News & Views

Welcome to our News and Views page. On this page we will focus on topical issues and hope that you will find the information relevant and helpful. The views are opinions of the authors only and should not be relied upon in any way in specific cases without taking further advice.

Mining Waste Directive
Permits to Replace Exemptions
Downton Manor Farm

Mining Waste Directive (MWD)
This new directive is about to take effect, unwelcome as it may be. It will affect every quarry site.

What waste are we talking about?
Mining, or Extractive Waste is defined as "waste resulting from prospecting, extraction, treatment and storage of mineral resources and working of quarries". It includes waste from processing activities, overburden and soils. Wastes from coating plants and concrete plants or site office wastes are not extractive wastes but are "controlled wastes". They do not fall under the MWD and must be managed under the normal duty of care.

When is waste not a waste for the purposes of the MWD?
European case law, established by a Finnish quarry company - Avesta Polarit, identifies when mineral material becomes a waste. This is important because if materials are not waste they will not fall under the MWD. Discussions seeking clarification on this point are ongoing with the industry and DEFRA and a protocol to assess all site materials as either extractive waste or non waste is being developed. This will be done by producing an Extractive Materials Management Statement for each quarry which must be independently verified.

MWD = Environmental Permitting
The UK interpretation of the MWD introduces the requirement for an Environmental Permit, issued by the Environment Agency, where there is extractive waste at a site. A 'Standard Rules' permit can be applied for at your site providing it meets certain criteria. This is cheaper to apply for and operate within. If you cannot meet the guidance for the Standard Rules Permit then you must apply for a more onerous 'Bespoke' Permit which requires more information to accompany the application and has higher fee costs. The Permits are similar to those for 'proper' waste sites which include competency requirements, surrender provisions, and so on. Unfortunately, there will be extra costs to the industry.

Classification of Sites
There are additional requirements for permits depending on the site's classification. Sites with extractive wastes are classed as either:
"Mining waste operation" - defined as one where extractive wastes are managed. It would appear to include sites remote from the mine or quarry where mineral wastes are created, such as stone processing yards.
Or
"Mining waste facility" - an area /site designated for the "accumulation or deposit of extractive waste", e.g. silt lagoons, or waste stockpiles, but only if it is designated as such for more than three years in the case of inert wastes.
On most sites some material will need an Environmental Permit.

For each mining waste facility a Waste Management Plan must be produced which will describe the operational activity, identify health hazards, establish control and monitoring procedures and include a ground conditions survey and restoration plans.

A further classification, with additional requirements, relates to whether the site is classified as 'Class A' - hazardous" or not. Sites which pose the most serious potential environmental harm due to the nature of the waste, e.g. metaliferous tailings or breach of a silt lagoon onto an SSSI will have additional requirements which include the provision of an external emergency plan.

Permit Applications
Application fees are expected to range between £500 and £3,500. Applications for Permits for many sites will have to be made this year. We will review each of our clients' sites and contact them when the guidance is released to explain what will be required for each.

Downton Manor Farm
It is with pleasure and relief that finally, planning permission has been granted for Downton Manor Farm. A well respected planner once said, "There is nothing more sustainable than a local gravel pit" and Downton Manor Farm is the epitome of such a sustainable development. Out of sight and out of earshot the extraction is a simple dig and despatch operation where a single excavator will load no more then 30 lorries per day to take the material off site for processing. It provides local materials for local building in Lymington / Christchurch and the New Forest and will reduce the number of lorries carrying stone from Somerset to service this area. The restoration scheme will produce an attractive landscape of lakes, woodland and small fields.

Planning permission was granted following two applications to Hampshire County Council, the first in 2005, both of which were strongly supported by planning officers but refused by committee, an appeal against refusal, two public inquiries in 2007 and 2009, the first identified that the site was suitable but found that the proposal was premature to the production of the Minerals Development Framework. A High Court challenge which was conceded and the Secretary of State's final approval in November 2009.

Mineral Planning Policy Statement 1 says, "It is essential that there is an adequate and steady supply of material to provide the infrastructure, buildings and goods that society, industry and the economy needs". If this is planning for an essential industry in practice, one wonders how construction materials would be supplied if they were not essential.

Permits to Replace Exemptions
The Environment Agency has produced a first draft of the Standard Permits that they propose in place of several of the widely used exemptions from Environmental Permitting.

The exemptions are:
Paragraph 9 - Reclamation, restoration or improvement of land
Paragraph 19 - Waste from construction
Paragraph 13 – Manufacturing from selected wastes

Draft Standard Rules have been produced to replace these exemptions and the EA is currently holding workshop events to discuss these.

The proposal is to introduce Standard Rules Permits which would apply, provided, in keeping with all the existing Standard Rules, the proposal could meet particular requirements including distance from water courses, boreholes, habitat designations and not in ground water source protection zones 1 or 2. If your currently exempt site cannot meet these criteria, a bespoke Permit would have to be obtained.

A Standard Rule Permit should be straightforward to acquire, needing only to provide at the outset planning permission and technical competence. The fees for a Standard Permit are lower than a bespoke Permit, as the Agency usually don’t have to make any technical assessment on a Standard Permit.

As with all Permits, it is a condition of these proposed Standard Rule Permits that the Permit holder has an Accident Management Plan in place and that there is a formal Management System for the operations. The EA is pushing for operators to have systems such as ISO14001, but less onerous and complex approaches to this issue should also be acceptable.

The draft Standard Rules have one significant issue that should be addressed prior to them being finalised. With the exception of the proposal for manufacture of soil from construction products, all of the Permits propose requiring the submission and agreement of further information prior to operations commencing. This includes cross-sections, risk assessment etc.

In my view, this puts the draft Permits beyond what has been established as a 'Standard' and much more into the range of bespoke Permits, but without the flexibility offered by a bespoke Permit. (Standard Permits cannot be varied). Although the information required maybe no more than is currently required to register an exemption, submission after the Permit has been issued could lead to delays in developments occurring if agreement cannot be reached. In a worst case scenario, if EA agreement is not given to the details of a proposal, the operator is left with a Permit that cannot be used. There would be no Right of Appeal against refusal to agree the submitted details.

The draft Permits to replace exemptions 9 and 19 are framed as recovery or reclamation, rather than disposal, but as yet it is not clear what implications this will have on surrender or long term liabilities for these sites.

There is no doubt that further consultation and discussion between industry and the regulators on this issue is needed.

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