Reverting to TEEP: more Waste Regulations quandaries

The one commonly accepted fact about the Waste Regulations is that they aren’t well understood. Local authorities across England, Wales and Northern Ireland are grappling with the question of whether separate household collections of glass, metal, paper and card are “necessary” and “practicable”. In the absence of case law and with the Environment Agency only now starting to make clear how it will approach enforcement, these poorly defined concepts are far from easy to apply. But I’ve come across some interesting and difficult cases lately that help to reveal what the Regulations might mean in practice.

Coming over all unnecessary

A couple of issues cropped up in the Local Authority Theatre at RWM last month. During a discussion of the Waste Regulations Route Map, a lawyer voiced the view that authorities could by and large disregard the TEEP test, because there was no proof that separate collection is (to quote the Regulations):

“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.”

Her argument is interesting – she readily admitted that there were studies that purported to show the superiority of separately collected material. One might point to recent work by Zero Waste Scotland, WRAP’s survey of reprocessor attitudes, or a review of previous studies on quality carried out for WRAP Cymru. Each of these tends to support the view that separately collected material tends to be higher quality – although it doesn’t follow straightforwardly that separate collection is necessary in any particular case.

However, the lawyer’s argument seemed to be that there were problems with all of the evidence, perhaps stemming from organisational bias or the influence of the UK reprocessing sector in setting the terms in which ‘high quality’ is understood. Therefore, she claimed, it was impossible to prove that separate collection was necessary to ‘facilitate or improve’ recovery, and no authority needed to concern itself with whether they were practicable.

I certainly see the force of the argument – separate collection may be the default option under the law, but only where it is ‘necessary’. If necessity can’t be proved, separate collection isn’t required. But this isn’t the strongest hand on which to bet the farm.

There are certainly cases where councils will be able to show that the quality of the materials they collect co-mingled means that separate collection isn’t necessary – but they will do so using evidence. It would be a brave (in the Sir Humphrey sense) authority that decided to disregard such evidence as there is – which in any case tends to agree with the widespread view amongst waste professionals that separately collected material tends to be of higher quality. Far better, you’d think, to bolster your position by checking whether separate collection is practicable or not.

Sacks segregation

Most of the focus of interpretation has been on Regulation 13, which concerns the requirement to separately collect glass, metal, paper and plastic, and where the dreaded TEEP test lurks… The range of collection practices that has grown up across the UK means that almost every conceivable approach has been implemented somewhere or other, leading to circumstances that could hardly have been anticipated by those drafting the law.

Typically, separate collection is thought to involve ensuring that material goes into separate chambers of a collection vehicle. However, the second thing that struck me at RWM was a presentation by an authority with an excellent recycling rate that asks residents to separate paper and card into different coloured sacks from other recyclables; but then collects all the sacks in a standard RCV and delivers them to a MRF. Could this practice be acceptable under the law?

International practice suggests that this authority is far from alone in Europe. A colleague tells me that in Norway, it is common (particularly in apartment buildings) for different recyclables to be placed in colour coded sacks within a single bin, with the material then being sorted in the first instance according to sack colour. But let’s think through the issues.

Sacks appeal: is collection of recycling in multi-coloured sacks potentially a form of separate collection? Photo by Mark Ahsmann, via Wikimedia Commons.

Is this a form of separate collection? Article 3 of the Waste Framework Directive says that separate collection is where “a waste stream is kept separately by type and nature so as to facilitate a specific treatment.” It’s certainly possible to argue that (provided the bags don’t split) the different materials are “kept separate” so far as this is necessary to facilitate treatment, even though it is transported in a single vehicle. It could also be considered “source separation”, as called for in Recital 28.

Taking the mix

However, perhaps there’s another problem – Regulation 14, which requires that any:

“establishment or undertaking which collects, transports or receives waste paper, metal, plastic or glass must, from 1st January 2015, take all such measures available to it in that capacity as are reasonable in the circumstances to ensure that where that waste has been separately collected it is not mixed with other waste or other material with different properties.”

If the sacks very rarely split, then the authority might argue that the waste remains separate all the way through the collection process. However, if the bags split rather more often, then it might be harder to maintain that all reasonable measures are being taken to avoid mixing.

In fact, the authority seemed to claim that what they were doing was simply a form of co-mingled collection, but I don’t think that washes. Just because the bags of paper are put in the back of the RCV, it doesn’t stop them from being “separately collected” within the meaning of the law.

The trickiest compliance issue falls on the MRF. It isn’t entirely clear whether, once they reach the MRF, the sacks of paper are separated out for recycling, or emptied onto the same sort line as the rest of the material. The first of seems legally unproblematic – the separately collected waste is kept separate. But if the second is correct, it would seem to be a case of mixing separately collected waste, in breach of Regulation 14.

Tricky business

Councils are starting to get to grips with the Regulations in relation to household waste, but it’s harder to tell whether collectors of commercial waste are doing the same. I suspect that the key difference between household and commercial collections is how one applies economic practicability considerations.

For household collections, although the calculations may be complicated, the economic issues are simple – you just need to work out the net cost of separate collection system and decide whether it would be ‘excessive’. For commercial waste operators, the issues are far more tangled.

Of course, the logistical cost of separate collections will be relevant. But in principle, the extra costs could be passed on to the client, so in itself that needn’t make costs excessive. The real challenges are about trying to predict the market, and without doing this, it’s almost impossible to assess economic practicability.

The amount of any increase in collection costs will depend on the method chosen and the market share that a separate collector can expect to achieve. If company A moves over to separate collections, but company B sticks with co-mingled, will A lose customers who prefer B’s offer of a cheap, simple and space-efficient option of a single recycling bin? And if separate collections prove more costly, could enforcing them lead to a reduction in recycling uptake?

Part of the problem here is the mismatch between the obligations on collectors and producers of waste. Whilst collectors are obliged to separately collect (where necessary and practicable), waste producers are only bound to apply the waste hierarchy, which does not directly mandate separation. The number of businesses – especially SMEs – that don’t appear to recycle at all suggests that the hierarchy isn’t particularly effective at present. It’s hard to see that it would provide the necessary push to make reluctant businesses accept separate collections.

Despite the efforts being made to interpret and apply the Regulations, practices are so varied and the issues so complex that easy answers are impossible to find. It is to be hoped that as the Environment Agency comes to grapple with enforcement early next year, it is alert to the complexities its staff will encounter. There is a genuine appetite from local authorities to understand what their obligations are, and the Agency has a real role to play in providing the clarity that is sorely needed.