Transcript North East Recycling Forum 19 March 2013

North East Recycling Forum
Esther Kiddle
Director
TK Associates
19 March 2013
Agenda
1.
2.
3.
4.
Resources – a European Focus
End of Waste
Recycling
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)
European Union (EU27)
Rest of the World (ROW)
Biomass
126 million tonnes
193 million tonnes
Trade Balance 67 million tonnes
Manufactures
Total trade from EU27
to ROW
207 million tonnes
221 million tonnes
In 1999:
397 million tonnes
Trade Balance 14 million tonnes
In 2008:
536 million tonnes
Fuels/mining products
203 million tonnes
In 2011:
568 million tonnes
Total Trade from ROW to
EU27
1,384 million tonnes
Trade Balance 1,181 million tonnes
In 1999:
1, 340 million tonnes
In 2008
1,798 million tonnes
In 2011:
1, 629 million tonnes
Average EU27 Person's Resource Use and Disposal Per Annum
3.2
tonnes
16
tonnes
per
annum
6
tonnes
wasted
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 endof-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 materials
 Processes and techniques
 Product quality
 Potential applications – includes provision of information
obligation
 Quality 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 2011
The 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 2013
The 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 Waste
Until 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 Review
Conclusions:
 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 Kiddle
[email protected]
07971628252
www.tk-associates.uk.com