Environmental Law

1. Environmental Law Environmental Permitting

2. Environmental Permitting • 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

3. Environmental Permitting 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

4. Environmental Permitting • Environmental Permitting (England and Wales) Regulations 2010 )SI 2010 No 675 • Single procedural framework for making applications and for grantingenvironmental 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

5. Environmental Permitting ‘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)

6. Environmental Permitting 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

7. Environmental Permitting 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.

8. Environmental Permitting 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.

9. Environmental Permitting • 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

10. Environmental Permitting 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

11. Environmental Permitting • 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

12. Environmental Permit 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:

13. Environmental Permitting • 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

14. Environmental Permitting • 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.

15. Environmental Permitting • 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)