ENVIROMANNEWS
By Marco Muia aka “Enviroman”
Enviroman is 10!
As the Duty of Care was the subject of the first article I wrote for ‘The Skip’ in December 2005 I thought it would be useful to review what’s current and on the horizon for the Duty of Care and what has changed significantly in the last 10 years. The main requirements for the content of transfer notes and the scope of the duty remain the same as the law has not changed significantly. Transfer notes must now contain the detail prescribed in Regulation 35 of the Waste (England and Wales) Regulations 2011 and be retained in paper or electronic format, which I covered in issue 77 and provided a summary checklist to assess your transfer notes for compliance. The major change pending is that the
existing 66 page Duty of Care code of practice is to be replaced by an 11 page code of practice for England and Wales, the draft of which was consulted on in July this year and is expected to be released soon. The key change for me in the draft
code is the emphasis on a more thorough process of checking up on the final destination of the waste and placing more responsibility on the producer or holder. The old code stated “Most waste transfers require
no further action from the person transferring waste after the waste has been transferred. A producer is under no specific duty to audit his waste’s final destination. However, undertaking such an audit and subsequent periodic site visits would be a prudent means of protecting his position by being able to demonstrate the steps he had taken to prevent illegal treatment of his waste.” This fairly woolly statement could be
interpreted to mean that checking up on a site once at the start of a contract is satisfactory, if at all. Regulators have hardly ever taken action where such audits have not taken place if the transfer documentation was well completed and copies of the permit or
exemption have been obtained. In other words a desk based check was sufficient to comply with the code in the majority of cases. The draft code now goes further than
simple checks, stating as follows: “When you transfer waste to another
waste holder you still have a responsibility to take all reasonable steps to ensure that the waste is managed correctly throughout its complete journey to disposal or recovery.” “If you suspect someone does not
have an appropriate permit or exemption, or that they are breaching a condition of their permit or exemption, you must not give them your waste or take waste from them. You should report this to the relevant environmental regulator.” This new duty to report doesn’t
appear to be backed by the legislation and I would question what the regulator would do if you didn’t report someone else for being in breach of their permit or exemption as permitting can be very complex. The answer is probably nothing! It would be better in the circumstances to tell the person they need to consult the regulator as third parties are not always best placed to say which the correct exemption is or permit for any given activity or to even assess compliance at someone else’s site. Most people are unlikely to report a site if they are unsure and they will not report a site unless there are means of confidentially doing so. Reporting whether sites are breaching conditions is difficult as the most recent CAR form for a site inspection could be 6-12 months old and it is impractical to carry out what amounts to a regulatory inspection to confirm compliance before taking waste to a site, especially for producers who often struggle with producing a transfer note. Thankfully the season ticket
procedure can still be used for regular
transfers of the same type of non- hazardous waste with the same carrier. The draft code now allows for several sites serviced by the same carrier with the same types of waste collected to be listed in a schedule to the season ticket. This could apply to companies with more than one transfer station using the same carrier to collect their wood, for example, or producers using one carrier to deal with all of their waste. There is no absolute requirement to use edoc online and season tickets can still be paper based or electronic. The importance of season tickets
cannot be understated as regulators can serve notices requesting copies of waste transfer notes or simply inspect them during a site visit. Rather than be faced with a request to produce all notes for outgoing waste from 1/10/14 to 30/09/15, for example, which could be many thousands of tickets, you would only have to produce a handful of season tickets. There will individual delivery or collection tickets for each load which can be made available but are not required to comply with the notice or request. The use of European Waste Catalogue
(EWC) codes is required by most permits and we could be forgiven for thinking since their use became mandatory in 2002 that everyone is familiar with their use. Given that waste producers have the same responsibility to accurately describe their waste using a written description and EWC code, nothing could be further from the truth. There is no guidance on coding since the List of Wastes guidance was axed and this revised code was a perfect opportunity to resolve the many issues that arise on a weekly basis with regard to waste coding. So the new code will be shorter but will
place more responsibility on all parties. If these requirements come in unchanged it will mean more public register checks. I urge everyone to request copies of permits and CAR forms from their regulator as best practice in any event.
Marco Muia BSc (Hons) MSc MCIWM is the Director of Oaktree Environmental Limited. He specialises in all aspects of waste planning and regulation consultancy. He also holds the level 4 COTCs for Hazardous Waste Treatment and Transfer. You can contact Marco on 01606 558833 if you have any questions about this article or e-mail him at
marco@oaktree-environmental.co.uk and follow him on Twitter @wastechat.
18 SHM December 2015/January 2016 Issue 121 Register your email for news and updates at
www.skiphiremagazine.co.uk
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