Supplementary memorandum submitted by
the Environment Agency (X22a)
SUPPLEMENTARY QUESTIONS
ARISING FROM
THE ENVIRONMENT
AGENCY'S
WRITTEN EVIDENCE
1. Para 3.1.2 states that the decision to
adopt the Technical Adaptation Committee's recommendation on the
Waste Acceptance Criteria was only taken in December 2002—some
18 months later than expected. What were the reasons for the delay?
The Directive came into force in July 1999 requiring
its Technical Adaptation Committee (TAC) to agree Waste Acceptance
Criteria by July 2001, the date for Directive implementation.
The Commission did not establish the TAC Landfill
sub-committee until February 2000. The sub-committee were unwilling
to adopt existing German and Austrian limit values as most Member
States wanted to set limit values related to environmental protection
measures. A modelling group was therefore set up in May 2000 to
develop these values and did a great deal of work in a short time-scale.
However it took over a year to agree the methodology and the limit
values for inert waste landfills. Sampling and testing standards
under development by the Comité Européen de Normalisation
(CEN) were not due to be ready for consultation until July 2002
and the European Commission agreed in April 2001 that the timetable
would slip accordingly.
Further delays occurred when the draft decision
document presented at the July 2002 TAC meeting did not accord
with the document agreed by the landfill sub committee. It included
a new risk assessment provision and a much earlier implementation
date than that requested by Member States and as a result it was
not agreed. The decision was finally approved in Council on 19
December 2002.
2. Para 3.1.3 states that "it is not
clear whether the LFD constitutes "BAT" (best available
technique) for landfill. This has resulted in uncertainty over
the regulatory approach to be adopted". Why isn't it clear
whether the LFD constitutes BAT?
BAT is a requirement of the IPPC Directive.
The concept of what is "best" and "available"
is intended to change over time as knowledge and technology improves.
Procedures exist through BAT reference documents (BREFS) and other
means to define what constitutes BAT for any given process at
any time. Landfills were only included in the IPPC Directive at
a relatively late stage and the linkage to the already existing
Landfill Directive (LFD) was not properly or fully described.
As a consequence the LFD contains a number of
prescriptive standards, such as those in relation to landfill
lining, which seems to run contrary to the principle of BAT. In
other respects, such as for landfill gas plant, the LFD is silent
and it is therefore assumed that BAT applies.
3. Para 3.3.1 states: "Despite the construction
of liners and barriers absolute prevention [of list I substances
into groundwater] is very difficult if not technically impossible
to achieve in practice". Can you explain the technical reason
why this is so difficult to achieve?
In English law prevent means to stop—which
strictly means even infinitesimal amounts of List I substances
should not enter groundwater. All liners/barriers have a finite,
albeit normally very low, permeability and over time will allow
the migration of a small quantity of landfill leachate, given
the large surface area of the base and sides of a landfill. If
designed and constructed to the high standards expected of a modern
landfill, this leakage will be very small and environmentally
trivial. Nevertheless the Groundwater Directive's requirement
for absolute prevention will not have been met, even if it complies
with the spirit of the Directive in the sense that there is no
environmental impact.
We understand there may be slightly different
translations and therefore meanings of the "prevent"
clause in the Groundwater Directive across Europe. In practice
it is often interpreted as using best endeavours or aiming to
prevent, recognising that absolute prevention is unachievable.
To meet this problem in the Agency's guidance on landfill risk
assessment we require that there should be no discernible discharge
of List I substances from the landfill.
Under the Water Framework Directive (WFD) the
existing Groundwater Directive will be repealed in 2013. However,
an equivalent level of protection for groundwater is required
under the WFD. The details of this are likely to be included within
the proposed Groundwater Daughter Directive (GDD), which is currently
progressing through the European Council and Parliament. It is
notable that in the WFD a more purposive approach is taken and
we hope that this will also be reflected in the proposed GWDD.
Our position is that Member States should only be asked to use
their best endeavours and not be asked to undertake measures that
are technically not feasible or necessary for environmental protection.
4. Para 3.4.2 notes that "Landfill permitting
has not proceeded as quickly as we would like". What are
the reasons for this?
Permitting requires an assessment of the impacts
of the landfill on the environment and public health. Applicants
have to demonstrate that the site will satisfy the requirements
of the Landfill, Groundwater, IPPC, Waste Framework and Habitats
Directives. This is a challenging exercise for industry and the
regulator, particularly where information, such as that required
to undertake a hydrogeological risk assessment, is not readily
available. Poor quality applications have contributed to delays,
as we have to require further information, often repeatedly. Some
applications have also been delayed whilst planning issues are
resolved (the legislation prevents us from issuing a permit for
a waste site unless planning permission is in place).
We meet regularly with the main trade body (the
Environmental Services Association) as well as individual operators
to resolve generic issues and have held workshops with the industry
to help improve the quality of applications. We continue to review
the permitting process to identify efficiencies that we can make,
such as the need for discussions on financial provision to commence
much earlier in the permitting process. We are currently looking
to simplify the process for inert landfill applications to ensure
that we can continue to focus resource on those sites that pose
the highest risk.
5. Para 4.1.1 notes that the requirement
that the gate price charged by landfill operators must reflect
the full cost of operating the landfill, including long-term aftercare,
"could have been imposed by Government at an earlier stage".
Does the Agency have a view on why this did not happen earlier?
It may have been considered that this requirement
was aimed at those countries where the State is responsible for
running waste disposal facilities.
In England and Wales, local authorities were
required to contract out waste collection and disposal services
during the 1990s. It may have been assumed that under a situation
were market forces prevailed, no further action was required to
ensure that the true costs of disposal are reflected in landfill
gate prices. Despite this landfill prices remained low with the
only substantial upward pressure coming from the landfill tax.
The Environment Agency has advocated a price increase in order
to drive waste minimisation and reduce society's reliance on landfill.
We resisted previous suggestions that we should be given a role
in monitoring gate prices as we do not have the necessary expertise
and considered it could undermine our role as environmental regulator.
Government has been reluctant to intervene in the market place
itself or to identify an economic regulator to monitor and potentially
influence gate prices. We do think it would be have been prudent
to consider other measures needed to reduce reliance on landfill
in advance of the co-disposal ban taking effect and that active
application of Article 10 should have been explored more fully.
6. Para 4.1.3 states that "producers
will need support from Envirowise, the Agency and others to help
them to take advantage of waste minimisation opportunities".
Why will they need this support; and can you give examples of
the kind of support available?
Whilst many larger businesses have taken steps
to reduce and even eliminate hazardous materials and wastes, the
majority of hazardous waste producers will be small and medium
sized enterprises (SME's) from a range of often fragmented business
sectors. Surveys show that SME's are generally less aware of their
environmental obligations and the business opportunities of good
product design, waste minimisation and waste recovery and have
little capacity to take advantage of good practice. The Environment
Agency recognises the difficulties for small businesses and has
developed sector specific web-based guidance (NETREGS) that explains
regulatory requirements simply.
Envirowise is an established Government programme
that provides support to businesses through a national helpline,
publications, tools and on site assistance. The Environment Agency
is working with Envirowise to develop new tools for hazardous
waste producers including the HAZNET web tool of good practice
materials. In addition local business support organisations, such
as Groundwork, provide advice to businesses and waste minimisation
clubs provide a forum for training and support.
7. Para 4.1.4 refers to the issue of fragmentiser
residue. Can you give more detail about this episode, the problems
that arose and the lessons to be drawn?
The Environment Agency meets regularly with
the metal recycling industry to discuss emerging issues and provide
support on regulatory and policy issues, particularly those associated
with the End of Life Vehicles (ELV) Directive. That Directive
has required, since November 2003, vehicles to be "depolluted"
which involves removing the hazardous components.
In the lead up to the co-disposal ban the shredder
industry raised concerns about the suitability of the analytical
method most commonly used by industry for determining the mineral
oil content of fragmentiser waste. They had been unable to persuade
landfill operators that fragmentiser residues were non-hazardous
and were unwilling to pay the much higher costs of landfilling
hazardous waste. This was presented to the Environment Agency
as a problem for us to resolve on the 12 July, with the threat
of all the shredder operators shutting their doors to ELV's on
16 July. This would have had the effect of increasing vehicle
abandonment.
Elliot Morley called an urgent meeting on 19
July with all parties to clarify the underlying issues and agree
a way forward. The Environment Agency met with the key stakeholders
on 20 July and was able to agree and issue a statement on 21 July.
This statement gave comfort to the waste management industry that,
provided ELV's had been depolluted and this could be evidenced
through the waste transfer note, the residue would be treated
as non hazardous. The Environment Agency also offered to let a
contract to develop a form of sampling and testing that would
verify the hazardousness, or otherwise, of fragmentiser residue.
It took a number of months for industry to agree the methodology
for this work and the findings will be delivered shortly. The
original statement has therefore been reviewed and reissued whilst
the Environment Agency continues to work with the shredder and
waste management industry to ensure a long term solution is developed
and subsequently signed up to by all parties.
The episode highlighted the need for waste producers
and waste management service providers to engage at an early stage
to understand the impacts of legislative change and work together
to develop solutions. We consider trade bodies have an important
role in this respect. We have organised a seminar on the Waste
Acceptance Criteria, jointly with Government, to bring various
trade bodies together and ensure such debate happens well in advance
of the July 2005 requirements, and avoid a repetition of the fragmentiser
issue.
8. Para 5.5 states that there needs to be
a commitment to the implementation of Defra's waste data strategy.
Are you confident that there is such a commitment?
We believe that there is a clear commitment
to the data strategy. This will need to be reflected through the
provision of additional resource for the Environment Agency to
allow it to develop the necessary IT systems to implement its
role effectively.
We are required to provide information on wastes
and their management to the Commission under the Waste Statistics
Regulation. We do this by carrying out national surveys of a sample
of industry and commerce. Although the sample is several thousand
and the work costs several million pounds, we can only reach a
small proportion of the 1.5 million businesses that exist and
the figures are necessarily estimates.
It also takes a great deal of time to collate
the data and to clean and complete it to a stage where we can
use it to produce the estimates. This means that information tends
to be published later than we would like.
We agree with the phased approach in the Data
Strategy and we support the use of regulatory mechanisms wherever
possible. To give effect to the waste data strategy will mean
we have to develop new software systems to record data returns
from licensed and exempt sites. We consider this to be a better
use of the money that Government would otherwise have to provide
to carry out surveys and should be cheaper than traditional surveys.
30 November 2004
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