A consultation paper on revised waste exemptions from environmental permitting1 was published jointly by DEFRA, the Welsh Assembly Government and the Environment Agency in July this year. The closing date for responses is 23 October 2008 and implementation of the new regime is currently expected by October next year. This update considers how the changes proposed by the consultation would alter the current regulatory position in England and Wales and how operators of different waste activities are likely to be affected.

Current exemption regime

The majority of existing exemptions from environmental permits (formerly waste management licences) have been in place since the Waste Management Licensing Regulations came into force in 19942. Waste activities are currently regulated according to the potential risk of harm to health or the environment in the following hierarchy. 

  • ‘Simple’ waste activity exemptions: ‘Lighter touch’ regulation, where operators need only comply with certain rules and not cause harm to health or the environment. These exempt operations usually still require registration with the Environment Agency.
  • More complex ‘notifiable’ exemptions: Subject to a higher degree of regulation, including registration charges, annual renewals, and additional requirements before registration. 
  • Waste activities which require an environmental permit: Operations which are considered higher-risk and are therefore subject to tougher regulation.

Waste management in England and Wales has evolved significantly since 1994 and numerous activities have since been identified which were not considered when the original raft of exemptions were drawn up. As these do not benefit from the current exemptions, the Environment Agency has adopted so-called ‘low risk positions’ for those activities which it considers do not warrant the need for full environmental permits. The Agency has allowed these activities to continue despite neither falling within an existing exemptions nor having an environmental permit. These low risk positions were only ever intended to be a short-term fix to a temporary problem and the revised exemptions intend to remove the need for them.

Proposed amendments to the exemptions

A number of significant changes are proposed in the consultation. Whilst these proposals are formally only at the consultation stage, they do come on the back of an extensive informal discussion paper and a number of workshops held with key stakeholders in early 2007, so the thought process is fairly far advanced. The consultation also contains fully-drafted regulations to make the proposed amendments to the Environmental Permitting Regulations 2007.

The consultation aims to streamline the current regulatory framework, and deliver ambitious benefits to operators which the Government estimates to be worth £110 million. The proposals are as follows. 

  • Extending the scope of the existing ‘simple’ exemptions to include as wide a range of low-risk activities as possible. It is intended that these additional exemptions will include nearly all of the current low risk position activities, with only ‘a few’ expected to require environmental permits. 
  • Removing all ‘notifiable’ exemptions and instead regulating higher-risk waste operations through the use of one or more standard permits (permits linked to a fixed package of standard rules for a particular type of activity’).

Other significant features of the proposals include as follows. 

  • The introduction of three-yearly registration periods, with registration charges for each exempt site, including farms (£50 per site per three years, with a lower fee for electronic registration). 
  • A phased three-year transitional period for operators to comply with these changes. 
  • Making the regulations more user-friendly, including grouping exemptions under headings of use, treatment, disposal at the place of production, storage, and 
  • A list of non-registerable (‘non-Waste Framework Directive’) exemptions, including: 
    • storage of waste at the place of production pending collection (this is already the case); 
    • temporary storage of waste on a site controlled by the producer; and 
    • temporary storage at a collection point. 
  • Requiring the European Waste Catalogue to be used to describe exempt waste types. 
  • Introducing quantity thresholds for all exemptions
  • Provision by the Environment Agency of revised/updated guidance on exemptions under the environmental permitting regime. 
  • Regularly revision of existing exemptions, and amending and updating of these by the Environment Agency as necessary.

Who will be affected by these changes?

The consultation estimates that the proposed changes will affect operators as follows.3 

  • 83 per cent of those operations which are currently under a ‘simple exemption’ will remain so – this registration will now be subject to a registration fee, and renewal every three years. 
  • 12 per cent of those currently registered under an exemption relating to waste stored by its producer or at a collection point will no longer be required to register an exemption or pay any related charges. 
  • 5 per cent of those currently exempt will need to apply for an environmental permit – this may be a new–form ‘standard permit’. Operators will need to demonstrate specific operator competence and any necessary planning permissions before such permits will be granted. 
  • All ‘low-risk position’ activities will be withdrawn by the Environment Agency. Nearly all those currently operating under these will need to register for a (simple) exemption, with the remainder requiring environmental permits.

Implementation of the changes - October 2009 and beyond

Some changes will come into effect as soon as the regulations come into force and it is important that those likely to be affected by these are fully prepared to make the necessary registrations/applications/amendments to ensure compliance. Other changes will be phased in over a three-year transition period. The anticipated timeframes for implementation are outlined below. All will require implementation as soon as the regulations come into force, unless a later deadline is indicated. 

  • Some registered exemptions which fall within the list of non-Waste Framework Directive exempt activities will no longer require registration with the relevant regulator, so will need to be removed from the public register of exempt activities. 
  • Existing ‘low risk positions’ will need either to: 
    • register an exemption for the first time and pay the first three-yearly registration fee (for lower-risk activities); or 
    • obtain an environmental permit by 1 October 2010 (if considered higher-risk). 
  • Existing ‘simple’ exemption activities will need either to:
    • re-register an exemption and pay the fee by either 1 October 2010, 1 October 2011 or 1 October 2012 (timing depending upon the activity and associated risk); or
    • obtain an environmental permit by 1 October 2009, 2010 or 2011 (depending upon the level of risk posed by that activity). 
  • Existing ‘notifiable’ exemption activities will need either to: 
    • re-register as a ‘simple’ exemption and pay the fee (for lower-risk activities); or 
    • obtain an environmental permit by 1 October 2010, 2011 or 2012 (depending on the activity’s risk category). 
  • Activities under existing environmental permits will either: 
    • now fall under an exemption and thus no longer require a permit, in which case the permit may be surrendered. The exemption must be registered and the three-year fee be paid; or 
    • will still require a permit, and will continue as before (although it is also possible that some revisions and amendments may be required to the conditions of existing permits). 
  • New operations
    • As soon as the regulations come into force all those commencing what would have been exempt waste operations for the first time or at a new site must comply with these new requirements.

What should operators be doing now?

In order to be prepared for the changes outlined above, operators should consider: 

  • which waste activities carried out at present or in the next few years are likely to be affected by the proposed changes; 
  • what changes may need to be made to existing exemptions or permits; 
  • which exemptions may need to be registered or environmental permits obtained for new or future operations; 
  • the impact of the changes on budgets and staff training needs; and, most critically, and 
  • whether to make any representations in respect of the proposals by the consultation deadline of 23 October 2008. A number of industry bodies will be doing so, but check to see whether your concerns are likely to be represented.