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recycle, recover and re-use is the message from the Department of Environment in the new regulations on waste

8 April 2008

Recycle, recover and re-use is the message from the Department of Environment in the new regulations on waste

The Site Waste Managment Plans Regulations 2008 have been introduced by the Department of Environment to regulate the disposal of site waste - and doing so with an emphasis on creating a recorded and auditable process for the proper, disposal of waste. The Regulations do appear to introduce another regulatory burden which will fall mainly on the principal contractor.

When do they come into force?

From 6 April 2008 but they do not apply to a project planned before the 6 April if the construction work begins before 1 July 2008.

To whom do they apply?

To any person carrying out or instructing another, to carry out construction work in the course of business, however the responsibility for maintaining and updating the Plan falls on the principal contractor. If a client does not use a contractor, then responsibility for compliance rests with the client. Initially, before a contractor is appointed, the Plan will be prepared on behalf of the client.

What is construction work?

Defined extensively, covers most forms of construction activities from design and planning onwards, including site preparation, repair, renovation and fit-out works.

Projects to which they apply

Those with an estimated cost of more than £300,000 ex. VAT with different requirements for projects over £500,000. (Note that cost is not defined as the overall project cost, but the cost of the accepted tender - or if none then the cost of labour, plant, materials, overheads and profit payable to contractors).

Basic obligation

To prepare before construction work begins, a Site Waste Management Plan ("the Plan") and to update it.

What is a Site Waste Management Plan?

A document identifying the client, the principal contractor and individual drafting the Plan. It must describe the proposed construction work, identify the location of the site and the estimated cost of the project. It must record any decision that was taken before the Plan was drafted concerning the nature of the project, its design, construction method or materials employed to minimise waste production.

It must also describe each waste type expected to be produced, estimated quantity of each, and the waste management action proposed for each. It is envisaged as including plans for re-use, recycling, recovery and disposal.

The Plan must have a declaration by the client and the principal contractor that the waste is dealt with in accordance with the waste duty in section 34 Environmental Protection Act 1990 ("EPA 1990") and the Environmental Protection (Duty of Care) Regulations 1991.

Obligations depend upon the amount of the cost of the project.

For projects under £500,000, the information required is that whenever waste is removed from the site, the principal contractor must record the identity of the person removing the waste, the type of waste removed by reference to S.34 of EPA 1990 and identify the site that the waste is taken to.

Additionally, within three months of the work being completed, the principal contractor must add to the Plan confirmation that the plan was monitored on a regular basis to ensure that the work progressed according to the Plan and that the Plan was updated in accordance with the Regulations. Any deviations must be explained.

Project estimated at over £500,000

In these cases, there are additional duties.

The identity of the person removing the waste is required, the carriers registration number and a written description of the waste in accordance with the EPA 1990. There is also a duty to check that the operator of the destination waste site holds a permit under the Environmental Permitting (England & Wales) Regulations 2007 or that he is exempt from the need for this permit.

The Plan must be reviewed as often as necessary, and in any event at no less than six monthly intervals to ensure accuracy, to record the types and quantities of waste produced, re-used, re-cycled, recovered, sent to landfill or otherwise disposed of, and to update the Plan to reflect the progress of the project.

The principal contractor shall update the plan within three months of work being completed and must add to the Plan a comparison of the estimated quantities and actual quantities of waste, an estimate of any cost savings (cost increases are not mentioned) achieved by implementing this Plan and an explanation of any deviation from the Plan.

Where and for how long should the Plan be kept?

The Plan must be kept whilst the project is ongoing at the site office or if none, at the site. The principal contractor must make sure that every contractor carrying out work described in the Plan knows about the Plan and it is available to them.

After the project is completed, the principal contractor must keep the Plan for two years at his place of business.

Additional duties

These are defined in a separate schedule to the Regulations. Some apply just to the principal contractor, some to the client and some to both.

The principal contractor must ensure co-ordination of the work and co-operation in what context amongst contractors during construction so far as possible. He must ensure so far as practicable that every worker carrying out construction work is provided with an induction, further information and training for particular work to be carried out within the Plan. He must make and maintain arrangements that will enable him and the workers engaged to co-operate effectively in promoting and developing measures to ensure waste is managed in accordance with the Plan.

The principal contractor must ensure that waste is re-used, re-cycled or recovered.

The client must give directions to any contractor so as to enable a contractor to comply with the Regulations.

The client and principal contractor must review, revise and refine the Plan as necessary to ensure responsibilities are communicated clearly. They must both take reasonable steps to ensure site security to avoid illegal disposal of waste.

Enforcement

The Regulations are to be enforced by the Environment Agency and Local Authorities.

What is an offence?

Listed in section 13 and they are wide ranging, including a failure to update the Plan or to keep the Plan during and after completion of the project.

It is an offence knowingly or recklessly to make any false or misleading statements in a Plan or without reasonable cause to fail to give anyone acting in execution of the Regulations any assistance or information which such person may require under the Regulations.

Penalties

On summary conviction a fine not exceeding £50,000, but an unlimited fine if convicted on indictment.

In the case of a company committing an offence, not only is the company liable but also so is any director, manager, company secretary, secretary or other similar person or any person purporting to act in that capacity. So they will also be liable to pay a fine. Such managers will wish to ensure that they are adequately covered.

Fixed penalty notices

These may be issued by someone authorised to enforce the Regulations where there has been a contravention of regulation 13(d) requiring the production when required to do so by an enforcing body of the Waste Management Plan or of any other record.

This enables the offender to discharge liability for that offence by paying a fixed penalty fine of £300.

Effect

The effect of the Regulations is likely to increase administrative burdens but to what extent is not yet known. The true extent of the administrative burden and cost remains to be seen, but it is likely to lead to an increase in cost which will not be absorbed by the contractor.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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