Memorandum submitted by Biffa Waste Services
Ltd (X11(2))
We welcome the opportunity to provide written
evidence on the performance of the Government on the development
of Waste Policy and particularly meeting the requirements of the
Landfill Directive. As requested, our response deals separately
with Hazardous Waste and Landfill more generally. Our comments
relate primarily to the situation in England, but we have included
comments where relevant on implementation in Wales, Scotland and
Northern Ireland and where possible contrasted the approach of
the relevant Regional Government and/or regulator.
1. The effect of the Landfill Directive
is to alter fundamentally the management of all household, commercial
and industrial waste streams generated in the UK, and with the
UK's heavy reliance on landfill this is also impacting directly
upon the majority of facilities used for the disposal of wastes.
The scale of change required to fully implement the requirements
should not therefore be underestimated and could better be described
as a paradigm shift in practices.
2. Despite the scale of change required,
implementation has been characterised by Government (including
through the agencies of Defra and the Environment Agency) allowing
uncertainty over specific requirements to pervade the waste management
community; waste producers, local authorities, waste managers
and contractors. This had lead to confusion, uncertainty regarding
investment decisions, and consequential delay, which will seriously
jeopardise compliance with statutory targets and objectives.
3. The consequences to date are that an
industry that successfully managed hazardous wastes for more than
20 years has been emasculated, landfill sites are being closed
or void sterilised by the Agency without sound scientific justification,
significant costs are being incurred with no resultant environmental
benefit, and the likelihood of local authorities achieving biodegradable
municipal waste diversion targets for 2010 and 2013 must be considered
extremely remote.
4. We consider that these consequences are
due primarily to:
(i) a failure of Government to insist that
the EU made all requirements of the Directive explicit before
the timetable for implementation was set;
(ii) a failure of Government, Defra and the
Agency to undertake adequate regulatory impact assessments in
accordance with the requirements of the Better Regulation Task
Force, in order to fully understand and cost the consequences
of the Directive and their decisions;
(iii) a failure to provide guidance to the
Environment Agency on the interpretation of the Regulations (the
first guidance was published approximately two weeks ago and over
four years after regulations came into effect—See Note 1);
(iv) allowing the Agency to widely interpret
(in the absence of any direction), "gold-plate" requirements
(without consideration of cost) and repeatedly alter its interpretation
greatly increasing costs, delays, uncertainty and disputes over
requirements;
(v) a failure to adequately resource Defra
and the Agency with experienced and competent staff capable of
appreciating the impacts of the Directive, which were all too
often ignored, and addressing the technical requirements which
has led to significant delays in the required permitting of existing
and new waste management facilities;
(vi) a failure of Government to heed the
widely voiced concerns and warnings of the waste management industry
and of the Hazardous Waste Forum established in response to Waste
Strategy 2000; and
(vii) a failure to provide adequate information
and guidance to waste producers and to ensure that they were aware
of their new responsibilities and obligations.
HAZARDOUS WASTE
5. The Directive was agreed by UK Government
without fundamental technical annexes being finalised, namely
Waste Acceptance Criteria (WAC). The Directive prescribed immovable
dates for the implementation of the co-disposal ban and the subsequent
introduction of WAC. Delays in the finalisation of the WAC by
Technical Adaptation Committees at European level seriously eroded
the remaining time available to design and build the necessary
infrastructure to produce treated wastes to the required specification.
The WAC for monolithic wastes has still not been finalised and
will probably not be available until just before the date of implementation,
allowing no time for the design, approval, construction and commissioning
of plant, even if a market assessment were possible.
6. Delay in setting WAC has resulted in
implementation 12 months after the co-disposal ban. This has led
to an interim year post the ban but before implementation of WAC
during which highly polluting hazardous wastes are landfilled
together. There was no technical or environmental justification
for this decision, which constituted a fundamentally retrograde
step in environmental protection opposed by the majority of waste
management contractors but promoted and supported by Government
(See Note 2).
7. On 16 July 2004, a ban on the co-disposal
of hazardous and non-hazardous waste was implemented. Of fundamental
importance to this ban is clarity on the definition of hazardous
waste in order to ensure offences are not committed. Currently,
England and Wales operate in accordance with the Special Waste
Regulations 1996. Special Wastes must be transported with Section
62 consignment notes. These Regulations are clear and understood.
However, not all Special Wastes are hazardous, and some non hazardous
waste can be Special (see EA guidance WM2). Consequently, a non-hazardous
site can accept s62 wastes post the ban on co-disposal. These
anomalies should have been addressed prior to the ban by new regulations
(and guidance), which have just been issued for consultation.
The consequence is that wastes are likely to be being incorrectly
classified.
8. There is considerable confusion as to
the correct classification of a waste as Ecotoxic (Hazard Code
H14). No guidance is available on how this requirement is to be
addressed despite the fact that many wastes may be "ecotoxic".
9. The European Waste Catalogue (EWC) was
implemented on 31 August 2002 and includes the Hazardous Waste
List; it therefore defines those wastes classified as hazardous
and correct application is therefore fundamental to legal compliance.
Despite a commitment to provide timely guidance, a pre- consultation
draft was published by the Agency in September 2004, more than
two years after implementation.
10. Chapter 20 of the EWC contains a list
of wastes considered to be hazardous if "separately collected".
There is much confusion as to when an item is considered to be
separately collected, and when a load is considered to be part
of a "mixed load", specifically with respect to fluorescent
tubes, and TV screens and computer monitors (EWC codes 20 01 21*
and 20 01 35* respectively—see Note 3).
11. It is unclear whether a hazardous waste
may be treated in a stabilisation treatment process to produce
a solid, non-leaching material that may be classified as non-hazardous
because there is no appropriate code in the EWC. This is despite
the fact that the treated waste may exhibit no hazardous characteristics
(See Note 4).
12. Concurrent with the ban on co-disposal
was the introduction of a requirement for hazardous wastes to
be pre-treated. No guidance has been provided on pre-treatment,
or what paperwork would provide a compliance audit trail. The
Agency produced draft pre-treatment guidance approximately three
years ago but then withdrew it. Guidance on pre-treatment is fundamental
to the development of necessary treatment facilities (see Note
5).
13. The Agency has provided guidance in
relation to the landfilling of asbestos wastes in stable non-reactive
hazardous waste cells in non-hazardous landfill sites. The requirements
have been imposed without consideration of health and safety impacts
(the primary risk associated with asbestos) and have then failed
to apply the requirements in a uniform manner (see Note 6).
LANDFILL MORE
GENERALLY
14. There has been a serious lack of adequate
guidance from Government to the Agency and industry, when implementing
many of the requirements of the Landfill Directive through the
Pollution Prevention and Control (PPC) regime. The Agency as lead
regulator has formulated a number of regulatory guidance notes
based on internal legal advice that it has consistently failed
to publish. All too often limited consultation exercises were
held and these were rarely in accordance with the Cabinet Office
Code of Practice on Consultations. Industry has little or no confidence
in Agency consultations, which normally ignore responses from
the waste management industry.
15. Very many legal issues in Agency guidance
remain in dispute including:
— The definition of a site boundary
including the refusal of the Agency to accept three-dimensional
boundaries.
— Reintroduction of certain best available
technology (BAT) conditions in PPC Permits despite the Landfill
Regulations excluding these requirements.
— The application of BAT to directly
associated activities contrary to the Regulations.
— The use of inert soils for post closure
restoration and landform creation allowed by the Regulations but
not the Agency.
— What constitutes the pre-treatment
of wastes.
— The retrospective application of
the Groundwater Directive to completed areas of landfill and the
consequential refusal of PPC Permits.
— Retrospective application of Financial
Provision to previously completed areas of landfill contrary to
a previous undertaking.
16. It is clear from the delays in progressing
transitional PPC applications for landfill sites that the Agency
is suffering a severe lack of suitable resource to facilitate
transition into the new regime. Resource was simply moved internally
within the organisation into the SPG's leaving serious shortfalls
in some areas (and causing consequential delays in progressing
applications for new facilities) despite the fact that many individuals
were technically ill-equipped and insufficiently experienced for
the permitting task. Coupled with constantly changing Agency guidance
the delays that are now occurring were inevitable. The consequence
is increased cost for industry with no discernable environmental
benefit (see Note 7).
17. The Agency has recently sought to introduce
new requirements relating to financial provisions (a consultation
document has just been issued), in part justified by the Landfill
Regulations, which it expects to implement from 1 January 2005.
The Agency is proposing financial provision be made for all waste
in the Permit area (contrary to a previous undertaking), an extension
to the minimum term to 60 years, with no technical justification,
and estimate that future provisions should be in cash. They estimate
a cost of £2 billion for the existing landfill portfolio
in England and Wales. The whole approach is fundamentally flawed
and would tie up essential finance at a time when investment in
new infrastructure required to deliver the Landfill Directive
obligations is critical. Despite this industry will have to rigorously
challenge their planned approach.
18. Article 12 of the Landfill Directive
specifies the control and monitoring requirements required at
landfills during their operational phase, including the monitoring
of gas flares. Monitoring required by the Agency takes no account
of the Health and Safety of either the personnel undertaking the
monitoring or the general public at large. Annex I 4.2 of the
Landfill Directive requires that landfill gas produced on sites
receiving biodegradable waste must be treated and used where possible,
however the Agency have imposed requirements that are reducing
the generation of renewable energy.
19. Article 14 of the Landfill Directive
requires that Member states take measures in order to close any
existing landfill operation as soon as possible or within eight
years after the relevant date in article 18(1). The Agency has
given no regard to the need to practically complete landfill sites
but has rigidly worked to a timetable that ignored this key aspect.
Despite compliance with the end date in the Directive being possible,
the Agency seeks premature closure of sites and ignores the consequences
of an incomplete or inappropriate final landform and the potential
environmental consequences.
20. Landfill operators were put to a great
deal of expense in submitting site conditioning plans, which it
is accepted is a requirement of Article 14(a). It would appear
that this information was only used to set the tranche dates for
PPC applications and not utilised any further. Only very crude
and basic information was utilised from these documents to set
the tranche dates—for example whether a site accepts special
wastes. SEPA adopted a more pragmatic approach requiring less
in the way of conditioning plans. Article 14(c) gave the relevant
authority the power, where a site conditioning plan had been accepted
and approved, to lay down a transitional period for the completion
of the plan to meet the requirements of the Landfill Directive,
within eight years of the relevant date. It was disappointing
that the deadlines set by the relevant authority (the Agency)
were as tight as they were, especially given the subsequent failure
on the part of the Agency to process the resultant applications
within the timetable devised by themselves.
21. The Agency were informed through the
submission of detail in the site conditioning plans how each site
was to be filled and the life expectancy of the site. There was
a legitimate expectation on the part of landfill operators that
for sites closing at some point near to, but prior to 2007, the
Agency would allow the completion of the site without requiring
a full PPC permit application. This clear benefit to both operator
and regulator was ignored resulting in unnecessary costs being
incurred (see Note 8).
22. An issue arising from the EWC is the
definition of "municipal waste". It is clear that the
traditional definition of domestic waste differs considerably
from that contained within the EWC classification of Municipal
Waste; specifically 20 03 01 mixed municipal waste. The EWC definition
includes Municipal waste (household waste and similar commercial,
industrial and institutional wastes) including separately collected
fractions. The consequences for the inclusion of other wastes
in the definition of municipal wastes (including biodegradable
municipal waste (BMW)) have potentially significant implications
for compliance with the BMW landfill diversion targets.
23. The ability of Local Authorities to
achieve their statutory targets, which have still not been finally
specified by Government, particularly the targets for 2010 and
2013 must be highly doubtful. Whilst some progress will be made
through the adoption of kerbside collection schemes and other
householder recycling initiatives step change will only result
from the development of waste treatment infrastructure. Contracts
are typically taking 12 months to issue and two years to negotiate.
With favourable planning and permitting, and consequential construction
and commissioning, can take a further three to four years. Accordingly,
for a local authority commencing today, even under favourable
conditions treatment infrastructure will not be available until
approximately 2011.
24. With a very significant number of contracts
still to be let, there are genuine concerns about the waste management
industry's capacity to respond. Contracts are resource intensive
to negotiate and whilst there has been some simplification and
streamlining adopted through the PPP process, there is considerable
scope for increased standardisation of contracts. Notwithstanding
this, the capacity of the industry to resource the considerable
amounts of infrastructure required is a key risk to achievement
of the targets.
25. There are key issues regarding markets
for recyclables, which even with the work of WRAP will not be
developed quickly, and therefore capacity could become a serous
issue as tonnages diverted from household waste increase. Markets
remain very volatile, particularly for some materials.
26. There are issues concerning the management
of waste floc from MBT plants, which is set to grow significantly
over the next five years. Conditions which encourage the development
of small scale CHP plants with simplified grid connection arrangements
could address this issue, whilst making a further contribution
to Government targets for renewable energy generation.
27. Direct experience with source separation
of kitchen waste confirms that the majority of households find
the approach problematic at best and participation rates remain
very poor and insufficient to make a significant impact on BMW
diversion rates. MBT may therefore provide the only viable solution
but there are concerns about compost standards and the possible
implications of a Biowaste Directive on MBT schemes that have
been implemented ahead of any new requirements.
28. The absence of guidance on the methods
to be adopted to measure BMW reduction in partially treated waste
remains a problem. The Agency is about to issue a consultation
document but the delay could seriously disadvantage those local
authorities that have been pro-active with the adoption of landfill
diversion schemes.
29. The situation with BMW diversion from
landfill in Wales is similar to that in England. In Scotland it
is generally accepted that significant progress will be made by
local authorise divesting themselves of trade waste collections
thereby reducing the tonnage of "collected" household
waste. The situation in Northern Ireland is far more serious and
whilst in recent months there has been some indication of progress
with kerbside recycling schemes and composting, delays with the
planning process as administered by Planning Services and the
inexperience of the Environment and Heritage Service, together
with the absence of any formal co-ordination between local authorities
to create scale will seriously jeapordise the ability of the UK
to achieve the BMW diversion targets, particularly for 2010 and
2013.
Note 1: There has been a recent consultation on "Government
Interpretation of the Landfill (England and Wales) Regulations
2002 (as amended)". It is clear from the content and by admission
that this document is based largely on the Agency's interpretation
of the Regulations and not Defra's. We consider this to be wholly
unacceptable. The document contains issues that were subject to
previous extended discussions between the Agency and waste management
industry, with many concerns being raised but which have been
continued without comment in this consultation exercise. It is
clear that the Agency has given no regard to the previous discussions
with industry. Of note, this document is the only guidance so
far issued by Defra to assist with the implementation of the Landfill
Directive and has been issued (for consultation) four years after
the Landfill Directive came into force. We note that there has
also been no landfill specific PPC guidance notes issued to date.
Note 2: There is no definition or criteria to define
stability within the WAC. Other than in the case of asbestos,
it is unclear exactly what wastes are suitable to be disposed
of in stable non-reactive hazardous cells within non-hazardous
landfill sites. WAC for monolithic wastes is still awaited. Uncertainty
in this area is hindering the development of hazardous waste treatment
facilities. Industry has repeatedly requested clarity from Defra
on this matter and time to respond. Article I of the Landfill
Directive requires that waste is managed to reduce the negative
effects on the environment, in particular surface water, groundwater,
soil and air as well as reducing the risk to human health. It
is clear that the interim arrangements for the 12 months following
the ban on co-disposal post July 2004 and prior to the introduction
of WAC in July 2005 is incompatible with this requirement. The
operating practices allowed by this interim regime are a retrograde
step. They were not permitted under the previous WML regime and
will not be allowed post July 2005. It is clear therefore, that
these practices do not represent the best environmental option.
Note 3: Because of the confusion regarding separately
collected fractions, producers, carriers and disposal outlets
are uncertain as to whether they are compliant with the requirements
if, for example, one fluorescent tube is placed in a general waste
bin. Without clarity as to the Agency's interpretation, waste
producers are unclear about their legal obligations and it is
very difficult for contractors to provide guidance to customers
on their legal responsibilities or to confirm compliance or otherwise
when receiving wastes at landfills.
Note 4: If it can be demonstrated through appropriate
analytical testing that a treated hazardous waste does not display
any of the 14 hazards, then it seems self evident that the waste
should be classified as non-hazardous. However, the requisite
(non-hazardous) code from EWC chapter 19, sub chapter 03 is not
present ie there is no mirror entry. This has resulted in concerns
about the Agency's interpretation and policy on this point ie
should the Agency insist upon a hazardous EWC code being applied,
regardless of the behaviour and nature of the resultant treated
waste, and when other codes could be used. Clarity on this point
is also fundamental to decision making regarding the design and
location of hazardous waste treatment facilities. It would also
seem self evident that when hazardous wastes have been treated
to produce a benign product there is no benefit in continuing
to refer to the waste as "hazardous". This terminology
causes considerable public perception problems (SEPA have continued
to use the term "Special") particularly post July 2005
when all hazardous waste disposed of to landfill will have to
be treated to meet the stringent requirements of the Waste Acceptance
Criteria and will effectively be free of significant hazard and
in many cases will be benign. An example is a waste that contains
lead. Even if the waste is vitrified and the lead is locked up
and unavailable to the environment it would still be defined as
hazardous.
Note 5: The requirement to pre-treat wastes also
applies to the majority of non-hazardous wastes. Whilst compaction
constitutes treatment in the Regulations (and the Directive) the
Agency have sought to prevent compaction being employed as a treatment
technique and to impose more onerous requirements. Waste management
companies will not provide facilities meeting these more onerous
and therefore more costly requirements whilst low cost "compaction"
may be allowed by the Agency in the future. The date for the implementation
of the pre-treatment requirements at non-hazardous sites has still
not been confirmed, which further puts at risk the development
of the requisite infrastructure.
Note 6: Certain hazardous wastes that meet the definition
of stable and non-reactive (SNRH waste) may be landfilled in separate
cells in a non-hazardous landfill site. Such waste streams include
asbestos. The Agency has provided a Regulatory Guidance Note RGN
11. This provides advice on the design, build, construction and
operation of such cells. Their guidance has been written in the
absence of any advice from Defra. There has been no adequate consultation
with landfill operators and the Agency has failed to acknowledge
legitimate industry concerns, including health and safety issues.
It was also the Agency's intention that RGN 11 would be applied
consistently across the England and Wales. However, the Agency
has failed to demonstrate any consistency; some SNRH cells have
been built and operated under Operational Working Plan modifications
under the Waste Management Licensing regime, others have required
a Waste Management Licence modification along with the associated
application fees and delays, whilst others have required very
detailed submissions as part of the PPC re-permitting process.
There is not even consistency between the 4 Agency SPGs. This
has resulted in delays, loss of business, not to mention the lack
of provision of safe landfill capacity for asbestos wastes.
Note 7: The timetable for implementation of the transitional
arrangements for landfill sites was determined solely by the Agency.
Deadlines were bought forward and streamlining and time saving
opportunities were ignored. The Landfill Directive requires that
the last date for implementation is 16 July 2007 hence sites close
to closure (before July 2007) could have been excluded from the
process but were not. The Agency devised overcomplicated application
forms, a highly complex system of risk assessments as well as
setting immovable, inflexible tranche dates (dates by which applications
were to be submitted), and then imposed guidance which was then
regularly subject to change. The PPC Regulations assume four months
for determination of PPC applications but the Agency has consistently
failed to achieve considerably longer than this period with consequential
impacts on resources. The impact on industry is increased costs.
The Agency annual report and accounts 2003-04 admits that the
target for processing and issuing PPC permits has not been achieved.
The target was 174 permits but the report states that only 25
permits were issued. They attribute these poor figures mainly
to delays in setting up the SPGs that issue permits. This is clearly
unacceptable for the reasons set out above. At the current rate
of progress it will take until 2030 to process the 800 PPC transitional
applications.
Note 8: A site operated by Biffa had approximately
two years remaining life but as a result of the Tranche date imposed
by the Agency a PPC application was required to be made approximately
eight months prior to closure. Despite representations being made
to the Agency to shift the Tranche date, in order to protect the
operation, a Permit application had to be made at an approximate
cost of £100,000, and was withdrawn when the site closed
eight months later.
David Savory
Director—Environment & Technical
8 October 2004
| 
