ENVIRONMENTAL PERMITTING

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Environmental Law

Environmental Permitting2

Environmental Permitting (England and Wales) Regulations 2007 introduced a new system of environmental regulation

Simplification of regulatory burden/costs Continued protection of environment &

human healthSingle set of regulations. Converted existing: (1) pollution prevention control permits and(2) waste management licences into Environmental Permits

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Integration in the sense(2) Institutional Integration / Consolidation of

Environmental RegulationStreamlining/unifying rules governing the control ofharmful impacts. Prompted by notion of ‘betterregulation’. Easing regulatory burden; simplifying rulesUnified 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

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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

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‘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)

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Environmental PermitsRisk basedSingle permits: provided same regulator,

same operator, all facilities on same siteStandard 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

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Regulatory BodiesEnvironment Agency (Reg. 32) Waste; WaterLocal Authority (lesser extent/risk)General Duty on regulators to exercise

relevant functions so as to achieve compliance with specified EU Directives.

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The OperatorOnly the person who has control over the

operation of a regulated facility may obtain an environmental permit (Reg. 7)

Operator CompetenceThe 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.

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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

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Regulator may refuse permit if it is considered that:Environmental impact would be unacceptable, orRequirements 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

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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 Permit12

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:

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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 stateEnforcement notice (Reg 36)Specifying breach, remedial action require,

timescale.Failure to comply = offence

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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.

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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

noticeDefence: 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)