Mining Waste provisions make it onto the statute book
7th July 2009 marked the entry into force of yet another environmental permitting regime – this time to cover mining waste operations.
The Environmental Permitting (England and Wales) (Amendment) Regulations 2009 entered into force on that date, paving the way for the transposition of the Mining Waste Directive (Directive 2006/21/EC), by extending the Environmental Permitting (England and Wales) Regulations 2007 (“EPR 2007”) to incorporate the permitting parts of the Mining Waste Directive.
The main resulting amendment to the 2007 Regulations is the insertion of a new Schedule 18B which deals specifically with mining waste operations. (There are also amendments made to a number of defined terms, including that of ‘regulated facility’, in order that mining waste operations are included within this.)
Schedule 18B deals with:
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the information to be submitted in making an application for an environmental permit;
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review of environmental permits;
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classification of mining waste facilities;
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inspections;
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public participation;
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closure of mining waste facilities;
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the requirement for planning permission in certain cases; and
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the additional information required in relation to an application for a Category A mining waste facility.
But what are the immediate impacts of all this black letter law?
Various aspects affecting implementation of the Regulations are still to be further refined. For example, the UK Government is still to finalise a list of inert wastes that meet the criteria recently laid down by the European Commission. The distinction between inert, non-hazardous, and hazardous waste is relevant in terms of classifying a site.
Under the Directive, an area is only regarded as a “mining waste facility”, and therefore covered by the requirement to hold a permit, if the extractive waste would be kept in it for a certain time period. In the case of (1) inert extractive waste, (2) unpolluted soil or non-hazardous prospecting waste and (3) waste resulting from the extraction, treatment and storage of peat, that time period is three years.
However, this distinction as between the types of extractive waste and the time periods it is kept for, is not made within the national Regulations. By adding “mining waste operations” to the definition of a ‘regulated facility’ under Regulation 8 of the EPR 2007, ALL mining waste operations in England and Wales have been brought within the requirement to hold an Environmental Permit, not just those that meet the Directive definition of “waste facility”.
Even where inert wastes and unpolluted soil are kept for more than 3 years (thus meeting the Directive definition of “waste facility” and triggering a number of additional requirements), the requirement to hold a permit under Article 7 of the Directive only applies where these wastes are deposited in a Category A mining waste facility.
So, for certain sites, a permit shouldn’t be required. However, in all cases the management of extractive waste must meet the general requirements of Article 4 of the Directive, which require it to be managed without endangering human health or harming the environment. The operator must also prevent or reduce adverse effects on the environment and human health, and in doing so take all measures based on best available techniques (BAT). Under Article 5, operators are also to draw up waste management plans for the minimisation, treatment, recovery and disposal of extractive waste, taking into account the principle of sustainable development. These are required for all sites.
Whilst the requirements of Articles 4 and 5 of the Directive don’t require operations to be regulated by way of an actual permit, the EA and Defra have decided that for England and Wales, it is through an environmental permit that these other necessary requirements of the Directive (in particular the Article 5 requirement for a WMP) are to be delivered.
The requirement for a permit in ALL cases will be seen as a significant departure from the Directive especially for those now required to have a permit merely for the keeping of inert waste. Of course, should the materials be capable of meeting the criteria for a non-waste by-product, they could escape regulation altogether: if they’re not ‘waste’, they can’t be ‘extractive waste’ under the new provisions.
Recent draft Guidance from the EA says discussions are going to be opened up with DEFRA on how the management of non-hazardous waste generated from the prospecting of mineral resources and unpolluted soil and waste resulting from the extraction, storage and treatment of peat could be regulated in a different manner (i.e. not necessarily requiring a permit). This is as a result of the national authority’s ability to waive the requirement for a WMP in this case.
However, for the management of extractive wastes that does still require a WMP to be prepared, the EA are trying to ease the regulatory burden of applying for a full-blown environmental permit, by developing standard rules for the management of inert wastes and unpolluted soil, which would only require confirmation of the existence of a WMP, rather than this actually having to be submitted at the permit application stage. However, this doesn’t get round the requirement to hold a permit in the first place and will be of little comfort to those now facing the full rigours of the permit application process.
The immediate impacts of these new Regulations will therefore be felt by those who commenced mining waste operations between 1 May 2008 and 7 July 2009, who are now required to submit a permit application. A recent regulatory position statement issued by the EA seeks to reassure operators that they will be allowed until 30 November 2009 to do so, provided that they enter into pre-application discussions with the EA by 7 August 2009 and also comply with the general requirements of Article 4 of the Directive, i.e. ensure that extractive waste is managed without endangering human health and without using processes or methods which could harm the environment.
This of course is only the start of a long list of requirements that will ‘hit’ now that the mining waste provisions have made it onto the statute book. These may ultimately include certain closure and after-closure procedures, the need to have a major accident prevention policy in place, or the requirement for a financial guarantee.
Whilst England and Wales have opted to regulate mining waste operations through the environmental permitting regime, the position in Scotland and Northern Ireland will differ, due to those jurisdictions having chosen to transpose the Directive through their respective planning regimes. Final draft regulations are awaited for both jurisdictions which, once available, will enable a full analysis of UK transposition of the Mining Waste Directive and the implications of this for operators UK-wide. Separate regulations dealing with external emergency plans are still to be brought forward in England and Wales to transpose aspects of Article 6 of the Directive relating to major accident prevention.
Only once all these final strands are to hand can the true implications of this increased regulation of those in the quarrying and mining sector of the waste industry be fully understood.
FOR FURTHER INFORMATION PLEASE CONTACT: FIONA ROSS