COVID-19 and storage limits
(UPDATE - RPS withdrawn on 1st October 2020) In the wake of COVID-19 and lock-down, the waste and recycling sector raised concerns that waste sites may struggle to comply with the conditions of their permit in the event of a reduced workforce or inability to move recyclable or waste material to its normal destinations.
The Environmental Services Association (ESA) warned that short term flexibility would be needed around planning and permitting conditions to prevent operators being unfairly penalised for non-compliance as a result of these issues.
In response to this matter, the Environment Agency released an updated regulatory position statement on 17th April, clarifying when operators can temporarily exceed waste storage limits due to the impact of COVID-19. Where operators meet certain conditions, the Environment Agency will not take enforcement action against them for non-compliance in relation to breaches of storage limits.
Who does the regulatory position statement apply to?
The position statement applies to companies that can demonstrate they need to ‘temporarily store more waste’ than their permit allows. The waste in question must be waste allowed under the permit.
The position statement does not affect any other environmental legal obligations of the operator, including those under COMAH, hazardous substances consents and Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH). Where relevant, operators must check whether increasing the storage of hazardous wastes on site could affect COMAH thresholds or other relevant legislation on storing hazardous materials.
How long will the regulatory position statement apply?
The position adopted by the Environment Agency is temporary and will apply until 30th September, unless the Environment Agency decides an extension is necessary.
What do companies have to demonstrate to prevent being enforced against for breach of permit due to COVID-19?
First and foremost, operators who whose storage compliance is impacted by COVID-19 must contact the Environment Agency via this email address, putting Waste COVID-19 RPS C2 – ‘For information’ in the title of the email. For queries, operators should add ‘For action’ at the end of the wording in the title of the email.
In order to be covered by the exemptions in the regulatory position statement, companies must evidence that they have taken all reasonable steps to comply with their permit. They can do this by demonstrating that they have undertaken contingency planning to avoid or minimise disruption to their business, they have taken steps to minimise the impact and duration of not being able to comply with their permit and that they have taken steps to minimise the exceedance of waste storage limits.
Additionally, operators must adhere to a number of conditions. These include ensuring that all excess waste is removed within three months (unless the Environment Agency has agreed otherwise), obtaining written agreement from the landowner and not accepting waste at a site if it poses a risk to human health or the environment. Operators must notify the Environment Agency in writing, in advance of the types and quantities of waste they want to store over their permitted limits and store all waste within the permitted site boundary. Waste which is accepted on site first must be removed from the site first and waste must be separated according to its storage age.
Operators must also comply with certain conditions in relation to records. These include undertaking a written review of the risks of storing additional waste and how it will affect any plans, for example the management system and fire prevention plan and must keep records of any changes made to these plans. Records of these changes should be provided to staff and must be complied with. These records and records to show that operators have complied with the position statement, must be retained for 24 months and be made available to the Environment Agency on request.
Situations where the regulatory position statement will not apply
The Environment Agency may take enforcement action against companies accepting waste which is not permitted under their permits or if they cause a nuisance through noise or odour. Enforcement Action may also be taken if companies do anything to adversely affect the countryside or places of special interest.
Is COVID-19 affecting your business’ ability to comply with its permit? If you need advice on how to remain compliant during this period, contact us today.