February 27th, 2012
by Phillip Ward
Defra and the Welsh Government got themselves into a legal mess with their first attempt at transposing the revised Waste Framework Directive. Their insistence that a commingled collection of recyclables was a form of “separate collection” as required by the Directive was successfully challenged by the Campaign for Real Recycling.
To avoid losing a judicial review they asked for and got a six-month delay to allow them to come up with revised regulations, and have just published a consultation document on their proposals.
The document is a tough read, although that is partly due to the dreadful wording of the Directive as it emerged from a drafting committee of 27 EU members and their negotiations with the European Parliament.
The first thing to notice is that the egregious insistence (supposedly for the avoidance of doubt!) that commingled collections are a form of separate collection has gone. Now separate collections of paper, glass, metals and plastics will be required, where they are technically, environmentally and economically practicable (TEEP) and necessary to meet the required standards of the relevant recycling sector.
TEEP in the balance?
So far, so good. That does seem to be a lot closer to the Directive’s intentions. But for local authorities, businesses and waste companies wanting to make decisions about their recycling arrangements or what facilities to invest in, this merely shifts the argument onto the meaning of TEEP. For that, they are going to have to wait – at least until after the summer, when the revised regulations will take effect, and probably much longer, as Defra want to see the Commission’s guidance before it commits.
However, for those looking to read the runes, Defra gives a clue as to their thinking by indicating that the ESA’s MRF Code of Practice will become mandatory, and by emphasizing the importance of the second test (“necessary to meet the required standards….”). The tactic seems to be to circumvent the TEEP test by showing that commingled collections can deliver the quality that recyclers require, provided that the material is sorted by MRFs which meet a mandatory performance standard. But I suspect that even Defra is not convinced that the current Code of Practice is strong enough to bear that weight, and is pressing for further discussions with the ESA.
Interestingly, the Welsh Government continues to take a very different line. They want to move to separate collections and are maintaining their stated policy of encouraging separate collections. The inference is that, they believe that separate collections are both TEEP and necessary for their recycling sectors. There is an evident tension between the two governments here, and one which will be difficult to leave unresolved – unless we argue that what is technologically possible in Wales is too difficult for the English.
So where does this leave those in England who have to take decisions about collection schemes and MRF investments? Not in an easy place. They can carry on as at present, hope that when the EU guidance appears it is compatible with the Defra approach – and risk substantial costs if it isn’t. Or they can look at which way the tide is running in other EU member states (and Wales), and start planning for more separation of materials.
Taking the path of source separation will reduce exposure to regulatory risk, bolster domestic recycling businesses and set us on track for a more resource based (circular) economy. On balance, I know which option I’d be taking.
Defra may not be out of the legal woods yet. Compare the wording of Article 11 of the directive …
“set up separate collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors”
with the wording of section 13 (4) of the regulations
“technically, environmentally and economically practicable; and
necessary to meet the appropriate quality standards for the relevant recycling sectors”
Swapping the two highlighted words around seems trivial but gives a quite different meaning. The Directive establishes a strong presumption in favour of separate collection, the regulations are designed to allow the requirement to be sidestepped if appropriate standards can be met in some other way. It will be interesting to see what the CRR and their legal advisers make of this.