Memorandum submitted by Environmental
Services Association
1. INTRODUCTION
1.1 Preamble
As the sectoral trade association for the UK's
waste and secondary resource management industry, ESA welcomes
the opportunity to comment on this Inquiry. Our industry contributes
more than £5 billion annually to the UK economy. Compliance
with the UK's existing legal duties would cause this turnover
to double, through very substantial investment in infrastructure
and otherwise, within a decade.
ESA has for some years sought a regulatory regime
requiring hazardous waste—to the extent that it cannot appropriately
be restored to the productive economy—to be treated to a
safe and stable state before final management in landfill. While
we welcome the Select Committee's interest in this most important
subject, we are dismayed by the fact that—even now—existing
infrastructure to treat hazardous waste is being undermined by
an inadequate regulatory framework.
The five largest waste management companies
in the UK operate elsewhere in the EU as well as in the UK. Because
the regulatory climate in these countries typically provides far
greater certainty than does that in the UK, they have been able
to invest in new treatment technologies. For example, Germany
has a far more prescriptive approach towards the management of
hazardous waste: this enables their hazardous waste management
industry to determine capacity requirements and to programme investment
with far greater certainty.
Our industry wants to invest in similar treatment
technologies in the UK and to use the experience and expertise
our Members have gained from operating these facilities across
Europe. The advice ESA has received from our leading Members is
that undue weight should not be given to perceived future shortfalls
in capacity: the means to dealing with this lie in the hands of
HMG.
The construction and demolition industry contributes
each year more than a million tonnes of contaminated soil and
over a quarter of million tonnes of asbestos to landfill. With
the possible exception of asbestos, this waste stream will be
required to undergo treatment before final management in landfill.
The chemical industry produces about 10 per cent of the UK's hazardous
waste.
1.2 Scope of this memorandum
ESA's four main conclusions are that:
— 2004 deadline for treatment of hazardous
waste to a safe and stable state ("Final Storage Quality")
should to the maximum practicable extent be met and, to the extent
that additional infrastructure may be needed, HMG should ensure
the planning system makes this possible;
— even if the UK is not obliged to
apply the European Commission's Technical Adaptation Committee's
("TAC") Waste Acceptance Criteria ("WAC")
until a period after 2004, because of extreme difficulties that
would arise from any transitional period during which WAC did
not apply but during which co-disposal was banned, we believe
the WAC should be treated as applicable with effect from 2004.
As discussed below, the industry will not carry the risk of placing
untreated hazardous waste in landfills taking only hazardous waste;
— in any event, until the TAC's WAC
apply, non-hazardous waste must be allowed to be placed in hazardous
landfills accepting untreated hazardous waste, and waste producers
must be required from 2004 to pay a tax to cover the cost advantage
of avoiding treatment of hazardous waste; and
— if the UK is to manage hazardous
waste effectively and sustainably, we believe that as a matter
of urgency the Government should produce a Hazardous Waste Strategy
covering at least the next decade and connecting chemicals policy,
producer responsibility and waste management regulation. This
would complement the National Waste Strategy and could provide
an opportunity to clarify the responsibilities of waste producers
and to link relevant EU laws rather than treating each legal requirement
as a separate entity.
2. UNCERTAINTY
2.1 Information Gaps
Information provided by industrial waste producers
on the volumes and nature of generated hazardous waste streams
is limited. Available data such as that incorporated in the Babtie
report commissioned by DETR is uncertain. More thorough research
into the requirements of waste producers would be needed to provide
a truly comprehensive analysis of hazardous waste management in
the United Kingdom.
Impending change in the definition of hazardous
waste will lead to some increase in the volume of waste defined
as hazardous. However, structural changes in the UK economy—particularly
the move away from a predominantly manufacturing to a service
base and greater impact of producer responsibility legislation
and improved life cycle analysis—may lead to significantly
lower quantities of hazardous waste being produced over the longer
term. We also expect larger quantities of materials to be restored
to the productive economy.
2.2 Industry's responses to market changes
Waste producers normally seek the cheapest (lawful)
outlet for their waste: this is why ESA sees regulation as such
a critical driver towards higher levels of environmental sustainability
which build into the costs of production all the costs—and
most particularly the environmental costs—accumulated over
the full life of products.
The UK is belatedly coming to terms with relatively
small costs which comparable competitors have already absorbed.
The responses of waste producers to the changes
in the costs of treatment and management due to relevant EU Directives
could take various forms. For example:
— production processes will probably
change to reduce volume and/or toxicity of wastes generated;
— in-house waste reduction/management
facilities may be developed (and perhaps managed by ESA's Members),
reducing the volume of waste treated by the waste management sector;
and
— alternative uses of waste such as
use as secondary liquid fuels may increase.
It is also likely that waste producers will
assess more carefully the waste streams which they currently define
as hazardous. Currently, many waste producers take a precautionary
approach, recording and transferring some wastes as "special"
even though they may not be defined by law in this way. The Babtie
report states that "Many companies acknowledge that they
overnotify their waste streams to ensure that they are within
the Law without recourse to expensive analysis". However,
this is difficult to verify in a context where the waste producers'
analysis is not as comprehensive as ESA's Members would wish.
2.3 Regulatory Uncertainty
2.3.1 Regulations and guidance
The Landfill Regulations were only laid before
Parliament in March 2002: eight months after the implementation
deadline of 16 July 2001!
We do not know when Regulations will be laid
before the national parliaments of Scotland and Northern Ireland,
and without a degree of regulatory co-ordination this could lead
to the flow of hazardous wastes to landfill facilities in Scotland.
We know of no arrangements made by DEFRA to prevent this and we
are most concerned that regulatory arbitrage of this type could
impede investment in infrastructure, delaying and prejudicing
attainment of higher standards of environmental sustainability.
The failure of the TAC to comply with its own
deadline and to derive WAC by July 2001 has constrained investment
opportunities. The interim national waste acceptance criteria
published earlier this year by the Environment Agency do not provide
sufficient certainty for investment and do not provide the framework
needed by ESA's Members.
Guidance on many crucial aspects of the interpretation
of the meaning of LFD has not yet been provided, despite numerous
and sustained requests by many key partners, including of course
ESA, to DEFRA and the Environment Agency. For example, the definition
of what constitutes a "corrosive material" in the landfill
environment has not been provided, hindering assessment of the
magnitude of the problems associated with implementation of LFD.
For processes which will be authorised by Pollution,
Prevention & Control ("PPC"), it will be necessary
to demonstrate that the wastes generated will be managed according
to Best Available Techniques ("BAT") for that waste.
No guidance has been provided on what will constitute BAT for
specific waste streams and this will have a direct effect on the
nature and volume of hazardous waste being directed to particular
types of treatment facilities.
2.3.2 Resourcing issues
The Environment Agency faces a considerable
increase in its workload over the next decade and it is essential
that it is properly focused and adequately resourced. For example,
it is estimated that the Agency will be required to process 1,200
new permit applications for existing landfill sites, pressure
which is exacerbated by the Agency's responsibilities under the
implementation of the PPC and the Habitats Directives.
It is crucial that the Agency focuses on its
core regulatory remit and is adequately resourced so to do.
2.3.3 The UK's record in implementing relevant
EU legislation
The EU drives the overwhelming majority of legislation
governing the waste management industry. Over the next decade
further EU environmental Directives will impact significantly
on the UK's managers and producers of waste.
The main currently known drivers on hazardous
waste management in the United Kingdom include producer responsibility
inspired Directives such as the End of Life Vehicles and Waste
Electrical and Electronic Equipment Directive (will reduce the
quantities of hazardous materials in these products), the Waste
Shipment Regulations, IPPC Directive and a possible European Directive
on the separate collection of household hazardous waste: the latter
may have very significant implications for local authorities.
It is also expected that mining, quarrying, and agricultural wastes
are likely to be shortly classified as controlled waste.
Despite the considerable operational implications
for producers and managers of waste, the UK's record of effectively
implementing relevant EU law is patchy.
For example, the PPC Regulations were delayed
for a year and the Committee has already taken pertinent evidence
on end of life refrigerators. As a result of this approach, in
recent years the UK has found itself served with infraction proceedings
on a number of occasions.
Quite apart from the commercial and operational
difficulties ESA's Members face as a result of this avoidable
uncertainty, the UK's environmental reputation is being compromised
and, if this is not reversed, the long-term ability of the UK's
environment sector (a key sector targeted by the DTI) to export
services will be compromised.
It is crucial that officials and regulators
become attuned to the conditions necessary for private sector
capital investment to be forthcoming and to the commercial implications
of their actions or delays in providing regulatory guidance.
If there is to be greater regulatory certainty,
it is essential that the industry is recognised as an effective
partner and a positive resource to be drawn upon at a very early
stage.
2.3.4 Planning for new facilities
With a challenging legislative timetable and
the added requirement for many new facilities to manage municipal
waste, there will be considerable pressure on the planning process.
Many planning applications will also need to succeed to deliver
the necessary hazardous waste treatment and management infrastructure.
Under the current planning regime, it can take several years for
a facility to become operational.
Currently, the planning process is failing to
provide the necessary efficiency and this is further compromising
investment opportunities. We do not believe that the Government's
Green Paper on Planning will lead to any significant improvement,
and we hope the current Performance and Innovation Unit study
into waste strategy will in this and other critical respects prove
to be more effective.
3. INFRASTRUCTURE
Based on the draft WAC currently under discussion
by the TAC, virtually all hazardous wastes which currently are
landfilled in the UK will have to be treated in some way before
final management in landfill.
Whilst suitable treatment methods are known
and many are available already in the UK, there is insufficient
capacity to deal with all the waste. Because of the uncertainties
discussed above, we cannot say with confidence precisely what
infrastructure will be necessary, but it is likely that a number
of high temperature incinerators and stabilisation plants will
be required by 2010.
The Select Committee will be aware that the
volumes of hazardous waste needing particular types of treatment
are estimated in the Babtie report. It should be noted that the
estimates are based on the current definition of Special Waste.
The Government has been aware for some time
of the regulatory conditions needed for the industry to invest
in hazardous waste management solutions. On top of ESA's and ESA's
Members' own frequent representations, the Babtie report commented
that "the industry is united in requiring definitive answers
to their questions about quantities, acceptance criteria and timing
before committing capital sums to existing plant as well as to
new plant".
Indeed, because of regulatory uncertainty the
sector has been characterised by market withdrawal. For example,
despite ESA's repeated warnings to the Government, regulatory
and market conditions have led to the closure of two of the UK's
four high temperature incineration (HTI) plants, one as recently
as March 2002, reducing UK HTI currently operating annual capacity
from 165,000 tonnes to 105,000 tonnes.
In other EU Member States, such as France and
Germany, there is at least two to three times more HTI treatment
capacity than in the UK relative to the size of the indigenous
chemical and pharmaceutical industries because specific hazardous
wastes are not allowed untreated in landfill or in co-incinerators.
ESA's Members are responsible risk managers
who want to invest. However, timing is crucial: if new facilities
are commissioned too early then they will stand idle (although
interest will still have to be paid on the money borrowed) while
waste continues to go to co-disposal landfill facilities, and
if too late the waste will go to other treatment routes.
At a time when capital is needed to invest in
new systems for municipal waste as well as new plant for hazardous
and liquid wastes it is likely that the safer investment prospect
is for companies to concentrate on the municipal waste stream.
For example, local authorities recognise that they are likely
to require new waste collection and management infrastructure
to divert waste away from landfill and are able to offer a higher
degree of certainty through long-term contracts and relatively
stable tonnages of waste.
4. TIMING
From 16 July 2002 hazardous liquids will no
longer be accepted into UK landfills. The waste industry believes
that in general hazardous liquid wastes can be accommodated into
existing treatment facilities.
However there are significant uncertainties
associated with the management of some major waste streams namely
the continued disposal of solvent contaminated aqueous waste into
brine cavities and the disposal of corrosive alkaline liquids
into settlement lagoons. ESA would regard brine cavities as landfill
and would also regard settlement lagoons as landfill when the
residue is left in situ.
LFD requires that in July 2004 co-disposal of
hazardous waste with non-hazardous waste must cease. This has
extremely serious implications for the management of the UK's
hazardous waste.
If only hazardous waste can be deposited in
hazardous waste landfills from 2004, without numeric WAC having
been set, there will be no opportunity to take advantage of the
biochemical reactions within a co-disposal landfill which achieve
attenuation, degradation and stabilisation of the hazardous materials.
Where hazardous materials are deposited in a site which accepts
hazardous waste only, there is no chemical buffering, attenuation
or stabilisation and contaminants are simply leached out over
time. ESA believes that the risks and long term liabilities that
would be presented by such sites will not be accepted by our Members.
In addition, waste producers will continue to
send their waste by the least cost route allowed by law. This
route will continue-for as long as treatment is not required-to
be landfill. This will provide adverse market conditions for the
survival of treatment facilities which are inevitably more expensive.
On top of this, it is likely that landfill costs
will fall in the short term as landfill operators seek to maximise
input into their sites prior to the date of implementation of
the requirements of LFD. Without sufficient regulatory certainty,
this in turn could further delay investment in and development
of additional waste treatment facilities.
On mature consideration of the alternatives,
ESA still remains of the view that a requirement to pre-treat
hazardous waste before final management in landfill with effect
from July 2004 is preferable provided the Government facilitates
the development of additional treatment facilities through the
planning and permitting process.
Any delay beyond 2004 should be minimised. In
any event, ESA strongly believes that the ban on disposal of non-hazardous
waste in hazardous sites must not pre-date the introduction of
the WAC.
Our industry has for some years made it plain
to the Government that it is not acceptable for hazardous wastes
which have not been treated to meet the WAC to be disposed of
in sites which accept only hazardous waste. During any period
of delay, mechanisms (eg differential taxes) must be put in place
to ensure that there is no cost advantage to the waste producer
in continuing to landfill without treatment rather than purchasing
treatment to meet the WAC. ESA acknowledges that it will be difficult
to set and to implement a fixed rate of tax to achieve the cost
balance and we hope the Government may regard this as a further
incentive to adhere to the 2004 deadline.
5. WASTE ACCEPTANCE
CRITERIA (WAC)
ESA is pleased that the draft WAC under consideration
by the TAC are based on risk assessment calculations. Again with
the exception of asbestos, most hazardous wastes currently sent
to landfill would not meet the WAC without some form of treatment.
ESA has consistently argued for the setting
of Final Storage Quality (FSQ) criteria as the acceptance criteria
for the final management of hazardous waste. The principle of
FSQ is to treat waste to a state where it can be managed in landfill
with confidence that there will be no residual risks to the environment
and where the site operator is released from future liabilities.
The draft WAC being considered by the TAC go some way in this
direction. ESA believes further work should be carried out on
the definition and setting of criteria for FSQ.
6. THE WAY
FORWARD
Action taken to implement LFD for hazardous
wastes must be consistent and coordinated across the UK to avoid
damaging regulatory arbitrage and market instability.
ESA's Members consider that it is important
to work closely with waste producers in order to reduce uncertainties
and ensure that the waste management provides an appropriate service
protective of the environment. We still actively seek cooperation
with all partners, where the Government, Devolved Administrations,
regulators, waste managers, waste producers and planning authorities
work together to achieve the 2004 deadline. We are, for example,
pleased to arrange with the Chemical Industries Association a
joint working seminar, chaired by ESA's Chairman.
In this sector, regulatory certainty delivers
investment opportunities. Without the right regulatory and economic
framework the UK will lurch from one scenario of crisis and failure
to another and, in the end, could spend more resources than prompt
and effective compliance with EU law would have required, but
without the environmental and economic benefits new British jobs
working for compliance would have delivered. Given long-term certainty
and effective regulation ESA's Members are ready, willing and
able to invest but we need the Government.
Environmental Services Association
May 2002
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