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Waste and hazardous substances

Definition

How is ‘waste’ defined in your jurisdiction?

‘Waste’ is defined under the Environmental Protection Act 1990 (implementing the EU Waste Framework Directive (2008/98/EC)) as “any substance or object that the holder discards, intends to discard or is required to discard”.

The UK waste regime is principally set out in:

  • the Environmental Protection Act 1990;
  • the Waste (England and Wales) Regulations 2011; and
  • the Environmental Permitting (England and Wales) Regulations 2016, implementing the relevant EU regime derived from the EU Waste Framework Directive.

In general, any business which imports, produces, collects, transports, recovers or disposes of waste has a legal duty to handle it by applying the following waste hierarchy:

  • prevention;
  • preparation for reuse;
  • recycling;
  • other recovery; and
  • disposal.

Further elements concerning the duty of care are set out in the Waste Duty of Care Code of Practice 2016. The following sections outline obligations in relation to non-hazardous waste only, as a special regime applies in relation to hazardous waste (see Hazardous substances section below).

Waste handling

What rules and procedures govern the handling of waste, with particular respect to:

(a) Storage?

Waste storage is a permitted activity under the Environmental Permitting (England and Wales) Regulations 2016 and thus requires an environmental permit, although it is acceptable to store certain quantities of waste without a permit for a limited period after registering an exemption with the Environment Agency.

(b) Transport?

Waste transporters are subject to the legal duty of care as set out above. Waste transporters must register to operate under the Control of Pollution (Amendment) Act 1989 and the Waste Regulations and it is a criminal offence to transport controlled waste without being registered. The regulator is the Environment Agency (EA) in England or Natural Resources Wales (NRW) in Wales. Written descriptions of waste, in the form of waste transfer notes, are required when waste is transferred between parties.

(c) Disposal?

Waste must be handled in such a way that it is unlikely to cause pollution or harm to human health. It is an offence to deposit controlled waste under an environmental permit or a registered waste exemption. Therefore, waste disposal requires an environmental permit (see above).

(d) Recycling/reuse?

There is no overall recycling target in place for commercial and industrial waste (although the EU Waste Framework Directive sets recycling targets for the United Kingdom in relation to household waste). Producers of packaging, batteries, electrical and electronic equipment and vehicles must ensure that a proportion of their products is recovered and recycled in accordance with EU requirements.

Liability

What is the extent of a waste producer’s liability after transferral of waste (eg, to a waste disposal agent)?

A waste producer must ensure that it transfers waste only to an authorised party (which must be registered as a waste transporter and have an environmental permit or a registered exemption to accept waste). Such parties must also complete a waste transfer note when transferring waste to another party. This must be signed by both the waste producer and the transferee and contain a statement confirming that the waste producer has applied the above waste hierarchy. The waste producer must keep the waste transfer note for two years (or longer in certain cases).

Failure to adopt adequate procedures for managing contractors in relation to waste management procedures may leave a business vulnerable to prosecution in the event that its waste is improperly disposed of. The courts have found businesses liable for failure to exercise control over waste on their premises where they have not had mechanisms in place to ensure that contractors complied with the relevant waste disposal law.

Waste recovery

Are waste producers bound by any waste recovery obligations?

In practice, businesses are expected, at a minimum, to recycle their waste, where possible. The legal duty of care that applies to waste producers and waste transfer notes includes an affirmation that the transferor has applied the waste hierarchy, as set out in the duty of care.

Waste disposal agents

How are the business activities of waste disposal agents/landfill operators regulated?

Any business or person that arranges for waste to be collected, disposed of or recycled must be registered as a waste broker. The EA and the NRW issue registration certificates which are valid for three years.

Waste brokers must ensure that:

  • waste is safely contained,
  • waste transfer notes are correctly completed and correctly describe the waste; and
  • the waste duty of care and the waste hierarchy are applied.

Landfill and waste incineration operations are regulated under the Environmental Permitting (England and Wales) Regulations 2016 and parties undertaking such operations must hold an environmental permit (see above). The United Kingdom historically sent most of its waste to landfill, but this position has changed and an increasing amount of waste that cannot be recycled is being incinerated in waste-to-energy installations.

Hazardous substances

What special rules, regulations and safeguards apply to the handling and disposal of hazardous materials?

The handling and disposal of hazardous materials is regulated by a variety of domestic and EU instruments. Key EU instruments include:

  • the EU Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (1907/2006);
  • the EU Regulation on the Classification, Labelling and Packaging of Substances and Mixtures (1272/2008);
  • the EU Regulation concerning the Making Available on the Market and Use of Biocidal Products (528/2012); and
  • the EU Regulation concerning the Export and Import of Hazardous Chemicals (649/2012).

Key domestic instruments include:

  • the Dangerous Substances and Explosive Atmospheres Regulations 2002;
  • the Control of Substances Hazardous to Health Regulations 2002; and
  • the Carriage of Dangerous Goods and Use of Transportable Pressure Equipment Regulations 2009.

A specific regime applies to hazardous waste as set out in the EU Waste Framework Directive, which is implemented into UK legislation by the Hazardous Waste (England and Wales) Regulations 2005.

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