The Law Behind Rubbish
12 January 2006
21 August 2013
6 February 2013
28 October 2013
12 July 2013
11 April 2013
No one in the land can be unaware of the current vogue of environmental issues, not least those relating to waste. If you have not already been affected by the move to fortnightly bin collections, you will certainly be aware of the celebrity public service campaigns on recycling and the Rogue Traders-type programmes on cowboy waste-disposal operations. It is patently clear that rubbish is now firmly in the public eye.
Waste generation, collection, recycling, treatment and final disposal is perhaps the most heavily regulated area of environmental law and is certainly a complex discipline. While the majority of the newest legislation controlling rubbish can be attributed to the recent application of the 1999 EU Landfill Directive, it is true to say that in the UK we have had an increasingly complex hybrid regime of law and policy controlling waste for more than 30 years. The main provisions are now contained in Part II of the Environmental Protection Act 1990 (EPA) supported by a raft of subsidiary regulations controlling the duties on waste producers, carriers, reprocessors, waste collection and disposal authorities, not to mention us, the general public. Most recently, producer responsibility initiatives have been introduced to apply to the recycling of your old Morris Minor as well as the impending introduction in early 2007 of the take-back and reprocessing provisions of the Waste Electrical and Electronic Equipment Directive.
All of us are generating an increasing amount of waste, and it is not simply a case of when its gone its gone.
RUBBISH: ITS NOTHING NEW
Before the introduction of the modern age of waste regulation under Part II of the EPA, the deposit or disposal of waste was regulated through waste disposal licences pursuant to the Control of Pollution Act 1974. Then the position across the European Economic Community was harmonised in 1975 with the introduction of the Waste Framework Directive (WFD). Although aspects of the WFD are being reviewed, it still remains the key source of EU law on rubbish.
In 1990 the EPA introduced, among other things, a comprehensive scheme of waste management licensing, which required that those who collect, handle, treat and dispose of waste must possess a waste management licence (WML) and, as a prerequisite to obtaining a licence, must prove their competence to hold a licence and comply with the attached conditions. The EPA also introduced a host of new waste-related offences, imposed duties on waste collection authorities and waste disposal authorities (generally district and county councils respectively) with regard to their collection duties and provided for the outsourcing of local authority waste management functions to local authority waste disposal companies (LAWDCs).
The EPA is still the main source of regulatory powers, which have, however, been supplemented by changes introduced by the Environment Act 1995 and more latterly the Pollution Prevention and Control Act 1999 and the Waste and Emissions Trading Act 2003.
WHAT IS WASTE?
The question of what waste is has been litigated perennially before the national and EU courts and is one of the most contentious aspects of waste law and policy. Most of the confusion revolves around when waste ceases to be waste one mans waste can be another mans raw material. If this raw material is still classified as waste, then the subsequent operations will require a WML and waste law and policy will apply. There is now hope that the difficult question of when waste ceases to be waste will be resolved as part of the current consultation on an EU waste thematic strategy and/or the review of the 1994 UK Government circular on the interpretation and application of the WFD.
The EPA (Section 75) does define certain types of waste, including household waste, industrial waste, commercial waste and controlled waste, while hazardous waste now replaces what was previously known as special waste and is regulated pursuant to the Hazardous Waste (England and Wales) Regulations 2005.
The basic premise, however, is that the original holder must have discarded or intended to discard the material for it to be classed as waste.
WASTE MANAGEMENT LICENSING
Section 33 of the EPA provides that it is an offence to treat, keep, deposit or dispose of waste except in accordance with a WML. Offences under Section 33 of the EPA are punishable with a maximum unlimited fine and/or two years imprisonment if prosecuted in the Crown Court, or a fine not exceeding 20,000 and/or six months imprisonment where action is taken in the Magistrates Court. Licences and the imposition of appropriate conditions is the preserve of the Environment Agency. It should be noted that some operations will now require a Pollution Prevention and Control (PPC) permit as opposed to a WML.
Applications will only be granted where planning permission or an established use certificate is already in place and the applicant is a fit and proper person.
FIT AND PROPER
In order to hold a WML or a waste PPC permit the applicant must be able to show that they: have committed no relevant waste offences; are technically competent to manage the activities; and has arranged sufficient financial provision to ensure compliance with the terms and conditions of the licence or PPC permit.
Technical competence is proved by the award of a certificate of technical competence by the Waste Management Industry Training and Advisory Board.
DOES EVERY OPERATION HANDLING WASTE NEED A LICENCE?
The Waste Management Licensing Regulations 1994 list exemptions from the requirement to hold a licence for certain permitted activities. Typically these are operations with little or no environmental impact. The exemptions include operations such as temporary storage pending final disposal, storage of demolition materials pending reuse in the ultimate construction or development on the site where they arose, as well as activities relating to the recovery and reuse of wastes. Exemptions are not automatic; before a business that generates or handles waste can properly contend that its activities are exempt, it must apply for, and register the exemption with, the agency.
DUTY OF CARE
Section 34 of the EPA introduced a statutory duty of care requiring that all persons involved in the cradle to grave handling of waste ie from producers to final disposers take all reasonable and appropriate measures to ensure that:
• waste is only kept, treated, deposited or disposed of in accordance with a WML or other authorisation;
• waste does not escape from the control of the holder;
• waste is only transferred to authorised persons such as registered waste carriers or licensed disposal operators; and
• all transfers/movements of waste are accompanied by an adequate written description (the waste transfer note), which will allow it to be identified and subsequently handled correctly.
Duty of care offences are punishable with a fine of up to 5,000 in the Magistrates Court. This rises to an unlimited fine if prosecuted upon indictment in the Crown Court. A recent High Court case in July 2006 concerned whether the London Borough of Camden could properly prosecute a company for a Section 34 offence arising out of the companys failure to ensure that its office waste was not placed on the high street before 9am when the advertised collection time was 10.30am. The High Court held that the fact that the overnight office cleaners had placed the waste on the street hours in advance increased the likelihood that the waste would escape and, as such, the company had not taken all reasonable measures to prevent its escape.
REDUCING RELIANCE ON LANDFILL
As noted above, the 1999 EU Landfill Directive has been the main force for change in the UKs approach to waste treatment and recycling in recent years.
The directive plans to reduce reliance on landfill for waste disposal and control the generation of the harmful landfill gases. It will do so by imposing seriously tough targets for the diversion of biodegradable municipal wastes from landfill and towards reuse, recovery and recycling facilities. The UK produces around 430-million tonnes of waste annually and relies on landfill to dispose of approximately 80 per cent of this. With a lack of existing recycling and recovery infrastructure, the targets will be a particular burden for the UK.
In addition to reducing the amount of waste to landfill, the directive also prohibits co-disposal, disposal of liquid wastes, tyres and clinical wastes to landfill and distinguishes between hazardous and non-hazardous landfills.
The UK hopes to achieve its Landfill Directive targets through a variety of measures, including landfill tax and a scheme that penalises local waste authorities for exceeding their landfill allocations, known as the Landfill Allowance Trading Scheme. Authorities that have sent less than their allocation of waste to landfill can trade their surplus quota to those authorities that have failed to meet their targets.
In conjunction with the Landfill Tax Regulations 1996, the Finance Act 1996 introduced the landfill tax as a tax on all disposals of waste to landfill. In 1996 the tax began at 2 per tonne on inert waste, while active waste was taxed at 7 per tonne. This has been increased annually in subsequent budgets to the current rate of 21 per tonne for active waste, with the lower rate remaining unchanged. Recognising the need to do even more to support the development of recycling and recovery infrastructure over the continued reliance on landfill, some commentators and politicians are calling for the tax to rise even faster.
Other countries have been very public about initiatives to force producers and retailers to address the packaging waste to which their operations ultimately give rise. In 1995 the Environment Act introduced powers to implement producer responsibility schemes in the UK. Specifically, producer responsibility schemes are aimed at promoting or securing an increase in the reuse, recovery or recycling of products or materials.
UK regulations have since been issued introducing schemes in respect of packaging and packaging waste the Producer Responsibility Obligations (Packaging Waste) Regulations (1997) and the End of Life Vehicle Regulations (2003) while we are now awaiting the finalisation and introduction in early 2007 of a new scheme on waste electrical and electronic equipment (WEEE).
The 1997 regulations implemented (in part) the provisions of the 1994 European Community (EC) Directive on packaging and packaging waste. The regulations impose obligations on producers of both packaging and packaging waste to recover and recycle percentages of the waste for which they are responsible. The 1997 regulations were repealed and replaced by new regulations in England and Wales in 2005.
Obligated businesses must either register with the Environment Agency and be allocated an annual recovery and recycling target, and thereafter ensure it is meeting the packaging waste recovery and recycling targets, or join a compliance scheme such as Valpak. It is an offence to fail to register with the agencies or a scheme.
Compliance schemes are bodies registered with one of the agencies as being responsible for satisfying the recovery and recycling obligations of members. Schemes will source the recovery/recycling capacity and contract with the waste management companies to provide the recovery and recycling services. Thereafter, the schemes will provide the agencies with evidence of compliance with the obligations on behalf of its members. The recovery and recycling operators will issue the schemes or individual obligated businesses with Packaging Waste Recovery Notes (PRNs) in relation to the packaging wastes they reprocess on their behalf. Packaging waste can also be exported for recovery, whereby a Packaging Waste Export Recovery Note (PERN) will be generated. Where they have a surplus, obligated parties can trade these evidence notes.
What to do about end-of-life vehicles (ELVs) is another major problem throughout the EU. Currently in the UK there are annually approximately
two-million ELVs. EC Directive 2000/53/EC requires member states to introduce legislation to lessen the environmental impact and promote the recovery and recycling of ELVs and was implemented in the UK by the End-of-Life Vehicles Regulations 2003 and the ELV (Producer Responsibility) Regulations 2005. In particular, the 2005 regulations provide that last owners of ELVs must be able to dispose of their vehicles free of charge from 2007 and producers must pay all or a significant part of the free take-back.
DEAD MOBILES, LAPTOPS AND TVs
WEEE has been identified as the fastest-growing waste stream in the EU, and as such the European Commission implemented the WEEE Directive in 2002. Under the scheme, which has not yet been implemented in the UK, producers, importers and distributors of electrical equipment will be obliged to offer free take-back schemes or otherwise be financially responsible for the collection, recovery, recycling and treatment of electrical and electronic equipment. A scheme essentially similar to that for packaging waste has been proposed.
The UK is some years late in implementing the WEEE Directive, but it is now expected to be in force by 1 April 2007. So, when you buy your new MP3, mobile phone or PC, you should be provided at the point of sale with information on the services available for the recovery of your old product. This will apply equally to mail-order sales and internet purchases as it does to high street trading.
Paul Rice is a partner in the planning and environment group at Pinsent Masons