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Larger companies lose out in waste exemptions review

One could speculate that the Environment Agency (EA) believes the three Rs denote regulation, red tape and revenue. 
The Government, through the EA, has published its consultation on revised waste exemptions from environmental permitting (MRW, August 8). My assessment of the proposals at this stage is that the EA has enhanced its power to regulate, with a consequential increase in red tape, and its ability to earn revenue. 
In a news analysis published in MRW, May 4 2007, I wrote that all the exemptions were under review, with the intention that new exemptions would replace the existing set by April 2009. The timetable has slipped since then and the amending regulations are now expected to come into force on October 1 2009. This current period of consultation will end on October 23 2008.
The aim of the review is described as providing a more risk-based and proportionate approach to regulation. It seeks to achieve this by increasing the use of exemptions for what are considered to be low-risk activities while restricting the avail-ability of exemptions for what are considered to be higher risk activities, which will be regulated by standard permits. 
The threshold has been placed at a very high level. Only those activities which are so low risk as not to require any assessment before registration will be exempt. 
A standard permit is defined as a permit with one condition linked to a fixed package of standard rules for a particular type of activity. The intention is that such permits should be cheaper and quicker to obtain. Standard permits have been promised by October 2009 for the following activities which previously have been exempt (the current exemption number appears after each description):
 spreading of sewage sludge
on non-agricultural land (6)
 spreading of industrial waste (7)
 reclamation or improvement
of land (9)
 composting (12)
 manufacture of aggregates, other construction products and soil from waste (13)
 storage and use of waste in construction (19)
 deposit of dredgings (25)
 spreading of ash from pig or poultry incineration (28)
 recovery of scrap metal and the dismantling of depolluted waste motor vehicles (45)
Under the amendments introduced in 2005, there is a range of notifiable exemptions which the EA describes as complex, in contrast to simple exemptions which are free of complication. 
The Government has belatedly recognised that what amounts to a regulated exemption is an oxymoron and proposes to abolish the system of notifiable exemptions. This is to be welcomed. The process of registering such exemptions has become so complex that they are no longer true exemptions at all. 
But, unfortunately, the notifiable exemptions and some simple exemptions are to be replaced by new exemptions only for smaller scale activities. Larger commercial operations will require a standard permit.
There is an implicit admission by the Government that larger commercial-scale activities are to be legislated out of the exemptions regime in its decision not to introduce a statutory appeals mechanism for the regulators failure to register an exempt waste operation. 
The reason given for that decision is that the majority who were in favour of an appeals process were larger organisations, and from now their activities will be governed by environmental permits rather than exemptions. 
Those operators which are able to take advantage of the new exemptions will face two fun-damental changes from the existing system of simple exemptions. First, there will be a charge for registering the exemption and, second, for long-term operations, registration must be renewed every three years.
In the initial consultation, the Government hoped to simplify exemptions by adopting general principles in their definition. That aspiration has not been achieved. The draft regulations are just as complicated as those they are intended to replace.
In particular, the initial consultation document criticised the use of detailed tables of sources and types of waste with consequential anomalies. Yet the draft regulations are full of tables of waste types with the consequential risk of anomalies. 
For example, the exemption for the manual treatment of waste includes furniture, palettes, windows, doors and telegraph poles but not other non-hazardous wood waste. Does doors include the architraves and does windows include the sills? 
An exemption for the storage of waste in a secure place includes non-hazardous construction and demolition waste to be used in construction work, but only if it is capable of being used in its existing state. What if it is capable of being so used but it is still intended to process it further? 
The Federation of Small Businesses has said that businesses feel apprehensive when dealing with the EA. As a result of these proposals, businesses will have to become accustomed to dealing with the EA a great deal more than they have before.            
Michael Krantz is a partner at solicitors DMH Stallard

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