The concerns focus on a new approval system that Defra put forward in its consultation, which was rushed out in August in the attempt to get changes in place for the start of 2006 (see letsrecycle.com story).
Expecting a consultation on new recovery and recycling targets, industry was caught offguard by Defra's proposal to change the way compliance schemes are approved for operation.
Some schemes have told letsrecycle.com the proposals will not help the UK to reach European recovery targets set for 2008. And, others have even suggested that Defra's proposals may not be legal.
Approval
Rather than leaving the Environment Agency alone to regulate the compliance schemes, Defra wants to have compliance schemes and producers approved each and every year at a ministerial level.
Should a scheme or producer fail to comply in a given year, it would not be given full approval the following year, but could be granted a “conditional” approval.
Compliance schemes have ridiculed this measure, saying it goes against Defra's stated desire for long-term planning and investment. They say it conflicts with the government's wish for compliance schemes to sign up members for three-year periods.
Schemes also warn that the approval system effectively has no appeals process, and could be anti-competitive.
COSWIG
COSWIG – the Compliance Schemes Working Group – has warned the government that the regulations should “absolutely not” be amended as Defra is proposing.
The group, whose compliance scheme members represent 96% of producers complying via schemes, said: “We understand and agree with the principle of increased scrutiny of producers and schemes and enforcement of standards, but we also believe annual approval would lead to increased uncertainty and short-termism which could be counter productive.”
The Group also disagreed with Defra's suggestion that full re-approval for schemes and producers would be refused if material-specific recycling targets were missed by a “significant degree” – by more than 1% of the obligation.
“Anti-competitive”
Peter Gaffney, of COSWIG member Wastepack, said: “If, for example, there simply were not enough steel PRNs available to buy in one year or a reprocessor went bust and couldn't provide the PRNs, then a scheme would be refused re-approval.
“Even if it was granted conditional approval, it would have to tell its members it was only conditionally approved and wouldn't be allowed to take on new members – this is anti-competitive,” Mr Gaffney said.
COSWIG said it was “wholly inappropriate” for there to be no appeals process if a minister refuses full re-approval of a producer or scheme.
Reasonable steps
Compliance schemes want to retain the current system, where targets have to be met fully unless “reasonable steps” have been taken but failure was unavoidable. COSWIG said the enforcement of the targets requires a clarification of what constitutes “reasonable steps”, and that a system of financial penalties for failure might be more effective.
The schemes want the Environment Agency to monitor operational plans regularly throughout the year to guard against potential failures that year, rather than waiting until after the end of the compliance year to check compliance thereby “shutting the stable door after the horse has bolted”.
Compliance schemes also strongly disagreed with proposals for Agency fees for schemes only conditionally approved, and for late submissions of data.
Targets
On other issues – including proposed new targets and the bringing into obligation of franchise packaging – the compliance schemes were largely happy with the main proposals.
On targets, COSWIG called for a linear rise in packaging waste targets sufficient to just meet the European requirements in 2008. This was closest to the government's suggested “option 6”, but, unlike option 6 the compliance schemes said they wanted targets to continue steadily rising after 2008 as in the government's option 3.
Consultation
But, the Defra consultation also drew criticism for procedural issues. Schemes objected to the consultation's abbreviated time-frame and the fact it was held during the summer vacation, when they were unable to fully consult their members over the issues raised.
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Edward Cooke at Compliance Link said: “The government makes wild claims that stakeholders were content with this short consultation – but no-one appears to have been asked about it.”
Schemes complained that industry responses to this year's other major packaging consultation (see letsrecycle.com story) were not made publicly available. It was also suggested to letsrecycle.com that measures had been “sneaked” into draft regulations as a response to compliance failures in 2004 and the fact that the Environment Agency has not acted on those failures.
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