This article was first published in the In-House Lawyer and the full article can be found online here.

Does your business produce waste? The answer is very likely to be ‘yes’. Waste can be any number of things; including any material or item which you have no further use for and want to remove. If you are discarding it, it’s still waste, even if you can repair or reuse it. It includes kitchen waste, construction waste, electrical waste, office waste, hazardous waste and production waste.

Most businesses will be considered a ‘waste producer’ by virtue of their everyday activities as categories of waste are widely defined (including household waste). As such, the waste duty of care requirements under the Environmental Protection Act 1990 (the Regulations) should be of interest to everyone that produces waste – not just the waste industry.

If you are wondering why this is important, it’s because since the 1990s under waste legislation, everyone who produces, transports, treats or disposes of waste as a result of its activities is under a legal duty of care. It is the responsibility of any commercial activity to manage its waste safely and responsibly. This legislation has been subject to a recent refresh.

Your duties

Non-compliance with your duty is a criminal offence and failing in your duty can be expensive as well as illegal. The Regulations are enforced by the Environment Agency (EA) for England and Wales. The EA has authority to carry out investigations into your business and enforce civil sanctions against it known as ‘enforcement undertakings’. Such sanctions can include hefty fines and compulsory donations. A recent enforcement undertaking required the waste company Powerday to pay approximately £1.2m in breach of its duty for storing and disposing of around 17,000 tonnes of hazardous waste. In addition to the fine, Powerday was required to pay the EA’s costs of £243,955.35.

On a more positive note, compliance with your duty will mean that your business is likely to be more efficient and successful at dealing with its waste, which in turn is likely to be reflected in the associated costs incurred in relation to its duty. Compliance will also mean that your business is able to show that it has discharged its duty in relation to the regime.

Despite the Regulations having been in place since 1990, many businesses seem largely unaware of their obligations. The Department for Environment Food & Rural Affairs (Defra’s) recent research into waste compliance has highlighted a widespread issue with many businesses falling short of their legal duties.

The updated waste guidance

In an effort to raise compliance with the longstanding waste obligations and following consultation, on 11 March 2016 Defra and the EA published an updated Code of Practice (the Code). The Code provides clear and practical regime guidance to businesses, reflects legislative changes to the Regulations and reduces the guidance from 66 pages to just 13 (www.gov.uk/government/publications/waste-duty-of-care-code-of-practice/waste-duty-of-care-code-of-practice-read-online).

In addition to the new Code, the government has launched a campaign to address the issue of non-compliance, ‘Right Waste, Right Place’, through social media, trade and sector media, exhibitions, seminars and industry events (www.rightwasterightplace.com).

The campaign plainly states a business’s obligations and provides practical guidance to assist companies, partnerships, family businesses and sole traders from a broad range of sectors to comply with the regime. The campaign will help businesses avoid prosecution by realising and addressing issues to bring them in line with their duty and taking the right steps to compliance. It is hoped that the Code will assist in protecting people and the environment, as well as keeping waste out of criminal hands.

Complying with your waste duties

In order to establish how you can deal with your waste, you should identify the different types of waste you produce as there are different requirements for disposal. Your duty requires you know the difference. You must also determine whether your waste is hazardous as it must be dealt with by a specialist licenced waste carrier. Your duty also means that you must store your waste as separated into their relevant categories and your waste must be keep securely. Escape of your waste will be a breach of your duty.

It is imperative that you know what happens to your waste, as your duty starts from the point of production right through to disposal. You must therefore be satisfied that you manage waste correctly and that the person you pass your waste to is permitted to handle the relevant waste type and deals with it correctly too.

You will need to consider where the waste is going (eg a licenced landfill), whether the waste carrier is registered for collection, transport and treatment and whether all the necessary paperwork is complete (eg, transfer note and consignment note). If you are concerned that waste is not being handled correctly you should not give your waste to the carrier and report the activity to the EA.

You must be satisfied of the above on an evidentiary basis. This will require you to carry out contractor checks to ensure they hold the correct authority (ie, a valid permit or registered exemption). You should also keep records of all checks, and document the transfer of waste, including the type, quantity, who produced it, and who is collecting it.

As the Regulations derive from European legislation, other EU member states are required to implement similar waste restrictions. It is therefore important to ensure that, if you deal with any EU waste operations, that such dealings are compliant with the relevant members state’s local regime also.

The Regulations are designed to ensure safe management of waste from its production, to its treatment, recovery or disposal. The Code and campaign aim to bridge the ‘knowledge gap’ and raise awareness of a business’ duty and promote vigilance against waste crime.

The revised Code is a timely reminder of the importance of your business’ need to be aware of and comply with its waste duties. Ignorance of your obligations will not protect you should you breach your duty and the consequences, both in terms of financial sanctions and reputational damage, can be severe.

Handling your waste responsibly doesn’t just help the environment, it also offers direct business benefits. Increasingly, suppliers favour businesses with socially responsible policies. Behaving conscientiously and supporting such strategies will have a positive impact on how your business is perceived publicly. It can also help build your business’s reputation and promote interaction with companies that do the same.