The government has announced significant changes to waste exemptions. The changes will apply to England and Wales and will be introduced by amendments to the Environmental Permitting (England and Wales) Regulations 2016 (EPR).
Waste exemptions allow waste operators to carry out certain low risk waste activities under a registration scheme, without needing an environmental permit. In this article we outline the main changes and how businesses need to prepare.
Environmental permits are granted subject to conditions, on the basis that the permitted activity is the only waste operation being carried out on the site.
When operators have registered exemptions that extend their waste activities beyond the limits and conditions of their environmental permit, they will now need to apply for a permit variation.
The EPR currently allow the registration of multiple exemptions at a single site.
Where more than one exemption is registered at a site, the storage limit for each waste type will be limited to the lowest limit set out in the exemptions registered.
For example, an exemption allowing 50 cubic metres (m3) of wood to be stored, together with another exemption allowing 60m3 of wood to be stored, would not allow 110m3 to be stored. Instead, an overall storage limit of 50m3 would be allowed, the lowest limit of the two exemptions.
Where an operator registers more than one exemption at a site, they must:
The EPR will be amended to include a general record keeping and production duty in relation to all exempt waste operations. This requirement will take effect immediately once the amended EPR come into force.
Operators will be expected to complete a form, provided by the regulators, for the specific exemptions they are registering. This form will include information such as the specific waste types handled under their exempt activity and details of waste throughputs. This record must be made available on request at the registered site, or by a specified date if the operator receives a written request from the regulator.
Operators of an exempt waste activity will be expected to retain records for the duration of their exempt activity and for one year following the cessation of their activity.
Changes will be introduced to require that records must be made available to the exemption registration authority in an electronic format and/or in an IT system identified by the regulator.
As with the requirement to keep records, this requirement will take effect immediately once the amended EPR come into force. The regulator will determine when and how often they will require records to be made available, for example as part of a targeted compliance check, or on a regular basis.
The conditions of the U1 exemption will be changed to restrict waste types, quantities and activities in relation to specific construction activities, rather than specifying an overall limit for the exemption.
The name of the U1 exemption will be changed to ‘use of wastes to construct and maintain surfaces and barriers’.
The proposed changes mean that the exemption will be more restrictive than it is currently. However, there are alternative options available that avoid the need for an environmental permit. Waste-derived materials can be used without a permit if they have been fully recovered and meet end of waste criteria. This could be by using material that is compliant with a quality protocol or resource framework.
There will be a transition period of 12 months from the date the amendments come into force.
The U16 exemption will be removed - this will mean operators currently using the U16 exemption will need to apply for an environmental permit to operate, or cease their related activities.
There will be a short transition period of three months from the date the amendments come into force.
The conditions of the T4 exemption will be changed to reduce storage limits and change the specified waste types, to ensure more frequent turnover and reduce stockpiling. The title of the exemption will be changed to ‘Preparatory treatment of waste’.
There will be a transition period of six months from the date the amendments come into force.
The storage limits and conditions for specified waste types will be amended to ensure better turnover and reduce stockpiling. The title of the exemption will be changed to ‘Treatment of waste wood and plant matter’.
There will be a transition period of six months from the date the amendments come into force.
The T8 exemption will be removed - operators currently using this exemption will need to operate under permits or cease related activities.
There will be a short transition period of three months from the date that the amendments come into force.
The T9 exemption will be removed - this will mean operators currently using this exemption will need to operate under permits, or cease activities allowed under the T9 exemption.
There will be a short transition period of 3 months from the date that the amendments come into force.
The conditions of the T12 exemption will be changed to minimise the risk, including of fire, of waste being stockpiled and then abandoned under a T12 exemption.
There will be a transition period of six months from the date the amendments come into force.
The conditions of the D7 exemption will be changed including those relating to storage time limits and conditions and the use of certain types of waste will be removed.
The title of the D7 exemption will be changed to ‘Burning vegetation at the site of production’.
Operators that wish to carry on activities that will not be allowed under the revised D7 exemption will need to be authorised to do so under an environmental permit or cease their D7 exemption related activity.
There will be a transition period of six months from the date that the amendments come into force.
For waste exemptions that will be removed:
For waste exemptions for which the conditions are to be amended:
New exemptions subject to transitional provisions that are registered after the amendments to the regulations can also operate under the existing exemptions until the end of the transition period.
If your operations require changes to include environmental permit variations or applications, the process may take longer than the transition period. It’s not uncommon for permit applications to take 12 months to be approved.
Late planning could lead to non-compliance, which might result in penalties or disruptions to business operations.
Paul Collins is an environmental lawyer and has extensive experience advising on regulatory disputes, including supporting clients through the environmental permitting process and appeals. He worked for the Environment Agency (EA) for over a decade until 2024. He was a senior lawyer advising on enforcement of the environmental permitting regime, including the issuing of civil penalties, agreeing enforcement undertakings and represented the EA in appeals against permitting decisions. Paul was also the lead lawyer for the EA enforcing the climate change regimes and represented the EA in more than 150 appeals against civil penalties, in the First-tier Tribunal and the Upper Tribunal.
Paul is therefore uniquely well placed to advise clients in relation to regime compliance, steps to take in response to enforcement action, and prospects of success when making representations or bringing appeals.
If you would like to discuss this, please contact Paul Collins.
