As the father of two young children I am frequently reminded how early in life we develop a sense of what is fair, and (perhaps more intensely), what isn’t. One of my favourite methods of avoiding adjudicating on such matters is to step outside and busy myself with preparing materials for recycling. Given the nature of my work and my company’s culture, it will come as no surprise to hear that I am a pretty diligent recycler. Moreover, as far as I can, I try to prevent the generation of waste in the first place. The upshot is that the Sherrington family’s black bag waste is comprised almost entirely of plastic films and wraps.

However, a quick stroll down any residential street will soon confirm that households’ waste arisings and recycling performance are variable to say the least. When I ponder this situation, I confront the same sense of injustice felt by my children. My efforts to minimise waste and separate out recyclable materials bring environmental benefits – but also lead to financial savings for Bristol City Council. By contrast, the waste prevention and recycling actions (or more accurately inactions) of some of my fellow citizens don’t only represent missed opportunities to reduce environmental pressures, they impose an unnecessary burden on local authority finances.

What irks me is that I have to pay exactly the same amount through my Council Tax as those (in the same Council Tax band) who produce the greatest amount of waste, and fail even to separate out recyclable materials. It strikes me that this is neither fair, nor sensible. Environmental benefits aside, it is in the financial interest of local authorities to reduce waste arisings, unless like Stoke on Trent they are tied in to a put-or-pay incinerator contract. It would seem appropriate, therefore, to align the interests of individual households with those of their council.

Getting the incentives right

Imagine if every household paid a fixed monthly charge for electricity, regardless of the amount used. What would the rational response be? Faced with a marginal cost of consumption of zero, it’s pretty clear that usage would be higher than at present. Then consider how difficult it might be, under such circumstances, to encourage people to consume less electricity!

This is precisely the challenge facing local authorities in trying to encourage householders to prevent waste, and indeed to recycle. The same difficulty afflicts attempts to encourage water conservation, but whilst water metering is still far from universal, at least in that context the argument has been won, and meters are gradually being rolled out.

There is a strong case that ‘metering’ waste can be effective in changing behaviour. In a 2011 study, Eunomia reviewed the evidence in respect of the waste prevention effects of a range of interventions. The most compelling evidence of waste prevention effects came from Direct and Variable Rate (DVR) Charging, also known as Pay As You Throw (PAYT). Such schemes vary, both in how much is charged, and the basis of calculation – by weight, volume, sack and/or frequency. Typically, the highest charge is for residual waste, with recyclables costing less. The most effective schemes in the case studies that we reviewed led to a fall of 10% or more in the quantity of household waste collected.

Importantly, a comprehensive PAYT scheme provides a direct financial rationale for households not just to recycle, but to engage in waste prevention, perhaps by choosing reusable nappies, choosing goods with less packaging or by home composting (although the latter is not always considered to be prevention).

Pleased to meter you: we accept that many services should be metered, so why not waste? Photo by Mike1024, via Wikimedia Commons

For the local authority, a well-designed PAYT scheme can save money in two ways. Any waste prevented or moved from disposal to recycling will reduce treatment costs – although it may actually increase the cost per tonne of collection. Refuse trucks will still have to drive by and pick up from every household just as often, and the additional recycling collections will require extra vehicles and crew. However, further savings can be made if a frequency-based element is included in the charge, so that householders can limit their expenditure by reducing the frequency of collection for some streams. This would be likely to cut the number of collection vehicles the council needed, and hence its costs.

PAYT can therefore bring the interests of householders, councils and the environment into line, and to me it seems intuitively fair. You pay for the service that you use. In the absence of PAYT, the marginal cost of waste generation is zero. Apart from those like me who would do it anyway, how else would households be motivated to reduce their waste?

Preventing waste prevention

So when Eunomia recently developed a waste avoidance toolkit for local authorities, you might have expected the list of measures for which it outlines the expected costs and benefits not only to include support for reusable nappies, community swap days, zero waste challenges and so forth, but also PAYT schemes. However, PAYT was notable by its absence because, to cries of approval from the Daily Mail, the Localism Act 2011 explicitly forbade local authorities in England from introducing it, despite its demonstrable waste prevention effect.

It is interesting how coy Defra has been about the position on PAYT in its recent call for evidence on a Waste Prevention Programme for England. There are evident difficulties in measuring waste prevention, and proxy indicators are needed to assess the effectiveness of actions taken. As I read through, I was intrigued to see, among the possible metrics from a list suggested by the European Commission against which performance could be measured, the following:

• “Percentage of citizens covered by a pay-as-you-throw scheme”

Defra’s comment in response was:

• “No citizens are covered by a PAYT scheme. If they were implemented by local councils this would be measurable”

No mention of the fact that any council implementing such a scheme would be measurably in breach of the law! To my mind this ban on the use of an effective waste prevention measure sits uncomfortably with the requirement to respect the waste hierarchy. Pity the poor local authority waste prevention officer, who is currently armed only with anti-junk mail stickers, promotional literature for paint reuse schemes, and Love Food Hate Waste tea-towels. Without PAYT, the effectiveness of any waste prevention strategy will be significantly constrained and the cost-effectiveness of other measures will be greatly reduced. We will be stuck with the current inefficient and inequitable approach.

A fair target?

It rather surprises me that the Daily Mail is not campaigning for PAYT. It would seem to appeal to their sense that the efforts of the diligent and hard-working should not be squandered by profligate local authorities, and that taxpayers’ contributions should be spent wisely, rather than used to subsidise the antisocial and idle.

I am happy to pay my fair share of tax, but when it comes to recycling and waste, I feel it is unfair that I am expected to subsidise those in my community who don’t make the effort.

Instead, the Daily Mail is dead set against PAYT, and bizarrely even the Taxpayers Alliance opposes any form of charging for waste collection, although it could be expected to result in lower costs to taxpayers overall. What is it about waste that makes it an exception? The Daily Mail doesn’t argue for the universal reinstatement of water rates!

It seems to me that the current flat rate charging system engenders a sense of entitlement, and an expectation that ‘having paid for it’ householders should cheerfully use the service to their hearts’ content. To the household, the marginal cost of waste generation truly is zero, while for the local authority this is far from true. Creating a link that aligns their interests would bring the consequences of an individual’s behaviour more closely into focus.

The development of personal responsibility for one’s actions, and an appreciation of their consequences, is something that we encourage our children to learn as they grow. I don’t think it’s too much to ask that as adults, we should practise what we preach. In fact, I think that would be fair.

Chris Sherrington

Defra is reviewing WRAP – again. Although styled a funding review in reality it goes much wider.

The consultation paper acknowledges WRAP’s past achievements but goes on to ask a number of questions about priorities and the WRAP business model. Essentially these cover:

• whether there are remaining market failures which the business community won’t deal with for itself;
• the best mechanisms for dealing with any failures;
• what WRAP’s priorities should be; and
• whether those who benefit from WRAP’s activities should contribute to the costs.

These are not unreasonable questions. They have been asked several times before in earlier reviews and by WRAP in its own business planning processes. Each time they have led to adjustments to WRAP’s objectives and priorities. Those have moved a long way from its origins in creating markets for recycled materials to the current focus on Zero Waste and the circular economy.

Old school WRAP

But there is one question the consultation paper does not raise. It is not about market failures, but about the capacity of government.  This was a key issue when the idea of WRAP first emerged during the preparation of Waste Strategy 2000. At that time, the forerunner to Defra had five people working on recycling and – apart from the estimable Ray Georgeson who was then on loan from Waste Watch – no practical experience of recycling processes or markets.

Clearly the huge changes required to meet the Landfill Directive were going to need additional resources, in central government as well as in local authorities and the waste industry. Central government was going through one of its periodic head count freezes and in any case the addition of more transient generalist civil servants would not have provided the skills or the commitment needed.

At the time, there was a lot of interest in the pioneering work of Seattle’s Clean Washington Centre in developing markets for recycled materials. Also government was transferring delivery of many of its programmes to arms length agencies or not for profit companies like the Energy Saving Trust. The idea of a WRAP grew from this and a proposal was included in the White Paper of May 2000. The objective was to create a stable body of expertise that could bring disparate interests together, address market failures and produce real world changes that were both significant and quantifiable. Most observers, including Defra, seem to accept that this objective has been achieved.

WRAP to the future

But a lot has changed in 13 years. Is there still a need for WRAP? I don’t have any doubt there is. Central government still lacks the capacity to progress resource efficiency directly. Most people that I speak to who have regular dealings with Defra report shortages of people, and of knowledge, as well as constant churn in the individuals they have to deal with.

At the same time, the issues to be addressed are significantly harder. Generating markets for recycled materials involved working with reasonably easily defined groups of organisations, and straightforward levers such as supporting investment in reprocessing capacity. Waste prevention, reuse and the circular economy are intrinsically harder to address, with more participants on a European and global scale, less obvious interventions, and outcomes that are harder to assess.

No shrinking violet: WRAP CEO Liz Goodwin has many stakeholders to satisfy. Photo by Tom Reynolds (Creative Commons), via Flickr

Nevertheless, WRAP has made good progress. It has invested in understanding behaviour change – well ahead of the Cabinet Office’s Nudge Unit – through programmes like Recycle Now and Love Food Hate Waste. It has also established a reputation for providing a neutral space for groups, who would normally be competitors, to come together legitimately to pursue broader objectives like the Courtauld Commitment. The third installment of that has just been launched with 45 signatories, including the main supermarket groups and many of the big name branded suppliers.

My guess is that officials at Defra understand the value that WRAP can bring and hopefully they will be allowed to establish a regime in which central government focuses on strategy and international matters, within which WRAP develops and delivers agreed programmes. Three years ago I would have been more pessimistic, as the new government clamped down on anyone other than themselves having a say about anything that could be described as “policy”. WRAP was allowed to say very little – in England – and even factual reports were massively delayed while political advisers crawled over them. Conditions now seem more relaxed and WRAP is once again being allowed to speak about the key issues and report the results of its studies and research. It would be good if one of the outcomes of the review were a specific commitment to free and timely publication of its findings.

Priority signals

Finance, which this review is nominally about, will be important. Defra is outside the ring fence for the spending review. It is beset with pressures on farming, badgers, tree diseases and air quality. Money will be tight. WRAP’s grant from Defra has already been massively reduced and Defra is now a minority stakeholder as the more ambitious Scots and Welsh develop their own requirements, like Resource Efficient Scotland. To some extent, the reduction in Defra funding is offset by the change in emphasis from supporting capital investment to the more collaborative work on the circular economy. But further reductions would be a concern not least – as Defra recognises – because of the knock on implications for the programmes in the other governments.

Everyone will have their own view on what WRAP’s priorities going forward should be. So long as Defra remains a major funder and has a strategy to be delivered, one of WRAP’s priorities must be to develop effective programmes to advance Defra’s aims while finding as much synergy as possible with the programmes of the other governments. The quid pro quo from Defra has to be a recognition that they cannot demand more than they are prepared to pay for and to recognise the right of other funders and supporters to make demands which Defra will have to live with.

I hope as many people as possible will respond to the consultation. While all should set out their own priorities, it is important that they should point out that WRAP is an important supplement to the resources available to Government, that it has a track record of giving very good value for money and that it is at its most valuable when it is allowed to discover and share openly the information which others can draw on to make informed decisions. Driving this message home to the new generation of Defra officials can’t hurt, and may help avert the risk of a narrow decision which hamstrings one of the institutions which can help both government and business to make good decisions and change behaviours.

Phillip Ward

On Saturday evenings I cycle to my local Sainsbury’s, trailer in tow, and collect a stack of ‘Taste the Difference’  loaves, bagels, croissants, pastries and other baked goods that happen not to have sold that day and would otherwise end up in bin bags and never be eaten. This stuff isn’t ‘off’ – it’s been baked fresh that morning, but anything that’s unsold by evening is removed to be replaced with fresh goods the next day.

I do this as a volunteer for the FoodCycle Bristol Hub. We usually get a bag of fruit and veg too, and top this up with more from local green grocers on Sunday morning. The fruit of our labour is a delicious three course meal served at a local community centre, free for anyone who needs or wants it. FoodCycle has 14 hubs across the country, and our food redistribution model addresses two very current issues in the UK’s food system: food waste and food poverty.

You will no doubt have heard some of the shocking statistics flying around news channels, the twittersphere, and newspapers alerting us to the vast quantities of food wasted right the way through the food supply chain. Although some of the data behind the headlines is questionable, the message is clear. At the same time as tonnes of unsold food are going to waste each day, food poverty is on the rise as food price inflation runs ahead of the wage growth. This month Which? reported that one in five families now relies on loans or savings to meet its monthly food bill.

A fascinating report by the Centre for Economics and Business Research (CEBR) for Kellogg’s in March found that UK expenditure on food and non-alcoholic beverages has increased by almost 20% in the past five years, but the volume of food consumed dropped by a little over 7%. It also states that whereas in 2008/09 Trussell Trust foodbanks fed 26,000 people nationwide, by 2011/12 this had risen to 128,697.

There are plenty of vociferous campaigners for the re-distribution of surplus food, which seems like a double win solution within our food system. But I fear that the hard work of volunteers does little more than scratch the surface of the problem.

Trailer trash

Every week new volunteers are shocked by the amount of surplus food available, and the implications of what we are not able to do. Considering in Bristol we currently only have 2 trailers, (approximately 80 litres each), 2 bikes and 2 sets of leg power each weekend there’s a limit to the quantity we can collect. What happens to the surplus food on the six evenings that we’re not there? What happens in the many other stores across the city and country that don’t collaborate with a charity like FoodCycle? And what happens to the food that won’t fit in our trailers? You can practically see the bread and banana mountains growing in people’s minds as they stop to contemplate this.

By all accounts, the quantity of surplus food that gets wasted is staggering. WRAP estimates that food wastage in the retail sector is around 362,000 tonnes a year, while waste across the manufacturing, distribution and retail sectors amounts to nearly 3 million tonnes. Redistribution charities tend to focus on retailers’ waste, although there are examples of interventions earlier in the process.

In comparison, even the efforts of the largest food redistribution charities are dwarfed. FoodCycle reports that it has collected 40,000kg of food since its launch in 2008. The rather larger FareShare reports that it redistributed 4,200 tonnes of food last year, 600 tonnes more than the year before. However, the lack of reliable and comprehensive information is itself part of the reason why the problem is perpetuated, and  thankfully a WRAP working group set up earlier this year is currently researching and developing  data in this area. It is imperative that a robust and accurate baseline is developed in order for the potential impacts of food redistribution networks to be properly measured.

FoodCycle in action: you will know us by the trailer bread. Photo by Hattie Parke.

Even without reliable numbers, it is evident from local experience that the charitable redistribution model can only achieve so much. This is in part due to the limited quantity of food that can be collected by small groups of volunteers, and partly to the restricted scope for groups like FoodCycle to redistribute the food that is collected. There simply is not enough capacity in the current network to be able to handle more.

Souping up redistribution

One solution would be to expand the re-distribution network, increasing its capacity to reduce food waste. FoodCycle and FareShare are in fact already working together to expand their operations, supported by grants from Nesta.

It’s not just a question of more volunteers and more bike trailers. Expanding the model requires the support of supermarkets and manufacturers in ‘donating’ surplus food. Current attitudes vary greatly, as the experience of FoodCycle Bristol shows. We recently spoke to two local supermarkets:

• On one end of the scale Supermarket A, who are ‘on a continuous journey to be a more sustainable business…’ are working towards ensuring that all surplus edible food is consumed, rather than ever becoming waste. They have actively contacted FoodCycle Bristol and would ‘love to come and join you for a day to see how your operation works, and to explore the potential ways in which we could help you.’
• Supermarket B, on the other hand, claim to have ‘been at the forefront of responsible retailing issues for more than 15 years’. Despite seeking to reduce food waste in stores and depots they say they ‘cannot authorise the purchase and consumption of waste food from our stores other than by audited, licensed waste management companies.’ Somewhere along the line between store manager, head office, and their customer care line, the aims and objectives of FoodCycle seem to have been completely lost or misinterpreted.

Clearly, expansion of charitable redistribution will require much better communication both within and between supermarket chains, food manufacturers and food redistribution networks so that misconceptions about what can and can’t be done may be addressed. Expansion may also lead to concerns from supermarkets that by giving food away in large quantities, they may undermine their own commercial interests. Perhaps people would buy less food if they knew that if they waited until the end of the day they could get it free of charge. FoodCycle hasn’t specifically targeted the neediest in the past, but is now linking up with established charities that support in need or at risk groups and have good community links. The pilot, supported by a grant from Nesta, aims to help them take on the FoodCycle model and ‘brand’ and incorporate food redistribution with their current activities. Models like this might reassure retailers that their economic interests were being protected.

If we were to succeed in dramatically increasing the scale of redistribution, it would place a heavy reliance on the small voluntary sector organisations operating these schemes and the strength of their redistribution networks. The scale of the potential demand is massive – but charities will need to make sure that the people who need the food know when, where and how to get it. There is a danger that supermarkets enthused by the idea of ‘donating’ food to charities, may get to put a tick in a CSR box, avoid the cost of food waste disposal, and hand the problem of food waste along the chain. If redistribution charities find themselves unable to cope with the volume, they may be the ones left holding the expensive food waste baby. There is a real need for a study around what would best support redistribution organisations to build their capacity and to flourish.

Supermarket cheque out?

If we are to get serious about redistribution as a means of avoiding food waste, retailers and producers need to move beyond just redirecting their surplus food from the bin to the bike trailer. They need to be pushed to invest in and financially support the voluntary sector organisations from whose efforts they benefit. Supermarkets and food manufacturers currently pay for food waste to be disposed of. Would it be unreasonable for them to pay towards it being redistributed instead? It would move the food up the waste hierarchy, and may well be cheaper than throwing it away.

If companies adopted a model where paying for food redistribution became the norm, it would have a number of beneficial effects. The current free collection system does not encourage a reduction in food surplus; it simply creates a cheap route for food surplus to be off loaded. Payment would incentivise efforts to move to the top of the food waste hierarchy and prevent waste through more effective warehouse and in-store management including more efficient processing, stock control and in-store management.

Furthermore, it would provide the food redistribution network with the investment capital needed to expand and operate effectively. Payment would provide the funding needed to expand capacity within the network so that more redistribution could take place, and enable the costs of treating any residual food waste to be absorbed.

Voluntary sector organisations play a vital role in the redistribution of surplus food. However, if they are to make a real dent in the bread and banana mountains ranging across the UK, those responsible for the surplus, both manufacturers and retailers need to take the next step and invest in re-distribution.

Hattie Parke

Sunday 12^th May 2013 marks the third anniversary of Eric Pickles’ appointment to the role of Secretary of State for Communities and Local Government.

His time in office has been characterised by an indefatigable dedication to pursuing his own distinctive path through the minefield of local authority waste collection and Mr Pickles has certainly been effective in turning his views into often media friendly policies: his championing of waste reward schemes; his distaste for councils penalising people who don’t comply with the rules on household waste; or his championing of weekly refuse collection through the (rather less than successful) Weekly Collection Support Scheme.

As a result, DCLG has certainly made much of the running on waste and recycling since 2010.

We at Isonomia owe him special thanks for all the material this has provided our authors with. Thanks to his willingness to persist with plans in the face of the views (and sometimes the evidence!) put forward by opponents, he has been the subject of more of our articles than any other individual, and the mention of his name brings the readers flocking.

The admin desk therefore felt that this anniversary was too momentous a date to be allowed to pass unmarked. A highly appropriate chocolate and stout cake was therefore whipped up and tastefully decorated in the likeness of the Right Honourable member for Brentwood and Ongar. Thankfully, there was little risk of any of it being left to sit in a “slop bucket” as the entire thing was consumed with almost unseemly speed. And tonight we’ll all be ordering in a commemorative tikka masala…

A culinary tribute. Photo by Joe Hudson

Mr Pickles, writing about waste policy would have been far less interesting over the last three years without your contribution. We who are in your debt salute you!

The Admin

I owe Deborah Meaden a bit of an apology. In an article in February I cocked a snook at her comments that the key considerations about the Gloucestershire incinerator were aesthetic, when for me the central issues were long term availability of feedstock and whether the scale of the incinerator was consistent with maximising recycling.

As it turned out, the planning committee in Gloucestershire was more inclined to agree with Meaden than with me or, more worryingly, with their officers. At the time of writing, minutes of their meeting on 21^st March at which the committee unanimously rejected their officers recommendation for approval and threw out the planning application for the incinerator at Javelin Park have still not been published, but press reports indicate that the five reasons given focused on the visual impact that the proposed structure, to be built near junction 12 of the M5, would have on the landscape of the Severn Vale.

Tug of war

Whatever position one takes on the arguments over whether an incinerator is the right solution in Gloucestershire, the decision exposes the profound tensions within the planning process that can land any local authority in a pretty invidious position. Any council, in its role as a waste disposal authority (WDA), may on the one hand be heavily committed – both intellectually and financially – to an infrastructure project; on the other, as the local planning authority (LPA), it has a completely different set of considerations to weigh.

The situation becomes more complex when a council enters into a long-term contract to build a piece of infrastructure, all the more so when it is supported by substantial government PFI credits. In pursuit of their shared objective, close working relationships can form between WDA officers and the contractor. Meanwhile, other parties such as Defra may be closely involved as co-funders. The momentum towards bringing the project to fruition can reach a high magnitude far in advance of it coming before a planning committee.

Nevertheless, as the Gloucestershire decision shows, councillors on planning committees are able to set aside their council’s waste disposal interests and reach a view based on other factors. A very similar situation arose in Cornwall in 2009, when councillors also threw out a planning application for a proposed incinerator. Such decisions are particularly striking because they are taken against the recommendations of officers. It is important to understand how this can come about.

Officers are the ones who may feel the tensions between the different roles of local authorities most keenly. Planning and waste disposal teams often report up to the same Director, who must strive to represent the interests of both the WDA and the LPA. In this internal tug of war, it takes a great deal of professionalism and skill for a council to make sure it keeps pulling both ends of the rope with the same degree of energy.

Planning officers will wish to support the planning committee’s wishes, but if the committee has reservations about a project that the officers’ colleagues are working towards, they may feel under pressure from both sides. Sometimes that pressure can be too great to manage. Documents released by Cornwall Council detailing the relationship between officers and their waste management contractor, SITA led the Liberal Democrat MP for St Austell, Steve Gilbert, to write of a “culture of collusion” between the council and the contractor as plans for an incinerator were considered. Gilbert found evidence of officers helping to “manage the flow of information to councillors, the media and community” while the council officially remained neutral.

Collusion course: Steve Gilbert MP says that officers in Cornwall got too close to their PFI contractor. Photo by Hamish McCallum, via Wikimedia Commons

Planning officers, aware of the council’s wider interests and contractual commitments, may feel bound to recommend approval of projects about which they know their committee has planning doubts. Maintaining their independence is therefore made more difficult by contractual commitments entered into years before; and the risk is that far more comes to hinge on the planning decision than it should. In circumstances like this, it starts to become explicable how a planning committee could unanimously reject a formal officers’ recommendation for approval of a major strategic project.

Losing their appeal

However, planning doesn’t stop at the planning committee: we have a growing culture of consent by appeal and judicial review. Urbaser Balfour Beatty (UBB) will no doubt be considering whether to appeal the Gloucestershire decision; if they do, it will be fascinating to see whether the victory won by the Gloucestershire campaign groups will be upheld. The Cornwall decision resulted in a planning battle that ended up in defeat for campaigners, but only once the case reached the Supreme Court.

A cynic might say that, with local elections in the offing, it suits councillors to be seen to make a popular decision against an incinerator, especially if they believe that it can all be resolved at appeal. For officers, the appeal applies the same tensions as the initial planning process, but magnifies them further. According to Steve Gilbert, in the Cornwall appeal the stresses ultimately prevented that council from putting forward both sides of the case to full effect. He states that when the Cornwall incinerator decision went to appeal, the council’s leadership said that the planning committee’s decision to reject the incinerator would be “robustly” defended. But at the same time, documents showed, senior officers were working with SITA to undermine the arguments that would be used in the council’s defence.

For the contractor, the delay and extra effort of an appeal matters little, if under the terms of a PFI contract it is the authority (and typically it is) that pays the lion’s share of the costs of both sides. Most PFI contracts also have preconditions relating to planning, which reverse the normal commercial order of things (i.e. a project receives consent and then a contractual commitment is entered into). The situation would be very different if LPAs were able to arrive at their view without being constrained by prior contractual commitments that leave the financial risk of an adverse planning decision with the council.

Split decision

What’s the alternative? There would appear to be an easy solution to remove some of the pressure from officers: authorities should seek planning permission for their preferred solution before they let contracts that depend on it.  Of course this would mean the local authority rather than the contractor taking the flak for an unpopular proposal. But the authority has set the strategy; they have adopted the development plan; and so if they want a particular development, why shouldn’t they be the ones seeking planning permission?

Whilst it may not be ideal that the applicant and decision maker sit within the same body, albeit with the WDA acting as applicant to the LPA, the heavy contractual financial pressures and penalties attached to the planning decision would be removed. It may require a little more investment up front, but by contracting only when planning issues are out of the equation councils should be able to reduce the amount of risk that bidders price in and therefore obtain better deals overall.

This approach would not be without its complications. Typically, the detailed design of the facility to be built is not specified in a PFI tender process, but – in theory at least – left to the market to decide. Without all of the information in place that a contractor would normally provide, wouldn’t it be difficult to obtain consent for the project? This problem wouldn’t be unduly difficult to fix, by splitting the procurement process to allow for a non-binding market sounding exercise to enable the council to firm up its view on the optimum facility required.

There might still be argued to be a risk of pre-judging the outcome of the subsequent contract – or of discovering at a later stage that permission had been obtained for what is, in the contractor’s view, the ‘wrong’ facility. In practice, though, contractors are quite capable of modifying planning consents to suit the emerging needs of a project. So although such reservations are material, they represent far lesser risks than councils take on in the current ‘contract before planning’ system.

A planning decision should be about what is and is not to be developed. It should not be the critical decision point relating to an already let, long-term billion pound contract, on which rests huge financial consequences for the local authority making it. Making it so puts a heavy burden on local authority officers and directors, who must exercise extraordinary levels of professionalism to ensure that the council acts impartially when its own interests are at stake. If councils are to reduce their exposure to costly planning related penalty clauses, and if we are to see better waste management decisions taken, the planning horse needs to get back in front of the procurement cart where it belongs.

Mike Brown

Isonomia had a fine April, with four excellent new articles blossoming forth, two from new authors. Our readership in April 2013 was nearly 150% greater than a year ago: at this rate, the admin team calculates that we’re on course to be bigger than Google – perhaps around the same time as the national debt is paid off.

Peter Jones was our leading author of the month, thanks to his examination of the Daily Mail’s claims that 12m tonnes of household recycling is being landfilled overseas. The Mail’s clearly untrue claim has been the subject of a great deal of online debate, some favourable and some critical, so we’re happy to have put this detailed analysis of what’s wrong with their article.

One of the other big recycling stories of the year so far was Defra and the Welsh Government’s success in defending the current wording of the regulations that transpose the revised Waste Framework Directive’s requirements regarding separate collection of recyclables. Joe Papineschi provided an insight into what the ruling might really mean in practice, concluding that the decision was rather less of a victory for fully co-mingled collection than might initially be thought.

Our two new authors covered very different topics. Simon Hann explored what the future of eco labelling may be. While Tesco may have stepped back from its attempts to provide ecological impact information, developments in France may be paving the way for a new pan-European approach that will give consumers a more consistent guide to the environmental footprint of their purchases. And in our newest piece, Richard Vaughan applied the academic theories about what motivates criminal behaviour to waste crimes. His concern was that the deterrent effect of the increased penalties that the Environment Agency is managing to achieve through the Proceeds of Crime Act may be undermined if there is a reduction in the Agency’s enforcement budget.

With another strong month from his classics on turtles, aluminium cans and woodburners, Chris Sherrington maintained his vice-like grip on the top of the all-time most read articles chart, and he further closed the gap on Phillip Ward as our most read author. One more big month, and it could be all change.

We’ll have more for you in May: Mike Brown’s thoughts on how the planning system gives local authorities problems when their planning responsibilities come into tension with their waste disposal needs are nearing readiness, and a new author Hattie Parke is preparing a piece on food redistribution charities. There’ll be plenty more as the month goes on.

We’re always glad when our articles provoke debate. Our aim is to provide a platform for a wide variety of views, and if you are annoyed or enthused by something we have published, we’d like to extend to you the opportunity to respond with an article of your own. We try to provide an informed but accessible viewpoint on a wide range of environment issues, whether it’s offsetting or outsourcing, solar power or skips – whatever’s on your mind, get in touch.

Whether as authors, commentators or just visitors, we’re always glad of your contribution. Whether you’re from Barcelona or Banbury, Glasgow or Jeddah, we’re striving to create a space where thoughts on topics from across the environment sector can be expressed and explored, enabling communication and cross fertilisation of ideas – and we’d be delighted if you joined in.

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On 28th March the Environment Agency carried out a ‘day of action’ against waste crime, code named Operation Cyclone. Over 100 officers visited 60 sites suspected of carrying out illegal waste actions in the North East and South East regions of England. In addition to site visits, roadside stop and searches were carried out. In 2012 the Agency stopped a total of 1,135 illegal waste sites including closure, enforcement action or advice on changing practices to operate legally. It is encouraging that the Agency is taking waste crime so seriously and having a real impact. However the large number suggests that for many operators the rewards of working outside the law remain attractive.

The number of illegal waste sites is (in Donald Rumsfeld’s terms) a known unknown: however, the amount of enforcement work carried out by the Environment Agency hints at the considerable scale of the problem, as does the fact that the number of known illegal waste sites doubled in 2011/12 and is expected to rise further as the Agency carries out more work in this area.

Criminal damage

Illegal waste sites fall into three main categories: those with a permit but violating its terms; those without a permit, but carrying out activities that would be lawful if they had a permit in place; and those acting in ways that it would never be possible to obtain a permit for (e.g. a landfill site in a geologically unsuitable area. The Environment Agency characterises the range of behaviour and how it aims to respond in a helpful diagram (see Figure 1).

Figure 1 – Environment Agency characterisation of waste sites and responses

The potential for environmental damage can be considerable. Land can become contaminated from the dumping of toxic chemicals and rivers and watercourses can become polluted, threatening both the natural ecosystem and human health. Unabated burning of controlled or toxic materials, whether deliberate or (more commonly) the result of stored or abandoned waste catching fire), harms air quality and causes problems for those living nearby. The Environment Agency has determined that many illegal waste sites are within 50 metres of schools, homes or other “sensitive receptors”.

Days of action such as Operation Cyclone are important terms of raising awareness of the problem, but are they effective in stopping it? Much of the literature on the motivation for criminal behaviour takes the view that criminals are rational thinkers who operate their criminal enterprises like businesses. Gary Becker’s 1968 paper Crime and Punishment: An Economic Approach argues that criminals will only participate in crime if it is lucrative: that is to say, if the expected value of the crime is greater than the expected cost to the criminal, pricing in any additional “operating costs” from prosecution, such as fines or imprisonment. Only if the enforcement “costs” make the crime financially unattractive will the criminal be deterred by them.

Ed Rubenstein continues from Becker’s theory by trying to estimate the cost to the criminal of the risk of prosecution. Taking the example of burglary, he applies the following statistics:

• 7% of burglaries in the US result in an arrest
• 87% of arrests lead to prosecution
• 79% of those prosecuted are convicted
• 25% of those convicted are sent to prison.

Multiplying the percentages, he concludes that only 1.2% of burglaries result in time in prison. Since the average period “inside” for those sentenced to imprisonment is 13 months the overall average per burglary is 4.8 days of prison time. This, Rubenstein argues, is the enforcement cost to the prospective burglar. Put in those terms, it doesn’t sound like an immense disincentive, although it is unclear how high a negative value a burglar would place on a day spent in prison.

Rubenstein’s approach is, if anything, more plausible if applied to waste crimes, which are primarily economic in nature. People operate illegal waste sites because the entry barriers and the risks of getting caught fairly are fairly low compared with the rewards. Many of the offences detected result in a ticking off from an enforcement officer or perhaps a fine. I wouldn’t claim that each individual participating in waste crime calculates the likely “cost” to them of enforcement action, but across the illegal waste sector as a whole, the balance of risk and reward seems likely to have an impact.

Becker and Rubenstein’s work highlights that in order for enforcement to be effective in dealing with waste crime, there are two main levers to be adjusted: the perceived chance of detection and the expected penalty if detected. Increasing either will decrease the profitability of waste crime by increasing the expected “cost” to the criminal of enforcement action.

Fine isn’t good enough

Actions such as Operation Cyclone are a good way to increase the perceived risk of detection, but without adequate penalties this will not be enough. Fines for illegal waste crime averaged just £6,855 in 2011 with the highest fine just £17,000. Considering the level of income that can be made in a market where non-inert waste now typically costs over £90 per tonne to dispose of legally, these fines seem low. It would not be surprising if those who choose to break the law deem such penalties as simply an operating cost rather than a serious deterrent against operating illegally.

However, the Environment Agency has started to make use of other tools to increase the severity of sanctions. The Proceeds of Crime Act (POCA) came into force in 2002 and has recently been employed by the Agency in the prosecution of several illegal waste site operators. The aim of the Act is to take back from offenders the money they have made through acting illegally, and rebalances the burden of proof against the criminal. Once an individual has been convicted, the Agency can submit an estimate to the court of the criminal’s illegal income. The onus is then on the defendant to show that the estimate is inaccurate, or they will have to pay back the full amount. The result has been some impressively large sums. In May 2012, Hugh O’Donnell was ordered to pay £917,000 representing the income made from operating an illegal waste site and warned he would face four and a half years in jail if he failed to do so.

Dealing with illegal waste sites can be very tyring. Photo: Environment Agency

POCA has increased the size of penalties the Environment Agency can impose. Operation Cyclone shows that it is  proactively working to locate those in breach of the law. Austerity may however bring a new threat to effective enforcement. Much of the Agency’s funding for tackling waste crimes comes from grant in aid from Defra and BIS, not from its income from permitting which is used to finance officers who monitor businesses holding environmental permits. Both departments saw substantial additional cuts to their budgets can be expected to pass on some of the cuts to bodies they work with. There is a risk that, with its resources ever more stretched, the Agency may not be able to continue such pressure on illegal waste sites, despite the relatively high profile it has as part of the Agency’s corporate scorecard. My question is however, is whether such cuts would really save money.

Faced with cuts, the Agency may have less scope to undertake proactive work to try to sever the roots of the illegal waste industry. Officers are currently visiting waste producers to remind them of their waste Duty of Care including their responsibility to check the destination of their waste. Its task force for dealing with illegal waste crime may not be able to undertake as many operations or resource them so as to maximise the chances of successful prosecution. Such changes will again shift the balance of our equation with a lower risk of detection offsetting the higher cost to waste criminals imposed by POCA.

Within the legal waste sector, the “polluter pays” model works reasonably well, as the income from permits pays for inspection and enforcement. However, for those acting without permits, enforcement funding depends on Government priorities. The Environment Agency’s enforcement activity needs to be protected, and it is in the interests of the majority of the mainstream waste sector to push for this – although those involved in the costly remediation of the damage caused by illegal waste sites may have a more nuanced view. One approach would be to ring-fence funding, although this may be unattractive to a Government set on austerity. Another would be to ensure that more of the money recovered through POCA is dedicated to enforcement work, although this might skew the Agency’s priorities to focus on cases where the financial rather than the environmental benefits are greatest. More controversially, the costs of illegal waste enforcement could be paid for through a subscription from businesses – perhaps limited to the waste sector, or across the board as an aspect of their waste Duty of Care.

The alternative to paying for proper enforcement is not just an increase in environmental damage and health risks due to illegal waste. With the profits to be made from undetected waste crime, it also means an upsurge in illegal waste operators undercutting those doing the right thing.

Richard Vaughan

Eco labelling: a minefield on the path to sustainability if ever there was one. It should be the bridge between the ivory tower of Life Cycle Assessment (LCA) and the man on the street, and a way for manufacturers and retailers to show off their green credentials; instead, it is difficult to see them as a source of anything but confusion, contradiction and misinterpretation.

Take a look at the products you buy next time you’re in – insert name of suitably unethical, but convenient supermarket – and you will often find them labelled with basic environmental information such as how each should be recycled. Some may even tell you their carbon footprint, but too few to allow even the most ardent ethical consumer to work out the carbon footprint of their weekly shop.

Own label

Carbon labelling has become increasingly popular in recent years, but there has been no consensus on how a product’s carbon footprint should be measured. Instead we see myriad labels developed by various EU countries, each using different methodologies and system boundaries. A 2011 survey of 428 shoppers found that 72% thought carbon labelling was a good idea; but unsurprisingly, 89% found interpreting the labels confusing and in 2008 a Forum for the Future study drew similar conclusions, finding that consumers approve of the labels but don’t know what to do with the information. One of their final recommendations was that consumers should be encouraged to look at the ‘bigger picture’ and focus on lifestyle changes; what does it matter if you bought a carbon neutral packet of crisps if you drove five miles across town to buy it?

It’s not always plane what an eco label means . Image by Simon Hann.

If consumers like to see eco labels, perhaps it is because they assume that a manufacturer that goes to the trouble of calculating the carbon footprint of their product is probably a good egg – the actual figures reported seem to be inconsequential, since few of us are in a position to make meaningful comparisons.

However, despite the green glow that an eco label can give a product, not everyone who has boarded the good ship eco label has stayed the course. Tesco introduced a carbon reduction labelling scheme during 2007 to cries of “a revolution in green consumption”, but last year quietly slipped it overboard. Perhaps they noticed that it was taking a great deal of time and money, and that no other supermarket was following suit.

Phillip Ward has argued on this blog that using eco labels to put environmental decisions in the hands of the consumer is the wrong approach. Instead, he argued, they should use their role as major buyers and focus on the overall impact of their business activities. Supermarkets have intelligent, professional buyers, who if instructed to add environmental considerations to the criteria they use to select lines could heavily influence the market and stimulate more development of low carbon products. This could reduce the carbon footprint of everyone’s shopping basket, rather than just the few customers that stop to add all their carbon grams together.

Important omission

It’s not just at the level of the individual consumer that confusion around carbon footprints reigns. We are being encouraged to use less energy to help the UK meet it emission targets, and consumers may feel they are doing their bit by using carbon footprint labelling to steer them towards low carbon products. But if these products are manufactured overseas, the carbon emitted during their production and transportation will not appear in the UK emissions measurements at all. As Ann Ballinger explained on Isonomia last year, most carbon accounting is done on the basis of what is produced in each country, not what is consumed, allowing rich Western nations to outsource their carbon footprint to the far East – a story George Monbiot caught up with this month! If this issue is poorly understood, it is in large part because of a lack of effort to distinguish between the two ways of calculating or to explain what a critical difference they make.

The issue is further muddied by the fact that any business can design and use an eco label, whether backed by hard facts or the kind of pseudo-science typically found on anti-aging creams. There would appear to be a gap for an eco label that spans Europe (if not the world); one that is easily recognisable and trustworthy.

But, hold on, one already exists – the EU Ecolabel! Over 17,000 products sport the mark, yet it remains little recognised, allowing alternatives to continue to proliferate.  It is also just a simplistic stamp of approval rather than a scaled rating: this is eco, this is not eco. Even though there is life cycle thinking to back up the decisions, no information is supplied to say why one product out-ecos another, and so there is no way for the committed eco consumer to choose between two rival products that both carry the Ecolabel..

So, is our plucky little eco label doomed? A saviour may be coming in the unlikely form of the French Government. They have dashed to the forefront of European eco labelling with a pioneering trial. The Grenelle II national product labelling experiment saw 168 companies with a 1,000 products take part in a voluntary scheme during 2012. Participants were allowed flexibility, subject to a few basic rules, to display environmental information in a way that suited them. This resulted in an effusion of creative approaches, some more intuitive than others (see picture). It was mandatory to include a carbon footprint figure, along with at least one other environmental indicator of the participant’s choosing. However, any figures used had to be backed up with an LCA, and most importantly, the data on which the assessment was based had to be made public. The results of the trial are expected in 2013. If it proves successful the French government, no stranger to imposing eco label requirements on French businesses, may well do for retailers of consumer goods what they have done already with transport sector and are planning to do to the construction sector by the end of this year.

Examples of French eco labels produced under the Grenelle II scheme

The European Commission is also keeping a well trained eye upon such developments to augment its Single Market for Green Products Initiative; an attempt to homogenise the various LCA methodologies used throughout Europe into one. This is a positive step for both the consumer and business as individual countries can retain their labels, but a given company can market its green products across Europe using just one method of assessment. Using its recently developed Product Environmental Footprint (PEF) method as a basis, the commission is looking to develop rules by sector or product category. This will enable consumers to take better informed purchasing decisions by comparing the performance of products in the same product category. EU level testing is due to begin this year and will draw from, amongst others, the Grenelle II experiment.

This model, which combines flexibility, openness and verifiable information, may well be one that can garner support from retailers, consumers and activists, but it is too soon to say whether businesses will embrace this as a new sphere of competition or react against it as an unnecessary burden, but as many larger business are already starting to calculate LCAs for their products behind closed doors it may not be such a huge leap to pass some of the results to consumers.

Ultimately, the real long term benefit of compulsory eco labelling will be to allow reporting on consumption rather than territorial emissions. Although all these schemes are currently voluntary, if every product you bought was required to have its environmental footprint measured then it would be fairly straightforward to calculate the true environmental impact of our consumption of goods. We would no longer be able to export our environmental impacts to countries such as China and India while bemoaning the pointlessness of saving energy in the UK as they build new powers stations to fulfil our demand for goods. Our consumer culture is the elephant in the room, and it is getting bigger. Try as we may to ignore it, once we slap an eco label on it we will have to sit up and take notice.

Simon Hann

The Daily Mail ran an extraordinary story on its front page on 5^th April, claiming that 12m tons (sic.) of material collected as household recycling is in fact being landfilled overseas. The article also reports that official statistics showing a recycling rate of 43% of household waste are overstated because “in reality, processors reject most recyclable material, which then often ends up in landfill sites.”

With unwitting irony, the article recycles elements of pieces from 2008 and 2011, when the Mail told its readers that “Thousands of tons of recycling carefully sorted by families in Britain is being dumped illegally in the Third World.” It also gave the Mail the opportunity to re-use one of its favourite pictures, showing a household in Newcastle-under-Lyme with nine separate waste containers.

Defra has offered a straight bat denial of the Mail’s claims, but I think it is worth unpicking this mish-mash of half-truths in rather more detail. You might say that a tabloid newspaper publishing a misleading story is more “dog bites man” than “man bites dog”; however, what I find interesting is the Mail’s agenda and motivation, and the impact this kind of piece has. There isn’t space to debunk all of the Mail’s misleading claims, so let’s focus on the central ones.

Arrant tripe

Are “12 million tons of your carefully sorted waste… being dumped in foreign landfill sites?” It isn’t easy to work out the source of the Mail’s figure, as the story isn’t prompted by the release of new statistics. Rather, it seems to have been triggered by Defra’s launch of a consultation on new transfrontier waste shipment rules, from which the article quotes – but which contains no statistics at all.

There has been some useful work attempting to unravel the “12m ton mystery”. The number certainly doesn’t come from the Defra Local Authority Collected Waste Management Statistics for England 2011/12, although this is the source of the 43% recycling rate derided by the Mail. It reports that the total household recycling collected was only 10.7m tonnes. Perhaps the Mail added in the 0.7m tonnes recorded in the 2011/12 Welsh statistics, but that still leaves them a little short, and it is rather unlikely that the further 1.2m tonnes from Scotland would have been included.

The 12m might include some of England’s recycled commercial and industrial waste. If so, there is no explanation of how the Mail derived this from the 2009 survey, which show that 52% of the 47.9m tonnes of this waste were recycled – some 25m tonnes.

The likeliest source is a seven year old number from the Environment Agency website’s page on notified waste shipments. An estimate is given of transboundary waste movements based on notifiable waste shipments information and data from HMRC. The Agency says that “England exported around 12.5 million tons and imported about 1.3 million tonnes of waste in 2006, giving a net export of around 11.2 million tons.” Of the exports, 99% were “green-list” waste (which the Mail confusingly refers to as “green waste”, a term more often applied to garden waste) that will be subject to a recovery process (typically recycling or energy from waste) and does not require permission for export. Scrap metal, much of it from commercial and industrial sources, made up 63% of the total, and being relatively high value and easy to separate is pretty unlikely to end up in a Chinese landfill.

If only 11.4m tonnes of household recycling are collected in England and Wales, we can be confident that there are not 12m tonnes of “your carefully sorted waste” being dumped. And if “most” of the material being exported was rejected, surely no savvy Chinese businessman would be paying to receive it.

Reprehensible drivel

So there is no published statistic that backs the Mail’s extraordinary claim, and the numbers that are available only highlight its inaccuracy. The same is true of the claim that “processors reject most recyclable material, which then often ends up in landfill sites”.

Some (though far from “most”) of the material collected commingled by local authorities and separated in UK MRFs will end up being disposed of because it is contamination, not the targeted material. Councils report reject rates ranging from 2-20%, but the relatively poor quality of some of the resulting separated material is one reason why material is reprocessed in the Far East rather than in the UK (it being cheaper to do further manual sorting where labour costs are low). Heavily contaminated waste may be unlawful for export – hence Defra proposing stricter border checks in its consultation. And some shipments are sufficiently contaminated that they are turned away even by raw-material hungry China. The extent to which this occurs seems to vary depending on Chinese political and economic circumstances, but there are indications of a new push to get rid of low quality imports. this can be updated and strengthened.

Are the Mail’s views on recycling behind the times? Photo by Alex Muller, via Wikimedia Commons

Proposals for a MRF Code of Practice are intended to address this, but there are reasons to think that more work is needed to make them effective. It is hard to imagine the Mail campaigning for tighter regulation of a UK industry, even to address a problem they have highlighted. Less likely still is that the Mail might want the recycling quality issues to be addressed at source. The material that is fed through MRFs isn’t “carefully sorted waste” that has been placed in separate bins and containers, but the much more Mail-friendly commingled material, collected in just one or two recycling containers; the systems that more than half of UK authorities employ.

The fact that we are shipping poorly sorted recycling overseas should be a source of disquiet. But the steps needed to address this, better (self?) regulated MRFs and more separate collection of materials, run directly counter to the Mail’s agenda.

Tawdry guff

The article seems to carry an undercurrent of disapproval against the export of materials that UK households recycle. It quotes disparagingly another extract from the Environment Agency website: “In the UK and the EU, increasing amounts of waste collected for recycling are sent overseas for reprocessing. Much of the waste collected from households and through your local civic amenity sites/household recycling centres will ultimately be exported.” By contrast, appears to approve of a statement from Doretta Cocks, of the Campaign for Weekly Waste Collection: “Most people believe their rubbish is recycled in this country. Now it turns out there are container ships coming here from China filled with televisions and computers … and going home stacked with containers filled with our recycled rubbish. That is shameful.”

I doubt that “most people” have given a second thought to where their recycling ends up. And just how shameful is it that some goes overseas? If many of the goods we buy are manufactured in the Far East, returning the material there for remanufacturing can be viewed as “closing the loop”. Would it be less shameful if the ships went back empty?

Cocks, not being an industry expert, perhaps hasn’t considered the important distinction between recycling that has simply been sorted and baled, and that which has been reprocessed back into a useable raw material. I would be happy to see more recyclate reprocessed in the UK so that we could obtain more of its value – but without a surge in UK manufacturing, much of this would still be exported. Again, the barrier here is poor quality recycling, whose remedies through separation and regulation are anathema to the Mail. The implication seems to be understood by Cocks, who expresses fears that “we are now going to come under greater pressure to produce purer materials for recycling.”

Whiffy bilge

So what is the Mail seeking to achieve that leads it to print such woefully inaccurate journalism? No doubt, the primary goal is to sell newspapers, and judging by the comments on the article, the Mail is slightly more moderate in its views than are its readers. A rather shouty Aletheia from Gloucester had submitted the top rated comment when I checked: “ALL ONE BIG LIE AND SOME COUNCILS WERE EVEN LOOKING AT FINING PEOPLE FOR NOT SEPARATING RECYCLABLES. IT SHOWS WHAT EVIL LIARS THEY ARE!”

Both appear delighted to re-confirm their perception that national and local government are not just inept, but actively conspiring to inconvenience householders and waste tax money, whatever the facts. All the more troubling is the way that these assumptions leech out into wider attitudes.

Attempting to read a consistent position into the Mail’s hotch-potch of an article is tricky, but it forms part of a consistent trend of reporting negative stories about recycling; balanced only by a share tip about a successful recycling company, and a story about a Bristol recycling crew who rescued some kittens. Borrowing words from one of these articles, it seems the Mail’s aim is “fuelling public cynicism about the value of recycling”, which it sees as a futile imposition. Aside from the headline, there is little commentary on the assemblage of non-facts and decontextualized quotes, with the meaning emerging from their order and juxtaposition. But the ideal it envisages appears to be one where, in an orderly and litter-free fashion, the English do away with recycling, throw everything in one bin, and think no further about it.

The consequences of such an approach are not examined in the article, but it will be interesting to see if the Mail’s next campaign, after its push to reduce plastic bag litter, is for the construction of new incinerators and landfill sites the length and breadth of the country. And perhaps it might strike the first blow by stopping recycling its inaccurate old stories.

Peter Jones

There can have been few judgements in the administrative court more cut and dried than that given by Mr Justice Hickinbottom in Cardiff last month. In his decision regarding whether the revised Waste Framework Directive (rWFD) had been correctly transposed through the Waste (England and Wales) (Amendment) Regulations 2012, he saw little of merit in the case made by the claimants, a group of materials reprocessors. Finding in favour of Defra and the Welsh Government, he concluded:

“I find that the interpretation of the third paragraph of Article 11(1) of the Waste Framework Directive is unambiguously clear: the obligation to set up separate collection of paper, metal, plastic and glass from 2015 is restricted by both the practicability and necessity requirements that also restrict the obligation in Article 10(2) to collect separately for the purposes of recovery.”

However, I think that some of the reaction to the judgement has mistakenly assumed that the forthrightness with which the claim was rejected implies that the loss struck a severe blow against separate collection. In fact, it seems to reinforce the important change resulting from the first application for judicial review of the Waste (England and Wales) Regulations 2011. This means that co-mingled collection cannot be defined as a form of separate collection, and on my reading, there is quite a lot in the judgement that supporters of separate collection will find interesting.

A practical necessity?

The case concerned the amended version of Regulation 13, which states:

“(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.”

It turned on a very narrow question, regarding whether the wording of Regulation 13(4)(a), whose wording is derived from Article 10(2) (rather than Article 11, which deals with the four key materials), was a correct interpretation of the rWFD.

The decision means that 13(4)(a), which Hickinbottom calls the “necessity requirement”, stands. But reaction has tended to focus on the interpretation of the 13(4)(b),which Hickinbottom calls the “practicability requirement”, and has been discussed several times on Isonomia as the “TEEP test”. To understand the real significance of the judgement, we need to analyse the necessity requirement: when may separate collection be necessary to “ensure that waste undergoes recovery operations… and to facilitate or improve recovery”?

While firmly deciding that the requirement to collect waste separately is subject to both of the “requirements” being satisfied, the judgement does not state whether separate collection might generally (or ever!) be considered necessary. It is interesting (though inconclusive) that the judge felt it was worthwhile addressing the “practicability requirement” at length. Since practicability would only be considered if the “necessity requirement” is satisfied, the discussion would be rather academic if Hickinbottom didn’t think the necessity test would sometimes be met. But perhaps he was just being thorough.

A glass apart

So, is separate collection ever necessary, given that co-mingled collection allows a good deal of material to be recovered? There generally are end markets for the plastics, metals, paper, card and glass that are collected co-mingled and separated by MRFs, and these are reprocessed into new products.

Having said that, the processes for collecting and sorting mixed materials clearly aren’t perfect. Perhaps most importantly in the context of the rWFD, collecting glass co-mingled tends to lead to considerable and problematic contamination of other materials. The effect of compaction and the sorting process on glass is also pretty destructive and most of the cullet that is produced is only suitable for use as aggregate. But this still counts as recovery – so an increase in separate collection is not likely to be necessary simply to ensure glass waste “undergoes recovery operations”.

The JR may have crushed the reprocessors’ argument, but there could still be a strong argument for separate glass collection. Photo by Eunomia.

However, within the ‘recovery’ tier of the waste hierarchy as defined in Article 4 of the rWFD, there is a clear order of precedence, with recycling preferred ahead of ‘other recovery’. While the UK has counted recovery of glass as aggregate towards its recycling targets, this is increasingly being acknowledged as a low-grade form of recovery compared to closed-loop ‘re-melting’ of glass into new glass products. From 2013, UK businesses will have to meet part of their recycling target under the packaging regulations through re-melt. In practice, this will require a certain amount of separate collection, but perhaps at the level of the current targets not more than the UK’s collection systems already deliver – but it creates, for the first time, a clear qualitative distinction between aggregate and re-melt end uses for waste glass.

There are also new “end-of-waste criteria” for glass made under Article 6 of the rWFD, which will come into effect across the EU from 11^th June 2013. They stipulate that glass cullet that complies with the purity standards it specifies and meets “a customer specification, an industry specification or a standard for direct use in the production of glass substances or objects by re-melting in glass manufacturing facilities” will not count as a waste, but as a raw material. The ‘carbon metric’ approach that is increasingly being used to gauge the value of recycling systems also clearly favours re-melt over aggregate, which has been shown to offer little if any net benefit in greenhouse gas emissions. In this context it seems that the days of counting glass recovered to aggregate as ‘recycling’ may be numbered and straightforward to argue that collecting glass separately from other dry recycling is necessary to “facilitate or improve recovery”.

If separate glass collection is not necessary to ensure that it undergoes recovery operations, but is needed to facilitate or improve recovery, does this meet the “necessity requirement”? The rWFD, from which the wording of the necessity requirement is taken, is hardly a paradigm of drafting. But if we read the “and” in “ensure that waste undergoes recovery operations… and to facilitate or improve recovery” to mean that satisfying either half of the clause is sufficient to meet the test, then separate collection of glass would seem to be required, subject to it being practicable.

Definite article

To me, the really interesting element of the judgement is the emphasis it places on Article 10. The Regulations seek to implement Article 11(2), which is concerned only with recycling paper, metal, plastic and glass; but Article 10 imposes a much more general requirement: “Member states shall take the necessary measures to ensure that waste undergoes recovery operations” . This appears to apply to all waste, and again, separate collection is required wherever the two requirements are met.

There are two observations to make here. This requirement would appear to apply to materials that it is difficult to recover through a MRF but which can be recovered or recycled if collected separately. Such materials might include nappies, sanitary waste, small WEEE, batteries, textiles and organic waste. Food and garden waste could be collected together, but not mixed with other materials (in residual waste).

Clearly, this range of materials hasn’t been the focus of the reprocessors behind the judicial review, whose members are mainly concerned with the four materials highlighted in Article 11, but the new focus on Article 10 arising from the JR should bring this issue to the fore. It may lead to recognition that Article 10 does not appear to have been transposed into English and Welsh law through the existing regulations, which is perhaps something that Defra and the Welsh Government will address in the guidance they will no doubt now be looking to produce on Regulation 13.

Far from being a major blow to the case for separate collection, Justice Hickinbottom seems to leave in play a case for the separation of glass from other dry recyclables, where practicable – and this could have far-reaching ramifications for co-mingled collection generally. Perhaps more significantly, by highlighting the importance of Article 10, the judgement points out what appears to be an important omission from the current regulations, which if addressed through guidance or further legislation could lead to far more recyclable material having to be collected separately from the residual waste stream or one another.

Joe Papineschi