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Getting tough on construction waste

At the close of 2010, the Environment Agency (EA) has been busy addressing its approach to waste by adopting stricter regulations to deal with the management of construction projects.

The EA has reviewed its approach to Site Waste Management Plans (SWMP) so it can become more pro-active in inspection and enforcement of the SWMP Regulations 2008, following trials in Milton Keynes back in the autumn.

SWMPs are compulsory on any construction project in England which has an overall estimated worth exceeding £300,000. A SWMP must be prepared before any construction work, including fitting out and alterations, begins.  The client has responsibility for the preparation of the SWMP, and this responsibility cannot be transferred to any contractor or other person employed by the client on their project. 

Under the Regulations, the client must produce the initial SWMP before construction work begins, appoint the principal contractor and pass the SWMP to the principal contractor.  In turn, the principal contractor must obtain relevant information from sub-contractors, keep the SWMP on site during the project, ensure that other contractors know where the SWMP is kept, allow other contractors and the client access to the SWMP during the project, and keep the SWMP for two years after the project has finished.

The author of a SWMP may be able to consider ways that waste can be reduced and on-site materials can be reused or recycled as part of the project, by identifying waste materials at an early stage that can not be reused. This should make it easier to find other alternative uses for them. 

The SWMP must also be continually updated whenever any waste is removed from the site, with information including the identity of the person removing the waste, the type of waste removed and the destination of the waste.  There is no specific format which should be used by clients when drafting a SWMP, but guidance has been provided by Defra, which sets out details of what should be included as well as including a specimen template.  

Defra recommends that a SWMP should include: design information as to waste minimisation; outlines of plans to reuse, recycle or recover different wastes; the description of type and estimated amount of waste; the site location; the estimated cost of the project; the identity of the client and principal contractor; and finally the author of the SWMP.

The EA has powers to enforce the duties under the SWMP Regulations, which includes the duties to reuse, recycle or recover waste and the wider duty of care. This could have a significant impact on construction projects, as fines for non-compliance are unlimited and a number of offences could potentially be prosecuted by the EA from the same SWMP. 

Penalty notices can be distributed by authorised officers of the EA or councils to any company failing to comply.  If a company has been found guilty, there is the risk of personal liability for managers and officers of the company when there has been a negligent or connived act which has breached the Regulations.

This stricter approach to construction projects has been implemented just prior to the widening of the EA’s powers which are due to be introduced on 4 January 2011.  From this point the EA will have the option of implementing civil sanctions when taking enforcement action against a company or individual who causes environmental damage. 

This means that the EA will have a wider and more flexible alternative to prosecution and criminal penalties when taking action against environmental offenders.  The flexibility offered by the new civil sanctions may lead to an increase of enforcement activity by the EA and, in turn, an increase in compliance. 

Jeremy Eden is head of the waste, renewable and energy team at legal firm EMW

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