Environment Agency Relaxes Waste Permit Rules

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26 April 2020 | Updated 14 May 2020

The Environment Agency (EA) is allowing waste operators to temporarily hold more waste than their permit usually allows.

The EA has released a Regulatory Position Statement (RPS) stating that:

“You must usually comply with the waste storage limits in your environmental permit. However, this COVID-19 regulatory position statement (RPS) allows you to temporarily exceed those limits if you cannot remove waste from your site because of Coronavirus (COVID-19) restrictions.”

The RPS does not apply to radioactive waste or to mobile plant and waste operators must notify the Environment Agency by email before using this COVID-19 RPS.

What other steps will businesses need to take to benefit?

Associates at law firm Clyde&Co recommend the importance of taking proper note of the requirements to use this RPS.

A business must demonstrate that:

• It needs to store temporarily more waste than their permit allows because of COVID-19 restrictions
• These are wastes authorised to be stored under the permit

Stephanie Lunt, Associate, and Dr Anna Willetts, Senior Associate at Clyde&Co stress that use of the RPS is not a licence for operators to now accept and/or store additional waste which falls outside of the permit conditions and limitations.

Vitally, the RPS requires that businesses must ensure temporarily increasing the amount of waste does not endanger human health or the environment – this includes, for instance, any risk to water, air, soil or plants as well as causing a nuisance through noise or odour.

In order to ensure businesses are fully protected from any enforcement action by the EA, they must be able to demonstrate that they have taken all reasonable steps to comply with their permit. The RPS sets out these steps as follows:

• Contingency planning to avoid or minimise disruptions to business because of COVID-19
• COVID-19 response planning to minimise the impact and duration of not being able to comply with permits
• Minimising how waste storage limits are exceeded

Key steps for businesses

Here are the key considerations for businesses thinking of using the RPS to store more waste than usual, as defined by Clyde&Co:

• Operators should be forward-looking as the EA has firmly stated that all waste stored above the limits of a business' permit must be removed within three months unless the EA has agreed otherwise, or by the expiry date of the RPS which is to be withdrawn on 30 September 2020. Businesses should, so far as they can, plan ahead to try to ensure that they have sufficient avenues for waste to be removed from site to avoid falling out of compliance once the RPS is withdrawn, when inevitably there will be a spike of businesses trying to remove waste during this period
• Operators cannot simply accept waste exceeding permit limits on to site – they must ensure that they obtain written agreement from landowners before increasing the amount of waste being stored at the site, which in the current climate may be challenging
• Operators must also ensure that they manage the waste on a strict rotation basis so waste received first on site is removed first from site – separation of waste and proper storage is also key to ensuring businesses do not fall foul of the RPS requirements
• A written review of the risks of storing additional waste at site must also be undertaken – businesses should ensure a thorough, comprehensive review is undertaken or risk potentially facing enforcement action in the future by the EA. Operators should ensure their review incorporates consideration of any fire prevention plans or management system changes which may need to be adapted
• Of vital importance is record-keeping and documenting the rationale for decisions being made. If businesses need to rely on the RPS by accepting and storing waste which exceeds their permit, they must do so with caution and ensure that they have retained clear records to show the RPS has been adhered to for at least 24 months

To explore more about this topic and to get in contact with the authors of this advice, visit Clyde&Co here.

Picture: A green waste bin

Article written by Ella Tansley | Published 26 April 2020

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