The Environment Agency’s ‘enclosed building’ proposal causes controversy

Between 14th September and 18th November 2020, the Environment Agency (EA) ran a consultation on appropriate measures for permitted facilities dealing with non-hazardous and inert waste. The new guidance seeks to implement best available techniques (BAT) and follows the development of the European waste management BREF, which covers a number of hazardous and non-hazardous treatment installations.

The aim of the guidance is to “improve the way that permitted facilities in the non-hazardous and inert waste sector are operated and designed” and to “ensure that standards are clear, consistent and enforceable.” The measures introduced under the guidance will apply to existing and new facilities including household waste recycling centres, waste transfer stations, materials recycling facilities and sites producing soil and aggregates.

Enclosed building requirement

Amongst the measures proposed in the consultation document is the introduction of a “default control measure” requiring waste treatment activities to take place within an enclosed building. This measure, the document states, “is an appropriate measure for preventing and minimising emissions of pollution.” It goes on to explain that non-treatment activities, such as storing and transferring waste, including loading and unloading, must also be carried out in an enclosed building if these activities “produce significant emissions that you cannot effectively control by alternative measures.” Whilst the consultation document indicates that the requirement may not apply where an operator can demonstrate to the EA that “alternative measures are equally effective or better”, it makes it clear that the requirement for an enclosed building will be the default position.

Waste industry’s objections

The measure has been widely criticised by members of the waste industry who, under the new guidance, may be required to invest significant amounts of money into changing the setup of their sites in order to comply with the requirements. The chief cause for concern amongst those in the sector has been the positioning of the enclosed building requirement as a default measure. Tarmac has denounced the measure as “counter to a risk-based approach” and has expressed concerns that the manoeuvre may lead to fewer sites staying open. The company has called for the EA to provide advice on the sorts of measures it would consider to be “equally effective or better” than an enclosed building. The Environmental Services Association (ESA) has similarly indicated that more guidance is needed on “alternatives to some of the ‘default’ requirements specified in the guidance”, whilst UROC has suggested that the imposition of the new requirement is “unlawful” and is at risk of judicial review, not least because Best Available Techniques apply only to facilities that are defined as installations and not waste operations.

EA’s response to criticism

Speaking at the National Civic Amenity Site (NCAS) Conference, the EA’s senior advisor for site-based regulation, Howard Leberman, sought to address some of the concerns raised by the waste industry. According to reports, in relation to the suggestion that the guidance could be subject to legal challenge, Mr Leberman stated that the first step in the judicial review process is “the formal pre-action protocol letter which gives us a second chance to explore the legality of our guidance.” He indicated that the consultation response document may address some of the issues raised by those in the industry, however expressed an interest in seeing “how all of this develops.” Mr Leberman confirmed that the reference to enclosed buildings as a default measure has already been removed from the guidance in response to the feedback received. He referred to the wording as “emotive” and acknowledged that it distracted from the overall message of the guidance. He indicated that not all facilities would have to be enclosed, but qualified this by stating that 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.” Mr Leberman further addressed criticism that EA officers regulating sites lack the judgement to apply such guidance flexibly on a case by case basis. He stated that officers will have access to “training, technical checks and support” to aid them in applying the guidance. He went on to imply that a robust framework of checks and balances will be in place, stating that officers “shouldn’t be making any of these judgments alone.”

Does the guidance unduly burden operators?

In addressing the criticism levelled at the guidance, Mr Leberman sought to allay the growing concern of the waste industry. Unfortunately, his address has further compounded issues, confirming that it will fall to operators to ensure that they are not subject to disproportionate requirements. Whilst stating that the requirement for an enclosed building will not be the default position, it is clear that this is not truly the case and that the burden will fall on operators to create a “compelling justification” for not having an enclosed building. This approach sounds very much like the requirement for an enclosed building will be a default position.

However, even more concerning is the EA’s suggestion that judicial review proceedings will present an opportunity for the EA to review the legality of the guidance. This approach is simply unacceptable. The EA has a duty to ensure that any measures it introduces are justified, proportionate and, most importantly legal. The industry should not be forced to incur legal costs challenging guidance which seeks to implement onerous requirements when the EA itself is not clear on the legalities. The impression created is one of a regulator who cannot be relied upon to regulate fairly. It should not take the threat of legal action to force a regulator to review its own measures where there are serious and substantiated concerns over their legality.

Whilst the EA is eager to emphasise that frontline officers will receive thorough training in the application of the guidance and will not take a one size fits all approach, this assurance will come as little comfort to those who have previously experienced the EA’s lack of flexibility in relation to fire prevention plans (FPP’s). Like the appropriate measures guidance, the FPP guidance allows for alternative measures where these measures meet certain objectives. Whilst this is obviously meant to build a degree of flexibility into the guidance, and on paper gives two routes of satisfying the requirements, EA officers in a number of areas have not approached it in this way. Several operators have found themselves subject to enforcement action for not following complying with the FPP guidance by not following the checklist to the letter even though they have been able to demonstrate that the alternative measures put in place are as effective as those recommended under the FPP. In these cases, the officers in question have lacked the expertise and the tools to properly understand the effectiveness of the alternatives being employed. The EA has an unfortunate habit of treating guidance as legislation, a natural consequence of officers not having the specific expertise required to step outside of prescribed measures within the guidance. This approach is unfair on both operators and the officers who are left with the task of dealing with these matters on a daily basis. Subsequently operators are justifiably sceptical when they are told that the requirements imposed on them will depend on the judgement of the officers.

As it stands, the guidance seeks to impose requirements which are disproportionate and draconian. In seeking to create a policy which places such an unfair burden on the operator, the EA has demonstrated a complete lack of commercial awareness and understanding of the industry it regulates.

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?