Recycling regulation changes laid in parliament

Changes to waste regulations in England and Wales which are hopedtodraw a line under the legal dispute over recycling collection methodswhilemaintaining council choice have been laid before parliament today (July 19).

The amendments to the Waste (England and Wales) Regulations 2011 were laid in Parliament and the National Assembly for Wales as a negative procedure statutory instrumentand come into force on October 1. They concern the Directive’s requirement for member states to introduce separate collections of paper, plastics, metals and glass from households by 2015.

The amendments differ from those consulted on earlier this year (see letsrecycle.com story), with Defra deciding to stick more closely to the words of the revised EU Waste Framework Directive, which the regulations transpose.

However, it remains to be seen whether the changes will be enough to preventseven members of the Campaign for Real Recycling, which brought a Judicial Review against the originalregulations last year, from continuing with their challenge. The CRR is keento seemore material collected separately, rather than commingled, in order to ensure quality.

And, even if the challengeregarding the regulations is dropped,it is thought likely that the battle will simply transfer to the development of guidance which will inform how the regulations are implemented and is yet to be produced. Thiswill be crucial in protecting councils from legal challenge if they decide to continue collecting recyclable material commingled.

Commenting on the amendments,a Defra spokesperson said: The changes to Waste Regulations closely align with the wording of the Waste Framework Directive, while maintaining the flexibility local authorities need to adopt the collection service that delivers the best outcome for them and their residents.

We believe that this amendment meets the requirements of the Directive and is robust to further legal challenge. We hope this will allow us to draw a line under the current legal process, and work more constructively with all parts of the recycling supply chain to deliver more and better quality recycling.

Regulations

The main difference between the regulations and those proposed in February 2012 is in relation to regulation 13 (4).

In February Defra had proposed an amendment which said that separate collection was only necessary where technically, environmentally and economically practicable (TEEP); and, necessary to meet the appropriate quality standards for the relevant recycling sectors. At the time, Defra said that this would mean that councils could continue to offer commingled collections.

However, the consultation responses submitted to Defra and the Welsh Government voiced uncertainty about this language and disagreement with the accuracy of the transposition, so the two administrations decided to revert more closely to the language of the directive.

However, while the change does appear to faithfully reflect one part of the Directive, it also seems to omit any reference to the quality needed by the relevant recycling sectors, which is mentioned in the EU Directive with words appropriate to meet the necessary quality standards for the relevant recycling sectors (as below in Article 11).

The new amendment reads as follows:

Duties in relation to collection of waste
13.(1) This regulation applies from 1st January 2015.
(2) Subject to paragraph (4), an establishment or undertaking which collects waste paper, metal, plastic or glass must do so by way of separate collection.
(3) Subject to paragraph (4), every waste collection authority must, when making arrangements for the collection of waste paper, metal, plastic or glass, ensure that those arrangements are by way of separate collection.
(4) The duties in this regulation apply where separate collection
(a) is necessary to ensure that waste undergoes recovery operations in accordance with Articles 4 and 13 of the Waste Framework Directive and to facilitate or improve recovery; and
(b) is technically, environmentally and economically practicable.

WFD

The corresponding parts of the revised EU Waste Framework Directive are as follows:

Article 10
Recovery

1. Member States shall take the necessary measures to ensure that waste undergoes recovery operations, in accordance with Articles 4 and 13.

2. Where necessary to comply with paragraph 1 and to facilitate or improve recovery, waste shall be collected separately if technically, environmentally and economically practicable and shall not be mixed with other waste or other material with different properties.

Article 11
Re-use and recycling

1. Member States shall take measures, as appropriate, to promote the re-use of products and preparing for re-use activities, notably by encouraging the establishment and support of re-use and repair networks, the use of economic instruments, procurement criteria, quantitative objectives or other measures.

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.

Consultation responses

According to a summary of responses tothe consultation on amending the regulations,which was published alongside theamendments, atotal of 81 responses were received, from 122 organisations. In broad terms, 81 organisations agreed that Defras proposed amendments adequately transposed the Directive, 20 disagreed and 21 did not specify agreement of disagreement.

In general, the majority of responses from local authorities and waste management companies supported the proposed amendments, while recycling reprocessing companies and their campaign groups disagreed with them.

Guidance

In their response to consultation, Defra and the Welsh Government say that the guidance to accompany the legislation will be of key importance because it will address a number of issues of concern.

This will include:
– clarification on the meaning of the key concepts such as separate collection and the qualifications on practicality and necessity;
– responsibility for making decisions about collection arrangements;
– valid criteria to consider in that decision making process;
– expected evidence to support those decisions;
– and enforcement of those decisions.

Last month, the European Commission published its long awaited guidance on the revised Waste Framework Directive (see letsrecycle.com story), including the specific obligation to introduce separate collection, in which it said that commingled collection was acceptable provided quality is achieved. As a result, Defra said it would be using this as the basis for developing its guidance.

One commentator told letsrecycle.com: Defra has simply deferred the decision over commingled collections to its guidance and is now planning on hiding behind the guidance put out by the Commission.

The Department is intending to develop proposals for this guidance with stakeholders over the coming months, leading up to a formal consultation.

Quality

In addition to the changes to the regulations, both Defra and the Welsh Government are developing initiatives to improve quality and the development of an MRF Code of Practice which will be subject to consultation in the coming months.

This will provide important context for the development of guidance on separate collection by providing transparent information to local authorities, other undertakings and reprocessors to enable the supply chain to understand and improve the quality of recyclates, they said.