Waste Industry Update May 2010
EPR 2010 – EA reveals the costs
Following the recently published Environmental Permitting Regulations 2010 (EPR), the EA has issued key guidance which confirms the charges that will form part of the Environmental Permitting (EP) Charging Scheme 2010/11. The EA’s Three Tier Permit Structure, based on its Unified Charging Framework (UCF), forms the basis of the charging scheme which now reflects the expanded permitting regime under EPR 2010. Therefore, the charging scheme and guidance cover charges relating to a wide range of activities brought into the single EP system, including EP charges for waste facilities, installations, mining waste and mobile plants, groundwater and surface water discharges, and radioactive substances.
A number of types of charge exist for the EA to recover its costs incurred through regulating EP, including charges for the Application, Variation, Subsistence, Transfer and Surrender of a permit.
While overall there has been a baseline increase in the charges of 1%, and a number of new charges relate to those activities which have only recently been brought within the EPR, the charges for application for a permit, and variation, transfer and surrender of permits, have been reduced in most cases. Provision has also been made to allow the EA to waive or reduce charges that it considers to be “significantly disproportionate” in certain cases.
Fundamentally, the Three Tier Permit Structure combines the approach taken under the EA’s Operational Risk Appraisal Scheme (Opra), a risk assessment tool which enables the EA to target the high environmental risk posed by a poor performing site. Therefore the EA has simultaneously issued revised Opra guidance, aiming to give an overview of the Opra scheme in light of the EPR 2010 Charging Scheme. Operators can work out their Opra-banded profile with reference to 5 key “attributes” which provide the basis for an environmental risk assessment of their activities. The information provided for each attribute will enable the EA to establish a band rating for an activity within Tier 1 and 2, according to whether it requires more or less “regulatory effort” from the EA due to the level of environmental risk involved.
The five “attributes” are based on key considerations of a site’s activities which determine its:
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Complexity – looking at whether hazardous substances are involved in a site’s activity and how much work is demanded of the EA to ensure that permit conditions are met);
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Emissions and Inputs – considers the amount a site is allowed to release to air, water and land as well as waste coming onto site or being transferred off-site;
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Location – the state of environment around the site;
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Operator Performance – management systems and performance history; and
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Compliance rating – how well an operator keeps to the rules of their permit.
Following Opra, the “Tiers” of Regulation set charging bands to accurately link the charge to the risk posed by activities covered by registration or a permit. The higher the risk presented by an activity, the higher the regulatory tier it is placed in.
Consequently, Tier 1 which covers low risk activities is not used for any charges within the EPR charging scheme. Tier 2 covers medium risk activities for which the EA must decide whether to grant a permit. Tier 2 activities are allocated to different bands using Opra principles and according to the type of charge. Each band has a fixed charge. Tier 3 incorporates charges based on an Opra-banded profile of sites carrying out high risk activities and requiring more detailed and individually tailored permits. The more “complex” Tier 3 permits cover installations; waste operations; groundwater activities; mining waste operations; mobile plant operations and some radioactive substances operations.
The revised Opra guidance is available through the following link:
http://publications.environment-agency.gov.uk/pdf/GEHO0410BSFA-e-e.pdf
Information confirming the EP Charging Scheme 2010/11 and the accompanying guidance can be accessed below:
http://www.environment-agency.gov.uk/business/regulation/38811.aspx
REACH’s remit under the microscope
The European Chemicals Agency (ECHA) has passed draft guidance on waste and recovered substances under the REACH Regulation (Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation (EC) No. 1907 2006). The guidance aims to clarify the status of recovered materials that cease to be waste and are therefore subject to REACH’s requirements, and also the conditions under which recovery operators recovering substances from waste can benefit from certain exemptions under REACH.
The guidance sets out how REACH and the WFD are intended to work alongside each other. Under Article 2(2) of REACH, waste as defined by the WFD is not considered to be a substance, mixture or article, and is consequently free from REACH requirements. However, as soon as a substance ‘ceases to be waste’, REACH requirements apply in principle in the same way as to any other material, with a number of exceptions granted conditionally. Clarification as to the point at which waste ‘ceases to be waste’ remains within the domain of the WFD and the guidance therefore concentrates on clarifying the status of materials that have been recovered, that have ceased to be waste and are therefore subject to REACH requirements.
Article 2(7)(d) of REACH provides the main exemption for recovered substances, allowing exemption from registration on the condition that the same substance has been registered before. The guidance explains that if, for some reason the same substance has not been registered at manufacturing or import stage, the recovered substance has to be registered before the recovered substance that has end-of-waste status can be imported or placed on the market. Therefore “sameness” of a recovered substance and a substance already registered is the key condition for qualifying for the exemption.
The guidance outlines the key factors which should be taken into account to enable manufacturers to form an initial assessment of whether their substances qualify for the registration exemption.
First, consideration must be given to the stage in the processing of waste at which REACH obligations start to apply depending on when the material loses its waste status i.e. after a material ceases to be waste the recovery process is at an end. End-of-waste materials may from then on be processed as a substance on its own, in a mixture, or in an article in a production process (referred to under the single term of ‘substance’).
Thereafter, consideration should be given to the information required to support an application for exemption. When applying for an exemption, manufacturers must provide identification of the recovered substance (with provision of the corresponding data as set out in Annex IV of REACH); clearly distinguish whether the substance is a substance, mixture or article; and specify whether a constituent of a recovered material is a material or an impurity.
The guidance may be accessed via the following link:
http://guidance.echa.europa.eu/docs/draft_documents/Consolidated%20Guidance%20on%20waste%20and%20recovered%20substances_v3.2.pdf
Down the drain
Following two long-running cases involving breaches of European requirements for urban waste water treatment, the European Commission (EC) is taking Spain and Italy to court over its failure to comply with the Urban Waste Water Treatment Directive 91/271/EC. The Directive requires Member States to put in place adequate systems for collecting and treating waste water in urban areas by 31 December 2000. The aim of the Directive is to protect the environment from any adverse effects caused by the discharges of such water.
According to the EC, Spain and Italy have a poor record in meeting the Directive’s requirements, having received a warning in 2004 after information showed that a significant number of towns fell below the standards required by the Directive. A further and final warning was sent to Spain in 2008 and to Italy in 2009. A subsequent evaluation revealed that around 178 towns and cities in Italy and about 38 in Spain were still found to be in breach of the legislation.
The consistent breaches have therefore resulted in the EC taking action against Spain and Italy, due to concerns over the level of pollution that has arisen due to poor waste water management. The EC are of the view that more than eight years after the deadline to comply with the Directive, these are serious breaches, given the threat caused by urban waste water to public health and the fact that it is the most significant cause of pollution in coastal and inland waters.
Indeed, the dangers of untreated waste water are widespread, presenting a dangerous risk for human health due to contamination from harmful bacteria and viruses as well as containing nutrients such as nitrogen and phosphorous which cause damage to freshwaters and the marine environment, both of high ecological sensitivity. Due to their sheer volume, discharges of urban waste water containing such nutrients are the second most serious cause of water pollution in the form of eutrophication. The Directive therefore varies the level of treatment for urban water depending on the sensitivity of the receiving waters.
For more information on the case, click on the following link:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/528&format=HTML&aged=0&language=EN&guiLanguage=en
Mining waste and landfill – operation overview
Following the expansion of the environmental permitting regime brought together by the Environmental Permitting Regime 2010 (EPR 2010), the Environment Agency (EA) has issued additional guidance on permits for mining waste operations and landfill waste disposal. The guidance plays an important contribution towards giving these areas of waste management the necessary focus in order to meet key requirements under the respective EU legislation.
The permitting parts of the Mining Waste Directive (MWD) are transposed in England and Wales through EPR 2010. The Regulations aim to address the key concerns expressed by Article 4 of the MWD, by securing the necessary procedures to ensure that material such as waste rock, tailings and overburden, extracted from mines and quarries, is controlled in a way that protects public safety and the environment. As the guidance highlights, this is achieved not through specific techniques but as a result of management of extractive waste using best available technique (BAT). In addition, Article 5 requires that operators prepare a waste management plan (WMP) for the minimisation, treatment, recovery and disposal of extractive waste. The guidance outlines the essential information that a WMP should contain, reminding operators that the WMP will form a key element of the application for an environmental permit. It is vital that this information establishes that the particular methods the operators have chosen for mineral extraction and treatment will meet the required objectives of the WMP.
However, the MWD also recognises that the vast majority of mining operations do not carry high risks of hazardous impacts and therefore advocates a proportionate and risk-based approach to dealing with mining waste. The guidance observes the MWD’s rationale, confirming that the EA will not require a permit or a WMP for deposit of unpolluted soil from a working mine or quarry, deposit of certain non-hazardous waste from prospecting of mineral resources, and deposit of waste from extraction, treatment and storage of peat. For those operations which do require a permit, it highlights that the permits otherwise leave a degree of flexibility as to how to achieve the objectives and outcomes required by the EA.
The main purpose of the guidance is to inform operators of the key issues that they will need to manage effectively (and which will form the content of the WMP) to ensure continuing compliance with their permits and to reduce risk to the environment. These include:
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control measures for any emission to surface or groundwater that is integral to the waste operation;
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emissions to air from dust or particulate material (which are probably controlled equally by planning permission conditions); and
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slope failures (to address failures in stability of tips and deposits of mining wastes which could result in catastrophic accidents, causing serious danger to human health and the environment).
The mining waste guidance may be accessed through the following link:
http://www.environment-agency.gov.uk/static/documents/Business/614_MiningWaste_TGN_v1.0.pdf
Meanwhile, the EA has published guidance aimed at helping the landfill industry understand how it intends to regulate landfills under the Landfill Directive (99/31/EC) and EPR 2010. The Directive sets tough operational and technical requirements for disposal of waste by landfill, striving to reduce the negative effects of landfilling. The EA therefore uses the guidance to set out its position on the principle areas such as landfill location, landfill engineering, landfill closure and existing landfills, which come under landfill regulation and to assist operators in understanding their obligations within the landfill regime.
However, a top priority of the guidance is to clarify the definition of landfill – broadly defined by Article 2 of the Directive as “a waste disposal site for the deposit of the waste onto or into land”. The EA clarifies that the scope of the Directive is limited to Waste Framework Directive (WFD) waste and therefore mining waste is not covered by the guidance, but lagoons and pet cemeteries are highlighted as being capable of falling within the broad definition of a landfill, depending on certain criteria.
In addition, the guidance declares the separation of different classes of landfills as being an important issue in defining what a landfill should comprise for the purpose of permitting. Key physical factors should be considered for landfill separation such as the stability and durability of any engineered structure which separates landfills. Also provided is a breakdown of the landfill wastes which cannot be landfilled and wastes acceptable in each landfill class, depending on whether it is a landfill for hazardous or inert waste.
The guidance, ‘Understanding the Landfill Directive’, may be viewed via the following link:
http://www.environment-agency.gov.uk/static/documents/Business/RGN_LFD1_Landfills_(v2.0)_30_March_2010.pdf
Low risk, lower expectations
The publication of the Environmental Permitting Regulations 2010 (EPR 2010) in April has seen an overhaul of the exemptions for low risk activities which do not require an Environmental Permit. Subsequently, the EA has revealed its updated position on low risk activities, stating that having considered the risks posed by specified waste activities, it has reached the conclusion that it is not in the public interest to expect operators of those activities to obtain a permit.
The overall position of the EA is that it will not expect a permit to be obtained in certain specified circumstances where it is considered that an exemption from permitting could be developed. In such circumstances, low risk positions could provide new exemptions in subsequent waste exemption reviews. However, the EA is keen to emphasise that the issuing of its position does not mean that an exemption will be made – the Government has the last word on whether an exemption will operate.
The EA’s position stems from the principle that regulation should be proportionate to the level of environmental risk posed by a particular activity, therefore moving closer to the Government’s goal of encouraging reuse and recovery of waste. It highlights that this approach will lead to greater sustainability of its resources, which will be best put to use towards those activities which have potential to cause greater risk to the environment.
As a result of the new exemption system under EPR 2010, the majority of low risk waste activities listed by the statement in Appendix A have in fact been withdrawn or else will be retracted at a later date, as the activity will either be covered by an exemption or may now require a permit. The EA recognises the challenge that the transition from low risk positions to exemptions represents to many businesses, with many needing to register for the first time. It has therefore issued supplementary guidance on the effect of the exemption review on low risk positions.
To view the EA’s position statement which provides access to the additional guidance on low risk positions, click on the link below:
http://www.environment-agency.gov.uk/static/documents/Business/CR_Low_Risk_Regulation_Appendix_A_v42_revised_APRIL10(2)_(2)_(2)exemption_implementation-update.pdf
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