Defining waste

As the Environment Agency publishes new draft regulations on the definition of waste, Peter Witherington looks at the impact it will have on redevelopment projects

hen the Environment Agency (EA) interpreted the European Waste Framework Directive to mean that any excavated brownfield materials (including straightforward ground-profiling exercises) could be classified as waste, significant choruses of dissent could be heard from within the development community.
The subsequent time-consuming, bureaucracy-laden manner in which this stance has been applied to industry has frustrated, confused and, occasionally - especially in relation to brownfield sites - forced redevelopment schemes to be abandoned entirely.
According to conservative figures from the House Builders Federation (HBF), around 74,800 on-site construction activities per year should require a waste permit or registered exemption under the current WFD definitions. Although this is clearly not happening, the possibility of implementation on this scale has the prospective developer quaking in their boots. Far from simply being a bureaucratic thorn in the side, a waste-management licence has the potential to cause a significant blight on property values (a recent Defra study estimated the detrimental impact to be anywhere between 12% and 40%).
NHBC figures suggest that there are 18,000 active housing developments in the UK; the HSE receives between 160,000 and 200,000 annual F10 notifications for construction activities that involve over 30 days or over 500 person days on site; and the DTI's construction statistics (2004) note that the combined public and private sector turnover is £77.5B in total and £30B for housing (excluding £40B for repair and maintenance). In other words, there's a lot of construction and house building going on - as per public demand - and time, for everyone from developers to buyers, is money.
Against this backdrop of uncertainty, disillusionment and frenetic development activity, the draft publication of the Environment Agency's (EA) new waste guidelines - developed as a part of the government sponsored Remediation Licensing Task Force (RLTF) - is a welcome respite. Addressing the concerns voiced by developers, the EA, in consultation with the HBF and SecondSite Properties, has shown a greater empathy for on-site construction mechanisms and has given an overt acknowledgement of the restrictive nature of the current situation. Their ambition can't be faulted and they estimate that the guidelines will reduce the number of required WFD permits or registered exemptions by 63%.
To put all this into a historical context, the EA and government departments have had a dialogue on these issues with the HBF and relevant industry sectors since 1996. As a part of these talks, the everything-is-waste mindset came about in the context of an Association of Geotechnical and Geoenvironmental Specialists (AGS) paper that identified the consequences of construction activities being brought into the Waste Management Licensing regime. Regardless of the thought processes behind that position, it is not one that has been thoroughly understood by the development community. In any case, regulators have not been applying the rules with any degree of consistency and, consequently, the majority of construction sites have continued in blissful ignorance of the requirements of waste permitting.

Clarifying issues
To a certain extent, the updated guidelines are a valiant attempt to remove some of the restrictions and to clarify issues of confusion. First and foremost in this respect (and contrary to the 2001 guidelines) the EA has suggested that contaminated soil with a suitable use on site may not be deemed as waste. Positively, this means that contaminated soil deemed to be suitable for use beneath a hard cover (ie concrete), and simple cover-layers applied to gardens and open space may not be branded as waste. This is a big deal because it would eliminate the need for a WFD permit for about 27,900 site activities. However, before developers begin rubbing their hands in glee, it should be noted that no concessions have been made to the European Court of Justice's Van Der Walle judgement, which states that all contaminated soil - irrespective of usability - is waste. While the UK government digests the implications of that judgement, the EA can only wait to see if they must change tack. This is an unwelcome element of uncertainty, perhaps, although it should not detract from the forward-looking nature of the EA's new position.
Another guideline that comes close in terms of scale is a notion to enable soils to be re-used for the purpose of producing suitably engineered soils, provided they pass a series of tests. If this were to transpire, the reuse of soil on 18,600 Greenfield development sites could fall outside of the WFD, edging the EA ever closer to their desired statistic.
Unfortunately, the remainder of the document appears to be somewhat lacking in vision, particularly with respect to brownfield redevelopment (around 60% of all developments). A point-in-case is a proposal to have materials cease to be waste if they conform to the Waste and Resources Action Programme (Wrap) protocol. This falls well short of making an impact, given that it is virtually impossible to achieve this on any site requiring demolition activity (about 75% of brownfield sites).
Another major point of contention is the EA's assertion that any materials removed from a site, even if it has a suitable use on another site, is waste. A sweeping categorisation, and one that would incorporate topsoil, a scarce resource regularly taken from site to site for reuse.
Furthermore, it introduces a perplexing anomaly: if waste is taken to a treatment centre and a suitable use is subsequently found for it, it would cease to be waste, even without treatment. However, if the same waste is identified as being usable on another site and is taken directly from site of origin to the site of eventual usage, it becomes waste. Thus, according to the guidelines, only through a superfluous, time-consuming pit stop will provably useful materials become usable.
While the scenarios discussed so far have not covered soils that are unusable and require some form of treatment, it is universally accepted by all parties that a WFD permit would be required under these circumstances. Here, the new mobile treatment licence (MTL) is again being touted as an alternative to the waste-management licence. This carries a distinct advantage as the MTL is exclusively applied to the plant and leaves the site when the operation is complete. However, it should be noted that this approach has been developed by the EA largely to cover specialist ground improvement techniques and cannot be applied to most standard site re-grading operations. It is also necessary to put the MTL in context: under the previous mobile plant licence scheme, 150 licences were granted. This meant that only 150 remediation contracts could be carried out in the UK. Taking into account the HBF's estimate of 27,900 extant brownfield sites, this highlights an alarming paucity of resources within the remediation industry.

Alleviating the burden
The EA has clearly put considerable effort into alleviating the regulatory burden, although the resultant effect is more akin to a band-aid than a full-scale remedy - even if the 63% reduction of WFD permits were to be achieved, it would still be an unmanageable number for the EA to logistically govern. However, it is unfair to expect an interpretive list of this nature to represent the definitive solution to such a vastly complex problem.
The ideal way forward (and one that has been consistently reiterated by the HBF) is to amalgamate the WFD licence with the initial planning permit. This would require relatively minor legislative changes, would not result in additional work for the local authorities, would be robust for future ECJ rulings on the definition of waste, and would tackle blight issues. Regulator and regulated would be divested of a considerable headache, and uncertainty towards brownfield remediation schemes would dissipate - all while maintaining compliance with the WFD.

Working template
Looking to the future, an additional improvement measure, also proposed by the HBF, would be to iron out the EA's occasionally divergent interpretations of waste material by establishing a formalised accreditation for contaminated land specialists, using the Specialist in Land Condition (SiLC) standard as a working template. Details of both of these ameliorative proposals were outlined in the HBF paper A Way Forward, which was submitted to the RLTF. Members of the task force have been generally accepting of these recommendations, although it has been considered prudent to integrate them into the English Partnerships lead National Brownfield Strategy (NBFS). Regrettably, the NBFS consultation remains unpublished and may be in danger of becoming overwhelmed by intractable political bureaucracy. To stop this happening, everything must be done to encourage the government to take this proposal seriously. And if they listen, who knows - a cohesive, integrated solution for site redevelopment may yet be on the horizon.

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