Site Waste Management Plans &The Waste Framework Directive

Angus EversPartner, Head of Environment Group, SJ Berwin LLP

25 June 2009 – East Anglia Construction Safety Group

693361.1

Agenda

• Why do we need SWMPs?

• When is a SWMP required?

• What must a SWMP include?

• Who are the key dutyholders and what are their duties?

• What if we don’t produce a SWMP?

• Practical points and resources

• Conclusions, experiences, discussion

Why do we need SWMPs?

• UK construction output is the second largest in Europe

• Estimated turnover of £100 billion

• Employs around 2 million people in 250,000 companies

• Largest user of material resources – 400 million tonnes a year

• One third unused and sent to landfill

• CD&E waste accounts for nearly 30% of all fly-tipping incidents

Aims of SWMPs

• The reduction of fly-tipping

• Reduction of waste

• Promote compliance with existing waste management provisions

• Some local planning authorities already require SWMPs

• DCLG Code for Sustainable Homes includes SWMPs as a mandatory component

Benefits of SWMPs

• Manage risks relating to materials and waste on site

• Deal with queries from regulators and enforcing authorities

• Demonstrate to clients how waste is managed

• Contribute to requirements of an environmental management system

• Decrease costs

Site Waste Management Plans Regulations 2008

• Came into force in England on 6 April 2008

• Powers in Section 54 of the Clean Neighbourhoods and Environment Act 2005

• “Non-statutory guidance for waste management plans” produced by DEFRA (April 2008)

• Supplemented by other existing EU and UK legislation

• Do not apply to projects planned before 6 April 2008 where construction works began before 1 July 2008

Key provisions

• “Any client who intends to carry out a project on any one construction site with an estimated cost greater than £300,000 excluding VAT must prepare a site waste management plan conforming to these Regulations before construction work begins.” (Regulation 5(1))

• Key terminology:

– Client

– Project

– Construction site

– Construction work

– Cost of construction

Exemptions

• Routine maintenance operations

– e.g. gully cleaning

• Part A installations as defined in the Environmental Permitting (England and Wales) Regulations 2007

– e.g. construction of power plants, refineries, and metal processing plants

The Requirements of a SWMP

1. Identification:

• The client, the principal contractor, and the person who drafted the SWMP

• Responsibility for the SWMP remains ultimately with the principal contractor and client

• Where a project does not involve contractors, the client maintains sole responsibility for the SWMP

The Requirements of a SWMP

2. Description of construction work:

• A SWMP must describe:

– The details of the construction project proposed

– The location of the site

– The estimated costs of the project

The Requirements of a SWMP

3. A record of decisions taken before the SWMP was drafted:

• Decisions relating to the nature of the project

• Project design

• Construction methods and materials employed

• Minimise the quantity of waste produced on the site

• E.g. design specifications, the choice of materials used, method of construction

The Requirements of a SWMP

4. Waste description and management:

• A description of each waste type expected to be produced

• An estimate of the quantity of each different type of waste

• Identify the waste management actions proposed to deal with the waste

• Provisions to deal with how waste will be reused, recycled, recovered and disposed of

• “Waste” defined – the Waste Framework Directive

Waste Framework Directive 2008/98/EC• To be implemented into national law by Member States by 12 December

2010

• Amends and consolidates EU waste legislation

• Aimed at establishing a common set of principles dealing with the strategic planning and authorisation of waste disposal

• Waste or by-product

• Defines “waste” – “any substance which the holder discards or intends or is required to discard”

• Encourages the five-tier waste hierarchy (Article 4(1))

• Requires the transposition of the “polluter pays principle” into national legislation (Article 14)

• End-of-waste status

• Preparing for re-use, recycling and other material recovery of non-hazardous C&D waste to be increased to at least 70% by weight by 2020

The Requirements of a SWMP

5. Waste duty of care declaration:

• Declaration that the client and principal contractor comply with waste duty of care

– Section 34 Environmental Protection Act 1990

• To take care of waste while it is in their control

• On exchange of waste, ensure the recipient is authorised to take possession

• Transfer notes – to be completed, exchanged, and retained when waste is exchanged

• Take all reasonable steps to ensure the prevention of unauthorised handling or disposal of waste by others

Projects between £300,000 and £500,000

• Whenever waste is removed, record:

– The identity of the person removing the waste

– The type of waste being removed

– The destination for the waste

• Within three months of completion of the construction work

– The principal contractor to confirm that the plan has been monitored and reviewed on a regular basis to ensure that construction work is progressing in accordance with the plan

– Explanation for any deviation from the plan

Projects over £500,000

• Whenever waste is removed, record:

– The identity of the person removing the waste

– A description of the waste

– The destination of the waste

• Principal contractor to review the SWMP as often as is required to reflect the accuracy of the project/in any event not less than every six months

• Record the types and quantities of waste produced, and their destinations

• Outline the progress of the project

• Within three months of construction work being completed

– Principal contractor to confirm that plan has been monitored on a regular basis

– Reconcile estimated quantities of waste against actual quantities

– Explanation of any deviation from the plan

– Estimate of the cost savings that the SWMP has achieved

Additional Duties

• The principal contractor:

– Ensure co-ordination of the construction and waste management work

– Co-operation among contractors during the construction phase

– Suitable site induction and training

• The client:

– Duty to give reasonable directions to contractors to enable them to comply with their duties under the Regulations

• The client and the principal contractor:

– Review and revise the plan

– Ensure changes are communicated

– Ensure that appropriate site security measures are in place to prevent the illegal disposal of waste from the site

SWMP Lifecycle

• Different parties are involved in updating the SWMP at various stages of the construction project life

• Conception and design – client, designers, planners

• Site design and tendering – client, designers, planners, principal contractor

• Construction phase – principal contractor, sub-contractors

• Post-completion – principal contractor

Availability of the SWMP

• SWMP to be kept either at the site office, or in the absence of one, at the site

• Every person involved in the construction project should know where the plan is kept

• Following completion of the project:

– SWMP must be kept for two years

– At the principal contractor’s place of business, or project site

Enforcement

• Enforcing authorities

– Environment Agency, any local government principal authority, any district or county council

• Phased approach to enforcement

• Enforcing authorities should take an advisory role to ensure smooth implementation of the Regulations

• Key aims:

– Ensure that a SWMP has been written and implemented

– Consider whether a SWMP is a true reflection of waste management practices taking place

– Waste which is evidence as being removed from the site has been reconciled against the estimate in the plan

Criminal Offences

Offence Possible liable party/parties

Starting a project (on site) without a SWMP Client and principal contractor

Failing to update a SWMP when waste is removed from site

Principal contractor (or client if no principal contractor)

Failing to make a SWMP available on site Principal contractor (or client if no principal contractor)

Failing to keep a SWMP for two years from completion Principal contractor (or client if no principal contractor)

Failing to comply with additional duties Client and/or principal contractor as specified in the Regulations

Making a false or misleading statement in a SWMP Client, person drafting the plan or principal contractor

Failing to co-operate with, or intentionally obstructing anybody acting in the execution of these Regulations

Anyone failing to assist implementation of the plan or failing to respond to a request or visit by an enforcing officer

Sanctions

Fixed penalty notices:

• Where any person has failed to produce a SWMP

• Payment of fixed penalty – currently £300

Criminal Penalties:

• Summary conviction – fine not exceeding £50,000

• Conviction on indictment – unlimited fine

• Where a company is guilty of an offence and the offence has been committed with the consent or connivance of, or as a result of the neglect of, any director, manager or person of similar standing, that person is also guilty of an offence as well as the company

Nine Steps to a Successful SWMP

• Responsibility

• Waste identification

• Options

• Disposal

• Material requirements

• Communicate

• Measure

• Monitor

• Review

(DTI Voluntary Code of Practice 2004)

WRAP: SWMP Template

• The WRAP template is an excel spreadsheet which takes you through the process of completing a SWMP

Updated June 2009, available at: www.wrap.org.uk/construction

Conclusions

• SWMPs are required for construction projects with an estimated cost of more than £300,000

• Clients, contractors, designers, and construction workers all have SWMP responsibilities

• Phased approach to enforcement

• Criminal sanctions

• SWMPs have many cost, quality, and environmental benefits

• Will they make a real difference?

Angus Evers

SJ Berwin LLP

10 Queen Street Place, London EC4R 1BE

Tel: +44(0)20 7111 2763

Mob: +44 (0)79 1247 6129

Email: angus.evers@sjberwin.com