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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
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 carrier's 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.
For more information please contact Shaun Tame or
Shafim
Kauser.
The content of this bulletin 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.