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Changes to the Environmental Permitting Regulations – What you need to know

Following the implementation of amendments to the Environmental Permitting Regulations in October 2015, we take a more detailed look at the four key developments and what they mean for permitted activities.

The Environmental Permitting regime (EP Regime) was established to regulate and control facilities which had the potential to harm the environment or human health. Under the EP Regime, operators of such facilities were required to obtain permits, or otherwise declare themselves as exempt.

In February 2015, the UK Government and Welsh Government launched a joint consultation to consider enhanced enforcement powers for regulators and other measures with the specific aim of tackling waste crime and entrenched poor performance in the waste management sector. This consultation was deemed necessary against the backdrop of a growing waste crime problem which was costing UK businesses an estimated £568 million per year.

The Government published its response to the consultation in October 2015, and several amendments to the EP Regime were implemented on  30 October 2015 by way of The Environmental Permitting (England and Wales) (Amendment) (No. 3) Regulations 2015 (EP Regulations 2015).

In this article, we consider the scope and impact of the EP Regulations 2015, the industry response to the changes and to what extent these changes reflect an increasingly draconian approach by Government to the EP Regime.

Summary and analysis of amendments

The EP Regulations 2015 essentially brought about four main amendments to the EP Regime, detailed below:

  1. Regulators were granted a power to suspend an environmental permit where an operator has breached their permit and there is a resulting risk of pollution.

    Previously, a regulator had the power to suspend operations where it considered that the activities gave rise to a risk of serious pollution. This power has been extended to allow suspension for any breach of a permit condition and a consequential risk of pollution. This proposal received mixed feedback within the Government’s consultation, some suggesting that such a power would be disproportionate where the risk of pollution falls short of being serious, with such steps likely causing a real detrimental effect on a business’ cash flow.

  2. Regulators can now use suspension notices to specify steps that may be taken by the operator to remedy the breach of a permit and remove the risk of pollution.

    This amendment can be read hand in hand with (a) above, and was intended to allow regulators to provide practical steps for an operator to take to remedy an existing or likely contravention of a permit. From experience with dealing with suspension notices, this power has rightfully received largely positive feedback from the industry as a sensible step to “resolve the problem faster and prevent further problems”.

  3. The EP Regulations 2015 removed a precondition for regulators to make an application to the High Court for an injunction to enforce compliance with an enforcement or other specified notice.

    Previously, a regulator was unable to obtain a civil injunction until they demonstrated that due consideration had been given to the use of criminal proceedings and concluded that such proceedings would be ineffective.

    Under the EP Regulations 2015, regulators will be able to seek injunctive relief as a first resort, regardless of whether other enforcement steps have been explored. Again, this proposal gained majority support in the consultation, being seen as a positive step to “speed up the ability to take enforcement action and minimise the potential for the creation of very large problem waste sites”.

    More so than ever Permit holders must be seen to be actively engaging with regulators following the identification of possible offences.

  4. Regulators can now take steps to remove a risk of serious pollution, regardless of whether the facility affected is regulated under a permit.

    This amendment was generally seen as a necessary change to close a loophole, with regulators’ powers to intervene at permitted sites being extended to also include sites which are operating illegally (i.e. without a permit), or where a permit has been revoked.

Comment

The consultation took into account the views of numerous parties including local authorities, companies, trade associations, public bodies and consultancies. Waste sector specific feedback was positive, with the new EP Regulations 2015 being seen as a genuine attempt to improve the industry.

The Government has been keen to highlight that the new powers are to combat “illegal operators in the waste management industry” who pollute the environment and endanger human health, and also to protect legitimate and reputable waste management businesses “which are being undercut by criminals and need the confidence to invest”.

However, the amendments also apply to other industries which fall under the EP Regime (e.g. the water and energy sectors). The Government’s thinking was that “it would not make sense to subject waste operations to a different enforcement regime from other industries regulated under the same system and legislation”. This means that, as a consequence of an apparently narrow consultation into the waste management sector, the Government has increased blanket regulatory powers across a number of other sectors. All operators must therefore sit up and take note of those changes and how they may potentially affect their ongoing operations.

We will have to wait to see the extent to which the EP Regulations 2015 will be actively applied to businesses both within and beyond the waste management world.

Should you have any questions regarding the above or any other aspects of the Environmental Permitting Regime, please do not hesitate to contact a member of our Environmental Compliance Team.

Author: Nicholas Barker

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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