UK: Environment Bulletin: Waste Management

Last Updated: 3 January 2008
Article by Maria Cull, Sebastian Charles and John Garbutt
Landfill Tax Amendments In Force

Amendments to the Landfill Tax Scheme came into force on 1 April 2007. The Landfill Tax (Amendment) Regulations 2007 SI2007 No 965 brought into force various, mainly minor, changes to the Landfill Tax Regulations 1996. The changes include:

  • The maximum credit a landfill site operator may claim against annual landfill tax liability returns to 6.6% (after a year at 6.7%);
  • Approval by the regulator of an environmental body (the organisation that administers and uses landfill tax credits) may now be granted subject to conditions;
  • New requirements on an environmental body to provide financial information to the Regulator, also their accounts, but only where those are requested.

New Packaging Waste Regulations

Updated provisions, applying to the whole of Great Britain, relating to the recovery and recycling of packaging waste came into force on 16 March 2007. With a saving for transitional matters, the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 SI2007 No. 871 replace similarly named provisions of 2005. They are an update of the earlier regulations, particularly taking into account progress relating to recycling and re-use.

The essence of the requirements for producers is to be found in regulation 4 and various schedules. Obligations depend upon whether the producer of packaging waste is a manufacturer, converter, packer/filler, seller, secondary provider or service provider. The recovery target in each case is a percentage by reference to the number of tonnes handled in a given year. This percentage will vary between 6% and 85%. Where a producer falls into more than one category, then the percentages are aggregated. Recovery targets are set at 67% for 2007 and increase by 1% per annum up to 2010 (70%). There are also recycling targets which depend upon the type of material being handled (see table below).

Producers have alternative methods of compliance with the Regulations. They may either proceed alone or, more usually, they will join the numerous schemes being operated by various organisations who take on many of the responsibilities for producers. In all cases, the producer is required to be registered under the terms of Part III of the Regulations. Records are required to be kept and returns made to the relevant regulator.

The Regulations are now quite complex and there are special arrangements for small users, importers and others. For further explanation and help please contact the Planning and Environment Group.

Fixed Penalty Notices For Environmental Crimes

From 2 April 2007 the Environment Agency has been empowered to issue fixed penalty notices imposing £300 fines on any businesses who are unlawfully carrying waste. The powers derive from the Clean Neighbourhoods & Environment Act 2005 and the Hazardous Waste Regulations. The powers extend to other offences besides failure to show registration as a waste carrier. These include failure to comply with the requirements of the duty of care provisions of the Environmental Protection Act 1990 and other offences for failure to manage hazardous wastes. It should be pointed out that, whilst it is desirable to do so, there is no obligation for waste carriers to carry registration certificates with them. If they are unable to produce the documents, they are usually given 7 days to produce them. Only when there is a failure to produce will the fixed penalty notice come into effect. As the notice will make clear, there is a right of appeal against the issue of the notice.

Waste Licensing Exemptions - Changes In Force

Exemptions from the requirement for a waste management licence which either change or add to existing provisions came into force on 2 May 2007. The Waste Management (Miscellaneous Provisions) (England and Wales) Regulations 2007 SI2007 No 1156 provide as follows:

  • An application of liquid milk to land may only be made once a month;
  • An application of plant tissue to land is now further restricted by reference to plant health requirements;
  • New exemptions provide for activities involving the disposal of pesticide solution in controlled circumstances, the treatment of land with ash from incineration of pig or poultry carcasses and with dredging spoil from farm ditches;
  • An exemption for the emission of dark smoke caused by the open burning of containers likely to be contaminated with pesticides has now been removed.

Landfill - Is Piggy-Backing Lawful?

Since the Landfill (England & Wales) Regulations 2002 came into force there has been considerable controversy and dispute between operators and regulators concerning the lawfulness of permits which are intended to allow a new deposit of waste which nevertheless overlapped an existing deposit, a procedure known in the trade as "piggy-backing". The matter has finally come to be considered by the Administrative Court in the case of R (Anti-Waste Limited) -v- The Environment Agency (2007) EWHC 717 (Admin). The company had sought to landfill at two sites in such a way that the deposited waste would overlap a previous closed cell of waste. The Agency had refused permission for that operation on the grounds that piggybacking was not permitted by the Landfill Regulations which themselves were imposed by the EU Landfill Directive 1999/31. The difficulties are fairly obvious in that the placing of further waste on top of an existing cell might well open up the threat of harmful discharges to groundwater and other pollution.

Mr Justice Collins took a firm line. His judgment was that piggy-backing could only be lawful if it could be demonstrated that there was no serious risk of pollution, either currently or in the future. A landfill permit did not have to refer to the whole site including the old cell. The judgment also concluded that the Groundwater Regulations 1998 would prevent the grant of an authorisation if there were any relevant discharges whether or not the new deposits themselves caused any such discharges. The judgment was perhaps inevitable, although there are some who had hoped that difficulties of restoring a site comprising new and old cells (with no right to overtip the latter) would justify a more liberal assessment of the criteria of the Directive and the Regulations. Unfortunately, the judgment is likely to further delay and diminish the quality of several landfill projects.

London Waste Management - Mayor's Policy Rejected

Under the Greater London Authority Act 1999 the Mayor of London has powers to issue directions to a waste disposal authority in general support of his policy for waste management. As is well known, there are some inconsistencies between the Mayor's view that the policy should demand urgent upgrade of facilities and the more "best practicable" approach of the Secretary of State and the disposal authorities. Matters came to a head in the recent case of R (West London Waste Authority) -v- The Mayor (2007) EWHC 757 (Admin). The authority proposed to invite tenders for a contract for diversion of waste away from landfill and was known to favour incineration. In the belief that this approach was not in accordance with his strategy, the Mayor issued directions to the authority which required that new incinerator contracts should include "state of the art" emissions control equipment and combined heat and power generation, together with pre-treatment of waste to preserve recyclables. The authority sought a judicial review of the Mayor's directions, contending that this approach exhibited aspirations which could not justify requiring only an incinerator that complied, when to do so would be to ignore one that did not. Since there was a risk that no operator would tender, the inevitable result would be continued use of landfill, contrary to EU and UK policy. In the Administrative Court, Mr Justice Goldring found in favour of the authority, concluding that the Mayor did not have the power to exclude an option when the result might be as the authority had feared. The legislation was clear, in that the best practical environmental option needed to be chosen. Thus there was a requirement to consider practicalities and cost. The Mayor's directions had not followed that approach and the court therefore quashed them.

New Strategy For England

The Secretary of State for Environment Food and Rural Affairs has recently published a new waste strategy for England. This document is intended to replace that which was published in 2000. The government's key objectives are to:

  • Decouple waste growth from economic growth and emphasise prevention and re-use;
  • Exceed the Landfill Directive diversion targets for biodegradable municipal waste;
  • Develop more diversion from landfill of non-municipal waste;
  • Increase the investment in infrastructure needed for that diversion and for the management of hazardous waste;
  • Increase investment for recycling of resources and recovery of energy from residual waste.

Higher national targets are set for recycling and composting of household waste - at least 40% by 2010, 45% by 2015, 50% by 2020 and recovery of municipal waste - 53% by 2010, 67% by 2015 and 75% by 2020.

There is a strong emphasis on incentives. The Landfill Tax escalator will provide for an annual increase of £8 per year, so that the present rate of tax at £24 per tonne will go up to £48 per tonne in 2010. There will be enhanced capital allowances for investment involving the use of secondary recovered fuel for combined heat and power facilities.

New Waste Shipment Regulations

The Transfrontier Shipment of Waste Regulations 2007 SI2007 No 1711 came into force on 12 July 2007 and replaced the previous regulations of 1994, as amended by those in 2005. The Regulations are needed to comply with the European Regulation on Shipments of Waste No. 1013/2006.

The Regulations contain requirements on the government to have a waste management plan and to impose general requirements for shipment of waste both within the Community and to third countries. The Regulations also deal with the import of waste from those countries, imposing requirements based on the Basel Convention. As with the current Regulations, the transit of waste will require special approvals, whether that waste is intended for disposal or for recovery. Special arrangements provide transitional arrangements for shipments to new EU entrants, such as Latvia, Poland etc.

Definition Of Waste - Further Decision

In the Spring 2007 edition of the Environment Bulletin, we drew attention to the case of OSS Group Limited -v- Environment Agency and others. The High Court's decision has now been overturned by the Court of Appeal in a ruling which will give some comfort to the recycling industry. In OSS Group Limited -v- Environment Agency and others (2007) EWCA civ 611 the Court heard that waste material prepared for use as a fuel only had been found by the Court below as only ceasing to be waste for the purposes of European law when it was actually burned. The company had sold products, claiming that they ceased to be waste following the recovery processes to which it had been subjected. However the High Court Judge had agreed with the Environment Agency in deciding that the definition of waste still applied. This decision was significant in that this meant that users had to comply with various European directives including the Waste Incineration Directive and considerable expense resulted.

The Court of Appeal held that the Environment Agency's view was too narrow. A practical commonsense approach was required, consistent with the letter and spirit of the directive. Whilst it was true that material did not cease to be waste merely because it had passed into possession of someone intending to put it to a new use, in the case in question the facts were distinguishable. Here, the proposed user was treating the material exactly as though it were ordinary fuel, with similar environmental effects.

Hazardous Waste - New Guidance

The Environment Agency has recently published a welcome guide to the Hazardous Waste Regulations and the List of Waste Regulations in England and Wales. The guide offers interpretation of the two sets of regulations which came into force in July 2005.

The guide is helpful in providing a step by step review to assist holders in understanding whether their waste is hazardous. The list of hazardous wastes is provided, against which a check can be made. Appendices identify a list of hazardous properties and relevant thresholds. In addition, there is an indication of the means by which further substances may be treated as hazardous waste, following review by the Secretary of State.

Alongside the above guide the Agency has issued what they describe as the first of two guidance notes giving farmers and growers practical advice on how to comply with the new rules on hazardous waste. The stricter controls apply to agricultural waste from 15 May 2007. The guide includes a comprehensive list of waste potentially arising in connection with agriculture including packaging, plastics, animal health waste, machinery and electronic and similar wastes. In each category there is a comment as to whether individual wastes are likely to be hazardous or not.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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