Is the future of waste collection yet more recycling bins?

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Remembering to separate out recyclable materials when putting the bins out is something that can be a bit of a chore, but people seem to be getting used to. The national UK household recycling rate has risen from 11 per cent. in 2000 to 43 per cent, working towards our EU target of 50 per cent. The rate of increase has slowed though, but the pressure from Europe to meet the targets has not.

Last year we reported on some controversial changes to the Waste (England and Wales) Regulations 2011 (see our In Brief article from March 2013). These were made to bring them more in line with the European Waste Framework Directive that all EU countries must comply with. The Directive obliges EU Member States to promote high quality recycling and, to this end, set up waste collections where “technically, environmentally and economically practicable” and appropriate to meet relevant recycling quality standards. It goes on to require that by 2015 there should be separate collections for paper, metal, plastic and glass.

So does this mean that as from next January each household will need four separate recycling bins? Well, not necessarily. The requirement for separate collections only applies where separate collection is necessary to ensure that waste can be recycled to a high quality and is “technically, environmentally and economically practicable” (which is commonly shortened to “TEEP” by the waste industry). This will depend on how and what types of waste are collected. For instance, if a recycling bin contains only plastic and metal, it should be easy to collect them together (“commingled”) and separate them out at the recycling plant. If however glass and paper can be put in the same bin, it is much more difficult to separate out the glass shards from the paper at the recycling facility.

Before 1 January 2015 when the separate collection requirements come into force, councils will have to consider whether they have to collect paper, metal, plastic and glass separately or whether such separate collections will not be technically, environmentally and economically practicable. For instance, it may not be TEEP to require each tenant of a block of flats to have four separate bins as there may not be space for this.

Impact on councils
When considering whether to have separate or commingled collections, councils need to take steps to ensure their decision cannot be legally challenged. It is worth consulting with the market first to find out what is technically practicable and what the market sees as the most economic method of collection. Decisions should be made based on a sound evidence base with appropriate expert advice and written records kept.

Impact on existing waste collection contracts
Part of the consideration will be to look at the collection methods that the council currently uses and whether it would be necessary and TEEP to change them. If the council has recently signed a 15-year collection contract for commingled collections, changing to separate collections could mean a big hike in the contract price or even require a re-procurement if it is a sufficiently material change to what was originally tendered for. This could mean it is not “economically practicable” to implement separate collections. On the other hand, if a contract is shortly coming up for renewal, or has sufficient flexibility built into it to allow such a change with minimal cost, it may be TEEP to move to separate collections.

Impact on procuring new waste collection contracts
At the moment there is no formal guidance from Defra on what is and is not TEEP. It is unlikely that Defra will issue such guidance in the near future. We suggest that councils engage with the market as to what is TEEP and build in as much flexibility to the procurement as possible, both to allow for bidders to suggest a range of solutions and to “future proof” the contract against a need to change the method of collection.

How we can help
With a wealth of experience in both waste contracts and procurement, Walker Morris can help both councils and waste contractors to find the best legal solution to the separate collections and TEEP issue.