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

4. Your Obligations as a Waste Manager

This section offers guidance to any person involved in the reuse, recycling, recovery, treatment and disposal of waste. Waste managers include operators of transfer stations, sorting facilities, treatment sites, incineration facilities and landfills.

What are my responsibilities?

As a waste manager, how you manage the waste when it is in your possession can have an impact on the way it will be subsequently managed by others. You have a duty to take all reasonable measures to comply with the duties in Section 34 whilst the waste is in your possession and when you transfer your waste to somebody else. You need to satisfy yourself that you can accept the waste and manage it in an appropriate way.

As a waste manager, you must:

• Apply the waste hierarchy as a priority order to the management of your waste and in a way which promotes high quality recycling.
• Do not mix recyclable waste with other waste in a manner which may hamper further recycling.
• Ensure that you hold the appropriate environmental permit or registration which allows you to accept and manage the waste at your site.
• Manage waste safely without causing pollution of the environment or harm to human health, in accordance with the conditions of your environmental permit or registration.
• Ensure that the transfer of waste both into and out of your site is covered by a waste transfer note including and adequate description of the waste and signatures of those transferring the waste to you or receiving waste from you. Ensure that the description of the waste you receive is accurate and contains all the information necessary for safe handling, treatment, recovery or disposal.

This means that, in addition to complying with the conditioned of your environmental permit, you must take the following steps:

4.1 Step 1 – Apply the waste hierarchy and maintain recyclate quality

You must take all reasonable steps to apply the waste hierarchy as a priority order to the management of your waste and promote ‘high quality’ recycling. The Waste Hierarchy Guidance describes the order for a range of common waste streams and further advice on how to apply it. You must ensure that any recycling services you manage are operated in a manner support the priority outcomes.

It is it is the duty of waste producers to take all reasonable steps to present at least the following key dry recyclables for separate collection;

• metals;
• glass;
• plastics, including plastic film [from 31 March 2027];
• paper; and
• card (including cardboard).

However, there will still be a residual waste stream that requires proper management. As a waste manager, you may manage both recycling operations and residual waste recovery and disposal operations.

What if I am handling dry recyclables?

If you are handling source segregated or co-mingled dry recyclables, you must manage them in a way which prioritises the ‘high quality’ recycling outcomes as set out in the Waste Hierarchy Guidance. This means preventing them from being mixed with other waste types to the extent that it would hamper further recycling.

You cannot mix dry recyclables with any waste which cannot be recycled or would significantly reduce the quality of the material. For example, dry recyclables such as paper and plastic can not be mixed with residual waste or ‘wet’ waste, such as food. Such actions would significantly reduce material quality and may render materials unsuitable for ‘high quality’ recycling. If you export dry recyclables, you should refer to Section 5 of this guidance.

The issue of co-mingling and MRF separation techniques is complex and further measures will be carried forward by Scottish Government to ensure that co-mingled collections can provide material quality which is not significantly less than that which would result from a fully separate collection.

It should be noted that separately collected dry recyclables that do not meet the appropriate quality standards, cannot be directly incinerated or landfilled . This does not apply to fines and rejects from a MRF sorting process.

4.2 Step 2 - Prevent the Escape of Waste

You must not allow any waste materials to escape from your control and that of your employees, or the control of others during subsequent transport.

When waste is being managed at your premises you need to make sure that;

• you are authorised to accept that waste and do not exceed the quantities of waste you are permitted to manage at any one time. If too much waste is accepted or stored at your site there may be problems with litter, spillages, odour. etc
• waste is managed in accordance with the conditions of your environmental permit or registration.
• waste is stored in a secure location where access to it is limited to authorised persons. If waste is kept in a less secure location, loose materials or specific objects may be blown or washed away or even stolen. Adequate security should be in place to prevent vandalism such as fires.
• containers or bays are clearly labelled with their contents so that people can identify what they hold.
• waste is stored safely. If you store waste in skips or other similar containers, ensure that they are covered or netted. Store waste under cover if rain will prevent it from being managed properly or cause contaminated run-off. Keep waste containers in a good condition.
• take measures to prevent pollution. You must prevent liquid wastes and leakages from escaping into drains, watercourses or surrounding ground. Additional guidance on temporary storage of waste at the place of production, at a place owned or occupied by the producer or at a collection point is available on the SEPA website.

4.3 Step 3 – Describe the Waste

You must ensure that any waste you receive or pass on is accompanied by a completed Waste Transfer Note (WTN) including an adequate written description that will enable you to manage it in accordance with your obligations under the Duty of Care and your permit or registration.

You should know what and how much waste you are contracted to receive. When the waste arrives you should inspect it to ensure that it corresponds to the description given to you. You should be able to check that there are no items which do not correspond to the description. The person passing the waste to you should provide you with the information you need and you should be content that it is correct and sufficient for you to meet your own obligations.

The WTN is your evidence of a transfer of waste. You will have to produce it when asked by an enforcement officer. You must keep a copy of the WTN signed by yourself and the person you accepted the waste from, or transferred the waste to, for two years. You will have to produce it when asked by an enforcement officer. This can be an electronic copy, including electronic signatures, provided an enforcement officer can view it. You also need to keep any additional information with this note such as any analysis results.

Guidance on the information that a transfer note must contain is provided in Section 8.

If you receive the same type of waste from the same producer and waste transporter regularly then you may use a “season ticket” type of arrangement to cover these transfers to you. This system can be used for a period up to 12 months and prevents the need for a transfer note to be produced for every waste load transferred. However this ‘season ticket’ can only be used for waste of the same description transferred to the same transferee.

If the waste is Special Waste you have the same obligations under the Duty of Care. However, a consignment note, rather than a WTN, is required to comply with the Special Waste (Scotland) Regulations 1996 (as amended).

If the waste is not described properly or the description is inadequate to inform the next holder of relevant waste properties, then you may still be liable if something goes wrong after the waste is transferred.

What is an adequate description?

An adequate description will depend upon the nature of the waste and any treatment or sorting processes that it has already been through. The transferor of the waste must provide information in order to help you to answer such questions as:

• Does the waste need a special container to prevent its escape or to protect it from the elements?
• Does the waste require particular treatment or separate handling? Can it be disposed of safely with other wastes?
• Is it likely to change its physical state during storage, e.g. might it give off a gas or become liquid?
• Can it be mixed safely with any other waste or are there wastes with which it should not be mixed, for example, at a waste transfer station?
• What procedure do you have in place if problems arise with waste once it has been unloaded from the vehicle?

Best practice suggests that all transfer notes should contain information on any treatment processes the waste that they are covering has been through.

4.4 Step 4 - Waste must only be transferred to an Authorised Person

You must make sure that any person or business that you transfer waste to or who organises waste transfers for you is registered with SEPA to do so. This is crucial for the effort to tackle waste crime.

Authorised persons are those who hold a Transporting waste registration from SEPA, such as waste management companies, Local Authorities and charities/voluntary organisations.

Your Duty of Care as a producer of waste extends along the entire chain of management of the waste. The Duty is not discharged on handing over the waste to the next holder. You should take reasonable steps to make sure that the waste will be managed correctly and legally.

What must I do to check authorised persons details?

The detail of the checking required will depend on the quantity or nature of the waste you produce. As a minimum you must ask for:

• A copy of the waste transporter’s registration certificate and check this against SEPA’s online public registers to confirm that it is genuine and valid.
• Confirmation of the broker/dealers registration and check this against the SEPA’s public register. If you choose to engage a waste broker to identify suitable waste transporters and/or waste management options for your waste then you will share equal responsibility for how the waste is stored, transported and ultimately managed. You must ensure any broker you use has a valid registration and check this against the SEPA’s online public registers.
• The reference number of the site’s permit or registration so that you can check this against SEPA’s public register to confirm that it is genuine and valid and evidence that it allows for deposit of your type of waste.

It is advisable to re-check awaste transporter’s registration from time to time as all waste transport registrations are renewable every three years and in some circumstances SEPA may have cancelled or revoked the registration.

You should also know where the waste transporter takes your waste for onward management. This is particularly relevant if you manage:

1) large amounts of waste,

2) waste which can be difficult to manage e.g. hazardous waste

3) waste which is commonly flytipped (eg tyres).

You should be aware of the destination of the waste and check the site’s permit or registration reference number so that you can, if necessary, check with SEPA’s local teams that the site is genuine and is allowed to accept the waste. It might also be prudent to visit the site where your waste is subsequently managed or to ask the waste transporter or broker for a statement of end- use or final destination along with your invoice. For example, you could request weighbridge tickets from your waste transporter.

Where waste might be exported

If your waste is to be (or is likely to be) exported, then you must establish whether the waste meets the criteria for recycling or other recovery in the receiving country. It is illegal to export waste for disposal. Non hazardous waste destined for recycling in another country is referred to as Green List Waste. Both you and any broker or dealer involved must retain documents for three years.

In the event that waste managed by you is subsequently shipped illegally, you may be liable for the costs of return and subject to enforcement action.

Waste dealers and traders are often involved where waste is exported. Waste brokers, dealers or traders must be registered in that capacity with SEPA. Both you (the current holder) and any broker or dealer involved should retain documents, including any waste description, with any additional information for a minimum of three years when waste is exported.

You should ask the person to whom you transfer the waste whether the waste is likely to be reprocessed in another country and be alert for any suspicion that waste might be exported.

Indications that waste might be exported include:

• Is the waste being transported in a shipping container?
• Is waste being transported directly to a port or railhead?
• Was the transport arranged by a freight forwarder?
• Were the arrangements made by a waste transporter, broker or dealer operating outside UK jurisdiction?
• Have registration details of the broker or dealer been difficult to establish?
• Has HM Revenue & Customs clearance been applied for and obtained?
• Are transport routes to the final country of destination identified?
• Have you been asked to provide or sign a note for the international carriage of good by road (CMR note) or rail (CIM note)?
• Have you been asked to place an ‘Annex VII’ form in to the container?
• Is the destination of the waste unclear?

4.5 Step 5 – Prevent waste causing environmental harm or pollution

Environmental harm or pollution of the environment may be caused by the unauthorised or inappropriate management of waste. It is important that manage your waste responsibly while it is in your possession and you do not pass your waste onto someone who may be involved in illegal waste activities.

What do I need to do to prevent Environmental Harm or Pollution?

A waste manager remains responsible according to what he or she ‘knows or should have foreseen’. A waste manager should act on any knowledge to stop the illegal handling of waste and contact SEPA.

For example

• you should be suspicious of people or businesses offering unrealistically cheap waste services. This may be a sign that the waste is not being legally managed.
• you would not be expected to follow the waste transporter, but you may wish to determine that waste has subsequently arrived at its intended destination especially if the waste has particular problematic or hazardous properties. You can do this by requesting weighbridge or tip tickets or email confirmation.
• you should be able to see whether the waste is loaded securely for transport when it leaves your premises. If it later falls off the vehicle you could be liable.
• you may notice a waste transporter's lorries returning empty for further loads in a shorter time than they could possibly have taken to reach and return from the proposed waste management site.
• burning of waste is, under most circumstances, an illegal activity.
• you may notice a waste transporter apparently engaged in the fly-tipping of someone else's waste. These would be grounds for suspecting the illegal handling of your waste by the transporter.
• if you refuse a load of waste from a waste transporter arriving at your site you should have in place arrangements to prevent this waste being fly- tipped in another location.

You should act on any knowledge to stop the illegal handling of waste. For ongoing and significant environmental events there is an our online report form to report a significant incident to SEPA. Reports submitted online are monitored between 8am and 6pm, Monday to Friday. Outside these hours, you can call SEPA’s pollution hotline on 0800 80 70 60. The automated system will triage your report and escalate urgent issues.