Laura Tainsh: Be prepared for changes to waste management laws

Laura Tainsh is a Partner and waste management specialist at Davidson Chalmers
Laura Tainsh is a Partner and waste management specialist at Davidson Chalmers
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A number of significant policy and regulatory changes which govern the way we manage waste across the UK are on the horizon. One of the key measures to be implemented by the Scottish Government is a landfill ban covering all biodegradable municipal waste (BMW). The Waste (Scotland) Regulations 2012 inserted a provision in the Landfill (Scotland) Regulations 2003 prohibiting the acceptance of BMW at landfills from 1 January 2021.

There are sound reasons for reducing landfill disposals, such as the carbon emissions produced by this type of waste. However, there is still a lot of work to be done between now and the start of 2021 in order to make the ban work. SEPA has yet to make the necessary variation to existing landfill licences or permits to implement the legislative provision. Detailed technical guidance about precisely how banned material would be determined was only published in April 2018 and is still to be supplemented by additional guidance about the required biodegradability testing. SEPA is setting up a technical group, including members from across the industry, to devise further guidance on the necessary sampling and testing that will be required as a result of the forthcoming landfill ban.

The Scottish Government and SEPA are also still in the process of gathering evidence as to the waste industry’s readiness for the implementation of the ban. Despite some significant investment in new plant by developers, there remains an insufficient amount of energy from waste and other infrastructure within Scotland to deal with the expected increase of re-directed BMW waste materials from 2021.

Meanwhile, COSLA recently confirmed that a number of local authorities have yet to find or at least settle on an alternative to landfill disposal route for banned materials. At this stage the discussion is more focused around the feasibility of a collaborative procurement approach rather than a specific solution to deal with the influx of banned materials by another manner.

The Scottish Government has commissioned independent market research to give more clarity to some of the core challenges in implementing the BMW landfill band, including: the size of the capacity gap; the alternative options available to treat or dispose of banned materials (one of which involves sending such waste to England) and the financial impact of those various options on the Scottish economy. The publication of these findings is expected imminently.

From my own experience as a lawyer specialising in waste management, I am concerned that businesses that produce and dispose of waste materials in many key sectors remain unaware of the potential implications these changes could entail for planning, pricing and managing future projects.

Because the landfill ban only affects BMW materials, there is a feeling within some sectors - including construction and housebuilding which regularly and legally send waste materials to landfill – that these changes will have little direct impact. I do feel, however, that this assumption is incorrect.

With an estimated one million tonnes of material no longer able to be disposed of in landfill, many landfill operators fear their sites may become unviable and may have to close. If Scotland ends up with fewer landfill sites to access there is a high likelihood it would result in rising gate fees at the remaining sites and greater transport charges for operators to make disposals.

The forthcoming waste management legislation changes coming into effect in Scotland, including the landfill ban on BMW materials, must therefore be firmly on the radar of all businesses, regardless of which sector they are fall under. It is not only a legal and ethical responsibility for businesses to comply with the rules around waste disposal, it will soon be easier to trace those who try to circumvent the rules. DEFRA has announced the award of funding, under the GovTech Catalyst competition, for the design and implementation of data-tracking system(s) to keep more accurate tabs on all waste materials.

Businesses must consider the potential administrative and budgetary impact these regulatory changes could impose and begin to make suitable provisions. While more clarity is required from the Scottish Government and SEPA, it is important that companies begin to make suitable plans and put resources in place as soon as they are able to do so. January 2021 seems a ways long off now but, as ever, time is marching on.

Laura Tainsh is a partner and waste management specialist at Davidson Chalmers