Waste Sites

November 29th, 2018 by James Goudie KC

The Environmental Protection (Miscellaneous Amendments) (England and Wales) Regulations 2018, S.I. 2018/1227 (“the 2018 Regulations”), make amendments to the Environmental Protection Act 1990 (“the EPA”) and the Environmental Permitting (England and Wales) Regulations 2016, S.I. 2016/1154 (“the EP Regulations”).

The 2018 Regulations amendments relate to matters including new conditions for environmental permits authorising certain waste operations, and provisions relating to flood risk activities and radioactive substance activities.The 2018 Regulations seek to improve performance at permitted waste sites by inserting into Schedule 9 to the EP Regulations (waste operations and materials facilities) a requirement for permitted sites to produce and review a written management system where their permit does not already contain a condition for them to do so. They also introduce a condition to environmental permits for waste operations for the operator to demonstrate to the regulator their compliance with a suitable accredited scheme.

In relation to performance at waste sites, permits issued after 6th April 2008 typically include a condition for the waste operation to be managed and operated in line with a written management system.  The 2018 Regulations apply that condition to permits issued before 6th April 2008 that do not contain such a condition.  This ensures all permitted sites will have the condition, contributing to better management, without having to wait for the condition to be inserted when permits are periodically reviewed. The written management system must be a document or documents which identify and minimise the risks of pollution arising from the operation, and must be reviewed and kept up to date. The operator must also keep a written record of activities under the written management system and any review or update of the system.

In order to introduce in England a fixed penalty notice for breaches of the household waste duty of care, a new Section 34ZA of the EPA is inserted after Section 34. This enables an enforcement authority in England, either the Environment Agency or a local authority, to give a person who has failed to comply with their waste duty of care under Section 34(2A) a fixed penalty notice “FPN”). The FPN offers the person the opportunity to discharge their criminal liability upon paying the fixed penalty.  The FPN allows an enforcement authority to set a payment level between £150 and £400, with a minimum early payment of £120.  If a person pays the notice within 14 days of the date of the notice, they cannot be convicted for the offence.  When a notice is issued it must set out the 14 day period during which proceedings will not begin and that payment during that period discharges criminal liability, the amount of the penalty, any options for early payment, the permissible method of payment, and that an authority may not issue a person an FPN for an offence if they have already been issued one for that offence by that or another authority.  It must also explain that the notice contains an offer to discharge liability by paying a penalty but there is no requirement to accept that offer, and that the person can make representations to the authority about the allegations contained in the notice.

Also, the Waste Duty of Care Cod of Practice has been updated.

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