Changes to waste definitions affect duty of care

At least two important changes have been made at the last ditch to regulations defining what is to be treated as "controlled" waste under Britain's waste management system.1 Both are intended to provide certain businesses which have failed either to obtain a waste disposal licence or register as waste carriers a period of grace before they are liable to prosecution under the new "duty of care."

The regulations apply throughout Britain, and took effect on 1 April. They prescribe what kinds of waste are to be treated as household, industrial or commercial waste for various purposes. These include the duty of care regime and the associated registration scheme for waste carriers, both of which came into force on or before 1 April. They also include the revised waste collection, recycling and disposal powers and duties of local authorities - including those dealing with charges for the service. The majority of these were commenced on 1 April as well.

While the new definitions of "controlled" waste will apply for these purposes, they will not apply to the licensing of waste management operations. Because the new licensing regime under the Environmental Protection Act 1990 is not due to be brought into force until April 1993 at the earliest, the old definitions - made in 1988 - will continue in force for licensing purposes for the time being.

This complex system is due to be explained in a Government circular to local authorities, but there was no sign of this at the end of March.

In part because two legal definitions of "controlled" waste will be operating in parallel until the new licensing system is brought into force, only minor changes have been made to the existing definitions. These are broadly as proposed in a consultation document issued by the Department of the Environment in January (ENDS Report 204, pp 30-1 ). The revisions make it clear, for example, what is meant by clinical waste, and that sewage and septic tank sludge disposed to agricultural land in accordance with existing statutory safeguards for the environment are not "controlled" waste.

However, significant last-minute amendments to the draft rules were also made by the Government.

One of these stipulates that scrap metal will not be treated as "controlled" waste for the purpose of the duty of care until 1 April 1993. This was done in response to lobbying by the British Scrap Federation and the British Secondary Metals Association. Their members were told four years ago to obtain disposal licences, but most still lack them. The new provision does not affect their obligation to obtain licences.

Notifying the scrap industry of the 12-month exemption, Environment Minister David Trippier added that the Government would make a further transitional rule when the new licensing system is introduced. This will provide a temporary exemption from licensing for scrap merchants who have applied for a licence by the time the system is brought into force. The effect of this would be to impose for the first time a deadline for scrap merchants to apply for a licence, but at the same time allow waste regulation authorities time to process the anticipated flood of licence applications.

Another last-minute change to the new regulations has given persons carrying construction waste an extension until 1 June 1992 to apply to be registered as a waste carrier. The move appears to reflect official concern that smaller businesses which carry waste from construction, demolition or building repair and improvement works have yet to cotton on that they must register as waste carriers. Unless the extension had been allowed, these firms would have been open to prosecution from 1 April, and should also have been turned away from waste disposal sites by operators protecting themselves under the duty of care.

The changes have been criticised by the National Association of Waste Disposal Contractors as being "a bit late in the day." It says that the Government has failed to get across the implications of the duty of care to smaller firms. "Countless" callers to its offices are demonstrating a lack of understanding of the new duty.

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