Waste Watch - July 2013

This Update contains brief details of Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in waste management, which have been published in July 2013.

31/07/2013

This Update contains brief details of Government and EU publications, legislation, cases and other developments in England and Wales relevant to those interested in waste management, which have been published in June 2013.

Items are set out by subject, with a link to where the full document can be found on the internet. All links are correct at the date of publication.

If you have been forwarded this update by a colleague and would like to receive it direct please email Claire Booth.

The following topics are covered in this update:

   Carbon Reduction    Pollution Prevention and Control
   Environmental Liability    Procurement
   Fly-tipping and Litter    Regulation
   Hazardous Waste    Waste Collection
   Health and Safety    Waste EEE
   Landfill    Waste Management
   Packaging Waste    Waste Minimisation

Carbon Reduction

NAO: Briefing for the Environmental Audit Committee – Carbon budget management: this briefing reviews the governance and reporting arrangements for managing carbon budgets. The Climate Change Act 2008 requires the Government to publish interim five-year carbon budgets which set progressively lower emissions limits and act as a roadmap towards achieving the 2020 and 2050 carbon reduction targets. The Government plans to review the target set for the fourth carbon budget in 2014 in light of the emissions reductions expected from sectors covered by the EU Emissions Trading Scheme. This briefing looks at: the production and publication of statutory and non-statutory reports; reporting against the Carbon Plan; and monitoring by the NET Board. (3 July 2013)

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Environmental Liability

HC Justice Committee: Environmental offences guideline  – Consultation: the Committee has examined the Sentencing Council's draft Guideline, issued for consultation in March 2013, that covers a small but varied range of offences, falling mainly within s.33 EPA 1990 and regs.12 and 38(1)–(3) of the Environmental Permitting (England and Wales) Regulations 2010. The Committee states that the draft Guideline covers a wide range of offences ranging from fly-tipping to large scale hazardous waste offences, and the sentences appropriate for individuals may be quite different from those appropriate for a large company. Although there was a case for treating some of these issues separately, there was a clear desire from magistrates to have a framework of guidance. Crimes that damage the environment and endanger public safety are taken seriously by the courts and it hopes that the final version of the Guideline will assist them in doing so. (19 July 2013)

R v Morgan [2013] EWCA Crim 1307 (CA): M appealed against a confiscation order that had been imposed on him after he pleaded guilty to offences concerning the unlawful deposit of waste material at an unlicensed landfill site. One of the issues raised on appeal was the proper basis on which a judge was to calculate the "benefit" obtained by an offender who had permitted the unlawful deposit of waste on his land and in doing so had not paid any licensing costs or landfill taxes, but had also not obtained any payment for the deposits or other benefit. The judge found that the operation was a "disposal" involving "inert" waste, in which no waste management licence had been obtained and no landfill tax paid. The experts agreed that the relevant range of sums saved by M was between £156,500 and £207,000. The judge determined that the lowest figure was the "benefit" obtained by the appellant's criminal conduct, so that the "recoverable amount" for the purposes of s.6(5)(a) of the Proceeds of Crime Act 2002 (POCA) was £156,500, that being the benefit M had obtained from the criminal conduct concerned. As the value of M's property available to meet a confiscation order was in excess of the "recoverable amount", the judge made the confiscation order for £156,500. M argued that the confiscation order was oppressive and constituted an abuse of the court's process.
The court held, dismissing M's appeal, that the key question was whether the confiscation order was "disproportionate" so as to amount to a breach of M's rights under Protocol 1 Art.1 ECHR. To answer this, it was necessary to examine the basis on which the judge arrived at the figure of a "benefit" of £156,500. Assuming that the judge was correct to conclude that M had engaged in a "disposal" operation, he was also correct to conclude that M had, by engaging in unlawful unlicensed activity, thereby obtained a pecuniary advantage in the sum of £156,500. This was because M had evaded landfill tax and licence fees and had avoided paying for other costs that he would have had to pay if the operation had been conducted lawfully. On the basis of the definition of "property" in s.84(1)(a) POCA and the application of the assumption in s.10(3), this pecuniary advantage constituted "property" obtained by M as a result of his general criminal conduct and thus the "benefit" obtained from such conduct. There was no basis on which it could be alleged that the use of the assumption in s.10(3) was incorrect. Nor, given the experts' agreement on the figures of sums not paid by M as a result of carrying on an unlawful "disposal" exercise, could it be argued that the use of the presumption in s.10(3) would produce a serious risk of injustice. Given the proper use of the assumptions in this case and the findings of fact of the judge, based in particular on the experts' agreed table, there could be no "very unusual circumstances to court the danger" of the confiscation order being disproportionate. (23 July 2013)

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Fly-tipping and Litter

Littering from Vehicles Bill: this Private Member's Bill has been introduced in the Lords by Lord Marlesford and has received its 2nd Reading. The Bill introduces a civil penalty for littering from vehicles and also requires local authorities to publish details of contracts relating to litter clearance. The Bill's progress can be tracked on the Parliamentary Bills website. (19 July 2013)

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Hazardous Waste

Environment Agency: Hazardous Waste - Interpretation of the definition and classification of hazardous waste (WM2): detailed technical guidance on the assessment and classification of hazardous waste based on the revised Waste Framework Directive definition of hazardous waste. It is intended to provide guidance to all involved in the production, management and control of hazardous waste and to be a reference document for all legislation related to hazardous waste and its management. (15 July 2013)

Environment Agency: What is hazardous waste? A guide to the Hazardous Waste Regulations (HWR01): outlines some simple principles behind hazardous waste assessment. (16 July 2013)

DEFRA: National Policy Statement for Hazardous Waste – A framework document for planning decisions on nationally significant hazardous waste infrastructure: sets out Government policy for the provision of infrastructure for the management of hazardous waste. It will be used by the Secretary of State as the primary basis for decisions on development consent applications for hazardous waste infrastructure that fall within the definition of a Nationally Significant Infrastructure Project. In making decisions on such applications, the Secretary of State must also have regard to any local impact report submitted by a local authority in accordance with the Act, any matters prescribed that are relevant to the application and any other matters which it considers are both important and relevant to any decision. The NPS also provides guidance for potential developers and in particular advises on what should be included in their assessment of the potential impacts of a particular project. (18 July 2013)

DEFRA: Post-adoption statement –  National Policy Statement for Hazardous Waste: this Statement is designed to comply with the requirements of Art.9(1)(b) of the EU Strategic Environmental Assessment Directive relating to when a plan or programme is pusblished, setting out how environmental considerations have been integrated into the plan or programme and how the environmental report and consultation responses have been taken into account. Together with the Monitoring Strategy for the National Policy Statement for Hazardous Waste, it also fulfils the requirement to make available details of the measures that are to be taken to monitor the significant environmental effects of implementation of the plan or programme. (18 July 2013)

DEFRA: Consultation on the marketing and use of second-hand articles containing asbestos: seeks views on proposed changes to the REACH Enforcement Regulations 2008 (SI 2008/2852) to adopt a derogation allowing the sale of second-hand articles containing asbestos. The consultation closes on 15 August 2013. (18 July 2013)

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Health and Safety

HSE: designing and operating material recovery facilities (MRFs) safely: this guidance highlights the main health and safety issues to consider when designing, installing, making alterations to, or operating an MRF (also sometimes called material recycling or reclamation facilities). It explains how to remove or reduce key general health and safety risks associated with designing and operating an MRF, and includes advice about how to assess hazards and provides solutions that will help eliminate or reduce the risk of serious injury or ill health. (19 July 2013)

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Landfill

HMRC: A general guide to landfill tax: updated version of notice LFT1 that provides a general guide to the tax on the disposal of waste to landfill. The amendments reflect the changes announced at Budget 2012, relating to the lower rate of Landfill Tax and an increase to the maximum credit that landfill site operators may claim against their Landfill Tax liability for contributions made to bodies with objects concerned with the environment enrolled under the Landfill Communities Fund. The legal reference in relation to the definition of connected persons has also been updated. (30 July 2013)

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Packaging Waste

Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations 2013 (SI 2013/1857): these regulations, which come into force on 24 July 2013, amend SI 2007/871 by substituting an amended formula for the calculation of the amount of glass packaging waste that a producer must recycle by re-melt. The amended formula ensures that the glass re-melt target is applied to a producer’s glass recycling obligation. (23 July 2013)

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Pollution Prevention and Control

Environment Agency: Understanding your environmental responsibilities –- Good environmental practices (PPG1): these Pollution prevention Guidelines explain to businesses how to manage their environmental responsibilities to prevent pollution and comply with the law. They also set out where to find the information they need to put the basics into action. (10 July 2013)

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Procurement

Cabinet Office: Procurement Policy Note 05/13 – Further progress update on the modernisation of the EU Procurement Rules: this PPN summarises the main changes in the provisional agreement on the revised EU procurement rules and outlines the next steps in the process to finalise the EU rules and then implement them in the UK. (25 July 2013)

Cabinet Office: Procurement Policy Note – Measures to promote tax compliance: Action Note 06/13: this PPN sets out the scope and background of the new policy on the use of the procurement process to promote tax compliance that applies with effect from 1 April 2013 to all central government contracts over £5m. Suppliers bidding for these contracts must self-certify their tax compliance. It advises on how to take account of the policy in procurement documentation and provides further detailed guidance on how Government Departments should assess suppliers’ responses and the inclusion of new clauses in contract terms. It replaces Action Note 04/13. (25 July 2013) 

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Regulation

Cabinet Office: Draft Deregulation Bill: this draft Bill removes or reduces burdens on businesses, civil society, individuals, public sector bodies and the taxpayer. These include measures relating to general and specific areas of business, companies and insolvency, the use of land, housing, transport, communications, the environment, education and training, entertainment, public authorities and the administration of justice. Items of particular interest to the waste sector include:

  • replacing criminal offences relating to household waste collection with civil penalties where a person's failure to comply with a requirement about waste bins has caused a nuisance or has been detrimental to local amenities
  • amends the London Local Authorities Act 2007 regarding household waste collection, to ensure consistency of approach;
  • repeal of the power to establish joint waste authorities;
  • repeal of local authorities' duty to have regard to any energy measures reports published by the Secretary of State under the Climate Change and Sustainable Energy Act 2006;
  • repeal of s.3A of the Local Government Act 1999 so as to remove best value authorities' duty to consult in the exercise of any of their functions;
  • removes a number of statutory requirements to consult that are currently imposed on the Secretary of State or other public authorities;
  • removes local authorities' duty to produce a sustainable community strategy;
  • repeals duties and provisions relating to local area agreements and multi-area agreements;
  • imposes a duty on persons exercising certain regulatory functions to have regard to the desirability of promoting economic growth

The draft Bill will now be scrutinised by a joint Parliamentary Committee, and will be brought forward when parliamentary time allows. (1 July 2013)

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Waste Collection

DCLG: Guidance on bin charging on student accommodation: the Local Government Minister Brandon Lewis and Parliamentary Under Secretary of State Lord de Mauley have written to local authority Chief Executives about the introduction of charges to landlords of students in privately rented accommodation blocks for waste services. The letter states that local authorities should not be charging such landlords for waste services, as these are domestic residences and students are exempt from council tax, and such charges could lead to a rise in fly-tipping and illegal dumping of waste. The Controlled Waste (England and Wales) Regulations 2012 gave local authorities powers to charge for the collection and disposal of waste from a wider range of non-domestic premises, including "domestic property used in the course of a business for the provision of self-catering accommodation". However, this description does not cover waste from students or any privately rented domestic property. (29 July 2013)

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Waste Electrical and Electronic Equipment

European Commission: Frequently asked questions on Directive 2012/19/EU on Waste Electrical and Electronic Equiment ('new WEEE Directive'): these draft FAQs clarify certain aspects of the new WEEE Directive), which entered into force on 13 August 2012 and which Member States are required to transpose into national law by 14 February 2014. It covers both general questions concerning the scope of the new WEEE Directive during both the transitional period (i.e. 13 August 2012 to 14 August 2018) and the open-scope period, and also specific questions on the ‘Open-scope’ period-section that deals with questions concerning the scope during the period starting on 15 August 2018. The closing date for comments is 30 August 2013. (12 July 2013)

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Waste Management

DEFRA: The waste management plan for England: seeks views on a draft Waste Management Plan for England. The Plan does not introduce new waste management measures; instead, the purpose of the consultation is to seek views on whether the Plan – when combined with the updated waste planning policy – will fulfil the obligations for England of Art.28 of the revised Waste Framework Directive. The Plan and the updated waste planning policy (see below) will be used by planning authorities who must have regard to these documents when deciding waste planning applications under the Town and Country Planning Act 2004. Local waste authorities must also have regard to the plan when producing local waste plans that establish how they will manage waste within their areas. The consultation closes on 9 August 2013. (15 July 2013)

DCLG: Updated national waste planning policy – Planning for sustainable waste management: seeks views on a draft updated national waste planning policy for England that will replace the existing national waste planning policy PPS10. The updated policy maintains the core principles of the 'plan led' approach, with a continued focus of moving waste up the waste hierarchy by moving away from traditional landfill towards more sustainable options for waste management. The policy should be read alongside the proposed new Waste Management Plan for England (see above). The consultation closes on 23 September 2013. (29 July 2013)

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Waste Minimisation

WRAP: WRAP response to Defra budget settlement: comments on the announcement that DEFRA is to cut its funding to WRAP by 40% as part of the Spending Round 2013. WRAP states that it will still have adequate funding for its core objectives of boosting the economy and improving the environment, and that tackling food waste will remain a priority. (27 June 2013)

Friends of the Earth: Less is more – Resource efficiency through waste collection, recycling and reuse: Europe’'s reliance on materials from outside its borders is not sustainable. This report explores three different commodities (lithium, aluminium and cotton)– to exemplify how linear consumption patterns (extraction, manufacture, use and disposal) not only have major social, economic and environmental impacts, but also represent a missed opportunity for job creation and global resource security. (28 June 2013)

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