Last reviewed 25 November 2016
Mike Sopp examines the duty of care that laboratories have as waste holders and the revised Code of Practice published by the Department for Environment, Food and Rural Affairs (Defra) earlier this year.
Under environmental legislation laboratories, as “waste holders”, have a duty of care to ensure that any “controlled waste” is stored safely, securely and does not cause pollution or harm to anybody. This duty of care also extends to ensuring that waste is appropriately segregated, transferred and disposed of in a responsible manner.
In the summer of 2015, Defra published a consultation document on a revised Code of Practice for England and Wales so that it fully reflects legislative changes and promotes awareness of the duty of care requirements. The revised Code was published in March 2016.
Drivers for Revision
The s.34 of the Environmental Protection Act 1996 established the duty of care which sets out the requirements intended to ensure the safe management of controlled waste by those who produce or are subsequently in legal or physical possession of it.
According to Defra, the purpose of the duty of care requirements “is to ensure that waste is dealt with responsibly and described and treated correctly” while the Code gives simple, clear and practical guidance on how to fulfil the legal duty of care obligations.
In a similar manner as Approved Codes of Practice issued by the Health and Safety Executive under the Health and Safety at Work, etc Act 1974, the Code of Practice “is admissible in evidence and courts must take it into account in legal proceedings where it is relevant to issues in the case”.
However, the Code of Practice was first issued in 1996, since when a number of important legislative changes relating to the duty of care have been introduced including:
the waste hierarchy, which requires waste holders to take all reasonable steps to apply the hierarchy as a priority order when waste is transferred to another person
a basic characterisation requirement for waste that is to be disposed of in a landfill to ensure waste management operators fully understand the nature of the waste they receive
ability to record waste transfer information on alternative documents including invoices, orders or receipts and/or the electronic duty of care system.
In revising the Code, Defra’s intent is to provide “some general and high level guidance on the types of actions that waste producers and other waste holders can take to help demonstrate that they are complying with their duty of care”. It also:
explains the legislative requirements of the duty of care, and makes clear who and what they apply to
signposts other legislative requirements that apply to the management of waste and must be complied with alongside the duty of care in particular circumstances.
Potential waste coming out of the laboratory can vary both in quantity and type. Compared to many industrial facilities, laboratories tend to produce smaller amounts of a wider variety of potential waste types which can include hazardous substances.
The Code of Practice sets out the scope of the duty of care in terms of what waste it covers and to whom it applies.
The first matter the laboratory manager will need to consider is what would be deemed to be waste. The Code defines waste as “any substance or object that the holder discards, intends to discard or is required to discard”.
In most cases, this will be straightforward but Defra has produced further guidance on this matter with a flowchart and a series of questions that will determine if something is waste. It notes, for example, that the meaning of discarded “includes not only the disposal of a substance or object but also its recovery or recycling”.
The duty of care requirements apply to all household, industrial and commercial waste, which is also known as “controlled waste”. Details of whether the waste is controlled due to its source or type can be found in schedule 1 of the Controlled Waste (England and Wales) Regulations 2012.
The duty of care applies to anybody defined as a “waste holder”, this being anyone who imports, produces, carries, keeps, treats or disposes of controlled waste, or has control of that waste.
The rationale is that this will ensure that waste is managed at all stages from waste production to final disposal/recovery/reuse in such a way as to prevent risks to the environment and human health, and deter criminal behaviour (eg fly-tipping).
It is worth noting that there are no time limits on the duty of care and that when a waste holder transfers waste, there is still “a responsibility to take all reasonable steps to ensure that the waste is managed correctly throughout its complete journey to disposal or recovery”. The Code suggests that dutyholders:
check the waste holder is authorised to take waste
carry out more detailed checks as to the waste’s final destination (eg written evidence of appropriate disposal).
The Code applies to England and Wales only and, therefore, laboratories that may operate across borders will need to take account of the respective Codes for Scotland and Northern Ireland.
In doing so, laboratory managers will need to be aware of the specific requirements (and potentially more stringent controls) that these Codes may have that are particular to the regions in question.
Duty of Care Requirements
The duty of care places five distinct requirements on those who manage controlled waste. Section 3 of the Code of Practice is structured to follow the order of the requirements as they are set out in the Environmental Protection Act. As a waste holder, laboratories will be required to:
prevent unauthorised or harmful deposit, treatment or disposal of waste
prevent a breach (failure) by any other person to meet the requirement to have an environmental permit or a breach of a permit condition
prevent the escape of waste from their control
ensure that any person to whom you are transferring waste has the correct authorisation
provide an accurate description of the waste when it is transferred to another person.
In general terms, the guidance remains unchanged in terms of good practice that can be followed to meet legal obligations.
However, it does now reflect the legislative changes mentioned above. For example, it now notes that when transferring waste a laboratory must ensure that the description of waste “contains a statement confirming that you have fulfilled your duty to apply the waste hierarchy”.
The purpose of the hierarchy is to prevent or reduce waste with the hierarchy being applied as a priority order when waste is transferred to another person.
It is worth noting that in Scotland, the requirement to implement the waste hierarchy is somewhat more stringent. The Waste (Scotland) Regulations 2012 amended section 34 to implement a number of actions in the “Scottish Government’s Zero Waste Plan” including waste producers, having a duty to take “reasonable steps to increase the quantity and quality of recyclable materials”.
The requirement to segregate hazardous and non-hazardous waste is well known, which may mean having separate storage areas for hazardous and non-hazardous wastes and/or the segregation of different types of hazardous wastes.
However, from 1 January 2014, waste producers in Scotland are required to “present glass, metal, plastic, paper and card (including cardboard) for separate collection” (although there are some derogations that allow co-mingled collections).
In the rest of the UK, from 1 January 2015, this requirement falls on the waste collector. In respect of this, the Code for Northern Ireland states that “producers, where feasible, should take all measures possible to segregate their wastes”.
Guidance on the Legal Definition of Waste and its Application — A Practical Guide for Businesses and other Organisations
Waste Duty of Care Code of Practice
Guidance on Applying the Waste Hierarchy
Duty of Care — A Code of Practice
Waste Management — The Duty of Care: A Code of Practice