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28/04/2016

The Statutory Waste Duty of Care – a new updated Code of Practice

The waste duty of care obligation at section 34 of the Environmental Protection Act 1990 (“EPA”) will be familiar to many; it has been around for more than 25 years.  However, it is often not straightforward always to know what steps should be taken to comply.

The requirement at section 34 EPA is “to take all such reasonable measures” which might be applicable to those importing, producing, carrying, keeping, treating and disposing of waste to prevent contravention by other parties of section 33 EPA, which prohibits unauthorised or harmful deposits, treatment or disposal of waste (eg. fly-tipped or unlawfully burned or landfilled).

The waste duty of care requires steps to be taken to prevent the breach by others of their environmental permit, which might, for example, permit the conditional disposal or treatment of waste.

The waste duty of care also requires that those responsible prevent the escape of waste and make sure that waste is transferred to an appropriate authorised person.

Over the years a number of questions have arisen about how far the duty of care goes.  The statutory Code of Practice (“CoP”) to guide those who may be obligated has recently been reissued (March 2016) by DEFRA and is now much snappier and easy-to-read.  The version that can be printed now runs to just 16 sides of A4.  If you are affected by the waste duty of care it is worth not just printing out and reading those 16 pages but also having an electronic copy readily accessible. (The reason why DEFRA has been able to make the print copy so short, particularly compared to previous editions of the CoP, is that links are embedded to other critical issues, such as the legal definition of what waste is, exactly what waste is exempted from the duty of care and so on).

The updated CoP sets out to whom the duty of care does and does not apply.  One question that we often get asked is the extent to which householders have a waste duty of care.  Given that they are usually served by a local authority waste collection, their duty of care is limited but there are some exceptions - for example, when builders or gardeners carry out work, householders have a duty to make sure that the waste they produce does not end up inappropriately disposed of or fly-tipped. This is now clearly set out at page 5 of the new CoP.

Another question which often arises is how far businesses which regularly consign waste to contractors have an obligation to check up on them. This is discussed at page 6 of the CoP.  There is updated guidance which has removed the old CoP suggestion that on occasion businesses might secretly follow the contractor’s vehicle to make sure that the contractor takes it to the correct place for recycling/disposal.  Now it seems sufficient to check the paperwork and online records and to stop dealing with the contractor if any suspicions arise.

Compliance with the CoP does not mean that those in the waste chain necessarily have complied with their duty of care obligations but it goes a long way to proving that they have.  It is why the CoP is so important and worth reading in this newer, shorter version by those in the waste sector and those who have obligations under section 34.  

The Environmental Services Association, representing the waste sector, clearly sees compliance with the duty of care as a major issue.  Its April 2016 campaign “The Right Waste, Right Place” is aimed at ensuring full awareness of and compliance with the obligation, especially by SMEs.  It is particularly concerned about growing fly-tipping with the high cost of clean-up, misery for landowners and inevitable reflection on the sector (even if undeserved).

A link tothe updated CoP is below.

https://www.gov.uk/government/publications/waste-duty-of-care-code-of-practice

Please contact  rebecca.carriage@howespercival.com for more information on this subject, or to ask a question.

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