Review of waste permitting makes progress

The Environment Department's work on a new waste permitting regime is moving ahead at some speed. Final proposals are expected in early 2004, followed by full implementation in the summer. Proposals on site records, enforcement and supervision were released in December.

A driver behind DEFRA's review of waste permitting is the huge number of sites which will have to be brought under regulatory controls over the next few years under various EU Directives. Lighter permitting procedures are being sought for sites handling waste electrical and electronic equipment (WEEE), end-of-life vehicles (ELVs) and agricultural waste.

There is also growing acceptance that waste management licensing presents inappropriate obstacles to waste recycling and land remediation enterprises.

The new regime will include several tiers - including registered exemptions, simple permits based on codes of practice, generic permits and bespoke permits.

The public phase of the review kicked off in the summer when a set of preliminary discussion documents was posted on DEFRA's website1 (ENDS Report 342, pp 49-50 ). The project team includes secondees from the Environment Agency and the waste management industry.

The target to complete the final set of documents by December has now slipped by a few weeks, but the team remains committed to getting the new regime in place to meet the August 2004 implementation deadline under the WEEE Directive. Indeed, the new consultation on UK implementation plans for the WEEE Directive (see pp 52-54 ) promises that the Government will publish its proposals for the new waste permitting regime in "early 2004".

  • Enforcement: A discussion paper issued in December examines the range of enforcement powers that will be required under the new regime. It proposes taking forward powers to revoke or suspend permits, broadly in line with existing provisions.

    The Agency's existing power to serve a notice requiring illegally deposited waste to be removed or cleaned up would also be preserved. However, it is proposed that this be widened to allow regulators to require preventative measures to be taken.

    The paper also proposes a new power to serve prohibition notices. These are not currently a feature of either the pollution prevention and control (PPC) or waste licensing regimes. Such a notice would prohibit a person from carrying out an activity at any site that is not regulated by way of a permit or exemption. Prohibition could be used in respect of unregulated sites as well as permitted and registered sites where the operator behaves unlawfully.

    The new regime would also give regulators new powers to take legal proceedings where they consider that criminal proceedings would be ineffectual because a person has failed to comply with enforcement notices. Similar provisions, allowing the Agency to bring proceedings in the High Court, already apply under PPC. These are to be extended to all waste permitting activities, and will allow proceedings in the Crown Court as well as the High Court.

    The paper proposes that courts should be equipped with powers to order a person convicted of a relevant offence to take specified steps to remedy the harm caused. Similar powers already exist under PPC.

    Finally, the paper toys with the idea of fixed penalty notices as an alternative to criminal proceedings for regulatory breaches. The Government is looking for consistency with the proposals under its local environmental quality agenda. It suggests that fixed penalty notices might be appropriate for failure to register an exempt activity.

  • Inspections: The working group's paper on compliance assessment avoids discussion of how frequently sites should be visited. Instead, it proposes that guidance will be issued to the Agency to explain how it should go about these duties.

    The EU waste framework Directive requires regulators to undertake "appropriate periodic inspections". Under the ELVs and WEEE Directives, inspections must be carried out prior to registering an exemption, and thereafter at least once per year.

    However, under waste management licensing there is also statutory guidance which specifies how the Agency's Operator and Pollution Risk Appraisal scheme is to be used in determining inspection frequencies.

    The issue is a sensitive one for the Agency, which has found it increasingly difficult to maintain the traditional volume of site inspections. Last year, inspections of licensed waste sites fell by 10% to just over 90,000 (ENDS Report 346, pp 9-10 ).

  • Data collection: The working paper on permit records moots changes that could eliminate the need for future surveys of industrial and commercial waste.

    For years, the waste sector struggled without data on non-municipal waste production and disposal. Things improved following the Agency's first survey of waste generation, in 1999. The second survey, delayed through lack of funding, is taking place this financial year.

    Under the new permitting regime, DEFRA notes that such surveys would not be needed if permit holders were required to make periodic returns containing information on the information and quantity of waste received by type, industry and geographical origin.

    The paper says that operators with bespoke, generic or simple permits will be required to submit waste records. It asks whether operators of registered exempt facilities should also face reporting requirements.

    The paper discusses the idea of imposing reporting requirements through regulations rather than by setting permit conditions, as is presently the case. A regulatory approach would ensure consistency in reporting, and would make it easier to set up an electronic data return system.

  • Permit consultation: The EU waste framework Directive includes no specific requirements for consultation on permit applications, but the Aarhus Convention provides for greater public participation in environmental decision-making.

    A discussion paper in the permit review package looks at the options for consultation. On the one hand, there could be an extension of the elaborate consultation procedures already applied by the Agency to "contentious" licences. On the other, codes of practice could be subject to consultation, leaving permit applications for some waste activities to a simple notification procedure.

    The paper also questions whether it is appropriate for the Agency to consult

    planning authorities on each individual application, given the imminent increase in permitting volume. It proposes leaving the matter to the Agency's discretion.

  • Overlaps with planning: The working group is proposing to remove the requirement for planning permission to be in place before a waste permit is issued. This would not change the requirement for waste sites to obtain planning consent, but would help decouple the two regimes.

  • Modifications: The group has also proposed significant extensions to the Agency's powers to modify permits. The current waste licensing regime does not allow for changes to the licensed area. Operators have to apply for a new licence when they wish to extend their sites, resulting in several licences being in force for a single facility.

    The paper also proposes that permit modification powers be used to change the range of activities specified in the permit, whereas currently only licence conditions can be modified.

    The Agency would also like to acquire powers to modify permits en masse, rather than having to service notices on each licence, as at present.

  • WEEE: The WEEE Directive requires waste to be treated using best available recovery and recycling techniques. The Government is considering how best to apply this requirement, taking the arrangements already established under PPC as a possible model. Guidance could be drawn up on best available techniques, making it possible to develop standard rules to aid WEEE permitting.

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