Seeing the wood from the trees… Environment Agency considers classification of waste wood
We previously reported on the Environment Agency's ("EA") extension of the Regulatory Position Statement 207 ("RPS") to allow completion of the waste wood classification project. Whilst the RPS was due to expire on 31 January 2021, the EA have now announced a further extension until 31 July 2021. In this article, we consider reaction from the industry and potential for enforcement action.
What does this extension mean?
The extension of the RPS means that waste wood which has not yet been assessed or classified (other than wood known to be hazardous) can continue to be used for an Industrial Emissions Directive ("IED") Chapter IV compliant permitted incinerator or co-incinerator or the manufacture of board.
Operators must continue to assess and classify wood in line with hazardous wood technical guidance before it is used for any other purpose. Once the RPS expires any wood highlighted as potentially hazardous may have to be identified, separated and consigned at source.
Challenging the extension
The Wood Recycling Association ("WRA"), which is leading the waste wood classification project, has voiced concerns that the extension is not sufficient and called for the EA to extend the RPS for a further 18 months to allow for the continued sampling of potentially hazardous wood.
Last month, the WRA issued a statement saying it plans to challenge the proposals with Defra and we understand WRA is currently having constructive conversations with both Defra and the four UK regulators about how to reach a risk-based and proportionate outcome.
Sampling conducted by the WRA so far has identified two sources of potentially hazardous wood:
The WRA aims to show through further testing that the amount of hazardous waste from household sources is reducing. If this can be demonstrated, the hope is that fence posts and decking could continue to be processed as non-hazardous. From sampling and testing to date, the WRA has only found that 6% of the fence posts and decking are hazardous. Indeed, there are concerns that the segregation of fence posts and decking within Household Waste Recycling Centres will prove to be challenging and asking the general public to segregate their wood will deter people from going to HWRCs and instead they will either fly-tip or burn it illegally.
Future enforcement action?
For the moment, so long as operators continue to operate within the confines of the RPS they should not face enforcement action.
Assuming the RPS is withdrawn on 31 July 2021, operators will be expected after this date to segregate and consign all hazardous waste wood. This includes any waste wood that has entered the waste management system and/ or as been stockpiled under this RPS. The EA said the latest five month extension would give the waste wood industry time to publish a code of practice (which meets the legal requirements for assessing and classifying potentially hazardous waste wood) and to comply with that code.
Following the withdrawal of the RPS we would typically expect to see a flurry of inspections by the EA, which will be keen to monitor the industry's compliance. With this in mind, it will of course be imperative that operators ensure they are fully familiar with the guidance as soon as it is published.
Non-compliance by operators could result in enforcement against businesses and individuals, including prosecution in the criminal courts.
If you would like to discuss any aspect of this article further, please get in touch with a member of our team at firstname.lastname@example.org.
Authors: Rod Hunt, Partner, and Daniel David, Associate
 For more information on the RPS please see our previous article https://www.clydeco.com/blog/insurance-hub/article/environment-agency-considers-classification-of-waste-wood