Duty of Care

The controls on the Duty of Care for wastes are found primarily within s34 of the Environmental Protection Act 1990 ( EPA 1990), and the Waste (England and Wales) Regulations 2011, with Regional variations within Scotland and Northern Ireland. The Regulations are supported by a Statutory Code of Practice.

Sentencing Council  Guidelines identify that for offences relating to the illegal deposit of waste, fines of up to £3 Million may be imposed by the Courts.

The logic of the Duty of Care recognises that waste crime and the illegal disposal of waste impacts upon our quality of life, causing a reduction in the quality of our local environments, pollution of the environment and potential harm to human health. For example, waste management facilities, such as landfills, incinerators and household waste recycling centres operate under a permit that specifies how the site should be operated. These permits, and associated permit conditions have been written with specific (permitted) waste streams in mind, and in order to manage specific environmental risks. Therefore, if wastes are deposited in a way that is outside the permitted conditions, these risks will not have been accounted for, and there will be an increased possibility of pollution of the environment. This might occur, for example when a waste that is not specified within a permit (it is not allowed) is deposited in a landfill, and because the site design has not accounted for this particular waste, it is possible that it may escape to the environment, where for example, it may pollute drinking water. Measures to ensure compliance with Duty of Care will help to reduce this risk.

The Duty of Care applies to all waste holders (e.g. waste producers, brokers, carriers, dealers, treaters and disposers) and if all waste holders complied fully with their Duty of Care then such problems would be less likely to occur.

The key requirements of the Duty of Care as enshrined in s34 of the EPA 1990 are that all waste holders should...:

...take all such measures applicable to him in that capacity as are reasonable in the circumstances* :

• (a) to prevent any contravention by any other person of section 33;
• (aa) to prevent any contravention by any other person of regulation 12 of the `Environmental Permitting Regulations or of a condition of an environmental permit;
• (b) to prevent the escape of the waste from his control or that of any other person; and
• (c) on the transfer of the waste, to secure—
  • (i)that the transfer is only to an authorised person or to a person for authorised transport purposes; and
  • (ii)that there is transferred such a written description of the waste as will enable other persons to avoid a contravention of that section or regulation 12 of the Environmental Permitting Regulations, or a contravention of a condition of an environmental permit, and to comply with the duty under this subsection as respects the escape of waste.

* It will ultimately be the Courts that determine what is 'applicable in that capacity as are reasonable in the circumstances' and when managing waste, all waste holders would be wise to think 'If I were to find myself in court would I be happy to justify what I am doing as 'reasonable in the circumstances?'

In practice this means the five obligations as identified above, mean that waste holders should ensure:

1. That their waste goes to an appropriately permitted site;
2. That the permit-holders comply with permit conditions;
3. That they prevent the escape of waste;
4. That they use an authorised person (e.g. Registered waste carrier); and
5. That they provide written information about the waste and the transfer (e.g. in the form of a transfer note or similar electronic documentation (You can find further information on transfer note completion through our e-learning course (£50 excl. VAT) at http://www.waste-training.com/course/8)

The detailed information requirements of a controlled waste transfer note are found within the Waste (England and Wales) Regulations 2011 (The Regulations), where Regulation 35 provides the relevant details. In general, when waste is transferred between different holders, each transfer must be supported by a document (a controlled waste transfer note) that identifies, not just what the waste is, but that also provides details of the different holders involved in the transfer; the description should be sufficient to allow other (subsequent) waste holders to manage that waste in a safe and legally-compliant manner. In a transfer between a waste producer and a waste carrier, for example, it would, amongst other things, require details of the waste carrier including their waste carrier registration number; details of the waste description would also allow everyone to understand what waste was being transferred, including its main properties, and would allow checks to be made to ensure that the destination site had a permit that could accept a waste of that description.

By providing these details, information is provided that helps to ensure that waste is managed in a way that will not cause environmental pollution.

As well as identifying the minimum information requirements of a controlled waste transfer note, the Regulations also require waste holders to keep copies of controlled waste transfer notes for a period of two years from the time of transfer and to provide this information to the Regulator, when so required.

The Regulations are supported by a code of practice that has a statutory standing; it constitutes guidance issued by the Secretary of State and it is admissible as evidence in court and may be used by a Court in deciding whether or not an accused has complied with his duty of care. Within it are a series of steps which should normally be enough to meet the duty, and these help in identifying reasonable measures for managing wastes on a day to day basis.

The new (2016) code of practice no longer identifies that the main responsibility for waste management lies with the waste producer, and therefore within England and Wales the responsibility is shared by all waste holders; In Northern Ireland and Scotland the main responsibility for duty of care continues to reside with the waste producer.

Amongst other considerations the duty of care therefore requires that waste holders should know the destination of their waste and understand what information will be required to ensure safe and effective disposal.

For example, if waste is to be disposed at a landfill site they will need to know whether their waste is hazardous, or non-hazardous, so that an appropriately-permitted landfill can be chosen. Further, if their waste is to be disposed at any landfill other than a landfill for non-hazardous waste, they should know that waste acceptance criteria (WAC) apply and that additional testing will be required to be able to meet Duty of Care requirements with respect to providing a reliable and adequate description of the waste. This information to support WAC testing would not be required if the waste were to be treated or disposed anywhere other than a landfill.

This knowledge and the implementation of related Duty of Care requirements, will support the safe and effective disposal of wastes.

Although many of the above requirements do not apply to householders, they nevertheless have a duty to take all reasonable measures to ensure that any household waste produced on their property is only transferred to an authorised person; where an 'authorised person' includes the local authority that provides the normal waste collection service. Under The Unauthorised Deposit of Waste (Fixed Penalties) Regulations 2016 householders in England, Wales and Scotland can be issued with a fixed penalty notice (fine) for the illegal deposit of waste/ fly-tipping.

In summary, the Duty of Care places specific responsibilities on all waste holders to ensure that when waste is managed from the point where it is first produced, through to the point where it is finally disposed or treated, that this is done in a way that prevents environmental pollution and harm to human health. For construction and related activities, the Site Waste Management Plan Code of Practice also provides best practice guidance on site wastes management and reinforces the need for compliance with Duty of Care requirements.

Should you require further information on hazardous waste controls in the UK then please contact Ken Westlake at:

• ken.westlake@waste-training.com
• 01159 821 175 (T)
• 07830 190 610 (M)

Hazardous Waste Management

The term 'hazardous waste' is defined within the Waste Framework Directive 2008/98/EC (WFD) as 'waste which displays one or more of the hazardous properties listed in Annex III'. Annex III to the WFD was replaced on 1 June 2015 by Commission Regulation 1357/2014. Amongst other changes, this regulation renamed hazardous properties H1 - H15 as HP1 - HP15 and introduced 'Persistent Organic Pollutants' (POPs) as a further property that could render a waste hazardous.

Hazardous wastes are identified in the European List of Wastes, contained in Commission Decision 2014/995/EU. The list comprises 20 chapters and describes wastes with reference to a 6-digit code in which a waste will be hazardous if it is marked in the list with an asterisk next to this six-digit code. As a consequence, it is possible for a waste to have hazardous properties, but to be classified in law as 'non-hazardous' because the entry in the list of wastes (having followed the correct procedure to find the correct 6-digit code) is not marked with an asterisk.

Once a waste has been determined to be 'hazardous', then specific controls will apply. For the UK, different regulations control hazardous wastes in England, Wales, Scotland and Northern Ireland and this summary document focuses on controls within England and Wales (Please contact WTS if you seek further information on controls in Scotland and Northern Ireland) The key requirements of the hazardous waste controls in England and Wales are:

1. To properly characterise the waste;

2. To use consignment notes when transferring waste;

3. To provide quarterly returns;

4. To ensure that hazardous wastes are not mixed with any other wastes; and

5. To keep records

In addition and in relation to Wales only, those who produce more than 500kg hazardous waste in any twelve-month period must register as a producer of hazardous waste with Natural Resources Wales (NRW).

The hazardous waste regulations do not apply to householders, but where hazardous waste, such as fluorescent tubes are separately collected at a household, they will only be treated as hazardous waste once they arrive at the facility that accepts those wastes, at which point, that facility becomes the 'producer' of the hazardous waste. For this to happen, the fluorescent tubes must be left for collection separately; in other words they not be 'separately collected' if the placed within the collection bin.

Looking at points 1-5 (above) in more detail:

Waste Characterisation

It is vitally important to characterise waste properly; if sending waste to landfill, for example, it is just as illegal to send a non-hazardous waste to a hazardous landfill, as it is to send a hazardous waste to a non-hazardous landfill; except in very specific circumstances, defaulting to a worst-case scenario and assuming that a waste is hazardous, to avoid analytical costs, is illegal. 

When characterising a waste, the Regulations require that all properties that render a waste hazardous are identified and therefore any analysis must be undertaken against this background. The process can be complicated, with the relevant guidance found within Agencies guidance 'WM3'. For those who are unfamiliar with the characterisation process, training will be required.

Use of Consignment Notes

Except in specific circumstances (See 'wastes with reduced reporting requirements'), the movement of hazardous wastes must be accompanied by a consignment note that provides information on the waste itself (especially its properties) and the parties involved in the movement. When transferring hazardous wastes, a strict procedure must be followed (N.B. controls in Norther Ireland and Scotland are different). This procedure requires that:

• before the consignment is removed the hazardous waste producer, or holder shall:
  • prepare a copy of the consignment note for each of the following: the hazardous waste producer or holder, where different from the consignor; the consignor; the carrier; and the consignee
  • complete Parts A and B on each copy, and
  • give every copy to the carrier
• the carrier shall complete Part C on each copy and give every copy to the consignor;
• the consignor shall
  • complete Part D on each copy
  • where the hazardous waste producer or holder is not the consignor, give one copy to that person
  • keep one copy, and
  • give every remaining copy to the carrier
• the carrier shall ensure that every copy which he has received
  • travels with the consignment, and
  • is given to the consignee on delivery of the consignment
• on receiving the consignment the consignee shall
  • complete Part E on both copies, and
  • give one copy to the carrier

Please note that WTS offer an e-learning, four-module course on consignment note completion (£90 excl. VAT). This can be found at http://www.waste-training.com/course/7

Where the following circumstances apply, 'Multiple collections' can offer a more cost-efficient hazardous waste collection service, especially for repeat movements of hazardous waste:

• the carrier collects more than one consignment of hazardous waste in the course of the journey
• each consignment is collected from different premises (none of which is a ship)
• all the premises from which a collection is made are in England, and
• all consignments collected are transported by that carrier in the course of the journey to the same consignee

In this case the procedure for consignment note use is different from that identified above and can be found on the gov.uk website.

Quarterly returns

The consignee (the person receiving the hazardous waste) is required to make quarterly returns to the regulator (The Environment Agency for England and Natural Resources Wales), providing specified information on each consignment that has been collected in the previous quarter. This return, which is made online, should be made before the end of the calendar month following the quarter end. A fee (e.g. £10 for standard single-use consignment notes for most, but not all, wastes) will be charged by the regulator for each consignment collected.

The consignee is also required to make a quarterly return to each producer from whom they have collected hazardous waste in the previous quarter, providing information specified within regulation. Where a consignee has collected only a small number of consignments in the previous quarter, this will often be done by sending a copy of the completed consignment note.

All consignors MUST ensure that they receive a quarterly return from each of their relevant hazardous waste management suppliers and keep these records on file. This will be an important element of proving Duty of Care compliance.

Ban on Mixing Wastes

No facility/ company that carries out the disposal or recovery of hazardous waste, or that produces, collects or transports hazardous waste, is allowed to mix hazardous waste with other types of waste including:

• a different category of hazardous waste,
• a non-hazardous waste,
• any other substance or material

In this case, discrete and separately-contained wastes can be consigned within the same container as long as they can be separated and treated separately upon receipt (e.g. at a waste management facility).

Record Keeping

Copies of consignment notes should be kept in chronological order on the premises that produced the waste, and otherwise copies of consignment notes should be kept for different periods of time according to the role of the holder, as follows (minimum period in brackets):

• producer/consignor (three years);
• carrier (one year);
• non-disposal waste management facility such as a transfer station ( five years);
• disposal facility such as incinerator and landfill (for the duration of the permit).

Should you require further information on hazardous waste controls in the UK then please contact Ken Westlake at:

ken.westlake@waste-training.com

01159 821 175 (T)

07830 190 610 (M)

Definition of Waste

Waste is defined within the Waste Framework Directive (WFD) as 'any substance or object that the holder discards, intends to discard or is required to discard'. The meaning of 'discard' applies to 'disposal' and 'recovery' operations and processes, and can be intentional or unintentional on the part of the holder. Whether a substance or object is waste is determined on a case by case basis and can be a complex matter although guidance on the definition of waste has been produced by DEFRA. Further guidance entitled 'Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste' has been produced by the European Commission. These guidance documents provide both generic information on the definition of waste, together with relevant case law.

In general and when considering waste issues, the term 'waste' must not be interpreted restrictively, but should be interpreted:

1. widely in light of all the circumstances;

2. having regard to the aims of the directive, eg to protect human health and the environment against the harmful effects of waste, and

3. having regard to the need to ensure the effectiveness of the directive is not undermined

Furthermore, whether or not a substance or object is waste depends on the factual circumstances and decisions must be taken on a case-by-case basis, whereby no single factor or indicator can be taken as conclusive.

From the above definition, for something to become waste it must first of all be discarded and term 'discard', is not defined in the WFD, and has a special meaning which is broader than the ordinary meaning 'to get rid of', for it relates to the conduct of the holder and the burden it places on the holder to deal with it responsibly.

The term 'discard' includes management at both disposal and recovery operations, although the fact that something may have been through a disposal or recovery operation does not necessarily mean that material will be 'waste'.

Some relevant definitions are provided below, along with other definitions found within the WFD: 'Recovery' is any operation which has the main result of waste serving a useful purpose by replacing non-waste materials that would otherwise have been used to fulfil a particular function. An example is incineration for energy recovery, or the recovery of energy from the anaerobic digestion of food wastes.

'Preparing for re-use' is the operation or process of checking, cleaning or repairing products that have previously been discarded so that they can be re-used without any other pre-processing, for example cleaning and re-filling printer cartridges that have been previously discarded by their owners.

'Recycling' is any operation by which waste is reprocessed into products, materials or substances, whether for its original or other purposes. This can include recycling pallets into chipboard, or waste plastic into wheelie bins.

'Disposal' is any operation which is not recovery or other options higher in the waste management hierarchy. It includes landfill and incineration without energy recovery.

Once something has become waste it is quite difficult for that material to cease to be waste in law and this can create difficulties in ensuring the safe and sustainable management of materials. However, the WFD allows for materials to cease to be waste when specified end-of-waste criteria apply, and according to Article 6 (1) and (2) of the Waste Framework Directive, a waste shall have ceased to be waste when it has undergone a recovery (including recycling) operation, and complies with specific criteria identified within Article 6 of the WFD, in particular that:

• the substance or object is commonly used for specific purposes;
• there is an existing market or demand for the substance or object;
• the use is lawful (substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products);
• the use will not lead to overall adverse environmental or human health impacts.

At a European level end-of-waste criteria have been agreed for priority waste streams including:

• iron, steel and aluminium scrap;
• glass cullet; and
• copper scrap.

Within the UK, and in order to assist end-of waste demonstrations, the Environment Agency has introduced guidance entitled 'Turn your waste into a new non-waste product or material', together within a supporting 'IsItWaste' tool.

The guidance helps to provide information on whether:

• the waste has been converted into a distinct and marketable product, in other words, that:
  • the waste has been turned into a completely new product. An example would be the manufacture of glass milk bottles from broken clear glass;
  • the new product is different from the original waste (in this case, minor changes to its composition may not be sufficient), such as when granulated HDPE is converted into pipework;
  • there is a genuine market for the material such that further use is guaranteed. In this case it would be helpful to have a contract for future guaranteed use. Where indefinite storage occurs the material is likely to remain waste.
• the processed substance can be used in exactly the same way as a non-waste; and
• the processed substance can be stored and used with no worse environmental effects when compared to the material it is intended to replace

In England, those wishing to turn waste into a non-waste material they must complete the IsItWaste tool and they can ask the Environment Agency for an opinion on the waste status of a specified material, for which a charge is made.

The IsItWaste tool holds a checklist which sets out the minimum information needed to begin a Definition of Waste assessment.

For certain materials, such as compost, processed fuel oil, biodiesel and flat glass, amongst others, quality protocols (QP) already exist and identify criteria that must be met if that material (e.g. compost) is to cease to be waste. Generally, these Quality Protocols:

• ensure the product made from waste does not pose an unacceptable risk to human health or the environment
• increase market confidence in the quality of products made from waste and their potential value, and
• encourage greater waste recycling and recovery

Further information on quality protocols can be found at the Gov.uk website.

Should you require further information on matters relating to the definition of waste then please contact Ken Westlake at:

ken.westlake@waste-training.com

01159 821 175 (T)

07830 190 610 (M)

Environmental Permitting

Control over facilities that manage waste is exercised in a number of different ways and in order of increasing environmental risk these are:

1. Low risk waste activities;

2. Exemptions (a) to environmental permitting;

3. Standard Rules permits (b)

4. Bespoke waste operation permits (c); and

5. Schedule 1 (Installation) (d) permits

a. Exemptions are for activities that don't need a permit. Many of these need to be registered, but most exemptions are free. The term 'exempt facility' is defined in regulation 5 of the 2016 environmental permitting Regulations, while Schedule 2 of the same sets out the procedures in relation to exempt facilities, including registration requirements.

b. Standard rules permits apply a set of fixed rules for common activities for which the environmental risk has already been assessed. Those facilities that can meet the generic risk criteria (e.g. many waste transfer stations, household waste recycling facilities and compost sites) are entitled to have a standard permit, for which fixed charges apply, but which will be lower than those for bespoke permits;

c. Bespoke permits are written for a specific activity/ site, based upon local and specific environmental risk factors. They take longer to process than standard permits so they tend to be more expensive. A bespoke permit will be required for a facility handling waste where that facility does not fall under 1, 2, 3 and 5 (above);

d. So called 'installations' are listed within Schedule 1 to the Regulations because they are seen as representing the greatest risk to the environment. They typically include waste facilities that handle very large annual tonnages, large landfill sites, waste incinerators and chemical processing plants, amongst (many) others.

Of these, only low risk waste activities are not covered by the environmental permitting regime, but in fact those activities listed as 'low risk activities' under the guidance will ultimately be listed as exemptions to the environmental permitting regime.

This regime recognises that some facilities could harm the environment or human health unless they are controlled, and the Regulations require operators to obtain permits and/or to register others as exempt, and provides for ongoing supervision by regulators. In general terms, the aim of the regime is to:

• protect the environment so that statutory and Government policy environmental targets and outcomes are achieved;
• deliver permitting and compliance with permits and certain environmental targets effectively and efficiently in a way that provides increased clarity and minimises the administrative burden on both the regulator and the operators;
• encourage regulators to promote best practice in the operation of facilities; and
• to fully implement European legislation.

The Environmental Permitting (England and Wales) Regulations 2016 provide a consolidated system of environmental permitting in England and Wales. They replace the Environmental Permitting (England and Wales) Regulations 2010, and transpose the provisions of 15 Directives which impose obligations required to be delivered through permits or capable of being delivered through permits. They allow for effective enforcement of controls on regulated waste facilities so that they do not cause pollution of the environment, nor harm to human health. Some of the key components are highlighted below.

Part 1 of the Regulations contains general provisions, especially relating to definition and interpretation.

Regulation 8 defines the term 'regulated facility' and regulation 12 requires every regulated facility to be operated under the authority of an environmental permit.

The combined classes of 'regulated facility' include (unless they are exempt or excluded) every installation, mobile plant, waste operation, mining waste operation, radioactive substances activity, water discharge activity, groundwater activity and flood risk activities, whether or not carried on as part of the operation of another regulated facility.

Part 2 sets out the procedures in relation to environmental permits.

Regulations 13 (grant of a permit), 20 (variation of a permit), 21 (transfer of a permit) and 25 (surrender of a permit), regulate permit applications, while Regulation 20 also provides for variation of a permit on the initiative of the regulator.

Regulation 17 allows more than one regulated facility on the same site, or with the same operator, to be authorised by the same permit in some circumstances, and Regulation 18 allows for the consolidation of separate permits, with Regulation 31 and Schedule 6 providing for appeals.

Part 3 provides for the discharge of functions by the regulator in relation to permits, where for example, Regulation 34 requires the regulator periodically to review permits and to inspect regulated facilities, with Regulation 35 and Schedules 7 to 25 requiring the regulator to exercise its functions so as to comply with the duties set out in those Schedules.

Within Part 4, Regulations 36 and 37 provide for enforcement notices (requiring compliance with a permit) and suspension notices (suspending the authorisation of the operation of a regulated facility), while Regulation 38 and 40 identify offences and defences, respectively.

Information relating to public registers is found within Part 5, and Part 6 confers powers on the regulator, Secretary of State and Welsh Ministers and imposes duties on the regulator. This Part includes, amongst others, powers for the regulator to prevent or remedy pollution and to recover associated costs from the operator (regulation 57).

Part 7 contains miscellaneous provisions, where by virtue of regulation 1(2), the provisions in Schedules 28 and 29 (revocations and consequential amendments) extend to England and Wales only.

The principal offences under the Regulations are:

• operating a regulated facility without a permit;
• causing or knowingly permitting a water discharge activity or groundwater activity without a permit; and
• failing to comply with a permit or an enforcement related notice.
• The permit application process can be very detailed and complex, and there is a wealth of guidance on how to apply / vary/ surrender etc. for the various types of permit. In 2018 it is the author's experience that even for simple, low risk waste activities, bespoke permits are seldom issued within 6 months of application.

Should you require further information on hazardous waste controls in the UK then please contact Ken Westlake at:

ken.westlake@waste-training.com

01159 821 175 (T)

07830 190 610 (M)