Landfill – A Restoration Opportunity Or Not?

Impact of the PPC regime on the restoration of quarries

Although there has been a move to progressively reduce the amount of controlled waste in the UK that is disposed of to landfill, it remains the destination for approximately 70% of our waste. Much of it is landfilled in voids left by mineral extraction. While there is a clear synergy between the extraction and waste processes, Minerals Planning Guidance 7 stresses that: ‘The choice to integrate the two activities should be a deliberate and conscious one, which takes account of the joint impact of the extraction and landfill on the site and surrounding area. Successful reclamation of a mineral site does not automatically imply a preference for reinstatement to former original contours and ground levels.’

Planning considerations

Proposals for the infilling of mineral voids became subject to more stringent regulation by virtue of the Landfill (England and Wales) Regulations 2002 (the Landfill Regulations), which require landfill applicants to obtain a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000 (the PPC Regulations).

The Defra publication Integrated Pollution Prevention and Control – A Practical Guide, stresses the importance of the planning and the PPC regimes running in tandem where landfill development is proposed. The Landfill Regulations themselves state that planning permission cannot be granted for a landfill unless the conditions in paragraph 1(1) of schedule 2 have been factored in. This means that the location of the landfill must take into account requirements relating to:

• the distances from the boundary of the site to residential and recreational areas, waterways, water bodies and other agricultural or open sites
• the existence of groundwater, costal water or nature protection zones in the area
• the geological or hydrogeological conditions in the area
• the risk of flooding, subsidence, landslides or avalanches on the site
• the protection of the natural or cultural heritage of the area.

All mineral planning consents will contain a condition requiring restoration. If the original application for the extraction of minerals was not predicated on the basis that the site, once worked, would be used for landfilling, an application may need to be made under section 73 of the Town and Country Planning Act 1990 to vary the restoration and aftercare conditions in the planning consent so that landfilling can take place as an alternative. Where a quarry is proposed for use as landfill, the planning authority will have to take into account relevant guidance on the provision of waste-management facilities, including Planning Policy Statement 10, Regional Spatial Strategies and local plans. Minerals Planning Guidance Note 7 provides detailed advice on the planning considerations relevant to drawing up appropriate conditions where mineral sites are to be adapted for use as landfill.

The Environment Agency (EA) must also have input into the planning process for landfills. Its Regulatory Guidance Note (RGN) 3 states that the EA will object to planning applications for landfill sites that are situated in a groundwater Source Protection Zone 1 (even where the site is only intended to take inert waste). In the case of other sites, the EA will object if the risk assessment in support of the application shows that long-term site management is going to be essential to prevent groundwater pollution, and the proposed site:

• lies beneath the water table, where the groundwater links to sensitive surface waters
• is in or on a major aquifer
• falls within Source Protection Zones 2 or 3.

How this will work in practice will no doubt become more clear once it has been tested in the courts.

The Landfill Regulations

The Landfill Regulations came into force on 15 June 2002. They implement the Landfill Directive (1999/31/EC), which was intended to mitigate the effects of landfill operations on the environment.

As a result of the introduction of the Landfill Regulations, operators are required to apply for a permit under the PPC Regulations. The application process requires the submission of a detailed risk assessment, to demonstrate what impact the site will have on the environment. The risk assessment must cover hydrogeology, site stability, landfill gas and habitats.

The intention both at a European and domestic level is to reduce the amount of bio-degradable waste going to landfill. The Landfill Regulations are one of a range of measures designed to encourage this outcome. Although the Government has set targets for the reduction of landfilling of waste, its Waste Strategy 2000 still accepts that landfills can, if properly managed, represent a suitable disposal option, and that landfill ‘will play a role in any future system of sustainable waste management, but it will be a much smaller role’.

The EA has (in the absence of guidance from Defra) issued a raft of supporting guidance notes for the interpretation of the Landfill Regulations, including RGNs, which flesh out some of the principles in the regulations. RGN6 sets out in detail how the engineering requirements of the Landfill Regulations should be interpreted. There are two overarching principles that must be observed:

• there must be no likelihood of unacceptable discharge/emission over the life cycle ??of the landfill
• there must be structural and physical stability throughout the life cycle of the landfill.

The form of this interpretation is being challenged by a number of waste-management companies regarding the integrity and configuration of engineered barriers installed between different parts of the same landfill, and which has led to the EA refusing a number of permit applications because the older parts of the landfill were not fully engineered or were operated on the principle of disperse and attenuate.

One of the key requirements for achieving these goals is the need for a geological barrier, even for those sites that only take inert waste. A risk assessment must be carried out to demonstrate how the geological barrier will operate in practice, in order to ensure compliance with the Groundwater Regulations 1998. At a recent appeal it was determined that a landfill site does not require both a geological barrier and a man-made liner if the former satisfies the purpose of the Directive.

For those former quarry sites that are in close proximity to sensitive groundwater sources, such as major aquifers or Source Protection Zones 2 and 3, an artificial barrier is likely to be required in addition to a geological one if the site is taking waste that will produce leachate. This may be problematic in former quarries where the side walls tend to be steep, given that the requirement for a lining system to be installed up the sides of the landfill applies regardless of the gradient. This may require the quarry walls being lined with clay, overlain by a sealing liner if the waste streams to be accepted could generate leachate. Inert waste streams that do not generate leachate will not require an artificial barrier, but must still have a geological one. For those sites that will take other waste streams, an artificial sealing liner will not be necessary if the risk assessment can demonstrate that the site does not require it. This will depend on a number of factors, including location, the proximity of the site to groundwater, and the nature of the waste accepted, and the leachate it may generate.

Issues for quarry sites

Leaving aside those quarries intended for development into landfill, concern has been more generally expressed about the impact of the PPC regime on the restoration of quarries. Inert wastes from mines or quarries have traditionally been used for restoration and have not been treated as controlled waste, nor classed as liable to landfill tax.

The EA’s interpretation of the Landfill Directive means that quarry sites taking inert waste for restoration are effectively treated as landfill sites. Even for landfill sites taking inert waste, there must be a geological barrier at least 1m thick with a permeability of 1.0 x 10^-7 m/s.

The costs of having to install geological barriers in what are effectively inert sites can be prohibitive. For some operators, it may in fact be more economically viable to consider whether the site could take non-hazardous wastes. The engineering requirements for such sites are more onerous and expensive, but the possibility exists to recoup some of the costs through disposal charges. However, the permit system is predicated on the basis of risk. Sites have failed to obtain PPC permits for disposal of non-hazardous wastes because of their proximity to groundwater, which is one of the key environmental risks to be considered under the Landfill Regulations. Since many former quarry sites are often close to groundwater sources, the viability of a proposal to convert a former quarry site to a landfill would need to be carefully evaluated and costed. The PPC process has increased the costs of compliance significantly and it remains to be seen whether attempts to cut red tape will reverse this trend.

The Environmental Permitting Programme (EPP)

The Government acknowledges that the legislation governing waste management has evolved piecemeal over time and is in need of consolidation. Some waste operations, such as landfill, fall within the PPC regime, while others are still governed by the waste-management licensing system.

The Government consulted earlier this year on how to streamline the permitting system, without impacting adversely on environmental protection, admitting in the consultation document that the current arrangements are ‘perceived and experienced as too complex for industry and regulators’.

Concern has been expressed in the waste-management industry about the application of the PPC Regulations to its activities. Parts of the industry are involved in costly disputes with the EA about site boundaries, leachate depths, man-made and interface liners, and other technical issues. The problem lies in how the legislation has been interpreted and applied.

The Government’s vision for future waste regulation, as set out in the EPP consultation, is broad and aims to deliver innovative, risk-based and proportionate regulation. The intention is to target resources on the areas of highest risk, and to integrate the existing permitting systems.

The coming months will reveal the outcome of the consultation and, hopefully, more detail on how these aims are to be achieved.

Enforcement developments

Further developments to the regulatory regime can be expected over the coming months.

One example was the publication on 22 May of Professor Richard Macrory’s review of regulatory penalties. His Government-commissioned paper is subject to consultation, which closes on 18 August, with the final report and recommendations being published in the autumn of this year.

Professor Macrory’s proposals are that a range of alternative administrative penalties are brought into play for environmental (and other similar) offences. His proposals include giving the EA the power to issue variable financial penalty notices. This would, in his words, leave prosecution for those cases where there is evidence of ‘intentional or reckless behaviour’ or where ‘the actual or potential consequences are so serious that the public interest demands a criminal prosecution’.

On first reading, the proposals represent a more efficient way of regulating, but they also increase the suite of enforcement options open to a regulator, and businesses will no doubt want some reassurance that any new powers will be used responsibly. Of particular concern for those operating landfills, which are subject to regular inspection by the EA, will be the question of whether all breaches will automatically be subject to a penalty if the EA is given the powers proposed. More penalties may be imposed more frequently on an industry that is already well regulated.

Professor Macrory’s preference is for fixed or variable penalties to be calibrated with the means of the offender. The turnover, profit and size of the organization under investigation will therefore be of great importance. This may result in larger businesses, which are running more complex technical sites where environmental and health and safety matters are already taken seriously, finding themselves on the receiving end of more penalty notices; while those whose business turnover is small (but whose operations are perhaps no less significant in terms of environmental risk or impact) may be allowed to continue with standards that are less acceptable but which they cannot rectify due to lack of resources. While many operators would welcome the flexibility that the proposals represent, fairness requires that businesses should be treated equally and in accordance with the risk that they generate.

Conclusions

The challenges facing waste management are immense, and with doubts emerging that the 2009/10 targets in the Landfill Directive will be achieved, urgent cutting of red tape is required. It remains to be seen where the EPP consultation on the permitting system will go, and whether the proposals for reducing the regulatory burden on UK industry deliver in practice.

The authors, David Savory and Lyn McPherson, are director: environment and technical at Biffa Waste Services Ltd and senior solicitor at Nabarro Nathanson, respectively