DEFRA faces judicial review over producer responsibility proposals

The recycling industry is considering taking legal action over proposals in DEFRA’s Extended Producer Responsibility (EPR) consultation on business waste that it believes are “anti-competitive” and will force successful recycling businesses into administration.

The recycling industry is considering taking legal action over proposals in DEFRA’s Extended Producer Responsibility (EPR) consultation on business waste that it believes are “anti-competitive” and will force successful recycling businesses into administration.

Simon Ellin, chief executive of the Recycling Association, said he would not rule out launching a judicial review against DEFRA if it presses ahead with plans to administer the regime with a new national compliance scheme. 

DFERA has come under increasing pressure in recent days over its EPR proposals, with the Environmental Services Association (ESA) this week warning they were overly complex and may drive undue costs. A consultation on the EPR proposals closed yesterday.

Ellin said his organisation supported the overall principles of EPR but that it was “hugely concerned” about what the business waste proposals will mean for many of its members.

Under the three options proposed by DEFRA, there would be intervention by the proposed scheme administrator in the market. 

In the most extreme parts of these proposals, commercial recycling and waste businesses would lose control of the material, according to the Recycling Association, while compliance schemes or the scheme administrator would handle the material, “despite having no expertise in doing this”.

"There is a very strong argument that waste management costs are currently dealt with by businesses as part of their day-to-day operations and it would make sense for this to continue in most circumstances. Rather than tearing up the existing system, we should make it more effective by legislating and regulating for businesses to separate materials in order to promote high quality recycling,” said Ellin.

“Business collections are already a mature and successful market that encourages innovation. It is not a broken system like household recycling that requires reform,” he added.

The Recycling Association is also opposing DEFRA’s proposals to create commercial zones for waste collection later this decade.

Ellin said: "We continue to believe that a free market approach is the best solution for efficient and sustainable collections. This allows for innovation, helping to keep costs low for producers and keeping successful recycling firms in business.”

Ellin told ENDS he hoped that DEFRA would take note of “the huge opposition to business payments and the anti-competitive practice of zoning/franchising” which “could literally wipe out tranches of SME recyclers”. 

“If stopping this meant considering a judicial review then I believe there is enough industry wide disquiet to support this,” he said.

Separately, wood recyclers have written to DEFRA outlining their concerns that 

proposed government targets for waste wood packaging will lead to a reduction in the amount of wood available for reuse and recycling in the UK.

The Wood Recyclers Association (WRA) and the Wood Panel Industries Federation (WPIF) claim that proposed low recycling targets for wood packaging will lead to valuable waste wood which could have been reused or recycled ending up in Chapter IV compliant biomass boilers.  

A DEFRA spokesperson said: “Our waste reforms are major pieces of work which require much coordination across the UK government, the devolved administrations and key industry stakeholders, which will also require new legislation, the appointment of new organisations to manage the schemes, and large-scale changes to the sector. 

“We are working very closely with industry and stakeholders on our reforms, and their feedback will be fully taken into account when we analyse the consultation responses before publishing next steps later this year.”

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