This is the first substantial guidance that has been produced in respect of this fundamental shift in how the United Kingdom is to process recyclables in accordance with EU Law as of 1 January 2015. However, the Environment Agency stresses that this should not be construed as statutory guidance but information to “help those affected to meet the requirements”.
The Regulations
From 1 January 2015, an establishment or undertaking which collects waste paper, metal, plastic or glass must do so by way of separate collection. These requirements apply where separate collection is:
Environment Agency Guidance – What collectors must do!
Within the guidance, the Environment Agency states that:
Environment Agency Guidance – “risk-based regime”
The Environment Agency have announced a “risk-based regime” which is aimed to help collectors achieve compliance but that will at the same time be robust with those who “deliberately ignore their obligations”. The intention is to work with collectors by holding practical conversations or issuing “advisory letters” in the first instance if breaches are found.
Compliance will be reviewed by monitoring sources of information, such as WasteDataFlow and the WRAP website, which will act as indicators of whether a collector is complying with the regulations. The guidance includes an Indicators of Compliance Table (“IoC Table”) to assess whether further scrutiny by the Environment Agency is required. The IoC Table is as follows:
Level of Compliance
Indicator
Level of Intervention
High
Low
Medium(Possibly failing the Necessity or TEEP test)
Medium
Low/non-compliant
High
As suggested in the name, the IoC Table is not an exhaustive list of applicable indicators and collectors should tread carefully when assessing their compliance. To date many collectors have sought to argue that compliance with the new Regulations immediately from 1 January 2015 is impracticable because collection contracts are often for a number of years and the collection infrastructure can have a long lifespan. However, whilst acknowledging that they will act “reasonably in considering such matters”, the collection industry has known for several years that the legislation was due to come into effect this January and, as a result, the Environment Agency expects to see “improvement measures” being undertaken to contracts that should have taken into account the requirements of the Regulations.
Where, in the Environment Agency’s opinion, the indicators above suggest non-compliance, the below “intervention measures” will be engaged, in order, taking into consideration the “suspected” level of compliance and the intent of the operator concerned.
Intervention Measures
Stage 1
Advisory phone call or letter – to seek to explore and understand the collection activity, and whether improvements can or should be made.
Stage 2
Meeting with operator/collector for discussion
Stage 3
Site inspection
Stage 4
Site audit
Stage 5
Enforcement notice
Stage 6
Warning letter
Stage 7
Formal caution
Stage 8
Prosecution
Each stage is aimed at ensuring and encouraging compliance with the Regulations and a number of discussions will no doubt be had at each stage to seek compliance.
Conclusion
The guidance clearly establishes the Environmental Agency’s position in respect of the Regulations. It expects collectors to comply with the duty to separately collect waste unless compliance isn’t required due to the Necessity and/or TEEP tests.
During the course of January-March 2015, collectors should expect to be contacted by the Environment Agency requesting the disclosure of information on collection methods and, where appropriate, seeking evidence on the application of the Necessity and TEEP tests. Contractors and collectors should therefore be already reviewing their practices, and documentation, in anticipation of contact from the Environment Agency.
Should you wish to discuss the new guidance, or your organisation’s compliance with the Regulations, please contact Mrs Gayle Monk or Mr Cynyr Rhys for an informal discussion. Both Gayle and Cynyr were involved in the Judicial Review which led to the amended Regulations being published.
A full copy of the Environment Agency’s Briefing Note can be found by clicking here.
Please contact:
Cynyr Rhys on 0121 214 3619 | cynyr.rhys@anthonycollins.com; or
Gayle Monk on 0121 214 3630 | gayle.monk@anthonycollins.com
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