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:

  1. necessary to ensure that waste undergoes recovery operations in accordance with Articles 4 and 13 of the Waste Framework Directive, and to facility or improve recovery (the “Necessity” test); and
  2. technically, environmental and economically practicable (the “TEEP” test).

EA Guidance – What collectors must do!

Within the guidance, the EA states that:

  • collectors (Waste Collection Authorities or establishments or undertakings collecting waste) must, when making arrangements for the collection of waste paper, metal, plastic or glass, ensure that those arrangements are by way of separate collection if the Necessity and TEEP tests are met;
  • collectors who currently do not have separate collection arrangements should review their practices and consider if and how they comply ensuring that the Necessity and TEEP test are “rigorously” applied;
  • collectors who conclude that it is not necessary or not TEEP to operate separate collection arrangements should keep, and be able to provide for inspection, an audit trail which will assist the EA to understand the basis of that decision-making process;
  • the EA specifically advises collectors to consult their lawyers to ensure that they are compliant with the new Regulations;
  • collectors are expected to ensure in all cases that their customers can avoid putting paper, plastic, metal or glass in the same collection containers as general waste and, subject to the Necessity and TEEP tests, are expected to collect paper, plastic, metal and glass separately from each other;
  • the EA expects producers and collectors (and brokers where applicable) to “work together” to find the right collection system to maximise recycling and compliance with the law.

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

  •   Collections which are providing an on-site or doorstep   separate collection, or kerbside sorting, of each paper, glass, plastics and   cans.
  •   Collectors who have rigorously applied the Necessity and   TEEP tests and collection arrangements are based on well-evidence, documented   and justified decision-making.

Low

Medium (Possibly failing the Necessity or   TEEP test)

  •   Collectors who send co-mingled collections to a MRF which   is producing poor quality recyclates.
  •   A collector advertising a new contract that is prescriptive   about type of collection/sorting service unless it is clear it wants a   multi-stream/separate collection.
  •   A collection which has moved away from separate collection   to co-mingling, or renewed to co-mingling since 2012.
  •   If one or more of the four materials is only collected   through a CA site or bring banks.

Medium

Low / non-compliant

  •   Evidence that good quality recyclate collections   deliberately sent for disposal or incineration or remixed with other waste.
  •   No or little attempt to apply the regulations. No response   to requests for information.
  •   Evidence from site inspections or audits where collections   have led to poor management causing environmental harm, or illegal activity   such as mis-description or illegal export.

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.

For more information

Please contact Cynyr Rhys or Gayle Monk.

Is £400m enough?
Is £400m enough?

The government announced on 16 May that it will provide a fund of £400m to cover the costs of removal and replacement of cladding to high rise residential blocks which have failed tests.

The problems with co-owned properties and attorneys
The problems with co-owned properties and attorneys

Whilst some people are under the impression that preparing a Lasting Power of Attorney (LPA) is simply a case of completing a form and ticking a few boxes, it is about far more than this.

What's mine is (not) yours!
What's mine is (not) yours!

A big fear for some people facing divorce and the inevitable carving up of the matrimonial assets. They seek assurances that such assets will be “ring-fenced” and retained for them.

How to avoid the PET trap
How to avoid the PET trap

When an individual is thinking about making a gift to another individual, consideration needs to be given to the Potentially Exempt Transfer (PET) trap.

Fictitious divorces
Fictitious divorces

Arising from the recent Family Division announcement, people who think they are legally divorced may in fact still be married.