Frustration mounts over DEFRA's plans for co-disposal ban

With the ban on co-disposal less than three months away, senior waste industry executives are barely containing their anger over the Government's non-committal approach to implementing the EU landfill Directive. Uncertainty as to the waste acceptance criteria for hazardous waste sites has made it impossible for companies to plan investment in new facilities - and despite an Environment Department (DEFRA) statement at the end of March there remain important issues to resolve. Meanwhile, permits have been issued to only five merchant hazardous waste landfills.

From 16 July the time-honoured UK practice of "co-disposal" - the tipping of hazardous waste and biodegradable refuse in the same landfill - will be banned under EU legislation that was agreed in 1999. Instead, hazardous waste will have to be pre-treated and deposited in special landfill sites or, if stable and non-reactive, in dedicated "mono-cells" at ordinary landfills.

But the waste industry's plans for new treatment and landfill capacity have been delayed while the Government decides how to apply the EU rules - known as the waste acceptance criteria (WAC). Critically, these criteria will determine the level of pre-treatment required before hazardous wastes can be consigned to landfill sites.

The 1999 Directive required Member States to define national WAC on an interim basis, pending agreement between Member States on a set of EU criteria. For most countries, having already banned co-disposal, this meant sticking to the rules already in place.

However, the UK had very few existing mono-fill landfills - and no national rules in place for their regulation. The Government decided it would be inappropriate to set UK criteria only to have to change them once the EU rules were agreed. It therefore opted to wait and see what would come out of the EU negotiations. In the event, these negotiations dragged on to the end of 2002 (ENDS Report 336, pp 50-51 ).

To industry's dismay, it took a further 15 months for DEFRA to announce its plans for implementing the EU criteria. With less than four months to go before the ban on co-disposal, landfill operators remained unclear whether the WAC were to be applied in full in July 2004 - to coincide with the ban - or in July 2005. In the end, DEFRA opted for the latter.

One of the reasons it has taken DEFRA so long to finalise its proposals on implementing the WAC is that it has had to chart a difficult course between lobbying from the chemicals sector - which wanted to set weaker criteria where landfill sites pose minimal risk to groundwater - and the waste management industry which wanted the acceptance criteria set on a consistent national basis so as to provide a clear framework for planning investment in new facilities (ENDS Report 331, pp 27-30 ).

Capacity crisis
In the absence of a clear regulatory framework, the waste sector has been unable to make reliable predictions concerning demand for particular categories of waste treatment. Last December, the Government's Hazardous Waste Forum called on Ministers to make contingency plans, including emergency storage capacity (ENDS Report 345, pp 18-21 ). But there is so far little sign of such preparations.

The Agency is processing landfill permit applications under the pollution prevention and control regime. By late April it had issued permits to five sites planning to operate as merchant landfills for hazardous waste. It expects to process the other seven permit applications it has received by July.

However, of these 12, only five or six are planning to accept a wide range of wastes. Moreover, none is in Wales or the West Midlands. There is only one in the South East - a region which generates over one million tonnes of hazardous waste each year, much of it contaminated soil from brownfield development.

The Agency has also received 30 applications from landfill operators to construct separate "mono-cells" to take stabilised hazardous waste at non-hazardous sites. Two have been rejected.

As with dedicated hazardous waste landfills, the majority of mono-cell applications relate to sites in northern England and the Midlands with none in Wales or the South East. However, there are sites proposed near Plymouth, Salisbury and Bicester, and as well as four Shanks sites in the Milton Keynes and Peterborough areas.

Applications have been made by most of the major landfill operators including six from Shanks, five from Viridor and four from both Biffa and Waste Recycling Group. Another two are from Cleansing Service Group.

Meanwhile, Minosus' proposed underground storage facility at Winsford in Cheshire suffered a setback in February when a local resident launched an appeal against the permission granted the previous month by the Secretary of State. Had this new challenge not been made, the facility could have come on stream by the end of the year.

Worried about a potential rise in illegal disposal and fly-tipping, and aware that many smaller waste producers know nothing about the approaching ban, the Agency tried to raise the issue's profile in March by issuing a report on hazardous waste accompanied by a warning that it would crack down on illegal activity.

"Many businesses are unaware that they have a legal duty of care to ensure that they pass on their waste to a legitimate waste carrier, and could end up in the dock themselves if their waste is subsequently fly-tipped by unscrupulous criminals," said chief executive Barbara Young.

Barely contained anger
But the waste industry is growing impatient at the Government's delay in issuing clear guidance on pre-treatment and waste acceptance and at the speed with which the Agency is processing permit applications. Many waste industry figures spoke with barely contained anger when describing the situation at a recent conference organised by letsrecycle.com.

Those sites which have submitted or been granted permits for hazardous waste landfills or mono-cells would not be able to provide "anything like enough capacity," Cleanaway's Gill Weeks, chairman of the Forum's capacity and arisings task force, told delegates.

Shanks' Patrick Pointer claimed that the Agency's permitting teams are "in disarray" and that "typically...when it doesn't know what to do, it usually does nothing." But the Agency's head of waste strategy, Martin Brocklehurst, said the issue "is of the highest priority" and decisions on permitting all mono-cell applications would be made by July.

The Agency's head of hazardous waste policy, Roy Watkinson, said it is "probable a lot more mono-cells will come forward." But Mike Walker of the Environmental Services Association said mono-cells were not being built because of uncertainty about what will count as "stable and non-reactive hazardous waste" and in areas such as engineering requirements (ENDS Report 348, pp 14-15 ).

The Agency appears optimistic that there is significant scope for waste minimisation programmes to reduce the amount of hazardous waste - particularly contaminated soil.

But neither the waste industry nor the chemical sector - a major producer of hazardous waste - seem to share this view. "Waste very rarely gets onto the boardroom agenda of chemical companies," according to Shanks' Ross Hilliard.

Nick Hornsby, who sits on the Chemical Industries Association's environmental advisory group, claimed there was little scope for waste minimisation at most chemical companies. Many, like his own, Akcros, have "no intention" of storing hazardous waste on site because they are not licensed to store waste. They expect their waste management contractor to deal with the problem.

Whitehall strategy
Extra resources have recently been allocated to deal with hazardous waste within DEFRA. Mirroring the creation of the "waste implementation programme" to help local authorities meet their targets on household waste recycling and diversion of biodegradable municipal waste from landfill, the Department has set up a "landfill and hazardous waste implementation programme" - spearheaded by consultants from Deloitte - to take forward the Hazardous Waste Forum's action plan and implementation of the landfill Directive.

The LHIP also aims to ensure that adequate waste capacity will be available in the "medium term" - suggesting, perhaps, that it accepts there will be a shortage of capacity in the next few years.

The landfill Directive implementation strategy has also caught the eye of the Cabinet Office Better Regulation Task Force, representatives of which are giving industry but not DEFRA a sympathetic hearing on the matter.

At the recent conference, Cleanaway's Gill Weeks said that the Government must now start work on the contingency options. Wastes could be stockpiled on customers' premises or in warehouses with fast-tracked site licences. Some could possibly be exported for recovery, while some brownfield development could be put on hold, leaving contaminated soil in situ. More hazardous waste could be burnt in cement kilns if the Agency were to relax operational standards (see pp 43-44 ).

Another option, said Mr Pointer, would be for the Agency to relax the rules governing the rate at which landfills could take in hazardous waste, but "how long will it take to fill them up?"

Some senior waste industry figures do not foresee widespread treatment or landfill capacity shortages, but anticipate problems for certain waste streams.

But Ms Weeks urged Government and industry to grasp the nettle. "We have to start talking about this and engaging with waste producers. The Agency and DEFRA have been - but not openly. Time is desperately short. It really is the train heading for the brick wall."

By delaying the introduction of the acceptance criteria until a year after the ban on co-disposal, DEFRA is running the risk that unscrupulous brokers and other businesses will secure disposal routes for hazardous waste by labelling it as "non-hazardous", warned Castle Environmental's Roger Hewitt. With industrial firms reluctant to store waste on their premises, "malpractice will be rife. It's time we saw some action from the Government and the Agency to encourage investment."

DEFRA's Ray Alderton was unsympathetic. He said the waste industry has known that co-disposal would end in July 2004 since 1999 and guidance on pre-treatment has been on the Agency's website since 2001.

But Ms Weeks said the waste industry had also "known" that the hazardous waste regulations - "for which we're still waiting" - would come into force in 2002 and some firms had set up fledgling businesses in anticipation.

"As an industry we've completely lost confidence in decisions being made in time."

Row over the deadline
A key issue in DEFRA's WAC consultation paper last September (ENDS Report 345, pp 44-45 ) was whether to implement the WAC in July 2004, thereby coinciding with the ban on co-disposal, or whether to apply them one year later - the latest point permitted under the EU decision.

Fifty-five organisations responded to the consultation paper. Thirty-three were waste producers and their trade bodies, and nine were waste management businesses.

Waste producers overwhelmingly supported the Government's preferred option of implementation in July 2005. This would allow the most time to get treatment capacity in place and help to avoid the need for storage of untreated hazardous waste. "The view was also expressed that an earlier implementation than necessary would be 'gold plating'," says DEFRA.

By contrast, the waste sector called for the implementation of the WAC to coincide with the ban on co-disposal. There are concerns that unscrupulous operators will seek to take a wide range of wastes during the interim year, overwhelming the capacity of their sites to absorb contaminants.

The Environmental Services Association said that a single implementation would avoid such "waste tourism". It foresees "extreme difficulties" in the interim year as hazardous waste landfills could end up receiving essentially untreated waste while cells within non-hazardous landfills will have to incur the costs of stabilising the hazardous wastes they accept - resulting in "significant market distortions".

Some waste management companies accepted that a July 2005 deadline would give more time to get treatment facilities up and running, but they went on to emphasise that implementation should coincide with the ending of co-disposal.

Indeed, three waste firms implied that the co-disposal ban should be put back to July 2005. One suggested that the risk of EU infraction fines should be balanced against the cost of there being no disposal routes for hazardous waste.

 Co-disposal sites win reprieve
After July, it will be illegal to deposit hazardous and non-hazardous waste in the same landfill cell. However, the landfill Directive does not prevent landfill operators from depositing hazardous waste at co-disposal sites which have previously accepted non-hazardous biodegradable refuse.

In the consultation paper, DEFRA proposed taking advantage of this loophole during the interim year between the co-disposal ban and the implementation of the WAC. Hazardous wastes would be accepted in accordance with a loading rate set by the Environment Agency on a site-specific basis. Many co-disposal sites already have loading rates for particular substances, such as heavy metals.

The proposal met with general support, and DEFRA says that the Agency will now be expected to set loading rates for new waste deposits at former co-disposal sites during the interim year.

Surprisingly, however, it has also decided to continue with this policy beyond July 2005. DEFRA had previously signalled that after July 2005 hazardous waste would only be permitted in separately engineered mono-fill sites.

The full implications of the decision are unclear, because it will depend on take-up by industry. The option will only be available where former co-disposal sites comply with the landfill Directive's hazardous waste site engineering requirements.

Most landfill businesses have allocated most of their void space to the larger biodegradable waste stream, and therefore cannot afford to switch solely to hazardous waste operation. But hazardous waste operation might make commercial sense at former co-disposal cells with little remaining capacity.

Compromise on risk assessment
The EU decision allows Member States to weaken the leaching limits set out in the WAC by up to a factor of three where a site-specific risk assessment shows there is no risk to groundwater. DEFRA found itself open to accusations of "gold-plating" in suggesting that the scope for such risk assessments might need to be restricted.

Officials came under intense pressure from industry to adopt the risk assessment option as widely as possible. Companies in the chemicals sector were particularly keen to see the risk assessment option applied so as to keep a lid on waste management costs.

On the other side of the argument, the Environment Agency and much of the waste management industry were strongly opposed to widespread use of such risk assessments - not least because of the volume of technical work required for each landfill. Another important factor, however, is that a single set of limit values would provide the industry with the certainty it needs in order to invest in treatment facilities.

Among the downsides of the risk assessment option is that the market will be more difficult to regulate, since it will not be possible to assess whether a particular waste stream is in principle acceptable for landfill without also considering the particular landfill site. There would be difficult implications here for policing the "duty of care", as waste passes along the chain of custody from the producer to treatment and transfer businesses and the ultimate landfill operator.

The Agency told DEFRA that a wide variety of limits would increase difficulties in ensuring compliance. It pointed out that there is no mechanism for it to recover the costs of examining and approving risk assessments.

The Agency called for the option to be limited to waste streams with parameters that are particularly intractable and wastes with high levels of chloride and sulphate. The Agency also wanted the option to be time-limited, thereby providing industry with time to develop alternative treatment capacity.

In the end, DEFRA succeeded in navigating a course through this particular jungle which gives everyone a little bit of what they wanted. The risk assessment option will be available only to "individual waste streams destined to specific mono-fill sites". DEFRA is also sympathetic to the idea of making the risk assessment option time-limited, and it intends to revisit the issue within two years of the WAC's implementation.

It will be some months before the implications of this decision become clear. Much will depend on how liberally the Agency feels it can interpret the forthcoming statutory instrument which will amend the landfill regulations so as to give effect to the WAC - but this instrument had yet to be submitted to Parliament as of late April.

The stipulation that risk assessment can only be applied at "specific mono-fill sites" appears to rule out its use for cells of stabilised hazardous waste engineered in non-hazardous sites.

The new policy will be of some assistance to the beleaguered land remediation sector. The view within DEFRA is that the full risk assessment option will be available for many land remediation schemes - certainly those in which on-site engineered repositories are constructed for contaminated soils.

It is also likely that some of the merchant hazardous waste landfills in the pipeline will use risk assessments to show that they can accept soils with higher leaching limits than those specified in the EU decision. However, one of the most problematic parameters for polluted soils - the 6% limit on total organic carbon - cannot be weakened under the EU rules.

Another sector which is likely to take up the risk assessment option is waste incineration, for which the chloride content of air pollution control residues is a problem.

However, the policy is really designed primarily for the benefit of the chemical industry - particularly where companies operate in-house landfills. Using the risk assessment approach, they will be able to avoid investment in treatments which would otherwise have been needed.

A related decision is that the UK will not now apply tighter controls on mercury and cadmium - despite the fact that two years ago UK delegations to the EU technical committee were arguing that these were essential if contamination of groundwater was to be avoided. DEFRA is now saying that it will review the position after two years.

Uncertainty remains
The Government's statement on the WAC has at last delivered something approaching the clarity that has been sought by waste management businesses for some years. However, there remain important issues which have yet to be resolved - not least how to regulate monolithic - or non-granular - wastes.

An important example of such wastes are those which have been treated by mixing with cement prior to consignment to a cell for stabilised, non-reactive waste - an option which is likely to be widely adopted in the near future.

The leaching limits set out in the EU decision apply only to granular wastes; Member States are required to "set criteria for monolithic wastes to give the same level of environmental protection".

The issue of how to regulate acceptance of stabilised wastes is likely to necessitate a further amendment to the landfill regulations over the next year or so. Technical guidance from the Environment Agency is also in preparation. In the meantime, industry will face continued uncertainty concerning appropriate treatment standards.

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