24 Jan ESI Webinar Summary: “The Long Road to Recovery” – Recovery of Waste to Land

Cradle to Grave

We recently held another successful ‘Cradle to Grave’ Webinar, reviewing the tortuous path towards the newly published Environment Agency guidance on the recovery of waste to land. Delegates heard some revealing case studies and took away some important lessons.

Chris Berryman, Senior Consultant at ESI, was joined by Sharon Palmer, National Environmental Permitting Manager at Tarmac and Chair of the Mineral Products Association (MPA) Waste Working Group, to offer delegates insight on how mineral and waste operators should work their way through the new permitting requirements to demonstrate a case for the recovery of inert wastes to land.

Waste Recovery (as opposed to disposal) is clearly preferable in terms of the waste hierarchy. Many local authorities now implement zero landfill policies and major capital projects have strong environmental commitments to direct suitable wastes away from landfill. The option to recover certain inert wastes and deposit them at suitable sites has significant environmental, strategic and commercial benefits to UK PLC.

Prior to late 2015 the Environment Agency (EA) focused its assessment of inert material deposits on land through a series of five tests, including the benefit of the scheme that received the materials; its volume and suitability for the proposed purpose; the impact of substituting non-waste with waste; and the proposed standard to which the scheme would be completed.

These ‘tests’ were originally presented in EA guidance document RGN13, based upon legal tests derived from the Waste Framework Directive and European Case Law.

Methley Quarry – The Game Changer

Methley QuarryIn November 2015, however, the Methley Quarry Court of Appeal Judgement changed the game. Tarmac brought the case, seeking to challenge the EA’s and Planning Inspector’s decision making, on recovery permitting for a quarry restoration scheme in West Yorkshire.

From 2013 to 2015 ongoing appeals and a judicial review led the Court of Appeal to finally determine in Tarmac’s favour and required that the EA issue a recovery permit for the proposed scheme. It is also interesting to note that the EA itself said that in the context of its arguments at the Court of Appeal that it had erred in law in issuing the recovery permit for the major waste recovery project at Wallasea Island in Essex. The Court did not comment on this, however, the EA’s comment was reported in the Judgement (Para 44 of the Judgement).

The Judgement supported Tarmac’s argument that planning consent obligations should be the primary consideration in whether a recovery permit should be granted for the Methley site.

Since securing its recovery permit for the restoration of the Methley site, Tarmac has since completed restoration works and now applied to surrender the permit.

Five Tests Become Two

As a result of the Judgement, the EA has reviewed the 5 recovery tests approach presented previously in RGN13 and incorporated the Judgement into its revised guidance, which was quietly released in late October 2016.
It should also be noted that in Wales, Natural Resources Wales (NRW), has adopted the same guidance. Different arrangements currently apply however with SEPA in Scotland.

Five recovery tests were replaced by two:

  • Is there a statutory obligation to undertake the work? or
  • Would it be financially viable for the scheme to be completed using non-wastes?

An operator or applicant need only present a case to demonstrate that one of the two tests have been met.

The first test is likely to be the key for most future recovery decisions. An operator will need to demonstrate that a regulator (typically a planning authority) has imposed a legal requirement for the restoration of a site to be completed in accordance with an approved restoration plan. If this test can be demonstrated the EA is likely to consider the activity waste recovery.

The second test (which need not be considered if the first is demonstrated) is to demonstrate that it would be financially viable for a scheme to be completed using non-waste materials.

This test demonstrates that waste is being used as a substitute for non-waste materials. The evidential requirements are not well defined by the EA, but it will expect to see an appropriate level of detail for a particular scheme.

The EA will allow consideration of a recovery scheme in the context of a wider development, which allows the commercial viability of the scheme to support the case for recovery.

It can also be justified through financial viability via evidence of alternative (for example, external) funding in a limited number of schemes.

How will it Work?

Both presenters felt that the first test – statutory obligations to do the work – was more likely to be employed to justify recovery for the majority of schemes. Sharon felt that the key to this is the degree to which the local planning authority (LPA) is involved early in the scheme design process. It may also be advantageous for any planning consent to reference recovery (as opposed to disposal), or simply make no reference to waste at all (i.e. use terms such as “inert engineering fill” etc).

The new guidance details other criteria which will have to be demonstrated at the Waste Recovery Plan (WRP) and Permit application stages. Namely, that the waste to be recovered is suitable (chemically and physically); waste volumes are to be minimised; and works will be completed to an appropriate standard.

Permit options include:

  • Standard Rules Permits, if the volume of waste to be recovered is less than 60,000m3 (subject to site environmental setting); or
  • Bespoke Permit if waste volumes are greater than 60,000m3, or if the Site is considered to be in a more sensitive setting (subject to environmental setting screening).

The new guidance includes increased technical standards requirements for recovery schemes. This includes improved risk based monitoring schemes; possible (risk based) need for engineered containment; risk based gas assessment, and aftercare monitoring prior to surrender.

Orsett QuarryChris concluded the webinar by demonstrating how ESI had helped a client prove financial benefit to achieve a successful recovery permit outcome. Although dormant, Orsett Quarry in Essex had a ROMP permission for continued mineral extraction and restoration.

However, while dormant, sensitive habitats and protected species established themselves in the quarry. An adjacent area within the site was identified for the creation of an ecological park to relocate protected species/habitats. A recovery permit application for the use of inert material at the ecological park site was submitted to the EA to create wetlands and dry grassland.

After a year of deliberation, the EA issued a recovery permit after the financial test was justified. The economics of the wider quarry were argued as being so significant that they outweighed any cost incurred if the ecological park had to be developed using non-waste. This demonstrated that it would be commercially viable to use non-waste in the creation of the ecological park.

Conclusion

Methley created uncertainty across the industry for some 3 years, but with these two tests now in play, operators now have some clarity moving forward.

The clear message from the webinar was:

Consider the waste regulatory approach from the outset, particularly during planning as this may play an important role in being able to justify a case for recovery when it comes to permitting. Engage with the LPA and ensure that both planning and permitting are considered in tandem.

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