Cornwall Waste Forum could take EA to court
The Cornwall Waste Forum (CWF) St Dennis Branch has requested the Environment Agency (EA) reconsider its interpretation of the waste hierarchy or face a potential judicial review.
The Cornish campaign group has taken the step because it says the EA’s decision not to take action against Cornwall Council regarding an alleged failure to comply with the hierarchy was ‘reached on an unlawful basis’. Specifically, the group opposes Cornwall Council’s refusal of separate food waste collection and, ultimately, the construction of an ‘outdated’ and ‘expensive’ SITA incinerator near St Dennis. Both actions ‘fail to comply’ with UK waste hierarchy legislation, according to CWF.
Through solicitors Leigh Day, CWF recently wrote to the EA, and gave the body 14 days to respond (the time limit of which was reached today), saying it will seek a judicial review if the regulator does not reconsider its stance.
CWF Chairman Ken Rickard informed Resource that that the organisation is still awaiting a response from the EA.
CWF argues that the EA’s decision not to take relevant enforcement action against the council regarding separate food waste collection was ‘reached on an unlawful basis’ and based ‘on a flawed understanding of the legal requirements’.
The group criticises Cornwall Council for ‘refusing’ to collect a separate food waste stream for recycling, despite a ‘high proportion’ of UK councils providing the service. Instead, CWF argues, this waste is to be sent to a new incinerator.
CWF proposes that the EA’s interpretation of waste hierarchy has ‘national significance’ and ‘profoundly affects the way that local authorities’ obligations as waste collectors are understood’.
The Waste (England and Wales) Regulations 2011 state that anyone who ‘imports, produces, collects, transports, recovers or disposes of waste’ is require to ‘take all such measures as are reasonable to it in the circumstances’ to follow the waste hierarchy imperative:
CWF previously asked the EA to investigate whether the council’s waste management approach is compatible with its obligation to comply with the waste hierarchy. In response, the council reportedly explained its waste management approach to the EA in writing, which the latter body accepted within a ‘very narrow interpretation of the law’.
According to CWF, the council’s ‘unchallenged’ response to the EA ‘left out important information that would be needed to assess whether its position made sense’ by ‘misrepresenting’ the following:
- Explaining the costs it would incur if it were to separately collect food waste but not the savings associated with not paying for incineration or landfill;
- Arguing that its approach was to attempt to prevent food waste, but that the significant cost of separate food waste collection made the service unviable;
- Noting that a survey indicated most households were desirous of weekly refuse collection which limited participation in separate food waste collection but failing to point out that both options include a weekly separate food waste collection.
The Cornwall Energy Recovery Centre (CERC) – a 240,00 tonne a year incinerator – has faced a tumultuous path, including initial rejection by the now-defunct local council and a public inquiry, since SITA was awarded a PFI contract for the site in 2006.
SITA claims that CERC would produce enough electricity to meet the energy requirements of 21,000 households each year, and heat would be exported from the centre and provided for local industrial processes.
In an October 2013 letter, the EA explained to Rickard that the law only required the council to ‘apply the hierarchy on the transfer of waste collected’ and there is no legal requirement on the council to introduce the separate collection of food waste – or to build facilities to treat such waste – and it was ‘right to apply the hierarchy to… mixed waste as an undivided stream’.
If this interpretation of the law is correct, asserts CWF, then the waste hierarchy ‘only means that it is not lawful to burn or landfill recycling that has already been separated’.
However, the campaign group is eager to clarify that ‘in European legislation, and in the views of many commentators, its main force is strategic and hence it should be applied early in any waste system decision process’.
EA interpretation ‘rips out the guts of the waste hierarchy’
Rickard said: "We were astonished when we received the agency’s letter. Their interpretation of the law rips out the guts of the waste hierarchy – it’s as good as writing it out of the law completely. It’s a ridiculous position for the agency to take when it is tasked with ensuring the hierarchy is enforced."
He added: "The council’s letter was a very poor justification of its approach, and we simply can’t understand why the agency hasn’t investigated the matter properly. For the council to point to a survey in which 100 per cent of respondents were in favour of separate food waste collection as a reason for not introducing such a service would be laughable if it wasn’t so serious. And the whole issue of costs hasn’t been investigated at all."
EA assessment procedures are 'questionable'
Speaking to Resource, Rickard added: "We are fighting against the attitude of the officers in the council that were involved with drawing up the original contract. They’re so fixed upon pushing this incinerator through that they will not change. We keep throwing all sorts of alternative, money saving plans at them but they just don’t take any notice.
"They bully and they mislead the councillors and therefore the incinerator goes ahead.
"The Environment Agency has treated the incinerator issue like a tick-box exercise; there is no in-depth examination and it appears that they completely ignore the precautionary principle which should be the very basis for their thinking. This situation highlights that the present EA case assessment procedures are questionable."