Winchester Vacancies

SPOTLIGHT

A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Waste aware

The Waste Framework Directive requires the UK to implement waste prevention programmes and sets demanding recycling targets. Local authorities may have to re-assess their priorities, says Rhiannon Holtham.

The Waste Framework Directive 2006/12/EC (“WDF”) came into force on 12 December 2008 and member states are required to transpose the new WDF into domestic law by 12 December 2010.

The Official Journal, which published the legislation, stated that WDF: “...establishes the legislative framework for the handling of waste in the Community. It defines key concepts such as waste recovery and disposal and puts in place the essential requirements for the management of waste, notably an obligation for an establishment or undertaking carrying out waste management operations to have a permit or to be registered and an obligation for the Member States to draw up waste management plans. It also establishes major principles such as an obligation to handle waste in a way that does not have a negative impact on the environment or human health, an encouragement to apply the waste hierarchy and, in accordance with the polluter-pays principle, a requirement that the costs of disposing of waste must be borne by the holder of waste by previous holders or by the producers of the product from which the waste came.”

Certainly it encourages re-use and recycling of waste and seeks to reduce the use of landfill as well as the production of potent greenhouse gases arising from such landfill sites. Thankfully the WRD simplifies legislation currently in place by repealing the pre-existing directives.

Waste Hierarchy and Prevention Programme

The UK will be required to design and implement waste prevention programmes. Such programmes will need to account for the five-step hierarchy:

• Waste prevention (preferred option);

• Re-use;

• Recycling;

• Recovery (including energy recovery); and

• Safe disposal, as a last resort.

The waste hierarchy prioritises the best overall environmental option that should be incorporated into waste policies. Departure from the hierarchy will be allowed for specific waste streams if justified on technical, economic and environmental grounds. The UK is likely to be adept at doing this due to the work undertaken on the Waste Protocol Projects.

The government needs to provide urgent guidance to UK businesses about the priority sectors and waste streams that will be considered first.

Targets

By 2020, Member States must recycle 50% of their household and similar waste and 70% of their construction and demolition waste. These targets have been set by weight. In order to achieve this, the WFD requires Member States to put mechanisms in place by 12 December 2015 with at least separate collections for paper, glass, metal and plastic.

It will be interesting to see how organisations respond to targets being by weight. Will this lead to local authorities concentrating on recycling heavier items and moving away from the lighter and potentially more valuable items, such as aluminium, to meet their targets? Furthermore, what affect will the targets have on commercial and industrial waste? Will smaller businesses find it increasingly difficult to dispose of waste?

Separate collections and weight-based targets are likely to make it easier for local authorities and private sector service providers to measure acceptable levels of contamination in loads delivered to waste management facilities. This can prove difficult in co-mingled collections given the differences in the weight of the various waste streams.

Waste or not Waste?

Waste will cease to be waste when it has undergone a recovery operation (including recycling) and complies with specific criteria to be developed to satisfy the following conditions:  the substance or object is commonly used for specific purposes; a market or demand exists for such a substance or object; the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; the use of the substance or object will not lead to overall adverse environmental or human health impacts.

The WFD will provide eagerly awaited clarity to industry on when waste ceases to be waste.  However, even if the by-product is not waste, the owner/holder must be clear which alternative legislative regime applies to the relevant materials.

By-Products

A new definition of by-products is included, which provides that a substance or object, resulting from a production process, will be regarded as a by-product, and not a waste, only if a further use of the substance or object is certain; the substance or object can be used directly without any further processing other than normal industrial practice; the substance or object is produced as an integral part of a production process; or further use is lawful, as the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts.


And there's more...

The WFD also:

• enables energy efficient incinerators to be classed as a recovery operation not a disposal operation;

• requires measures to encourage the separate collection of bio-waste with a view to its composting and digestion;

• extends producer responsibility to support the design and production of all goods to take into account efficient use of resources. This is during their whole life cycle, including repair, re-use, recycling and disposal;

• provides new controls for registration of establishments or undertakings that collect or transport waste on a professional basis, which is the Duty of Care regime. Businesses that normally or regularly carry waste have to be registered.


Consultations and Conclusion

The Welsh Assembly Government is responsible for transposing the new WFD in Wales.  Defra is responsible for the new WFD in England. Defra and The Welsh Assembly government are in the process of consulting on the new WFD.

The first stage of a two-stage consultation on the WFD concluded on 9 October 2009. The list of consultees included all local authorities in Wales. The responses to this consultation have yet to be published.  It is likely that the second consultation will take place in early 2010.  No date is given on the websites for when the second stage of the consultation will take place.  However, it is likely that the consultation will be launched in spring 2010 at the earliest.


Rhiannon Holtham is an associate at Clarkslegal.