COVID-19: an important update for waste operators
On 17 April 2020, the Environment Agency updated its temporary regulatory position statement allowing facilities to exceed waste storage limits in their environmental permit for a maximum of three months where they cannot remove waste because of COVID-19 restrictions. We consider what the Environmental Permitting regime is and the impact of the temporary regulatory position statement below.
What is the Environmental Permitting (EP) regime and who is a waste operator?
A wide range of activities involving waste is regulated by the EP regime in England and Wales. The EP regime provides a single regulatory framework for the mechanisms of permitting (including applying for, varying and surrendering environmental permits). However, the substance of permitting requirements (including permit conditions and emission limits) is largely governed by EU legislation and varies according to the type of activity being carried out and its environmental impact.
Anyone carrying out recovery or disposal of waste is carrying out a waste operation. All types of waste operation require an environmental permit, unless the waste operation is exempt or excluded and must meet certain requirements.
The impact of COVID-19
The COVID-19 outbreak has been causing disruption in the waste and recycling sector. Many waste facility operators are accumulating more material than usual, particularly where outlets such as Materials Recycling Facilities, Energy-from-Waste plants or export operations have gone offline or have reduced capacity due to staff shortages. Local authorities and commercial operators have been working hard to continue to provide vital collection services during the crisis having been deemed an essential industry by the government.
The Environment Agency’s (EA’s) temporary regulatory position statement (RPS)
The EA’s RPS only applies to wastes that facilities are authorised to store by an environmental permit under the EP regime. The RPS was originally issued on 4 April 2020 but has since been updated to clarify that it does not apply to radioactive waste or to mobile plant.
The EA’s latest RPS states that flexibility only applies if operators can demonstrate the need to temporarily store more than their waste permit allows and to wastes that they are authorised to store under the terms of their existing permit.
What does the RPS mean for operators?
The RPS means that the EA will not normally take enforcement action provided that operators:
– Ensure their activities meet the description, and comply with the conditions, in the RPS;
– Operators must be able to demonstrate that they have taken all reasonable steps to comply with their permit, including making contingency plans to avoid or minimise COVID-19 disruption;
– Ensure their activities are not likely to cause environmental pollution or harm human health. In the case of waste activities, operators should not cause a risk to water, air, soil, plants or animals, cause a nuisance through noise or odours or adversely affect the countryside or places of special interest.
The RPS will remain in place until 30 September 2020. It is highly important for waste operators to review their storage risks and notify the EA of excess waste they want to store (i.e. relying on the RPS) before exceeding waste storage limits. All notifications must be sent to the EA by email. Operators should also obtain landlord approval for increased storage, which may introduce additional hurdles and cause delay.
The measures in the RPS also go some way in helping to ensure that recyclable and waste material will be put to its intended use in the event of onward supply chain disruption, rather than simply being sent to the nearest available disposal facility.
The Regulatory team, spearheaded by Kathryn Gilbertson (Partner and Head of Regulatory), advises national companies, property developers, SMEs and private individuals on environmental compliance matters. If you would like to discuss any issues raised in this update, please do get in touch.
This update is for general purposes and guidance only and does not constitute legal or professional advice. You should seek legal advice before relying on its content. This update relates to the prevailing circumstances at the date of its original publication and may not have been updated to reflect subsequent developments. If you have general queries about our updates, please email: firstname.lastname@example.org