Position on the “enclosed building” requirement

The consultation proposed that non-treatment activities, such as storing and transferring waste, including loading and unloading, should be carried out in an enclosed building where these activities produce “significant emissions that you cannot effectively control by alternative measures.” The document made it clear, however, that the requirement for an enclosed building would be the default position unless suitable alternative measures could be demonstrated.

The proposal was widely criticised by members of the waste industry. The measure, some stated, would require significant sums of money to be invested in changing the set up of their sites, others objected to the requirement as a default position and insisted that the EA provide guidance on the types of measures which would constitute alternative measures. In response to these objections, the EA confirmed that the reference to enclosed buildings as a default measure had already been removed from the guidance in response to the feedback. However, rather confusingly it also indicated that whilst not all facilities would have to be enclosed, it would be down to the operator to have regard to the guidance and to make “a compelling justification as to what is being done.”

Guidance published on 12th July 2021

On 12th July, the EA published guidance on “Non-hazardous and inert waste: appropriate measures for permitted facilities.” Paragraph 6.1 deals with “enclosure within buildings”. It states: “enclosing activities within buildings can be an appropriate measure for preventing and minimising emissions of pollution.” It goes on to advise that a “partially enclosed building may be an appropriate measure on its own, or together with other appropriate measures, depending in the site-specific circumstances.” Whilst the EA has backed down on the position that the enclosed building requirement is a default measure, the second paragraph under 6.1, makes it clear that there are some circumstances where an enclosed building will be mandatory.

It states: “If your waste treatment activities are likely to cause (or are causing) significant pollution at sensitive receptors which cannot be addressed by alternative measures, then you must carry out that waste treatment activity within an enclosed building.”
Similarly, the guidance advises that non-treatment activities, such as storing and transferring waste (including loading and unloading) must be carried out in enclosed buildings where “these activities are likely to cause (or are causing) significant pollution at sensitive receptors which cannot be addressed by alternative measures.”

Is the guidance sufficiently clear?

The move away from enclosed buildings as a default position is a positive change and suggests that the EA has listened to the waste sector’s calls for a more risk-based approach. There are, however, still some areas of concern. The reference to partially enclosed buildings is new. It is unclear why this has been introduced and raises the question of whether the EA will be suggesting sites use partially enclosed buildings as a suitable alternative to fully enclosed buildings. If this is the case, the objections already raised by the waste sector in terms of costs and practicality still apply. Some transparency and detail is needed in relation to the inclusion of this measure.

The guidance also stipulates that enclosed buildings will be necessary where there are activities which are likely to cause (or are causing) significant pollution at sensitive receptors which cannot be addressed by alternative measures. It does not, however, give examples of the types of measures which would be appropriate. The lack of guidance on this issue will naturally cause operators some discomfort. As pointed out in our previous blog post on this issue, the EA’s approach to alternative measures in relation to its fire prevention plan policy (FPP) has been chaotic.

Many wood waste operators have been left frustrated by the EA’s inflexibility and lack of knowledge surrounding the processes, operations and procedures which would satisfy alternative measures. Some operators have found themselves subject to enforcement action because of this lack of understanding. Despite the fact that the FPP was introduced in 2015, it was not until January of this year that the EA published a document setting out examples of alternative measures. This delay is unacceptable. It is hoped that the EA has learnt from past mistakes and will issue guidance on suitable appropriate measures in relation to enclosed buildings in due course.

Application of the Guidance

The EA has confirmed that the guidance will need to be in place for new operations but it has not clarified the position in relation to applications which are currently being determined. In relation to existing operations, the EA has indicated that it will assess the current operating techniques against the relevant appropriate measures by way of permit review. With the current permitting backlog, however, it is expected that any such reviews will not be initiated for some while.

If your business could be affected by the Environment Agency’s ‘enclosed building’ proposal and you would like to seek legal advice, why not contact us?