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DEFRA - Review of Waste Permitting
Defra is reviewing waste permitting and has published seventeen work packages. The review aims to examine how the permitting requirements of the Waste Framework Directive (Waste FD) and similar provisions in related EU legislation may be delivered in the UK through a single permit or through exemptions. Defra aims to provide a regime that effectively and efficiently meets the needs of the public, the environment, affected industries and minimises burdens on industry and the agencies, by delivering risk-based regulation where the standards of operation required are proportionate to the risks involved.
The informal consultation process has been completed and a final report will be published for formal consultation in Spring 2004. This report will contain draft regulations which would introduce a single permit system together with a partial RIA. Defra aims to provide transitional arrangements to ensure that existing operations migrate into the new regime in the most efficient and effective manner.
Risk Based Regulation
Defra proposes that activities that represent the lowest risk to the environment should have the least amount of regulatory control, in terms of statutory requirements relating to that activity and how the operations are regulated by the enforcing authority. The approach involves three tiers of risk assessment:
Tier 1: Simple risk screening - exempt activities or activities carried out under a simple permit.
Tier 2: Generic risk assessments - Codes of Practices and generic risk assessments would be developed for specific, non-site specific activities.
Tier 3: Site-specific risk assessments - complex activities requiring detailed quantitative risk assessment.
Tiers of Regulatory Control
Defra suggests permit options for a proportionate, risk-based approach to regulation of waste disposal and recovery operations. Operators of disposal or recovery operations will either have to be registered exempt or issued with one of the following permits:
A. Registered Exemption - lowest degree of risk.
B. Simple Environmental Permit - standard set of conditions and would apply to recovery operations where site location would not be an issue.
C1. Generic Environmental Permit - vast majority of WML permitting activities. Codes of Practices would set out specific permit requirements.
C2. Bespoke Environmental Permit - more complex activities which do not have a Code of Practice but are not included in the PPC regime.
D. Pollution Prevention and Control Permit - activities permitted under the PPC regime.
Exemptions
Defra proposes a system for exemption registration and for removing the permitting requirement for the 'deposit' of waste, instead creating a separate offence for the abandonment/dumping of waste. Defra also proposes that the cost of administration and inspection of the activities will be recovered by the Agency and that exemptions may be time limited and subject to renewal.
Application and Determination
The key issues outlined are as follows:
• Planning permission will not be a pre-requisite to obtaining an environmental permit.
• Creation of 'outline' or 'staged' applications which would allow determination of different parts of proposed activities at different stages.
• Provision of a 'letter of comfort' to industry prior to making formal application would indicate that the outline proposals are likely to result in the grant of a permit.
Permit Consultation
In order to remove the requirement for consultation of each individual permit application, the following changes have been proposed:
• HSE will not be a statutory consultee for individual permit applications.
• Relevant planning authority will not be consulted on every individual permit application.
• Current consultation arrangements with English Nature and the Countryside Council of Wales will be maintained for generic and bespoke permits.
• Permits could require wider public consultation in relation to contentious sites.
Operator Criteria
The key issues include:
• Environment Agency can refuse, revoke or suspend a permit based on conviction history.
• Extension of the current COTC system to consider 'corporate competence' and to allow alternative ways of demonstrating technical competence.
• Use of environmental management systems to achieve and enforce technical competence.
• Financial Provisions: Agency given power to require information or to carry out a financial check of the applicant.
Permit Surrender
Differences between the current waste management licensing system, the PPC regime and the landfill Directive with regard to permit surrender have led DEFRA to consider alternatives to the existing systems. Defra has proposed that:
• The permit holder would notify the Agency of cessation of activities and the Agency would be required to proactively notify those sites of the need to demonstrate that the land is left in a "satisfactory state".
• Requirement to remove all waste/potentially polluting substances prior to surrender could apply to all permits.
• Partial surrender would apply across the spectrum.
• Agency will have a specified time to determine a surrender application.
Permit Content
Defra aims to establish what should (and what should not) be included in permits and to provide for the necessary procedures and powers in respect of imposing, enforcing and appealing against the terms and conditions of permits. New regime should
• Allow expansion and development of a site, partial surrender and
• Cater for a wider range of permitting activities, including mobile plant.
Permit Modification
Defra aims to create a flexible and responsive system for permit modification. The key issues are:
• Agency to be allowed to refuse or modify conditions on application.
• Agency to be allowed to modify permit conditions en-masse.
• Period for determination of a modification application should be 2 months; the application remains valid until the Agency formally grants or refuses the application.
• Agency will have the power to consolidate a permit following modifications.
Permit Transfer
Mechanisms for the transfer of an environmental permit will include:
• Whole transfer: similar to Waste Management Licensing Transfer.
• Partial transfer: Introduce the power to transfer part of a permit (not available for WML).
• Bereavement: Permit could be vested with personal representatives who could disclaim the permit as onerous property; transfer the permit or surrender the permit.
• Bankruptcy, insolvency or liquidation: Trustees/liquidators would be allowed to transfer or surrender the permit. They will need to make an application with a proposed transferee.
Records
Defra has addressed the requirements to create, hold or submit records and has proposed that the Agency be given the power to require regular returns from permit holders and possibly from those operating exemptions.
Compliance Assessment
Defra proposes that the new regime will retain a duty for the Environment Agency to inspect permitted sites and registered exempt activities. Regulations for the new regime will carry forward the compliance assessment requirement of waste management licensing.
Enforcement
The new regime will allow for pro-active and proportionate measures for the prevention of harm or pollution and incremental, appropriate and proportionate enforcement measures.
Public Registers
Defra proposes that the information to be placed on public registers should include applications (licence/permit, modification, transfer, surrender); statutory consultees representations; the licence/permit; formal notices; appeal decisions; monitoring information; directions from the Secretary of State; offences and site inspection records. Information that should be excluded from the public registers is that which is commercially confidential; likely to affect national security; the subject of potential or actual legal proceedings (waste only).
Appeals
Defra proposes the following as cases being suitable grounds for appeal: refusal of an application for a permit; failure to determine an application for a permit by the Agency within a specified time limit; refusal of a surrender or partial surrender of a permit; the terms and conditions of a permit except for the rules of a simple permit which has been issued on application or the general rules of a generic permit; a notice of modification or refusal to modify or failure to modify within a specified time period; refusal to transfer a permit or failure to determine an application for a transfer within a specified time limit; other than for non-payment of fees, suspension or revocation of permits; enforcement
Notices to require preventive or remediation or to remove waste and contaminants; and the Agency has determined that information that may be included in a register is not commercially confidential. Appeals will no longer be allowed against deemed refusals but only where the Agency fails to determine an application within the prescribed period.
Charging
Defra aims to establish the most appropriate mechanism for recovering charges for waste activities and proposes that for the purposes of the new permitting regime the Agencies are given powers, as specified by the Environment Act 1995 to make a charging scheme that is proportionate; risk based; transparent; recovers the cost of regulation; is as simple as possible; and is consistent with other charging schemes that have previously been made by the Agency.
Simple and generic permits could attract a fixed application (and subsistence) charge. For more complex permits a series of charging bands could apply depending on the level of risk posed by the activity.
General Powers and Transitional Arrangements
Proposed powers of direction for the Secretary of State/National Assembly of Wales would include the power to direct:
• The Environment Agency in respect of the determination of any matter that is subject to an appeal or whether information should not be placed on a public register.
• An operator to allow specified wastes to be disposed of or recovered in an emergency.
• The Agency to modify the terms and conditions of a permit under wider circumstances that do not constitute an emergency.
• The Agency to refer an application to SoS. Such a power already exists.
• Persons to deal with any waste - which is not Directive waste- as if it were Directive waste and apply the provisions of the new regime to it.
• The Agency to provide an annual report to SoS on the exercise of its functions.
Transitional Arrangements
Defra aims to provide transitional arrangements to ensure that existing operations migrate into the new regime in the most efficient and effective manner. These arrangements include:
• Minimise the need for any operator to re-apply for a permit that already meets the legislative requirements;
• Allow operators to benefit from the introduction of simple permits and codes of practice as these become available;
• Allow the Agency to carry out a staged review and upgrade of old licences;
• Minimise the period during which both waste management licensing and new environmental permitting are running in tandem.
Consultations on review of waste permitting
ESA's responses to the seventeen work packages
Further information is available from Sam Corp.
March 2004
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