Consultation outcome

Environmental permit competence requirements: changes to technically competent manager attendance – summary of consultation responses

Updated 10 August 2022

1. Introduction

We consulted with stakeholders to hear their views on proposed options and changes to the attendance requirements for technically competent managers (TCMs).

The consultation explained:

• how the current technical competence attendance requirements work
• options for proposed changes to the methods of calculating TCM attendance and other proposed changes to the attendance requirements
• proposed implementation timescales

The responses to the consultation will help shape a second consultation.

2. How we ran the consultation

We ran the consultation for 8 weeks from 14 June to 9 August 2021. We invited comments using our online consultation tool Citizen Space, and GOV.UK. We also received responses using offline consultation response forms.

We asked 18 questions in the consultation. This document sets out:

• the questions we asked
• a summary of the key points from the responses we received
• our response to those points and what we will do next

We reviewed all the responses and suggestions and will produce a second consultation. This will provide further detail and consider the responses we have received, where appropriate.

We have provided a list of the names of the organisations that responded to the consultation in the Annex at the end of this document.

We thank all the respondents for the time and valuable contributions they gave to this consultation.

3. Scope of the consultation

We consulted with stakeholders on proposed options for:

• changes to the attendance requirements for technically competent managers
• other rules associated with attendance requirements
• implement timescales

Some points raised by respondents are outside the scope of this consultation, but they are noted for future developments in technical competence requirements.

4. Summary of the main findings and our actions

You generally agreed that new guidance was needed to explain the attendance requirements for TCMs. You gave us your views on which of the 3 options you preferred for calculating the attendance requirements:

• option 1: attendance linked to charge bands – 36%

• option 2: standard baseline attendance for all waste facilities – 16%

• option 3: tailored baseline attendance for waste operations and waste installations – 30.67%

• no preference – 14.67%

Two respondents (2.67%) did not provide an answer to this question.

Many of you highlighted the potential for environmental benefits should TCM attendance increase at poor performing sites. However, the extent of this benefit would depend on the specific circumstances. Approximately 75% of you supported the adjustment of the attendance requirement based on operator performance, with those in deteriorating or poor compliance bands requiring increased TCM attendance.

Some of you told us that applying attendance requirements for the Environmental Services Association (ESA)/Energy & Utility (EU) Skills technical competence scheme would undermine the purpose of this scheme.

You generally supported other proposals on the 48 hour attendance cap, 24 hour operations, multiple regulated facilities and mothballed sites.

For permit transfers, some respondents highlighted situations where transfers were ‘administrative’ and in those instances you did not support previously agreed TCM attendance requirements reverting back to those required by the guidance.

For closed landfills nearly 40% of you agreed with the proposals, whilst 50% did not have a view. We anticipate the majority of the 50% who did not have a view do not operate activities involving closed landfills.

Most of you did not have a view on the proposals for mobile plant attendance requirements. Around one third of you supported the proposals on mobile plant and less than 10% disagreed.

Nearly half of you supported a 12 month implementation period for the new guidance. Because, for example, this would give operators time to understand the new guidance and train or recruit additional TCMs if required.

We received a broad range of views which will help us develop the attendance requirements for TCMs guidance. We intend launching the next consultation in summer 2022. It will include further details of the favoured option and other proposed changes to the attendance requirements. We will consider your responses when preparing the next consultation, where appropriate.

To follow up your response in more detail or if you have any questions on this summary of consultation responses, please contact us at [email protected].

5. Responses to the ‘about you’ questions

Q1. Are you responding as an individual or on behalf of an organisation or group?

We received 75 responses to the consultation:

• 32 from site operators or companies with permits
• 18 from trade associations and other organisations or groups
• 12 from consultants
• 5 from local authorities
• 8 from individuals or members of the public

Q2. Keeping up to date

We will email you with a link to this consultation response document if you consented to keeping up to date.

If you consented to keeping up to date we will inform you about our second consultation, by email, when it is launched.

Q3. Can we publish your response?

The responses were as follows:

• 73 respondents gave us permission to publish their responses
• 2 responses either did not give permission or did not answer this question

Q4. If you operate a permitted waste facility (or facilities), please tell us what kind it is (they are).

We received a broad range of responses from operators of various types of permitted waste management facilities. This included:

• waste transfer stations
• materials recycling facilities
• household waste recycling centres
• soils and aggregates processing facilities
• waste wood operators
• refuse derived fuel or solid recovered fuel producers
• water companies
• metal and end of life vehicle recyclers
• landfill operators

This reflects the broad application of technical competence within the waste management sector.

6. Responses to ‘your views’ questions

Here is a summary of responses for the ‘your views’ consultation questions, followed by our responses.

Question 1: Do you have a preference for the approaches described in options 1, 2 or 3?

The responses were:

• option 1: attendance linked to charge bands – 27 (36%)

• option 2: standard baseline attendance for all waste facilities – 12 (16%)

• option 3: tailored baseline attendance for waste operations and waste installations – 23 (30.67%)

• no preference – 11 (14.67%)

Two respondents (2.67%) did not provide an answer to question 1.

Our response

The consultation responses showed that option 1 was preferred. Option 1 proposed a link between the annual subsistence fee charging bands (tables 2.16 and 2.17) and the TCM attendance requirement at waste facilities, except for closed landfills and mobile plant. The charging bands are calculated based on risk and the regulatory effort needed for effective regulation.

The environmental permitting charging scheme groups waste operations and waste installations by sector. Those requiring more regulatory effort pay a higher subsistence charge. The subsistence charge considers waste throughputs and complexity, with sites accepting greater waste quantities and requiring greater regulatory effort paying a higher charge. This is similar to the current Operational Risk Appraisal Scheme (OPRA) attendance requirements which includes the complexity of the site operations and emissions (including waste inputs). However, the approach is simpler and more transparent compared to the existing TCM attendance requirements.

For option 1 calculating the attendance requirement will follow the risk based approach of the subsistence fee charges tables. However, it will standalone from the charges tables and will be based on the activity description. This helps address the concerns of respondents who told us some TCMs or site management may not have access to subsistence fee invoices (for example when they are sent directly to account departments).

As with all the options presented within the consultation, we propose option 1 would require additional adjustments. These are outlined in the ‘adjustment for normal operations and increased attendance for poor performers’ section of the consultation document.

The approach used in option 1 is risk based and proportionate, but we note respondents are requesting more detail on how this option would work in practice. Our second consultation will provide specific details of the proposed attendance requirements for each activity listed in tables 2.16 and 2.17.

Question 2: Do you have any comments or views on the financial impact of the proposed options on your business?

There were 67 responses to this part of the question. Respondents presented a range of views on the financial impacts.

One respondent highlighted the impact a reduction in attendance hours would have on businesses that provide TCM cover. Another similar business considered any increase in attendance hours would be detrimental to their business as they would not be able to provide TCMs for the number of sites they do currently.

Two respondents highlighted the potential for TCMs to supervise sites remotely without physical attendance through IT means (for example, CCTV, video calls).

One respondent commented that having specific timed attendance for the ESA/EU Skills technical competence scheme would defeat the purpose of this scheme (managing sites through a competence management system (CMS), rather than having individually trained TCMs spending a mandatory amount of time on site).

A number of respondents did not consider the proposed options to be detrimental financially. Others highlighted the potential for increased costs associated with training more TCMs and, depending on the final details of the preferred option, increased costs from additional attendance (including driving time and fuel costs).

One respondent commented that the cost of a TCM is offset by annual permit subsistence fees reducing as operators site performance improves due to the attendance of the TCM. The respondent also highlighted the financial benefits of a TCM go beyond subsistence fees. This is because increased performance will result in cost savings compared to poor performing sites, which may experience higher expenditure to rectify deteriorating performance.

Some respondents referred to the ‘per week’ attendance requirements and suggested this could be spread over a longer period. This would address TCM non-attendance, for example during holidays and sickness. This would also have a business benefit by not having to bring in a separate TCM to cover the absence.

Some respondents told us they needed more information on the proposed option before they could provide us with a response. Other respondents told us any changes to TCM attendance would unlikely affect them, as their TCM was already on site for the entire working week. Some respondents warned of the risk of a shortfall in available TCMs.

One respondent told us the TCM attendance proposals would cause regulatory and financial burden for all operators rather than just poor performers. Along with the costs being unjustified as there would be no environmental benefits. The respondent suggested only implementing a minimum time on site requirement for those who are poor performing, lasting until the waste activity was back to ‘good’ status.

A theme within the responses was the request for clarity of the role of the TCM. There is a requirement for TCM hours to be recorded, respondents suggested that decisions taken and recommendations made to senior management should be recorded.

Respondents raised the attendance requirements specifically for household waste recycling centres (HWRCs) in the context of their long operating hours and it was suggested HWRCs are low risk.

Our response

We acknowledge the increasing ability to be able to monitor activities remotely from the permitted site. This ability has in part been driven by the COVID-19 pandemic. We will consider what provisions we can make for remote supervision and will present this in the second consultation and in future changes to the published guidance.

Throughout the consultation, respondents told us that having specific timed attendance for the ESA/EU Skills technical competence scheme would defeat the purpose of this scheme. Current TCM attendance guidance does not apply to those operators satisfying technical competence via the ESA/EU Skills scheme.

We do not intend changing this position at the current time and do not expect that operators who satisfy technical competence via the ESA/EU Skills scheme will also need to have qualified TCMs under the Chartered Institution of Wastes Management (CIWM) and Waste Management Industry Training & Advisory Board (WAMITAB) scheme. However, as stated in the consultation, we expect key site personnel to be on site at similar levels of attendance to TCMs operating under the CIWM/WAMITAB operator competence scheme. Operators should demonstrate this through their management system.

Modern permits already include a condition requiring the operator to manage and operate their activities using sufficient competent persons and resources. The condition states:

“1.1 General management

1.1.1 The operator shall manage and operate the activities:

(a) in accordance with a written management system that identifies and minimises risks of pollution, including those arising from operations, maintenance, accidents, incidents, non-conformances, closure and those drawn to the attention of the operator as a result of complaints; and

(b) using sufficient competent persons and resources.”

We do not intend amending the ‘per week’ attendance requirements because we want to avoid TCM attendance being concentrated on a small number of days over, for example, a month long period. We already require operators to have sufficient TCM cover should a TCM be on leave, or to cover sickness for example.

We will give industry a suitable implementation period for changes to TCM attendance, please see our response to Q10 below. An implementation period would give industry time to understand the new requirements, review their current TCM arrangements and train any additional TCMs as necessary.

We will continue to maintain the option for operators to agree a reduced TCM attendance with us after the first 6 months of normal operations. We will not accept existing or future proposals for a 1 hour per week TCM attendance requirement for operational sites. This is not enough time for TCMs to make sure permit conditions and management systems are complied with. This level of attendance is impracticable for most TCMs when considering the time needed on site to perform TCM duties and travel time.

The Environmental Permitting Core Guidance explains the role of a TCM. Chapter 9.11 states:

“All individuals that make up the technically competent management for any activity must:

• be in a position to control the day-to-day activities authorised by the permit
• understand the processes and equipment being used
• understand the risks to people and the environment and how those risks need to be managed
• know how to comply with the law and relevant guidance
• be familiar with the management systems and management structure on site; and
• have the authority to make appropriate interventions in the running of the operation”

We will discuss the role of TCMs and greater clarity on this role with the Department for Environment, Food and Rural Affairs (Defra) when appropriate.

We acknowledge HWRCs can have longer operating hours as a result of operations taking place on weekends. However, we anticipate HWRCs would have a lower attendance requirement, because waste treatment activities do not generally take place on these types of site. There is the potential to agree alternative TCM attendance arrangements on a case by case basis, but we also point out that HWRCs can handle waste streams which are not by their nature low risk, for example hazardous wastes.

Question 3: Do you have any comments or views on the environmental benefits of the proposed options?

There were 65 responses to this part of the question. Many respondents highlighted the environmental benefit of increased TCM attendance at poor performing sites. Approximately 75% of all respondents supported adjusting the attendance requirement based on operator performance, with those in deteriorating or poor compliance bands having an increased attendance requirement.

Other respondents observed that some companies do not sufficiently train their personnel on the environmental impacts of their operations and requirements of their permits. Increasing the skills and knowledge of more personnel could help environmental performance through increased awareness.

Some respondents commented that having attendance requirements for the ESA/EU Skills technical competence scheme would be damaging because, rather than having skills and knowledge across a broad range of staff, the focus would be on 1 TCM.

Some respondents referred to the potential carbon emission and air quality impacts from TCMs travelling to attend sites.

One respondent referred to the role of the TCM and highlighted that TCM attendance on its own does not necessarily lead to environmental benefits unless the:

• TCM carries out compliance checks
• TCM provides meaningful advice and guidance to the operator in response to any non-compliances
• operator acts on that guidance

Respondents told us TCM attendance needed to be enforced, otherwise this would undermine the effectiveness or benefits of the requirements. Another questioned whether there was evidence to suggest a link between TCM attendance and compliance performance. Some respondents told us that performance standards were dictated by senior company managers, therefore TCM attendance did not influence compliance performance.

Some respondents told us there were no benefits to adjusting how long a TCM is on site for. They justified this on the basis that the qualifications for TCMs are not fit for purpose and do not guarantee a person is fit to act as a TCM.

One respondent told us that environmental benefits such as decreasing pollution incidents, and mitigating any that do occur, can be achieved by having a more structured TCM role with support from senior management or the permit holder. TCM attendance should be about the value the TCM attendance brings, rather than satisfying an arbitrary period of time. TCM quality, not quantity (in terms of hours) was considered the key factor.

One respondent stated the proposed options allow the requirement for high risk operations, with the potential greatest impact on the environment, to have additional regulatory supervision. This was considered a sensible and proportionate approach.

One respondent considered the environmental benefits of the current TCM attendance requirements and the proposed new requirements would be the same. But the proposed new requirements would be simpler for operators to understand, thereby reducing regulatory burden. Other respondents told us further details of the TCM attendance requirements were needed in order to ascertain any environmental benefits.

Our response

Respondents clearly supported proposals to increase TCM attendance where operators are poor performers. We will develop these proposals further in our second consultation.

We acknowledge concerns raised on the impact a TCM can have, for example if they are employed by a company and managers may ‘override’ the direction provided by the TCM. We will raise this issue with Defra so they can consider options to address it as part of wider changes to technical competence.

We acknowledge the concerns of costs and environmental impacts associated with TCMs travelling to attend sites. We will consider what provisions can be made for remote supervision and will present this in the second consultation.

The TCM should play a key role in making sure environmental permits, management systems and associated plans are understood by site staff and are implemented. For example, fire prevention and amenity management plans.

Permit non-compliances are regularly recorded where the root cause is poor training or inadequate implementation of management systems and associated management plans. These permit non-compliances are preventable and a TCM, with the necessary support from senior management, can and should address them.

Whilst the CIWM/WAMITAB scheme operates on the basis of having 1 or more nominated TCMs, other site staff should still receive training for their specific roles. We expect all site staff to have the necessary training relevant to their role in order to prevent a breach of the environmental permit.

TCMs should understand all the conditions of the environmental permit, the management system, and any associated plans such as fire prevention plans.

Question 4: Do you have any comments or views on the existing 48 hour attendance cap?

There were 63 responses to this part of the question, with many agreeing with the 48 hour attendance cap or providing no response.

One respondent told us if an operation is in compliance band F then 100% of the operational hours should be supervised by 1 or more TCMs.

One respondent told us the 48 hour attendance cap was high and another said no limit should be applied. Other respondents told us an attendance cap based on a standard working week would be more appropriate. To achieve a 48 hour working week a site operator would need to have 2 TCMs per site.

A respondent suggested the 48 hour cap was excessive because 20% of a 24 hour, 7 days a week operation is 33.6 hours per week. Sites needing attendance approaching the attendance cap would be significantly underperforming, despite the TCM already being at site for a large proportion of the overall operational hours. It was suggested in such circumstances the TCM is likely to be aware of the compliance issues but does not have the ability to rectify them. It was therefore suggested the 48 hour attendance cap was an excessive burden considered unlikely to achieve a benefit.

One respondent told us the 48 hour attendance cap needed to be considered alongside applying the calculation to 24 hours a day, 7 days a week processes and attendance baselines.

Our response

In reality the TCM attendance requirement is unlikely to reach the 48 hour attendance cap for a particular site, as most sites will not be considered operational if they are not accepting, inputting or dispatching waste.

We intend maintaining a maximum 48 hour attendance cap, which is consistent with working time requirements. However, we will keep the 48 hours attendance cap under review when we consider how to calculate attendance going forwards, including increases in TCM attendance if a site has a deteriorating compliance band.

Question 5: Do you have any comments or views on the attendance requirements for 24 hour operations?

There were 60 responses to this part of the question. Many respondents agreed with the proposals, or told us the requirement wasn’t relevant to them, or confirmed they had no comments.

One respondent told us TCM attendance time should depend on the nature of the 24 hour operations. For example, if the operations continued in the same way for the whole of the 24 hour period, or if activities which could cause harm to the environment are reduced outside normal operating hours. Some facilities process waste 24 hours per day but only receive wastes during daytime hours. 24 hour waste treatment processes can involve a number of operatives working shifts. The respondent told us these types of operation would require more active management than, for example, an anaerobic digestion facility that only has 1 or 2 operatives monitoring the activities from an on-site control room or remotely.

One respondent asked us for clarity on the definition of typical operational hours in a 24 hour a day treatment process.

Our response

We will proceed with preparing guidance for permitted sites operating 24 hours a day.

If a 24 hour operation is carried out, rather than calculating attendance on a 24 hours a day fully automated treatment process alone, we propose operators calculate this based on their typical operational hours for:

• waste acceptance
• waste input
• waste dispatch activities

This is providing the operator has remote or telemetric systems to raise an alarm, with appropriate personnel on call, should an incident occur during unmanned hours. These procedures must be explained in the operator’s management system.

Question 6: Do you support the attendance requirements for sites with multiple regulated facilities? Do you have any comments or views on the attendance requirements for sites with multiple regulated facilities?

There were 59 responses to this part of the question. The majority of respondents supported the proposed requirements or did not provide alternative views.

One respondent told us a TCM with relevant experience in all the multiple regulated facilities should not need to attend for the cumulative number of hours to review and control operations for a compliant site. Another agreed with the proposals, but highlighted the need for adequate supervision for each part of the overall site.

Guidance with ‘real life’ examples was suggested as it would help industry understand the requirements. Another respondent was in favour of TCM attendance being the sum of all the regulated facilities on the site.

One respondent wanted greater clarity for sites with multiple operators and some respondents requested further details in the second consultation. A respondent referred to local TCM attendance agreements, as this would reflect site specific considerations.

Another respondent was concerned how TCM attendance at sites with multiple regulated facilities would be calculated and whether this complexity would cause confusion. Clarity for sites under the same parent company umbrella, but different limited companies within the same land boundary, was also requested.

One respondent told us in situations where a TCM did not have all relevant TCM qualifications, the baseline should revert back to the attendance requirement for each separate facility.

Our response

A TCM will need all the relevant awards or units and associated continuing competence in order to act as the TCM at a site with multiple regulated facilities. If the TCM does not have this then an additional TCM will need to attend the site for the required attendance hours.

We are not in a position to cover every possible scenario with multiple regulated facilities, but we agree practical examples of calculating the attendance requirements would benefit all parties and we will present examples in the second consultation.

There will still be scope for local TCM attendance agreements, if operators meet the criteria we specify for reducing attendance. We will not accept existing or future proposals by operators for a 1 hour per week attendance requirement for operational sites. This is impractical and does not provide enough time for TCMs to make sure permit conditions and management systems are complied with.

Question 7: Do you have any comments or views on the attendance requirements for sites after permit transfer?

There were 61 responses to this part of the question.

One respondent told us there should be a 20% attendance requirement after permit transfers, which can be reduced for good compliance performance.

Another respondent told us the attendance requirement should only change if the TCM changes (noting TCMs may be retained post permit transfer). Similar comments were provided for permit transfers as a result of company takeovers, where the site management would essentially stay the same as the arrangements prior to the transfer.

A respondent told us we should consider cases where operators of sites in compliance band A take over sites in bands C, D, E or F. The respondent suggested the transferee is likely to have well established, effective management systems. As there is no grace period for permit transfers, the new operator’s TCMs may need to be redeployed or a TCM employed until additional staff can be trained. It was suggested that in these cases the attendance requirements should be reconsidered before 6 months of operations have passed following the transfer.

One respondent highlighted the need for a risk based proportionate approach. For instance, sites permitted to store a single stream versus the chemical treatment of hazardous waste streams from multiple sources. Their preference was to adopt a case by case approach. Another respondent told us the proposed rules for permit transfers should only apply to new operators, not experienced operators who can provide documented evidence of previous history.

One respondent told us that, under the competence management system, there will be a requirement to successfully complete both Stage 1 and Stage 2 audits to ensure the CMS certification is in the right company name. The respondent’s suggested approach for permit transfers for operators under the ESA/EU Skills scheme was for the operator to:

1. Submit the contract with the certification body with the permit transfer application.

2. Book the CMS certification audits (Stage 1 and Stage 2) at the time the permit transfer is issued.

3. Complete CMS certification to correct the company name within 3 months of the permit transfer being issued.

The respondent provided justification for the 3 months timescale and stated a change to approval audit may be needed, which could take up to 3 months to complete.

One respondent identified that attendance requirements had not been confirmed 6 months after permits had been issued or transferred. This causes some uncertainty for TCM attendance and the respondent suggested TCM attendance agreements are not always met with a pragmatic risk based approach.

A respondent requested further clarity on amenity complaints. Another told us the circumstances of the permit transfer should be an important consideration when deciding whether the TCM attendance should revert back to that required by the guidance, rather than applying any previous, locally agreed attendance requirement.

Our response

For situations where the site management would essentially stay the same as before the transfer, we will reconsider our proposal that the TCM attendance requirements for the transferee revert back to guidance requirements. Further details on any revised approach will be included in the second consultation.

We acknowledge the need for a risk based proportionate approach for TCM attendance. But there is also a need for a framework for how TCM attendance is calculated, otherwise this can result in inconsistency. The option of agreeing a reduced TCM attendance with us after the first 6 months of normal operations will remain.

For the competence management system and permit transfers, we understand there is no agreed process for permit transfer grace periods. We will discuss this with the scheme providers, as this issue does not directly relate to TCM attendance.

Within the consultation we referred to amenity complaints and pollution incidents. For the purposes of TCM attendance, these would need to be substantiated amenity complaints or incidents. We would only consider an amenity complaint or incident as substantiated if this was done by an Environment Agency officer, or the operator substantiates the incident.

Operators need to instigate approaching their local lead officer to propose (with justification) alternative TCM attendance after 6 months of normal operations. Any agreements must be made in writing.

Question 8: Do you have any comments or views on the attendance requirements for mothballed sites?

There were 62 responses to this part of the question.

The majority of respondents were supportive of the proposals, but we will use some responses to help inform our future consultation.

One respondent told us mothballed sites needed inspection for security and to make sure that, for example, no leaks or amenity impacts were occurring. The respondent considered 1 inspection per week, lasting around 2 hours should be required. Another respondent told us mothballed sites should not require attendance provided that proof can be provided that the site is non-operational.

We were also told the site owner or operator should have their own policies in place for site attendance as part of the requirements of their insurance.

One respondent stated the proposals were fair, but the exception would be for sites that are closed for less than a month. It was suggested that in those instances, the TCM should only need to attend the site if there is a risk of environmental pollution, or to check for any conditions likely to lead to risk of pollution. The respondent felt there should be no attendance requirement in those instances.

Another respondent commented that the proposal to remove the requirement of TCM attendance and requiring periodic inspection by operators at mothballed sites was reasonable, but it was unclear how this provision would work for mothballed landfill sites as the consultation referred to “no waste on site”. They suggested including a provision that allowed for reduced TCM attendance (from that required for a fully operational site) in circumstances when a landfill site is mothballed and no longer accepts waste before it is fully closed. This would include situations where the site no longer accepts waste and is undergoing remediation work prior to subsequent closure.

Another respondent suggested mothballed sites should not require a TCM and another told us clarity on the TCM attendance requirement for deposit for recovery (DfR) sites (which are similar in nature to inert landfills) was needed. They pointed out there can be a period of time between completion of the DfR activity and permit surrender, but there is no formal closure process for DfR sites.

Another respondent requested flexibility where sites are used, for example, for parking vehicles, where oils and chemicals may still be present but the permitted activities are not operational.

We were also asked what we considered to be periodic inspection in the context of mothballed sites and who should carry out that periodic inspection.

Our response

A mothballed site will still need periodic inspection by a TCM, as they would understand the requirements of the environmental permit and management system.

We expect operators to make a risk based decision on the frequency of periodic attendance, after consideration of the residual risks. The residual risk should be low, as the site would only be considered mothballed if:

• waste acceptance has stopped
• there is no waste stored on site
• the site is secure
• potential pollution risks such as oil and chemicals have been removed

Potential pollution risks from oil and chemicals relate to the permitted activities directly rather than, for example, to storing fuel for waste collection vehicles using part of the mothballed permitted area as a depot or base.

For mothballed landfill sites the same approach to closed landfill TCM attendance appears reasonable where all the waste has been deposited in the landfill. In the case of non-hazardous landfills the deposited waste will be producing gas and leachate that needs to be managed.

For DfR sites we will clarify in guidance that the TCM attendance requirement will be agreed after the site has stopped accepting waste.

Question 9: What implementation period do you consider appropriate for existing permitted sites?

• 3 months – 3 (4%)
• 6 months – 18 (24%)
• 1 year – 37 (49.33%)
• do not know – 13 (17.33%)

Four (5.33%) respondents did not provide an answer to this question.

Nearly half of all respondents considered a 12 month implementation period was appropriate.

Our response

There is a strong preference for a 12 month implementation period. This a reasonable time period when considering the potential need for additional TCMs in the waste sector. Existing guidance on TCM attendance is still valid in the interim.

We will proceed with developing our attendance proposals on the basis of a 12 month implementation period.

Question 10: Do you have any comments or views on the implementation arrangements?

There were 61 responses to this part of the question.

Some respondents supported a 12 month implementation period and told us that if additional TCMs were needed, it would take 12 months to complete the necessary awards or recruit additional staff. They would also need time to understand and disseminate the changes to the attendance requirements guidance.

One respondent told us they thought previously agreed site specific TCM attendance arrangements should be honoured beyond the implementation period.

A respondent told us they did not agree that immediate compliance should be mandatory for new permits. We believe this related to, for example, permit applications that may be submitted but not determined before the revised attendance requirements are published.

One respondent supported our position that a 1 hour TCM attendance is not adequate to supervise a permitted site to make sure it complies with the permit conditions and other directly applicable legislation.

Our response

We consider a 12 month implementation period to be reasonable when reflecting the potential need for additional TCMs in the waste sector and the reorganisation of TCM responsibilities.

We do not agree to allowing previously agreed site specific TCM attendance to be maintained after the implementation period. Some previously agreed attendance arrangements are considered impractical and it is unlikely they are being met. They also do not represent the amount of time needed to manage an increasingly complex waste management sector.

Question 11: Do you support the proposed attendance requirements for closed landfills?

The responses were as follows:

• yes – 29 (38.67%)
• no – 8 (10.67%)
• do not know – 30 (40%)
• not answered – 8 (10.67%)

The majority of respondents either did not know or didn’t answer, which is most likely because their activities do not include the management of closed landfills. Nearly 40% of respondents agreed with the proposals.

One respondent told us that a TCM is still needed to inspect a closed landfill to make sure there are no problems with security, odours, leaks and monitoring for example.

Some respondents told us they supported site specific attendance requirements, others told us they needed further details of the proposals and questioned what was meant by periodic attendance.

We were told clarity was needed for operators who use CMS and when CMS certification can be removed for a closed landfill site. The operator must keep records of periodic attendance at closed landfill sites to carry out duties such as:

• post closure inspections
• checks on extraction and monitoring infrastructure
• site security

However it was suggested these records do not need to be held within a certified management system.

One respondent disagreed with the proposals and highlighted work managing closed landfills which is not physically carried out on the site, for example reviewing monitoring data. The competent person for that activity could be someone other than the TCM. These competent persons should be trained to carry out their role and the respondent therefore questioned the effort of carrying out TCM site visits just because they are the TCM.

Our response

We agree TCMs are needed to maintain overall permit compliance and perform certain supervisory duties. We acknowledge the TCM would not fulfil every role associated with a closed landfill and this was acknowledged in the consultation. We also acknowledge the role of remote compliance activities for closed landfill, including the assessment of monitoring data.

TCM attendance at closed landfills is required to perform checks, for example site security, assessment of the condition of treatment plant and monitoring infrastructure. The TCM should understand all the requirements of the environmental permit and management system and be in the best position to supervise the site and permit compliance overall.

We will agree TCM attendance for closed landfills once a landfill is definitively closed. We will also agree TCM attendance for landfills that are mothballed and deposit for recovery activities where the operator has stopped depositing waste.

The frequency of attendance will depend on the activities carried out and the size, location and nature of those activities. For example, we would expect an operator to propose more frequent TCM attendance at a closed landfill with active leachate and gas management when compared to an inert waste landfill or deposit for recovery activity.

Question 12: Do you support the proposed attendance requirements for mobile plant for landspreading permits?

The responses were as follows:

• yes – 26 (34.67%)
• no – 6 (8%)
• do not know – 33 (44%)
• not answered – 10 (13.33%)

The majority of respondents did not know the answer to this question or did not answer it. We anticipate this is because mobile plant for landspreading activities are unlikely to be relevant to their business activities.

One respondent told us they agreed in principle with nominated competent persons (NCP) and that they require specified training. But they also told us they had concerns about the approach in the consultation from a practical perspective. This included the content of the Environmental Permitting Operator’s Certificate (EPOC), which they considered was focused on site based rather than mobile activities.

The 4 unit WAMITAB award was also considered problematic on the basis the qualification would need to be assessed on a suitable site. This potentially poses the same difficulties as TCM attendance at mobile plant. The respondent raised potential difficulties in coordinating WAMITAB assessor availability with the NCP. The development of an alternative training option was suggested and the respondent told us the landspreading continuing competence test was appropriate for demonstrating ongoing competence with those types of mobile plant activities.

One respondent questioned whether EPOC certification and a continuing competency test every 2 years was appropriate for the NCP role. It was suggested the TCM could determine if the NCP was competent and could provide the required training. As NCPs may be contractors, we were told it was too onerous to expect them to hold EPOC qualifications.

A respondent considered the EPOC a good foundation for NCPs and highlighted they were aware of good examples of TCM training carried out for NCP type roles. The respondent also drew comparisons to the quarrying sector and the use of a nominated person who is the equivalent of a TCM and a deputy (equivalent for NCP).

If the role of an NCP is to be linked to a TCM it was suggested this should it be written into the CIWM/WAMITAB operator competence scheme. It was also highlighted that for NCPs to gain the 4 units under this scheme it could be difficult to physically assess the candidate on site, so an alternative means of assessment may need to be developed.

A respondent told us expanding the development of the NCP role by adding certification requirements will help increase the number of operators who have, or are working towards, a nationally recognised qualification. This would help improve environmental compliance and career development. The respondent also noted the potential financial impacts (particularly for the landspreading sector) by requiring all NCPs to obtain an EPOC or 4 critical units.

One respondent did not agree with the NCP approach as their view was mobile plant activities were lower risk, as long as there is robust regulation of the material spread.

Some respondents referred to LANTRA, who provide training and qualifications for land based industries.

Our response

There is a need for a NCP approach for landspreading mobile plant. This approach helps ensure sufficient oversight of these types of waste activities. This oversight is becoming increasingly important due to the environmental risks posed by diffuse agricultural pollution from landspreading activities. The NCP approach for landspreading activities is already included in Technical Guidance Note 8.01 – How to comply with your landspreading permit and our proposals intend formalising the arrangements for NCPs.

The NCP proposals for operators following the CIWM/WAMITAB operator competence scheme may not require a change or significant change to the existing approved scheme, but this would require further discussion with CIWM/WAMITAB and Defra.

We will discuss with CIWM/WAMITAB the possibility of developing an EPOC that will include content tailored to mobile plant activities.

We note LANTRA provide training and qualifications for land based industries. These qualifications are not currently included within a government approved technical competence scheme for relevant waste operations. Operators of landspreading mobile plant activities may want to approach LANTRA, to see if they would consider developing a technical competence scheme that could be approved by government. Further details of the criteria approved schemes need to meet is included in section 9 of the Environmental Permitting Core Guidance.

Question 13: Do you support the proposed attendance requirements for land remediation mobile plant permits?

The responses were as follows:

• yes – 24 (32%)
• no – 5 (6.67%)
• do not know – 34 (45.33%)
• not answered – 12 (16%)

The majority of respondents did not know the answer to this question or did not answer it. We anticipate this is because mobile plant for land remediation activities are unlikely to be relevant to their business activities.

For those that did respond, there was preference for the development of a NCP approach for land remediation mobile plant activities.

One respondent told us a site specific attendance approach should be adopted. Another respondent did not support proposals for NCPs to be required to obtain an EPOC or complete a continuing competence test every 2 years, if there was a TCM in overall control and available to provide guidance and support to the NCP.

Another respondent supported a bespoke TCM attendance approach (agreed at the deployment form application stage) but not the NCP approach as this was considered a dilution of the TCM role, and without clear responsibilities it would be difficult to regulate.

Another respondent supported the NCP proposal and the removal of the 1 hour default time. They also supported agreeing a bespoke attendance requirement at the deployment form application stage.

One respondent questioned if the NCP role linked to a TCM needed to be written into the CIWM/WAMITAB operator competence scheme.

One respondent told us that expanding the development of the NCP role is a benefit to both the industry and its operators. The respondent welcomed using technology instead of onsite attendance for land mobile plant activities. This is because automated and telemetric systems, together with CCTV, are a modern and cost effective way that a TCM can identify and manage the environmental impacts of the site’s activities without being physically present.

This respondent also agreed that for mobile plant TCM attendance should be weighted towards site establishment, commissioning, decommissioning and demobilisation.

One respondent told us a clearer structure for TCM attendance hours for mobile plant permits based upon the type of operation was needed.

Our response

We will discuss how NCPs would integrate with the CIWM/WAMITAB scheme with the scheme providers before the second consultation.

The NCP approach for land remediation is unlikely to be as critical for land remediation mobile plant as it would be for landspreading mobile plant activities. For example, we would not expect the peaks and troughs of deployments that we see in the landspreading mobile plant sector. However, respondents to this consultation have stated their preference to development of NCPs for land remediation, so we will proceed to develop guidance on that basis.

Agreement for TCM attendance (focusing on site establishment, commissioning, decommissioning and demobilisation) on a site specific basis remains appropriate. Operators proposing site specific TCM attendance need to propose risk based and practical attendance hours. This would not include the use of 1 hour a week attendance, which would seem impractical and unlikely to achieve any benefit. We will develop a framework to support operators and our staff in assessing what the risk based and practical attendance hours would look like.

Businesses operating relevant waste operations within the land remediation sector may want to discuss technical competence with the providers of the 2 government approved competence schemes. Discussions would gauge how these schemes would help satisfy the requirement to demonstrate technical competence.

Question 14: Do you support the proposed attendance requirements for other mobile plant permits?

The responses were as follows:

• yes – 25 (33.33%)
• no – 6 (8%)
• do not know – 33 (44%)
• not answered – 11 (14.67%)

The majority of respondents did not know the answer to this question or did not answer it. We anticipate this is because mobile plant activities are unlikely to be relevant to their business.

For those that did respond, there was a preference for the development of a NCP approach for other mobile plant activities. However, 1 respondent told us the proposals were too complicated and maintaining TCM coverage with a short period of attendance on each site was their preferred option.

One respondent did not support the proposal that NCPs must obtain an EPOC, or complete a continuing competence test, if there is a TCM in overall control who can provide guidance and support to the NCP.

Our response

We will discuss how NCPs would integrate with the CIWM/WAMITAB scheme with scheme representatives before the second consultation.

We do not anticipate the NCP approach will be as critical for mobile plant producing soil, soil substitutes and aggregate, for example, as it would be for landspreading mobile plant activities. The agreement for TCM attendance (focusing on site establishment, commissioning, decommissioning and demobilisation) on a site specific basis remains appropriate.

Operators proposing site specific TCM attendance need to propose risk based and practical attendance hours. This would not include the use of 1 hour a week attendance, which would seem impractical and unlikely to achieve any benefit.

Question 15: Do you support the adjustment of the attendance requirement for operator performance, with those in deteriorating or poor compliance bands having an increased attendance requirement?

The responses were as follows:

• yes – 56 (74.67%)
• no – 9 (12%)
• do not know – 7 (9.33%)
• not answered – 3 (4%)

Nearly three quarters of respondents supported the proposed adjustment of the attendance requirement based on operator performance.

Some respondents suggested not all permit issues could be addressed by increased TCM attendance.

One respondent provided suggestions for the percentage increase for sites within compliance bands C to F, by using an incremental 5% increase for each band above the standard 20% (for bands A to C). The respondent also requested more information on how increasing the attendance for a poorly performing sites would be applied through the ESA/EU skills scheme when the number of hours requirement does not currently apply.

One respondent told us an increase in TCM attendance at poor performing sites should not be the sole focus of efforts to improve a site and suggested, for example, that formal compliance improvement plans may provide more benefits. They also suggested having the TCM located off site may be beneficial, to develop training or carry out paperwork checks for example.

One respondent questioned whether changes to TCM attendance would improve compliance, as performance is ultimately the responsibility of the operator’s management team.

Two respondents told us the capability of the TCM was more important than the actual hours on site.

One respondent suggested under the ESA/EU Skills competence scheme, operators in bands C to F should inform the certification body of this within 1 month and the certification body would provide the Environment Agency with the outcomes from their intervention.

Another respondent suggested as there is no TCM under the ESA/EU Skills scheme an additional surveillance visit from the certification body within 3 months of the operator being in compliance bands C to F would be appropriate. Operators of compliance bands E and F would have a minimum of 2 surveillance visits from the certification body per year until their performance returned to compliance bands A to D.

One respondent provided us with suggested percentage TCM attendance adjustments dependent on compliance bands. Another suggested an additional 3 hours of TCM attendance for each drop in compliance band. Other respondents suggested 100% TCM attendance for band F sites. We will consider these suggestions when we develop the second consultation.

One respondent recognised that a waste operator who is performing poorly should require greater scrutiny by a TCM, but they were concerned operators may have to provide increased attendance due to previous issues that may have been resolved. The respondent considered the approach to TCM attendance and compliance bands as punitive rather than a method for improving compliance. They were more in favour of an approach where increased TCM attendance is applied when the compliance issues occur, and once resolved, attendance could return to normal levels after a published period of time.

Some respondents suggested having reduced TCM attendance as incentives for good performers as well as increasing TCM attendance for poor performers. Another respondent suggested local agreements on TCM attendance would introduce grey areas and lead to inconsistency. The respondent also noted TCM holidays and other absences were not always being covered.

Our response

The majority of respondents agreed TCM attendance should be adjusted in response to poor compliance performance. We reiterate our proposal that, in very exceptional circumstances where the operator has a history of good permit compliance, we may agree in writing not to increase the attendance requirement. This would include for example where the non-compliance was easily rectified and additional TCM attendance would provide no tangible benefit.

Operators of compliant sites will continue to have the benefit of agreeing a reduction in TCM attendance if the:

• operator has a satisfactory management system in place
• site is in compliance band A or B
• site has not received any complaints about noise, odour or dust
• site has not had any pollution incidents in the previous 12 months

The complaints or pollution incidents referred to in these points are ones substantiated by the Environment Agency or the operator.

We agree that increasing TCM attendance should not be the sole focus of efforts to improve a site. However, the root causes of permit non-compliances are regularly recorded as poor training, and inadequate implementation of management systems and associated management plans. Managing these are an important role for the TCM as part of the overall technically competent management.

We will propose TCM attendance adjustments for poor performers in the second consultation and will discuss the best approach for the ESA/EU Skills competence scheme with the scheme providers.

Question 16: After a deterioration in compliance banding, how soon after this should the adjustment of the attendance requirement for operator performance take place?

There were 65 responses to this part of the question. Responses proposed various approaches including suggesting the attendance requirement is adjusted immediately after the non-compliance. Other respondents suggested the attendance adjustment should be as soon as practically possible. We received various other suggestions of up to a year.

Two respondents suggested 6 months should be given and 1 of these told us if the compliance issues had not been addressed then the attendance requirement should then be increased. Another suggested we should agree timescales for adjustment with the operator.

Another respondent suggested flexibility on the adjustment, depending on the operator’s historic performance and the actions taken to rectify the observed issues. Other respondents referred to the adjustment timescale needing to take into account any changes to work contracts, training, or work patterns, for example.

One respondent suggested 2 months, to allow compliance assessment report forms to be issued, operator challenges to be submitted (where relevant) and responses to those challenges received. The respondent suggested where breaches associated with attendance are rectified, that attendance could resume as normal, as long as the Environment Agency is satisfied with the action taken.

One respondent referred to how the approach would work for suspended compliance scores.

Our response

We propose the simplest means of implementing the change to TCM attendance will be within 2 weeks of receiving a compliance assessment report (CAR) form which changes compliance banding to bands C to F. We acknowledge some operators may decide to dispute the findings of the CAR Form. In those instances the TCM attendance requirement will not change until either the:

• dispute is resolved, in line with our customer charter
• operator decides to increase attendance so they follow the published guidance

In cases where we agree to suspend compliance scores we will also consider on a case by case basis whether to agree in writing to no increase in the attendance requirement. There will be some instances of compliance score suspension where we would still require increased TCM attendance, for example in situations where we have served an enforcement notice.

Question 17: Do you support the proposed attendance requirements during grace periods?

There were 57 responses to this part of the question. Of those that responded, more were in favour of the proposals than against.

One respondent did not agree with the concept of grace periods on the basis that an inexperienced learner at a site with a new permit holder posed an increased risk of environmental incident.

One respondent raised concerns if the TCM benefitting from the grace period supervises the site in accordance with the attendance guidance, this may affect their ability to carry out the work needed to obtain the full award.

Our response

We acknowledge the potential risks associated with the grace period and will consider this further as part of future discussions on the overall approach to technical competence.

At present grace periods for new permits are included in both government approved technical competence schemes. Our proposed guidance will clarify that the TCM benefitting from the grace period will need to supervise the site as well as completing their relevant award by the end of the grace period.

Question 18: We value your feedback on the proposed changes. Please tell us if you have further comments not covered by the questions above.

There were 54 responses to this part of the question.

The responses to this question included comments on technical competence that are noted but are not subject to this consultation. We have not included these comments in this response document. Some responses to this question reiterated responses to previous questions.

One respondent requested TCM attendance hours be calculated on a monthly basis, as this would help meet the attendance requirements when TCMs are on holiday, or sick.

Some respondents commented that specific timed attendance under the ESA/EU Skills operator competence scheme defeats the purpose of this scheme as it is based on having a competent team in place, managed through an externally certified and tested competency management system. There was concern that forcing staff to be on site for specified time periods would cause financial strain and would damage the approach this scheme adopts.

One respondent welcomed the updates to the current attendance requirements, highlighted the need to make TCMs more accountable and recommended greater scrutiny of TCMs’ credentials. Respondents also requested clarity on the role of the TCM and reiterated the need for a second consultation.

Two respondents indicated the NCP approach could have benefits for site based permitted sites as well as mobile plant activities.

One respondent told us the information proposed within the consultation did not align with the Regulators’ Code and was not risk based and proportionate. The respondent proposed implementing a minimum time on site requirement only for sites that are poor performing, until they return to good compliance status.

One respondent referred to records of TCM attendance and that they should be included as part of waste returns submissions.

Our response

Our approach has been to calculate TCM attendance hours on a weekly basis and we do not intend changing this approach in our guidance. It is already the case that if the TCM takes time off (for any reason) then cover must be arranged for them.

We acknowledge the views of respondents concerned about the introduction of attendance requirements for particular site personnel and refer back to our response to question 2. The TCM attendance requirements guidance does not currently apply to members of the ESA/EU Skills scheme. We will continue to assess whether operators are using sufficient competent persons and resources regardless of the scheme used to demonstrate technical competence.

At the current time we do not intend considering NCPs for site based permits. As explained in the consultation, mobile plant activities have specific factors to consider for TCM attendance when compared to site based permitted activities.

The TCM attendance proposals are being developed through consultation with industry. This approach is helping to shape what will ultimately be adopted through guidance. Technical competence is an important measure operators need if they want to apply for and keep an environmental permit. Option 1 takes a risk based approach to TCM attendance and industry will have a further opportunity to comment on the details of this option and other rules associated with TCM attendance as part of our next consultation.

5. Next steps

We will produce a second more detailed consultation document with further details for option 1 and other rules associated with the attendance requirements for technically competent managers. We aim to publish the next consultation in summer 2022.

Individuals who wish to follow up the responses in this document in more detail are welcome to contact us at [email protected].

6. Annex: list of consultation respondents (by name)

360 Environmental

ADBA

Andy Coleman

Anglian Water Services Ltd

Approved Authorised Treatment Facility (AATF) Forum

Argent Energy UK

Beech Environmental

BIFFA Waste Services

Braintree District Council

Buckinghamshire council

Canal & Rivers Trust

City of Wakefield council

CIWM

Cognition Ltd

David Woolgar Consulting

DMP Metals

Edward Bennett

Electrical Waste Recycling Group

Electricity North West Limited

EMR Ltd

Energy Networks Association

Enva England Ltd

Environmental Focus

Environmental Leadership Ltd

Envirotech

ESA

EU Skills

FCC Environment

Heselwood

Imerys

Jessica Ball

JJ Tompkins

Lampton Recycle 360 ltd

LARAC

Leicestershire County Council

Lloyds Register

Marches Biogas Ltd

Mineral Planning Group

Mineral Products Association

MJCA

Mr Glyn Leppitt

Mulciber Limited

National Association of Waste Disposal Officers (NAWDO)

National Health Service

PD Ports

REA

Rethinking waste

Rog Mungo

RSK

Sackers Limited

Southern Water Services Limited

SP Energy Networks

SSE plc

Stobart Energy

Swancote Energy

Tarmac Trading Limited

Thames Water Utilities Limited

Trisha Sanders

UROC

Vehicle Recyclers Association

Veolia UK

Warwickshire County Council

Wessex Water

Wiser Environmental

Wood Recyclers Association

Yorkshire Commercial Services Limited

Yorkshire Water

Yorwaste