§ Lord Dixon-Smithasked Her Majesty's Government:
Whether the reclassification of pulverised fuel ash as waste requiring a licence by the Environment Agency will reduce the total of recycled products in the waste processing statistics by 3.5 million tonnes; and [HL5435]
Whether blast furnace slag is to be classified as waste requiring a licence instead of being directly recyclable as in the past; and [HL5437]
What impact the reclassification of pulverised fuel ash as waste requiring a licence will have on the total waste going to landfill; and [HL5438]
Whether the reclassification of pulverised fuel ash as waste requiring a licence is consistent with their policy for recycling. [HL5439]
§ Lord WhittyThe definition of waste in force in the United Kingdom is the definition in Article l(a) of the Waste Framework Directive (as amended). It provides that waste means, "… any substance or object … which the holder discards or intends or is required to discard." Whether or not a substance, such as power station ash or blast furnace slag, is discarded as waste is a matter which must be determined on the facts of the case and the interpretation of the law is a matter for the courts. The European Court of Justice (ECJ) has 319WA issued several judgments on the interpretation of the definition of waste and the meaning of "discard". ECJ judgments are binding on member states and their "competent authorities".
The Government have not classified either pulverised fuel ash or blast furnace slag as waste. It rests in the first place with the producer of a substance to decide whether it is being discarded as waste. The Environment Agency is designated as a competent authority for the purposes of the directive and is responsible for the application of its controls to substances discarded as waste.
The Government propose, in consultation with the Environment Agency, to review in the light of the ECJ's judgments the guidance on the interpretation of the definition of waste originally provided in DOE Circular 11/94. But it is not feasible for any revised guidance which the Government issue to determine whether any particular substance is in any particular circumstances discarded as waste. It will be feasible only for any revised guidance to advise on the factors which the ECJ has determined should be taken into account in reaching a decision.
Power station ash—including pulverised fuel ash— and blast furnace slags are two of the waste streams discussed in the Government's Waste Strategy 2000 (paragraphs 8.139–8.149) (Cm 4693–2). As the strategy makes clear, delivering sustainable development means not only putting waste to good use through recycling but also choosing products made from recycled waste. This is why the Government set up the Waste and Resources Action Programme (WRAP)—to promote recycling and to create stable and efficient markets for products made from recycled waste. In this context, it is necessary to have regard to the fact that it is only substances which are discarded as waste which are capable of being "recycled" within the meaning of the Waste Framework Directive and related legislation.
The Government continue to encourage the recovery of waste by means of recycling, re-use and reclamation. This encouragement includes the use of the Government's discretion under Article 11 of the Waste Framework Directive to provide exemptions from waste management licensing. Licensing exemptions for the recycling of ash discarded as waste are provided in paragraphs 9, 13 and 19 of Schedule 3 to the Waste Management Licensing Regulations 1994.
§ Lord Dixon-Smithasked Her Majesty's Government:
Why it is necessary to replace pulverised fuel ash with a new aggregate for purposes such as stabilizing old mine workings. [HL5436]
§ Lord WhittyThe Government have imposed no requirement which makes it necessary to replace pulverised fuel ash (pfa) with new aggregate for purposes such as stabilising old mine workings. The effect of the Waste Framework Directive is to require a permit, such as a waste management licence issued by the Environment Agency, for the disposal or recovery320WA of waste. This requirement applies to the disposal or recovery of pfa discarded as waste. The requirement does not preclude the use of waste pfa for purposes such as stabilising old mine workings. But it is necessary for anyone proposing to use waste pfa for this purpose to apply to the Environment Agency for the necessary licence. It is the applicant's responsibility to do so as part of his project planning.
The use of waste ash for purposes such as this was the subject of a judgment by the European Court of Justice in Case C-600 on 27 February 2002 (Abfall). Among other matters, the Court was asked for a ruling on whether the use of waste ash to secure hollow spaces (mine-sealing) is a waste disposal or recovery operation. The Court's judgment was that, "The deposit must be assessed on a case-by-case basis to determine whether the operation is a disposal or recovery operation within the meaning of that Directive [the Waste Framework Directive]. Such a deposit constitutes a recovery operation if its principal objective is that the waste serve a useful purpose in replacing other materials which would have had to be used for that purpose".