An extract from The Environment and Climate Change Law Review, 4th Edition
Environmental protectioni Environmental permits
Environmental permits in England and Wales are dealt with through the integrated environmental permitting (EP) regime, which has steadily incorporated and replaced the various distinct permitting systems that were previously in place. The Environment Agency, Natural Resources Wales and, in certain cases, local authorities have the authority to issue permits in relation to a range of regulated activities, and an operator must hold a permit to carry on any regulated activity.
The integrated EP regime was initially established in April 2008, combining the pre-existing Pollution Prevention and Control regime permits and waste management licences into a new system of environmental permits. From April 2010, the EP regime has also incorporated water discharge, groundwater discharge and radioactive substances registration and authorisation, with pre-existing consents converted automatically into environmental permits.
The current regulations for the EP regime are found in the Environmental Permitting (England and Wales) Regulations 2016 (the EP Regulations), which came into force on 1 January 2017. As discussed above, these regulations consolidate the various amendments previously made to the Environmental Permitting (England and Wales) Regulations 2010.
The Water Act 2014 introduced a right for the Secretary of State in England and the Welsh Ministers to extend the EP regime to include water abstraction, water impounding, fish pass approvals and flood defence consents, with a further update in 2016 to incorporate flood risk activities.
In 2013, there were further amendments to the EP regime, pursuant to the Industrial Emissions Directive, which consolidated various earlier EU directives, and in 2015 pursuant to the Energy Efficiency Directive.
The integrated EP regime now covers a wide range of key activities, including:
- various industrial and power generation activities and installations specified in Schedule 1 to the Environmental Permitting Regulations;
- waste operations, including mining waste operations;
- mobile plant used in connection with a Schedule 1 activity or waste operations;
- water discharge activities;
- groundwater activity;
- solvent emission activity;
- radioactive substance activities;
- flood risk activities; and
- small waste incineration plants.
The level of regulation applied to the environmental permit varies depending on the activity in question. Activities that cause the most pollution are regulated in terms of their energy efficiency and of all their emissions, whereas lesser polluting activities may be regulated only in terms of their air emissions. In some situations, a single environmental permit may be issued for multiple installations on a particular site, potentially reducing the burden on those carrying out multiple regulated activities. Standard permits with standard conditions also exist for a number of less-polluting waste activities, with scope to extend these permits to other industries in the future. Certain low-level waste management activities are fully exempted, subject to compliance with conditions such as registration and notice obligations.
Environmental permits do not have a fixed expiry date, and are subject to periodic review by the regulator. The regulator may suspend permits if there is a risk of serious pollution, or may revoke the permit where 'appropriate circumstances' exist. In many circumstances, environmental permits may only be transferred to a new operator by joint application to the regulator, and the surrender of many environmental permits also requires application to the regulator. This enables the regulator to ensure that appropriate environmental standards are maintained either by a new operator or after the activity has ceased.ii Air quality
There are two main forms of regulation relating to air quality. Ambient air quality regulation focuses on limiting the concentrations of specific pollutants in ambient air, whereas point source pollution regulation focuses on limiting the emissions to air of certain pollutants, primarily from industrial installations. Other methods used in the United Kingdom to regulate air quality include substance bans, such as the ban on chlorofluorocarbons; emissions trading under the EU ETS; and taxation, such as the Climate Change Levy.Ambient air quality
Regulation of ambient air quality derives from three key sources: the UK National Air Quality Strategy (NAQS), the local air quality management (LAQM) system in England and Wales, and the EU Air Quality Directive 2008.
The NAQS, a requirement of the Environment Act 1995, establishes a framework for improving ambient air quality across the United Kingdom, sets standards and objectives for a number of key pollutants and explains the various measures in place to achieve those objectives. The standards set are aimed primarily at improving human health; however, the objectives in relation to nitrogen dioxide and sulphur dioxide are also set with regards to the protection of vegetation and ecosystems.
The Environment Act 1995 also sets out the LAQM system, which requires local authorities to review local air standards and assess compliance with the standards specified in the NAQS. If the standards are not being met, local authorities are required to designate air quality management areas and to prepare and implement remedial action plans. However, the obligation on local authorities is limited to acting 'in pursuit of the achievement' of the relevant air quality standards, as much air pollution regulation and enforcement lies outside their control.
The Air Quality Directive 2008, implemented into English law by the Air Quality Standards Regulations 2010 and Air Quality Standards (Amendment) Regulations 2016, sets obligatory limit values and non-obligatory target values for a range of air pollutants similar to the NAQS, and also requires the government to produce air quality plans setting out measures for meeting the required standards and action plans in the event that certain alert thresholds are breached. The regulations also incorporate the Fourth Daughter Directive, which sets minimal target values for certain carcinogenic pollutants. The United Kingdom's air quality plans were successfully challenged by ClientEarth on three occasions from 2015 to 2018, including most recently in the High Court, and as such the United Kingdom released a new draft Clean Air Strategy in May 2018, which sets out the government's plan to halve the harm to human health from air pollution in the United Kingdom by 2030. Defra conducted a public consultation on the draft Clean Air Strategy during May to August 2018, and will release the final version of the Clean Air Strategy by March 2019.
As part of its commitment to a 'Green Brexit', the UK government intends to introduce a comprehensive legislative framework to address air quality and pollution. Among other things, it is proposed that the legislation would enable the Transport Secretary to compel manufacturers to recall vehicles and machinery for any failures in their emissions control systems. The legislation will also create a new statutory framework for Clean Air Zones to simplify the current overlapping frameworks, as discussed above.
In April 2019, the UK government will produce a National Air Pollution Control Programme, which will set out the government's plan to meet its 2020 and 2030 emission reduction commitments under the National Emissions Ceiling Directive 2016.iii Point source pollution
Emissions from industrial installations and mobile plants are regulated primarily under the Industrial Emissions Directive 2010, which replaced the former Integrated Pollution Prevention and Control regime, as well as the Medium Combustion Plant Directive 2015. These directives have been implemented into UK law via the EP Regulations; therefore, an environmental permit is necessary in relation to activities falling within their scope.
In November 2016, the government consulted on proposals to introduce additional controls on NOx emissions from diesel generators, including requiring an environmental permit from 2019 and imposing emission limits. On 23 March 2018, the government launched a £220 million Clean Air Fund for local authorities to use to reduce air pollution. The autumn 2018 budget included an additional £20 million funding to support more local authorities in meeting their air quality obligations.
The Clean Air Act 1993 also imposes restrictions on point source pollution, enabling local authorities to designate smoke control areas and making it an offence to emit 'dark smoke' from industrial or trade premises. As set out in the draft Clean Air Strategy 2018, the government intends to update these 'outmoded' and 'underused' provisions with more flexible, proportionate enforcement powers for local government.iv Water qualityDischarges to water
Water pollution in England and Wales is regulated under the Water Resources Act 1991, which applies to all 'controlled waters', including territorial waters, coastal waters, inland freshwaters and groundwater. A discharge to water may require various different consents, depending on: the type of activity creating the discharge; the substances in the discharge; whether the discharge is to groundwater, surface water or into a sewer; and whether the discharge occurs as part of some wider industrial activity.
Most discharges to surface water are regulated under Schedule 21 of the EP Regulations, whereas most discharges to groundwater are regulated under Schedule 22. In each case, an environmental permit will be required where the discharge falls within the scope of the EP regime.
Discharges of trade effluents to sewers are instead subject to the Water Industry Act 1991, and require the operator to obtain a trade effluent discharge consent from the relevant sewerage company. The sewerage company itself will require an environmental permit to discharge the waste from its sewers into water, as discussed above.
Any facility regulated under some other branch of the EP regime is likely to include some form of discharge to water or sewers. In such cases, the environmental permit granted to the facility is likely to include conditions governing any discharges, for example, by monitoring the discharges that occur or minimising the emission of particular substances.
However, certain industries require a specific permit for their discharges to water pursuant to the Priority Substances Directive 2008. These include the paper, textiles and food industries, with the requirement of a separate environmental permit triggered upon the concentration of certain hazardous substances released to water exceeding the relevant level specified in the EP Regulations. A separate trade effluent discharge consent would also be required for the discharge of these substances into sewers.UK water quality
Under the Water Framework Directive 2000, the United Kingdom was required to achieve good ecological and good chemical status across all types of surface water bodies, groundwater bodies and heavily modified or artificial water bodies by 2015. Implemented in England and Wales by the Water Environment (Water Framework Directive) (England and Wales) Regulations 2017, the Water Framework Directive encourages a more robust approach both to point-source pollution and to diffuse water pollution. The 2017 Regulations provide that the appropriate agencies must achieve a number of objectives in respect of each river basin district by 22 December 2021, including updating management plans, establishing monitoring programmes and ensuring that each protected body of water complies with the relevant EU instrument standards and objectives.v Chemicals
Chemicals in the United Kingdom are regulated under the EU Registration, Evaluation, Authorisation and Restriction of Chemicals regime (REACH), as set out in the REACH Regulation 2006. The purpose of the regime is to ensure that chemicals are used in a manner that minimises any unacceptable risks to human health or to the wider environment, based on the transparent sharing of information throughout the chemicals supply chain. The requirements of REACH were phased-in over a 10-year period, with the final stage (registration of substances of 1 tonne or more per year) taking effect in 2018.
REACH is enforced in the United Kingdom via the REACH Enforcement Regulations 2008, with the role of enforcing authority taken on either by the relevant environmental regulator, the Health and Safety Executive, local authorities or the Department of Business, Energy and Industrial Strategy as appropriate. All these bodies are required both to cooperate and to share information in respect of REACH compliance. The European Chemicals Agency (ECHA) is not an enforcing authority in its own right, but it may request enforcing authorities to act on its behalf.
The key provisions of REACH relate to the four limbs of registration, evaluation, authorisation and restriction. Those wishing to supply a substance must first register that substance with the ECHA. The ECHA may therefore exert considerable control over the chemicals industry by refusing registration to a given substance, rendering any manufacturing, import or downstream usage illegal. The supplier will also be subject to an evaluation process by the ECHA and national authorities. This evaluation could include a compliance check of dossiers, an evaluation of testing proposals and a substance evaluation to determine whether the substance in question poses a risk to human health or the environment.
Certain substances identified as 'substances of very high concern' (SVHCs) by the ECHA or national authorities will require specific authorisation to permit their use or sale. There are four broad categories of SVHCs: substances that are carcinogenic, mutagenic or toxic to reproduction; substances that are persistent, bio-accumulative and toxic; substances that are very persistent and very bio-accumulative; and substances that give rise to similar concerns to those in the previous categories. In addition, substances that are the subject of a restriction proposal by a Member State or the ECHA may be either restricted or banned entirely. Examples of restricted substances include asbestos and acrylamide.
The REACH Enforcement Regulations 2008 also place various obligations on companies operating in the chemicals sector. Failure to comply with these obligations constitutes a criminal offence. Some of the key obligations include:
- neither manufacturing nor placing on the market any substance that has not been registered;
- supplying appropriate instructions to the recipient of a substance;
- providing a safety data sheet;
- providing workers with access to information about the substances they may encounter in the course of their work;
- applying appropriate measures to control risks; and
- complying with the conditions of any authorisation.
The UK government has stated that if it is unable to reach a deal with the European Union, it will ensure that UK legislation replaces the REACH regime via the EU Withdrawal Act. The replacement UK legislation would preserve REACH as far as possible, including establishing an IT system for the registration of new chemicals that is similar to the existing EU IT system. The Health and Safety Executive would act as the lead UK regulatory authority, with the EA and other regulators continuing to play a role in enforcement.vi Solid and hazardous wasteSolid waste
The regulatory regime for solid waste covers the entirety of the waste cycle, from generation to transport to disposal. The extent of regulation depends on whether an operator is carrying out a 'waste operation', as defined in the EP Regulations.
Waste operations include the recovery or disposal of waste, as well as any preparation of the waste prior to recovery or disposal, and are a regulated activity under the EP regime. They require the operator to hold an environmental permit, and the operator must comply with Schedule 9 to the EP Regulations. Additionally, there are certain further requirements that apply to specific types of waste operations such as landfill sites, treatment of end-of-life vehicles, treatment of waste electrical and electronic equipment, waste incineration, treatment of waste batteries, mining waste operations, radioactive waste and packaging waste.
A business that merely produces waste will not require an environmental permit, as it is not carrying out waste operations. However, such businesses must still comply with the waste hierarchy and the waste duty of care.
Under the Waste Regulations 2011, organisations involved in waste must take reasonable steps to apply the waste hierarchy when transferring waste. This sets out a priority order for waste management from prevention, re-use, recycling and recovery to environmental disposal as a last resort.
Under the Environmental Protection Act 1990, anyone handling controlled waste is subject to the waste duty of care, and therefore must ensure that the waste does not cause harm to the environment and is only transferred to an authorised person. During January to March 2018, Defra and the Welsh government held a consultation on proposals to tackle crime and poor performance in the waste sector. The government has announced a number of measures in response to the consultation, including measures to raise the standards for operator competence in the waste sector, and a fixed penalty notice for breaches of the household waste duty of care.Hazardous waste
Hazardous waste is subject to additional regulation under the Hazardous Waste Regulations 2005, as amended to reflect the requirements of the Waste Framework Directive 2008. Waste is classified as hazardous where it is listed under the EU List of Wastes or the Environmental Protection Act 1990, or where it is specifically determined as hazardous, pursuant to the Hazardous Waste Regulations 2005.
Environmental permits are required to carry on waste operations involving hazardous waste as discussed above, and the waste hierarchy and waste duty of care apply. While the requirement for the registration of premises where hazardous waste is produced, collected or removed ended in April 2016, it is still necessary for all parties involved with hazardous waste to maintain detailed records of the production, transport, treatment and disposal of hazardous waste, whether by tipping or some other method of discharge or recovery. In addition, there are restrictions on the mixing of hazardous waste, and specific requirements relating to the transport of hazardous waste to ensure consignments are properly tracked.Financial provision
The operators of landfill sites are currently required to make financial provision to cover the costs associated with the closure and aftercare of the site; however, no other operators are required to make financial provisions.
A consultation by Defra and the Welsh government in 2015 found a clear majority of respondents supported the reintroduction of financial provision for all permitted waste operations, and that this provision should be sufficient to cover both the cost of returning the land to a satisfactory state and any foreseeable clean-up costs of any environmental accidents. There was also majority support for increasing the financial provision in relation to landfill sites, although this was more limited. The government accordingly expressed an intention to bring forward proposals.vii Contaminated landRemediation
The rules on identifying and remediating contaminated land are set out in the Environmental Protection Act 1990. The purpose of the contaminated land regime is to encourage the remediation of significant historic contamination. As such, it is not an offence in itself to contaminate land, but it is an offence to fail to comply with a remediation notice.
Local authorities are first required to identify contaminated land. Once contaminated land has been identified, the relevant enforcing authority must serve a remediation notice to the relevant persons requiring them to remediate the contamination. The enforcing authority is typically the local authority, but may be the relevant regulator (i.e., the Environment Agency, Natural Resources Wales, SEPA or NIEA) where the contaminated land in question constitutes a 'special site'.
In its remediation notice, the enforcing authority will identify the reasonable steps required to remediate the land. These steps are determined by reference to the efficacy of any proposed remediation actions, the environmental and health impacts of the remedial actions, the cost of the remediation and the benefits of the remediation in relation to the harm. Ideally, remediation should aim to restore the land to a position where it poses no further risk of environmental harm, such that the land no longer qualifies as contaminated. The enforcing authority cannot require a higher standard of remediation. However, where the application of this standard is not practical, the enforcing authority can consider a lesser standard.Liability for clean up
In the first instance, the person who either caused or knowingly permitted the contamination is liable. Such a person is categorised as a Class A person. If no Class A person can be found, the current owner or occupier of the site becomes liable, and is categorised as a Class B person. The Class B person does not need to have been aware of the contamination occurring to be liable for it. Given the potential scale of remediation costs, the process of identifying the presence of contaminated land therefore forms a key issue in property transactions or corporate acquisitions involving the transfer of land. Where multiple Class A or Class B persons exist, the enforcing authority will apportion liability according to the rules set out in the Environmental Protection Act 1990.
The enforcing authority also has step-in rights to carry out remediation itself in certain situations, such as in the event of an emergency, where a remediation notice has been breached, where the enforcing authority would not recover all of its costs from the appropriate person or where no appropriate person can be found.
New waste enforcement regulations were passed in 2018 to supplement enforcing authorities' powers in respect of non-compliant waste sites. The EA and National Resources Body for Wales are now able to restrict the entry of persons and further waste to waste sites, and require the removal of all waste at non-compliant sites.Recovery of costs
In recovering its costs, the enforcing authority must consider the Contaminated Land Statutory Guidance. The polluter should pay for the cost of remediation where possible; however, enforcing authorities should aim for a result that is as fair and equitable as possible, including the cost to the taxpayer. The enforcing authority should not consider financial hardship in the process of attributing and apportioning liability; however, it may waive or reduce the final remediation costs should it consider the resulting financial hardship on those liable to be too severe.
As an alternative to recovering the costs of remediation directly, the enforcing authority also has the power to defer recovery by taking a statutory charge over the property in question, provided that the owner of the land caused or knowingly permitted the contamination.