Waste companies could face legal and commercial challenges as a result of regulations requiring separate collections for recyclable materials from 1 January 2015, according to a leading renewables lawyer.
Regulation 13.2 in the Waste (England and Wales) Regulations 2012 states: “An establishment or undertaking which collects waste paper, metal, plastic or glass must do so by way of separate collection.” (see document right)
Nick Churchward, partner in the energy and environment team at law firm Burges Salmon, told MRW this puts a statutory duty expressly on any collection contractor to carry out separate collections irrespective of what their collection contract might say.
The requirement applies unless it is technically, environmentally and economically practicable (TEEP) not to collect separately or unless it will not help to facilitate or improve recovery (Regulation 13.4(a)).
The duty on local authorities has been well documented, but few recent reports emphasize the potential for commercial and operational challenges against private and third sector entities actually collecting waste, according to Churchward.
He added: “It is not uncommon to have changes in law clauses in waste treatment and collection contracts, which might insulate a collection contractor from the costs of having to implement separate collections mid-way through a contract.
“But if your contract doesn’t have such a mechanism there is a risk that collection contractors will find themselves under a legal obligation to undertake separate collections even if their contract doesn’t say that and with no right to additional payment.”
Churchward said larger companiese are most likely to have provisions in their contracts, whereas small to medium enterprises are more at risk.
He added: “People have to examine the contracts that they entered into to see how this issue is dealt with.
“I suspect there may well still be a number of commercial level discussions going on between waste contractors and their customers.”
Churchward said it will be important for entities carrying out collections to seek joined up advice from technical advisers and legal advisers to ensure compliance with the regulations and assess where they will stand on 1 January 2015.
Nick Churchward on the key TEEP test
“A major problem with TEEP cases is that for every local authority there is likely to be a slightly different answer.
“There isn’t going to be a one-size-fits-all solution.
“The key TEEP test will be whether the changes can be made economically, because that is what people are ultimately concerned about.”
Nick Churchward on the recent Northern Ireland TEEP ruling
Bryson Recycling has warned councils they would be ‘ill-advised’ to rely on a recent High Court ruling that appeared to back commingled over separated collections.
But Churchward said: “It’s from an aggrieved recycler.
“Bryson Recycling claims that the legislation prohibits commingled collections after 2015. I don’t think that’s true – it only prohibits commingled collections if they don’t facilitate to improve recovery and if there are alternative solutions which are TEEP. It certainly doesn’t prohibit commingled collections.”
“If you are already doing things which satisfy the first ‘limb’ of the regulations [13a below], I’m not convinced that you then have to go on to look at TEEP.”
England Wales Waste Regulations 2011 as amended:
13. (4) The duties in this regulation apply where separate collection—
(a) is necessary to ensure that waste undergoes recovery operations in accordance with
Articles 4 and 13 of the Waste Framework Directive and to facilitate or improve recovery;
(b) is technically, environmentally and economically practicable.