6. Other issues
6.1 The interaction of the Landfill Allowance Scheme with local authorities duty under section 45 of the EPA
The Landfill Allowance Scheme rests on using local authority waste as a proxy for municipal waste, as defined in the Landfill Directive. This was necessary to make the Directive operational in the UK.
The Executive acknowledges that this creates an incentive for local authorities to reduce their activities in commercial waste, so as to reduce the diversion that they have to demonstrate in order to meet their allowances.
Local authorities have the duty, if requested by the occupier of premises in its area, to offer a commercial waste service, for which they can levy a reasonable charge (section 45(1)(b) EPA).
Local authorities will need to keep their charges under review to ensure that charges reasonably reflect their costs. The Executive would be concerned if local authorities made unrealistically large increases in their commercial waste charges, or otherwise attempted to make a sudden switch from their commercial waste users to private contractors. Local authorities should also be aware that a block transfer of commercial waste customers could be judged to be an arrangement made by the local authority for the purposes of measuring collected municipal waste.
6.2 Transfer of commercial waste activities
As considered in section 6.1 above, it may be possible for individual local authorities to decide to transfer their commercial waste services to a private contractor. It is important to consider the impact with respect to the data submitted under the landfill allowance scheme.
The key provision in the Regulations is the definition of "Collected municipal waste" (see regulation 2(1), as discussed in section 3.1), since this forms the basis of the assessment of BMW sent to landfill by the local authority. That refers to municipal waste which is recovered or disposed of in pursuance of arrangements made by a waste disposal authority or a waste collection authority.' Thus, if a local authority transfers the provision of waste services to commercial waste customers to a private company as a whole, then the continued operation of services to these customers is still clearly in pursuance of an arrangement made by the authority. This does not apply to transfers made prior to the passing of the Waste and Emissions Trading Act 2003.
It is important that a list of the customers that the private contractor is servicing in pursuance of arrangement with the local authority is maintained, which we can refer to as the "book" of relevant customers. This book will have to be kept up to date to reflect those customers who are being served in pursuance of those arrangements.
It is clearly possible for commercial customers to transfer their business elsewhere and so leave the book. It would clearly be a special case if customers transferred between the book and another commercial arrangement with the same private company. There would have to be a good reason for such a transfer, such as a national agreement with a chain of stores.
It is also possible for the private company to gain new commercial customers by its own endeavours and for these not to become part of the book.
After transferring its commercial waste business, a local authority would retain its duty under section 45 of the EPA 1990 to offer a commercial waste service on request. If it did this by referring potential commercial customers to the firm to which it has made the transfer, then customers taken on by the private contractor as a direct result of referral from the council should be added to the book.
The relevant waste in any year that is collected in pursuance of arrangements made by the local authority, is the waste from the firms in the book. A local authority would need to ensure that the partner company records the weight of waste collected from the customers in the book, and in addition the local authority would want it to report to you the volumes of biodegradable municipal waste diverted from this weight. The local authority would need to consider how it will acquire sufficient records of this diversion, or access to such records, so that they could respond to enquiries from SEPA.
6.3 When is waste handled by a charity collected municipal waste?
For waste handled by a charity to be classed as collected municipal waste - it must firstly be municipal waste, and secondly, the local authority must have made an arrangement with the charity for the recovery or disposal of the waste.
In the Executive's view, an arrangement will not relate to whether the local auhtority has an agreement with the charity, such as supporting it financially, but rather the nature of such an agreement. If an agreement where the council has agreed that the charity handle a particular item of waste (for example a bulky uplift), or waste of some kind for a specified time period and location, then this should be seen as an arrangement for this waste, and the waste may be recorded as collected municipal waste.
However, if the council supports a charity group, but has not made an agreement that details items or types of waste that the charity will handle as a result of this agreement, then this agreement does not constitute an arrangement for any particular wastes. It is possible for a charity to receive financial support from a council (for example under an arrangement to provide training places), but still handle waste that is not collected municipal waste, as no arrangement has been made by the council for this waste.