What’s the difference between waste recovery and disposal? Gemma Essex, associate at Ashfords LLP outlines the differences and, more specifically, what those differences mean in terms of day to day operations in the sector
Pursuant to the UK’s environmental permitting regime, a person operating a regulated facility may be required to hold an environmental permit. Permits cover a wide range of activities including those that release emissions to land, air and water, or that involve waste. In terms of waste facilities, operators must assess the environmental impact of all available waste recovery or disposal methods.
So, what is the difference between waste recovery and waste disposal?! Pursuant to the Waste Framework Directive 2008 (the Framework), waste recovery is ‘any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function’. Effectively, waste recovery preserves resources through the use of waste in place of other raw materials.
Waste disposal on the other hand is defined as ‘any operation which is not recovery, even where the operation has as a secondary consequence the reclamation of substances or energy”. The Framework includes a non-exhaustive list detailing the types of operations which may constitute such disposals or recoveries.
The distinction between the two operations is crucial to operators, determining the environmental regulations they will face when carrying out their relevant regulated activities.
Waste disposal requires a ‘bespoke’ permit, as opposed to waste recovery, which requires a less onerous ‘standard rules’ permit. Under the environmental permitting regime, standard rules permits are granted for low environmental risk facilities and are conditional on standard rules for the relevant activity. Unlike standard rules permits, bespoke permits are granted for higher-risk facilities near sensitive areas (e.g. protected habitats). Bespoke permits are also conditional on a site-specific basis. Accordingly, site-specific assessments and consultations with relevant bodies are required in order to determine the operator’s particular permit conditions.
This of course means that a permit holder carrying out waste disposal operations will face higher costs and stricter restrictions and regulations than that of an operator carrying out waste recovery activities.
The Tarmac Case
The recent Court of Appeal judgment in the judicial review application of Tarmac Aggregates Ltd, R v The Secretary of State for Environment, Food and Rural Affairs [2015] considered the appropriate approach in determining the permitted operation.
The case involved the Court’s application of the Framework and its interpretation of waste disposal and waste recovery to the proposed restoration of a sand and gravel quarry in Northern England. The restoration was to be achieved by backfilling inert waste spoil from quarrying operations.
The operator applied to the Environment Agency for a standard rules permit to enable the use of the waste as backfill material. The Agency refused the application on the basis that the operator’s waste recovery plan did not amount to a waste recovery operation for the purposes of the Framework, but rather a disposal operation being subject to a bespoke permit.
On review of the applicant’s operation, the Secretary of State’s appointed inspector determined that the restoration amounted to waste disposal and that the activity did require the operator to obtain a more onerous bespoke permit. The applicant challenged the decision by way of judicial review and the question before the Court was whether the use of the spoil was a recovery or disposal operation pursuant to the Framework.
The Court found that the backfill operation should have been determined as a recovery operation within the Framework. Accordingly, the decision of the inspector was quashed and replaced with a determination that the Agency should issue a standard rules permit in relation to the restoration.
The Court highlighted the difficulty with categorisation under the Framework, as operations may fall into both recovery and disposal (the proposed use of waste in this instance could be considered both a deposit into land or ecological improvement by land treatment).
The basis of the Court’s decision hinged on the inspector’s error in his assessment on the facts. The Court was of the view that the inspector should have determined that the proposed restoration was a genuine function secured by planning obligations against the operator, irrespective of the material used to backfill. Substantial amounts of materials were required and primary materials would have been used in the absence of waste. As such, the proposed works were considered to have fulfilled the definition of “recovery” pursuant to the Framework, involving replacing other materials that would otherwise have been used.
The recent case highlights the significance and complexity in determining the principal objective of the proposed operation and its genuine useful purpose i.e. whether the use of waste is a genuine recovery operation or simply disposal. The Court’s approach also seems to support the view that the use of inert waste as backfill is more sustainable than the use of raw materials.
The Court’s findings emphasise the importance of ensuring operators have an understanding of whether their waste material operations are likely to be recovery or disposal activities under the Framework.
