9 October 2007
Comments to defra on the fourth environmental permitting programme consultation on government guidance for eu directives and waste technical competence
Introduction
1The UK Environmental Law Association (UKELA) aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA’s members are involved in the practice, study and formulation of environmental law in the UK and the European Union. UKELA attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.
2UKELA prepares advice to government with the help of its specialist working parties, covering a range of environmental law topics. This response has been prepared by the Waste Working Party.
3UKELA welcomes the opportunity to respond to this consultation. We have focused on the legal issues, and while some practical matters arise in the course of that analysis it is felt that other parties are better qualified to deal with the technical aspects of the draft guidance on the various EU Directives. For this reason UKELA has not responded to all the consultation questions.
4The following are UKELA’s comments on the consultation. For ease of reference, we have set out the questions from the consultation.
The Form and Content of the Guidance on the European Directives
Q9. Does the approach of keeping guidance on the meaning of waste guidance separate seem sensible?
5UKELA supports the proposed approach of keeping the guidance on the meaning of waste separate. The meaning of waste is relevant in the context of a number of EU Directives for which draft guidance has been published as part of this consultation, including the Waste Framework Directive (2006/12/EC), the Waste Incineration Directive (2000/76/EC), the Landfill Directive (1999/31/EC) the Waste Electrical and Electronic Equipment Directive (2002/96/EC) and the End of Life Vehicles Directive (2000/53/EC). The meaning of waste is likely to be subject to further legal interpretation by the Courts, and the European Commission is currently considering the revision of the Waste Framework Directive, so it is likely that the meaning of waste may change in the future. If this happens it would be much simpler to amend a single guidance document on the meaning of waste rather than need to amend several sets of guidance on individual Directives.
Q15. Do consultees have any views on the relevance of or continuing need for the Waste Management Paper series?
6UKELA takes the view that the Waste Management Papers need to be considered individually. Those Waste Management Papers which are policy-based could be cancelled and incorporated into EPP guidance documents. However, a number of Waste Management Papers are of a technical nature and consideration should be given to retaining or re-issuing these documents and updating them as necessary.
Proposals for Demonstrating Technical Competence for Permit Holders for Waste Operations
7As a general comment, it is not clear from the consultation document whether the two proposals for demonstrating technical competence are alternate options. However, UKELA understands that the intention is that industry designs one or more schemes, Government approves those schemes thorough its guidance and industry chooses for a particular site which scheme it considers most appropriate and informs the regulator. This consultation response has therefore taken this into consideration.
Q16. Does each proposal provide a complete, adequate and proportional test of competence for the waste industry? If not why not and what alternatives would consultees suggest and why?
CIWM/WAMITAB
8The CIWM/WAMITAB proposal has some merits, but UKELA considers that there are some issues that need addressing if it is to provide a complete, adequate and proportional test of competence for the waste industry. There are a number of reasons for this.
9Although the proposal refers to 3 different ‘risk’ bands, it seems to be structured by ‘hazard’ (i.e. potential to cause harm) with little consideration for how “risky” the site might be. A proper risk assessment should reflect the likelihood and severity of potential environmental harm, which would include an assessment of management and their systems on site. UKELA believes that to base the bands simply on what the company does is too much of a blunt tool when it is clear that other factors play a more significant role in causing environmental pollution.
10The proposal needs to include more detail on the ‘risk’ tiers. For instance, is an assessment to be conducted by the Environment Agency on application, similar to that under EP OPRA?
11The 3 risk-banding approach seems to be an attempt to simplify the current, fairly complex WAMITAB competency matrix. However, UKELA believes that to simplify them into 3 bands (with high risk sites being at the top of the hierarchy) is going to prove difficult as different competencies are needed for different sites we do not agree with the principle that all high risk site managers will be able to manage medium risk sites - to say that a landfill operator (high risk on the banding) is competent to run a transfer station may not be the case as different knowledge and understanding is required.
12There is also the additional problem of deciding what level of award sites should go for where there is more than one operation on site (for example, a non-hazardous transfer station, receiving separate collections of waste electrical equipment would have to do the higher award when the risks wouldn’t really be any higher than a traditional non-hazardous transfer station). Therefore, this could result in each banding being broken down into smaller categories, resulting in a similar scenario to the present WAMITAB matrix.
13In terms of the NVQ options then the reduction in the number of units to be completed is welcome, but for many of the smaller sites/companies the greatest evidential burden is in satisfying the operational requirements. Nevertheless, the removal of the management units for the majority of sites is a positive feature (see later comments on number of units).
14There is also a potential ‘dual qualification’ issue for the VRQ and NVQ. For example, someone obtaining the VRQ for a medium risk site and then going to work on a high risk site would have to do all the units of the NVQ from scratch, but someone choosing the NVQ route for the medium risk site would already be part way there for the high risk site. Once this becomes known, any site wishing to change operations in future would be advised that there is less work involved in completing the NVQ route.
15It is suggested that if this proposal is developed then an agreed acquired prior learning methodology is established so that either route is proportional.
16The requirement for a competent person to be on site during ALL operational hours might prove difficult for some sites, especially the smaller ones. The merits of this requirement are unquestionable, but this doesn’t really tie up with the aim of reducing the regulatory burden on businesses. It will effectively require every site to have at least 2 ‘competent managers’ on site to cover sickness and holidays which will effectively double the current burden and make it a significant hurdle for the smaller operator.
17When comparing the two proposals, they do not do the same in terms of the site being competent at ALL times. The WAMITAB/CIWM proposal is much more stringent (which is not necessarily a negative point), but more guidance needs to be provided on what “all operational hours” will mean in practice.
18Chapter 8 of the CIWM/WAMITAB proposal refers to sites having a grace period of 4 weeks for new permits. UKELA this to be an extremely short period of time and logistically impossible considering the current WAMITAB quality standards (e.g. for internal verification). There is also the issue of being able to guarantee the availability of an assessor who will have to make several visits within the 4 week period, not to mention the fact that some candidates aren’t immediately competent and often require training. There are also holiday times to consider, work commitments (especially on small sites) and potential operational delays after the issuing of the licence.
19UKELA agrees that the current grace period of 2 years could be shortened, but feels that a period of between 6-12 months would be more realistic (as is suggested for the higher risk sites). It is appreciated that this might conflict with the draft EP Regulations as they require competency to be in place from the start, however, the current waste system is just not set up in this way.
20In addition, Chapter 8 of the CIWM/WAMITAB proposal suggests that most applicants will have the award before the EP is issued. This again is made difficult for the NVQ route as the assessments are based on the site being operational and a permit actually in place. The proposal explains that candidates could complete the knowledge and understanding requirements prior to receiving the permit, which is possible, however, since some of this knowledge may only be gained by having the permit it is a case of “putting the cart before the horse”, not to mention significantly increasing the number of assessor/ candidate visits (again, increasing the financial costs and regulatory burden). An assessment period would be required both before and after the issuing of the permit.
21At present, the knowledge and understanding and the performance assessments are completed simultaneously by most assessors rather than separately. By changing this it will effectively mean more assessor visits, more time for the candidate and higher costs.
22As an alternative suggestion, it would be easier if every manager did the same number of units (as is currently the case), irrespective of the type of site. However, instead of the current 12 units, it is suggested that only the units which are seen as being most technically useful be completed (i.e. the operational units 1, 2, 3, 4, 6, 8) thus reducing the burden on all sites to 6 units. These units provide most of what is needed to prove competence, with the later units (9, 10, 11, 12) not being seen as technically relevant to the waste sector.
23In terms of the different competencies needed for different sites, UKELA believes that the current NVQ standards could be simplified into one “waste standard” which was capable of assessing any type of candidate on any type of site. It would be up to the assessor to distinguish between the different regulatory requirements and issues specific to each site. When the individual achieves their qualification, the certificate could specify the relevant type of site. If that person then moved to a different site and became the competent person there, then they would have to have an earlier CPD visit (as explained in the answer to Q19 below) to assess if he/she was up to date with the issues for that type of site. The CPD record could then be amended to take into account the different sites they have worked on.
24UKELA believes that sometimes more choice leads to more confusion and that by keeping it simple, people can focus on proving that they are competent rather than having to think about the different ways that they can demonstrate it. UKELA believes that the proposed ‘choices’ will be compromised by cost with the cheapest option being taken up by the industry rather than what is most directly appropriate for the candidate.
ESA/EU Skills
25UKELA believes that the ESA/EU Skills proposal does not provide enough detail and, as such, there must be a question mark over whether the proposal can be ready for implementation in April 2008. However, this raises the question of whether the proposal could be worked up with more time.
26UKELA believes that the CMS route will isolate SMEs with the focus on interpreting NOS standards rather than being competent. Larger companies will obviously favour this as it will probably mean the adoption of current management systems and thus there is a danger that it will become an arbitrary exercise. The proposal seems to exclude much of the sector. There seems to be a focus on a procedure-based approach and not on actual competence to do something. Our understanding of competence is that it is about the ability to do something rather than just having a corporate ‘ticket’.
27UKELA does not believe that this proposal would be attractive to many companies who do not have a management system already in place. For instance, as well as implementing a management system, businesses will also have to cater for individual competence within that management system, which will result in many having to do the same NVQ qualifications as those in the CIWM/WAMITAB approach.
28UKELA suggests that the adoption of academic qualifications is inferior in terms of demonstrating competence when compared with vocationally-based qualifications. Academic ability could be used to demonstrate knowledge and understanding, but should not be viewed as an option in terms of satisfying practical competence requirements.
29It should be remembered that although NVQs are individual qualifications, they are not assessed independent of the company. The company’s management systems are closely considered in the assessment, such is the link between individual and corporate competence.
CONCLUSION
30In conclusion, it seems that the two proposals will see a reduction in the role of the Environment Agency, with the assessors (whether it be WAMITAB assessors or certification bodies) taking on the role of surrogate regulators. As a result, the Environment Agency may be relying on information from the assessment centres to support prosecutions. At present this relationship does not exist. UKELA’s impression is that the Environment Agency is moving away from routine inspection towards performance-led intervention.
Q17. Does each proposal reflect a balance between corporate and individual competence? If not why not and what alternatives would consultees suggest and why?
31The two proposals seem to take a very different approach, with the CIWM/WAMITAB approach following the ideal of individual competence (with NVQs/VRQs only capable of being awarded to individuals) whereas the ESA/EU Skills approach is one of corporate competence.
32UKELA believes that the CIWM/WAMITAB approach reflects a better balance between corporate and individual competence as it is driven from the candidate, which in turn is demonstrated within the context of the company, rather than vice versa. As mentioned above in our response to Q16:
“It should be remembered that although NVQs are individual qualifications they are not assessed independent of the company. The company’s management systems are closely considered in the assessment, such is the link between individual and corporate competence”.
33By following a corporate competence system, there is the risk that companies will seek external consultants to implement the necessary systems, which may not reflect the corresponding knowledge and understanding of individual site managers.
34TheESA/EU Skills approach could be viewed as a complete ‘belt and braces’ approach, with companies having to implement management systems as well as do all the relevant vocational/ academic qualifications. However, to most SMEs this would be an unnecessary regulatory burden.
35It is considered that a practical, individual assessment based upon a modified CIWM/WAMITAB proposal would best suit the requirements of the industry. It should be recognised that a key requirement of the industry should be to clearly demonstrate environmental performance and protection, whilst ensuring the safety of its staff and others. Management systems are felt to be only as good as the individuals managing the system. Individual competence is therefore considered to be a key requirement.
36A major advantage of the current CoTC system is the focus on practical health and safety. It must be of concern that other sectors (in particular quarrying) are adopting NVQs to place individual responsibility on managers, with this being driven by the HSE, whereas the ESA/EU Skills proposal appears to be taking away this clear link between a named manager and responsibility.
37UKELA believes that the nominated roles option in the ESA/EU Skills proposal is fraught with difficulty as it essentially spreads the risk across the company. Each nominated person would have to have back-up to cover them should they leave the company (the waste industry has quite a transient work force), or be on holiday or be off sick. It is clearly a proposal in development but it just seems to be the same as the management system option without actually having to have a management system in place.
Q18. Does each proposal cover those currently subject to Environment Agency assessment of technical competence? If not why not and what alternatives would consultees suggest and why?
38Yes, UKELA believes that all sites are covered.
Q19. Does each proposal ensure application of the principle of continuing professional or technical development? If not why not and what alternatives would consultees suggest and why?