ENVIRONMENTAL PERMITTING 1 Environmental Law

Environmental Permitting 2 Environmental Permitting (England and Wales) Regulations 2007 introduced a new system of environmental regulation Simplification of regulatory burden/costs Continued protection of environment & human health Single set of regulations. Converted existing: (1) pollution prevention control permits and (2) waste management licences into Environmental Permits

Environmental Permitting 3 Integration in the sense (2) Institutional Integration / Consolidation of Environmental Regulation Streamlining/unifying rules governing the control of harmful impacts. Prompted by notion of ‘better regulation’. Easing regulatory burden; simplifying rules Unified permitting system, covering areas in which EU environmental law must be given effect to. Main ones =Waste Management (2007) Water Discharge Consents (2010) = Environmental Permitting Regime

Environmental Permitting 4 Environmental Permitting (England and Wales) Regulations 2010 )SI 2010 No 675 Single procedural framework for making applications and for granting environmental permits, as well as for monitoring and enforcement (suspension; revocation) Common variation; transfer; surrender; appeals procedures. Regulated facilities requiring environmental permits or those which need to be registered as exempt Functions/duties of regulatory authorities and S of S

Environmental Permitting 5 ‘Regulated Facility’ (Reg. 8) includes: A waste operation (disposal or recovery of waste within Waste Directive 2008) not carried out at an installation or by means of a mobile plant (& not an excluded or exempt (low risk) waste operation) Reg. 8(1)(c) (waste management licence became environmental permit) A water discharge activity (2010)(water discharge consent now environmental permit) Reg 8(1)(f)

Environmental Permitting 6 Environmental Permits Risk based Single permits: provided same regulator, same operator, all facilities on same site Standard permits: off the peg, rather than site specific ie a set of requirements common to particular class of regulated facility – subject to requirement to review standard rules Consolidated permits: more than one regulated facility with same operator

Environmental Permitting 7 Regulatory Bodies Environment Agency (Reg. 32) Waste; Water Local Authority (lesser extent/risk) General Duty on regulators to exercise relevant functions so as to achieve compliance with specified EU Directives.

Environmental Permitting 8 The Operator Only the person who has control over the operation of a regulated facility may obtain an environmental permit (Reg. 7) Operator Competence The regulator is under a duty to refuse an application if it considers that the applicant will not be the operator of the regulated facility, or, If it considers that the operator will not be able to operate the regulated facility in accordance with environmental permit.

Environmental Permitting 9 This involves an assessment of whether the operator is competent (this takes place of ‘fit and proper person’) Factors to be considered in application : the adequacy of the operator’s: Management system (EMAS accredited?); Technical competence ( standards); History of compliance (of operator or ‘relevant person’) with regulatory requirements; convictions for relevant offences; Financial circumstances so as to ensure sufficient funding to operate environmental permit

Environmental Permitting 10 Regulator may refuse permit if it is considered that: Environmental impact would be unacceptable, or Requirements of relevant EU Directives would not be met. The regulator is under a duty to act in such a way as ensure compliance with objectives of EU Directives. Application ‘fees’ Regs provide for public consultation on application

Environmental Permitting 11 Applications to vary, transfer or surrender an environmental permit Vary (Reg. 20) Transfer (Reg. 21) Surrender (Regs 24 & 25) Regulator must accept application if it is satisfied necessary measures have been taken to avoid a pollution risk resulting from operation of regulated facility and to return site to a satisfactory state

Environmental Permit 12 Enforcement Powers (See also Reg 34 Review & Inspection) Regulator has array of enforcement powers to ensure permit holder complies with terms of permit Enabling regulators to retain control over regulated activities without having to resort to prosecution as a control mechanism Duty to ensure compliance with EU Directives but regulatory discretion: Administrative powers:

Environmental Permitting 13 Revocation notice (Reg. 22) Where regulator issues revocation notice it can still require operator to take steps to avoid pollution risk from operation of facility and to return site to a satisfactory state Enforcement notice (Reg 36) Specifying breach, remedial action require, timescale. Failure to comply = offence

Environmental Permitting 14 Suspension notice (Reg 37(2)) where risk of serious pollution Variation notice on initiative of regulator (Reg 20) Acquisition of information (Reg 60). Criminal offence not to comply without reasonable excuse. Appeals (Reg 31) Public Register (Reg 46) Criminal law enforcement (Reg 38) Not expected to be used frequently given administrative enforcement powers of regulators.

Environmental Permitting 15 Reg. 38 Offence to : cause or knowingly permit operation of regulated facility without environmental permit; fail to comply with or breach environmental permit condition; fail to comply with enforcement or suspension notice Defence: Emergency defence, in order to avoid danger to human health + took all steps as were reasonably practicable in circumstances for minimising pollution, and particulars of act furnished to regulator (Reg 40)