UNITED KINGDOM ENVIRONMENTAL LAW ASSOCIATION
WASTE WORKING PARTY
RESPONSE TO DEFRA CONSULTATION ON WASTE LICENSING
EXEMPTIONS
General Issues
1.
The UKELA Waste Working Party welcomes the opportunity to comment upon
the DEFRA Consultation on the Review of Waste Licensing Exemptions. It is
noted that there will be a further consultation on the application of exemptions to
special/hazardous wastes and it may have been useful to consider both together.
2.
Many of the issues relating to the exemptions are of a technical nature and we
have limited ourselves to comment upon legal issues although we welcome the
aim of making the exemptions more transparent.
3.
We note that many issues are to be dealt with through guidance from the
Environment Agency or through statutory guidance to the Agency. It is assumed
that statutory guidance will take the form of a Waste Management Paper on
exemptions but this is not clear. Other guidance from the Agency will not
presumably be legally binding. As lawyers we continue to have concerns that
much important “regulation” is carried out by such guidance and vulnerable to
challenge. Whether statutory or not all guidance to or from the EA should be the
subject of prior consultation with adequate timescales for consideration.
4.
There are basic resource issues for the Environment Agency relating to the
exemptions. Are there enough inspectors to police the new approach and do they
have the necessary skills? In particular will there be adequate resources to
consider any Pollution Risk Assessments carried out by operators? Although
funds can be generated by charges this is of little help if the qualified personnel
are simply not available in the market. In addition the new arrangements will
only work if compliant operators can see that the fees they pay are resulting in
vigilant enforcement against non-compliant competitors.
5.
In this connection it is unfortunate that when efforts are being made to ensure the
agricultural sector is compliant with waste regulation and agricultural waste
regulations are imminent that the Government has said there will be no fees for
this sector for use of exemptions. It seems likely therefore that as most
landspreading takes place on agricultural land the farmer will apply for the use of
the exemption without fees even where waste is being supplied by another party.
In addition non agricultural operators will not be happy if there is a suggestion
that their fees include a subsidy for regulating the agricultural sector.
6.
It is unfortunate that the approach to changes to licensing and exemptions is being
carried out in such a piecemeal fashion. It seems changes to exemptions are being
carried out in advance of the general permitting review. If the 2003 Regulations
are put in place is it intended they will then be sacrosanct and not subject to
further amendment under the Permitting Review?
Land Treatment (paragraph 7)
7.
It is assumed paragraph 2.6 is to criteria that are to be contained in statutory
guidance and do not already exist.
8.
What should be the position for flood plain land if planning permission exists for
its reclamation? Should this be ecological improvement?
9.
Criteria (f) is going to be difficult to apply because levelling will always be
advantageous for agricultural use be it arable or pasture.
10.
On ecological improvement what happens if one habitat is replaced by another as
will often be the case with soil use?
11.
It would seem sensible to require records of wastes to be submitted regularly to
the EA so long as these are examined and any inconsistencies investigated.(2.27)
Use of Wastes for Land Reclamation and Construction (paragraphs 9 and 19)
12.
The Working Group has major concerns that a disproportionate amount of
Agency time is concerned with the use and movement of large amounts of
material which have no environmental impact at all.
13.
In the context of not requiring undue regulatory burdens on industry more
attention must be given by DEFRA to producing new Guidance on the meaning of
waste in an EU context having regard to the number of cases since the production
of Circular 11/94. It is submitted that the Department should produce this to
better inform the debate on permitting and exemptions. This could be produced
as a separate piece of guidance which if independent would be more easily
updated as the law develops.
14.
It should be emphasised that in the light of the Palin Granit Case a material
produced with the formed and immediate intention to re-use it in its existing form
is unlikely to be waste. This could apply to a wide range of soil and aggregate
material where its ultimate use is more appropriately dealt with under the
planning regime applicable to reclamation and construction operations. Arguably
this could also apply where soils are collected by a supplier of soils with the
formed intention of providing them as a service. A DEFRA position on this
should be established so that exemptions are only operated outside this framework
and any amendments to exemptions are shown to be necessary.
15.
If an exemption is to be based upon “properly qualified advice” could not the
same approach be taken to the certification of uncontaminated loads going for reuse which would then fall outside control altogether?
16.
2.32: as most soils in the case of remediation will be hazardous it is unclear how
useful this will be. If soils are cleaned up it is likely on-site uses can be found as
part of the development if there is one. If not this option may be useful and
cheaper than landfilling even with with landfill tax exemption.
17.
2.33: the requirement for planning permission is a reasonable pre-condition but if
the development is permitted development why should it be prevented?
18.
2.33: the 6 month limitation may not be enough for some large infrastructure
projects and should be capable of extension by agreement of the EA.
Composting
19.
In the experience of the Working Party composting operations give rise to
considerable environmental impacts and care is needed in widening the
exemption. Traffic movements are a significant issue and if there is an
established planning use no other controls exist to moderate operations. Frequent
small scale collections by small users may generate significant traffic.
20.
It would be sensible for more emphasis to be placed upon a proper risk
assessment of a composting operation in particular where there are sensitive
receptors.
21.
Furthermore to extend the exemption to ancillary operations such as chipping
shredding etc is to introduce operations which in health terms may produce the
greatest impact but this depends upon the conclusions reached by recent health
studies on this topic and the Agency/DEFRA standpoint on this issue(see HSE
Report RR130).
22.
If operations are appropriately located away from sensitive receptors then the
proposals for permitting more flexibility for technically superior operations is a
good incentive for operators to adopt best practice.
Mobile Plant
23.
The extension of the exemption to remediation as described in 3.12 seems to be a
sensible proposal in the context of current demands for on-site remediation
techniques.
OPRA
24.
The Working Party is unclear whether the confidence exists in industry in the
accuracy of the OPRA system. Have any soundings been taken of waste
operators? In view of the commercial significance of publishing the results
operators can be expected to challenge scoring if they consider it to be unfair and
so business acceptance that the system is operating satisfactorily is important.
Conclusion
25.
If the Department would like the Working Party to comment further or elaborate
on any views then please let us know.
UKELA Waste Working Party.
September 2003.