Duty of care code of practice for managing controlled waste (consultation draft)

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.

Holders of waste, including producers, also have a duty to take reasonable steps to increase the quantity and quality of recyclable materials.

This “Duty of Care: Code of Practice for managing controlled waste” (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.

1.1 Scottish Government Circular Economy and Waste Route Map to 2030

The Scottish Government’s Circular Economy & Waste Route Map, published in December 2024, outlines actions for the delivery of Scotland’s circular economy and more sustainable resource use up to 2030. The direction and actions set out in the Route Map are complemented by the new powers in the Circular Economy (Scotland) Act 2024 (“the CE Act”), and in some places are dependent on these powers.

Measures in this Route Map are grouped under four strategic aims, which reflect the span of the waste hierarchy:

1: Reduce and reuse

2: Modernise recycling

3: Decarbonise disposal

4: Strengthen the circular economy

The waste hierarchy should be considered in the following order, from most to least preferable;

1) Prevention, if you can’t prevent then

2) Prepare for reuse, if you can’t prepare for reuse then

3) Recycle, if you can’t recycle then

4) Recover other value (e.g. energy), if you can’t recover value then

5) Disposal, using landfill only if no alternative is available.

1.2 Draft Circular Economy and Strategy

The Route Map is complemented by provisions in the CE Act. The CE Act establishes the legislative framework to support Scotland’s transition to a zero waste and circular economy including requiring that Scottish Ministers prepare a circular economy strategy.

Under the CE Act, Ministers are required to develop a circular economy strategy. This is currently being consulted on (Draft circular economy strategy: consultation - gov.scot). The strategy sets out the rationale and benefits of a more circular economy within the wider economic framework and describes our overall vision to 2045 and the outcomes that we are working towards. It builds on the foundations laid by the Route Map but takes a longer lens to 2045 in line with our Net Zero goals and places the circular economy within the broader economic context.

This Code supports realisation of the vision and outcomes set out in the draft strategy by explaining the duties with respect to the management of waste in order to enhance the circular economy and protect the environment.

1.3 Assimilated Law

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

The Directive was implemented in Scotland by a range of legislation including by way of amendments to the 1990 Act, to the environmental permitting regime and producer responsibility schemes for waste materials such as packaging. Notwithstanding EU Exit, the Directive remains of relevance to the law in relation to waste in Scotland, with continued alignment to the majority of its provisions.

The Directive regards waste as a valuable resource which can provide raw materials for sustainable growth in a low carbon economy. Fundamental to this is the waste hierarchy which sets out a priority order of how waste should be managed. 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.

Separate collections for recyclable materials and the promotion of ‘high quality’ recycling are key to delivering this, along with 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 environmental authorisation and regulation requirements along with the duty of care obligations in section 34 of the 1990 Act.

1.4 How to use this Code of Practice

This Code of Practice provides guidance on how to deal with your waste responsibly, avoid illegal operators and reduce the risk of enforcement 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.

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 Section 7.

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

1.5 Enforcement

SEPA and Local Authorities are responsible for enforcing compliance with the Duty of Care. Breaches of the duties imposed by subsections (1), (2), (2A), (2E), (2F), (2I), (2K) or (2L) are offences under section 34(6) of the 1990 Act and this Code of Practice is admissible in evidence in any proceedings.