“Back door Enforcement” T
he Environment Agency introduced Fire Prevention Plan Guidance (“FPP”) in March 2015. Following intense
lobbying by UROC and other industry representatives, to include the Wood Recyclers Association, the Agency revised the FPP Guidance and re-issued it in July 2016. However, industry continued to lobby, given the FPP Guidance was unworkable and in November 2016 version 3 was issued.
One year on since the FPP Guidance v.3 was issued, we have started to see increasing pressure applied by the Agency on waste and resource operators to implement the provisions of the Guidance, by providing a written FPP to refl ect how an operator will achieve the overarching objectives of the Guidance, which are to;
1. 2. 3. minimise the likelihood of a fi re happening; aim for a fi re to be extinguished within 4 hours; and
minimise the spread of fi re within the site and to neighbouring sites.
Whilst we totally agree that systems and procedures should be in place to reduce the risk of a fi re occurring and, in a worst- case scenario, abate a fi re as quickly as possible to minimise the impact it could have on; human health, the environment and amenity of the locality, we do not consider the heavy-handed approach taken by the Agency to force operators to adopt the Guidance is reasonable or proportionate.
Despite the Guidance stating that failure to put in place and use fi re prevention measures could result in the Agency taking enforcement action, the Guidance itself does not have any legal force of law, which means that failure to implement it (in the form stipulated by the Agency) cannot technically be enforced against. Further, the Guidance accommodates the possibility of operators proposing alternative fi re prevention measures to those stipulated by the Agency.
We have started to lose count of the number of Reg 36 and suspension notices issued by the Agency across the country. Any suspension notices served have eff ectively put a stop to permitted activities, namely, the acceptance of waste inputs, until an FPP has, not only been submitted to the Agency, but has also been approved by it. Inevitably the Agency will need time to consider the content of any FPP and more oſt en than not the fi rst draſt will not be approved, with a number of comments usually made by the Agency for amendments to be made. T is is a long and drawn out process taking up to several months to complete – leaving an operator deprived of its ability to run its business and revenue generate at the gate.
T e real concern, is that the number of suspension notices we have seen are, in our view, defective! T e reason the Agency
stipulate that such notices are served, is because it considers that the operator is in breach of the standard permit condition 1.1.1, which states;
“T e operator shall manage and operate the activities in accordance with a written management system that identifi es and minimises risks of pollution.”
However, in the ‘Steps’ that should be taken, in order to comply with a notice, the Agency is stating (in the notices we have seen) that operators need to adopt the FPP Guidance and only store waste on site to the maximum stockpile sizes specifi ed in the Guidance.
As highlighted above, it is not mandatory to adopt the Guidance and in any event an operator is at liberty to propose alternatives to it, depending on; site layout, proximity to sensitive receptors, concrete fi rebreaks and so on. T erefore, we consider it an abuse of Agency powers to impose stringent measures, which an operator could legitimately secure appropriate alternatives to achieve the stated objectives.
Further, we consider that the Agency should aff ord any operator a suffi cient period of time to prepare an appropriate FPP and work with the regulator to ensure that the fi nal plan is satisfactory for both parties and realistically workable for the operator.
On page 18, John Galvin talks about ‘over regulation and under enforcement’ and we very much agree this is the case, as from what we are currently seeing, in terms of the Agency’s approach to regulating permitted facilities, we believe that the enforcement action taken against legitimate operators is totally disproportionate and is also having a detrimental impact on their OPRA, with Compliance Assessment Reports being scored high resulting in increased annual subsistence fees – payable to the Agency!
Regulatory eff ort should be focused on cowboys that undermine our sector and distort the playing fi eld and more eff ort should be made by regulators to work with permitted operators to secure the best environmental outcomes, rather than been draconian with the backdoor enforcement approach we are currently witnessing.
If you are issued with an enforcement notice that you do not agree with, we advise that you should lodge an appeal - you have two months from the date of the notice to make an appeal to the Planning Inspectorate. We also stress the importance of talking to your local Agency offi cers and try to work out a pragmatic solution, so that you can keep your business operational and ultimately survive!
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