ENVIRONMENTAL PROTECTION ACT 1990 PART II: THE DUTY OF CARE, AS AMENDED

Section 34 of the Environmental Protection Act (EPA) 1990 imposes a ‘duty of care’ on anyone who produces, imports, carries, keeps, treats or disposes of ‘controlled’ wastes, or as a broker has control over such waste.

Controlled waste (see definition below) must only be transferred to authorised persons (e.g. registered waste carrier or licensed waste manager) and such transfers must be accompanied by ‘transfer note’ documentation. These regulations along with the Waste (England and Wales) Regulations 2011 (Part 9) in England and Wales and the Environmental Protection (Duty of Care) Regulations 1991 in Scotland, set out the requirements for a mandatory system of ‘transfer notes’ and record-keeping requirements including: the details to be completed on the transfer note - including appropriate classification under the European Waste Catalogue; the requirement for transferors and transferees to retain the documentation for two years after the transfer; and the requirement to furnish copies to the regulator if required.

It is a criminal offence to treat, keep or dispose of controlled waste except under and in accordance with a waste management licence issued by the Environment Agency or SEPA. Activities that are exempt include “the temporary storage of waste, pending its collection, on the site where it is produced”. It is however, a criminal offence to treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health, which applies irrespective of the need for a waste management licence.

All those who deal with controlled waste are required to take reasonable and appropriate steps in relation to it; otherwise they commit a criminal offence. This includes: storing and packaging waste properly; describing it clearly; dealing only with an authorised carrier; providing the carrier with an accurate transfer note relating to the waste, and; taking appropriate steps to ensure that the waste is disposed of properly.

In summary, the four key requirements of this legislation are:

• Keep waste so as to prevent its escape into the environment;
• Transfer waste to a registered carrier;
• Keep records and transfer notes; and
• Check that others in the waste management chain abide by the Duty of Care (audit waste management facilities).

Controlled waste is defined in the Controlled Waste Regulations 1992 (in Scotland), Controlled Waste (England and Wales) Regulations 2012 (E+W) and Controlled Waste (Duty of Care) Regulations (Northern Ireland) 2002 as household, industrial and commercial, including materials destined for recycling, clinical and construction waste. 

For the purposes of this Act, the definition of waste was amended by the Environment Act 1995 Part V Schedule 22, Regulation 88.

The Waste (England and Wales) Regulations 2011 have amended the definition of 'waste' to include anything within the definition given in Article 3(1) of the revised Waste Framework Directive (2008/98/EC). The Waste (Scotland) Regulations 2011 amends this Act to introduce the requirement for Scottish waste producers to consider the waste hierarchy in their disposal arrangements, as per the Waste Framework Directive (2008/98/EC).

Applicability

Fabricated Examples produce both hazardous and non-hazardous waste. The waste handling areas observed during the brief site tour were generally well segregated and stored within clearly designated areas and on-site personnel appeared to show a good understanding with respect to waste aspects. Housekeeping at the site was also noted to be to a high standard. EIP 3 outline the plan at Fabricated Examples to implement systems for collecting data to monitor and measure waste production.

The control of waste movements and the selection of disposal / recovery are governed by procedures (EWI 2) in the company’s ISO14001 accredited environmental management system. The procedures ensure that all non-hazardous waste movements are accompanied by a transfer note and hazardous wastes are accompanied by a consignment note, providing a unique identity for all waste transactions. 

Although waste document was not inspected during the site visit, site management stated that transfer notes and consignment notes are retained onsite for the designated time specified in the amended regulations and are available for inspection by the regulator.

Fabricated Examples use the waste contractor Waste Ltd for the all movements of waste on and off site. Fabricated Examples Ltd ensure that the contractor holds all appropriate licenses and competencies to deal with the waste streams produced at the site through regular auditing.

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