MS TRICIA HENTON, MS LIZ PARKES AND MR MALCOLM FERGUSSON

18 DECEMBER 2008

  Q100  Chairman: Thank you very much for your evidence. One of the things that we have found a wee bit difficult to get a grip on is the definition of "waste". Is there an accepted legal definition and does this, in its way, limit the reuse of potentially useful resources? If something is classified as waste you cannot do other things with it. This is something where we have had not quite contradictory definitions but we have had a lack of definition of the definitions, a vagueness. How would you lay it down?

  Ms Parkes: There is a legal definition of waste that is set out in the Waste Framework Directive and it has been there since the 1970s, so it is always slightly surprising when people say there is no legal definition. What has changed over the years is greater clarification about what it means through case law at European and domestic level. The area is very broad in its scope and it includes materials that are going to be disposed of but also materials that are going to be recovered and recycled. Over the years there has been growing clarity that the scope is very broad and also that once something is thrown away as waste it carries on being waste for a long time, so the real debate at European level has been the point at which end of waste, as the European Court likes to call it, ceasing to be waste, comes in. It would be fair to say that there are consequences of something being waste. We apply our regulatory controls as a regulator in a way that is risk-based and modern to try and ease the burden on industry. We have a number of initiatives in hand to make sure that we can ease that burden. Most crucially we have been working on what we call quality protocols. We have been working on these with the Waste and Resources Action Programme and industry to identify the bulk of industrial materials that we think need to be turned back into beneficial use. By working in partnership with industry, we can actually devise specifications that mean we can ease the controls and actually say this is no longer waste in a way that we think still affords the right protection to the environment. That is, if you like, forcing material back into productive use at a faster rate than would have happened if this was not even waste in the first place, and that whole programme is going down very, very well with industry and is bringing an awful lot of material back into productive use.

  Q101  Earl of Selborne: Does that need a redefinition therefore in order to achieve that? It seems to me eminently sensible that you should be able to force products back away from waste and into productive use, but we have always found in the past that the stumbling block has been the definition of waste as described in the 1970s.

  Ms Parkes: We are satisfied that it does not need a legal redefinition. The Framework Directive is silent on when something ceases to be waste. We are taking a line on this and we are finding support for that not just in this country but across Europe. The Commission is very interested in the work we have been doing. Because it is a partnership approach with industry and with government and the Waste and Resources Action Programme, there is a lot of consensus that it is very sensible to define the point at which full recovery takes place such that waste controls can fall away. It is actually forcing industry to work together and come up with a consensus around what are the technical requirements. Often in, say, the engineering world, engineers have selected materials because of their integrity and their ability to, for example, construct bridges that do not fall down, but people have not actually looked at the environmental criteria, so doing that now means that we get more certainty around the grade of material and that it is actually fit for use.

  Q102  Lord Howie of Troon: What do you mean by environmental criteria in that context?

  Ms Parkes: In that context it would be looking at whether there were any contaminants that would cause the leachability issue, if they could be washed out of a product, so looking at a material that is going to be used in what we call a "bound" process whereby the contaminants get caught up, we would then be satisfied that they could not leach out into the aquatic environment. In many cases you may be talking about very, very inert substances, and provided we can get some control on the quality of those, then we can be satisfied that they can go back into productive use without any detrimental effect.

  Q103  Baroness Platt of Writtle: It is really rather difficult when something could be reused. Glass is being used in roads now and all sorts of things and if materials are misdescribed that is going to make it very difficult for engineers at the very beginning to be choosing materials that could be recycled later on.

  Ms Parkes: If I could help on that. Just because something is waste it does not stop it being reused or recycled in any event. In fact, many businesses want to claim the credit as being the recycler. On the other hand, there is an incentive—

  Q104  Baroness Platt of Writtle: It is the claiming of the credit that is so important, is it not?

  Ms Parkes: It is. The definition of waste in that sense has not stopped glass being used for instance in aggregate. What we are keen to do though is to work with the sector and say can we say it ceases to be waste before it even gets made into aggregate because that would make life easier. So we are looking at a range of materials—non-packaging plastic and flat glass—which is not normally recycled and a whole range of industrial by-products—slags and ashes—which are produced in very large quantities and we think could provide a valuable role in terms of engineering use and saving us extracting raw materials out of the ground.

  Q105  Baroness Platt of Writtle: Stopping landfill is the key thing, is it not?

  Ms Parkes: Yes.

  Q106  Lord Lewis of Newnham: May I just say I sympathise totally with your problem. I think it is an extremely difficult one. There is an element of considerable subjectivity involved in many of these decisions. The definition is a European definition yet there are many examples, I think you would agree, in which things are classified as waste in one country but not in another. I think of fly ash for instance, which in Germany is a perfectly acceptable thing to use in road construction and things of this sort whereas in this country there is a much greater restriction on the use of fly ash and things of this nature. How far does this give you problems because one of the major factors of course with regards to waste is export, you are not allowed to export waste?

  Ms Parkes: Again if I can clarify that last point; you can export waste provided it is for recovery. There are international controls. There are restrictions on the export of hazardous waste and export for disposal and they are complex rules. Coming back to your earlier point, yes, it has caused difficulties, and we as an environmental regulator have taken a precautionary approach. What we have been trying to do is to make sure that there is consistency and stability in not just the regulatory world but in the market-place and we have been very clear about the line we have been taking. What we have also done is adopt a number of regulatory positions. The law requires people to have licences to use things like coffee grindings if you wanted to apply those as a soil conditioner. We think that is a nonsense so we have taken a series of regulatory positions, which again have been very well received by industry and supported by government such that we do not need to regulate things where there is no environmental benefit. Again, we are pushing this approach across Europe because, you are absolutely right, we are operating in an international market-place and there needs to be consistency. We are aware of instances where other countries take a similar pragmatic approach but do not actually write it down, which of course makes it more difficult if people do not know what the rules are. What we would like to do is get these issues on the table, come up with the right position (which has led to some criticism) and get those positions written down. People are now very comfortable that we are doing that. Of course there are other examples, say in Italy, where they have legislated to take a lot of things out of waste control and they have actually been infracted by the European Commission, so that has not been helpful to the industry either.

  Q107  Chairman: The impression I am getting is that there is this 1970s Framework definition, there are a lot of applications and interpretations of it and that the work that you are doing is to try and make it, on the one hand, more flexible but, on the other, business-friendly yet still environmentally sound, and that in fact there is still an awful lot of work to be done and that hiding behind the old definitions in the 1970s Framework is no longer any good. It kind of implies that the situation across the EU is not that satisfactory and that you are really trying to create agreements and understandings to not necessarily patch over the cracks but certainly to try and make it a bit more consistent. Am I right in saying that if you were not doing what you are doing, the situation would be pretty messy and inconsistent and ill-defined?

  Ms Parkes: We think the definition of the Framework Directive is quite a good definition and it has done amazingly well to stand the test of time. Because there has been such a body of case law now, we think it would be very unfortunate if that definition were to be unpicked. We think there is a consensus across Europe about what is waste. There are some difficulties at the edges but we think those are very small difficulties now. We think that the work we have been doing on protocols really does provide the solution for the future. That is really about defining what are products again rather than endless debates about definition of waste because, you are right, that that can be extremely time-consuming and not actually very productive for the environment or for business. We feel that we need to avoid over-prescriptive controls from Europe, keep the flexibility we have got, and do exactly what we are doing, which is work with business.

  Mr Fergusson: If I could add a more generic comment. Waste is obviously an area where things have to be interpreted through national systems which pre-existed that Framework Directive. It is not unusual to find that definitions in EU Directives tend to be somewhat vague and need to be interpreted over time and in the context of national systems. I do not think it is a foregone conclusion that if the Commission were asked to more closely define these things it would necessarily come out with something better, because they do not always understand national systems as well as perhaps they might; it is more or less in the nature of the beast. I think I would be somewhat chary about assuming it would be a good idea to rewrite that at this stage.

  Lord Lewis of Newnham: I am always reminded of the recognition of course that we all know what an elephant is but it would be very difficult to define it. I think this is where I put waste.

  Q108  Lord Howie of Troon: You mentioned fly ash. Is there a problem with that? As a civil engineer I remember coming across fly ash in the 1960s. Has something happened to it since then?

  Ms Parkes: It is generally used quite widely in this country and abroad. The challenge comes in where people are looking for absolute clarity on the rules. We have had recent controls such as the Waste Incineration Directive that has caused a lot of industry to re-examine what it is that they generate and whether that is waste, so that has raised further issues, but actually this should be about the environmental consequences rather than discussion about legal definitions, and we believe the two are not incompatible.

  Q109  Earl of Selborne: The Government is relying on quite a wide range of organisations to deliver waste production and resource efficiency programmes, whether it is government departments, regulators, local government, agencies of one kind or another. In your written evidence you say that the Environment Agency would "welcome clarity on responsibilities for driving and delivering the Government's waste reduction and resource efficiency programmes". Is there confusion at the moment and, if so, what needs to be done?

  Ms Parkes: I think with the publication of Defra's Waste Strategy there is room for greater clarification about the way forward and who should be responsible for what. We are very clear about our role as an environmental regulator and about where we make our interventions. We all see the need to drive this issue further up the hierarchy and to tackle it at source. Once one is looking at the whole arena of industrial products and commercial products as well as waste production, that raises a bigger question about who needs to be leading and driving that agenda, because obviously BERR have a big role within government as well as Defra, and whilst we tackle the bigger industrial polluting activities through the IPPC Directive, we are not generally charged with the broader arena of product policy, which is where this really needs to start. We think that in the same way as we have seen a push on household waste recycling for all the right reasons, if we are not careful, the public ends up being very confused about what is acceptable in their particular area. What we are very keen to see is as we collectively drive industrial and commercial resource efficiency that business is very clear who is leading that debate. There are a number of players but we need greater clarity around who is leading that and what actually works best and this is a good time for government to give that clarity.

  Q110  Earl of Selborne: And have you made specific recommendations as to how this clarity should be achieved?

  Ms Parkes: We are working with Defra and with government on the Waste Strategy Board, which I sit on, and within that we are looking at the priority areas for action and encouraging government to be very clear who is leading on each of those strands of work, so that is the mechanism by which we are driving that.

  Mr Fergusson: Another point to add is that as things move as described from a materials and production-based approach to a more product-orientated approach, then inevitably we are talking about things which are traded internationally. You cannot necessarily take a national approach to these things. Necessarily the EU will be involved; necessarily perhaps international bodies as well, although that becomes more problematic, but there are an awful lot of products that are traded across Europe obviously, so that needs to be considered.

  Q111  Lord Crickhowell: My question is about the apparent lack of consistency in the provision of information about the life-cycle impact of materials, which makes it difficult for designers to compare them. Is there a need to develop a consistent approach to labelling materials and products, and if so, how can this be done?

  Mr Fergusson: Life-cycle analysis is inevitably an extremely complex business and things which appear to be technocratic details such as systems boundaries and allocation of impacts between different co-products and so on can make an enormous difference to the outcome of the analysis. It can completely reverse the conclusions you get in the comparison of two products in some cases. That is not by any means an easy matter, but it does need greater clarity because it is not surprising that people are confused if you can get a life-cycle analysis that gives a completely different conclusion from another one on the same product. I think that is inevitably going to be a very long job however. Probably standards and labelling at EU level will be an important component of that. That will not capture everything but it can capture quite a bit and it is probably better to make progress at a European level than to hope for a global system to somehow materialise because that will not happen any time soon, so probably greater emphasis at EU level.

  Q112  Lord Crickhowell: In your memorandum you say that you are "pleased to note that the Government plans to set up a new products and materials unit. This will identify and capitalise actions across the supply chain through the environmental performance of products throughout their life cycle. The precise remit and membership of this unit is not yet clear." Then a rather surprising sentence after that: "However, the Government's plan for the Unit to produce a progress report on delivery by spring 2008 is to be welcomed." I find it rather difficult to know, if it is about to be set up, how it is going to produce a progress report by the spring of 2008 which we are almost into. Can you tell us a bit more about this unit and what it is supposed to be doing?

  Ms Parkes: Absolutely. As I say, we welcome the fact that the Government is going to establish this unit. It is still in gestation and you have to bear in mind that the Waste Strategy itself was a long time in gestation, which is probably why it is a rather ambitious timetable now to publish a progress report, but it comes back to the earlier point that we need to be very clear both on what the priorities are and where is it more important to intervene, at the material end or at the product end, which is particularly important when we look at changing consumer behaviour, and what are the priorities for action there, and then what are the interventions that need to be made and who is going to do them for what benefit. It is that that we are looking forward to coming out of Defra's Waste Strategy implementation to be much clearer around what is going to be delivered by who and when.

  Q113  Lord Crickhowell: I have come in rather fresh to this inquiry having been rather caught up in things like the Climate Change Bill which we were debating last night, which is actually rather relevant—

  Ms Parkes: Absolutely.

  Q114  Lord Crickhowell: --- because we should not simply be talking about the effect in pollution terms but the effect of waste energy and all the other factors. Looking at your memorandum I am really very woolly now about who is doing what and where. You say you are a principal delivery body for the Government's waste strategy. Clearly in pollution terms you are concerned—and chairing the National Rivers Authority I was acutely concerned, as you continue to be—about what happens when the nasties get into the water supply and so on, but the Strategy obviously goes much wider than that and goes back to these other topics. I simply do not get a clear picture of the overall chain of command that is created. Defra presumably is at the head of it but, as you said, BERR has a particularly important involvement. Last night debating the Climate Change Bill we were looking to see how the Government was going to produce a totally coherent approach, because this is a multi-departmental operation too. How do you see this multi-departmental chain of command developing? How far has it developed? Where do you fit into that sort of pyramid, if there is a pyramid? Can you give me a picture of what is happening, because I do not get it at all at the moment?

  Ms Parkes: Certainly to clarify our own role, as you say, we are the environmental regulator and we deal with the impacts of industry that generate products and we regulate those and we deal with the end of pipe issues. Increasingly we want to be working up-stream with waste producers and we have a specific remit in relation to administration of parts of the Producer Responsibility legislation but not for working with producers across the board. What you are alluding to I think is the rather complex interface between Defra's Waste Strategy and the larger Sustainable Consumption and Production agenda. It is precisely those interfaces that we are looking for clarity on as to what are the actions that are going to give rise to the best environmental outcome, and who is going to be charged with taking those actions. This cannot be confined purely to Defra. It is not just about environmental legislation and delivery, it about getting it into the socio-economic debate, and therefore BERR have a big role to play as have other parts of government. That whole agenda is one that is emerging so in terms of the actions that are placed upon us all now, I think we are all very clear about what we are doing. The challenge for society and for government going forward is to be very clear about this bigger agenda and what are the interventions that are going to give rise to the best environmental outcomes.

  Lord Crickhowell: Thank you very much. I think you have given us some interesting questions.

  Q115  Baroness Sharp of Guildford: Could I come back to Malcolm Fergusson's answer because you were saying that we need to work with the European Union on developing labelling. What progress has been made there? What is the sort of time-frame that we are likely to see on this? In a sense it is an urgent issue yet one suspects the time-frame is actually a fairly long one.

  Mr Fergusson: Things do tend to move slowly at the European level. You will have to excuse me, I do not have a very good picture across the piece. Certainly you can point to areas where the useful things have been done, for example in the eco labelling and energy efficiency labelling for appliances, and increasingly also for vehicles for example. On some of the big items there is quite good progress, but obviously we are talking about potentially complex evaluations of an immense number of different products so prioritisation is crucial. There has been a degree of prioritisation identifying priority waste streams and focusing on those in the first instance, but, yes, it is an immense job and inevitably a rather slow one I think.

  Ms Parkes: Perhaps to give an example on that, obviously the Waste Electronic and Electrical Equipment Directive requires labelling as does the Batteries Directive. It is interesting that the battery manufacturers for the first time are having to think about putting something on their batteries that show how much power is in them. It is quite amazing to think that we would not buy many other products if we did not know what was in them and whether it was good value for money, and that is something that they have not done voluntarily and is obviously going to lead to behaviour change, but it is taking a legislative instrument to bring it about.

  Q116  Lord Howie of Troon: Back to life cycle—are you more interested in the life cycle of materials from which products are made or the life cycle of the products?

  Ms Parkes: We think both need to be looked at. We do not claim to be the experts on the life cycle of either and we think these are some of the important issues that the Government needs to look at through their Sustainable Consumption and Production agenda.

  Q117  Lord Howie of Troon: If you are not an expert is there an expert?

  Ms Parkes: We tend to think that most of the expertise on this lies within the academic world and the question then is who is best placed to employ that expertise.

  Mr Fergusson: Also I would say there is not going to be one general rule that will fit all anyway. It varies enormously between classes of appliances. For example, with a lot of large consumer durables and so forth, the energy consumption of those products in use is possibly their most important single impact and that is something where you have to put the focus. For a lot of other products that is not the case at all and material flow is far more important.

  Q118  Lord Bhattacharyya: I am a designer so therefore I need help in the sense you are talking about recycling and you are talking about reducing pollution. Let me tell you, if I am designing an engine, the first thing I look at in designing the engine is cost and performance. The last thing I would look at is how I reduce waste in the design and manufacture of that engine because that adds money to me. As far as pollution is concerned, in other words the end result of the product, that is regulated to some extent as competition forces us to do certain things. How can you have the experience and the knowledge base to come and tell industry what they should be doing, other than in general terms? Do you have a format by which you can train people in how to design products and how to use the manufacturing processes which will reduce waste or is it just in superficial, qualitative global terms that you tell them they should reduce waste? How can you help us?

  Ms Henton: There are ways that we can help but they are quite limited. We are not the organisation or the body who have the intimate knowledge of product design and how to minimise waste or indeed the use of resources. We think that is where BERR has a big leadership role to play. It very much sits within the industry end of the cycle. However, where we do have an influence is in the regulation through Integrated Pollution Prevention Control where we do have some regulatory control over the use of resources within certain industrial processes, and that is an area that we already use but are keen to improve on because that is where we have a locus to do so.

  Q119  Lord Bhattacharyya: How do you go about doing that? I have a car company; do you come to my company and then tell me about all of these things?

  Ms Henton: It is only within the specific processes that fall under IPCC, which is quite a narrow band. It is the band of the potentially most environmentally damaging industries—things like cement, chemicals, petro-chemicals, the large industrial processes—who do tend of course to use a lot of energy, a lot of water, a lot of materials, and we can have an influence there, but unless it falls within that we do not have very much of a remit there. Again I think the emphasis has to be on the product end of it and the bit of government that looks after product design.