North East Recycling Forum

Esther KiddleDirectorTK Associates19 March 2013

Agenda

1. Resources – a European Focus2. End of Waste3. Recycling4. Judicial Review

Resources – a European Perspective

In the 20th Century, the WORLD experienced a:

• 4 fold increase in population (currently over 7 billion)

• 23 fold increase in economic output

• 12 fold increase in fossil fuel use

• 9 fold increase in water use

• 8 fold increase in the extraction of material resources

• 23 fold increase in the extraction of ores and minerals

EU27 Exports and Imports (2011)

Rest of the World (ROW)

Total Trade from ROW to EU27

In 1999: 1, 340 million tonnes

In 2008 1,798 million tonnes

In 2011: 1, 629 million tonnes

European Union (EU27)

Total trade from EU27 to ROW

In 1999:397 million tonnes

In 2008:536 million tonnes

In 2011:568 million tonnes

Biomass

Trade Balance 67 million tonnes

Manufactures

Trade Balance 14 million tonnes

Fuels/mining products

Trade Balance 1,181 million tonnes

126 million tonnes

193 million tonnes

207 million tonnes

221 million tonnes

203 million tonnes

1,384 million tonnes

Average EU27 Person's Resource Use and Disposal Per Annum

16 tonnes

perannum

3.2 tonnes

6 tonneswasted 3

tonnes landfill

All Roads Lead to Europe – Policy Drivers

• The sustainable use of natural resources is increasingly becoming mainstream to EU policy initiatives to promote growth and competitiveness.

• A major policy issue is the need for legal clarity for defining when reprocessed waste can be reclassified as a product -'End-of-Waste' criteria.

• As worldwide demand for raw materials increases, greater efforts will have to be made on recycling.

• Higher recycling rates will reduce the pressure on demand for primary raw materials, help to reuse valuable materials which would otherwise be wasted, and reduce energy consumption and greenhouse gas emissions from extraction and processing of primary resources.

Changes at a European Level – Policy (7th EAP)

• Policy Changes

Strengthening links between natural resources, products and waste policies, to drive more focus on avoiding impacts at the source, rather than continuing to deal with problems at the end-of-pipe/life.

Waste-related targets, focusing on waste prevention, reuse, material recycling and phasing out of waste deposits to landfill (without driving waste to incineration).

End of Waste

Revised Waste Framework Directive (rWFD)

Created legal obligation to assert the waste hierarchy (Art 4) ‘best overall environmental outcome’

Protection human health and environment (Art 13) Recycling Society High quality recycling High levels of resource efficiency MS prep for re-use and recycling targets (50% by 2020) End of Waste (Art 6)

Certainty (cease to be waste) and deregulation Resource security Material freely traded on open market Consumer confidence / quality assurance Promote recycling Harmonisation / legal certainty across the EU

End of Waste (rWFD Art 6)

• Provides the “conditions” under which the “specific criteria” can be developed to define the point at which waste ceases to be waste when it has undergone a recovery, including recycling, operation.

• Article 6(1) CONDITIONS:a) the substance or object is commonly used for specific

purposes;b) a market or demand exists for such a substance or object;c) the substance or object fulfils the technical requirements for

the specific purposes and meets the existing legislation and standards applicable to products; and

d) the use of the substance or object will not lead to overall adverse environmental or human health impacts.

Conditions for the Specific Criteria Art 6(1)

• (a) and (b) Substance or object more likely to be put to a useful purpose and less likely to be discarded. Preventing end-of waste where demand and market are not developed.

• (c) Ensure substance or objects fit for lawful use and safe to be treated as product. Free from protectionist waste legislation.

• (d) Overriding objective of environment / human health protection – imply application of impact assessment required.

The ‘Specific Criteria’

• Art 6(1) Specific Criteria“The criteria shall include limit values for pollutants where necessary and shall take into account any possible adverse environmental effects of the substance or object”

• JRC End-of-Waste Criteria final report published 2009 – “specific criteria” may cover: Input materialsProcesses and techniquesProduct qualityPotential applications – includes provision of information

obligationQuality control procedures

Article 6(4)

• Where criteria have not been set at community level – Member States can develop own standards to decide when waste has ceased to be waste provided followed the technical and standards procedure including notifying the Commission of such decisions.

• Where no criteria have been set at European Union level, the Member State may, by virtue of Article 6(4) rWFD, decide on a case-by-case basis whether certain waste has ceased to be waste, taking into account the applicable case law.

• Where criteria has been set at a European level:– the EU criteria are directly effective (in the form of Regulations); or– Member State may apply “higher standard” (provided not anti-

competitive and prevent free trade etc.).

Article 6

• European Commission has developed end-of-waste criteria:

Regulation 333/2011/EC (Scrap Metal) applies to EU from 9 October 2011The Regulation establishes criteria determining when iron, steel and

aluminium scrap, including aluminium alloy scrap, cease to be waste.

Regulation 1179/2012/EC (Glass Cullet) applies to EU from 11 June 2013The Regulation establishes criteria determining when glass cullet

destined for the production of glass substances or objects in re-melting processes ceases to be waste.

To follow: waste paper, copper and copper alloy scrap, biowaste, waste plastic.

Recycling

The Link Between End-of-Waste and Recycling

• Recycling (rWFD definition):

“means any recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes. It includes reprocessing of organic materials but does not include energy recovery and the reprocessing into materials that are used as fuels or for backfilling operations.”

• Recovery (rWFD definition):

“means any operation the principal result of which is waste serving a useful purpose by replacing other material which would otherwise have been used to fulfil a particular function…”

The Link Between End-of-Waste and Recycling• Recovery – may remain waste (or may cease to be waste) but replaces other

material.

• Recycling – waste materials are reprocessed into product, material or substance. They cease to be waste – become a product.

• Guidance on the interpretation of key provisions of Directive 2008/98/EC on waste published June 2012:

“Recycling includes any physical, chemical or biological treatment leading to a material which is no longer a waste” • Already, a precedent for waste having to cease being waste to count as recycled:

Packaging Directive, WEEE Directive, ELV Directive and Batteries and Accumulator Directive; AND

Commission Decision (2011/753/EC) 1 July 2011 establishing rules and calculation methods for verifying compliance with the targets set in Article 11(2) of rWFD (50% by 2020.

Biowaste End of WasteUntil the Regulations for biowaste are in force:

by following the Art 6(4) procedure (Directive 98/34/EC) – the Quality Protocols (and “Approved Standards” PAS100/PAS110) represent the End-of-Waste status of compost and digestate in England and Wales.

Scotland and Wales both have implemented that PAS100/110 must be achieved for a bio-waste material to be classified as recycled.

Northern Ireland has proposed adoption of waste quality protocols including PAS100/110 for a bio-waste material to be classified as recycled.

In England, discussions are on-going but it is proposed that PAS100/110 will be required for a bio-waste material to be classified as recycled by 2015.

Judicial Review

Judicial Review

• R(UK Recyclate Ltd & others) v Defra & Welsh Ministers• Judgement 6 March 2013

• Question – was the rWFD transposed properly into domestic legislation (Waste (England & Wales) Regulations 2011) insofar as the rWFD requires the separate collection of paper, metal, plastic and glass (Article 11 (1) by 2015 obligation) i.e. must paper, metal, plastic and glass be separately collected (not co-mingled).

• Note – not about the Article 11(2) 50% by 2020 obligation• Note – not about what is “recycling”

Article 11 (1)

“Member States shall take measures to promote high quality recycling and, to this end, shall set up collections of waste where technically, environmentally and economically practicable and

appropriate to meet the necessary quality standards for the relevant recycling sectors.

Subject to Article 10(2), by 2015 separate collection shall be set up for at least the following: paper, metal, plastic and glass.”

Points to Note The Waste (England and Wales) Regulations 2011 (2011

Regulations) where amended during the legal process by the Waste (England and Wales) (Amendment) Regulations 2012 (2012 Regulations).

Regulation 13 of the 2011 Regulations were amended by Regulation 2 of the 2012 Regulations to remove the reference to “co-mingling” being a form of separate collection.

Question – with the amendment in mind, the Court considered whether the rWFD was transposed properly and the case focussed on the rWFD aim of facilitating “recovery” not achieving recycling.

Judicial Review

Separate collection of paper, metal, plastic and glass from 2015 is not required if, and only if, such collection is not “technically, environmentally and economically practicable”:

technically developed and proven to function in practice;

ecological benefits justify the possible negative environmental effects of separate collection (EIA?);

not cause excessive cost in comparison with the treatment of non-separated waste stream, considering the added value of recovery and recycling and the principle of proportionality.

Judicial ReviewConclusions: For local authorities to decide what is “technically, environmentally and

economically practicable” – the practicability requirement.

Separate collection should be considered IF necessary to promote the waste hierarchy and to protect human health and the environment AND to facilitate and improve recovery – the necessity requirement.

The obligation to collect waste separately is subservient to the fundamental aim of the rWFD to to protect human health and the environment and achieve the best overall environmental outcome.

It is for the Environment Agency to act as regulator and enforce the requirement to separately collect from 2015 (guidance to follow?).

Art 36(2) requires Member States to “provide for effective, proportionate ad dissuasive penalties for infringements of the rWFD and take all measures necessary to ensure they are effective”.

Any Questions?

Thank you for listening

Esther Kiddleesther@tk-associates.uk.com

07971628252www.tk-associates.uk.com