down the waste chain, for example by visiting the contractor’s site. The Scottish document also sets the Duty of Care within the wider context of the circular economy and the need to conserve resources.
Perhaps waste managers and producers in England and Wales might do well to refer to the Scottish document as well as the new Defra guidance. They need to be aware, however, that not all of the Scottish guidance applies south of the border: a major thrust of the document is to ensure compliance with the Waste (Scotland) Regulations 2012, which require segregation of dry recyclables by businesses. Readers may also choose to scroll quickly through those portions of the lengthy document that do not apply to them.
Defra is seeking comments from interested parties, which must be submitted by 21 September. This is your opportunity to let them know whether this concise, readable document will help you and your employees to comply with the Duty of Care, and whether it is sufficiently detailed to meet your needs. The consultation letter and draft ACOP can be downloaded.
For a detailed description of Duty of Care itself, see the Croner-iDuty of Care topic.