“No can do” isn’t good enough

I had a bit of a shock the other day. I saw an aluminium can in one of our residual waste bins. You might think I’m being a little melodramatic, but in my view, that type of behaviour is not acceptable in a company of which I am the Chairman. It triggered an e-mail to fellow staff at Eunomia to highlight the fact that I was expecting rather more of them than this.

It’s pretty simple – basically, follow the waste hierarchy. In this case, don’t chuck away aluminium. For one thing, recycling 15 grams of aluminium saves the equivalent of 150g of CO₂, the emissions that would result from running a 10W bulb for 40 hours or so.

Call of duty

However, my reaction was not just due to my ecological principles being offended; if I don’t take steps to stamp out this behaviour, Eunomia and its directors are, as far as I see it, breaking the law. When the Waste (England and Wales) Regulations 2011 entered into force, regulation 12 made it abundantly clear that:

An establishment or undertaking which imports, produces, collects, transports, recovers or disposes of waste, or which as a dealer or broker has control of waste must, on the transfer of waste, take all such measures available to it as are reasonable in the circumstances to apply the following waste hierarchy as a priority order.

Let’s look at the words here. Eunomia is an ‘undertaking’ in the legal sense of a business, and it produces waste. ‘Establishment’ is a broader term with no strict legal definition. The regulation speaks of something we ‘must’ do: this generally implies an obligation, or a duty. And what must we do? We must apply the waste hierarchy, or at least take all measures ‘reasonable in the circumstances’ to do so. To my mind, the efforts we make to separate our waste, including food waste, and the occasional check on what is going into our waste bins, is part of what is ‘reasonable’.

Regulations 12(2) and 12(3) allow for some departure from the priority order, which reflects the same waste hierarchy as in Article 4 of the Waste Framework Directive. However, for most common recyclables, the environmental impacts of recycling compare favourably with all forms of residual waste treatment and recycling collections can be easily obtained. It would seem difficult to demonstrate that circumstances make it reasonable to depart from the hierarchy for these materials other than very exceptionally.

To help clarify matters, Defra has issued its own guidance on application of the hierarchy, in line with regulation 15. This elaborates what the expected course of action in applying the hierarchy should be. It also sets out some instances where management of waste should deviate from the priority order established in the hierarchy, notably the preference for:

1. recovery through anaerobic digestion of source segregated food waste over composting,
2. recovery through anaerobic digestion of garden waste and mixtures over composting; and
3. energy recovery over recycling in the case of lower grade waste wood.

The guidance adds further confirmation, if it were needed, that the application of the hierarchy is no longer a voluntary option, but a duty. It even proposes text which can be used on waste transfer notes in line with regulation 35 of the Regulations:

“I confirm that I have fulfilled my duty to apply the waste hierarchy as required by regulation 12 of the Waste (England and Wales) Regulations 2011.”

So there we have it: a clear and unequivocal duty to apply the waste hierarchy. Why, then, are so many businesses – and for that matter, local authorities – stating in waste transfer notes that they have fulfilled a duty which they are obviously not fulfilling?

Calling authorities into question

The case of local authorities is particularly interesting, given the role they have played in developing household recycling services. No doubt many, bound into long term collection or disposal contracts, would argue that the costs of changing their arrangements would make it unreasonable for them to take the steps, such as separately collecting additional waste streams, that would be required. However, one would hope that they were in a position to evidence this – and the line is harder to maintain for authorities that have changed their arrangements since regulation 12 entered into force in September 2011, or are considering doing so.

I don’t mourn the passing of recycling targets in the Waste Policy Review. They drove councils to institute high volume but environmentally questionable services such as free green waste collections. The duty to follow the waste hierarchy ought in theory to be far more effective in promoting better waste management.  The problem is, we seem to have allowed everyone in the land to carry on as if the Framework Directive changed nothing. It did.

Is a mix like this compliant with the waste hierarchy? Photo by Lurifax, via Wikimedia Commons

The issue is one of enforcement rather than law. Where a business or a council is not fulfilling its duties the Environment Agency, as competent authority, is empowered to issue a ‘compliance notice’ requiring that steps be taken to ensure that the non-fulfilment ceases. It can also issue a stop notice prohibiting an activity until relevant steps have been taken.

Failure to comply with one of these notices can lead to prosecution and a fine. To concentrate minds – such as directors of Eunomia and officers and members of local authorities – regulation 44 says that if a body corporate is found guilty of a breach, the individuals responsible for the offence may also be guilty.

Hierarchy anarchy

All this seems pretty clear to me. But if, as I suspect, many businesses and authorities are in breach, where are all the compliance notices and the stop notices? The Waste (England and Wales) Regulations 2011 are at risk of becoming an assemblage of words that no one bothers to enforce. This danger was signalled when self-declaration on the lowly waste transfer note was made the principal means of demonstrating fulfilment of one’s duty. Without enforcement, what’s the point of the Regulations?

I’m not pointing the finger at the Environment Agency on this. While they continue to enforce compliance with environmental permits, the grant-in-aid that supports other enforcement is under pressure, so pro-active work has predictably dwindled. Funding enforcement of the hierarchy may seem like a luxury to its sponsoring body Defra in the current circumstances – although it is Defra that produced the legislation and guidance that is so widely being ignored.

Does it matter? Well, yes it does. I’ve just been working on a proof of evidence for a planning inquiry where yet another proposal for an over-sized residual waste treatment facility has been made. The authority in question is not collecting food waste, it doesn’t have a good service for glass collection, it isn’t collecting a wide range of plastics and its recycling performance is relatively poor compared with its peers. If all authorities like this were made to meet what I perceive to be their waste hierarchy duty, hundreds of millions of pounds would be saved through avoided damages from GHG emissions, and even more if all businesses fell into line. For many in both the private and public sector, there would also be financial savings from recycling material rather than landfilling or incinerating it.

My impression is that, where the law is clear, authorities and companies will generally strive to stay within it. Surely, then, it is worth Defra helping the Environment Agency to invest in a high profile campaign, and maybe a test case where this proves necessary, that will clarify the duty that businesses and local authorities have to apply the waste hierarchy. It’s difficult to think of another piece of enforcement that could deliver such a large bang for so few bucks.