EPR amendments on operator competence, management plans and householder duty of care

27 NOVEMBER 2018

Back in January, the government issued a consultation on 'proposals to tackle crime and poor performance in the waste sector & introduce a new fixed penalty for the waste duty of care.' Their response to this was published yesterday although it did not include their proposals for exemptions which were a major part of the consultation but which will be delayed until 'next year'.

Three main issues have been determined:

  1. Tightening of operator competence requirements for permitted sites.
  2. A statutory requirement for Management Plans for permitted sites.
  3. Greater powers to enforce householder duty of care

The full consultation response document is here, but what is perhaps surprising is that the response was issued five days after the new statutory instrument applying the changes in England and Wales was laid before Parliament and comes into force on 7th January 2019.

The first two will have a significant impact on sites operating under a standard rules or bespoke Environmental Permit. Although each site is required to have cover from a Technically Competent Manager (TCM), the system is widely 'misused' with many sites having no cover and many TCMs covering multiple sites well beyond their daily capacity. The changes will see sites having to submit details of their TCM to a central register if they operate under the WAMITAB system or to demonstrate compliance with the new Competence Management System which applies technical competence to the site rather than an individual.

Permitted site operators will be required to include details of the competence cover in their quarterly returns from Q2 2019, but it is not known when the register will be set up.

Sites operating under the current Permitting system are supposed to have a Management Plan in place, but many sites operate under older regulations where this is not required. The amendment requires all permitted sites to have a written Management Plan in place by 7th April 2019:

which identifies and minimises the risks of pollution arising from the waste operation, including (but not limited to) those—

(a)arising from operations (including maintenance);
(b)arising from an accident or other incident;
(c)arising from a failure to comply with or from a contravention of the environmental permit in question;
(d)identified following a complaint; or
(e)arising from the closure of the operation.

It is assumed that this will start to be part of Agency compliance monitoring assessment from that date but at this stage, there is no guidance that gives further detail.

The householder duty of care changes are aimed at seeking to make householder more responsible for ensuring they only use registered waste carriers and that their waste is taken to an authorised disposal facility and not flytipped. Given that a Waste Carriers Licence gives no guarantee of operator knowledge, capability or honesty, it will be interesting to see how this works in practice, but the changes propose that in England, Councils and the Environment Agency will be able to apply Fixed Penalty Notices up to £400 for breaches of householder duty of care.