Managing Environmental Compliance – an update following guidance from the regulators

As the country deals with COVID-19 we consider the response from the Environment Agency and other UK regulators

22 May 2020

All businesses are facing challenges caused by changes to the way they operate while the country is seeking to deal with COVID-19. In our last briefing (Managing Environmental Compliance in the time of COVID) we considered how the regulators and government agencies were responding in the early stages of the COVID-19 pandemic. A number of notes and position statements have now been produced which address some of the challenges facing businesses and here we consider the response by the regulators. We understand that further measures may be taken and we anticipate that, over the next few weeks, more guidance will be provided.

All of the regulators in the UK have considered formal relaxations to certain environmental legislation arising from the challenges of COVID-19 and have changed the ways in which they monitor compliance to ensure the safety of their staff. We set out below the position in relation to the key UK regulators.

Environment Agency

The Environment Agency has published an overarching guidance document outlining its priorities, expectations and notably, the approach to enforcement during the COVID-19 outbreak. The statement is subject to change or withdrawal without notice, although it seeks to provide clarity on the effect of any relevant regulatory position statements on certain requirements. To date, seventeen time-limited COVID-19 Regulatory Position Statements (RPSs) have been produced by the Environment Agency. These RPSs seek to minimise the risks to the environment and human health where compliance with regulations may no longer be possible due to COVID-19 coronavirus. The RPSs also go one step further, offering specific circumstances where normal regulatory requirements will be relaxed if such a measure would avoid increasing risks to the environment or human health.

Those intending to rely on a COVID-19 RPS must comply with both the specific conditions set out (including any requirements to notify or seek approval from the Environment Agency); and any requirements concerning pollution and harm to human health. If these conditions are satisfied the Environment Agency will “not normally take enforcement action against you”. It is thus important to comply with all conditions and approvals if seeking to rely on a COVID-19 RPS. Details of these with links to the RPS itself are below.

Agriculture

Monitoring and reporting

Holders of installation, waste or radioactive substances (nuclear or non-nuclear) activity permits must operate in accordance with the Environmental Permitting (England and Wales) Regulations (2016) (EPR). Permit holders are required to comply in full with all the conditions in their permits, including conditions requiring:

  • air, water and other environmental monitoring. If the conditions of the RPS are followed, certain reasonable adjustments to those monitoring requirements may be made. For example, there may be a delay and new schedule for some of the requirements specified in the permit. Written agreement from the Environment Agency must be obtained prior to the use of this RPS (Monitoring emissions from installations, radioactive substances and waste activities: RPS C7), and
  • the submission of data and reports to the Environment Agency. If the conditions of the RPS are followed, certain reasonable adjustments may be made. For example, there may be a delay to the submission of certain data, reports and other records that are required by the permit. The Environment Agency must be notified prior to the use of this RPS (Reporting for installations, radioactive substances and waste permits: RPS C10).

Radioactive substances regulation

A permit is usually required to accumulate radioactive waste under regulation 13 and Schedule 23 of the EPR Regulations 2016. The permit will limit for how long and how much radioactive waste can be accumulated. If using the exemption in Schedule 23, Part 6, paragraph 4(7) of the EPR, it is normally necessary to comply with the maximum accumulation period of 26 weeks. By complying with the conditions in this RPS, it is permitted to accumulate radioactive waste above the limits in a permit and for longer than allowed in the permit or under the exemption.

An RPS has also been issued for situations where it is not possible to transfer accumulated radioactive waste to destinations in the UK and overseas as a result of coronavirus business disruption. It applies to waste sealed sources and to other radioactive waste for recycling, treatment or disposal. However, this only includes waste types authorised to be accumulated under a permit or the exemption. The Environment Agency must be notified prior to the use of this RPS. It is still necessary to comply with the other requirements in the permit or the exemption and with the conditions in this RPS (Accumulating radioactive waste that you cannot transfer because of COVID-19: RPS C13).

A further RPS deals with the permit limits for medical use of radioactive substances. It is normally necessary to comply with the limits in the permit under regulation 13 and Schedule 23 of the EPR. These numerical limits restrict both the amount of radioactive material (including sealed sources) that can be kept and used and waste that can be accumulated and disposed of if the conditions in this RPS are followed, it is possible to exceed these numerical limits.

This RPS only applies to radioactive material that is used to carry out medical diagnosis or treatment in humans and waste that arises from these procedures.

It only applies if it is necessary to obtain additional radioactive material, or generate additional radioactive waste, as a result of coronavirus (COVID-19). The Environment Agency must be notified prior to the use of this COVID-19 RPS (COVID-19 and exceeding permit limits for medical use of radioactive substances: RPS C15).

Regulated industry installations (non-waste)

  • A permit is required under EPR to operate a Part A 1.1 combustion activity (those with a rated thermal input of 50MW or more, known as a large combustion plant (LCP)). Providing the conditions of this RPS are followed it is permitted to exceed certain emission limit values (ELVs) stated in a permit during black start events. This RPS only applies to the ELVs stated in a permit for emissions to air from an LCP. The local Environment Agency regulatory officer must be notified by email prior to the use of this RPS (Emissions to air from large combustion plant during black start events: RPS C11).

Waste management (excluding radioactive waste)

  • An RPS has been issued which applies to waste from cleaning people or places infected or potentially infected with COVID-19. It allows this infectious or potentially infectious waste to be safely stored and treated at a healthcare waste management facility (Storing or treating COVID-19 cleansing waste at a healthcare waste management facility: RPS C1)
  • An RPS has been issued which allows the temporary storage of more waste than a permit allows if it is not possible to remove waste from the permitted site because of COVID-19 restrictions. If the conditions in this RPS are followed it is possible to exceed waste storage limits without applying for a permit variation. The Environment Agency must be notified prior to the use of this RPS (Exceeding waste storage limits at permitted sites because of COVID-19: RPS C2)
  • It is possible to accept and incinerate COVID-19 infectious waste at a municipal waste incinerator without varying the relevant environmental permit. The Environment Agency must be notified prior to the use of this RPS (Incinerating specified healthcare wastes at a municipal waste incinerator: RPS C4)
  • NHSE healthcare workers treating patients with (or suspected) COVID-19 in their own homes can dispose of PPE waste through the householder’s normal non-recyclable waste collection (PPE waste from home healthcare workers treating patients with COVID-19: RPS C5)
  • The formal requirement to sign and hand over paper copies of waste transfer and consignment notes in person has been removed provided all other waste transfer requirements are complied with (Social distancing when signing and handing over waste transfer and consignment notes in person: RPS C8)
  • Obligated packaging producers are usually required to register with the Environment Agency directly or through a compliance scheme on or by 7 April each year. They must provide complete and accurate information as required on registration. This requirement has been relaxed in certain circumstances. This RPS only applies to obligated packaging producers who have been unable to meet these requirements because of coronavirus and the measures the government has introduced (COVID-19 and packaging waste: registering as a packaging producer: RPS C9)
  • Normally, anyone who receives or disposes of hazardous waste must send quarterly consignee returns under the Hazardous Waste (England and Wales) Regulations 2005 (SI 2005/894 as amended, the Regulations). This RPS permits a delay in submitting consignee returns due on 30 April 2020 to no later than 31 July 2020. This RPS only applies if it was not possible to comply with the reporting deadline of 30 April 2020 due to coronavirus (COVID-19) restrictions (COVID-19 and delaying hazardous waste consignee returns: RPS C14)
  • It is now permitted to store incinerator bottom ash aggregate (IBAA) temporarily at a permitted site even though the permit does not authorise this waste type. It is necessary to email the Environment Agency and get its agreement before using this RPS (contact should be to the Environment Agency area regulatory officer, site inspector or local compliance team) (COVID-19 and temporary storage of incinerator bottom ash aggregate: RPS C16), and
  • If, due to coronavirus restrictions, waste storage capacity on a permitted site is going to be exceeded, or the storage limits of a registered waste exemption, this RPS temporarily allows i) the storage of waste at an unpermitted site controlled by the same operator; and ii) to exceed the storage limits of a registered waste exemption for a T1 to T32 or S1 and S2 exemption. This RPS does not apply to radioactive waste or to mobile plant (COVID-19 and storing waste at unpermitted sites due to exceeding your storage limits: RPS C17).

Water industry

  • It is possible to reduce regulatory sampling carried out in accordance with a permit in relation to Operator Self-Monitoring (OSM) and the Urban Waste Water Treatment Regulations 1994 (UWWTR) monitoring. This applies to monitoring of discharges of: (i) treated sewage effluent from waste water treatment works; and (ii) trade effluent from water treatment works. This RPS only applies if the sample collection or analysis is affected by staff shortages due to COVID-19 and restricted access caused by people or places being infected or potentially infected with COVID-19. Written agreement from the Environment Agency water company account manager must be obtained prior to the use of this RPS (Water and sewerage company OSM and UWWTR sampling affected by COVID-19: RPS C3), and
  • It is normally necessary to have an environmental permit or exemption to store treated sludge. This RPS allows sewerage companies to store dewatered treated sludge not at the place it will be used, without an environmental permit. This only applies to treated sludge as described in the Sludge Use in Agriculture Regulations. It does not apply to septic tank sludge (which can go to a sewage works) and waste containing sewage sludge (which is covered by the EPR). Written agreement from the Environment Agency water company account manager must be obtained prior to the use of this RPS (Storing treated sewage sludge you cannot move because of COVID-19 restrictions: RPS C6).

The regulators have also focused on protecting their own workforces and adapting their role in a time of reduced staff numbers. All Environment Agency staff are working from home where possible, however they have been instructed to be available to respond to critical pollution and monitoring incidents. In a letter to his staff Sir James Bevan, the Chief Executive of The Environment Agency, has stated that the Environment Agency will be focussing on major pollution incidents and flooding; maintaining assets such as the Thames Barrier and supporting the emergency services. On 3 April the Environment Agency published an “Operational Update Note” (last updated 24 April) which made clear that, although there would be a drop in site visits and inspections, the Agency would continue to visit sites “that could cause serious environmental harm”.

Scottish Environment Protection Agency (SEPA)

There are three core documents to SEPA’s COVID-19 response:

SEPA’s Covid-19 Philosophy outlines the regulators’ priorities, expectations and the approach to enforcement during the COVID-19 outbreak. The overarching guidance on regulation document provides further details to the Philosophy, setting out what this means for the core areas of compliance, enforcement, monitoring and licencing. Similar to the Environment Agency’s COVID-19 RPSs, under the temporary regulatory positions SEPA aims to take a proportionate and reasonable approach where possible.

Due to the exceptional circumstances brought about by COVID-19, SEPA expect a regulated business which is unable to meet all its obligations under a SEPA licence, permit or other authorisation to:

  • prioritise compliance with conditions which directly protect the environment over those which are indirect control or more administrative in nature
  • alert SEPA as early as possible if it will be, or believes it will be, unable to meet any obligations any work closely with the regulator to find a solution, and
  • document all choices made and actions taken.

If a regulated business adheres to these principles, SEPA will take “a proportionate and reasonable approach to how…compliance during the public health emergency” will be assessed.

Temporary regulatory positions and guidance

SEPA have produced temporary regulatory positions which allow for circumstances where non-compliance with environmental regulatory requirements is both unavoidable and solely as a direct result of the impact of COVID-19.

Temporary regulatory positions and guidance documents have been produced for nine sectors (as at 18 May 2020):

  • Control of major accident hazards (COMAH) regulatory position
  • Finfish aquaculture regulatory positions
  • Land application of uncollected milk in Scotland regulatory guidance
  • Management of high-activity sealed radioactive sources regulatory position
  • Management of radioactive substances at nuclear sites regulatory position
  • Producer responsibility regulatory positions and guidance
  • Production of hand sanitiser regulatory position
  • Radioactive substances: shipment of sealed sources and other relevant sources regulatory position
  • Reservoirs regulatory position and guidance
  • Scotch whisky sector regulatory position statement
  • Storage of sewage sludge regulatory position, and
  • Waste management regulatory guidance.

SEPA does not expect to provide a complete level of service and will prioritise work according to staff absences and the Scottish Governments 13 Critical National Infrastructure Sectors. Priorities include maintaining the flood warning service, working with those regulated sectors that are most crucial to the functioning of society during this time, and working as much as possible with all the other regulated sectors. The approach outlined within the Philosophy, the guidance documents and temporary position statements is expected to apply until 30 June 2020, although if there is any significant easing of the public health emergency a review may take place sooner.

Natural Resources Wales (NRW)

NRW expects businesses and individuals to continue to comply with environmental regulations and their permit conditions. This includes developing contingency plans and putting appropriate measures in place to ensure that all reasonable actions are taken to foresee and mitigate any potential issues. Regulated businesses or individuals facing problems complying with their permit conditions as a direct result of COVID-19 must:

  • Inform NRW of the issues and how they are being managed as early as possible
  • Prioritise compliance with those permit conditions that directly protect the environment
  • Take all practicable alternative measures to prevent and minimise any harm to the environment or risks to public health, and
  • Keep clear and comprehensive records of the decision made and actions taken.

If regulated business and individuals follow these guidelines NRW say that it will take a proportionate and reasonable approach to how it assesses compliance during this public health emergency.

NRW has issued specific guidance on the following:

  • Spreading waste milk on agricultural land, and
  • Water abstraction returns.

NRW have also noted that while the majority of the organisation are working from home, administrative tasks such as paper application forms will not be processed and a longer processing time for electronic applications is expected.

Department of Agriculture, Environment and Rural Affairs (DAERA) and Northern Ireland Environment Agency (NIEA)

DAERA and NIEA are issuing specific COVID-19 RPSs which are currently scheduled to be withdrawn on 30 June 2020, although an extension will be considered in the event of continued restrictions beyond 30 June 2020. Provided that the conditions within the specific COVID-19 RPSs are adhered to, DAERA and NIEA will regulate the requirements pragmatically and are unlikely to take regulatory and/or enforcement action. Ten position statements have been issued (as at 18 May 2020) in the following areas:

  • Emissions Monitoring for PPC permit (Installations & Waste) and Radioactive Substances Certificate holders
  • Waste Regulation
  • Extension of Existing Cemetery Capacity, and
  • Water Regulation.

Natural England (NE)

NE published an Operational Update from Chief Executive Marian Spain on 20 March 2020 (last updated 16 May 2020). NE offices have been closed since 24 March 2020 and all staff are working from home where possible. Email correspondence is encouraged as post sent to NE offices will not be opened. Following the guidance issued by the government on open spaces which came into operation on 13 May 2020, all National Nature Reserves (NNRs) are open, however facilities such as hides and visitor centres will remain closed and some car parks will not reopen.

NE have paused or re-profiled some specific work areas and during the current period will be prioritising customer enquiries, Wildlife Licensing and Incident Investigation services, sites of special scientific interest consenting services, agri-environment work, planning casework and essential work (including livestock management and health and safety) on NNRs.

NE have issued specific advice for:

  • Farmers and land managers
  • Access to green spaces and Public Rights of Way, and
  • National Nature Reserves (NNRs).

Conclusion

While all of the regulators have recognised that environmental compliance may have to be relaxed in certain areas in these unprecedented times, the RPSs which have been issued only relate to specific aspects of that compliance. It is also necessary to comply strictly with the relevant RPS to ensure that the benefits of the RPS apply. Failure to comply strictly with an RPS or with environmental compliance obligations in other areas is usually a criminal offence. Therefore, a robust compliance strategy is needed.

If you have any questions or concerns arising from this update or on issues of environmental compliance generally, please contact Michael Barlow or Simon Tilling.

Key contact

Michael Barlow

Michael Barlow Partner

  • Head of Energy, Power and Utilities
  • Environment
  • Water

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