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19th June 2020

Beware the consequences of breaching the exemption requirements for waste facilities

The Environmental Permitting (England and Wales) Regulations 2016 requires that facilities for the carrying on of certain waste disposal or recovery operations are either “regulated” or “exempt”. The operation of a “regulated facility” requires an environmental permit whereas the operation of an “exempt facility” does not.
But what are the consequences for an exempt facility of breaches to the exemption requirements? The Court of Appeal (Criminal Division) in Mustafa v The Environment Agency [2020] EWCA Crim 597 highlights the dangers for operators.

Meaning of “Exempt Facilities” and “Regulated Facilities”

A fundamental principle in the Regulations is that if an operation is not an exempt facility it must be a regulated facility. The two are mutually exclusive. Therefore, if a waste operation is not an exempt facility then it is a regulated facility requiring an environmental permit. This is of key importance because if an operation ceases to be an exempt facility then it automatically becomes a regulated facility without a permit. The problem then for operators is that it is a criminal offence to operate a regulated facility without a permit under Regulation 12(1) and 38(1)(a).

So what is an “exempt facility” for waste operations? In accordance with paragraph 4(1) of Schedule 2 of the Regulations, three requirements must be satisfied. These are:

  • It falls within a description in Part 1 of Schedule 3 and satisfies the general and specific conditions specified in Part 1 of that Schedule in relation to the description.

    By example, the “specific conditions” for the treatment of waste wood and waste plant matter by chipping, shredding, cutting or pulverising (T6) are that – (a) the total quantity of waste treated or stored over any 7-day period does not exceed 500 tonnes; and (b) no waste is stored for longer than 3 months after treatment.

  • The waste operation is registered and an establishment or undertaking is registered in relation to it.

    Under paragraphs 11 and 12 the Environment Agency must establish and maintain a register of exempt facilities and has a duty to remove an entry if the facility ceases to be an exempt facility.

  • The type and quantity of waste submitted to the waste operation, and the method of disposal or recovery, are consistent with the need to attain the objectives mentioned in Article 13 of the Waste Framework Directive (NB. The objectives are, essentially, to avoid pollution and harm to human health).

The facts of the case

The company operated a facility for the storage and treatment of waste wood, and had registered its operations as an exempt facility. The exemption allowed for storage and treatment of up to 500 tonnes of waste wood over a seven-day period, but Environment Agency officers had found waste in excess of the allowance. The company was advised to urgently reduce the amount stored on the site. Following further visits and warnings, the deadline for compliance was extended. Almost a year after the first visit, the exemption was removed from the register and the company directors were prosecuted for an offence under Regulation 38(1)(a).

In the first instance, the charges were dismissed by the Crown Court on the basis that the undertaking was an exempt facility until it was removed from the register by the Environment Agency. This finding was considered on appeal.

The judgement – is registration conclusive of the legal status of an exempt facility?

In short, the Court of Appeal found that the registration of an “exempt facility” is not conclusive of its exemption and as such it does not cease to be exempt only upon de-registration. The Court noted that the duty to remove an entry from the register cannot itself arise unless the facility has already ceased to be an “exempt facility”.

The Court went on to clarify the correct position on when a facility ceases to be an exempt facility by stating that a waste operation will only be an “exempt facility” if it fully meets the 3 requirements of paragraph 4(1) of Schedule 2 (as above stated). If it does not meet those requirements in full, it cannot be an “exempt facility”, and it must be a “regulated facility”. And if, as a “regulated facility”, it is operated without an environmental permit, there is a breach of Regulation 12, and an offence under Regulation 38 has been committed.

On the issue of registration the Court importantly noted:

Registration of a facility under paragraphs [10] and [11] does not mean that the operation has been approved by the Environment Agency or that it will be regarded as an “exempt facility” while the entry remains on the register, regardless of its compliance with the requirements in paragraph [4(1)] of Schedule 2”.

Lesson: The registration of a waste undertaking as an exempt facility with the Environment Agency does not immune operators from environmental permitting offences until its removal from the register. Operators should always take care in ensuring they comply with and satisfy all 3 requirements for an exempt facility so as to not risk enforcement and prosecution.

For more information on any of the items raised in this article please contact Brendon Lee on 01223 532757 or click here to email Brendon
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