Waste Industry Update February 2010
A move away from waste
The Department for Environment Food and Rural Affairs (DEFRA) has launched a consultation on draft guidance on the legal definition of waste for companies who seek clarification on the position, in relation to the definition of waste under the Waste Framework Directive (WFD).
The guidance is made up of two main parts. Firstly, it offers a ‘practical guide’ to help businesses decide if materials are waste and of the processing activities which would release them from waste controls, i.e. when waste ceases to be waste. Secondly, it offers more detailed guidance on the legal definition of waste and its application, making reference to ECJ case law and using examples to aid understanding.
DEFRA is emphatic that the draft guidance is not intended to change the legal definition of waste and simply provides guidance on the interpretations that have arisen through ECJ and national case law. Therefore, views are not invited on the definition itself, or on the possibility of a change to the court’s interpretation of the definition.
DEFRA would like to receive responses from businesses and other organisations, as to the overall relevance and effectiveness of the guidance concerning the legal definition of waste, in particular whether:
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The guidance accurately portrays the wide range of factors that need to be taken into account in determining when subjects or objects are discarded and become waste?;
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An adequate explanation is provided regarding the distinction between waste controlled under the WFD (“Directive waste”) and waste controlled under other legislation (“waste”)?;
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The general principles on the definition of waste under ECJ case law have been accurately identified and the factors and criteria of both the WFD and the ECJ of deciding when a substance or an object becomes waste, have been suitably taken into account?;
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The guidance accurately sets out the distinction between production residues classified as waste and production residues classified as a non-waste by-product?;
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The principles established by the ECJ and national courts on when a substance or object ceases to be a waste have been accurately identified? On this, the draft guidance incorporates a summary of the ECJ judgements on the definition of waste, that have developed on a case-by-case basis.
The deadline for responses to the consultation is Monday 12 April 2010. Thereafter, DEFRA will publish a summary report of all responses received and their guidance on the interpretation of the definition of waste by 5 July 2010.
The draft guidance on the legal definition of waste and its application may be viewed via the following link:
http://www.defra.gov.uk/corporate/consult/waste-definition/100118-waste-condoc.pdf
Quality matters
The Waste Protocols Project is a joint initiative between the Environment Agency (EA) and the Waste & Resources and Action Programme (WRAP) which aims to promote recycling by clarifying the point at which materials cease to be waste and therefore cease to be affected by waste management regulations. The latest Protocol to be published covers the end of waste criteria for the production and use of recycled gypsum from waste plasterboard.
The Quality Protocol has four main purposes:
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To clarify the point at which waste management controls are no longer required;
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To provide holders with confidence that the recycled gypsum they purchase conforms to an approved standard;
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To provide users with confidence that the material is suitable for use in designated applications; and
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To protect human health and the environment (including soil) by setting standards for the use and production of recycled gypsum.
Recycled gypsum from waste plasterboard will be regarded as having ceased to be waste and therefore no longer subject to the waste management controls, if producers are able to demonstrate compliance with the Quality Protocol. WRAP has set out the ways in which the end of waste criteria from such material can be met, establishing that:
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The recycled gypsum must be produced from only certain permitted input materials, in this case waste plasterboard;
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The recycled gypsum must have been processed in accordance with the approved standards relating to the composition of recycled gypsum, requiring that processors ensure that they do not exceed the maximum metal and metalloid values and that the material meets the requirements of BSI PAS 109 Specification for the production of recycled gypsum from waste plasterboard;
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The recycled gypsum must be destined for use in agriculture as a soil conditioner or a fertiliser, or in construction for the purpose of manufacture or as a binder substitute; and
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Producers must provide and keep copies of customer supply documentation which includes a statement of conformance with the Quality Protocol.
Although compliance with the Protocols is not compulsory, and these currently only apply in England and Wales, non-compliance will mean that the finished product will still be considered to be waste under the definition in Article 1(1)(a) of the EU Waste Framework Directive (2006/12/EC). This means that the waste management controls for transportation, storage and use of the product will still apply.
Producers are also reminded that the Quality Protocol does not affect their obligation to hold an environmental permit and to comply with all its conditions to process and store waste plasterboard as set out in the Environmental Permitting (England and Wales) Regulations 2007.
WRAP’s Quality Protocol may be viewed by accessing the following link:
http://www.environment-agency.gov.uk/static/documents/100119PM_W524GypsumFINAL.pdf
Waste exemptions
The Environment Agency (EA) has issued a ‘hints and tips’ document for operators giving guidance to prevent waste handlers from going wrong when filling out a waste exemption notification for the first time, for waste exemptions specified in Schedule 3 of the Environmental Permitting (England and Wales) Regulations 2007 (EPR).
The guidance sets out the basic steps required in order to assist applicants for waste exemptions to get their notification right the first time, therefore ensuring that they get their waste exemption decision more quickly. Applicants are informed on the following matters in relation to the specific exemptions under the EPR:
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Fees for processing notifications: the guidance provides a breakdown of the different notification fees and renewal charges which apply until 31 March 2010 for different types of complex exemptions;
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Details about the waste: European Waste Catalogue (EWC) codes will be required for some types of complex exemptions – a table illustrates the relevant cases; and
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Notification Form: all notification forms require to have details of the company contact details, details about the type of waste with inclusion of the EWC codes where required and activity storage and land ownership details.
Finally, applicants are advised that the details given on the notification form will affect what supporting documents should be included, depending on the exemption that they are applying for. For example, applicants applying for a waste exemption for Sludge on Land (Paragraph 6 of Schedule 3 EPR) should include a location map/site plan, waste analysis, soil analysis, agricultural/ecological benefit statement and risk assessments.
For more information on complex exemptions and to view the EA guidance, click on the link:
http://www.environment-agency.gov.uk/business/topics/permitting/32324.aspx
Waste scrap metals – happy ending in the pipeline?
The EU has recently announced its intention to adopt binding criteria specifying when waste aluminium and ferrous metals that have undergone recovery operations cease to be waste.
Under Article 6 of the revised Waste Framework Directive (2008/98/EC), specific ‘end-of-waste’ criteria is to be adopted for certain waste streams. Article 6(2) states that end-of-waste specific criteria should be considered, among others, at least for aggregates, paper, glass, metal, tyres and textiles. The development of end of waste criteria for waste aluminium and ferrous metals is therefore the first of its kind, following the adoption of the revised Waste Framework Directive.
The draft regulations containing the end-of-waste criteria are currently being consulted on internally by the European authorities and are expected to be issued later this month. Following this, Member States will be expected to adopt the rules, which will set out the EU criteria which allow operators to avoid compliance with EU waste rules in certain circumstances.
Based upon a report produced by the EU’s Joint Research Centre (JRC) and the European Institute for Prospective Technological Studies (IPTS) entitled ‘End of Waste Criteria’, which aims to contribute to the development and implementation of the concept of end of waste, different criteria will apply to different metal types. For example, both waste ferrous metal (iron and steel) and aluminium scrap, the sources of which range from various industrial sectors to household appliances, would have to be free of hazardous substances, radioactivity and visible oil in order to be reclassified as a product. Further criteria would apply in order for waste ferrous metals not to be considered as waste, requiring that less than 2% of non-metallic elements are present.
In relation to scrap aluminium, for which the automobile industry is the largest source, the de-pollution and dismantling of scrap end-of-life vehicles (ELV) would have to be completed before the material ceases to be waste. It is also intended that waste management operators would have to carry out quality management procedures to ensure compliance.
The JRC is in the process of conducting technical research on similar criteria for waste copper and glass, and a draft regulation is underway for end-of-waste criteria for paper.
To view the report produced by the JRC and the IPTS, click on the following link:
http://susproc.jrc.ec.europa.eu/documents/Endofwastecriteriafinal.pdf
Mishap over Mining Waste Directive
The UK has been found to have failed in its obligations to transpose the Mining Waste Directive (MWD) 2006/21/EC, into national law within the prescribed period (Case C-259/09). Member States had until 1 May 2008 to implement the provisions of the MWD into their national law.
The scope of the Environmental Permitting (England Wales) Regulations (EPR) has been widened to include the permitting parts of the MWD. From 7 July 2009, by amendments made through the Environmental Permitting (England and Wales) (Amendment) Regulations 2009, introducing the requirement that Article 4 of the MWD be met (urging for minimum damage to human health and the environment from handling of extractive waste) amongst other requirements, the UK failed to introduce these legislative changes within the timescales set by the Directive.
Initially, the UK stated that legislation to transpose the MWD would be brought into effect at the end of 2008 for England and Wales, and by the end of 2009 for Northern Ireland. The UK indicated that the MWD could not apply to Gibraltar, as there were no mines and quarries there, and it was unlikely that any would open. However, after having still failed to implement the MWD within two months from the date of the reasoned opinion issued to it by the European Commission in December 2008, the Commission decided to take action.
The UK’s subsequent defence that only Scotland and Northern Ireland were left to adopt the MWD (given that implementation by way of the EPR for England and Wales was going through the relevant legislative motions, and also by indicating that the MWD would in fact be implemented in Gibraltar by 31 October 2009) – was not accepted by the ECJ. In its judgement, the court reiterated the fact that subsequent steps taken to comply with EC obligations cannot rectify the situation that existed at the end of the period laid down in the reasoned opinion.
Scotland and Northern Ireland are still in the process of transposing the Directive through their respective planning regimes, with final draft regulations awaited for both jurisdictions. However, the case highlights how the Commission takes a serious view of delay on the part of Member States, in transposing European requirements into national law.
The text of the judgement may be accessed via the following link:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-259/09
Food for thought
The Environment Agency (EA) has released a regulatory position statement explaining how it will collaborate with the food industry to develop a standard rules permit that will cover the temporary storage of food waste, for the purpose of bulking up prior to recovery, at another location. The statement sets out how the EA will regulate this activity until the permit becomes available, which is expected to be in October 2010.
Currently, the storage at the place where waste is produced is exempt from permitting under Schedule 3 paragraph 52 to the Environmental Permitting (England and Wales) Regulations 2007. Supermarkets are using the allowance to store up to 50 cubic metres of waste at their storage facilities, storing and compacting food waste (bulking up) to quantities that optimise cost-effective recovery. Smaller stores will transport food waste to larger stores, or to regional depots with the adequate storage facilities which maximise the capacity to store up to this amount / the 50 cubic metre limit.
The EA is of the belief that it would be acceptable to store up to 120 cubic metres of food waste at such storage facilities, including liquid waste. The standard rules permit would cover these extended allowances. The outcome of such expansion would be to divert more waste from landfill and increase recovery of waste. However, it should be noted that this position statement does not apply to the storage of hazardous waste.
Until the standard rules permit becomes available, the EA have established certain conditions that will apply to the food industry for the activity of storing liquid and food waste, if they wish to avoid having to hold a permit. These include conditions as to the safe and hygienic storage of food waste, and conditions ensuring that recovery is the ultimate objective of the owner of the waste.
Above all, temporary storage of food waste must take place in light of the overall objectives of the Waste Framework Directive, which requires that waste is recovered and disposed of in a way that is sensitive to the protection of human health and the environment.
The EA’s position statement on the temporary storage of food waste may be viewed at:
http://www.environment-agency.gov.uk/static/documents/Business/MWRP_RPS_052_Storage_of_food_waste__Jan_2010.pdf
The matters covered in this ebulletin are intended as a general overview and discussion of the subjects dealt with. They are not intended, and should not be used, as a substitute for taking legal advice in any specific situation. Semple Fraser LLP will accept no responsibility for any actions taken or not taken on the basis of this publication.
FOR FURTHER INFORMATION CONTACT: VINCENT BROWN