Limiting liability: the waste hierarchy
Steve Simmons on what activities are exempt from new rules on applying the five-stage waste hierarchy
Waste costs have risen relentlessly since 1997 following the introduction of the landfill tax. The pressure to control cost and ensure compliance has increased still further this year in England and Wales since the passing of the Waste (England and Wales) Regulations 2011.
There is now a legal duty on anyone creating commercial or industrial waste to apply the waste hierarchy in deciding on the best way to deal with their waste. The hierarchy sets out, in order of priority, the waste management options to be considered by the producer:
- prevention;
- preparing for reuse;
- recycling;
- recovery (eg energy recovery); and
- disposal.
From 28 September 2011 transfer notes, which are legally required when waste is transferred from one person to another, must also contain a declaration that the transferor has applied the waste hierarchy. This new duty will inevitably lead to many waste producers looking at their waste streams and trying to find alternative options that are further up the hierarchy. However, some waste activities remain exempt.
Permit conditions
Under the Environmental Permitting (England and Wales) Regulations 2010 (EPR), most forms of waste storage, treatment or disposal activity can only be undertaken under the authority of an environmental permit. This requirement applies not only to waste contractors, but may also apply to the original producer. Producers looking to deal with their waste in different ways, other than simply putting it in a skip for disposal elsewhere, need to be aware of this requirement as they may inadvertently stray into using forms of waste treatment requiring permits or other forms of legal authority before they can be undertaken.
Environmental permits entail costly application and subsistence fees, require technically competent management and generally set out numerous conditions that must be complied with. In order to facilitate storage, treatment and disposal activities that lead to environmental benefit and carry little environmental risk, there are defined circumstances where a person can undertake such activities without the need to obtain a full permit. These are referred to as exempt activities and they are set out in Schedule 3 of the EPR.
Even if the activity is exempt, there may be a requirement to register it formally with (usually) the Environment Agency (EA) and there may be conditions and limits placed on the activity.
Free from control
The first option that many producers will consider is segregating waste into different storage containers pending its transfer for recycling or recovery elsewhere. Sorting waste is a “treatment operation”, but in most circumstances producers can do this without prior permission or registration, as this activity has a so-called Non-Waste Framework Directive exemption. This also allows producers to undertake simple forms of waste treatment where the operation does not result in a change in the make-up or composition of the waste, and is carried out purely to facilitate transport or separate collection of components.
This may include activities that, prior to the EPR, also had to be registered – such as compaction of paper and cardboard, shredding of confidential papers or the separation of recyclables from mixed wastes into separate storage containers. The ability to sort waste without registering exemptions or gaining a permit will be an obvious benefit to organisations keen to increase their recycling performance.
Another exempt activity that producers may consider is the temporary storage of waste on a site controlled by the producer. It enables the waste created elsewhere to be taken back to their main place of business for storage and transfer for recycling or disposal. This will be of particular value to builders and service companies, allowing them to take site waste back to their depot for storage in a skip. Again, there is no requirement to register this activity.
Registered exemptions
If an activity is not allowed for under the circumstances outlined above, it may be possible to operate under a registered exemption. There are four categories of activity that may be eligible:
- use of waste;
- treatment of waste;
- storage of waste; and
- disposal of waste.
In Schedule 3 of the EPR, these are given codes prefixed with the letters U, T, S or D as appropriate. Before undertaking any of the listed activities themselves, or transferring waste to someone else who may wish to operate under an exemption, producers should check that the waste meets the definitions contained in the Schedule, and that, where required, appropriate planning permission is in place and the activity can be undertaken without risk of pollution or harm to health.
If all of the requirements can be met, the EA must be given advance notification using a registration form. Once registered, the activity is then permissible as long as the conditions are complied with. All but one of the defined exempt activities are free and last for three years, after which time they must be re-registered. Exemption T11 – “Repair or refurbishment of WEEE (waste electrical and electronic equipment)” – is a chargeable exemption (£840 for three years)
Low-risk waste
If the activity is not listed under the exempt operations there may be two further options to consider, which, although they are not legally defined in the EPR, would still allow some forms of storage, treatment or disposal without a permit. These are “low-risk waste” activities. It does not make the activity “legal”, it simply allows it to continue without the risk of enforcement action.
There is a list of activities that the agency is prepared to allow to continue under its low-risk waste regulation policy on its website. Most of the activities listed are highly specific to particular types of activity or types of waste.
Paper trail
There is an old saying among lawyers that is particularly applicable to waste management: “Ending up in court is like going to the toilet: if you do not have a piece of paper with you it is a very messy business!” Legally dealing with waste involves a lot of paper – waste transfer notes, consignment notes, copies of contractors’ permits or waste carriers’ registration records, and waste exemption registrations.
Businesses keen to start diverting their waste from landfill need to determine whether any arrangements to apply the waste hierarchy, including diverting waste for reuse, recycling or recovery, are exempt or whether an environmental permit is required. It is worth remembering that innovation in waste management to improve environmental standards, although often well intentioned, can easily stray into illegality.