A Manual of Environmental Protection Law: The Pollution Control Functions of the Environment Agency and SEPA

By Michael Fry | Go to book overview

INTRODUCTION
I. This code of practice consists of the guidance in Sections 1-7 together with their related Annexes. It is issued by the Secretary of State for the Environment, the Secretary of State for Scotland and the Secretary of State for Wales in accordance with section 34(7) and (8) of the Environmental Protection Act 19901 ("the 1990 Act"). This code supersedes that issued in December 1991 which is hereby revoked. This introduction is not part of the code of practice.
II. Section 34 of the 1990 Act imposes a duty of care on persons concerned with controlled waste. The duty applies to any person who produces, imports, carries, keeps, treats or disposes of controlled waste, or as a broker has control of such waste. Breach of the duty of care is an offence, with a penalty of an unlimited fine if convicted on indictment.
III. Waste poses a threat to the environment and to human health if it is not managed properly and recovered or disposed of safely. The duty of care is designed to be an essentially self regulating system which is based on good business practice. It places a duty on anyone who in any way has a responsibility for controlled waste to ensure that it is managed properly and recovered or disposed of safely. The purpose of this code is to provide practical guidance for waste holders and brokers subject to the duty of care. It has been revised to take account of changes in waste management law since the code was first issued in December 1991. These changes include the application of the duty of care to the scrap metal industry from 1 October 1995.
IV. The code recommends a series of steps which should normally be enough to meet the duty. The code cannot cover every contingency. The legal obligation is to comply with the duty of care itself rather than with the code. Annex A2 gives a detailed explanation of the law.
V. The Code makes reference to the Environment Agency and to the Scottish Environment Protection Agency. In England and Wales, local authorities' waste regulation functions are transferred to the Environment Agency by section 2 of the Environment Act 1995 with effect from 1 April 1996. Until that date, waste regulation is a function of the local authorities designated in section 30(1) of the Environmental Protection Act 1990.
VI. In Scotland, local authorities' waste regulation functions are transferred to the Scottish Environment Protection Agency by section 21 of the Environment Act 1995 with effect from 1 April 1996.
VII. The code is divided into:
--Sections 1-7: Step by step guidance on following the duty;
--A summary check list; and
Annexes A: the law on the duty of care;
B: responsibilities under the duty;
C: Regulations on keeping records;
D: an outline of some other legal requirements; and
E: a glossary of terms used in the code.
VIII. Guidance on the definition of waste, which does not form part of the code of practice, is contained in the Appendix.
IX. Is it "waste"?
X. The duty of care applies to waste which is controlled waste (see paragraphs 1.1-1.2 below). The first question, therefore, is whether any particular substance is "waste". Since 1 May 1994 the common European definition of waste in the Framework Directive1 on waste has been in force. The legal definition of waste is:

"any substance or object... which the producer2 or the person in possession of it discards or intends or is required to discard."

____________________
1
P.118 above.
2
P.843 below.

-825-

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