Select Committee on Environment, Food and Rural Affairs Minutes of Evidence

Memorandum submitted by Environmental Services Association


1.1  Preamble

  As the sectoral trade association for the UK's waste and secondary resource management industry, ESA welcomes the opportunity to comment on this Inquiry. Our industry contributes more than £5 billion annually to the UK economy. Compliance with the UK's existing legal duties would cause this turnover to double, through very substantial investment in infrastructure and otherwise, within a decade.

  ESA has for some years sought a regulatory regime requiring hazardous waste—to the extent that it cannot appropriately be restored to the productive economy—to be treated to a safe and stable state before final management in landfill. While we welcome the Select Committee's interest in this most important subject, we are dismayed by the fact that—even now—existing infrastructure to treat hazardous waste is being undermined by an inadequate regulatory framework.

  The five largest waste management companies in the UK operate elsewhere in the EU as well as in the UK. Because the regulatory climate in these countries typically provides far greater certainty than does that in the UK, they have been able to invest in new treatment technologies. For example, Germany has a far more prescriptive approach towards the management of hazardous waste: this enables their hazardous waste management industry to determine capacity requirements and to programme investment with far greater certainty.

  Our industry wants to invest in similar treatment technologies in the UK and to use the experience and expertise our Members have gained from operating these facilities across Europe. The advice ESA has received from our leading Members is that undue weight should not be given to perceived future shortfalls in capacity: the means to dealing with this lie in the hands of HMG.

  The construction and demolition industry contributes each year more than a million tonnes of contaminated soil and over a quarter of million tonnes of asbestos to landfill. With the possible exception of asbestos, this waste stream will be required to undergo treatment before final management in landfill. The chemical industry produces about 10 per cent of the UK's hazardous waste.

1.2  Scope of this memorandum

  ESA's four main conclusions are that:

    —  2004 deadline for treatment of hazardous waste to a safe and stable state ("Final Storage Quality") should to the maximum practicable extent be met and, to the extent that additional infrastructure may be needed, HMG should ensure the planning system makes this possible;

    —  even if the UK is not obliged to apply the European Commission's Technical Adaptation Committee's ("TAC") Waste Acceptance Criteria ("WAC") until a period after 2004, because of extreme difficulties that would arise from any transitional period during which WAC did not apply but during which co-disposal was banned, we believe the WAC should be treated as applicable with effect from 2004. As discussed below, the industry will not carry the risk of placing untreated hazardous waste in landfills taking only hazardous waste;

    —  in any event, until the TAC's WAC apply, non-hazardous waste must be allowed to be placed in hazardous landfills accepting untreated hazardous waste, and waste producers must be required from 2004 to pay a tax to cover the cost advantage of avoiding treatment of hazardous waste; and

    —  if the UK is to manage hazardous waste effectively and sustainably, we believe that as a matter of urgency the Government should produce a Hazardous Waste Strategy covering at least the next decade and connecting chemicals policy, producer responsibility and waste management regulation. This would complement the National Waste Strategy and could provide an opportunity to clarify the responsibilities of waste producers and to link relevant EU laws rather than treating each legal requirement as a separate entity.


2.1  Information Gaps

  Information provided by industrial waste producers on the volumes and nature of generated hazardous waste streams is limited. Available data such as that incorporated in the Babtie report commissioned by DETR is uncertain. More thorough research into the requirements of waste producers would be needed to provide a truly comprehensive analysis of hazardous waste management in the United Kingdom.

  Impending change in the definition of hazardous waste will lead to some increase in the volume of waste defined as hazardous. However, structural changes in the UK economy—particularly the move away from a predominantly manufacturing to a service base and greater impact of producer responsibility legislation and improved life cycle analysis—may lead to significantly lower quantities of hazardous waste being produced over the longer term. We also expect larger quantities of materials to be restored to the productive economy.

2.2  Industry's responses to market changes

  Waste producers normally seek the cheapest (lawful) outlet for their waste: this is why ESA sees regulation as such a critical driver towards higher levels of environmental sustainability which build into the costs of production all the costs—and most particularly the environmental costs—accumulated over the full life of products.

  The UK is belatedly coming to terms with relatively small costs which comparable competitors have already absorbed.

  The responses of waste producers to the changes in the costs of treatment and management due to relevant EU Directives could take various forms. For example:

    —  production processes will probably change to reduce volume and/or toxicity of wastes generated;

    —  in-house waste reduction/management facilities may be developed (and perhaps managed by ESA's Members), reducing the volume of waste treated by the waste management sector; and

    —  alternative uses of waste such as use as secondary liquid fuels may increase.

  It is also likely that waste producers will assess more carefully the waste streams which they currently define as hazardous. Currently, many waste producers take a precautionary approach, recording and transferring some wastes as "special" even though they may not be defined by law in this way. The Babtie report states that "Many companies acknowledge that they overnotify their waste streams to ensure that they are within the Law without recourse to expensive analysis". However, this is difficult to verify in a context where the waste producers' analysis is not as comprehensive as ESA's Members would wish.

2.3  Regulatory Uncertainty

2.3.1  Regulations and guidance

  The Landfill Regulations were only laid before Parliament in March 2002: eight months after the implementation deadline of 16 July 2001!

  We do not know when Regulations will be laid before the national parliaments of Scotland and Northern Ireland, and without a degree of regulatory co-ordination this could lead to the flow of hazardous wastes to landfill facilities in Scotland. We know of no arrangements made by DEFRA to prevent this and we are most concerned that regulatory arbitrage of this type could impede investment in infrastructure, delaying and prejudicing attainment of higher standards of environmental sustainability.

  The failure of the TAC to comply with its own deadline and to derive WAC by July 2001 has constrained investment opportunities. The interim national waste acceptance criteria published earlier this year by the Environment Agency do not provide sufficient certainty for investment and do not provide the framework needed by ESA's Members.

  Guidance on many crucial aspects of the interpretation of the meaning of LFD has not yet been provided, despite numerous and sustained requests by many key partners, including of course ESA, to DEFRA and the Environment Agency. For example, the definition of what constitutes a "corrosive material" in the landfill environment has not been provided, hindering assessment of the magnitude of the problems associated with implementation of LFD.

  For processes which will be authorised by Pollution, Prevention & Control ("PPC"), it will be necessary to demonstrate that the wastes generated will be managed according to Best Available Techniques ("BAT") for that waste. No guidance has been provided on what will constitute BAT for specific waste streams and this will have a direct effect on the nature and volume of hazardous waste being directed to particular types of treatment facilities.

2.3.2  Resourcing issues

  The Environment Agency faces a considerable increase in its workload over the next decade and it is essential that it is properly focused and adequately resourced. For example, it is estimated that the Agency will be required to process 1,200 new permit applications for existing landfill sites, pressure which is exacerbated by the Agency's responsibilities under the implementation of the PPC and the Habitats Directives.

  It is crucial that the Agency focuses on its core regulatory remit and is adequately resourced so to do.

2.3.3  The UK's record in implementing relevant EU legislation

  The EU drives the overwhelming majority of legislation governing the waste management industry. Over the next decade further EU environmental Directives will impact significantly on the UK's managers and producers of waste.

  The main currently known drivers on hazardous waste management in the United Kingdom include producer responsibility inspired Directives such as the End of Life Vehicles and Waste Electrical and Electronic Equipment Directive (will reduce the quantities of hazardous materials in these products), the Waste Shipment Regulations, IPPC Directive and a possible European Directive on the separate collection of household hazardous waste: the latter may have very significant implications for local authorities. It is also expected that mining, quarrying, and agricultural wastes are likely to be shortly classified as controlled waste.

  Despite the considerable operational implications for producers and managers of waste, the UK's record of effectively implementing relevant EU law is patchy.

  For example, the PPC Regulations were delayed for a year and the Committee has already taken pertinent evidence on end of life refrigerators. As a result of this approach, in recent years the UK has found itself served with infraction proceedings on a number of occasions.

  Quite apart from the commercial and operational difficulties ESA's Members face as a result of this avoidable uncertainty, the UK's environmental reputation is being compromised and, if this is not reversed, the long-term ability of the UK's environment sector (a key sector targeted by the DTI) to export services will be compromised.

  It is crucial that officials and regulators become attuned to the conditions necessary for private sector capital investment to be forthcoming and to the commercial implications of their actions or delays in providing regulatory guidance.

  If there is to be greater regulatory certainty, it is essential that the industry is recognised as an effective partner and a positive resource to be drawn upon at a very early stage.

2.3.4  Planning for new facilities

  With a challenging legislative timetable and the added requirement for many new facilities to manage municipal waste, there will be considerable pressure on the planning process. Many planning applications will also need to succeed to deliver the necessary hazardous waste treatment and management infrastructure. Under the current planning regime, it can take several years for a facility to become operational.

  Currently, the planning process is failing to provide the necessary efficiency and this is further compromising investment opportunities. We do not believe that the Government's Green Paper on Planning will lead to any significant improvement, and we hope the current Performance and Innovation Unit study into waste strategy will in this and other critical respects prove to be more effective.


  Based on the draft WAC currently under discussion by the TAC, virtually all hazardous wastes which currently are landfilled in the UK will have to be treated in some way before final management in landfill.

  Whilst suitable treatment methods are known and many are available already in the UK, there is insufficient capacity to deal with all the waste. Because of the uncertainties discussed above, we cannot say with confidence precisely what infrastructure will be necessary, but it is likely that a number of high temperature incinerators and stabilisation plants will be required by 2010.

  The Select Committee will be aware that the volumes of hazardous waste needing particular types of treatment are estimated in the Babtie report. It should be noted that the estimates are based on the current definition of Special Waste.

  The Government has been aware for some time of the regulatory conditions needed for the industry to invest in hazardous waste management solutions. On top of ESA's and ESA's Members' own frequent representations, the Babtie report commented that "the industry is united in requiring definitive answers to their questions about quantities, acceptance criteria and timing before committing capital sums to existing plant as well as to new plant".

  Indeed, because of regulatory uncertainty the sector has been characterised by market withdrawal. For example, despite ESA's repeated warnings to the Government, regulatory and market conditions have led to the closure of two of the UK's four high temperature incineration (HTI) plants, one as recently as March 2002, reducing UK HTI currently operating annual capacity from 165,000 tonnes to 105,000 tonnes.

  In other EU Member States, such as France and Germany, there is at least two to three times more HTI treatment capacity than in the UK relative to the size of the indigenous chemical and pharmaceutical industries because specific hazardous wastes are not allowed untreated in landfill or in co-incinerators.

  ESA's Members are responsible risk managers who want to invest. However, timing is crucial: if new facilities are commissioned too early then they will stand idle (although interest will still have to be paid on the money borrowed) while waste continues to go to co-disposal landfill facilities, and if too late the waste will go to other treatment routes.

  At a time when capital is needed to invest in new systems for municipal waste as well as new plant for hazardous and liquid wastes it is likely that the safer investment prospect is for companies to concentrate on the municipal waste stream. For example, local authorities recognise that they are likely to require new waste collection and management infrastructure to divert waste away from landfill and are able to offer a higher degree of certainty through long-term contracts and relatively stable tonnages of waste.


  From 16 July 2002 hazardous liquids will no longer be accepted into UK landfills. The waste industry believes that in general hazardous liquid wastes can be accommodated into existing treatment facilities.

  However there are significant uncertainties associated with the management of some major waste streams namely the continued disposal of solvent contaminated aqueous waste into brine cavities and the disposal of corrosive alkaline liquids into settlement lagoons. ESA would regard brine cavities as landfill and would also regard settlement lagoons as landfill when the residue is left in situ.

  LFD requires that in July 2004 co-disposal of hazardous waste with non-hazardous waste must cease. This has extremely serious implications for the management of the UK's hazardous waste.

  If only hazardous waste can be deposited in hazardous waste landfills from 2004, without numeric WAC having been set, there will be no opportunity to take advantage of the biochemical reactions within a co-disposal landfill which achieve attenuation, degradation and stabilisation of the hazardous materials. Where hazardous materials are deposited in a site which accepts hazardous waste only, there is no chemical buffering, attenuation or stabilisation and contaminants are simply leached out over time. ESA believes that the risks and long term liabilities that would be presented by such sites will not be accepted by our Members.

  In addition, waste producers will continue to send their waste by the least cost route allowed by law. This route will continue-for as long as treatment is not required-to be landfill. This will provide adverse market conditions for the survival of treatment facilities which are inevitably more expensive.

  On top of this, it is likely that landfill costs will fall in the short term as landfill operators seek to maximise input into their sites prior to the date of implementation of the requirements of LFD. Without sufficient regulatory certainty, this in turn could further delay investment in and development of additional waste treatment facilities.

  On mature consideration of the alternatives, ESA still remains of the view that a requirement to pre-treat hazardous waste before final management in landfill with effect from July 2004 is preferable provided the Government facilitates the development of additional treatment facilities through the planning and permitting process.

  Any delay beyond 2004 should be minimised. In any event, ESA strongly believes that the ban on disposal of non-hazardous waste in hazardous sites must not pre-date the introduction of the WAC.

  Our industry has for some years made it plain to the Government that it is not acceptable for hazardous wastes which have not been treated to meet the WAC to be disposed of in sites which accept only hazardous waste. During any period of delay, mechanisms (eg differential taxes) must be put in place to ensure that there is no cost advantage to the waste producer in continuing to landfill without treatment rather than purchasing treatment to meet the WAC. ESA acknowledges that it will be difficult to set and to implement a fixed rate of tax to achieve the cost balance and we hope the Government may regard this as a further incentive to adhere to the 2004 deadline.


  ESA is pleased that the draft WAC under consideration by the TAC are based on risk assessment calculations. Again with the exception of asbestos, most hazardous wastes currently sent to landfill would not meet the WAC without some form of treatment.

  ESA has consistently argued for the setting of Final Storage Quality (FSQ) criteria as the acceptance criteria for the final management of hazardous waste. The principle of FSQ is to treat waste to a state where it can be managed in landfill with confidence that there will be no residual risks to the environment and where the site operator is released from future liabilities. The draft WAC being considered by the TAC go some way in this direction. ESA believes further work should be carried out on the definition and setting of criteria for FSQ.


  Action taken to implement LFD for hazardous wastes must be consistent and coordinated across the UK to avoid damaging regulatory arbitrage and market instability.

  ESA's Members consider that it is important to work closely with waste producers in order to reduce uncertainties and ensure that the waste management provides an appropriate service protective of the environment. We still actively seek cooperation with all partners, where the Government, Devolved Administrations, regulators, waste managers, waste producers and planning authorities work together to achieve the 2004 deadline. We are, for example, pleased to arrange with the Chemical Industries Association a joint working seminar, chaired by ESA's Chairman.

  In this sector, regulatory certainty delivers investment opportunities. Without the right regulatory and economic framework the UK will lurch from one scenario of crisis and failure to another and, in the end, could spend more resources than prompt and effective compliance with EU law would have required, but without the environmental and economic benefits new British jobs working for compliance would have delivered. Given long-term certainty and effective regulation ESA's Members are ready, willing and able to invest but we need the Government.

Environmental Services Association

May 2002

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