Proposals for enforcing business, public and third sector recycling regulations in Wales

Date of issue: 23 November 2022

Action required: Responses by 15 February 2023

The purpose of this consultation is to seek your views on our proposals for enforcing forthcoming business, public and third sector recycling regulations.

Please complete the questionnaire at the end of the document. Responses can be submitted by email or post to the addresses below by 15 February 2023.

Large print, Braille and alternative language versions of this document are available on request.

See the related active consultation on the Separate Collection of Waste Materials for Recycling – A Code of Practice for Wales (WG46436), which will close on 15 February 2023.

Please see link to related consultation which closed 13 December 2019: Increasing recycling by businesses.

For further information:

Email: RecyclingReformsConsultations@gov.wales or

Post:

Resource Efficiency and Circular Economy Division
Welsh Government
Crown Buildings
Cardiff
CF10 3NQ.

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The purpose of this consultation is to seek your views on our proposals for enforcing the forthcoming business, public and third sector recycling regulations.

Summary of the business, public and third sector recycling regulations requirements

Provisions in Part 4 of the Environment (Wales) Act 2016, when commenced, will amend the Environmental Protection Act 1990 to give Welsh Ministers the power to make regulations – collectively referred to as the business, public and third sector recycling regulations – the purpose of which is to increase recycling from non-domestic premises in Wales.

There are three sets of proposed regulations that will set out:

1) The separation requirements (the subject of the code) (“the separation regulations”), specifically to:

• Require the occupiers of non-domestic premises (including businesses, charities and public sector bodies) to present specified recyclable materials for collection separately from each other and separate from residual waste;
• Require those that collect the specified recyclable materials to collect them separately from other recyclable materials; and
• Require those separately collected recyclable materials to be kept separate and not mixed;
• Provide for civil sanctions to be available in relation to criminal offences associated with these requirements

2) Incineration and landfill bans, specifically to:

• Ban specified separately collected recyclable materials from non-domestic and domestic premises from incineration and landfill;
• Ban all wood waste from non-domestic and domestic premises to landfill; and
• Provide for civil sanctions to be available in relation to criminal offences associated with these requirements.

3) A ban on the disposal of food waste to sewer, specifically to:

• Commence a ban on disposal of food waste to sewer from non-domestic premises; and
• Provide for civil sanctions to be available in relation to criminal offences associated with these requirements.

Recyclable materials to be covered by the separation requirements

The recyclable materials specified to be presented separately for collection, collected separately, and kept separate post collection, that were consulted on as the preferred policy option in 2019 were:

• glass;
• paper and card;
• metal and plastic;
• food waste from premises producing 5kg of food waste and more/week;
• small waste electrical and electronic equipment (sWEEE);
• textiles.

Revised proposals on the planned phasing in of the requirements relating to sWEEE and textiles

Concerns have been raised about the feasibility and effectiveness of including a requirement within the regulations for the separate presentation and collection of sWEEE and textiles from the outset of the regulations coming into force.

This is because the kerbside collection of sWEEE and textiles is not yet widely established. For sWEEE there is also a risk of locking-in’ poor quality recycling of non-domestic small electronic goods to the detriment of achieving greater rates of re-use and repair.

In relation to textiles, the UK re-processing market is still relatively immature with a high reliance on exports, incineration and landfill. There is therefore a lack of capacity to effectively re-process textiles in the UK, meaning a requirement to separate out waste textiles from all non-domestic premises on day one of the regulations coming into force could lead to an increase in exports of textiles or potentially in waste crime.

In response, it is intended that separation and collection requirements for sWEEE and textiles from non-domestic premises are phased in after the coming into force date, by up to two and three years respectively. This will allow the waste collection, reuse, repair and recycling services to gear themselves up and to align with the planned changes in the Regulations.

To note that unsold sWEEE and unsold textiles will be excluded from these proposals: such items will be required to be presented and collected separately for recycling from the outset of the regulations coming into force.

The intention is that the proposed bans on separately collected sWEEE from all premises going to incineration and landfill will commence as originally planned when the regulations come into force. Though we do not intend to require non-domestic premises to separate out sWEEE initially, there will be instances where this material is collected separately through other routes (e.g. household recycling centres). The intended ban will therefore ensure that where sWEEE is separately collected it will go to recycling as a minimum, rather than incineration or landfill.

It is also intended that the proposed ban on separately collected textiles from all premises going to landfill will commence as originally planned, i.e. when the regulations come into force. However, due to the relative immaturity of the UK textiles re-processing market and the poor recyclability of many textiles, we do not intend to proceed with the proposed ban on separately collected textiles going to incineration initially. Though we do not intend to require non-domestic premises to separate out textiles initially, there will be instances where this waste is collected separately through other routes (e.g textile banks, household recycling centres). The intended ban will therefore ensure that separately collected textiles that cannot be re-used or recycled go to incineration as a minimum, rather than landfill, whilst minimising the risk of increasing waste crime and/or exports of low-quality textiles causing environmental problems elsewhere in the world.

The proposal is that separately collected unsold sWEEE and separately collected unsold textiles will be banned from going to incineration and landfill immediately when the regulations come into force. This will prevent retailers sending unsold sWEEE and unsold textiles to incineration or landfill and for it to go for recycling as a minimum.

Summary of proposals regarding specified separately collected recyclable materials

Separate collection from 1st October 2023^*

Unsold small waste electrical and electronic equipment (sWEEE)

Unsold textiles

Ban on incineration from 1st October 2023**

Unsold small waste electrical and electronic equipment (sWEEE)

Unsold textiles

All other small waste electrical and electronic equipment (sWEEE)

Ban on Landfill from 1st October 2023

Unsold small waste electrical and electronic equipment (sWEEE)
Unsold textiles

All other small waste electrical and electronic equipment (sWEEE)

All other textiles

^ policy intention to include all other small waste electrical and electronic equipment (sWEEE) within 2 years
* policy intention to include all other textiles within 3 years
** policy intention to include all other textiles in future

Clarification regarding proposed handling of cartons

Following the previous consultation, engagement on the proposed classification with the cartons industry, waste collectors and re-processors and WRAP have identified that cartons and similar packaging are best collected in the metal and plastic stream – this provides the best solution for the subsequent separation of cartons for re-processing. We therefore propose that cartons (and similar packaging) are placed in the metals and plastics material stream.

Therefore, under the current proposals, the recyclable waste materials specified to be presented separately for collection, collected separately, and kept separate post collection when the regulations come into force initially are:

i) glass;
ii) paper and card;
iii) metal, plastic, and cartons and other fibre-plastic composite packaging of a similar composition;
iv) food produced by premises producing more than 5kg of food waste a week;
v) unsold small waste electrical and electronic equipment (sWEEE); and
vi) unsold textiles.

Revised proposals regarding planned phasing in of the requirement for hospitals to present specified recyclable materials for collection

In response to engagement with the NHS following the previous consultation, it is proposed that hospitals will have an additional two-years to comply following the coming into force date of the regulations to reflect the additional complexity of bringing the regulations into force in wards and operating theatres. The ban on sending food waste to sewer will apply to hospitals from day one of the regulations coming into force.

These proposals are not the focus of this consultation but are provided for information purposes. Should you have views on the proposed phasing in of sWEEE and textile waste streams, and/or the proposed handling of cartons, the ‘Consultation on the Separate Collection of Waste Materials for Recycling – A Code of Practice for Wales’ includes questions relating to this.

The aim of the regulations is to improve the quantity and quality of recycling from non-domestic premises in Wales and, in doing so, support Wales’ commitments to reach zero landfill by 2025, and zero waste and net zero carbon emissions by 2050. This will support Wales’ progress towards a circular economy, where resources are kept in use for as long as possible, waste is avoided, and products and materials are recovered and regenerated at the end of their life. As such, these reforms bring benefits for the economy and the environment by:

• Increasing the quantity of recycling from non-domestic premises: estimated to result in an additional 3.8 million tonnes of recyclate over a 10-year period[1];
• Reducing greenhouse gas emissions: estimated reduction in emissions of 3.2 million tonnes CO2 equivalent over 10 years[2];
• Creating overall savings to the Welsh economy: modelled to be £452.5 million NPV over 10 years[3];
• Creating opportunities for jobs in the waste management sector;
• Giving greater security of supply of resources to our manufacturing sector;
• Accelerating progress towards a circular economy for Wales through the use by Welsh manufacturing businesses of recyclate collected in Wales;
• Reducing pollution.

In order to maintain a high resource value and avoid contamination, it is important that recyclable materials are kept separate from other wastes at source. This supports market demand for high quality and high value recyclate, which in turn acts as a further stimulus to recycling rates. Higher quality recyclate is also more likely to be used in manufacturing operations than lower quality recyclate. Producing high quality recyclate in Wales also reduces the likelihood of materials being sent overseas for treatment. Recycling and recovery of high-quality materials also helps tackle the environmental impacts of the global demand for resources. By using resources more efficiently through waste prevention and high reuse and recycling rates, material security is also improved and dependence on primary resources (whether from inside or outside the UK) is reduced.

Considerable progress has been made with recycling in Wales, particularly from households. However, at non-domestic premises, such as businesses and in the public sector, significant amounts of recyclable materials are still disposed of as a part of the residual waste stream or co-mingled with other recyclable wastes. This reduces the recyclate capture and value and prevents their use as a high-quality source of input material to industry.

[1] Regulatory Impact of Options to Increase Business Recycling in Wales (gov.wales)

[2] Regulatory Impact of Options to Increase Business Recycling in Wales (gov.wales)

[3] Regulatory Impact of Options to Increase Business Recycling in Wales (gov.wales)

These reforms have previously been consulted upon twice. Firstly, as part of the consultation on the Environment Bill which took place between 23 October 2013 and 15 January 2014, culminating in the Environment (Wales) Act 2016. Then subsequently with the consultation on the preferred policy option between 23 September and 13 December 2019.

See the summary of responses to the 2019 consultation. 

We are consulting on the ‘Separate Collection of Waste Materials for recycling– A Code of Practice for Wales’ associated with these regulations in parallel.

The closing date for the Code of Practice consultation is 15 February 2023.

Why is enforcement necessary?

The Welsh Government acknowledges that the majority of occupiers of non-domestic premises, waste collectors, handlers and processors, and operators of incineration, co-incineration and landfill facilities will strive to comply with the new requirements. However, those who disregard the law undermine those law-abiding businesses and can gain an unfair advantage over those who do comply.

The primary aims of our enforcement proposals are to bring people into compliance with the law and ensure the outcomes sought through implementation of the regulations are fully realised.

Alongside guidance and information for those affected, an enforcement regime will be introduced.

Who will be the regulator?

Natural Resources Wales (NRW) will regulate all the above requirements except for the ban on the disposal of food waste to sewer.

Local Authorities (LAs) will regulate the ban on the disposal of food waste to sewer from non-domestic premises.

Part 4 of the Environment (Wales) Act 2016, when commenced, will insert new provisions into the Environmental Protection Act 1990 (EPA), which will create criminal offences in relation to a failure to comply with applicable separation requirements set out in the regulations made under the new sections 45AA (separate collection etc. of waste) and 34D (prohibition on disposal of food waste to sewer) of the EPA. Likewise, section 9 and the new section 9A of the Waste (Wales) Measure 2010 (regulations prohibiting incineration of waste) confers power to create criminal offences for breach of those provisions.

In addition, powers are available to the Welsh Ministers under Part 3 of the Regulatory Enforcement and Sanctions Act 2008 (RESA) and section 10 of the Waste (Wales) Measure 2020, to provide for civil sanctions in relation to those offences, in order to provide proportionate alternative enforcement provisions to criminal sanctions.

We propose to introduce an enforcement regime which includes civil (non-criminal) sanctions. Civil sanctions will allow the regulators to distinguish between those who are striving to comply with the relevant legislation and those who disregard the law. This flexibility will enable the regulator to impose a range of sanctions depending on the circumstances of the offence.

Separately, Local Authorities also have existing powers under section 33ZB of the EPA to issue fixed penalty notices for waste receptacle offences, which may be used where they have reason to believe that a person has committed a waste deposit offence.

Regulators’ powers

In carrying out their enforcement role it may be necessary for the regulators to use powers of entry, search or seizure, or to require information.

As regards requirements relating to separate collection etc. of waste, the powers available to NRW are set out in section 108 of the Environment Act 1995. The powers for Local Authorities as regards the prohibition on disposal of food waste to sewer, and of NRW as regards the prohibitions on incineration and landfill, will be conferred via the regulations (using the powers at section 55(3) of RESA and section 10 of the Waste (Wales) Measure respectively).

Those provisions on regulators’ powers will be contained in the relevant regulations.

We consider that sanctions should be available to the regulator in situations such as:

• An occupier of non-domestic premises in Wales fails to present waste for collection (whether by a waste collection authority or by any other person) in accordance with the applicable separation requirements.
• An occupier of non-domestic premises in Wales discharges food waste, or knowingly causes or permits food waste to be discharged, to the sewer.
• A person acting in the course of a business (including Local Authorities4) in Wales who collects controlled waste, or receives, keeps, treats or transports controlled waste, from non-domestic premises fails to do so in accordance with the applicable separation requirements.
• Operators of incineration and co-incineration facilities accept any of the specified, separately collected materials at their facilities.
• Operators of landfill facilities accept any of the specified, separately collected materials and/or any wood at their facilities.

The enforcement tools and processes available are set out under RESA, which provides for a well-tested and reasonable enforcement regime.

We propose using a sub-set of the enforcement tools available under RESA. We consider that these sanctions will be appropriate to enforce the requirements of the regulations: fixed monetary penalties, variable monetary penalties and stop notices.

4 See Section 65 Environment (Wales) Act 2016

The use of civil sanctions is to encourage compliance with the regulations. Where appropriate, criminal proceedings are available to the regulator.

Fixed monetary penalties

Where the regulator is satisfied beyond reasonable doubt that an offence has been committed the proposal is that, under the regulations the regulator will be able to impose a fixed monetary penalty (FMP). A FMP is likely to be most appropriate for minor offences where previous advice or guidance has failed. The proposed amount of penalty to be paid to the regulator as an FMP is set out in the table below.

The higher FMP for waste collectors, handlers and processors, and operators of incineration and landfill facilities reflects the cumulative, and therefore increased, detrimental environmental impact an offence by these actors will generally have as compared to a single non-domestic premises. In addition, the regulations relate to the core business for the waste sector.

Question 1: Is the proposed FMP of £300 for the offences at rows 1-2 in table 1 above proportionate? If not, why not? Please refer to other similar / comparable regimes if appropriate.

Question 2: Is the proposed FMP of £500 for the offences at rows 3-5 in table 1 above proportionate? If not, why not? Please refer to other similar / comparable regimes if appropriate.

Notice of intent

Where a regulator proposes to impose a fixed monetary penalty on a person, the regulator must serve on that person a notice of what is proposed: a notice of intent.

The notice of intent must include:

• the grounds for proposing to impose the FMP;
• the amount of the penalty;
• a statement that liability for the penalty can be discharged by paying a certain percentage of the penalty within 28 days; and information as to:
• the effect of that discharge payment;
• the right to make representations and objections within 28 days beginning with the day on which the notice of intent was received;
• and the circumstances in which the regulator may not impose the fixed monetary penalty.

Discharge of liability

It is proposed that the penalty is discharged if a person who receives a notice of intent pays 50% of the amount of the penalty within 28 days beginning with the day on which the notice was received.
If the person who has received a notice of intent does not discharge liability within 28 days the regulator may serve a Final Notice imposing a fixed monetary penalty.

Final Notice

A Final Notice must include information as to:

• the amount of the penalty;
• the grounds for imposing the penalty;
• how payment may be made;
• the period of days within which payment must be made;
• details of the early payment discounts and late payment penalties;
• rights of appeal; and
• the consequences of non-payment.

The period of days proposed within which payment must be made is 56 days.

Early payment discount

If a person who was served with a Notice of Intent made representations or objections concerning that notice within the time limit, that person may discharge the final notice by paying 50% of the penalty within 28 days beginning with the day on which the final notice was received.

Late payment penalties

If the penalty is not paid within 56 days the amount payable is increased by 50%.

In the case of an appeal the penalty is payable within 28 days of the determination of the appeal (if the appeal is unsuccessful), and if it is not paid within 28 days the amount of the penalty is increased by 50%.

Question 3: Is the proposal that liability for the penalty can be discharged by paying 50% of the penalty within 28 days reasonable? If not, please explain your rationale and if appropriate, suggest an alternative approach. Please refer to other similar / comparable regimes if appropriate.

Question 4: Are the proposals for the early payment discount and late payment penalties reasonable? If not, please explain your rationale and if appropriate, suggest an alternative approach. Please refer to other similar / comparable regimes if appropriate.

Variable Monetary Penalties

Where the regulator is satisfied beyond reasonable doubt that an offence has been committed (outlined in table 1 above) we propose that the regulators will also have the option to impose a variable monetary penalty. These are monetary penalties which can be imposed directly for more serious offences.

The level of the monetary penalty will be determined by the regulator, reflecting the circumstances of the offence.

Guidance will be published as to the use of VMPs. This will include information as to the circumstances in which a VMP is likely to be imposed, and the matters likely to be taken into account by the regulators in determining the amount of the penalty. Before serving a VMP, the regulator may require the occupier to provide such information as is reasonable so as to establish the amount of any financial benefit arising as a result of that offence.

Notice of Intent and third-party undertakings

Where the regulator proposes to serve a variable monetary penalty on a person, the regulator must serve a notice of what is proposed (a “notice of intent”). The notice of intent must include—

• the grounds for the proposed variable monetary penalty;
• the amount of the penalty; and
• information as to the right to make representations and objections within 28 days beginning with the day on which the notice of intent was received;
• the circumstances in which the regulator may not impose the penalty.

A person on whom a notice of intent is served may offer a third-party undertaking. These enable a person who has received a notice of intent to offer to undertake certain action, for example, to pay a sum of money or give a commitment to take action to benefit a third party affected by the non-compliance. The regulator may accept or reject any such third-party undertaking.

Final Notice

After the end of the period for making representations and objections, the regulator must decide whether to impose or amend the requirements in the notice of intent. If the regulator decides to impose the VMP, they will issue a Final Notice.

A final notice for a variable monetary penalty must include information as to:

• the grounds for imposing the penalty;
• the final amount to be paid;
• how payment may be made;
• the period within which payment must be made, which must be not less than 28 days;
• rights of appeal; and
• the consequences of failing to comply with the notice.

Question 5: Is the proposal to allow regulators to impose VMPs for the breaches listed in table 1 reasonable? If not, please explain your rationale and if appropriate, suggest an alternative approach. Please refer to other similar / comparable regimes if appropriate.

Stop Notices

Where the regulator has a reasonable belief that an offence in table 2 below has been committed, we propose that the regulator will be able to impose a stop notice. A stop notice is a requirement for a person to stop carrying on an activity described in the notice until it has taken steps to come back into compliance. A stop notice may be issued with any other civil sanction except an FMP.

The regulator may be able to serve a stop notice if a person’s activity presents (or is likely to present) a significant risk of causing serious harm to the environment and commits an offence under the regulations or is likely to commit an offence under the regulations.

A stop notice must include information as to the grounds for serving the notice, steps the person must take to remedy the contravention, rights of appeal and consequences of non-compliance.

When the regulator is satisfied a person has taken the steps specified in a stop notice they will issue a completion certificate. Once the completion certificate has been issued the stop notice ceases.

Should a stop notice be subsequently withdrawn, or an appeal against the stop notice or non-issue of a completion certificate is successful, then the regulator will be liable to pay compensation costs to the person for loss suffered as a result of the stop notice.

Question 6: Do you think the proposal to allow regulators to impose stop notices for the breaches outlined in table 2 are appropriate? For example, in your view, would there be situations where such breaches would reach the threshold of presenting (or likely to present) a significant risk of causing harm to the environment? If not, why not?

The civil sanctions regime outlined above is to encourage compliance with the regulations. If a person fails to comply with a final notice or stop notice, criminal proceedings may be brought in.

We believe this enforcement toolkit and level of fixed monetary penalties is sufficient to act as a deterrent and is appropriate and reasonable for these regulations. The enforcement regime including the level of penalties will be kept under review.

Question 7: Do you agree this overall enforcement regime and the approach is reasonable and proportionate? If not, why?

Following this consultation, we will consider responses and take these into account when making the regulations (the legislation). Once all responses have been considered a Government Response will be published on our website.

Our intention is to lay legislation to bring the regulations into effect 1st October 2023.

This date may be subject to change depending on the outcome of the consultation and required legislative processes.