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Changes to the Waste (England and Wales) Regulations 2011

Changes to the Waste (England and Wales) Regulations 2011

Background
The Waste (England and Wales) Regulations 2011 (the Regulations) transposed the Waste Framework Directive (the Directive) into English law and imposed duties on waste collection authorities and waste disposal authorities to follow the waste hierarchy in relation to the collection of waste and the handling of collected waste.

The greatest impact of the recent changes to the Regulations is likely to relate to the collection of waste. The changes arose in light of a judicial review challenge brought by the Campaign for Real Recycling, who claimed that the Regulations failed to transpose correctly the Directive. Although the case was adjourned while Defra amended the Regulations in an attempt to comply with the Directive, the Campaign is continuing to pursue the judicial review and a hearing is scheduled for February 2013.

Key change
Regulation 13 previously stated that commingled collection of waste paper, metal, plastic or metal (being separate from residual waste) could be regarded as separate collection. The change means that from 1 January 2015 recyclable items will need to be collected separately (and commingled collections will not be allowed), provided this is 'technically, environmentally and economically practicable'.

Failure by a collection authority to comply with this duty will be an offence.

Statutory duties
Waste hierarchy
Regulation 12 is in force now and provides: "An establishment or undertaking which imports, produces, collects, transports, recovers or disposes of waste, or which as a dealer or broker has control of waste must, on the transfer of waste, take all such measures available to it as are reasonable in the circumstances to apply the [...] waste hierarchy as a priority order."

This means that collection authorities and disposal authorities are now under a duty to "take all such measures available to it as are reasonable in the circumstances" to apply the waste hierarchy. Should a collection authority or disposal authority not comply with this duty it will commit an offence.

What constitutes all reasonable measures will require careful thought. It is not clear at this stage how the courts will interpret this wording, but collection authorities and disposal authorities will need to consider carefully what steps they are and should be taking to comply with the waste hierarchy.

Commingling of collected waste
Regulation 14 requires that, from 1 January 2015, a collection authority or disposal authority must "take all such measures available to it [...] as are reasonable in the circumstances" to ensure that any waste paper, metal, plastic or metal which has been collected separately is not then mixed with other waste.

Again, the meaning of "all such measures [...] as are reasonable in the circumstances" requires consideration in each case. Collection authorities and disposal authorities should consider whether they must make changes to their current systems to ensure that by 1 January 2015 separately collected waste is not being commingled. Failure to comply with this requirement is an offence.

Sanctions for non-compliance
Any collection authority or disposal authority failing to comply with regulations 12, 13 or 14 will be committing an offence.
Under Regulation 42 the sanction in the event of summary conviction is a fine of £5000, and if convicted on indictment the sanction is an unlimited fine.

Conclusion
The duty on waste collection authorities and waste disposal authorities to comply with the waste hierarchy is in force now. All waste authorities should therefore give careful thought to their waste collection, transfer, recycling, treatment and disposal arrangements and ensure that they are taking all measures available to them to apply the waste hierarchy as are reasonable in the circumstances.

They should also be thinking now about the duties coming into force on 1 January 2015 and ensuring they are prepared for these changes.

Anaerobic digestion
While Regulations 13 and 14 do not require separate collections of food waste or green waste, the potential for recycling or recovery through composting and anaerobic digestion of organic waste should not be ignored. Not only is it relevant to the application of the waste hierarchy, but anaerobic digestion can play a key part in a disposal authority's renewable energy strategy, helping realise economic, community and environmental benefits as part of the low carbon and sustainable resources agenda.

Now is the time for waste authorities who have not already done so to examine what the Regulations mean for them and their future plans for waste management; including their short, medium and long term approaches for a robust and sustainable waste management strategy.

The above taken from http://www.walkermorris.co.uk/changes-waste-england-and-wales-regulation...