Implementing the landfill Directive: A turning point for UK waste management

tradable permits for landfilling biodegradable waste are among the options being considered by officials examining how to implement the forthcoming EC landfill Directive. The legislation is likely to open up significant commercial opportunities in waste recycling and recovery and hazardous waste treatment - alongside increases in costs for local authorities and industrial waste producers. It will also necessitate an overhaul of the waste management licensing regime and investment at hundreds of existing sites to meet new pollution control standards.

After eight years of deliberation, the EC is poised to adopt a Directive on landfills early next year. But despite the protracted negotiations, and persistent UK opposition to many of the proposals, there is every sign that the Directive could take the UK by surprise as the Government draws up plans for its implementation.

The Directive will impose many new regulatory requirements on the landfill industry, and will probably necessitate an overhaul of the waste management licensing regime implemented four years ago.

Time is short: by 2002, operators of all existing landfills will have to prepare conditioning plans to explain how they intend to bring their sites into line with the Directive. Member States may wait until 2009 before requiring operators to implement these plans, but the Government is showing interest in setting an earlier deadline. And the Environment Agency and its Scottish counterpart face a huge workload in preparing the necessary technical guidance and revising site licences.

Meanwhile, debate on the Directive urgently needs to spread beyond landfill practitioners - who, in defending existing practices, may have diverted attention from the wider picture.

After all, the Directive has ambitious objectives which reach far beyond the world of landfill. It seeks a shift away from an end-of-pipe view of waste management towards one of waste minimisation and resource recovery. But where landfill is to be restricted, the Directive does not prescribe what should replace it. There has been alarmingly little discussion of what the UK's waste management system might look like after co-disposal is banned and curbs on biodegradables have been implemented.

Phase-down for biodegradables
The European Commission originally proposed a rapid reduction in landfilling of biodegradable municipal waste - down to 25% of current arisings by 2010. The European Parliament supported the Commission's proposals, but in the Council of Ministers the UK successfully pushed for a much lengthier timetable (ENDS Report 278, pp 39-41 ). The common position agreed in March will require landfilling of biodegradable municipal waste to be cut to 35% of 1995 levels by 2016 - with an extra four-year delay for countries such as the UK which currently landfill more than 80% of their municipal waste (see table ).

The Directive must pass round the legislative circuit once more before becoming law, but the Council will probably stick to its unanimous position and override any objections from Parliament. The legislation is likely to be adopted largely in its current shape at the Environment Council next March - with Member States then having two years to transpose it into national law.

What is municipal waste?

The biodegradable waste targets apply to "municipal waste" - a term which in the UK usually means waste collected by local authorities or their contractors. But the Directive arguably addresses a wider range of wastes. It defines municipal waste as "waste from households as well as other waste which, because of its nature or composition, is similar to waste from households."

Waste from commercial premises such as shops, offices and restaurants might well be described as "similar" to household waste. But most of it is excluded from the UK definition of municipal waste. Local authorities collect 26 million tonnes of waste per year in England and Wales, all but two million tonnes of which is household waste (ENDS Report 269, pp 17-18 ). The figure excludes well over 10 million tonnes of waste from commercial premises which is collected independently.

However, the Department of the Environment, Transport and the Regions (DETR) insists that the targets will apply only to municipal waste defined in the more limited sense - 26 million tonnes in England and Wales rather than around 40 million if trade wastes were included. In May, a DETR official restated this view when addressing a workshop on the Directive jointly hosted by the Institute of Wastes Management and the Environmental Services Association.

It is difficult to see any environmental justification for distinguishing between waste on the basis of who collects it - which in essence is the DETR's proposal. Indeed, a recent report on the Directive by the House of Lords Select Committee on the European Communities took issue with the DETR, concluding that "it is sufficiently clear from a reading of the Directive as a whole that the definition is not confined to waste collected by local authorities" (ENDS Report 278, pp 26-28 ).

A parallel which is not in the DETR's favour is to be found in the 1989 Directives on municipal incinerators which define municipal waste as "domestic refuse, as well as commercial or trade refuse and other waste which, because of its nature or composition, is similar to domestic refuse" - very similar wording to that in the landfill Directive, if a little more specific. Last year, the Environment Agency obtained a legal opinion that segregated packaging waste from non-household sources should be considered "municipal waste" under the incineration Directives - thus effectively preventing cement kilns from burning the material since they could not comply with incinerator emission standards (ENDS Report 275, pp 13-14 ).

Meeting the targets
It is worth comparing the biodegradable waste targets with the non-statutory targets set by the Government in the 1995 White Paper Making Waste Work. These included composting one million tonnes of household waste by 2001, recycling 25% of household waste by 2000, and recovering value from 40% of municipal waste by 2005.

This package is not far out of line with the Commission's original proposal to reduce biodegradable municipal waste landfill to 50% of arisings by 2005 - except for the obvious difference that, unlike the UK targets, the EC's will have statutory force. The Government has now given up hope of meeting the year-2000 recycling target, and the fate of the 40% recovery target hangs in the balance pending the outcome of the waste strategy review.

Despite the poor progress, however, the UK is already more than half-way towards meeting the first target in the landfill Directive. Martin Nesbitt of the DETR told the IWM/ESA workshop that around 14% of biodegradable municipal waste is currently composted, recycled or incinerated; only another 11% needs to be diverted to achieve the 75% target.

Also addressing the workshop, Terry Coleman, the Environment Agency's Waste Strategy Manager, estimated that around half of "municipal waste", using the UK's definition, is "biodegradable" - principally putrescibles from kitchens and gardens plus waste paper and cardboard. He therefore projected that around 13 million tonnes of biodegradable municipal waste is produced annually in England and Wales, around 11 million tonnes of which is currently landfilled.

On the basis of these figures, meeting the 75% target means diverting only an extra 1.25 million tonnes of biodegradables from landfill. But the 50% and 35% targets will require fundamental changes in waste management practice. The 35% target places a cap of 4.5 million tonnes on landfilling of biodegradable municipal waste. Assuming no further growth in arisings, some 6.5 million tonnes which are currently landfilled will have to find a new home over the next 20 years.

Composting vs incineration
Separate collections of putrescible waste for composting or anaerobic digestion are likely to provide part of the solution. Indeed, in reaching their common position on the Directive, Environment Ministers issued a statement that attainment of the targets "could be facilitated by implementing an EC instrument on composting."

The targets were inspired by experience in countries like Germany, the Netherlands and Denmark where many householders are required to segregate putrescible waste for separate collection. Germany, for example, now has composting capacity to treat around 6 million tonnes of waste per year - which comes in addition to home composting.

A recent report prepared for the European Commission to inform its plans for a composting Directive estimated that the UK produces around 9 million tonnes of "recoverable" organic municipal waste per year. But a major obstacle, if composting is not simply to be a landfill pre-treatment, would be to find an outlet for the compost (ENDS Report 274, pp 24-28 ).

Next comes paper recycling. The household waste stream contains some 5 million tonnes of paper, but only around a tenth is currently recycled. Pressure on publishers to increase the recycled content of newsprint could see big increases in the recovery of household waste paper (ENDS Report 277, p 16 ). And if the packaging regime is to be refocused on household waste in line with Ministers' desires, it may also pull some waste paper and board out of the household waste stream.

Finally, the Government has signalled that it expects a "significant", though not "rapacious", increase in incineration (ENDS Report 279, pp 28-29 ). If incineration was the sole mechanism for meeting the targets, some 13 million tonnes of new capacity - maybe 50 plants - would have to come on stream in England and Wales over the next 20 years. But the eventual balance between incineration, composting and recycling will depend on a mixture of local politics, Government policy and, given that local authorities will prefer low-cost solutions, market forces. The biggest question of all is: how will the Government transpose the targets into UK law?

Quotas or tradable permits?

The Government is showing interest in the idea of tradable permits to meet the biodegradable waste targets. Discussions at the recent workshop cast little light on how these might work, but the DETR will consider the policy options during its review of the waste strategy. It hopes to consult on the implementation of the targets later this year, in advance of a separate consultation on the rest of the Directive.

An alternative to tradable permits, also discussed at the workshop, would be for the DETR to issue quotas to local authorities. But Ministers are likely to be reluctant to take this route since intricate central planning fits uneasily into existing relationships between Whitehall and local government. In addition, such allocations may prove to be a political minefield, leaving Ministers exposed to local protests. In contrast, tradable permits have the attraction of translating policy into practice without Ministers having to take the decisions.

But it is questionable whether the UK needs to impose biodegradable waste limits on landfill sites at all. Instead, it may be sufficient to devise a strategy, perhaps centred on phased increases in the landfill tax, to foster the development of alternative options. The forthcoming national waste strategy is likely to offer a package of policies, linked to a new regional waste planning framework and joint municipal waste strategies, to achieve a substantial increase in recycling and recovery.

A fundamental problem with quotas or tradable permits is that it would be necessary to quantify the amount of biodegradable waste arriving at each landfill. Compiling reliable statistics at a national level will be tricky enough - requiring landfill operators or councils to analyse refuse samples and estimate the biodegradable fraction of incoming material, and auditing their results, may prove a nightmare.

An alternative approach might be to issue permits for landfilling municipal waste of any kind. Restricting municipal waste landfill in this way might help to reduce biodegradables in landfill as part of a wider strategy.

Problems with permits
For a tradable permit regime to work effectively, a waste business planning to stick with landfill would need to buy permits from another company preparing to invest in non-landfill infrastructure. The theory is that the market would find the most cost-effective means of meeting the targets. A business securing a contract to build a new incinerator or composting plant, say, might be issued with permits which it could sell to landfill contractors elsewhere in the country.

But there are problems with tradable permits. Large sums of money would be changing hands, with the danger that - in line with early experience under the packaging regime - some of the funds might simply create unintended windfall profits (ENDS Report 277, pp 17-19 ). Incineration businesses are destined to earn substantial sums from selling packaging waste recovery notes (PRNs) this year with little prospect of the cash being invested in new recovery capacity.

Rather than issuing permits to contractors, it might be more straightforward for local authorities to trade them directly. An urban council investing in incineration, say, could sell its landfill permits to a rural authority which chose to stick with landfill. But would council taxpayers in Cumbria take kindly to financing waste disposal services in London so transparently?

Trading in inertia
In any event, there is every danger that the process of permit trading would get hopelessly bound up in the already long-winded tendering and planning procedures. It is difficult to see how a market in landfill permits would ever gain sufficient momentum when councils or their contractors would only be in a position to complete the purchase or sale of a permit after they had passed the normal tendering, financing and planning hurdles - a process which typically takes several years.

A more strategic concern is that, if permits succeeded in moving waste away from landfill, they might prevent innovation in later years. Since waste disposal contracts tend to run for 10-20 years, permits would have to be allocated over this period straight away - otherwise nobody would be able to sign long-term contracts.

However, if in the meantime markets for compost or waste paper improve - making a non-incineration strategy financially attractive - it would be too late to benefit from the permit system. The funds would already have been allocated to long-term incineration contracts - in a "dash to incineration" of the kind which Environment Minister Michael Meacher complained the original EC proposal would precipitate.

An end to co-disposal
Complying with the controls on biodegradables might look tricky, but at least the deadlines are some way off. In contrast, the ban on co-disposal must be implemented by 2004 - and will apply to new sites from 2001.

From 2002, Member States will have to classify which existing sites are to continue taking hazardous waste. There will then be an immediate ban on landfilling liquid wastes in hazardous waste sites, followed in 2004 by the full ban on hazardous waste co-disposal.

All hazardous wastes will then have to be confined to "monofill" sites - a term which has gained pejorative overtones in the UK because they lack the biodegradation and flushing processes which, co-disposal proponents argue, permit wastes to stabilise in the long term.

The only exceptions to the ban on co-disposal, in its widest sense, are that:

  • Mixing of different kinds of non-hazardous waste can continue.

  • Liquid wastes can continue to be disposed of at existing non-hazardous sites until 2009.

  • Solidified or vitrified hazardous wastes can be mixed with non-hazardous waste - as long as the leaching behaviour is "equivalent" to that of non-hazardous waste and there are no biodegradable materials in the landfill cell.

    Market opportunities in hazardous waste
    The switch away from co-disposal is likely to create substantial market opportunities for businesses offering industrial waste treatments such as solidification, fixation, incineration, or fuel blending for cement kilns. But the higher costs will also stimulate a new interest in industry in waste minimisation and on-site treatment before material is consigned for disposal.

    It is too early to predict the outcome of these processes. Many waste contractors will be wary of investing heavily in new treatment facilities, given the over-capacity which has dogged the industry for years. The market looks fairly risky - but with large potential rewards for businesses which invest in the right facilities at the right time.

    Adding significantly to the uncertainty, it remains unclear what levels of pre-treatment will be required before wastes can be accepted at hazardous waste landfills. By "hazardous waste", the Directive means wastes on the EC's hazardous waste list - which in UK terms includes most of the materials classified as "special waste". But Annex II of the Directive, which sets out the acceptance criteria, states ambiguously that hazardous wastes should not be accepted for landfill without prior treatment "if they exhibit total contents or leachability of potentially hazardous components that are high enough to constitute a short-term occupational or environmental risk or to prevent sufficient waste stabilisation."

    Big decisions yet to be taken
    In fact, the Directive leaves the detailed acceptance criteria to be thrashed out by a technical committee of Member State representatives by 2002. Pending the completion of this work, the current version of Annex II states that acceptance criteria are to be set using lists of wastes defined "as far as possible" using standardised waste analysis methods and limit values. The properties to be considered include organic content, biodegradability, leachability and the ecotoxicity of leachate.

    The technical committee will reach decisions by majority vote - leaving plenty of scope for the UK to be left in a familiar minority position. Controversially, the committee process opens the way for tighter controls on biodegradable waste in non-hazardous landfill sites should a majority of Member States desire them. But the process will also determine the acceptance criteria for hazardous waste landfills.

    Until common EC criteria are agreed, it will be difficult to predict the amount of pre-treatment infrastructure required for hazardous wastes. Equally, the debate over the environmental risks of monofills is a little academic until it is known what will be permitted in them.

    At one extreme, the acceptance criteria could demand so much pre-treatment that hazardous waste landfills will in fact be safer than non-hazardous waste sites - with the possible downside of wasting financial and environmental resources in the process. At the other, if the criteria are too weak, hazardous waste sites might indeed turn out to be the "ticking time bombs" warned of by UK advocates of co-disposal.

    National lists
    Alongside the deliberations of the EC technical committee, the UK will have the opportunity to draw up its own acceptance criteria for landfill sites. Annex II calls on Member States to develop "national lists" of waste to be accepted or refused at each class of landfill, or to define the waste analysis methods and limit values to be used when drawing up site-specific lists.

    It is possible that debate in the technical committee could extend for many years. But the co-disposal ban must be implemented by 2004. The UK authorities will be under pressure to draw up interim national guidelines well in advance of the deadline so as to permit a smooth but speedy transition in industrial waste management practices - and ensure that new monofill sites do not pose unacceptable environmental risks.

    In addition to technical criteria on wastes which can or cannot be accepted for landfill, the Directive imposes a deceptively straightforward requirement that all wastes must be "subject to treatment" before landfilling. But the pre-treatment rules, originally intended to mirror French legislation, have been all but fatally wounded by UK negotiators:

  • The definition of treatment is so broad that compaction is almost certainly included. It includes processes that "change the characteristics of waste in order to reduce its volume or hazardous nature, facilitate its handling or enhance recovery."

  • The requirement does not apply to inert waste for which treatment is not "technically feasible".

  • It does not apply to any other waste for which "treatment does not.reduce the quantity of waste or hazards to human health or the environment."

    In many cases, pre-treatment might be conducted by the waste producer - by sorting or compacting materials, for example. In others it will take place by compaction inside a refuse vehicle. Nevertheless, the situation poses an entertaining problem for the DETR which, though anxious to take full advantage of all the loopholes available, must nevertheless find a way to transpose the pre-treatment requirement into UK law.

    One possible solution raised at the workshop would be to amend the "duty of care" regime to include a declaration on transfer notes stating whether waste has been pre-treated. Such a declaration might also ask whether producers have examined opportunities for sorting, recycling, stabilisation and the like.

    Landfill permits
    At first sight, the rules on landfill site permits appear closely to mirror the UK's licensing regime. But there are important differences which raise the possibility of quite significant modifications to UK law and guidance. Since these must be implemented by 2001 for new sites, the DETR and the environment agencies are likely to see this as a priority. In parallel, they will have to develop guidance to operators of existing landfills.

    One area of confusion for the agencies is whether they will now have to bring landfills under the new integrated pollution prevention and control (IPPC) regime, as they have been proposing. The landfill Directive states that by fulfilling its requirements Member States will be deemed to have fulfilled the "relevant requirements" of the IPPC Directive - signalling that most of the provisions of IPPC will not apply to landfills. But there is likely to be an overlap of a year or two between the implementation of IPPC and transposition of the landfill Directive into UK law.

    Other areas of interest include:

  • Financial provisions: The landfill industry has been engaged in a bitter dispute with the Environment Agency over its interpretation of a requirement in the Environmental Protection Act 1990 that applicants for licences will not be deemed "fit and proper" unless they are willing to make financial provision to discharge their licence obligations. The Agency has interpreted this legislation, and the Government's accompanying guidance, very strictly to require operators to set aside six- or seven-figure funds in escrow accounts or bonds.

    The Directive probably signals an end to this dispute and a victory for the Agency, since it requires "adequate provisions, by way of financial security or any other equivalent," to be made by the applicant prior to disposal operations. The security is to be kept as long as required to satisfy the permit-holder's obligations on maintenance and aftercare.

    However, to transpose these rules directly into UK law it may be necessary to modify the 1990 Act to make it more prescriptive. More controversially, the rules must be applied to existing sites by 2009 - supporting another of the Agency's ambitions (ENDS Report 269, pp 34-35 ).

  • Closure and aftercare: The 1990 Act bars the agencies from accepting the surrender of a licence until they are satisfied that the site is "unlikely to cause pollution of the environment or harm to human health." The Directive expresses things slightly differently: "for as long as the competent authority considers that a landfill is likely to cause a hazard [our emphasis] to the environment, the operator of the site shall be responsible."

  • Landfill gas controls: The Directive requires gas to be collected from all landfills receiving biodegradable waste. Where the gas cannot be used to produce energy it must be flared. This will necessitate major investments in the UK, since only 160 out of 499 landfills accepting "significant amounts" amounts of biodegradable waste currently have gas flaring or utilisation equipment (ENDS Report 274, pp 33-35 ).

  • Leachate controls and lining: The Directive also imposes stringent requirements for leachate collection on all landfills, except for those taking inert waste. And it prescribes that a geological barrier and bottom liner are required of certain minimum thicknesses and permeabilities. These rules mark a major change in emphasis from the risk assessment approach which has been developed in the UK and is enshrined in Government guidance. However, the Directive offers some room for manoeuvre. It says that the conditions on lining and leachate collection may be waived if a risk assessment shows them to be unnecessary.

  • Conditioning plans: Operators will have to prepare conditioning plans by 2002 to explain how they intend to comply with the Directive. The environment agencies will then have to decide whether the operations may continue, and "take the necessary measures to close down as soon as possible" sites which do not comply.

    Where a site is not to be closed, the agencies will have to fix a deadline for implementing the plan - with a final deadline of 2009 for all sites to be in full compliance.

    The DETR's Martin Nesbitt told the workshop that the UK had pressed for an earlier deadline for existing sites. He said that Ministers are likely to want the agencies to act before 2009.

    These plans need to be viewed in the context of the UK's licensing regime. When this was implemented in 1994, it was anticipated that existing licences would soon be revised in line with current standards. Ironically, the creation of the environment agencies, and their efforts to establish nationally consistent regulatory practices, have delayed work on revising licences. The Environment Agency has now issued a library of standard licence conditions, but it has yet to agree a programme for revision of existing licences.

    History may well record that it was EC legislation which pushed the UK into modernising its waste management practices. The Directive's controls on biodegradable waste will force the UK into an investment in recycling and recovery infrastructure which, though promised in Government targets since 1990, has yet to take place. Similarly, the Directive will oblige regulators to bring gas and leachate pollution controls up to date at existing landfills - ensuring a much-needed level playing field in the industry.

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