1. What does compliance look like?
Duty of Care
What does compliance look like?
Sarah Drewery
September 2019
Introduce self.
EA fully endorse the RWRP campaign and we are very grateful to The Environmental Resource Forum for sponsoring this seminar today.

2. Background Been around a long time – 27years! EPA90
It is the glue that binds almost everything in waste management
Addresses illegal activity
Reduces harm to human health and environment
Does the right thing with waste
Waste resource/hierarchy
There is no set of duty of care ‘regulations’ as such, the Obligations under the duty of care go right back to s34 of the Environmental Protection Act 1990 and they have been amended more recently in the 2011 regulations.
The Duty underpins almost everything in managing waste and involves everyone in the waste management chain from waste producer to disposer, hence it is the ‘glue’ which binds waste regimes together to ensure waste is managed properly and legally. For example it underpins, hazardous waste, waste permitting, imports and exports of waste.
It was introduced to address illegal activity and in particular, issues around the management of construction and demolition waste – and there are still many issues arising in this sector
However, as I mentioned Duty of Care has been updated more recently to apply the waste hierarchy, so that waste is viewed more as a resource (we still have a long way to go as a society in this respect!).

3. Obligations on ALL holders of Waste
Section 34 (1) of EPA90
prevent any contravention by any other person of s33 [Permits or Exemptions]
to prevent any contravention by any other person of regulation 12 of the Environmental Permitting Regulations 2010 or of a condition of a permit granted under those Regulations [Performance]
prevent the escape of waste from his control or that of any other person
First of all I want to mention the obligations of the duty that apply to all holders of waste. These are the obligations set out in section 34 and this slide and the next slide you will doubtless see again later in other presentations .
The Act says that all holders of waste must prevent any contravention by any other person of section 33 (which relates to unauthorised deposit of waste). In addition they must prevent any contravention of Regulation 12 of the Environmental Permitting regs (i.e. without a relevant permit or exemption or in breach of a permit) and they must prevent the escape of waste from control. Of particular importance here are the words “by any other person” as it means that your actions must not lead someone else into breaching section 33 or Regulation 12 or result in them spilling waste all over the highway etc.

4. Obligations on transfer
a) Only transfer to an ‘Authorised person’
b) Ensure [adequate] written description of the waste on transfer (Edoc, CWTN or Waste Information)
Not just these 2
obligations!
There are additional obligations arising out of regulations that relate to the transfer of waste between two parties. Firstly they require that you must only transfer waste to an “authorised person” (that would generally be a registered waste carrier or the operator of a site with an appropriate compliant waste permit or exemption), And also, on the transfer to ensure a written description of the waste is handed over and a record made of specified information. For non-hazardous wastes the description/written information is made on a Waste Transfer Note and for Hazardous wastes it is made on a Hazardous Waste Consignment Note.
As the previous slide showed these obligations relating to the transfer of waste are clearly NOT the only Duty of Care Obligations that apply.
Regrettably, however, it is a commonly held belief, particularly amongst waste carriers and contractors, that to comply people in the waste chain only need to do these two things.
It is wrong!!!
The rest of the slides below will go through everything you should be doing to comply……..

5. NOT THIS How does it impact me? Know your waste Apply the hierarchy
Know who deals with your waste
Know where your waste goes
Audit contractors
In simplistic terms this is what you need to do.
If you are a waste Producer it is you who knows your waste best.
If you are a contractor/sub contractor you are likely to be the waste ‘producer’ although working on behalf of a principle contractor.
You need to apply the waste hierarchy and then others down the waste chain should satisfy themselves that you as producer have applied waste hierarchy thinking. There is government guidance on this.
There is also some simple guidance available to ensure you can check where your waste is going, whilst the RWRP campaign and website is there to provide more simple practical advice.
The waste chain these days is often quite complicated with waste brokers being used by some producers. The point about the Duty of Care is that you should all be checking both forwards and backwards to ensure that waste is managed appropriately. In our regulation of waste the EA is also starting to take more of a waste stream approach by looking up the waste chain at waste producers as well as down the waste chain through sometimes numerous intermediaries before final destination and trying to pinpoint where exactly things have gone wrong.
(Click mouse again) What you are ensuring you avoid, if you take this approach, is illegal waste sites like this one found in Lancashire. I can happily report that we did managed to get all of this waste cleared from this site and taken to legal sites. However it was at a huge cost to the parties concerned. You do not want any of this waste to be yours!

6. Know your wastes Producers understand your waste arisings
Give a description of the origin and type(s)
Give correct EWC code(s)
Sample and assess as necessary
Description should have sufficient detail to ensure others can handle the waste safely and legally
Understanding your waste arisings and correctly describing your waste is the first essential step. Many wastes are mis-described either deliberately or simply because of attitudes – for example “muck-away” is still a common description given for excavation waste. Clearly this is NOT a valid waste description!
The EA even recently, identified that over 90% of waste transfer notes were incorrectly completed and the waste description was one of the main issues.
As a producer you need to ensure the description of the waste is detailed and accurate. Waste carriers – you should not be accepting any wastes where the description you’ve been given is not adequate. You should be challenging producers who have not given you sufficient details. Waste Managers – you should not be accepting any waste unless you are sure from the description provided that it is permitted by the conditions of your environmental permit!
And when waste is in your possession you should ensure that it is stored, handled and transported appropriately so that it can not escape and cause any harm to the environment or human health.

7. Assess and code
Guidance on the classification and assessment of waste Technical Guidance WM3 (1st ed. 2015)
For guidance on assessing and coding waste you should refer to WM3. On your transfer note you need to give a description of the origin and type of waste (and simple terms like “mixed construction waste” are not adequate) and you should give the correct EWC code or codes. There are some useful examples in Appendix A of WM3 to help you with coding, including for mixed wastes.

8. How to classify Appendix A of WM3
The list of waste has three types of entries
Absolute hazardous (AH)
Absolute non-hazardous (AN)
Mirror hazardous / Mirror non-hazardous - assessment required!!
I will admit that classifying correctly using the List of Waste (aka EWC codes) is not easy but our WM3 guidance Appendix A is very helpful.
In Appendix A you will see this list of 20 chapters. The green ones ( 1 to 12 and 17 to 20) are producing process chapters, the orange ones (13, 14, and 15) are type of waste chapters, and the pink one (16) is the ‘anything else’ chapter. The subchapters tend to be a specific sub-type of process in process chapters, or a specific sub-type of waste in the waste type chapters. It’s important that you look at all the chapters before you decide which code fits best and important that you read the headings properly. This sheet was produced to help you navigate the list…so if you are using it you are doing the right thing.
You should also follow the legal procedure for classifying which is detailed in Appendix A- which requires you to consider certain chapters and certain codes before others.
The list of waste has three types of entries
Hazardous – waste that is legally hazardous
Non hazardous, - waste that is legally non-hazardous
Potentially hazardous or non-hazardous – waste that can be either, and you have to do further work to work out which
The latter are called ‘mirror entries’ because
There are normally two opposite entries that have to be considered
One hazardous, one non-hazardous
To make it easier to use, in WM3 we colour code them as shown by the colours shown here, so
Red – absolute hazardous (AH) – these are the wastes that are legally hazardous, always
Black – absolute non-hazardous (AN) – these are the wastes that are legally non-hazardous, always
Blue/green – mirror hazardous and non-hazardous – these are the wastes that can be either way and you have to work out which by assessing the hazardous properties of the waste. This is where we think a lot of mis-description is happening. Recently we took samples of trommel fines from 5 non-hazardous and inert waste treatment sites in Yorkshire all of which had been coded the non-hazardous mirror code The results indicated that 3 out of the 5 were actually hazardous! So, the waste management companies amongst you be warned – we are going to be sampling some of your trommel fines soon!!

9. Apply the Waste Hierarchy
Do you need to produce it?
Can you reuse it?
Can you recycle it?
Can it be recovered?
Can it be used to produce energy/heat?
ONLY ONCE you have explored these it may have to go for disposal
Reduces your material costs
Decreases storage requirements
Decreases Waste costs
Improves the environment
Reduces resource depletion
I think everyone will be familiar with the waste hierarchy by now – your children probably know about it as well! You must This should be looked on as an opportunity for businesses to use waste more sustainably and to reduce costs and materials.
I expect other speakers will go into more detail on this so

10. Who is taking your waste?
Registered Carrier?
Check that all contractors collecting are registered
You need to know who is taking your waste and check up on them. The EA has duty of provide public registers and you can look up here whether your carrier is registered. You can also phone our customer contact centre.

12. OR NOT…! Where is it going?
Is the carrier taking your waste to a “legal” site, permitted or exempt?
OR NOT…!
In the same vein as checking for authorised waste carriers, waste holders/producers should know where their waste is going and that the person or company has the relevant permit or authorisation in place to accept and handle the waste legally.
You can carry out DOC checks and demonstrate compliance in a couple of ways:
1. Ask them for evidence of their authorisation (copy of permit/exemption/other) and applicable permit number.
2. Use the .gov.uk public register to check any evidence or information they provide
Ultimately the expectation is that holders in the waste chain can demonstrate what checks have been made, what records and evidence they have to demonstrate they’ve taken reasonable steps to ensure waste has been transferred to authorised persons and that they are operating within their authorisation.
And remembering what I said previously about checks forward and backwards, waste management site operators should be checking carriers using their site are registered in the correct tier.
It is worth pointing out here I think that the EA is NOT the regulator for duty of care - Duty of Care is essentially self policing legislation – everyone in the waste chain has their part to play in ensuring that others in the waste chain are complying with their obligations. And you should be reporting to the EA any unregistered carriers or other illegal practice or suspicion of illegal practice that you come across.

13. The EA have public registers in relation to registered waste exemptions and environmental permits – waste operations and installations. You can search on the permit holder name or their permit number or locational searches – I find postcode the easiest to track a permit down. The information that is brought up will just include basic details but this will then allow you request a copy of a specific site permit so you can check the site is permitted to accept your type of waste.

14. DON’T LIKE IT, DON’T USE IT
VISIT THEM!!!!
Check out
Can they take your wastes?
What do they do with them?
ask to see evidence and permits etc
Are you happy with the site?
Are they happy to see you?
Are they compliant with their permit?
ask your Local Environment Agency office
DON’T LIKE IT, DON’T USE IT
Of course you can also check out the sites taking your waste yourself. Some of the larger companies and contractors, and those who are Ambassadors to the RWRP programme apply some of this thinking and practice.
Shirley Henderson from the Environmental Resource Forum based in this area of Furness will be talking more about this later.
If an operator is compliant and has nothing to hide then they should welcome this approach.
Environmental permits and EA site inspection reports are public register documents so you can also ask to see these or ask us if a site is compliant with their permit.

15. Cradle to Grave Know your wastes Understand options
Apply the hierarchy
Follow your wastes to FINAL destination
Remove the illegitimate operators
Help reduce the burden on the environment and ultimately
REDUCE COSTS TO YOUR INDUSTRY
To summarise quickly then – everyone in the waste chain needs to take a cradle to grave approach to your wastes. You need to know your wastes, and your options for dealing with them, apply the waste hierarchy, check up on those further down the line to ensure your waste reaches the appropriate legal final destination and help remove illegitimate carriers and operators.