Might the new Regional Waste Management Plans become obstacles to Waste Infrastructure Development?

Waste management planning has come a long way since it was first mooted in the early 1970s. At that time, the private sector waste industry was very much in its infancy, with the collection and disposal of non-hazardous waste being viewed as a public service. While this approach is still the norm in some EU states, the position in others has changed significantly. This is particularly the case in Ireland, with the virtual withdrawal of local authorities from waste collection and waste infrastructure provision.

The requirement for EU states to produce waste plans was contained in the original Directive on Waste (75/442), being continued to this day by the most recent version of that Directive (2008/98). However, as set out above, the context of waste planning has changed significantly, with the original “command and control” approach to the provision of waste collection and disposal infrastructure being subject to two key challenges:

• A much more complex waste management system now exists, which has moved from quite localised waste collection-disposal catchments to an extensive and intricate system of waste recycling, intermediate and final processing and waste recovery, coupled with EU-wide and, for certain recyclables, global waste transport;
• Various forms of commercial competition between different private sector waste collectors and infrastructure providers has become the norm in many countries, with this system perhaps exhibiting its most extreme version in Ireland.

In the penultimate week of November, all three Draft Regional Waste Management Plans were launched for public consultation.  Copies can be found at the following links, with the consultation period ending on 30^th January 2015:

• Southern Draft Regional Waste Management Plan 2015-2021
• Connacht-Ulster Draft Regional Waste Management Plan 2015-2021
• Eastern-Midlands Draft Regional Waste Management Plan 2015-2021

A key issue that all stakeholders in waste management in Ireland will be looking at is how the plans handle the issue of the provision of future waste infrastructure. This matter is addressed in Part 3 of each Plan. Already, concerns about the approach being taken have been raised by representatives of the waste industry, both in the pre-consultation period and since then. It would seem that a particularly vital issue concerns how the “need” issue is being portrayed; in other words, how the plans approach the key question of what infrastructure is required over the next 5-10 years, where it is needed and how much of it is needed.

On the face of it, this may seem a simple issue: each waste plan should set out how much waste is to be produced for particular areas, taking into account population changes and economic growth over the plan period, and then should estimate how much and what capacity of disposal and recovery infrastructure is needed to deal with it.

However, waste planning is not that simple. It may well have been so in the “command-and-control” days, where a local or regional authority had possession of collected waste and could dictate where it went. But as noted, this is not a reality for a country like Ireland anymore.

The key issue is competition. Now that the private sector has been allowed to take possession of household and other waste, it is then entitled, within the bounds of the planning, environmental and other legislation, to do what it wishes with it. Neither local authorities nor central government are in a position to say that a particular contractor has the sole right to collect waste from a particular location and to disbar others from doing the same. This position has been confirmed by the High Court in the case of Nurendale v Dublin City Council, albeit that it was always pretty obvious that it was not possible for a local authority or the State to take away one organisation’s existing business and grant it to another without issues of financial compensation arising.

Within any debate about the matching of waste generation with treatment capacity, it needs to be appreciated that it is not in consumers’ interest for a waste plan’s policies to match exactly waste arisings with particular outlets, and to preclude other outlets being developed. The danger here is that regional or localised monopolies develop, with householders and other waste generators paying far more than they need to.

Accordingly, the private sector market of a country such as Ireland requires waste plans to be flexible. It also seems implicit in such a system that a competitive market inevitably implies a degree of over-capacity. Over-capacity means that too many organisations are trying to provide solutions for waste at a lowest price: a situation that gives a benefit to consumers and also, equally importantly, stimulates innovation by service suppliers. Any tendency of such a system to develop into what is known as a “race to the bottom” of cheap, poor quality or otherwise unsophisticated treatment infrastructure can be addressed by other mechanisms, being prevented by the content of waste licences and other forms of statutory authorisations. Allowing an element of over-capacity also facilitates new entrants to the waste market, who have new ideas, new technological approaches and the potential ability to displace regional or local monopolies.

In these respects, it needs to be appreciated that providers of waste services are not stupid; they do not blindly make investments in the hope that some waste will be drawn to it. And those that do, don’t last long. Moreover, and not withstanding Ireland’s property boom and the crash that followed, the fact that waste operators are highly dependent on raising finance capital from third parties means that there is a whole range of checks and balances to ensure that inordinate numbers of unnecessary facilities do not get built.

To fully reflect the reality of waste management in a country such as Ireland, the authors of the three Regional Waste Management Plans are faced with a challenging task. On the one hand, for far too long no one has appeared to know how many waste facilities exist in Ireland, what they do and how much waste they can handle. While the EPA has documented the contribution made by its licensed infrastructure for many years in its National Waste Reports, little, if any, data has been available on waste sites that are regulated by local authorities under waste facility permits and registration certificates.

For the first time, the three Regional Waste Management Plans attempt to provide a national picture, by providing data on waste sites that are licensed or subject to waste facility permits or registrations. However, even then, it is clear that the data is still patchy and it is a little surprising that each plan expresses a reality of data-gaps and a general lack of key information.

However, in compiling a waste plan, there remains the danger that, if all the data on the various waste sites and their capacities is amalgamated and totalled, it gets matched against the amount of waste being generated in a particular locality. If there appears to be a match between demand and infrastructure supply, the trap explained earlier kicks in. In other words, if capacity equates with waste supply, some stakeholders might consider it reasonable to assume that no more capacity is needed. And it is already clear that the waste industry is concerned that this is a pitfall that the authors of the three draft regional waste management plans have plunged into.

As an example, statements about over-capacity of some types of waste infrastructure are made on pages 170 and 182 of the Southern Draft Regional Waste Management Plan, with this discussion culminating in a number of formal policies statements that are set out from page 183 onwards. For example, Policy Statement E1 could not be any clearer in its intent when it states:

“There is a significant quantity of unused pre-treatment capacity in the region and future authorisations by the local authorities, the EPA and an Bord Pleanála must take account of the scale of existing treatments in the market prior to making a decision on additional capacity”.

Policy statement E13 is similarly worded in respect of land reclamation sites involving the backfilling of C&D waste. Policy Statement E9 concludes that, beyond the existing authorised final disposal infrastructure, “there is no need for additional disposal facilities to be brought on stream during the plan period”, while Policy Statement E17 supports the development of additional annual biological treatment capacity of “up to” 40,000 tonnes.  Indeed, a statement such E17 seems to be imposing an actual maximum ceiling on allowable additional biological treatment investment, despite such treatment being widely recognised as a highly desirable approach for any waste that is suitable.

Elsewhere in the Southern Draft Regional Waste Management Plan (see pages 180 and 182), the  authors note that they have experienced some significant difficulties in compiling capacity data, such as in working out how much waste different sites are actually capable of handling. They also allude to the fact this makes it very difficult to judge the capacity issue definitively. That this is recognised by the plan’s authors as an issue of significance could not be clearer in the statement made on page 180 of the Southern Draft Regional Waste Management Plan. Referring to waste facility permits and the Waste Management (Facility Permit) Regulations 2007, the authors state:

“Many tonnages authorised appear to have been allocated according to maximum tonnage authorised for that class as defined in the regulations. … This misrepresents the market treatment capacity required and sets a precedent which may restrict the development of future facilities in a market which appears over-supplied.”

Accordingly, future work over the Southern Regional Waste Management Plan’s duration is stated to include obtaining much better quality data on the capacity issue.  However, the clear and unequivocal statements that appear a few pages later in the draft Plan, particularly Policies E1, E9, E17 and E19 discussed above, seems to completely over-shadow these caveats.

A key issue that needs to be appreciated in these respects is how the Regional Waste Management Plans interface with the planning system.  Under Section 22(10A)(a) of the Waste Management Act, the content of a development plan automatically is taken to include the policies of a waste management plan. Accordingly, through Section 34(2)(a) of the Planning and Development Acts 2000-2013, a planning authority has to have regard to both plans when making a decision on a planning application. In other words, via these provisions, the content and policies of a waste management plan are “material considerations” in the grant or refusal of planning consent.  In addition, Section 22(10A)(b) of the Waste Management Act indicates that, where there is conflict between the waste plan and the development plan, the provisions of the waste plan have precedence.

The key problem with the plan policies discussed earlier is that they may well prevent existing and successful waste businesses expanding and offering more comprehensive waste treatment services. And this may occur despite such services furthering the attainment of other objectives of each Regional Waste Management Plan, providing additional capacity to meet EU targets and having other benefits.

Indeed, the rather crude way the draft Regional Waste Plans assess the capacity issue may cause the existence of authorised but unsophisticated waste facilities to block other development that might otherwise  attain a much more desirable level of waste recovery or have other environmental benefits. This may occur despite a proposed new site having finance available, be otherwise expected to pass successfully through the statutory authorisation process and being promoted by an operator who has cultivated positive local public acceptance over many years.

Moreover, if unbuilt capacity is being taken into account when assessing the “need” issue, a plan policy founded on such rules seems, rather inevitably, to preclude investment that may be significantly more viable. Ironically, such an approach may prevent projects taking place that actually have a greater potential of success, or which can be put in place more rapidly than the one that has been already subject to statutory authorisation or which have a greater potential to further the actual objectives of the Regional Waste Management Plan itself.

An example where the existence of a fully authorised but unbuilt waste facility obstructed the establishment of another major waste site is well illustrated by the N7 Resource Recovery Project promoted by Energy Answers Ltd.

The proposal by Energy Answers involved a planning application for a 365,000 tonne per year waste-to-energy project, coupled with associated construction and demolition waste recovery capability. The application was lodged in 2008 and was turned-down by an Bord Pleanála in 2009. Of the three reasons given by the Board, the most significant was that, in accordance with the Waste Management Plan for the Dublin Region 2005-2010, only one waste-to-energy facility should be provided, with this being sited at Poolbeg.  Accordingly, it was deemed by the Board that the Energy Answers proposal was in direct conflict with this Plan.

In contrast to this reason, the other two justifications for refusal given by an Bord Pleanála are much less significant. Accordingly, this example illustrates how the capacity or “need” issue of a new waste development is likely to be addressed by a planning authority or by an Bord Pleanála in its consideration of a planning application for a new waste site. Indeed, it does seem that, if the Dublin waste management plan had been less prescriptive, the Energy Answers development would have gone ahead in a similar manner to the waste-to-energy facility promoted by Indaver Ireland in Meath. Arguably, both the plant’s smaller size and its location near a major road network address some of the issues that have been raised as criticisms against the Poolbeg project.

The above analysis of some of the Draft Regional Waste Management Plan’s policies seems to indicate that the waste industry does have legitimate concerns about how the waste capacity or “need” issue is being portrayed. While the text that accompanies the capacity analysis indicates caveats and limitations due to data constraints, these seem not have been carried over and reflected in the actual policies set down in each plan. Moreover, what appears to be a very clear policy statement about local authorities, an Bord Pleanála and the EPA having to consider existing authorised capacity prior to granting any additional authorisations for waste pre-treatment is also highlighted in each of the three Executive Summaries.

It seems inevitable that it will be these policies, and not their caveats, that planning authorities will latch on to, as also may potential financiers and their advisers of new waste facilities that are being evaluated at the pre-planning stage.  By contrast, at a CIWM/IWMA meeting on 25^th November 2014 representatives of each of the waste planning regions appeared to be saying that the capacity analysis contained in each plan was not intended to place a cap on waste infrastructure development. Indeed, one person stated at different times that the “idea is not to prohibit facilities being developed” and that the plans “aren’t trying to prevent people developing waste facilities”. But, if this is in fact the intention, this message is not one that comes across from the text that has been written.

At the present time, the consultation period for responses to the Draft Regional Waste Management Plans is still open and submissions can be made until the end of January 2015. Given that the policies on future capacities are placed very prominently within each of the three Regional Waste Management Plans, it will be interesting to see whether there will be a rethink in light of submissions by the waste industry and other stakeholders.   Certainly, there seems to be an issue to be addressed here.