Duty of care: code of practice for managing controlled waste

Statutory guidance on the duties that must be complied with by anyone who produces, keeps, imports or manages controlled waste in Scotland.

4 Your Obligations as a Waste Producer

This section offers guidance to any person (with the exception of an occupier of domestic property in respect of waste produced on that property) who produces waste in the course of their activities. This includes both private sector business such as shops, offices and factories and public sector services such as schools, hospitals and prisons.

As the producer of waste, how you manage it at source ultimately determines the value which can be derived from it. You are also in the best position to accurately describe the waste and ensure safe downstream management. You therefore have the most important role.

What are my responsibilities?

You must comply with the duties in Section 34 whilst the waste is in your possession and when you transfer your waste to somebody else. Where you use a waste broker or dealer, you both have responsibilities under Section 34. Using a waste broker does not lessen or remove any of these responsibilities from you in your role as a waste producer.

Table 1 - Responsibilities of the waste producer

As a waste producer, you must :
  • Apply the waste hierarchy to the management of your waste and promote 'high quality' recycling.
  • From 01 January 2014, present glass, metal, plastic, paper and card (including cardboard) for separate collection.
  • Take steps to maintain the quality of dry recyclables presented for separate collection.
  • In some circumstances, present food waste for separate collection.
  • Take care of the waste while you hold it so it does not escape from your control.
  • Ensure your waste is transferred to someone who is authorised to receive it, for example, a registered waste carrier or waste manager with the relevant authorisation. Or, if you are carrying your own waste that you are appropriately registered with SEPA.
  • Complete a waste transfer note for any transfer of waste, including a full description of the waste, and retain a copy of this note for two years.
  • Describe the waste accurately and provide information for the safe handling, transport, treatment, recovery or disposal by subsequent holders.
  • Take reasonable measures to ensure that your waste does not cause pollution or harm to human health.

This is explained in further detail below. Compliance with the Duty of Care means that you must take the following steps:

Step 1a - Apply the waste hierarchy and separate dry recyclable materials

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. As the first link in the supply chain, you have a crucial role to ensure that waste presented for recycling is of sufficient quality to support the priority outcomes.

The duty to apply the waste hierarchy applies to all waste streams and therefore any material capable of being reused, recycled or otherwise recovered (such as dry recyclables, textiles, WEEE, wood, tyres, etc) should be segregated and the preferred management routes identified and applied in priority order.

What is the duty?

The best way you, as a waste producer, can promote 'high quality' recycling is to introduce a fully segregated recycling system. From 01 January 2014, you must take all reasonable steps to present at least the following key dry recyclables for separate collection;

  • metals;
  • glass;
  • plastics;
  • paper; and
  • card (including cardboard).

A well operated recycling system should ensure a high capture rate with very little, if any, dry recyclables left in the residual stream.

Mixed or residual waste collections may still be required but only where they are complementary to a separate recycling service as part of an overall waste management solution.

However, it should be noted that some sub-categories of these materials are not readily recyclable. For example, pyrex glass does not currently have a recycling outlet and therefore it is not expected that producers segregate it at source from residual waste.

Your waste management contractor will be able to provide advice on the appropriate waste types to segregate for collection.

What is meant by "separate collection"?

The Waste (Scotland) Regulations 2012 defines separate collection as when;

"Waste is presented for collection, and collected, in a manner that ensures that-

(i) dry recyclable waste is kept separate from other waste;

(ii) waste from one dry waste stream is kept separate from waste in another such stream."

Therefore, separate collection means waste stream specific separation. That is to say, a separate container is required for each dry recyclable and the subsequent handling must be sufficient to maintain that separation through the management chain.

Full segregation is the best way to ensure recyclate contamination is kept to a minimum and 'high quality' recycling can be achieved.

Kerbside sort systems, where the waste producer places the dry recyclables in the same container for subsequent sorting by the waste collector into different vehicle compartments at the point of collection are considered to be equivalent to separate collection.

Is full material separation always necessary?

Complete segregation of dry recyclables is the first option and should be prioritised when choosing a collection system. In many cases it will be possible to fully segregate the dry recyclables; for example, most office premises should be able to segregate waste paper, metal cans and plastic bottles for collection separately from each other.

However, the introduction of fully separate collection systems may not be practicable in all circumstances and may not be necessary provided the aim of high quality recycling can be achieved just as well with a form of co-mingling. Co-mingled collections are where some, or all, of the key dry recyclables are collected together in the same container (but still separate from mixed or general waste) and sorted at a Materials Recycling Facility (" MRF").

In order to accommodate these cases, the Regulations provide a derogation from the requirement for separate collection and co-mingling is acceptable under the following conditions:

  • the quantity and quality of waste collected for recycling is not significantly less than that which would result from a fully segregated separate collection.
  • the waste is not mixed with other waste that cannot be recycled.
  • the waste can meet any relevant quality standard.
  • the waste is managed in a manner that promotes high quality recycling.

Co-mingled systems are only acceptable where, following separation at the MRF, the waste streams are of comparable quality to separately collected wastes and can be managed in a way that promotes the priority 'high quality' outcomes.

What can I co-mingle?

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, on the presumption that it will be subsequently separated out at a MRF. Such actions would significantly reduce material quality and may render materials unsuitable for 'high quality' recycling.

Some dry recyclables are also best collected separately from other dry recyclables. Co-mingled cans, tins and plastic bottles are easily separated at MRFs. However, the introduction of both paper and glass at the same time in these systems can make separation more difficult and is likely to affect final output quality.

Several UK paper mills are unwilling to accept paper which has been separated from fully co-mingled systems containing glass. Further, glass produced from fully co-mingled systems is likely to be of significantly lower quality than glass collected separately. A significant proportion glass collected in this way is unlikely to be able to go forward to the priority 'high quality' applications [2] but must instead pass forward to low quality outlets such as aggregates manufacture.

Fully co-mingled systems which include both paper and glass together should therefore be avoided as they are unlikely to produce material of comparable quality to separate collections or comply with the requirement to promote 'high quality' recycling.

A broad summary of collection types and how they fulfil the requirements of the duty to present dry recyclables separately and promote high quality recycling is presented in Table 3.

Table 3 Segregation Summary

Collection Type Description Compatibility with Duty
Separate Collection Each of the dry recyclables separated at source into discrete streams for collection and processing. Includes kerbside sort systems. This system is most likely to result in material which can go forward for 'high quality' recycling.
Partially Co-Mingled Some dry recyclables presented together for collection ( eg. cans and plastic bottles) for subsequent separation at a MRF. Acceptable only where separation results in material which is of comparable quality to separately collected material and which go forward for 'high quality' recycling.
Fully Co-Mingled All of the dry recyclables, including paper and glass, presented and collected together in one container and vehicle for subsequent separation at a MRF. Unlikely to be acceptable. Paper and glass from these systems are likely to be of significantly lower quality than if separately collected and with significant proportions unlikely to be of sufficient quality for 'high quality' recycling.
Survival Bags Some dry recyclables placed into a sealed, durable bag and collected in the same container and compacted in the same vehicle as residual waste. Acceptable only where separation results in material which can go forward for 'high quality' recycling.
Residual Waste Sorting Removal of recyclable materials from mixed municipal waste. Not compliant with the duty, although treatment of residual waste may still yield material for recycling.

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.

What should I do if I am using a co-mingled system?

The aim of separate collection is to promote 'high quality' recycling through maintaining the purity of the dry recyclables collected. Co-mingled collections carry a greater risk of contamination with;

a) non-target material - i.e. waste which is potentially recyclable but which was not targeted by the system or the MRF is not designed to handle, and

b) non-recyclable wastes.

A 2012 study estimates that the average concentration of non-target and non-recyclable wastes entering Scottish MRFs from co-mingled systems is as much as 10.5%.

So, as a waste producer, you have an important role and you must take steps to prevent contamination with non-target and non-recyclable wastes.

You should ensure clear labelling of waste receptacles and provide proper advice to your staff on how to use the chosen recycling system.

Table 4 Recycling service checklist

If you are offered a co-mingled collection, it is reasonable to expect the following from your contractor;
  • A collection service tailored to meet the needs of your business, with reliable and regular collections.
  • Information on how to use the service effectively ( e.g. clean and dry materials) and to avoid contamination by non target and non-recyclable waste.
  • Clear labelling of collection receptacles to identify what material should be included and what should be excluded.
  • A system of spot checks to assess collected material for non target and non-recyclable materials and feedback identified problems with appropriate advice.
  • Target material collected processed to deliver comparable quality to separately collected waste and which can go forward to 'high quality' recycling.

Can I mix glass colours together?

Provided that the mixed glass is subsequently colour separated to the quality required by the glass remelt industry, mixing different glass colours together at source is compatible with the duty to promote 'high quality' recycling.

However, mechanical crushing of mixed glass at source prior to collection results in a significant proportion of fine particles which are too small to be colour sorted. The loss of material which could be used in the remelt industry may exceed 30% by weight. As such, crushing mixed colour glass prior to collection should be avoided where possible.

Can I work with other businesses?

You may have your premises serviced by a facilities management company ( e.g. if you share a tenanted property with other organisations). In such cases, the facilities management company may organise waste management services for the whole property. It is worthwhile to review these arrangements regularly to ensure that the waste services are sufficient to discharge your responsibilities.

Appropriate arrangements are required for secure storage, authorised transfer and further management of the material from shared facilities to comply with the duty of care. These may be developed in a bespoke manner to suit individual circumstances.

How will I know that my waste will be recycled?

Waste managers are prohibited from mixing your separately collected recyclable waste with other wastes where such mixing would hamper further recycling and, from 01 January 2014, from sending it directly to incineration or landfill.

You may also wish to ask your waste contractor to provide you with information on the final destination of the materials you segregate for recycling.

A producer remains responsible according to what he 'knows or should have foreseen'. So if you hand waste to a carrier, and you suspect that your separately collected recyclables are being fly-tipped or are going directly to an incinerator or landfill, you should inform SEPA through their 24 hour pollution hotline - 0800 80 70 60. You can also use Crimestoppers' anonymous online report form.

Are there any other particular waste types I need to know about?

You must comply with special requirements for certain wastes, such as special waste and those covered under producer take back schemes:

Step 1b - Establish if you have to segregate food waste, and by when.

Recycling food waste has the potential to bring significant economic and environmental benefits to Scotland. If you operate a food business, you may be required to take all reasonable steps to present food waste for separate collection.

What is a food business?

The Waste (Scotland) Regulations 2012 define food businesses as;

"An undertaking, whether for profit or not, and whether public or private, carrying out any activity related to the processing, distribution, preparation or sale of food".

This definition is targeted specifically on significant food waste producers. Table 5 provides examples of the type of activities captured by the duty.

Food waste produced in commercial kitchens and by customers who consume food on the premises of a food business is covered by this duty and reasonable steps must be taken to capture that food waste separately.

Waste from food purchased and then discarded by customers off the premises, such as from takeaways, is not covered by this duty. Further, premises where food is brought from elsewhere to be consumed but which are not food businesses, such as office staff rooms, are not captured by this definition.

Table 5 Food Businesses

Examples of "Food Businesses" include;
  • Restaurants
  • Caf├ęs
  • Shopping centre food court
  • Canteens
  • Hotels
  • Public Houses that serve food
  • Shops that sell food
  • Supermarkets
  • Schools & colleges with canteens
  • Prisons
  • Nursing Homes
  • Hospitals

Are there any exemptions?

There are three exemptions from the duty present food waste for separate collection.

  • Rural food business premises

Rural food businesses are exempt form the requirement to present food waste separately. Rural is defined using the six-fold classification system used by Scottish Government. A searchable .pdf document entitled "Defining rural and non-rural areas to support zero waste policies" has been published containing all the rural postcodes which benefit from the exemption.

  • Food businesses producing less than 5kg per week

There is also a de-minimus threshold for food businesses that produce only a very small quantity of food waste. If you consistently produce less than 5kg per week then the duty to present that food waste for separate collection does not apply. 5kg is roughly equivalent to a full domestic kitchen caddy.

  • Food waste that has arisen from international transport

International catering waste is designated as a Category 1 Animal By-Product and therefore requires specialist management. As such, it does not fall within the scope of this duty.

You are not precluded from using a food waste collection service if you are in a rural area or fall below the 5kg threshold. However, the third exemption for international catering waste is an absolute exemption from the Duty.

When do I have to start?

If you consistently produce 50kg or more food waste per week, the duty starts from 01 January 2014. A 120 litre bin will hold around 60kg of food waste. So, as a guide, if you fill, or come close to filling a 120 litre bin a week on a regular basis, then you must segregate that food waste and present it for separate collection. If you produce between 5kg and 50kg of food waste per week, the duty starts two years later, on 01 January 2016.

Can I use a macerator to dispose of food waste to a drain or sewer?

Food waste disposers ( i.e. macerators) cannot be used to discharge food waste to a drain or sewer in a non-rural area where a separate food waste collection service is available.

Systems which dewater food waste at source and store the solid material for collection and treatment are acceptable if they are configured to maximise the capture of organic material for recycling.

Do I have to remove all packaging from the food waste prior to collection?

Not necessarily, it may be that specialist equipment provided at a treatment facility is able to remove packaging. In such circumstances, it is not necessary to de-package the food waste at the place of production.

Can I compost food waste on my own premises?

Yes, if you compost your own food waste and have a use for the resulting compost, you can continue to do that. The Paragraph 12 Waste Management Licence Exemption permits the small scale compositing of catering waste, including meat.

Can I mix the food waste with any other waste?

Food waste can be mixed with other biodegradable wastes provided that;

  • the quantity of food waste presented is comparable to what would have resulted from a separate collection, and
  • the food waste can be managed in a way which meets the relevant quality standards and promotes high quality recycling.

The relevant quality standards are PAS100 for composting and PAS110 for anaerobic digestion. Therefore, food waste can only be mixed with the other biodegradable wastes listed in the PAS 100 & 110 standards and only if the resulting mix must be capable of being processed to those standards.

Food waste must not be mixed with other biodegradable wastes which would undermine these quality standards such as mixed municipal waste or sewage sludge. However, it may be possible to collect food waste together with compostable packaging materials.

Step 2 - Prevent the Escape of Waste

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

All waste holders must act to keep waste safe against:

  • Spillages from corrosion or wear and tear of containers;
  • accidental spilling or leaking or inadvertent leaching from waste unprotected from rainfall;
  • accident or weather breaking contained waste open and allowing it to escape;
  • waste blowing away or falling while stored or transported;
  • scavenging of waste by vandals, thieves or animals.

What must I do when storing Waste?

All waste has the potential to pollute the environment if you do not handle or store it properly. When waste is being stored at your premises you must make sure that;

  • waste is stored in safely and securely in suitable containers. If you store waste in skips or similar containers, ensure that they are covered or netted so the waste does not blow away. Store waste under cover if rain will prevent it from being reused or recycled, or cause contaminated run-off. Keep waste containers in good condition.
  • containers are clearly labelled so that wastes can be properly segregated and people know what can and cannot be placed in them. If you reuse containers, make sure that labels are accurate and up to date so that the next holder of the waste can readily identify what the containers hold.
  • the waste is stored in a secure location with access limited to responsible persons you have identified. If waste is not kept securely, loose materials or specific objects may be blown or washed away or even stolen. Less secure storage may also attract others to scavenge or mix their waste with your own. If this occurs then the waste carrier or contractor may refuse to accept the waste or charge you more.
  • liquid wastes and pollutants are prevented from escaping into drains, watercourses or surrounding ground. Store liquid wastes on impermeable surfaces within a secondary containment system. Ideally this should be a bund which is large enough to hold any leaked contents of the storage containers. If you store liquids, refer to SEPA's guide to the storage and handling of drums & IBCs

Step 3 - Describe Your Waste

You must ensure that any waste being transferred to another holder is covered by a waste transfer note ( WTN) including a written description that will enable anyone receiving it to manage it in accordance with their own Duty of Care.

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

Waste Transfer Note

The information you pass on to the next holder is contained in the WTN. This is your evidence that the waste was passed on and that it was adequately described. Guidance on the information that a WTN must contain is provided in Chapter 10.

You must keep a copy of the WTN signed by yourself and the person you transfer waste to for two years. This can be an electronic copy, including electronic signatures, provided an enforcement officer can view it. You also need to keep any additional information about the waste with this note such as any analysis results.

A ' season ticket' system can be used for waste of the same description which is transferred between the same transferor and transferee for a period up to 12 months. This avoids the need for a separate WTN for each waste load transferred although you should keep a log of individual loads collected from you under season ticket arrangements. "Season tickets" can be used, for example, for the weekly collection of waste from shops or repeat journeys of excavated materials from a construction project. Provided all the required information is contained on it and both parties have signed it, an invoice can be used as a WTN.

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).

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. As waste producer you are best placed to describe your waste, especially if it originates from your process or activity.

The description must include any special problems associated with the waste in order for subsequent holders to handle the waste properly. For example;

  • Can the waste be accepted at the intended waste management site?
  • Can it be disposed of safely in a landfill site with other waste?
  • Does the waste need a special container to prevent its escape or to protect it from the elements, e.g. loose waste?
  • Does the waste require particular treatment or separate handling, e.g. dry recyclables, food waste, contaminated soil, batteries or WEEE?
  • Is it likely to change its physical state during storage or transport, e.g. might it give off gas or become liquid, in which case sufficient headspace will need to be provided in containers?
  • Are there any other issues with the waste which others should be aware of (smell, liquids leaching from the waste, etc)?

Waste described as "general rubbish" or "muck" does not constitute an adequate description.

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 in the effort to tackle waste crime.

Authorised persons are Registered Waste Carriers, such as waste management companies, or registered Professional Carriers and Transporters of waste such as Local Authorities and charities/voluntary organisations.

If you normally and regularly carry your own waste to a recycling or treatment facility, you will need to register as a Professional Carrier and Transporter of Waste.

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 carrier'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 carriers 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 receiving site's Licence or Permit so that you can, if necessary, check this with SEPA's local teams 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 carrier registration from time to time as many carrier registrations are renewable every three years and in some circumstances SEPA may have cancelled or revoked the registration.

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

  • large amounts of waste,
  • waste which can be difficult to manage e.g. hazardous waste
  • waste which is commonly flytipped (eg tyres).

You should be aware of the destination of the waste and check the site's Licence or Permit 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.

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.

If you are a waste producer and you are sending waste to a facility that may be involved in the export of waste, you should ensure that you have sufficient information to satisfy yourself that any waste that is collected from you is exported legally. In the event that waste produced by you is subsequently shipped illegally, you may be liable for the costs of return and subject to enforcement action.

Step 5 - Prevent Your Waste Causing Harm or Pollution

Harm to human health or pollution of the environment may be caused by the unauthorised or inappropriate management of waste. It is important that you do not pass your waste onto someone who may be involved in illegal waste activities.

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

Allowing waste to escape from your control, such as causing litter, allowing liquids to leak from containers and so on are examples of where harm can be caused whilst you hold the waste and this is covered in Step 2.

Further, the burning of waste such as construction waste or packaging may result in harm and, except in very restricted circumstances, is illegal.

A producer remains responsible according to what he 'knows or should have foreseen'. So if you hand waste to a carrier, not only must it be properly packaged when transferred, but you should take account of anything you see or learn about the way in which the carrier is subsequently handling it. 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.
  • would not be expected to follow the carrier, 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.
  • may wish to visit the site where your waste is managed or to ask the carrier or broker for a statement of end-use or final destination along with your invoice.
  • 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.
  • may notice a carrier'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.
  • may notice a carrier 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 carrier.

A producer should act on any knowledge to stop the illegal handling of waste.

Whenever you become aware that your waste is being illegally dealt with you should inform SEPA through their 24 hour pollution hotline - 0800 80 70 60. You can also use Crimestoppers' anonymous online report form.


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