Laura Tainsh: Ban on biodegradable municipal waste going to landfill is a progressive step

One the Scottish Government’s flagship climate change commitments of imposing a ban on biodegradable municipal waste (BMW) going to landfill from January 2021 was recently delayed. Environment Secretary Roseanna Cunningham decided to postpone the ban until 2025 after it became clear from independent research that a number of councils and commercial operators were not ready.

Laura Tainsh is a Partner, Davidson Chalmers Stewart

Some local authorities and landfill operators did rush through costly investment decisions to meet the initial deadline. Clackmannanshire Council, for example, contracted to have its BMW shipped to Sweden to be incinerated. At the time of signing the agreement, the central Scotland local authority cited it as a ‘short term solution’ to the impending ban they believed to be coming into effect in 2021.

Meanwhile, some landfill operators also made decisions not to invest in the development of potential void space on their sites with the ban expected in 2021. Scotland may now find that despite the delay, there is less landfill opportunity than is required in the interim.

Looking to 2025, there are still huge challenges remaining if the Scottish Government is to hit its revised BMW ban target date.

From a legal perspective, details need to be set out on a form of collaborative procurement to bring together the banned waste materials from local authorities which don’t yet have an alternative solution. While some, including local authorities in the Aberdeenshire area, have already collaborated, it is fairly unusual for central government to lead on procurement measures.

Changes to the Scottish Landfill Tax (SLFT) regime are also required to further discourage landfilling of banned waste materials prior to the ban being implemented. There are already substantial issues with the operation of SLFT, particularly for landfill operators. Further changes must be carefully considered to avoid Scottish landfill simply being pushed over the border into England due to it becoming significantly more costly.

The Scottish Government is currently working out the interim measures that can be imposed between now and 2025 to ensure a transition away from landfill leading up to the 2025 ban.

Another key challenge for both government and industry is getting the right infrastructure in the right places by 2025. This includes investment in energy infrastructure for waste and anaerobic digestion to limit the need to export landfill to other countries. Resource management company Suez Group estimates that, at a UK-wide level, getting the right infrastructure in place would cost billions, suggesting costs could run into the hundreds of millions in Scotland alone.

The ‘centrally coordinated intervention’ which the Scottish Government has called for will also need to be suitably resourced. This should include support in bringing together all those local authorities which do not have a viable option to comply with the BMW ban to help them procure a solution.

Data relating to UK waste remains is another issue. While this is being addressed in the longer term by the development of a new waste data tracking project, this is unlikely to provide the necessary data analysis to assist with the implementation of the ban.

There is also much work to be done around the testing regime which determines whether waste constitutes banned material under the legislation. SEPA has been working on this, alongside the waste industry, for some time but there appears to be restricted resource available to complete the exercise.

Even with appropriate infrastructure and systems in place, running a landfill site is likely to remain hugely challenging in the longer term, with many operators struggling with compliance issues and engagement with SEPA. These bring increasing costs while income derived from landfill gas will fall with less BMW being tipped in future.

Despite these setbacks and the challenges to both government and industry, the ban on BMW going to landfill is a progressive step to be welcomed. Although it is now due to take effect four years later than initially intended, it should significantly benefit Scotland’s environment and reduce carbon emissions.

While preparing for the new 2025 implementation date, additional focus must also go towards allowing for waste minimisation measures, including the deposit return scheme and food waste action plan, to help in reducing the volume of potential landfill waste.

Given the economic and environmental cost of transporting waste and ever-increasing challenges to exporting it, the more waste treatment and disposal Scotland can deal with domestically, the better for all of us.

Laura Tainsh is a Partner, Davidson Chalmers Stewart