When waste “recovery” becomes waste “disposal”

Luke Prazsky, service director, waste resource management, Wardell Armstrong, looks at when waste “recovery” becomes waste “disposal”, saying the industry needs an even playing field and the previous regime “pulled the rug” from under inert landfill sites…

The permanent deposit of waste can be classified as either a disposal (D1) or recovery (R10) activity (as legally defined under the revised Waste Framework Directive). 

The essential characteristic of a waste recovery operation is that its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources, i.e. it is a genuine substitution and not sham disposal!

Only those sites that are classified and permitted as disposal activities are required to charge landfill tax on wastes being disposed (inactive wastes now £2.90/tonne). As a result, we saw a proliferation of these sites for restoration schemes up until a few years ago when we had the Methley decision at the end of 2015. Until this point the Environment Agency was happy to issue environmental permits for the deposit of waste as a recovery activity far more willingly. 

We are also now seeing a number of sites, that were permitted as recovery activities under the old regime, looking to extend, but facing the very real prospect of having to become a landfill site.

Accordingly, the number of new inert landfills being permitted was relatively low however, the rate of new permit applications for deposit for recovery sites has significantly dropped as a result of Methley, with the exception of existing landfills looking to complete their restoration early through the recovery route. 

We are also now seeing a number of sites, that were permitted as recovery activities under the old regime, looking to extend, but facing the very real prospect of having to become a landfill site. This presents several challenges, as recovery sites do not have the same permit conditions as a landfill, specifically for environmental monitoring, aftercare etc. 

Specifically, wastes already deposited will have to act as the geological barrier if they cover the area where additional waste deposit is proposed, and this may require significant testing to demonstrate they meet the required standard.

Furthermore, landfill permit applications need 12 months of background groundwater monitoring data to set groundwater monitoring emission limits which wasn’t previously required under the recovery permit. This has timescale implications for any site nearing the end of its currently permitted capacity. 

To meet the new challenges and remain as a recovery activity, operators need to be aware of the new rules as the Methley decision changed the game and moved the goalposts significantly. The bar is set much higher for demonstrating that there is an obligation and, for those sites that can’t meet this, the Environment Agency’s focus is now on whether the use of waste is a genuine substitution for non-waste. 

The obligation test is not met by simply having planning consent. The Environment Agency looks at whether the planning authority insists on specific aspects on a scheme – for Methley this was for the provision of a footpath across the site and the authority’s refusal to accept any alternatives. 

For a proposed quarry restoration project, they will also look at the original planning consent to see if there was an obligation and if that has been brought through in any subsequent planning consents. For an existing quarry that has seen low level restoration replaced with a higher-level restoration scheme there is very little chance that will have been driven by the planning authority. 

With regards to whether the activity is a genuine substitution, the simple question being asked is whether you would do it if you had to use non-waste? Does it stack up financially to use non-waste? A financial model is required to demonstrate this. 

And finally, do you have the funding in place? Even, if you have a financial model that says it is viable, if you haven’t got access to the cash, the scheme won’t happen and therefore the substitution with waste is not going to be genuine. 

With regards to whether the activity is a genuine substitution, the simple question being asked is whether you would do it if you had to use non-waste? Does it stack up financially to use non-waste? A financial model is required to demonstrate this. 

Assuming that the proposed wastes are good clean soils etc., we also have to demonstrate that the scheme uses the minimum amount of waste, i.e. can the same outcome be delivered using less waste? 

So, in summary, the operators of deposit for recovery facilities should not assume that because they have a recovery permit, they can necessarily easily extend their plans for a site without becoming a landfill.

I do broadly support the Environment Agency’s current approach as the industry needs an even playing field and the previous regime pulled the rug from under inert landfill sites. Many of these were mothballed or massively scaled back as a result, thus delaying their completion and the restoration of those areas of land. 

From an environmental point of view, I am also in favour of having some environmental monitoring of permanent waste deposits for completeness as we are custodians of the environment and should embrace our responsibility and take it seriously until we have proved there is no residual risk and the permit can be surrendered. 


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