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Following the unprecedented set of affairs caused by the Covid-19 pandemic, the Environment Agency (EA) has released a Regulatory Position Statement (RPS) allowing operators who hold environmental permits to temporarily store more waste than their permit allows. In this article we examine the steps businesses will need to take to benefit from this relaxation.
Not carte blanche
Ordinarily, operators would require a variation of their permit to store additional waste; however the RPS relaxes the rules, provided a business can demonstrate the following:
It needs to store temporarily more waste than their permit allows because of Covid-19 restrictions; and
These are wastes authorised to be stored under the permit.
It is important to take note of the above requirements; this is not 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 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 "reasonable" 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; and
Minimising how waste storage limits are exceeded.
Clearly, the RPS does not give operators carte blanche to deviate from their permit conditions, and businesses should be mindful that the EA is setting strict boundaries to ensure businesses are taking reasonable steps and not simply accepting and storing greater waste than they are permitted to without good reason.
The RPS sets out a number of stringent steps which operators must take should they need to accept and store increased volumes of waste. We consider below a few key steps for businesses:
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must be removed within three months unless the EA has agreed otherwise, or by the expiry date of the RPS which is to be withdrawn on 30 September 2020.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.
Protecting your business
The RPS means that the EA will not normally take enforcement action against businesses and operators provided the activity they are undertaking meets the description set out and that the conditions are adhered to.
Businesses must ensure that they achieve the requirements of the RPS whilst taking all reasonable steps to comply with their permit, as well as a robust system of record keeping for the next few months. This could be the difference between operators facing a lengthy investigation (and possible enforcement action) by the EA once the pandemic passes.
Authors: Stephanie Lunt, Associate, and Dr Anna Willetts, Senior Associate.
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