Everyone who produces waste – and that includes the business community, public bodies and charities – has a “duty of care” over that waste.
On 11 March Defra and the Environment Agency published an updated Code of Practice on how to comply with this legal duty of care (also known as the “Section 34 duty” because it is contained in section 34 of the Environmental Protection Act 1990).
This follows on from a consultation carried out during 2015 by the UK and Welsh Governments that evaluated how the previous version of the Code might be improved. Following the principle of “smarter” regulation, the new Code is now much more succinct, at 13 pages (compared to 66). The Code has also been updated to reflect some important legislative changes that have occurred since the 1996 version, for example the ability to use edoc (electronic Waste Transfer Notes) and the requirement to consider the Waste Hierarchy. Please note that this Code only applies in England and Wales (there are separate Codes applicable in Scotland and Northern Ireland).
There are serious consequences of breaching the Section 34 duty of care. It is a criminal offence to do so and organisations risk Environment Agency investigations and enforcement. However, the value of the Duty of Care Code of Practice is that a person or organisation that follows the Code of Practice can use this as evidence to demonstrate that the duty of care has been discharged. The categories of waste that are covered by the Code are perhaps wider than people often realise, as it includes household waste (as well as industrial and commercial waste).
The new Code is therefore of interest not just to the waste industry (waste producers, waste managers, waste carriers, waste brokers and waste dealers) but also to every person or organisation that produces waste.
The aim of the new Code is to offer clear and practical guidance to producers and holders of waste on how to comply with the duty of care. In summary it means carrying out appropriate checks of contractors that handle waste, and making sure they hold the appropriate authority (i.e. a valid permit or registered exemption from the Environment Agency). It also involves keeping records of all such checks, and accurately documenting the transfer of waste (the waste type, quantity, who produced it, and who is collecting it). The overall objective is to ensure the safe management of waste from the point it is produced up until it is treated, recovered or ultimately disposed of. It is hoped that the new Code will improve awareness of the duty of care obligation and encourage more vigilance, avoiding the situation of inadvertently handing waste to unauthorised persons who later dispose of the waste illegally.
Burges Salmon has significant experience advising both the waste industry and the wider business community on compliance with and enforcement of waste management regulation. If you would like to discuss further how the duty of care applies to you, please contact Michael Barlow or your usual Burges Salmon contact.