Controversy surrounding Defra’s proposed transposition of the revised Waste Framework Directive (rWFD) continues to mount. The main point of contention is the department’s interpretation of Article 11, which states: ‘Member States shall take measures to promote high quality recycling and, to this end, shall set up separate collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors... [By] 2015 separate collection shall be set up for at least the following: paper, metal, plastic and glass.’

To some in the sector, the wording clearly rules out commingled collections, but since the word ‘commingle’ has never been officially defined in law, Defra has taken the stance that so long as materials are collected separately from rubbish and then further separated at a materials recovery facility (MRF), the conditions of the directive can be considered to have been met.

Those with vested interests in commingled collections and MRFs have come out in favour of Defra’s interpretation. On Valentine’s Day, waste giant Biffa released a statement commending Defra for its ‘common-sense approach’ to commingling, which said: ‘Biffa’s interpretation of the Directive is entirely consistent with that reached by Defra and their legal advisors; waste for recycling is to be collected separately from residual waste, and this occurs with both co-mingled and kerbside sort systems.’ A
few days later, Simon Ellin, Chief Executive of The Recycling Association, published a letter on letsrecycle.com, throwing the weight of his organisation behind commingling, and Viridor’s Colin Drummond followed suit on the 22nd in a letter stating: ‘Classing [commingled recyclables] as a separate collection of recyclables represents a common-sense approach to sustainable waste management, as it is realistically often the only solution’.

Of course, not everyone agrees. In fact, these statements followed hot on the heels of an announcement from the Campaign for Real Recycling (CRR) that it would seek a judicial review, should the proposed transposition be passed into law. The campaign, supported by reprocessors and other organisations, including Novelis, Berryman, Straight and Friends of the Earth, claims: ‘The inclusion of commingling is contrary to both the wording and spirit of the rWFD and therefore not a transposition of it.’
With regards to the potential judicial review, Chair of CRR, Mal Williams, said: “Legal advice we have received suggests that we have a very strong chance of success.” And, indeed, Resource can reveal that Mal Williams has received a letter from Klaus Koegler, Head of Unit at the EC’s Environment Directorate, stating: ‘As regards the co-mingled collection of paper, metal, plastic and glass, it seems questionable so far whether a subsequent separation of these fractions could provide a quality of recyclables recovered from waste similar to that of separately collected waste fractions... it appears doubtful whether the separation of paper and glass after a co-mingled collection... will meet the high purity standards of the paper and glass industry.’

Resource has also seen bits of correspondence between the EC and other members of the CRR that corroborate this view. A further letter indicates the EC’s intention of assessing national legislation to ensure compliance later this year.

Though Defra has refused a Freedom of Information request from the CRR to see the correspondence it has had with the EC on its transposition, there is some evidence that it is unsure of the legal standing of its proposal. Indeed, at the AfOR conference this February, Lord Henley admitted in his question and answer session that there was ‘an element of doubt’ about Defra’s current stance on the
commingling issue.

The case is sure to continue.