Environmental Permitting Regulations 2010: transitional provisions

Existing permits transfer to the new regime without the need for a new application.

The regulator remains the same. However, the Secretary of State or the Welsh Ministers can issue Directions changing the regulator for a specific regulated facility or a class of regulated facilities. These Directions are likely to be used mainly to ensure that a facility is regulated by a single regulator and/or under a single permit.

The Directions would usually require a local authority to exercise the functions of the Environment Agency with respect to an installation, including when a waste operation is part of an installation. 

Operators and/or regulators can also apply for a direction to obtain a transfer of regulatory powers.

Operators applying or who have recently applied for a permit or registering an exemption for a new activity are taken to do so under the 2010 Regulations. Similar considerations apply for those operators waiting on a decision on a variation, transfer or surrender.

DEFRA Environmental Permitting Core Guidance  provides advice on the best timing for applying for the different permits and permissions, on the basis that environmental permits for waste operations can be granted only after the planning permission.

A few of the activities regulated to date under the Agency's low risk waste regulatory position have now become exemptions; a few now require a permit instead, while other activities were added to the regulatory position after the start of the exemption review in July 2008. The Regulations does not (and could not) provide for a transitional period over this and other Agency's regulatory positions.

However, the Agency has taken the decision to concede some extra time to current operators of facilities undertaking low risk waste (LRW) activities to facilitate the migration to the new system. New operators will have to check if their proposed activity is within the LRW activities list valid from 06 April 2010, or it is now exempt or it requires a permit. Please check the guidance available from the Agency.

For existing LRW operations:

• Operators currently operating under a pre-July 2008 LRW position and requiring a permit under the new Regulations: the Agency will not take action against the operators of such activities as long as they apply for a permit before 01 October 2010, continue to meet the LRW position conditions in the meantime and while waiting for the determination and do not cause harm to the environment or human health .
• Operators currently operating under a pre-July 2008 LRW position and requiring to register an exemption under the new Regulations: they should register as soon as they can, with the Agency taking an advisory role until 1 April 2011 for those operators who have not as yet registered an exemption.
• Operators undertaking activities included within the  LRW position after July 2008: as such activities could not be included within this exemption review, they will still be regulated with the same LRW regulatory position until the next exemption review.

The Agency has published fully detailed guidance on the issue, available from the Modernising Waste Regulation Panel.

Those activities requiring and holding a permit under the Environmental Permitting (EP) Regulations 2007, as amended, and now meeting the requirements of exempt activities, as listed in Schedule 3 of the Environmental Permitting (EP) Regulations 2010, need to register as exempt. The current permit will be revoked on the date of the registration.

Further guidance is available from the Agency's Modernising Waste Regulation Panel. Please check the Agency web page regularly as the guidance is due for a review by the end of April 2010.

Those activities carried out under a simple, notifiable exemption which has carried through to the 2010 Regulations must register the exemption. Registration of all exemptions is now a requirement of the Regulations and it is free.

Activities carried out under a complex exemption, and still exempt under the 2010 Regulations, were already registered.

Establishments/undertakings exempt under the 2007 EP Regulations must satisfy themselves that their activity still meets all the conditions of the new corresponding exemption. Otherwise, a permit will be required. You are strongly advised to read the guidance provided by the Agency.

The Agency has set different deadlines for the transition of the old exemptions to the new regime, whether for registration of the exemption or the application for a permit: a full table of transitional provisions is available from the Agency.

All activities exempt under the 2007 EP Regulations, but no longer satisfying the requirements listed within Schedule 3 of the 2010 EP Regulations, i.e. the conditions of the new exemptions, can apply for a permit from 06 April 2010 until the dates set in the following table (Regulation 103 of the 2010 EP Regulations). During the transitional period, the activities must satisfy all the relevant requirements of the 2007 Regulations, including the payment of a renewal fee for complex exemptions, as set annually by the Regulator, through its charging scheme.

Activities listed under the old paragraph 34 (railways ballast), paragraph 50 (storage of waste pending management elsewhere) and paragraph 52 (temporary storage of waste at the site of production) of Schedule 3 of the 2007 EP Regulations are non-Waste Framework Directive exemptions. As such they will no longer require registration.

Those establishments or undertakings in possess of a permit for the crushing of bricks, tiles and concrete, a Part B activity, that included a registered exempt waste operation (old paragraph 24: storage of bricks, tiles and concrete prior to crushing) need to have their permit varied to include the waste activity. The latest possible deadline of October 2013 has been set provisionally, but might be brought forward by DEFRA. You are strongly advised to check regularly the DEFRA website.

Please consult DEFRA Environmental Permitting Core Guidance for more information.