Waste Industry Update April 2010
Unified framework for the permitting regime
The revised Environmental Permitting Regulations 2010 (EPR 2010) came into force on 6 April 2010. The Regulations extend EPR 2007, which consolidated Waste Management Licensing and Pollution Prevention and Control into one single compliance system in England and Wales. EPR 2010 goes further by replacing a range of legislation dealing with environmental permitting, and integrating the existing permitting regimes under a single instrument. The Regulations therefore cover water discharge consenting, groundwater authorisations and radioactive substances authorisations, as well as the outcome of the Waste Exemptions Order Review.
In addition, EPR 2010 incorporates recent amendments that transposed the majority of the Mining Waste Directive and the permitting parts of the Batteries Directive into the single EP system.
The Regulations also aim to improve and simplify the permitting procedure for low environmental risk waste recovery and disposal operations, without altering the requirements of key European Directives on waste. Encouraging low risk waste recovery is of key importance and EPR 2010 therefore introduces some notable changes for exempt waste activities. The procedure for registering an exemption is streamlined and a number of revisals have been made to the descriptions of the exempt waste activities themselves as well as the applicable conditions. A number of previously uncategorised descriptions have been included under the general headings of Use of Waste, Treatment of Waste, Disposal of Waste and Storage of Waste.
However, as a result of the exemptions review, the changes also mean that operators currently benefiting from an exemption will need to obtain an environmental permit if their activity does not fit into one of the revised categories. The Regulations therefore make transitional arrangements for operators who have registered an exemption but who now need to obtain a permit. However, these provisions do not apply to operators who currently benefit from the EA’s low risk or regulatory positions and who may now require a permit. Instead, the EA has issued a series of position statements which clarifies low risk positions in light of the shifting exemptions. These include statements on the following issues:
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Moving from low risk and regulatory positions to an environmental permit – explains how the EA will manage the transition to environmental permitting;
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New operations that currently require a permit and become exempt under the new exemption system – advises operators who have recently acquired a permit or who have already made an application for a permit for an activity that will become exempt; and
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Effect on the exemption review on low risk positions – the EA has set out those low risk positions which will be completely withdrawn due to gaining an exemption under the exemptions review, or those that will simply continue as low risk positions under the EA’s enforcement.
Finally, DEFRA has issued updated guidance for local authorities to accompany the EPR 2010.
To view the Regulations and the updated guidance click on the following links:
http://www.opsi.gov.uk/si/si2010/pdf/uksi_20100675_en.pdf
http://www.defra.gov.uk/environment/quality/pollution/ppc/localauth/pubs/guidance/manuals.htm
The EA position statements may be accessed through the following link:
http://www.environment-agency.gov.uk/business/topics/waste/32080.aspx
DEFRA speeds up ambitions for landfill
With the rate of Landfill Tax having risen from £40 per tonne to £48 per tonne on 1 April 2010, the Government continues to raise the standard for the landfill regime with two current consultations aimed at reducing waste sent to landfill and meeting EU targets.
At the forefront is a consultation on banning certain biodegradable and recyclable waste materials from landfill, questioning the contribution that eliminating materials such as metals, glass, wood, textiles, paper, food, green (garden) waste, small electrical goods and plastics could make to speeding up recycling rates and reducing greenhouse gas emissions.
DEFRA’s view is that bans could make an important contribution in helping England and Wales to meet targets under firstly, the Landfill Directive, which sets progressive targets for diverting biodegradable municipal waste from landfill and pre-treated landfill waste, and secondly, EU targets on re-use, recycling and recovery set down by the revised Waste Framework Directive (WFD). In addition, the EU Renewable Energy Directive places an ambitious target on the UK to source 15% of its overall energy from renewables by 2020 – landfill bans would help in diverting bio-based waste from landfill to a range of different energy recovery outlets, and recovering energy from waste that cannot be re-used or recycled.
Views are invited by 6 October 2010, on the key question of how such bans would be brought in. Following close examination of the various costs and environmental benefits to be derived from banning the ‘candidate’ waste types, DEFRA has come up with several options for introducing new policy measures on landfilling restrictions. Proposals being considered look at introducing landfill bans either on their own or accompanied by a requirement for councils and businesses to sort these materials from any waste they produce, or alternatively, introducing a tougher pre-treatment requirement without the need for a landfill ban.
Depending on the outcome of the consultation, a second consultation will follow containing further detail on the preferred options, and accompanied by draft regulations to implement the options. The consultation document and details on how to respond may be viewed via the following link:
http://www.defra.gov.uk/corporate/consult/landfill-restrictions/index.htm
Meanwhile, DEFRA is changing the approach the UK takes to calculating landfill diversion targets, and is therefore consulting on the changes necessary to enable the UK to report to the European Commission on a revised approach to the landfill diversion targets.
In relation to England, the previous approach to meeting targets was implemented by the Landfill Allowance Trading Scheme (LATS). This scheme caps the total amount of biodegradable municipal waste that can be landfilled in any given scheme year, with allowances allocated to individual Waste Disposal Authorities (WDAs). However, the future of the scheme is now under review, with a number of policies having been put forward aiming to address both the local authority and private sector elements of municipal waste. The related consultation on landfill bans plays an important role in contributing towards England’s ability to remain on target.
In addition, views are sought on the options for a new interpretation of the definition of municipal waste; changes to baseline values and targets; and the reporting and monitoring obligations necessary to enable the UK to fulfil it reporting responsibilities under EU law.
Again, responses to the consultation, which may be viewed via the following link, are invited by 6 October 2010:
http://www.defra.gov.uk/corporate/consult/landfill-diversion/index.htm
The above consultations follow the recent publication of a ‘Strategy for Hazardous Waste Management in England’ (March 2010), which also sets out DEFRA’s ambition to reduce landfilling. The Strategy sets out a number of principles for the environmentally sound management of hazardous waste, which include that hazardous waste be managed in accordance with the EU waste hierarchy, that there be no mixing or dilution of hazardous waste, and that the practice of relying on waste acceptance criteria derogations under the Landfill Directive be ended. A key part of the Strategy includes reducing reliance on landfill for hazardous waste, which should only be used overall where there is no better disposal or recovery option. The application of the revised waste hierarchy, the rise in landfill tax, as well as the stringent technical requirements that apply to hazardous landfill will all act as drivers towards achieving this principle.
To view the strategy, click on the following link:
http://www.defra.gov.uk/environment/waste/topics/hazwaste/documents/policy.pdf
Greenfield soil gets the green-light
SEPA has published new guidance aimed at encouraging the reuse of “greenfield” soils, by avoiding unnecessary requirements and administrative burdens. The decision to remove the requirement for a waste management licence (WML), or registered exemption under the Environmental Protection Act 1990 and the Waste Management Licensing Regulations 1994, marks an important breakthrough in promoting the sustainable re-use of greenfield soils. Dispensing with the requirement for authorisation will bring significant financial savings and reduce the time spent on the associated administrative burdens.
The guidance relates solely to natural topsoil and subsoil from “greenfield” sites i.e. land that has not previously been developed and is uncontaminated. While the guidance illustrates those soils which fall within this definition, the onus will be on the person excavating the soil to carry out a site investigation in order to demonstrate that the soils intended for re-use are covered by the guidance.
In addition it is only greenfield soils that are used for specific off-site purposes that will benefit from the removal of the requirement for a WML or registered exemption. The list of permitted end uses of greenfield soil covered by SEPA’s regulatory position includes the following:
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Use of greenfield soil from one development on another development where the soil is required for engineering works as per the planning permission. Such use includes soils for front and rear gardens (landscaping);
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Use of greenfield soil in developments on brownfield land to meet site-specific capping requirements for remediation;
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Use of greenfield soil in sustainable urban drainage schemes (SUDS); and
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Use of greenfield soil in the construction of roads and road verges.
SEPA also highlights that all uses must be carried out within the terms of a current planning permission, and the guidance therefore applies only to construction and development projects. Where the depths of topsoil and subsoil exceed 150mm and 450mm respectively in construction projects, an exemption will again be required. Other unapproved uses include backfilling disused quarries, storage of greenfield soil on third party sites and construction activities which exceed planning permission requirements.
Although it is not compulsory for producers and users to comply with the guidance, SEPA clarifies that if they do not, their use of greenfield soil will remain subject to the requirements of waste legislation. Where soils are to be reused in accordance with the regulatory position, the producer or receiver of the soil is to complete and sign a declaration form ahead of the soil leaving the source site.
The SEPA guidance may be accessed via the following link:
http://www.sepa.org.uk/waste/waste_regulation/guidance__position_statements.aspx
Boost for biogas
The environmental potential of biogas is set to be unleashed as DEFRA publishes a plan to boost biogas production from anaerobic digestion (AD) to help combat climate change and produce renewable energy. AD is a well-established renewable energy and waste management technology which at the same time can reduce greenhouse gas emissions by capturing methane from the decomposition of organic materials.
AD plays an important role in achieving the goals of the Government’s Renewable Energy Strategy (published in July 2009) with valuable output in two key areas:
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The production of biomethane, which with similar characteristics to natural gas can be injected into the national gas network and used in existing gas appliances in certain circumstances; and
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The treated material (or digestate) which can be used as a fertiliser and a soil conditioner.
The overall purpose of DEFRA’s ‘Implementation Plan’ is to provide a framework for action by Government and stakeholders to accelerate the uptake of AD in England, setting out the actions to address opportunities and challenges in the following key areas:
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Creating the Economic framework – ensuring that the right long-term economic framework is in place to enable the market to deliver the increase the UK needs in renewable energy in order to meet renewable energy targets. Key actions include: implementing financial incentives such as the Renewables Obligation Certificates, Feed-In Tariffs, Renewable Heat Incentive and Renewable Transport Fuel Obligation, supporting the separate collection of food waste, and the effective use of digestate as a product by supporting the new standard BSI PAS110 specification and developing technical best practice guidance.
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Creating the Regulatory Framework – delivering a regulatory framework that strikes an appropriate balance between encouraging cost-effective growth in the use of AD whilst ensuring protection of the environment and those operating AD facilities. Key actions include: introducing revised exemptions from environmental permitting for small scale on-farm AD; introducing new standard permits; publishing Standard and Quality Protocol for digestate; and publishing regulatory guidance for injecting biomethane into the gas grid.
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Building capacity – harnessing the cost effective and environmentally beneficial uptake of AD by increasing awareness and understanding of the use of the technology and its products. Key actions include delivery of the Government’s £10 million AD Demonstration programme and the development of training standards for operators of AD plants.
The Government also intends to invest in the research needed to improve knowledge of the use of AD technology and its products, to make the most of its potential benefits. This will involve a £1 million contribution from the DECC (Department of Energy and Climate Change) for a new AD Development Centre. The aim is that the unit will provide the UK with a base to advance and develop new processes and intellectual property in the area of AD technology.
To view the plan, click on the following link:
http://www.defra.gov.uk/environment/waste/ad/documents/implementation-plan2010.pdf
Where was Italy during Naples ‘waste crisis’?
The European Court of Justice (ECJ) has declared Italy to be in breach of the Waste Framework Directive (WFD 2006/12/EC), by failing to meet its key requirements during the 2007 ‘waste crisis’ in Naples in the Campania region of Italy. Despite having established a regional waste management plan in 1997, the court found that Italy had not in fact implemented an “integrated and adequate” waste management network of disposal installations within the meaning of the WFD, as required by Article 5 WFD.
Naples ‘waste crisis’ can be traced back to 1994, when a state of emergency was declared in Campania following a build-up of problems with the management and disposal of urban waste. An urban waste management plan was approved in 1997, which provided for a system of industrial installations for the recovery of waste through thermal treatment, which could be supplied through a system for the sorted collection of waste, organised at regional level in Campania.
Procurement contracts were awarded to two Italian companies to build and manage seven plants for the production of combustible materials derived from waste, to be located in certain parts of Campania. However, problems ensued from the outset. Most seriously, plant construction ran into delays and flaws were detected in the design of the installations, resulting in waste accumulating to saturation point in the available landfill and storage areas. Allegations of fraud followed suit against the award of the procurement contracts, placing the plants into receivership and thus preventing the plants from reaching the required technical standards. Efforts to award fresh contracts were hampered by the lack of eligible tenders.
The events sparked an initial warning from the Commission, and although Italy acknowledged the failure of the waste management plan, it described the events as a ‘widespread phenomenon in Campania run by sectors of organised crime’. In reply to the Commission’s reasoned opinion which subsequently followed on 1 February 2008, Italy confirmed that it had not resolved the situation. Its continued failure to do so within the deadline of one month from the opinion spurred the consequent legal action, and its case was not helped with the emergence of further scandals – it was discovered that certain landfills were not on stream by the planned date of July 2008, leaving only one operational landfill in the whole of the Campania region. Moreover, waste had been shipped for disposal to other parts of Italy and even to Germany.
Undeterred, Italy continued to attribute the situation to events beyond its control, arguing that the circumstances combined to constitute a force majeure within the meaning of case-law. It therefore contended that the infringement of Article 5 of the WFD could not be attributed to inaction on its part when the inefficiencies in the production plants were the cause of the fraudulent behaviour of the operators, such as failure to perform contractual obligations, or even unlawful or criminal conduct. It added that the Italian authorities had done everything in their power to control the illegal dumping of waste (including deployment of financial and military resources), and blamed protests carried out by local inhabitants for impeding the opening of other landfills.
However, the ECJ brushed aside these arguments to focus its attention on the situation which existed at the expiry of the Commission’s deadline. Regardless of internal events and of recent steps undertaken to resolve the crisis (including the opening of additional landfills), the fact remained that Italy clearly acknowledged that on the expiry of the deadline set in the reasoned opinion, the installations then existing and operational in Campania fell a long way short of being able to meet the actual needs of the region in terms of waste disposal.
This served as a strong reminder that the question of whether a Member State has failed to fulfil its obligations must be determined by the situation prevailing in a Member State at the time of the deadline set in the reasoned opinion. Having established this crucial timescale, it followed that Italy had breached Articles 4 and 5 of the WFD.
The full judgement in Case C-297-08 can be found via the following link:
http://curia.europa.eu/
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