Waste Industry Update June 2010
SEPA removes question mark over quality assured gypsum
The market for quality gypsum recycling is set to grow, which should result in a reduction in construction waste, as the Scotland Environment Protection Agency (SEPA) confirms its position that waste plasterboard processed in accordance with the correct specification will no longer be regarded as waste. The move is an attempt to encourage more businesses to increase the amount of materials they are recycling, sending a strong message to the building industry in particular, that SEPA takes the issue of construction waste very seriously.
The decision to support the manufacture of gypsum from waste plasterboard is aimed at reducing pollution from landfill. When gypsum comes into contact with biodegradable waste in landfill, toxic hydrogen sulphide gas is produced with a strong odour. However if producers separate the gypsum for recovery and recycling, it can then be used to replace virgin gypsum in plasterboard, cement and soil conditioners.
The recently published PAS 109 ‘Specification for the production of recycled gypsum from waste plasterboard’ is a WRAP initiative which specifies minimum requirements for the recycling process itself. PAS 109 covers the selection, receipt, handling of inputs, specification of product grades and the storage, labelling, dispatch and traceability of the products that are produced from that process. It also specifies requirements for a quality management system to ensure the recycled gypsum being produced is consistently fit for its intended uses.
SEPA states clearly that when sold and made ready for dispatch to any of the three end-uses in plasterboard, cement or soil conditioners, PAS 109 compliant gypsum will cease to be regarded as waste. Therefore the subsequent storage, movement and use will avoid waste legislation requirements.
An added bonus for recyclers is that the PAS 109 will enable recyclers who adopt it to produce, and users to procure, a quality assured material. This will increase confidence in the use of recycled gypsum, leading to growth in existing markets and the development of new markets.
The full SEPA position statement may be viewed via the following link:
http://www.sepa.org.uk/waste/waste_regulation/guidance__position_statements.aspx
The PAS 109 specification for recycled waste plasterboard is available for download by clicking on the link below:
http://www.wrap.org.uk/recycling_industry/information_by_material/plasterboard/pas109.html
Re-use of excavated soil – clearly a case to answer
A recent judgement saw the Court of Appeal allow an appeal against the Crown Court’s dismissal of a prosecution for waste offences under section 33 of the Environmental Protection Act (EPA). Section 33 prohibits anyone from depositing controlled waste or from knowingly causing or permitting controlled waste to be deposited in or on land unless an environmental permit is in place and the deposit is made according to the terms and conditions of that permit. In this case, large quantities of excavated soil had been deposited onto land owned by the respondents, without there being an environmental permit in place.
The Crown Court found that there was not sufficient evidence to show that the material was waste, thereby accepting that there was no case to answer in relation to the charges under section 33 EPA. However, regarding the question of whether such soil could be considered as either ‘waste’ or ‘controlled waste’ within the meaning of the EPA, the Appeal Court has now decided that there is a case to answer and therefore that the case should be sent back to the Crown Court for re-trial.
The respondents in the case owned the farm on which deposits of material extracted from neighbouring farm land were made between 2007 and 2008. The material arose in the course of construction on that neighbouring land of new hotel premises, and consisted of soils and subsoils excavated during those works.
When the case came before the Crown Court, the defence argued that their activities did not require a waste management licence because the receipt of the material was for their own construction purposes in relation to their farm. In other words, they argued that the immediate re-use of the deposited materials took them outside the definition of ‘waste’ in section 75 of the EPA which defines ‘waste’ as any substance or object which will ultimately be discarded by the holder. A ‘holder’ is defined under section 75 as the producer of the waste or the person who is in possession of it.
The prosecution however, viewed the defendant’s actions as going against the key objectives of the Waste Framework Directive (WFD) which, as it pointed out, was transposed by the EPA. Section 75(2) endorses the essential objective of the WFD which is the protection of human health and the environment. The key concern of the prosecution was the fact that the farm lay within an area of Special Area of Conservation, an area subject to a high level of environmental protection under European law.
However, when the case first came before the Crown Court it was held that there was no case to answer on the basis that the prosecution had failed to establish that the material deposited was waste. The actions of the defendants were scrutinised against the key provisions of the EPA, leading to the conclusion that the immediate re-use of the soil removed any element of ‘discarding’ in the use to which the defendants as ‘holders’ of the waste, put the material immediately upon its deposit.
Secondly, the Crown Court dismissed the contention that the material would at least be capable of being considered ‘controlled waste’ within the meaning of section 75 (4) of the EPA which defines such waste as any household, industrial and commercial waste. Although this further includes waste from premises used for agriculture and waste arising from construction works, the court placed little value in waste transfer notes produced from hauliers to the farm, saying that this was insufficient to amount to any evidence that could enable a jury to find that the material as loaded onto the haulage lorry was controlled waste.
However, after deliberation over key case-law on the application of the definition of waste, the Appeal Court concluded that the issue depended on the facts of any individual case, together with close consideration of the overall aims of the WFD. Putting forward key questions that the jury should consider in the application of the definition of waste, it established that the Crown Court had wrongly assessed the status of the materials entirely by reference to the respondents being ‘holders’ who had subsequently re-used the materials. The Appeal Court clarified that the hauliers were also holders (when they were transporting the materials) and that it was open to the jury to find that the material was waste from the moment it was excavated by the landowners. At that point the landowners were the holders and needed to dispose of the materials. It therefore considered the Crown Court to have been wrong to concentrate upon the intentions of the respondents to put the material to immediate re-use.
The court declared that the jury should instead be asked to consider whether the materials ceased to be waste because they were no longer capable of being discarded and were capable of being recovered or disposed of in an acceptable manner. However, it held that the determining question which preceded all others was whether re-use is consistent with the key aims of the WFD, in particular the protection of human health and the environment. In this respect, it confirmed that the farm’s presence within an SAC was a highly relevant fact to be included in the jury’s assessment of whether the material was ‘waste’.
As a result the court decided that, as there was a case to answer as to whether the material was ‘waste’, there was clearly a case to answer that the material was ‘controlled waste’, which the jury were entitled to conclude on the basis of the evidential material. A fresh trial must therefore now take place in the Crown Court for the offences charged under section 33 EPA.
The full text of the judgement may be viewed by clicking on the link below:
http://www.bailii.org/ew/cases/EWCA/Crim/2010/927.html
A show of competence under EPR 2010
The Environment Agency (EA) has issued guidance on Operator Competence, which aims to show how operators of previously exempt waste sites can show technical competence. Following the recent expansion of the permitting regime under the Environmental Permitting Regulations 2010 (EPR 2010) which came into force in April 2010, a wide range of activities were brought into a single system, which now includes waste facilities, installations, mobile plants, mining waste, groundwater, surface water discharges and radioactive substances within its remit.
At the same time, EPR 2010 and the exemptions review saw an overhaul of the exemptions for low risk activities which do not require an Environmental Permit. Several activities, such as car scrap yards, which previously operated under exemptions, now need permits. Managers of such sites will now need to demonstrate their technical competency in order to be granted a permit.
The EA guidance therefore sets out the requirement that operators holding environmental permits must be competent to deal with the environmental risks associated with their activities and that the EA must be satisfied as to the operator’s competence when assessing applications for new permits, transfers of permits and when checking compliance with permit conditions.
The guidance also identifies that different requirements for technical competence will apply to different types of regulated facility, though all operators must meet the general requirements of knowing how to operate their equipment, compliance with law and policy and how to minimise risk and the impact on people and the environment. The EA will apply all requirements for operator competence in proportion to the complexity of the regulated facility and its environmental risks, including the requirement to have effective environmental management systems (EMS) in place.
Finally, the guidance informs operators affected by the EPR changes that they must take a simple, online test provided by the Chartered Institution of Wastes Management (CIWM) and the Waste Management Industry Training and Advisory Board (WAMITAB) within 12 months of receiving a permit. As an indication of continuing competence, operators will have to show that they have updated their knowledge about subjects relevant to their operation every two years. Existing holders of Certificates of Technical Competence (CoTCs) issued by WAMITAB will continue to be recognised as competent for as long as their certificate is valid.
The guidance may be viewed by accessing the following link:
http://www.environment-agency.gov.uk/static/documents/Business/RGN_5_Operator_Competence_(v2.0)_30_March_2010.pdf
Believing in biowaste
The European Commission (EC) has outlined its strategy to improve the management of biowaste in the EU and its plans to optimise its significant environmental and economic benefits. The move signals that the EC has no plans to introduce a Biowaste Directive in the short-term calling instead for the ‘best use’ of existing legislation such as the Waste Framework Directive (WFD) to maximise the financial and environmental benefits of managing biodegradable waste.
The main environmental threat from biowaste is the production of methane gas in landfills which accounts for a significant amount of greenhouse gas emissions across the EU. The Landfill Directive (1999/31/EC) sets targets for Member States to reduce the amount of biodegradable waste they landfill by 2016. Therefore the EC’s report reinforces the point that Member States must make the strict enforcement of the targets on diverting bio-waste away from landfills a priority action, contributing instead to exploring its potential as a renewable source of energy and recycled materials.
In particular, the report, entitled ‘Communication from the Commission to the Council and the European Parliament on future steps in bio-waste management in the European Union’, calls for proper application of the revised waste hierarchy with regards to the bio-waste stream. Moreover it positively endorses the key recommendations made by Articles 11 and 22 of the revised WFD that Member States take action to encourage the separate collection of the bio-waste stream, emphasising that this maximises the potential for material to be composted or treated using Anaerobic Digestion (AD).
In addition to the priority actions required of Member States under EU waste legislation, the report provides assurance that the EC will also play its role in improving the management of biowaste. A key promise is its proposal to provide specific guidance for biowaste prevention to be used with the national waste prevention plans that, under the revised WFD, Member States are expected to develop by 2013.
Meanwhile, the European Parliament’s Environment Committee adopted a non-legislative resolution last week, showing its support for a directive on biowaste and therefore urging the Commission to rethink the position presented in its recent communication. Whether this will cause the Commission to change its position regarding the adoption of a new directive, will remain to be seen.
Further information can be found at the following links:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/578&format=HTML&aged=0&language=EN&guiLanguage=en
http://www.eppgroup.eu/press/showpr.asp?PRControlDocTypeID=1&PRControlID=9420&PRContentID=16166&PRContentLG=en
Waste oil storage – EA keeps a lid on it
The Environment Agency (EA) has issued guidance which aims to steer oil handlers through key legislation on oil storage, highlighting the main legal requirements for secondary containment of waste oil, including for waste mineral oil. In particular, the guidance entitled ‘Oil Storage Regulations – Is Secondary Containment of Oil Storage a legal requirement?’, clarifies when the Control of Pollution (Oil Storage) England Regulations 2001 (OSR) – enforced by the EA, will affect oil handlers. The OSR requires oil handlers who store more than 200 litres of oil in England to provide more secure containment facilities, tanks, drums, intermediate bulk containers (IBCs) and mobile browsers, to prevent oil from escaping into the environment. The Regulations cover a wide variety of oils and therefore there is no specific definition of ‘oil’ in the OSR.
However, the guidance makes it clear that the OSR does not apply to waste mineral oil, which is instead covered by the Environmental Permitting Regulations 2010 (EPR) (formerly called the Waste Management Licensing Regulations, appearing under this name in the guidance). Under EPR 2010 waste mineral oil is limited to 3 cubic metres, which must be in a secure container and operators must provide secondary containment. Operators who store waste oil in an amount above the 3 cubic metre limit, are required to have an environmental permit. However, a standard condition of permits for EPR regulated facilities is that the general activities within oil stores should comply with OSR England.
Therefore, the purpose of the guidance is also to provide oil handlers with a breakdown of those cases which will be governed by oil storage regulations which are not enforced by the EA. These regulations include the Building Regulations 2000, OSR Scotland and the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) Regulations 1991. In relation to the Building Regulations, the guidance clarifies that the building itself must provide secondary containment for oil of less than 2500 litres, where spillages would be likely to pollute controlled waters or enter nearby drains or manholes.
The guidance may be accessed via the following link:
http://www.environment-agency.gov.uk/static/documents/Business/pannel_5_update_973546.pdf
More information on the application of the OSR and other legislation may be found via the link below:
http://www.environment-agency.gov.uk/business/topics/oil/
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 PLEASE CONTACT: VINCENT BROWN