Is Technical Competence Competent?

Luke Prazsky, technical director at Wardell Armstrong asks: are the environmental permitting technical competence requirements fit for purpose, and do they cover all the activities they should?

Defra’s recent consultation, which closed at the end of March, discussed proposed changes to the approach by the Environment Agency (EA) and Natural Resource Wales (NRW) to addressing technical competence when dealing with waste. I welcome the acknowledgement that this is an area needing attention but it still leaves me thinking that it doesn’t go far enough.

Why don’t all permit holders have to demonstrate technical competence?

The obligation for operators to prove technical competence when dealing with waste does not appear to be fairly distributed across the industries regulated through the Environmental Permitting (England and Wales) Regulations 2016 (EPR ’16).

Operators in other industries are not required to demonstrate technical competence this way, indeed, due to historic differences in the ways sites are regulated, some operators in the waste industry don’t even have to comply. Should we therefore do away with such schemes or should we bring the other industries in line?

“Operators in other industries are not required to demonstrate technical competence this way, indeed, due to historic differences in the ways sites are regulated, some operators in the waste industry don’t even have to comply…”

‘Specified waste management activities’ (SWMAs), to which the operator competence requirements were historically aligned, is a concept that has legally ceased to exist since the introduction of EPR ’16 (which replaced EPR ’10 without transposing this element).

In England and Wales today the concept of SWMA exists only in EA/NRW guidance and modern permits, which for waste operations include a condition requiring that: ”The operator shall comply with the requirements of an approved competence scheme”, ie, site operations should be under the control of a Technically Competent Manager (TCM).

In practice, this means that the majority of waste management facilities, including, but not limited to, landfills, waste recovery activities, waste transfer stations, material recycling facilities and biological treatment facilities require the TCM to hold the appropriate qualification with a certificate of continuing competence. One notable exception are incineration/Energy Recovery Facilities both large and small, which seems rather contradictory as they are clearly waste management facilities.

I would like to see the requirement extended to include operators in other sectors and therefore cover all activities which need an environmental permit, including combustion, refining, metals, chemical production, etc – you get the idea. They present a similar risks to the environment so why not start getting formal competence schemes in place for each of these too?

Give more power to the awarding bodies!

Secondly, do the awarding bodies need their powers beefing up? Specifically, I feel they should also have the powers to rescind an individual’s qualification in the event that they repeatedly fail to run their site properly and are prosecuted and convicted as a result. If it can happen to Joe Public with their driving licences, then why not to waste managers?

Defra referenced EA data in the consultation that shows, in England in 2015/16 465 (4%) permits in the waste industry had poor compliance with permit conditions and were rated band D, E or F. Of these, 203 were persistent poor performers who had been rated D, E or F for two years or more.

However, whilst the Environment Agency continues to prosecute waste operators, I strongly believe the threat of a TCM losing their qualification would act as a motivating factor to think twice and pay closer attention to the conditions of the site environmental permit.

“…Whilst the Environment Agency continues to prosecute waste operators, I strongly believe the threat of a TCM losing their qualification would act as a motivating factor to think twice and pay closer attention to the conditions of the site environmental permit”

Whilst some of the large waste management businesses prefer to use the ESA/EU to develop in-house systems, I believe the majority of waste operators continue to employ TCMs that have been through the CIWM/WAMITAB scheme.

Currently, I understand WAMITAB’s operator competence scheme doesn’t assess convictions as part of the Continuing Competence test. Some might say it is not necessary or would add to the bureaucracy of the industry. I completely accept that the EA/NRW has the ability to refuse a permit application or suspend an environmental permit if it considers it necessary due to relevant convictions.

Indeed, the EA has recently done so for a proposed transfer of a landfill permit in the North East of England. The EA/NRW also has the power to prosecute individual site managers for failing to comply with the permit conditions, but the qualification cannot currently be taken away from the individual providing they keep up their training requirements.

Defra’s consultation is proposing changes to strengthen the EA/NRW’s assessment and enforcement of an operator’s technical competence. Consideration is being given to a system to address TCMs that act improperly by covering multiple waste sites or providing poor or wrong advice to waste operators through a ‘registration’ system. Under this a TCM would need to have both a technical competence qualification and be registered as a TCM in order to be considered competent by the regulators.

If a TCM subsequently acts improperly they could be de-registered, and their ability to work as a TCM would be suspended or removed entirely. This seems to me to be an unnecessarily complex step – if there were powers for the awarding body to withdraw qualifications then either an individual would have their Continuing Competence Certificate or they wouldn’t. Regardless, I strongly hope that one of the options above is adopted and sooner rather than later.


 

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