
The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
In December 2014 the Environment Agency (the “EA”) published a Briefing Note entitled “Separate Collection of Recyclables” which details the approach it intends to take to compliance with producers’ and collectors’ obligations under the Waste (England and Wales) (Amendment) Regulation 2012 (the “Regulations”). The guidance confirms that the EA expects a high standard from collectors in respect of their new obligations and will adopt a “risk-based regime” towards compliance.
While this is not statutory guidance, but information to “help those affected to meet the requirements”, this is the first substantial guidance that has been produced in respect of the fundamental shift in the processing of recyclable material following the UK’s implementation of EU Law from 1 January 2015.
The Regulations
From 1 January 2015, Waste Collection Authorities or other undertakings which collect waste paper, metal, plastic or glass must do so by way of separate collection. These requirements apply where separate collection is:
EA Guidance – What collectors must do!
Within the guidance, the EA states that:
EA Guidance – “risk-based regime”
The EA is following 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 EA 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 |
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, the collection industry has known for several years that the legislation was due to come into effect this January and, as a result, the EA expects to see “improvement measures” being undertaken to contracts that should have taken into account the requirements of the Regulations.
Where, in the EA’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 EA’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.
Collectors should expect to be contacted by the EA (and many will have been contacted between January and March) 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 EA.
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 EA’s Briefing Note can be found here.
Please contact Cynyr Rhys or Gayle Monk.
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