Partner Karen Jones, head of our leading Planning & Environmental law team, looks at the new Waste Duty of Care Code of Practice, set out in Section 34 of the Environmental Protection Act 1990 (EPA).
The new Waste Duty of Care Code of Practice, which sets out guidance on how to meet the duty of care requirements, became effective on 11 March 2016. The duty of care requirements are set out in Section 34 of the Environmental Protection Act 1990 (EPA). These impose legal obligations on any person who imports, produces, carries, keeps, treats or disposes of waste and includes waste carriers, waste dealers, waste brokers or waste managers when they handle controlled waste who must take responsibility for the safe management of that waste. Controlled waste is household, industrial or commercial waste and is classified by reference to Schedule 1 of the Controlled Waste Regulations 2012.
Failure to comply with the duty of care imposed under the EPA is an offence punishable by an unlimited fine. The new Code contains practical guidance on meeting the waste duty of care obligations for England and Wales.
The Secretary of State amended the Code of Practice under the EPA 1990 in accordance with powers in Section 34 (8). Since the Code of Practice was last issued in 1996 a number of changes to waste law have occurred which needed to be reflected in updated guidance. In particular, there had been amendments to the Waste Framework Directive. These include the revised requirements in respect of information required by anyone handling and transferring waste, the requirement to take all reasonable steps to apply a waste hierarchy upon the transfer of waste and the requirement to meet landfill acceptance criteria by characterising waste to be disposed of in a landfill site.
The tone of the new Code is less legal and technical and will undoubtedly be welcomed within the waste industry. The duty of care under the EPA 1990 has not changed and the main responsibilities covered by the Code also remain the same but the Code aims to be easier to read and more focused on individual responsibilities.
The new Code is essential reading. It provides guidance on compliance with legal obligations in relation to controlled waste. It gives valuable guidance on the legal application of duty of care and where it applies and provides useful guidance on how to meet the requirements and what to do if illegal activities are suspected. The new Code is in a much more user-friendly format and will be easier for the industry to understand when dealing with responsibilities and sets out clearly the five main responsibilities of every waste holder.
The five key waste duty of care requirements are; to prevent unauthorised or harmful deposit, treatment or disposal of waste; to prevent a breach by any other person to meet the requirements to have an environmental permit; prevent the escape of waste from a waste holder’s control; only transfer waste to a person with the correct authorisation and; provide an accurate description of the waste.
The Code gives some helpful examples of behaviour that must be avoided to comply with these requirements. It provides waste holders should prevent breach by any other person of a permit condition for example by ensuring no transfer occurs where the transferred waste is in a condition that it cannot be safely managed or stored. The Code sets out steps for checking authorisations before transfer and provides details of different methods of providing an accurate written description for waste.
The problem of a lack of detail on definitions of waste remains. This is not surprising given the continued uncertainty and conflicts in court decisions concerning the issue. Further clarity on the definition of waste would be welcomed.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice. This article was first published, in amended form, in Waste Planning.
