Approval for a full hearing in Cardiff’s High Court came via the Administrative Court a few weeks ago, Andy Moore, CRR coordinator confirmed to letsrecycle.com today (September 7).The CRR had announced its desire for a Judicial Review in February 2011 and submitted its court application in June (see letsrecycle.com story). Defra had asked for the application for the hearing to be dismissed.
The Judicial Review concerns Defras interpretation of separate collection of paper, plastics, glass and metals which member states are required to provide by 2015 under the revised Waste Framework Directive (rWFD). While Defra has stated in its Waste (England and Wales) Regulations 2011 – the regulations which transpose the revised directive – that this can include commingled material, the Campaign for Real Recycling (CRR) disagrees.
The approval of the Judicial Review is significant because if it succeeds, it could have major implications for how recyclables are collected in the UK in futureand potentially prevent councils from collecting recyclable materials commingled as well as threatening the future of millions of pounds worth of waste management infrastructure. Conversely, if the governments interpretation is upheld, the CRR claims that the quality of material collected may be compromised and it would knock its long held argument in favour of kerbside sorting of material which some of its supporters undertake.
The Judicial Review has only been launched by seven members of the CRR. These include UK Recyclate, a social enterprise founded by Mr Moore to trade recyclables, alongside major material reprocessors Smurfit Kappa Recycling, Novelis, D S Smith Paper Ltd, Palm Recycling, Ardagh Glass, and Plastics Sorting Ltd.
The chairman of the CRR is Mal Williams, of the Welsh Community Recycling Network (CYLCH).
Mr Williams said: Permission for the JR has been granted as we expected, but we derive no joy from this. We should not have needed to bring this action. It remains our contention that the UK will ultimately benefit much from embracing not just the letter of this Directive, but the spirit of it as well. We urge all stakeholders looking for new, green industry and jobs to look at all the evidence. The UK is at a crossroads and has an opportunity to choose a path that maximises the value of its waste as a resource. This JR is part of that.
The official defendants in the case are the Secretary of State for the Environment, Food and Rural Affairs and also Welsh ministers despite the latters spoken preference for source-separated recycling collections (see letsrecycle.com story).
In the court hearing the Environmental Services Association, which represents waste management firms, is understood to be acting as an expert witness in support of Defras interpretation, and will be submitting written evidence concerning the experience of its members on the ground. The ESA has said in the past that no one size fits all when it comes to waste collection and that both commingled and source separated collections can work on the ground, depending on what local authorities think is best for their local area.
Legislation
The Judicial Review concerns section 13 of Waste (England and Wales) Regulations 2011 which states that For the avoidance of doubt, co-mingled collection (being the collection together with each other but separately from other waste or waste streams intended for recycling with a view to subsequent separation by type and nature) is a form of separate collection.
But, the CRR says this is contrary to the European Directive. Here, article 3 (11) states that separate collection means the collection where a waste stream is kept separately by type and nature so as to facilitate a specific treatment.
Article 11 (1) of the directive also says that member states shall take measures to promote high quality recycling and to this end shall set up separate collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors.
If ‘commingling’ is deemed to count as separate collection, the CRRis alsoexpected toquestion Defra on the definition of ‘commingling’ in terms of the percentage of materials involved, and ask how this relates to the definition of waste.
For its part,Defrais expected to argue thatthe definition of separate can include commingled and that source-separated collections are not technically, environmentally and economically practicable in many parts of the country.
Permission
Mr Moore, from the CRR, has been a long term supporter of kerbside sorting, believing that householders rather than waste companies should carry out the sorting of materials. In the past he has said: Householders are the key agents in domestic recycling. They are capable of complicated choices for the right motives when offered the right information and the right opportunity. Source-separated collections make the best use of this intelligence and willingness and result in almost no rejection of material.
On the Judicial Review, Mr Moore said that, while the campaign would prefer swift resolution, it could take up to a year to conclude. He said that the organisation had appointed lawyer Anthony Collins to represent it in court.
Mr Mooresaid that the European Commission had indicated in March 2011 that there had been no controversy over the interpretation of the revised Waste Framework Directive in other European countries. He added that as far as he was aware, commingling was not mentioned in the regulations adopted by other member states.
Pointing to Scotland, he said it was interesting that the Scottish Government had chosen not to copy the same wording as the English regulations as was the case in Wales, and had chosen to not strongly support commingling.
He said: The crux of our argument is that the interpretation Defra took in transposing the Waste Framework Directive is incorrect and that the inclusion of commingling is wrong.
Reprocessors
Andy Doran, national recycling manager at aluminium recycling giant Novelis Recycling, told letsrecycle.com thatthe campaign had particular concerns over the collection of paper and glass in with other recyclable materials becauseMRFs found these difficult to separate, which ended up affecting the quality of all materials recovered.
He said: We feel that the government has taken the lowest cost and lowest common denominator by allowing fully commingled collections, when other European countries have come up with different interpretations which require much higher levels of quality.
Mr Doran added that commingled systems did not preclude high quality, but that much materials recycling facility (MRF) technology was not advanced enough yet to be able to sort out paper and glass effectively.
He said: In about ten years we will probably be able to get really good quality out of MRFs but in that time some reprocessors might go to the wall because they cant get quality.
Simon Weston, managing director of Smurfit Kappa Recycling, said that clarity of the UKs interpretation of the rFWD was needed and that the decisions it has made is unique. Most of Europe doesnt commingle.
Mr Weston added that his company handle 4.5 million tonnes of paper and card in Europe and any reduction in quality leads to additional costs.
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