• Stacey Collins
  • 9 May 2017

Environmental Permitting Regulations guidance – or how to tackle the Matterhorn

The Environmental Permitting Regulations are the very sort of grimace-inducing Eurocracy that Nigel Farage would be shaking his tiny fists at during his allotted two minutes in Strasbourg. Of course, he may have his simultaneous translation headphones set to Hungarian – and who is to say that that wouldn’t have helped? Because they really are properly hard work for the lay person (which is virtually everyone outside of the Environment Agency and probably one or two inside it as well, if they were honest).

As a small business, approaching the Environmental Permitting Regulations may feel somewhat like having a few goes on a scout hut climbing wall, then being told you’re confronting the Matterhorn. You’re then informed that it may be necessary to climb it first, just to determine if you actually need to climb it. Once atop the Matterhorn, you may or may not be able to purchase a ticket for a tunnel that goes through it.

Stacey Collins

This Kafkaesque situation is brought about because the EU members have woven together the special environmental interests of different member states (favourite environmental hazards, the movement of goods and different tax and commercial regimes, differences in the treatment of waste, and whether  waste is a burden, a resource or an export, the different sources, pathways and receptors of pollution in different EU habitats and cross border pollution concerns and so on) with the different enforcement tools that have proven variously successful in member states, of which permit issuing is just one.

UK guidance doesn’t say what any of the others are, which is quite alarming. Of course, we might think to ourselves that whatever is next down the pipe, we won’t have to swallow. But having taken the trouble to make everyone take the medicine, EU member states will be disinclined to allow unvaccinated Brits access to the paddling pool, post Brexit. We will have to maintain parity with EU environmental legislation wherever anything we do here affects any one over there. And we also have to trust our politicians to pare away the red tape, but leave the spirit of protecting our shared inheritance intact (i.e. the mess of potage that is outstanding natural beauty which clings at the edges of an almost entirely artificial British landscape, and of course, our sacred right to hurl shopping trolleys into canals).

It didn’t have to be this way, but it is and that’s that. You can tell by the infrequent use of words such as ‘easy’, ‘simple’ and ‘straightforward’ in the guidance, that we are dealing with a statute designed by a committee. As no one ever erected a STATUE to a committee, they have made one unto themselves. It is to be contemplated like a beast from the Book of Revelations: one eye, three arms, nine legs, seven feet and until recently, few teeth.

The nine legs could be the nine types of facility requiring a permit. Look on this list, ye mighty, and tell me you don’t despair with thinking that they might apply to you:

  1. An installation
  2. Mobile plant
  3. A waste operation
  4. A mining waste operation
  5. A radioactive substances activity
  6. A water discharge activity
  7. A groundwater activity
  8. A small waste incineration plant
  9. A solvent emission activity

The seven feet are the seven types of regulated facility that the guidance tells you later there are nine of. If you’ve ever filled in a tax return, you’ll understand the anxiety of not quite knowing if you will be in more trouble by ticking a box next to a paragraph you don’t understand, or by not ticking it. This is a similar level of angst.

The three arms are the three duties to inspect arising from the Environmental Permitting Regulations. One is the duty on regulators to undertake appropriate periodic inspections of regulated facilities. There is also a duty on the exemption registration authority to carry out periodic inspections of exempt waste operations. Finally, the same regulator already had a duty to inspect a great many of the sites mainly targeted by the Permitting Regulations anyway under existing legislation.

Perhaps a better answer is that the three arms of the monster are the three principal offences under the Regulations:

  1. Operating a regulated facility without a permit.
  2. Causing or knowingly permitting a water discharge activity or groundwater activity without a permit.
  3. Failing to comply with a permit or an enforcement related notice.

The one eye stands for the Environment Agency; except to say that I have tried to count all the regulators for environmental regulations and my number comes to 20 (yours might be different; I’m counting all the local authorities in England as one). The lack of teeth though is no longer the case. From the recent example of a £20m fine on Thames Water, and charges for costs incurred in enforcement, and fee multipliers for poorly performing installations, environmental enforcement can really deliver a painful kick to the wallet.

To be fair though, there has now been published very clear guidance for organisations who do have a permit about the way that enforcement action will be taken going forward. If they assess, or visit and inspect, or sample, or you have an incident, whichever, they will give you a CAR. That’s a compliance assessment report. This tells you exactly what you are doing that is non-compliant and what you need to do to comply. Easy peasy. So it seems that if you do fall foul of the Environmental Permitting Regulations, it is then that you will finally be sure you know just how you might have avoided doing so.

It would be great to hear your thoughts and experiances with the Environmental Permitting Regulations -