Duty of care: code of practice for managing controlled waste

1 Introduction

Section 34 of the Environmental Protection Act 1990 (as amended) lays out a number of duties with respect to the management of waste. Waste must be managed correctly by storing it properly, only transferring it to the appropriate persons and ensuring that when it is transferred it is sufficiently well described to enable its safe recovery or disposal without harming the environment.

The Waste (Scotland) Regulations 2012 amended Section 34 to implement a number of actions in the Scottish Government's Zero Waste Plan. Under these amendments, holders of waste, including producers, have a duty to take reasonable steps to increase the quantity and quality of recyclable materials.

This "Duty of Care: A Code of Practice" (the "Code") explains these duties which apply to anyone who produces, keeps, imports or manages controlled waste in Scotland. The Code is made under section 34(7) of the Environmental Protection Act 1990 (as amended) and replaces all previous versions applicable in Scotland. This Code applies in Scotland only.

Under section 34(10) of the 1990 Act, this Code is admissible as evidence in court and the court shall take it into account in determining any questions to which it appears to be relevant. The intention is that the Code will assist the courts, when hearing cases under Section 34 of the 1990 Act, in determining whether persons subject to the duty took reasonable measures to comply with it.

Revised Waste Framework Directive

The EU Waste Framework Directive (2008/98/ EC) came into force on 12 December 2010 and provides the overarching policy and legislative framework for the management of waste, including a common definition of waste.

In contrast to earlier Directives on waste, which focused on mitigating the environmental impacts of waste management and disposal, the new Directive regards waste as a valuable resource which can provide raw materials for sustainable growth in a low carbon economy. It aims to transform EU member states into "recycling societies", moving away from a linear model of consumption and disposal towards a cyclical model where material productivity is optimised.

To achieve this, the Directive has at its core, a waste hierarchy, setting out a priority order of how waste should be managed. With regard to the objective of conserving resources and reducing the environmental and societal costs of primary extraction, priority is given to prevention of waste and its potential harmful effects and secondly, to the recovery of waste by means of re-use or recycling. To deliver this, Article 11 requires Member States to establish separate collections for the key recyclable materials and promote 'high quality' recycling.

In addition, the Directive contains requirements to ensure the collection, transport, recovery and disposal of waste is carried out without endangering human health or causing harm to the environment. This includes permitting, registration and inspection requirements.

Zero Waste Plan

Average commodity prices are higher today than at any time in the past century. This trend looks set to continue as increasing global population drives increasing demand for limited resources. For some materials such as copper, indium, and rare earth elements, severe supply chain risks are already emerging.

Reliable access to high quality resources is essential for our economy to prosper. This means finding new and innovative ways to conserve resources and to cycle materials efficiently back into supply chains.

A zero waste society is one where goods and materials are continually cycled to support the sustainable growth of the Scottish economy, and waste is progressively designed out.

This is about much more than simply getting better at end of life recycling. The less a product has to be changed in reuse, refurbishment and remanufacturing and the faster it returns to use, the higher the potential savings on the shares of material, labour, energy, and capital embedded in the product and on the associated mix of environmental impacts.

A critical step in this journey was the introduction of the Waste (Scotland) Regulations 2012. By requiring separate collection of key recyclable materials, these regulations support the recycling loops of this 'circular' model and will help deliver the high quality materials and market certainty needed to support investment in the next generation of recycling and reprocessing facilities in Scotland.

'High Quality Recycling'

Section 34(2L) requires that all waste holders take "reasonable steps to promote high quality recycling". Evidence shows there are greater environmental benefits to closed loop recycling where a product is used, discarded, captured, and then the component materials recycled into a new product of similar functionality which can itself be used, discarded and captured, to be recycled again, continuously cycling the material resource though the supply chain. Examples include;

• the use of recovered glass cullet in re-melt applications to create new glass products rather than for aggregate in construction;
• the use of recovered plastic to produce, for example, new food and drinks containers rather than construction products;
• the use of recovered paper for the production of new paper products rather than other uses such as animal bedding and insulation.

These closed loop applications represent the Scottish Government's interpretation of 'high quality' recycling and the design and operation of waste management systems must prioritise these preferred outcomes. The Waste Hierarchy Guidance provides further details for a range of common recyclable materials and the evidence base.

Generally speaking, these 'high quality' applications require high quality materials in order to be viable. Supply chains, from producer onwards, must work together to maximise the production of high quality material capable of meeting the standards required by those that reprocess materials in 'high quality' applications.

This Code should be read in conjunction with the waste hierarchy guidance. Together they describe the priority outcomes for recycling in Scotland, what is meant by 'high quality' recycling with respect to a range of common waste streams and provide practical advice on how it can be delivered.

Tackling Waste Crime

Deliberate law breaking by people who fail to manage, transport and dispose of waste correctly to cut costs does occur. SEPA is working to actively identify and deal with illegal operators with a particular focus on illegal waste sites, illegal exports and large scale dumping. Not dealing with waste legally can;

• cause serious damage to the environment and pose risks to human health, for example, illegal burning produces toxic fumes;
• create problems for local communities from noise and nuisance and for communities abroad through illegal exports of non-recyclable waste;
• be bad for business, as illegal operators undercut legitimate waste companies.

Waste crime is a serious offence with tough penalties. This Code of Practice provides guidance on how to deal with your waste responsibly, avoid illegal operators and reduce the risk of action being taken against you.

Whether you are a business, local authority or householder you must ensure you know where your waste goes and that it is managed appropriately. If you don't manage your waste correctly you risk being prosecuted and fined.

How to use this Code of Practice

This code covers the Duty of Care relevant to all aspects of waste management. For ease of reference, the sections have been determined by roles - producer, collector etc. Some readers may need to read more than one section of the guidance, depending on their role within Duty of Care. For example, if you are a waste manager who also arranges the export of waste, you will need to read the sections on manager and exporter responsibilities.

Householders also have some, albeit limited, obligations under the Duty of Care outlined in Chapter 9.

Links to further advice, guidance and support are provided in Appendix 2.