23 October 2008
CONSULTATION ON REVISED WASTE EXEMPTIONS FROM ENVIRONMENTAL PERMITTING
Introduction
1.
The UK Environmental Law Association (UKELA) aims to make the law work for a better
environment and to improve understanding and awareness of environmental law. UKELA’s
members are involved in the practice, study and formulation of environmental law in the UK
and the European Union. UKELA attracts both lawyers and non-lawyers and has a broad
membership from the private and public sectors.
2.
UKELA prepares advice to government with the help of its specialist working parties,
covering a range of environmental law topics. This response has been prepared with the
help of the Waste Working Party.
3.
UKELA makes the following comments on the joint consultation by DEFRA, the Environment
Agency and the Welsh Assembly Government on revised waste exemptions from
environmental permitting.
General
4.
UKELA is disappointed to see a consultation covering only half a package of reform. The
revised exemptions go hand-in-hand with the standard permits that are proposed to replace
some of the more complex existing exemptions (e.g. Paragraph 9 and 19); without these
permits it is difficult to assess the impact of the changes on users (as presented in the
therefore incomplete RIA) and the interaction between these proposals and other legal
instruments, including the landfill diversion targets set out within the Landfill Directive.
5.
UKELA is also concerned at the mis-interpretation of the term ‘risk’ in the consultation. True
‘risk’ cannot be determined without understanding how hazards are being controlled (i.e. site
management and compliance), which is different for all sites and thus cannot be applied
generically. Although OPRA purports to cover some of this, the site management attribute is
not strongly weighted enough to have a significant impact.
Proposal 1
To embody the principles and criteria used in the formulation of these
proposals in Government guidance for future reviews
6.
In principle it seems sensible to try to achieve a level of consistency in the making of future
regulations. However, criteria may change and the embodiment of them must therefore be
flexible enough so that changes can be made when necessary.
Proposal 2
activities
7.
To not provide the exemption for the storage of waste associated with Part B
Although it is understood that one of the driving principles behind the proposed changes is
simplicity, UKELA does not consider that this proposal meets that objective. Part B
processes are regulated by the relevant Local Authority, exemptions by the Environment
Agency. It follows that if exemptions are withdrawn, the Local Authority will be involved in
permitting the waste operations on a Part B site. This is an additional burden for the Local
Authority regulator, which will require additional resources. If limits on quantities and types
of wastes for storage associated with the permitted activities were continued, then it might
be better regulation to allow the exemptions to continue.
Proposal 3
To change the regulation of on-farm producers of mushroom compost from
the Environment Agency to Local Authority regulation through a Part B environmental
permit.
8.
The simple exemption required little in terms of cost and time. A Part B permit – even a
standard rules permit carries with it considerable obligations. Once any part of the farming
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operation is regulated through permitting then there is a risk of regulation “creep” and more
and more activities may fall to be regulated. UKELA questions whether this is in the best
interests of farmers, consumers and indeed the environment.
Proposal 4 – To provide an exemption for Local Authorities to register crushing, grinding or
size reduction operations where they consider the activity too trivial for a Part B permit
9.
UKELA recognises the technical requirement for this exemption to ensure compliance with
the law. However, UKELA doubts the extent to which it will ever be used by Local
Authorities unless very explicit guidance providing detailed thresholds for triviality is provided
by DEFRA/WAG.
Proposal 5 – To introduce three-yearly registration periods
10.
UKELA agrees that three-yearly registration is a sensible and proportionate way to
streamline the administrative burden on both regulators and exemption holders. UKELA
suggests that application forms should require a date when the activity is expected to cease,
in order to help the regulator keep its records up to date and aid the inspection programme.
For example, operations under proposed exemption U1 will not take anywhere near three
years. UKELA would also suggest that this information is included on the public register to
improve transparency and enable members of the public to verify whether any nearby
activities are appropriately registered.
Proposal 6 – To introduce a charge for the registration of all registrable exemptions
11.
UKELA agrees that a charge has to be made for these registrations, and notes the
Government’s aim of making regulators self-funding as far as possible. However, UKELA
doubts that the suggested charges will meet this statutory objective, and anticipates that this
will therefore leave the Environment Agency under-funded and unable to adequately protect
the environment. UKELA notes that the Environment Agency’s customer services function
charges £50 per hour for processing data requests and therefore assumes that this is a
reasonable estimate of the costs involved. One hour will not be sufficient to fund even
cursory checks of the exemption applications, let alone the proposed 2% annual inspection
rate.
Proposal 7 – Not to introduce a general record-keeping requirement for exempt operations
12.
UKELA supports this proposal in principle, but is concerned that there should be no gaps in
record-keeping requirements where the exemption holder is not subject to such
requirements under any other legislation. If the exemption holder is not subject to recordkeeping requirements under any legislation, this would make both compliance and
enforcement very difficult. UKELA suggests that the application form for an exemption
should require the applicant to provide information on how it will keep records and under
what legislation, otherwise this leaves a gap in the duty of care system.
Proposal 8 – Not to introduce a statutory appeals mechanism for the regulators’ failure to
register an exempt waste operation
13.
UKELA agrees with the view that the costs of establishing and maintaining an appeals
system would be disproportionate to the use that would be made of it. If a regulator refuses
to register an exemption, the applicant can apply for an environmental permit and, if that
application is also refused, there is then a statutory right of appeal. This has potentially
significant time and cost implications for the applicant. However, in the case of exemptions
there must be a mechanism to deal with cases where the regulator fails to enter the relevant
particulars on the register or refuses to do so within the relevant period, thereby leaving the
applicant in a state of uncertainty and at risk of enforcement action. This is even more
critical given that the relevant period is proposed to be only five working days in most cases.
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UKELA proposes that in cases where the regulator fails to notify the applicant of its decision
within the relevant period, the application should be deemed to be approved.
Proposal 9 – To introduce a three year transitional period from October 2009 to 1 st October
2012
14.
UKELA believes that a transitional period is vital given the number of current registered
exemptions, and notes the comment in paragraph 1.8 of the consultation document that
there are around 143,000 sites with at least one registered exemption. However, UKELA
has concerns that the resources available to the Environment Agency and Local Authorities
will be inadequate to deal with the volume of applications that will be required as a result of
the changes proposed. Even if the applications were divided equally over the proposed
three year transitional period, this would mean that the regulators would have to handle
between 45,000 and 50,000 applications annually (assuming that all of the 143,000 currently
registered sites are still operational). UKELA suggests that a longer transitional period may
be desirable.
15.
UKELA also queries why lower risk sites are being phased in to the new regime before
higher risk sites. How does such an approach protect the environment?
Proposal 10 – To provide an enhanced public register of exempt waste operations
16.
UKELA supports the proposal for public registers set out in the consultation document.
However, UKELA suggests that the date of the registration also be included on the public
register in case the registration is not removed from the public register at the end of the
registration period, so it is possible to ascertain if a registration has expired.
Proposal 11 - To provide revised environmental permitting guidance on exempt waste
operations
17.
UKELA supports the proposal to provide revised environmental permitting guidance on
exempt waste operations.
Proposal 12 - To include the principles for a regular review of exemptions in the
environmental permitting guidance
18.
UKELA agrees there should be a regular review of exemptions and has no objections to the
principles being included in the environmental permitting guidance.
Proposal 13 - To provide an additional transitional period for operators of registered
exemptions who newly need an environmental permit to demonstrate technical competence
in the environmental permitting guidance
19.
UKELA supports the proposal to provide a transitional period for demonstrating technical
competence, but has reservations as to whether the 12 month additional period is sufficient
considering that some sites may require new infrastructure in order to meet the conditions.
This issue is exacerbated by the fact that, as of yet no competence scheme has been
approved by DEFRA/WAG. The Environment Agency is currently using the WAMITAB
framework as competence, however, there is a great deal of uncertainty as the new
proposals have yet to be accepted (i.e. for the high and medium risk sites as proposed by
CIWM/WAMITAB or the proposed scheme from EU Skills/ESA), with operators obviously
reluctant to invest in the training and assessment required until the proposals are formally
approved.
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20.
UKELA also queries whether the current scheme providers have the capacity to deal with
the potential influx of applications in a 12 month period. If qualifications can be obtained via
part-time courses will this affect the period within which technical competence can be
demonstrated? UKELA believes there should be an option to extend this period with the
agreement of the regulator if individual circumstances necessitate this.
Comments on proposed exempt waste operations
21.
UKELA has the following comments on the proposed exempt waste operations set out in the
consultation document.
U1 – construction waste
22.
UKELA is disappointed that this exemption is to be limited to the small-scale use of imported
inert waste material that can be carried out without the need for a risk assessment. If the
use of construction and demolition waste has been shown to be the subject of abuse, then
the solution is for the Environment Agency to properly exercise its existing regulatory and
enforcement powers in relation to this waste, not to remove exemptions that currently allow
the beneficial re-use of large volumes of material that would otherwise end up in landfill
sites. The effect will be that large-scale operations (which tend to be run by reputable
operators) will be subject to the additional cost and administrative burden of environmental
permitting while small-scale operations (which often present a higher risk and are more
attractive to rogue operators) will continue to enjoy light-touch regulation. UKELA considers
the likely effects of the change to be the reduced re-use of materials, an increase in the
amount of construction and demolition waste sent to landfill, and a shortage of materials for
the infilling of mineral extraction sites, all of which are contrary to Government objectives
and policy, quite apart from being wholly unsustainable.
23.
UKELA believes that it would be more appropriate to continue to regulate this activity
through an exemption, albeit one that would attract significantly higher charges than most
others.
24.
Whilst it is not really possible to assess the potential impact of this change without seeing
the appropriate standard permit, UKELA notes the following points.
25.
The consultation document makes reference to restricting the wastes qualifying under U1 to
“inert” wastes. It is not clear whether this is intended to be “Landfill Directive Inert” but
UKELA notes the inclusion of several waste types which cannot possibly be inert, including
soil from washing beet and bituminous materials. UKELA suggests that clarification on this
issue is required.
26.
The proposed quantity of waste is so small as to effectively require all construction projects
of more than a modest scale which re-use waste materials to hold an Environmental Permit.
UKELA questions whether this is the Government’s intention, as the proposed change
appears to be punishing the law-abiding majority for the actions of a few. UKELA believes
that there is a real risk that, rather than providing more control over the re-use of waste, this
proposal will actually reduce oversight, as those operators likely to break the existing rules
simply do not inform the Environment Agency. Site waste management plans also have an
important role to play in managing the re-use of waste and, if properly implemented, largely
obviate the need for a separate permit.
27.
UKELA is concerned that the Government has underestimated the complexity of re-use of
waste within construction projects, especially major infrastructure. Developers aim to re-use
as much material from sites as possible (some of which may be classed as “waste” by
regulators) and maximise their re-use of off-site waste rather than importing virgin material.
They also generally aim to use local sources of waste as far as possible; whilst this is
normally for simple commercial reasons it also has wider sustainability benefits in terms of
reduced landfill, and reduced haulage emissions. To facilitate this it is often necessary to
consider the site setting in detail to determine what sort of wastes, with what chemical
composition, can be used at a particular site, rather than identifying each source first then
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applying for permission. UKELA does not understand how this assessment will be included
in a standard permit of the type so far developed. Therefore the operator may require a
bespoke permit at considerable extra cost.
28.
UKELA also foresees the following consequences for the waste management industry:
(a) The current time limit for determining exemptions (25 working days) is already the
limiting factor for many projects, especially if more than one application is required
for a successful outcome. With a determination period of 4 months for an
Environmental Permit, which regulators rarely achieve in practice, this will become a
major potential delay.
(b) The Environmental Permit will need to be surrendered. To satisfy the legislative
requirements with regard to site condition some form of site report is required for
most activities, with the aim of demonstrating that the permitted activity has not
affected the quality of the land (i.e. has not caused pollution). Clearly it will not be
possible to undertake this in the “usual” way, by the taking of samples from within
the permitted area as this will be under the re-used waste materials. The only way
UKELA can see for the Environment Agency to satisfy its legal duty would be to
require monitoring of, for example, groundwater and soil gas, to provide the required
confidence.
(c) These is a real risk that this will “blight” developed land for a long period, as the
presence of an Environmental Permit, even if in reality it represents a very low risk,
will be revealed by any due diligence carried out on the developed site.
(d) For public sector infrastructure and PFI/PPP projects there must be concern about
who will end up with responsibility for the Environmental Permit after completion –
the contractor or the client (i.e. a public body).
U12 - spreading of waste on soil to improve soil structure of add nutrients or biomass
29.
UKELA does not understand the reference to “non controlled waters”. There are so few
such waters (in effect private ponds only, as any connection to the wider water environment
renders the waters “controlled”). UKELA suggests that this should be clarified. Equally, it is
not clear why material from the dredging of controlled waters should not be used for this
purpose if it is suitable.
Regulatory Impact Assessment
30.
As noted in paragraph 4 above, UKELA is concerned that the RIA has not really considered
the impacts on current exemption holders, many of whom have a very important role to play
in recycling, for example the construction sector and ELV processing site operators.
31.
UKELA notes that the estimate of consultancy costs for assisting applicants with the
documentation is very low, and does not consider this to be realistic. Whilst UKELA accepts
that many applicants should not need assistance to complete the forms, it is likely that a
significant number will seek assistance with identifying appropriate exemptions and waste
codes for their operations.
32.
UKELA also notes that there does not appear to be a proper transparent assessment of the
costs of standard permits for those activities that are no longer to be exempt. The findings
of the RPS report are presented in a particularly opaque way. UKELA suggests that the
following need to be explicitly considered:

Application fee costs to the Environment Agency;

Subsistence charges payable to the Environment Agency;

Consultancy support for preparing working plans etc;

Costs of monitoring to facilitate surrender of the Environmental Permit;
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33.

Costs of consultancy support and application fees for surrender;

The costs of applying for planning permission or obtaining a Certificate of Lawful Use or
Development for long-standing operations, some of which may actually require
Environmental Impact Assessment; and

Costs of delays that will inevitably arise in the processing of applications (particularly in
the case of short-term activities related to the re-use of waste in construction).
UKELA also notes that there is no consideration in the RIA of the costs associated with
moving to bespoke permits. Although the relevant standard permits have not been
published, UKELA’s intuitive view is that many operations that would currently be covered by
Paragraph 19 exemptions will not actually fit within standard permits owing to the level of
site-specific assessment required. The costs of this change are potentially very significant
and UKELA strongly recommends that this is considered.
Contact:
Angus Evers
Convenor, UK Environmental Law Association Waste Working Party
c/o SJ Berwin LLP, 10 Queen Street Place, London EC4R 1BE
Telephone: 020 7111 2763
Email: angus.evers@sjberwin.com
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