Last reviewed 10 April 2016
Defra has published a revised Duty of Care code of practice, replacing the existing code, which was first published in 1996. John Barwise looks at what has changed.
The new guidance is designed to reflect waste regulatory changes over the last 20 years and to make compliance clearer and easier to interpret. The government had earlier accepted waste industry concerns over its Red Tape Review and pledged to improve enforcement and to publish revised guidance for environmental permitting, including revised waste definitions.
The Duty of Care requirements are set out in the Environmental Protection Act 1990 and apply to anyone in the controlled waste stream, including producers, carriers, dealers, brokers and managers. Most types of business produce waste and have a legal duty of care to ensure that waste they produce is stored, transported and disposed of without harming the environment. The revised code of practice follows a three-month Defra consultation period which sought the views of a range of organisations with duty of care responsibilities, including those in the waste industry sector.
The Chartered Institution of Wastes Management (CIWM) has welcomed the publication of the new Waste Duty of Care Code of Practice, which it says makes it clearer and easier for all stakeholders to understand, but argued that more needs to be done to prevent waste crime.
Right Waste, Right Place
Chief executive Steve Lee said in a statement following the release of the publication: “Duty of Care is fundamental to stemming the flow of waste materials to illegal operators. With waste crime on the increase, the industry is working hard through the Right Waste, Right Place campaign and other initiatives to get the message out and ensure that people and businesses are not inadvertently ‘feeding’ waste crime because they are unaware of their responsibilities.”
The revised code of practice relates to existing Duty of Care regulations, including recent revisions, and while it is not a legal document in itself, it can be used as evidence in legal proceedings for operators in the waste chain that breach duty of care requirements. The waste industry’s Right Waste, Right Place campaign, which is part funded by Defra, will publish additional guidance, including case studies and examples of best practice relating to Duty of Care.
The waste industry body, ESA, has joined with the CIWM to run the campaign. ESA’s Head of Regulation, Sam Corp said: “Understanding Duty of Care responsibilities and achieving compliance with environmental legislation can save businesses money and help prevent waste crime. But awareness of these advantages is not high within the business community, especially SMEs”. Right Waste Right Place campaign aims to raise the profile and awareness of Duty of Care requirements across a number of different waste producing business sectors.
The launch of the Right Waste Right Place campaign this month coincides with Defra’s revised Duty of Care code of practice. A new website will be launched in April highlighting the case studies and best practice in waste management.
The revised Duty of Care code of practice (the code) applies to England and Wales. It sets out practical guidance on how to meet your waste duty of care requirements, but does not replace obligations to comply with the duty of care itself. Other guidance for Scotland and Northern Ireland is also available.
Below is an outline of some of the key requirements listed in Defra’s revised Code of Practice.
Scope of the duty of care
This applies to industrial, commercial and household waste, known as “controlled” waste. There is of course a legal definition of waste. Common waste operations and processes are described as follows.
“Recovery” — operations that result in waste serving a useful purpose by replacing non-waste materials that would otherwise have been used to fulfil a particular function.
“Preparing for reuse” — is the operation or process of checking, cleaning or repairing products that have previously been discarded so that they can be reused without any other pre-processing.
“Recycling” — operations by which waste is reprocessed into products, materials or substances, whether for its original or other purposes.
“Disposal” — operations that are not recovery (even where the operation has a secondary consequence of reclaiming substances or energy). An example is landfill.
Duty of care: what it does not apply to
waste waters, radioactive waste and decommissioned explosives
wastes containing animal bi-products
sewage, sludge or septic tank sludge.
Duty of care: who it applies to
waste producer — any person whose activities produce waste, including for example, private sector businesses such as shops, offices, factories and tradesman (eg electricians, builders, glaziers and plumbers) and public sector services such as schools, hospitals and prisons, as well as charities and voluntary and community groups
waste carrier — any person, who normally and regularly collects, carries or transports waste in the course of any business or with a view to profit, including those that produce and transport their own waste eg builders and landscape gardeners
waste dealer — any person, business or organisation that buys waste with the aim of subsequently selling it, including in circumstances where the dealer does not take physical possession of the waste
waste broker — any person, business or organisation that arranges waste transportation and management of waste on behalf of another party, such as organisations contracting out waste collection services, eg local authorities, supermarkets and producer responsibility compliance schemes
waste manager — any person involved in the collection, transport, recovery or disposal of controlled waste, including the supervision of these.
Waste holders: how long duty of care lasts
Businesses have a responsibility to take all reasonable steps to ensure that when transferring waste to another waste holder the waste is managed correctly throughout its complete journey to disposal or recovery.
The code recommends:
checking the next waste holder is authorised to take the waste
checking the next waste holder is authorised to take the waste — see section 4.4 for examples of authorisation
carrying out detailed checks if businesses suspect their waste is not being handled in line with the duty of care by, for example, requesting evidence that your waste has arrived at the intended destination as described.
Section 3 of the code deals mainly with householders’ waste responsibilities including checking if:
local authority’s household waste and recycling centre accepts the waste – this service is usually free of charge
local authority offers special collection services — you may be charged.
The code also explains householder responsibilities when dealing with trades such as builders, landscape gardeners, carpet fitters and checking they have appropriate authorisation to dispose of domestic waste.
Take all reasonable steps…
Section 4 of the code deals with all the main Duty of Care requirements. In particular, it states that waste holders must “take all reasonable steps to” do the following.
Prevent unauthorised or harmful deposit, treatment or disposal of waste (see section 4.1).
Prevent a breach (failure) by any other person to meet the requirement to have an environmental permit, or a breach of a permit condition (see section 4.2).
Prevent the escape of waste from your control (see section 4.3).
Ensure that any person you transfer the waste to has the correct authorisation (see section 4.4).
Provide an accurate description of the waste when it is transferred to another person (see sections 4.5 and 4.6).
Section 4 is expanded to provide additional guidance on:
preventing unauthorised or harmful deposit, treatment or disposal
preventing a breach of an environmental permit or a breach of a permit condition
preventing the escape of waste
transferring waste to an authorised person
providing an accurate description of waste
retention of waste documentation.
Other waste laws for waste holders
Section 5 of the code outlines other waste laws for waste holders, including the following.
Hazardous waste — complying with Hazardous waste regulations https://www.gov.uk/dispose-hazardous-waste and following specific requirements for consigning hazardous waste.
Producer Responsibility regulations — relating to, for example, waste electrical and electronic equipment (EEE), batteries, or end-of-life vehicles (ELVs). This includes a link to regulations in England and Wales.
Separate collections — including collection of waste paper, plastics, metal and glass, which must be collected separately from each other and from other waste materials, where it is necessary to comply with the waste hierarchy and for the protection of human health and the environment.
Landfill — including complying with relevant permitting requirement in England and Wales for landfilling waste materials. The section also refers to separate guidance for landfill operators.
Full details of the Duty of Care revised and updated Code of Practice are available online.