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Best Practice Series Volume 6 December 2005

T H E I N S T I T U T E O F E N V I R O N M E N TA LM A N A G E M E N T A N D A S S E S S M E N T

Managing compliance with environmental law:a good practice guide

iema


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Managing compliance withenvironmental law:a good practice guide

December 2005

Published by:

INSTITUTE OF ENVIRONMENTALMANAGEMENT & ASSESSMENTiema


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The Institute o Environmental Management and AssessmentSt Nicholas House70 NewportLincoln

LN1 3DP www.iema.net

Editor Martin Baxter IEMA [email protected]

Design and ProductionDan Brady Consilience MediaDavid Mallon Consilience Media

ISBN 1473-849X Printed on Lumi Silk

World copyright by the Institute o Environmental Management and Assessment 2005.


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Foreword

Environmental laws and regulations provide a cornerstone or protecting theenvironment rom harm; without them, it would be in a much poorer state.Environmental laws provide a brake on the indiscriminate release o noxioussubstances into the atmosphere and water courses, and help to prevent thedestruction o the Earths natural systems and cycles, habitats and species. As ourknowledge o the consequences o polluting releases has developed, so too havethe laws and regulations that seek to control those actions that give rise to them.More and more laws to protect the environment are being passed by legislators,

with ever stricter emission limits to achieve. The relatively recent introductiono market-based instruments, such as greenhouse gas emissions trading, hasprovided another dimension to the controls on pollution rom organisations.

Organisations have a legal and moral duty to comply with environmentallaws and regulations; regulatory compliance is societys licence to operate.Given the complexity o legal requirements regarding environmental protection,however, this is a signi cant challenge or organisations. The rst di culty comes rom nding out what laws and regulations actually apply; ollowed by the need to understand how they apply and what needs to be done to comply and ensure compliance on an ongoing basis. This takes time and resources,together with strong management, i it is to be done in an appropriate way.

Environmental management systems are a tool by which organisations canmanage, amongst other things, their regulatory compliance and improve theirregulatory per ormance. On the ace o it, organisations with an EMS shouldhave better regulatory per ormance compared to those without such strongsystems. However, there has been much reported in the environmental pressabout the ailure by some organisations to achieve regulatory compliance onan ongoing basis, even when their EMS is certi ed to ISO 14001 or registeredto EMAS. Much criticism has been levied at the certi ers; UKAS, to its credit,has taken action to improve the way it accredits certi cation bodies and theIEMA will seek to evaluate how e ective this has been in 2006. The REMASLIFE unded project, a partnership between the Environment Agency, ScottishEnvironment Protection Agency, the Irish EPA, and the IEMA, is seeking toestablish the value o an EMS to regulators and the results, due out in the rstquarter o 2006, are eagerly awaited. Both o these initiatives should help toimprove the e ectiveness o EMS in managing regulatory compliance andper ormance.

While an EMS cannot guarantee legal compliance (can anything?), i it ise ective it should act as a tool so that organisations know their compliance statusand corrective and preventative action can be quickly implemented. Regulators,certi ers or members o the public should not be able to nd areas o legal non-


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Foreword (cont)

compliance that the organisation itsel isnt aware o and isnt recti ying. ThisGuide is part o the IEMAs contribution to assisting organisations in complying

with environmental regulations. It sets out what the regulators expect romorganisations using an EMS, and provides help and assistance in managing orlegal compliance. For those who choose to have their EMS certi ed to ISO14001 or registered to EMAS, additional guidance is provided on what certi ersand veri ers expect.

The IEMAs 2005 Environmental Practitioners Survey showed that 35.6 percent o the Institutes membership thought that Environmental Law/Legislation

was the area where they would most bene t rom continuing pro essionaldevelopment. We hope that you nd the Guide use ul and timely.

Martin BaxterTechnical DirectorIEMA


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Acknowledgements

I am grate ul to the ollowing people and organisations or their contributions tothe production o this Guide.

The sections on environmental regulation have had signi cant input rom:Duncan Giddens, Martyn Cheesbrough, Chris Howes and Sandy Rowden romthe Environment Agency; and Nick Bedding and Derek McGregor rom theScottish Environment Protection Agency.

The sections on guidance or organisations have been dra ted by MartinHouldin, Director - Environment Health and Sa ety Services and Sarah Pratt,Senior Consultant - Environment Health and Sa ety Services, both rom EntecUK; Simon Morgan, Regulatory Liaison Manager or United Kingdom NirexLimited; and Juliet Long, Radioactive Substances Regulation Policy Advisor, atthe Environment Agency.

The section on certi cation and veri cation has had important contributionsrom: Tim Inman (ABCB), Malcolm Howard (BSI), Catherine Gold (NQA) and

Alan Gower (BM Trada) all representing the Association o British Certi cationBodies (ABCB); Anne Marie Warris and Sandy Sutherland rom LRQA, bothrepresenting the IIOC(UK); and Andrew Marlow rom UKAS.

Editorial comments and input have been received rom: Emma Owen romRolls Royce PLC; Jackie Harvey Watts rom BSi on secondment to the REMASproject; Chris Sheldon rom Green Inck; and John Brady rom ConsilienceMedia.

The IEMA is particularly grate ul or the support and contributions romthe Environment Agency; the Scottish Environment Protection Agency, EntecUK and the REMAS Project.

Martin BaxterTechnical DirectorIEMA


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Apart rom the purpose o private study, research or review under the Copyright, Design and Patents Act 1988, no part o this journal may be reproduced, stored in a retrieval system or transmitted inany orm by any means without the prior permission o the copyright owners.

Whilst every e ort has been made to ensure that this publication is actually correct at the time o going to press, the data, discussion and conclusions are not intended or use without substantiat-ing investigations by the users. Readers are re erred to the list o re erences and use ul websites atthe back o the journal. No responsibility or loss su ered by any person acting or re raining romacting, as a result o the material contained in this publication, will be accepted by the Institute o Environmental Management and Assessment or by any associated organisations.


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Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

2 Environmental law and regulation in the UK . . . . . . . .15

2.1 Types o legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15- International treaties and agreements. . . . . . . . . . . . . . . . . . . . . . . . .15- European and national legislation . . . . . . . . . . . . . . . . . . . . . . . . . . .15

2.2 Identi ying applicable legislation . . . . . . . . . . . . . . . . . . . . . . . . .16

2.3 The purpose o environmental regulation . . . . . . . . . . . . . . . . . .19- Duties and powers o the regulators. . . . . . . . . . . . . . . . . . . . . . . . . .20

2.4 The principal environmental regulators . . . . . . . . . . . . . . . . . . .21

2.5 The regulatory approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25- Regulatory de nitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25- Regulatory rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26- Compliance assessment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28- Monitoring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30- En orcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

2.6 Principles o modern regulation . . . . . . . . . . . . . . . . . . . . . . . . . 33- The EA approach to compliance assessment. . . . . . . . . . . . . . . . . . 34- The EA OPRA Scheme. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35- CAPs, MAC and CCS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36- The SEPA OPRA Scheme . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38- Local Authority Air Pollution Control (LAAPC)

risk-based regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Environmental management systems and legalcompliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

3.1 What is an EMS? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41- Certi cation and accreditation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42- Types o EMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

3.2 The value o an EMS to regulators . . . . . . . . . . . . . . . . . . . . . . . 44

- Regulators support or EMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44- Regulators concerns and expectations. . . . . . . . . . . . . . . . . . . . . . . 46

3.3 Key deliverables or an e ective EMS. . . . . . . . . . . . . . . . . . . . 48


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Guidance or organisations establishing good practice . . . . . . . . . . . . . . . . . . . . . . . . 55

4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

4.2 The case or better compliance management . . . . . . . . . . . . . . . 56- Why is there a need to demonstrate compliance?. . . . . . . . . . . . . . . 56- Why is there sometimes a lack o ocus on compliance?. . . . . . . . . . 56- What are the consequences o a lack o compliance assurance?. . . . . 57- Why might an organisation wish to improve its complianceper ormance?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

- How do organisations check compliance?. . . . . . . . . . . . . . . . . . . . . 59

4.3 Establishing good compliance practice . . . . . . . . . . . . . . . . . . . 59- A: Understand your organisation and gather in ormation. . . . . . . 59

- A(i): know your activities, products and services. . . . . . . . . . . . . . . 59- A(ii): gather in ormation on environmental legislation. . . . . . . . 62

- B: Identi y legislation o specifc relevance to yourorganisation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62

- B(i): is the legislation applicable to your organisation?. . . . . . . . 62- B(ii): or an organisations activities, products and services. . . . . 64

- B(iii): identi y changes in directives, legislation and regulations. 65- B(iv): documentation o legislative requirements. . . . . . . . . . . . 66

- C: Evaluate current compliance and implement appropriatecontrols. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

- C(i): evaluate current compliance. . . . . . . . . . . . . . . . . . . . . . . . 69- C(ii): determine appropriate controls. . . . . . . . . . . . . . . . . . . . . 70

Guidance or organisations ongoing compliance and assurance . . . . . . . . . . . . . . 73

5.1 Systems and procedures or ensuring ongoing compliance and improvement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

- Roles and responsibilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73- Competency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77- Training and awareness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78- Reviewing the status o compliance. . . . . . . . . . . . . . . . . . . . . . . . . 80- Responding to changes and problems in legal compliance. . . . . . . . 80

- Communications within an organisation . . . . . . . . . . . . . . . . . . . . . 81- Communications with regulators. . . . . . . . . . . . . . . . . . . . . . . . . . . 86

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5.2 Internal compliance assurance . . . . . . . . . . . . . . . . . . . . . . . . . . 88- Three steps to greater con dence about compliance. . . . . . . . . . . . . . 88- Step 1: Checking the organisations legal duties and obligations. . . . . 89- Step 2: Identi ying compliance tasks and their requency . . . . . . . . . . 89- Step 2a: Calculating and prioritising resources. . . . . . . . . . . . . . . . . . 90- Step 2b: Optimising compliance tasks within the resources available. 92- Step 3: Ensuring that compliance tasks are delegated and

supervised e ectively . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94- Step 3a: Monitoring, auditing and reporting . . . . . . . . . . . . . . . . . . . 95

5.3 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

Compliance assessment certifcation and verifcation . . . . . . . . . . . . . . . . . . . . . . 99

6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99- Relationship o assessment to legal compliance. . . . . . . . . . . . . . . . 99- Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101- Role o assessors and inspectors. . . . . . . . . . . . . . . . . . . . . . . . . . . 102- Competence requirements o assessors and inspectors. . . . . . . . . . 102- Relationship between ISO 14001, EMAS and legal requirements. 103

- Structure o ISO 14001:2004 assessment and EMAS veri cation. .104- Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105- Accreditation criteria. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110

6.2 Legal compliance assessment practice . . . . . . . . . . . . . . . . . . . 110

- Does the organisation have a reliable procedure or identi ying itsobligations and maintaining awareness?. . . . . . . . . . . . . . . . . . . 111

- Does the organisation hold (or is obtaining) the necessary permitsand authorisations?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

- Are objectives and targets established and are operational controlsand monitoring in place? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112

- Does the EMS actually work?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113- A worked example. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113- Comprehensive evaluation o legal compliance. . . . . . . . . . . . . . . . 115- Drawing conclusions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116- EMAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

6.3 Non-con ormities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

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6.4 Assessment reporting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119- When to communicate and to whom? . . . . . . . . . . . . . . . . . . . . . . 119- What is to be reported? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121- Consistency between verbal and written reports. . . . . . . . . . . . . . . 121- Recommendations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121- Review and approval. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

6.5 Assessment limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122

Appendices

A United Kingdom Accreditation Service. . . . . . . . . . . . . . . . . . . . . 125B Assessment reporting - regulatory compliance example. . . . . . . . . 133C Re erences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135D Websites . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139

Tables

2.1 Sources o in ormation on environmental legal requirements. . . . . 172.2 NetRegs management guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . 182.3 NetRegs sector guidelines. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

2.4 Principal environmental regulators in UK . . . . . . . . . . . . . . . . . . . 21 2.5 Other environmental regulators. . . . . . . . . . . . . . . . . . . . . . . . . . . 222.6 Typical activities used by regulators to assess compliance. . . . . . . . 293.1 The level o assurance provided by EMS standards and schemes. . 464.1 E ects o en orcement action. . . . . . . . . . . . . . . . . . . . . . . . . . . . 584.2 Environmental impact categories. . . . . . . . . . . . . . . . . . . . . . . . . . 604.3 Examples o environmental aspects and impacts. . . . . . . . . . . . . . 614.4 Permit conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 654.5 Control measures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 715.1 Example description o general responsibilities within an EMS. . . 755.2 Example o competency levels or waste management. . . . . . . . . . 775.3 Example o competency ramework . . . . . . . . . . . . . . . . . . . . . . . . 785.4 Example o a legislation review summary sheet. . . . . . . . . . . . . . . 83 5.5 Summary o legislation implementation status. . . . . . . . . . . . . . . . 865.6 Example o due-process prescribed or di erent types o

environmental documentation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 875.7 Resource prioritisation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 935.8 Excerpts rom an example scheme o delegation. . . . . . . . . . . . . . 94

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Boxes

2.1 Regulatory tools . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202.2 Duty o Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262.3 How is compliance demonstrated?. . . . . . . . . . . . . . . . . . . . . . . . . 282.4 MCERTS and OMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312.5 Penalties or a success ul prosecution. . . . . . . . . . . . . . . . . . . . . . . 332.6 Modern approach to regulation. . . . . . . . . . . . . . . . . . . . . . . . . . . 342.7 Accounting or EMSs in regulation through the OPRA scheme. . 363.1 Regulators expectations o accredited certi cation. . . . . . . . . . . . . 473.2 Key deliverable 1: policy commitment to legal compliance. . . . . . 493.3 Key deliverable 2: identi cation o legal requirements. . . . . . . . . . 49

3.4 Key deliverable 3: evaluation o compliance withlegal requirements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503.5 Key deliverable 4: sta awareness, competencies and training. . . . 513.6 Key deliverable 5: operational controls and

emergency preparedness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 523.7 Key deliverable 6: monitoring, audit and management review . . . . 534.1 Examples o legislative thresholds. . . . . . . . . . . . . . . . . . . . . . . . . 634.2 Example layout o a legal register. . . . . . . . . . . . . . . . . . . . . . . . . . 684.3 Identi cation o legal requirements Dos and Donts. . . . . . . . . 72

5.1 Example o noti cation o a orthcoming change inrelevant legislation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81

6.1 A work example. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114

Figures

2.1 Risk-based approach to compliance assessment. . . . . . . . . . . . . . . 342.2 Compliance classi cation scheme categories. . . . . . . . . . . . . . . . . 373.1 Key elements o an EMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413.2 EMS model or ISO 14001:2004. . . . . . . . . . . . . . . . . . . . . . . . . 433.3 Regulatory value o an EMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 454.1 En orcement response hierarchy . . . . . . . . . . . . . . . . . . . . . . . . . . 57 4.2 Process and activity fows in an organisation. . . . . . . . . . . . . . . . . 605.1 Models o responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 746.1 ISO 14001:2004 assessment process. . . . . . . . . . . . . . . . . . . . . . 1076.2 The EMAS process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1096.3 Assessment practice and legal compliance. . . . . . . . . . . . . . . . . . 118

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Section 1

Introduction

An organisation may choose to implement an environmental managementsystem (EMS) or a variety o reasons; or example to:

manage legal compliance; demonstrate environmental commitment and achieve environmental

improvements; satis y customer expectations; reduce risks with regard to the environment; and improve commercial per ormance and enhance reputation.

From the regulators point o view the rst o these reasons is the mostimportant and a well implemented EMS can be appreciably use ul to anorganisation in managing compliance. However, the same system can also o erbene ts to the regulator in terms o assessing and evaluating compliance.

Regulators expect organisations to take responsibility or the environmentalimpacts o their activities, products and services. They consider management and

maintenance o legal compliance to be a undamental deliverable or an EMS.Compliance with legal requirements regarding environmental protection shouldresult in appropriate environmental control measures and better environmentalper ormance.

Regulators recognise that the task o managing legal compliance is not easy.There are an ever-increasing number o environmental legal requirements placedon organisations, which are o ten complex both individually and collectively. Inthe regulators view, consistent and continuing management o environmentalimpacts requires a structured approach, such as that provided by an EMS.

A number o academic studies have indicated that an EMS does not initsel guarantee legal compliance and good environmental per ormance. Theregulatory approach to any organisation will always be in ormed by the observedstandards o environmental protection and management, including the resultso environmental and compliance monitoring, permit breaches, incidents andcomplaints rom the public.

This Guide seeks to address these issues. It is divided into ve main sections.Section 2 describes the approach to environmental regulation in the UK and setsout the regulators expectations o an organisations use o an EMS to manage


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and maintain compliance with legal requirements regarding environmentalprotection.

Section 3 describes environmental management systems and their value toregulators, whilst Section 4 discusses best practice in managing an organisationsper ormance with respect to legal compliance. The underlying theme is theintroduction o compliance thinking into all aspects o business management.

Section 5 gives guidance to organisations on compliance and assurancematters whilst Section 6 explains the certi cation/veri cation process in general,and more speci cally, the approach o certi ers and veri ers to assessing anorganisations policy commitment to comply with applicable legal requirements.This section and Appendix A also outline the role o UKAS as the UKs nationalaccreditation body in assessing the capability and competence o the certi cation/veri cation bodies to undertake this unction.

The overall aim o this Guide is to provide organisations with acomprehensive account o compliance with environmental law, within thecontext o environmental management systems. In doing so we hope thatmembers o the IEMA and others who receive this Guide will be better placedto discharge their legal obligations and improve the environmental per ormance

o their organisations.

Introduction


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Environmental law andregulation in the UK

This section describes the di erent types o environmental legislation and providesguidance on how to identi y legislation applicable to your organisation.

2.1 Types o legislation

International treaties and agreements

International treaties may or may not be binding legal requirements on signatories usually national governments. Where the UK is a signatory to a treaty, theremay be an international dimension to European and national legislation. Thismay not be apparent at organisation, operator and site level although one

would expect organisations operating across national boundaries to be aware o international obligations. Examples o international treaties are:

the United Nations Framework Convention on Climate Change and thesubsequent Kyoto Protocol (UNFCC, 2004); the Rio Convention on Biological Diversity (UN, 1992); and the United Nations Convention on Long-Range Transboundary Air

Pollution (UN, 1979) and the subsequent Convention on Long-RangeTransboundary Air Pollution on Further Reduction o Sulphur Emissions(UN, 1994).

A list o all global environmental agreements published by the UnitedNations Environment Programme (UNEP) is available at www.unep.org/DPDL/Law/Law_instruments/law_instruments_global.asp

European and national legislation

Most UK environmental legislation now originates at the European level, wherethe main legal instruments are EU directives and regulations. European legislationis transposed into national legislation by each member state. For example, theIntegrated Pollution Prevention and Control (IPPC) Directive (EC, 1996) isimplemented in the UK by the Pollution Prevention and Control (PPC) Act(UK Parliament, 1999a) and supporting statutory instruments. Europeanregulations, on the other hand, usually apply directly to member states; or

Section 2


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example: the Eco-Management and Audit Scheme (EMAS) Regulation (EC,1993), the Trans rontier Shipment o Waste Regulations (EC, 1994) and theEco-Label Regulation (EC, 2000), and do not necessarily need to be transposedthrough speci c national legislation.

In the UK, legislation comprises Acts (primary enabling legislation) andstatutory instruments (secondary legislation), the latter o ten being re erred to asregulations. Acts provide the policy principles and broad requirements, whilestatutory instruments (SIs) are speci c and detailed. Acts normally remain static,unless there are changes to policy. SIs may be updated periodically when thereare changes at the detailed operating level. Thus a series o SIs (denoted by an SInumber and date, eg SI 2709: 2000) may be applicable over time.

SIs relating to UK initiatives or to transposed EC directives may be di erentin any o the our UK territories: England, Wales, Scotland and NorthernIreland (NI). The need or separate regulations is determined by the devolutionsettlements to Wales, Scotland and NI. This is important to note when operatingsites in more than one UK jurisdiction.

Regulations are o ten supplemented by statutory guidance; or examplecovering Best Available Techniques (BAT) or local authority air pollution

control.

Where legal interpretation o regulations has been necessary, usually in courtcases, there will be case law that is relevant in similar circumstances. Occasionally,issues may be re erred to higher courts outside the UK or interpretation; orexample to the European Court o Justice regarding the de nition o waste.

2.2 Identi ying applicable legislation

The rst step in managing compliance with environmental legal requirementsis to know which requirements are applicable to an organisations activities,products and services. Various sources o in ormation are used by organisationsto identi y and assess environmental legal requirements. These include thesources set out in Table 2.1.

The three environmental regulators in the UK the Environment Agency or England and Wales (EA), the Scottish Environment Protection Agency

(SEPA) and the Environment and Heritage Service Northern Ireland (EHSNI) have developed a web-based tool called NetRegs. It is designed to helporganisations navigate through the maze o environmental legislation. AlthoughNetRegs is aimed at small and medium sized business enterprises, the tool is

Environmental law and regulation in the UK


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Table 2.1 Sources o in ormation on environmental legal requirements

Government departments

De ra, Department or Environment, Food and Rural A airs Department o Trade and Industry National Assembly or Wales Scottish Executive Northern Ireland AssemblyNational regulators

Environment Agency Scottish Environment Protection Agency Environment and Heritage Service Northern Ireland English Nature Scottish Natural Heritage Countryside Council or WalesLocal authorities (various departments) pro essional and trade bodies

IEMA - Institute o Environmental Management and Assessment CIWEM - The Chartered Institution o Water and Environmental

Management CIWM - Chartered Institution o Wastes Management

NSCA National Society or Clean Air and Environmental Protection Trade bodies and corporate in ormation (eg bulletins, intranets) Environmental and legal consultantsEnvironmental management and law publications

the environmentalist magazine ENDS - Environmental Data Services Environmental Compliance Manual (see IEMA website) NSCA Pollution Handbook

A Practical Approach to Environmental Law, Stookes (2005) Commercial subscription services Law bulletins

Websites

NetRegs - UK Environmental Regulations on the Internet Europa - The European Union On-Line Business Links HMSO - UK Legislation

HMSO - Northern Ireland Legislation HMSO - Scotland Legislation HMSO - Wales Legislation Envirowise



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help ul or all types o organisation. NetRegs categorises legal requirements intothe ollowing two broad areas:

management guidelines on legal requirements that are generally applicable;and

sector guidelines on legal requirements or speci c business and industry sectors.

The main categories o guidance are summarised in Tables 2.2 and 2.3. Thelist is regularly updated on the NetRegs website see www.netregs.gov.uk

Table 2.2 NetRegs management guidelines

1. Animal by-products regulation2. Clean air 3. Climate Change Levy (CCL) and

EU Emissions Trading Schemes(EU ETS)

4. Control o Major AccidentHazards (COMAH) Regulations

5. Duty o Care or waste6. Energy e ciency7. Energy e ciency in products8. Environmental management

systems9. Groundwater 10. Hazardous / special waste11. Integrated Pollution Control

(IPC) and Integrated PollutionPrevention and Control (IPPC)

12. Local Air Pollution Control(LAPC) and Local Air PollutionPrevention and Control (LAPPC)

13. List o processes subject toIntegrated Pollution Control(IPC) and Local Air PollutionControl (LAPC)

14. List o activities subject toPollution Prevention and Control

(PPC) including Local Air Pollution Prevention and Control(LAPPC)

15. Land contamination16. Land ll17. Li e cycle assessment and

integrated product policy18. Oil storage19. Ozone-depleting substances

(ODS)20. Packaging21. Packaging (Essential

Requirements) Regulations22. Pesticides and biocidal products23. Pollution o sur ace waters and

groundwater 24. Radioactive substances and

wastes25. Solvent Emissions Directive26. Statutory nuisance

27. Trade e fuent28. Trans rontier shipment o waste29. Waste carriers, brokers and

dealers30. Waste Incineration Directive

regime31. Waste management licensing32. Waste minimisation33. Water abstraction and use

34. Water e ciency

Source: www.netregs.gov.uk



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Table 2.3 NetRegs sector guidelines

1. Agriculture, animal boarding andpest control

2. Chemicals manu acture3. Construction4. Electrical equipment and

machinery manu acture5. Electronics6. Fabricated metal products7. Fishing and aquaculture

8. Food and drink manu acture9. Forestry10. Hotels and restaurants11. Hunting, shooting and game

breeding12. Leather

13. Machinery manu acture14. Metals production and processing

15. Mining and quarrying16. Non metallic mineral products

manu acture17. O ce businesses18. Printing, publishing and

reproduction o recorded media19. Pulp and paper manu acture

20. Recycling21. Rubber and plastic products22. Sewage, waste and cleansing23. Textiles and clothing24. Transport by land25. Wood products

2. The purpose o environmental regulation

The environmental regulation o businesses and other organisations is intendedto protect human health and the environment rom harm within the context o sustainable development.

Traditionally, environmental regulation has covered the environmentalmedia (air, water and land), together with wildli e protection and conservation.It has ocused on the control o polluting emissions and on maintaining andimproving water quality and waste management. From the early 1990s, a moreintegrated approach has been taken across all media with Integrated PollutionControl (IPC) in England, Wales and Scotland and, more recently, the IntegratedPollution Prevention and Control (IPPC) European Directive (EC, 1996).

In the uture, primary environmental legislation is likely to be developed inthe ollowing key areas:

management o the environmental impacts o products and associatedactivities and services (such as manu acturing and transport) by adopting ali ecycle approach;



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e cient use o resources as part o the drive towards sustainable consumptionand production;

maintenance and enhancement o biodiversity; and corporate and social responsibility.

Duties and powers o the regulators

Legislation provides environmental regulators with speci c duties and powers.Duties are the things that regulators must do and there ore tend to be prescriptive;

or example, the duty to determine and issue environmental permits.

Powers are usually discretionary in the way they are applied; or example,powers to enter premises or to take appropriate en orcement action. Once apower has been used, say to enter premises, there may be duties that are applicablesuch as to prohibit activities that are causing harm to the environment.

Regulators have a number o tools at their disposal to implement duties andpowers ranging rom the provision o advice and guidance through to ormalen orcement and prosecution see box 2.1.

Box 2.1 Regulatory tools

Least prescriptive

Education and advice (provision o in ormation) Voluntary codes o best practice Voluntary agreementsNegotiated agreementsEconomic instruments (taxes, trading schemes)

Statutory codes o practice (eg agricultural)Statutory guidanceDirect regulationsExemptions (to permits)Permits (licences, consents, authorisations, registrations etc)Permit variation, suspension, revocationNotices (works, improvement, prohibition)Formal cautionsCivil or criminal prosecution

Most prescriptive



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2. The principal environmental regulators

There are di erences in environmental legislation in the UK across Englandand Wales, Northern Ireland and Scotland. This is refected in the existence andresponsibilities o the national environmental en orcement bodies, as set out inTables 2.4 and 2.5.

Table 2.4 Principal environmental regulators in the UK

Environment Agency

Conservation (habitats and wildli e protection and enhancement)

Emergency planning eg control o major accident and hazard (COMAH) sites with the Health and Sa ety Executive (HSE)

Fisheries (resource management and licensing)

Flood De ence (food mitigation and warning)

In ormation Law (public registers and access to environmental in ormation)

Industrial pollution and air quality (eg Integrated Pollution Control (IPC) andIntegrated Pollution Prevention and Control (IPPC))

Land quality (eg management o contaminated land at special sites)Radioactive substances (licensing o nuclear and non-nuclear sites)

Waste management (licensing o management, treatment and disposalactivities)

Water quality (environmental monitoring and consents to discharge to watercourses)

Water resources (abstraction licensing and demand management)

Scottish Environment Protection Agency (SEPA)

Responsibilities are similar to the Environment Agencys, with the ollowingdi erences:

All PPC requirements are regulated (there are no local authority powersunder PPC in Scotland)

Flood de ence is limited to issuing food warnings

No sheries involvement Water resources (abstraction licensing) responsibilities were acquired in 2005under the Water Framework Directive


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Regulator Responsibilities/legislation

De ra Department or Environment Food and Rural

A airs

Principal government department or policy on the environment. For regulatoryresponsibilities see De ra website

Department o Trade andIndustry (DTI)

Regulation o o shore oil and gasinstallations in the UK, through theO shore Oil and Gas Directorate

Drinking Water Quality Regulator

Monitors the progress o Scottish Water inimproving the quality o Scotlands drinking

water

Drinking Water Inspectorate Regulates public water supplies in Englandand Wales. Responsible or assessing

the quality o drinking water, takingen orcement action i standards are notbeing met, and appropriate action when

water is un t or human consumption

English Heritage Protection and conservation o thebuilt environment in England, includinglisted buildings and scheduled ancientmonuments

English Nature Conservation o wildli e and geology inEngland, including Sites o Special Scienti cInterest (SSSIs). EN has en orcementpowers to prevent damage to habitats

Health and Sa ety Executive Joint competent authority (with EA, SEPA and EHS NI) or Control o Major AccidentHazards Regulations 1999 (COMAH) sites.Health and sa ety in nuclear installationsand mines, actories, arms, hospitalsand schools, o shore gas and oilinstallations, the sa ety o the gas grid and

the movement o dangerous goods andsubstances, railway sa ety, and other aspectso the protection both o workers and thepublic. Local authorities are responsible toHSE or en orcement in o ces, shops andother parts o the services sector

Table 2.5 (cont) Other environmental regulators


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Regulator Responsibilities/legislation

Internal Drainage Boards Manage land drainage in areas o specialdrainage need. Each board operates

within a de ned area in which they areempowered under the Land Drainage Act1991. Further in ormation is available rom

the Association o Drainage Authorities website

Marine Consents andEnvironment Unit

Administers marine works consents in tidal waters and at sea: marine developments,

o shore energy, coast de ences, dredgingand waste disposal. Administers certainapplications on behal o the Welsh

Assembly Government which is thelicensing authority in Welsh waters

Pesticides Sa ety Directorate Ensures that pesticides in the UK are sa e or users, consumers and the environment

Scottish Executive and local

authorities

Flood de ence in Scotland

Scottish Natural Heritage Conservation and enhancement o habitats,species and landscapes in Scotland,including protected areas (NNRs, SSSIs,SPAs, NSAs, National Parks)

Scottish Water Water abstraction and supply in Scotland

Water companies (Englandand Wales)

Water companies have a number o dutiesrelating to water supplies (to collect, store

and trans er water to cope with normal fuctuations in rain all) and sewerage but they also hold powers to control and policedischarges o trade e fuent to oul drainsunder the Water Industry Act

Welsh Assembly (environment)

The Environment Planning and CountrysideCommittee brings together the Welsh

Assembly Governments responsibility

or sustainable development; planning;environmental policy, countryside issues;National Parks Authorities; agricultural andrural a airs

Table 2.5 (cont) Other environmental regulators



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2. The regulatory approach

The approach that regulators adopt or their regulatory activities, includingcompliance assessment and en orcement, generally ollows the model:

apply a set o rules; monitor and assess compliance with the rules; and en orce compliance with the rules.

Regulatory defnitions

The terms below are de ned to ensure a clear understanding o their use in this

Guide and, in particular, in the ollowing sub-sections covering regulatory rules,compliance assessment and en orcement.

Audit (regulatory): in-depth evaluation o an operators ability to comply withall, or parts o , the permit or directly applied legislation. For example, an auditmight include speci c reviews o the e ectiveness o an operators proceduresand management system.

Compliance: compliance is de ned by the European Union network,

Implementation and En orcement o Environmental Law (IMPEL) as: ullimplementation o environmental requirements. Compliance occurs whenrequirements are met and desired changes are achieved. IMPEL (1992)

Compliance assessment (regulatory): the overall approach taken to check compliance with all the conditions o a permit or other regulatory instrument.

Compliance monitoring: compliance monitoring is de ned by IMPEL as:collecting and analysing in ormation on compliance status. Compliancemonitoring may be carried out either by an operator (who is subject to legislation)or a regulator (who en orces legislation).

Operator: regulations and permits are normally applicable to sites (eg WasteManagement Licence), installations (eg Pollution Prevention and Controlpermit) or processes (eg Integrated Pollution Control authorisation). Theorganisation, which may be a single person, that operates the site, installation orprocess and who is responsible or compliance with legal requirements is re erred

to as the operator.Operator sel -monitoring: operator sel -monitoring is de ned by IMPEL asmonitoring undertaken by the operator in accordance with a requirement o a



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permit or relevant legislation. It may include monitoring o emissions and o impacts on receiving environments.

Sampling (check monitoring): taking measurements o inputs, emissions orthe receiving environment.

Site inspection: attendance at a site to check compliance with all or someo the permit conditions, or directly applied legislation (other than by check monitoring) using, or example, visual assessment.

Regulatory rules

Directly applied regulations: regulators en orce speci c rules within legislationthat are directly applied to operators. Examples are the Waste Duty o Care (seeBox 2.2) and the Oil Storage Regulations (UK Parliament, 2001).

Box 2.2 Duty o Care

The duty o care applies to all controlled waste this means that wastematerials produced as part o an organisation or within the workplace areregulated by law and are subject to the duty o care. All organisations have a

duty to ensure that any waste produced is handled sa ely and in accordance with the law. The duty o care applies to anyone who produces, imports,carries, keeps, treats or disposes o controlled waste or acts as a waste broker in this respect.

Further information on duty of care may be found inNetRegs Management Guidelines go to www.netregs.gov.uk

Environmental permits: regulators implement environmental legislation by issuing environmental permits1 that contain conditions that the permit holdermust ul l to operate activities prescribed by legislation.

These are normally applied to operations at speci c sites or installations,and typically regulate polluting emissions to air (eg local authority air pollutioncontrol), water (eg consents to discharge and abstraction licences) and land (eg

waste management licences). Pollution Prevention and Control (PPC) permitsare used to regulate all media on an integrated basis.

1 In this Guide the term permit is used to re er to all licences, permits, authorisations, consentsand any other conditioned permissions.



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It is the responsibility o an organisation or operator to apply or a permithaving recognised that one is required under legislation. The regulator receivesan application and determines whether a permit is issued and what permitconditions are applicable.

Regulators issue guidance on the requirements or permits and on how toapply or them. This may include technical guidance, such as PPC guidanceon Best Available Techniques (BAT); or example on environmental assessment,energy e ciency and sector speci c BAT requirements. For more in ormation onguidance issued by regulators, visit the relevant websites or the environmentalregulators and LAAPC (De ra) listed in Appendix D.

Permit conditions typically set out requirements in the ollowing areas:

emission limit values: numerical limits or emissions and ambient pollutantloads, sometimes expressed as a range o acceptable environmental loading;

technical standards: or example, the operation and maintenance o abatement equipment to speci ed limits;

management standards: or example, managing and training sta ,operational procedures and communication arrangements;

preventative measures: or example, to prevent or reduce accidents and

incidents which might cause pollution or other environmental harm; noti cations (o non-compliances) and reporting requirements: orexample, sel -monitoring data and in ormation, and records to documentlegal compliance checks, maintenance checks and completed improvements;and

improvement measures and programmes: typically brought in when it isconsidered that a urther period o time and/or urther resources are requiredto meet permit conditions.

Other rules: regulators may en orce other requirements. An example is the EUGreenhouse Gas Emissions Trading Scheme. Emissions-trading gives companiesthe fexibility to meet emissions targets according to their own strategy. By allowing participants to trade in allowances, overall emissions reductions areachieved in the most cost-e ective way possible. The scheme covers emissionso greenhouse gases rom a number o industries which are speci ed in theEU Emissions Trading Directive (EC, 2003), initially covering emissions o carbon dioxide. The EU scheme commenced on 1 January 2005; or urtherin ormation about the scheme, the EC Monitoring and Reporting Guidelinesand the National Allocation Plan (NAP) contact the EA helpdesk at: [email protected]



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Compliance assessment

The purpose o compliance assessment is to:

check compliance o regulated organisations with relevant environmentallegal requirements, including with directly applied regulations, conditionsin permits or any other legal obligations that are applicable; and

monitor the impact o regulated organisations on the environment todetermine whether urther inspection or en orcement action (includinggranting, issuing, modi cation or revocation o any permit) is required tosecure compliance with environmental legal requirements.

Box 2.3 considers how compliance can be demonstrated and Table 2.6 listssome typical activities used by regulators to assess compliance.

Box 2.3 How is compliance demonstrated?

It is the responsibility o operators to manage their activities to achieve legalcompliance, and it is the job o the regulator to check whether an operator

is complying with legal requirements and decide whether urther action isrequired.

An operator is assessed as compliant i there is no evidence o ailure tomeet permit (or other) conditions. Regulators expect operators to carryout periodic evaluations to test whether they are in compliance. Evaluationsshould be risk based, according to the hazards posed by operational activities.

A systematic approach to compliance management (such as that provided byan EMS) should provide evidence o how environmental legal requirements

are assessed and met, and identi y any legal non-compliances.Regulators scrutinise evidence provided by operators in order to helpdetermine whether permit conditions or other requirements are being met.The requency o regulatory assessments will be in ormed by such evidenceand observed standards o per ormance.

There may be circumstances where an operator is not ully compliant with one or more conditions in a permit, or other legal requirements. The

operator should (a) immediately noti y the regulator o the non-compliance(s)and (b) agree with the regulator the actions needed to return to complianceand mitigate any harm to the environment.



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Table 2.6 Typical activities used by regulators to assess compliance

Compliance assessmentactivity

Description

Sampling and check monitoring

Taking measurements o inputs, emissions or the receiving environment

Review o reports and data Scrutiny o reports and data submitted by the permit holder, such as emissions andenvironmental monitoring data, noti cations o non-compliances and technical reports

Procedure review An operator may be required to submitprocedures or agreement prior toimplementation regulators will check

whether such procedures are in place andcomprehensive

Site inspection Attendance at a site to check compliance withall or some o the permit conditions, or directlyapplied legislation

Audit In-depth evaluation o an operators ability to comply with all, or parts o , the permit,or directly applied legislation; or example,an audit might include speci c reviews o thee ectiveness o an operators procedures andmanagement system

Compliance is assessed using one or more o the ollowing types o

assessment:

Continuous assessment: this occurs when in-situ monitoring apparatusrecords data continuously either in real time or alarm purposes or in archivemode or subsequent examination. In this case, equipment is installed tomonitor important aqueous discharges and stack emissions, typically atcomplex sites. However, not all aspects o a sites activities can be monitoredin this way and there ore continuous assessment, where it is carried out,tends to be selective.

Retrospective assessment: periodic and annual assessments (see overpage)

rely on a retrospective assessment o compliance in which evidence is soughtby the regulator to con rm that the operator has been in compliance. EMSevaluations and records can provide such evidence.



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Periodic assessment: this is the most common orm o regulatory assessment. When used as part o a risk-based approach, this type makes optimum useo sta resources. There are three subsets to it:

a) Site-based assessment:regulatory o cers visit a premises and carry out either a comprehensive assessment (eg legal compliance audit), ora targeted inspection (eg check monitoring) based on pre-determinedcriteria or evaluation.

b) Report-based assessment:regulatory o cers receive and examine datareturns, analytical results and programme reports back in their o ces,between site visits.

c) Incident-based assessment: regulatory o cers respond to incidentsnoti ed to them by the operator or indirectly as a complaint by amember o the public. The response can include attendance at the sceneo the incident.

Annual assessment: regulators compile annual data and in ormation orinput into annual reports and plans. These contain summary data andit is necessary to assess compliance retrospectively in order to reach air

conclusions.

Monitoring

There are primarily two types o monitoring carried out or required by regulators;these are:

monitoring o compliance with environmental legal requirements, orexample permit conditions; and

monitoring o environmental quality, or example meeting environmentalquality standards.

Monitoring can be carried out in a number o ways (ie continuously,periodically or remotely) and by operators (sel -monitoring) or regulators. Theexact mix o monitoring will depend on regulatory requirements and resources,operator competence, third-party involvement and available techniques andtechnology. It is vital that organisations deliver monitoring results that arevalid, reliable, accurate and appropriate. This requires the proper use o suitablemethods, standards, services and equipment, trained and quali ed personnel,e ective planning, quality assurance and quality control.



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With this in mind the Environment Agency has established a MonitoringCerti cation Scheme (MCERTS) to improve and ensure the quality o monitoring data. SEPA in Scotland is currently pursuing MCERTS status orsta involved in manual stack emissions monitoring. EHS in Northern Irelandencourages operators to use MCERTS-approved continuous emission monitorsand have manual spot monitoring work carried out by MCERTS accreditedpersonnel.

Details o MCERTS and the Environment Agencys Operator Monitoring Assessment (OMA) schemes are set out in Box 2.4.

Box 2.4 MCERTS and OMA

MCERTS is operated by SIRA Certifcation Service (SCS) and the UK Accreditation Service (UKAS) on behal o the Environment Agency. Thescheme is based on the ollowing standards:

ISO 17025 or monitoring and equipment testing;EN 45004 or inspection;EN 45011 or product certi cation; andEN 45013 or personnel competency.

MCERTS covers:continuous emissions monitoring systems (CEMs);manual stack emissions monitoring;continuous ambient air quality monitoring systems (CAMS);portable emissions monitoring equipment;continuous water monitoring equipment;sel monitoring o e fuent fow; andchemical testing o soil.

MCERTS assures users o certifed instruments and services that they:meet per ormance standards set out in current international standards and

the growing requirements o EC directives; andcomply with relevant national regulations and requirements; eg theEnvironment Agencys Operator Monitoring Assessment requirements.

MCERTS also:enables instrument manu acturers and service providers to assure

customers that certi ed instruments and services are suitable; and


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provides independent inspections o installations to Environment Agencyrequirements.

Environment Agencys Operator Monitoring Assessment (OMA)Scheme

The Environment Agency has introduced this scheme to strengthen itsauditing o operators sel -monitoring arrangements. OMA is currently applied

to the monitoring o emissions to air rom industrial processes. It is proposed to extend OMA to other media and regulatory regimes. The Environment Agency uses the OMA scheme to:

assess operators sel -monitoring (including monitoring undertaken onbehal o operators by contractors) using a consistent and transparentapproach;contribute to the Agencys sampling and check monitoring programme;andprovide a driver or necessary improvements.

Source: EA, 2005a

En orcement

En orcement action is taken by regulators to ensure that organisations comply with legal requirements o environmental permits and directly applied laws by using: warning letters, en orcement notices, ormal cautions and prosecution(Box 2.5).

En orcement action is also taken to mitigate the polluting e ects o

incidents and to prevent urther incidents and pollution which may cause seriousenvironmental damage or harm to human health. These include:

prohibition notices to stop or prevent illegal and polluting activities; works (anti pollution) notices to en orce actions needed to mitigate or

prevent serious environmental damage or harm to human health; and suspension or revocation o a permission.

En orcement action will be proportionate to the potential or actual damageto the environment, the level o non-compliance and o ences committed.

The principles by which the main UK regulators take en orcement action

Box 2.4 (cont) MCERTS and OMA



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are in ormed by the Cabinet O ce En orcement Concordat. Speci c regulatorspolicies are:

the Environment Agencys en orcement and prosecution policy (EA,1998);

SEPAs policy statement on en orcement (SEPA, 2002). It should be notedthat in Scotland, cases are re erred to the Procurator Fiscal or consideration;and

EHS NIs en orcement and prosecution policy (EHS NI, 2005).

Box 2.5 Penalties or a success ul prosecution

Magistrates Court: maximum ne 20,000 and a three month prisonsentence

Crown Court: unlimited ne and a two year prison sentence.

2. Principles o modern regulation

The Better Regulation Task Force (BRTF, 2005) is an independent body thatadvises Government on actions to ensure that regulation and its en orcementaccord with the ve Principles o Good Regulation. The principles applied toenvironmental regulation are:

proportionate (or risk-based): regulators allocate resources according to therisks involved and the scale o outcomes which can be achieved;

targeted (or outcome- ocused): regulators use environmental outcomes toplan and assess per ormance;

consistent: regulators apply the same approach within and between sectors,and over time;

transparent: regulators have rules and processes which are clear and availableto organisations and local communities; and

accountable; regulators explain their decisions and per ormance.

Regulators have or are developing risk-based approaches that use a range o di erent regulatory tools (eg permitting, trading schemes, voluntary agreements,education and advice, and environmental taxes). The Environment Agency andSEPA respectively have set out their approaches to modernising regulation in

Delivering or the Environment, a 21st Century approach to regulation (EA,2005a) and Vision or Regulation: Protecting and Improving the EnvironmentThrough Regulation (SEPA, 2003) see Box 2.6.



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Box 2.6 Modern approach to regulation

Operators take responsibility or their environmental per ormance, dem-onstrating to regulators that they can e ectively manage environmental

impacts, use resources e ciently and operate in a socially responsiblemanner.

Regulators assess the per ormance o regulated organisations and apply in-centives and sanctions proportionate to the risk posed to the environmentand observed standards o per ormance.

The EA approach to compliance assessment

The Environment Agencys modern approach is based on the principle that e ortand resources are targeted on risk and environmental outcomes. The aim is to:

encourage and reward better environmental per ormance and outcomes; make best use o compliance assessment tools; simpli y regulation or organisations and regulatory sta ; and target e ort at activities that pose the greatest risks to the environment.

This approach has our inter-linked elements, which give an overallintegrated approach, as set out in Figure 2.1.

Figure 2.1 Risk-based approach to compliance assessment


OPRA identi es operator and environmental risk

or each permit. Thescore determines the

subsistence charge paidby the operator and thelevel o resources or CAPs.

Compliance AssessmentPlans (CAPS) identi y thecompliance assessment

tasks and the level o resources that will beassigned to these tasks.

Compliance Classi cationScheme (CCS) enablesconsistent scoring o

permit breaches. Thescores contribute to theoverall EP OPRA score.

Provides guidance onhow to undertakecompliance assessment.


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The EA OPRA Scheme

Operator Per ormance and Risk Assessment (OPRA) has evolved rom schemesdeveloped separately or Integrated Pollution Control (OPRA or IPC) and

Waste Management Licensing (OPRA or Waste). The scheme assesses both theenvironmental hazards o an operation and the operators per ormance usingin ormation rom operators, checked by the Environment Agency. OPRA assessments generate a risk pro le, based on the ollowing ve attributes:

complexity: the complexity o the activities and processes operated andregulated;

emissions: permitted to all environmental media air, water and land; location: proximity to and sensitivity o environmental receptors;

operator per ormance: the extent and e ectiveness o the operatorsenvironmental management system covering compliance history,operation and maintenance, competence and training, emergency planning,per ormance evaluation and external reporting; and

compliance rating: compliance with permit conditions, driven by thenumber and signi cance o permit breaches, classi ed using the CommonCompliance Scheme (CCS).

Each attribute is scored to produce a band value (A to E) where A equatesto low risk and good per ormance and E high risk and poor per ormance. Thescores or each attribute are added to generate the overall OPRA risk pro le (A to E). In ormation rom OPRA assessments are used in two ways:

in planning compliance assessments; and

in determining application and annual subsistence charges using theprinciple that lower risk requires less Agency regulatory e ort and hencelower ees are charged to the operator.

Guidance on the principles and use o OPRA is provided on the Environment Agencys website at www.environment-agency.gov.uk/epopra and the connection

between OPRA and environmental management systems is shown in Box 2.7.



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Box 2.7 Accounting or EMSs in regulation through the OPRA scheme

The amount o credit given by the Environment Agency refects the

reduced e ort in determining permit applications due to in ormationgenerated by the EMS, and the potential or reduced complianceassessment e ort. Credits given to operators who have, or will have, anEMS range rom:

a minimum credit or an in house system; toa higher credit or ISO 14001:2004 certi ed by an IAF accredited certi -cation body; and up toa maximum credit or an EMAS registered system.

It is intended in the uture to extend credit under OPRA to take accounto EMSs based on BS 8555 that are inspected under the IEMA AcornScheme and industry Codes o Practice agreed with or recognised by

the Environment Agency. This will be done ollowing a reassessment o the Operator Per ormance (management systems) attribute ollowing theoutcome o the REMAS project.

REMAS is a three-year European project to provide evidence that linksenvironmental management systems and environmental per ormance. For more in ormation visit the REMAS website see Appendix C

CAPs, MAC and CCS

Compliance assessment plans (CAPs) are work planning tools which enablecompliance assessment e ort to be prioritised based on risk, environmentaloutcomes and local needs. CAPs enable targeting o compliance assessmente ort and resources, based on:

OPRA risk pro les; priority outcomes (environmental and regulatory) or industry sectors; and local issues and objectives.

The methodology or assessing compliance (MAC) re ers to a consistentmethodology or assessing compliance with permits using an OPRA pro le andassociated directly-applied legislation. The methodology will be implementedinitially or PPC and Waste Management Licensing, alongside CAPs.



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The compliance classi cation scheme (CCS) classi es and records instanceso non-compliance with permit or licence conditions by operators into vecategories as set out in Figure 2.2. The scheme provides a consistent basis orimplementing the Environment Agencys en orcement and prosecution policy.It also provides a consistent link to the compliance rating attribute in the OPRA scheme.

For urther in ormation on these tools, see the compliance section o theEnvironment Agencys website.

Figure 2.2 Compliance classi cation scheme categories


Category 1 A non-compliance which has a potentially major environmental e ect

Category 2 A non-compliance which has a potentiallysigni cant environmental e ect

Category 3 A non-compliance which has a potentially minor environmental e ect

Category 4 A non-compliance which has no potentialenvironmental e ect

ATLNumerical limit has been exceeded, but it is still

within the uncertainty level o measurement technique. Re erred to as approach to limit(ATL)


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The SEPA OPRA Scheme

SEPA OPRA is similar to the Environment Agencys Scheme. The twocomponents o SEPAs scheme are, Pollution Hazard Appraisal (PHA) andOperator Per ormance Assessment (OPA), broadly equivalent to the suite o hazard attributes and the operator per ormance attributes in the Environment

Agency Scheme.

SEPA uses OPRA to allocate its inspection resources based on a combinationo the inherent risk o the site and the operators per ormance in managing theserisks. Inspection requencies are reduced or operators with avourable OPRA ratings. SEPA does not use OPRA or other purposes such as the preparation

o permits. With respect to OPRA and EMS, SEPA is awaiting the outcome o the

REMAS project (REMAS, 2005) be ore determining i credit should be givenunder OPRA or operators with a recognised EMS. SEPA believes that EMSs,particularly those that are certi ed or veri ed, can play an important role ingenerating systematic improvements in the environmental per ormance o organisations. However, a direct link between the possession o an EMS andimproved legal compliance has yet to be demonstrated. Notwithstanding this,

SEPA believes that an operator with an EMS is likely to receive improved scoresunder the OPA attribute or criteria such as management and training. There isthere ore a degree o credit built into the existing system.

SEPAs OPRA methodology is detailed in its Environmental Risk AssessmentManual which can be viewed on the SEPA website see Appendix D.

Local Authority Air Pollution Control (LAAPC) risk-based regulation

A risk assessment method is used by local authorities in England and Walesto determine the relative level o risk associated with processes regulated underthe Local Air Pollution Control Regime (De ra, 2005). The method assigns alevel o proposed regulatory e ort to individual processes (high, medium orlow) according to their relative risks. The method relates to e ort expended inregulating processes once they have been authorised ie what is covered by thesubsistence element o the Local Authority Air Pollution Control (LAAPC) ees

and charges.Risk assessment using this method is based on both the nature o the process

and the way in which it is managed; it is divided into two parts:



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Environmental Impact Appraisal (EIA) which concerns the potentialenvironmental impacts o a process according to type, level o upgrading tomeet regulatory requirements and location; and

Operator Per ormance Appraisal (OPA) which relates to how well theoperator manages the potential environmental impacts o the process.

Further details can be ound in the air quality section o the De ra websiteat: www.de ra.gov.uk/environment/airquality/lapc/risk/index.htm



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Environmental managementsystems and legal compliance

.1 What is an EMS?

An environmental management system (EMS) is that part o an organisationsmanagement system used to develop and implement its environmental policy and manage its environmental aspects (ISO 14001: 2004a). Figure 3.1 shows aschematic o the key elements o an EMS. The EMS process can be expressed interms o environmental management techniques set out below. Legal complianceis addressed at the stages indicated in brackets.

Figure 3.1 Key elements o an EMS

Section 3

Environmental impactassessment

(identi y legal requirements) Activities, products

and services

Risk assessment(assess legal compliance) Environmental impacts

Control measures to mitigate environmental impacts(achieve legal compliance)

Systems and procedures - to operate and maintain control measures(manage legal compliance)

EMS Organisation

o

o


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Certifcation and accreditation

Certi cation is the process by which an organisations system (eg its EMS) isassessed or its con ormity to the requirement o a standard (eg ISO 14001:2004).Certi cation Bodies (CBs) may be accredited to per orm such assessments wherethey meet the criteria in ISO/IEC Guide 66 (ISO, 2003).

Accreditation bodies check on a regular basis via surveillance at the CBso ces, witnessed assessments at their clients sites and other activities thatcerti cation bodies are capable o providing accredited certi cation. Similarprocesses are operated to accredit environmental veri ers to carry out veri cationunder EMAS, including the validation o EMAS environmental statements, and

IEMA Acorn inspection bodies.In the UK, the United Kingdom Accreditation Service (UKAS) per orms the

accreditation unction or ISO 14001:2004 certi cation bodies, EMAS veri ersand IEMA Acorn inspection bodies, through a Memorandum o Understanding

with the DTI. Accreditation criteria and guidance is developed at an internationallevel by organisations such as the International Accreditation Forum (IAF) andaccreditation bodies are required to con orm to ISO/ IEC 17011 (ISO, 2004b).Certi cation assessments are carried out according to international standards

and guidelines, such as ISO/IEC Guide 66 and EA 7/02 (IAF, 2003). A latersection o this Guide explains in detail the role and mechanics o certi cation;additional in ormation on accreditation is contained in Appendix A.

Types o EMS

The main types o EMS in use in the UK are described below:

In-house EMS: many companies choose to design and implement an EMS totheir own speci cation. Regulators encourage the uptake o EMSs which help tomanage risks and establish environmental control measures. An in-house EMSmay be as e ective as any other, but the main drawback or regulators is that itis more di cult to assess the e ectiveness o such an EMS in the absence o astandard approach, including assessment criteria.

Assessments o the value o an EMS start with the degree o con ormanceto a recognised standard such as BS 8555 or ISO 14001:2004, or a scheme such

as EMAS. Judgements on each individual case may then be based on the degreeo con ormance and whether this delivers regulatory requirements includinglegal compliance. Independent (third-party) checks can be made via accreditedcerti cation, inspection and veri cation assessments.

Environmental management systemsand legal compliance


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describes a six-phase, incremental approach to implementing an EMS usingenvironmental per ormance evaluation;

is suitable or any organisation, particularly small and medium-sizedenterprises, to implement an EMS or example to ISO 14001 standard;

may be used to demonstrate improved environmental per ormance tocustomers and stakeholders; and

allows organisations to proceed at their own pace up to ull implementationo an EMS, which may then be certi ed to ISO 14001 or registered underEMAS.

The IEMA has developed a scheme or accredited inspection o con ormanceto any chosen phase o BS 8555, known as the IEMA Acorn Scheme (IEMA,2005) the Environment Agency is considering how it can be recognised underits OPRA scheme.

Eco-Management and Audit Scheme (EMAS): The Eco-Management and Audit Scheme (EC, 1993) is a registration scheme, not simply a standard. Itis a voluntary initiative designed to improve organisations environmentalper ormance. It was initially established by European Regulation 1836/93,although this was replaced by Council Regulation 761/01. This amendmentincorporated ISO 14001:1996 (ISO, 1996) into the EMAS Regulation as the

speci cation or an EMS (Annex 1A o the regulation). At the time o writing, Annex 1A is being amended to include the requirements o ISO 14001:2004.Further in ormation about EMAS, including guidance and how to register, may be ound at www.emas.org.uk

.2 The value o an EMS to regulators

Regulators support or EMS

Businesses must take responsibility or the environmental impacts o theiractivities. Continual management o environmental impacts requires a structuredapproach and environmental management systems (EMSs) provide a way orbusinesses to do this.

Legal compliance and good environmental per ormance are undamentalrequirements o an EMS. A robust EMS should lead to improved environmentalper ormance, including better and more consistent legal compliance.

Regulators are supportive o accredited certi cation to ISO 14001:2004 asthe basis or a systematic approach to managing environmental legal compliance.



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Regulators support EMAS (which incorporates con ormance to ISO 14001)as a way or organisations to demonstrate their green credentials beyond ISO14001:2004 accredited certi cation. A company registered to EMAS mustcomply with legislation, and assurance must be sought rom the environmentalregulator. EMAS also places additional emphases on environmental per ormanceand public environmental reporting.

The regulatory approach at any site will always be in ormed by the observedstandards o environmental protection and management, including permitbreaches, incidents and complaints rom the public.

When regulators carry out assessments o compliance, in ormation roman EMS may be used to demonstrate (ie give assurance) that an organisationis or has been in compliance. EMS records provide an objective means or theregulator to make such appraisals and may provide evidence or an audit trail.This is illustrated in Figure 3.3.

Figure 3.3 Regulatory value o an EMS

Regulator Operator

Evaluation and records

Compliance assessment Compliance management

Evidence o compliance (or non-compliance)

EMS (management andassurance o compliance)

An operators EMS is an important element to examine during a regulatorsinspection, as valid as other areas o assessment such as abatement equipmentand storage areas. The EMS may add value to on-site regulatory assessments; orexample by providing:

evidence o compliance since the last visit; a ocus or the subsequent tour o the premises; and a starting point or an OPRA appraisal.



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Table 3.1 shows the relative levels o assurance provided by the di erentEMS standards and schemes.

Table 3.1 The level o assurance provided by EMS standards and schemes

Level o assurance

Type o EMSIn-house ISO

14001(not

certi ed)

BS 8555(not

inspected)

Accreditedcerti ed

ISO 14001

Acorn AccreditedInspection

EMAS

1 Standard/ scheme

applied

X ` ` ` ` `

2 Con ormance to standardor schemecerti ed/ inspected byaccreditedbody

X X X ` ` `

3 Per ormance veri ed byaccredited

veri er or inspectionbody

X X X X `optional

`

Regulators concerns and expectations

There is a wide variation in standards o EMS implementation and certi cation.In particular, there is o ten a lack o ocus on maintaining and ensuring legalcompliance and improving environmental per ormance. Regulators still have anumber o unanswered questions in relation to EMSs; or example:

What are the bene ts to implementing organisations and to regulatorso establishing an EMS to standards such as BS 8555, ISO 14001 and

EMAS? Does an organisation with an EMS have better legal compliance and

improved environmental per ormance than one without? Several academic



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studies suggest that sites with an EMS do not necessarily deliver bettercompliance with permit conditions, have ewer incidents or deliver betterenvironmental per ormance than those that do not have them (Dahlstrmet al, 2003).

Does accredited certi cation add regulatory value? The standards o environmental per ormance provided at a site with an EMS will bedetermined in part by the certi cation body.

Regulators are concerned at the lack o consistency in approach betweencerti cation bodies and that during assessments not enough attention is paid tocompliance with legislation. This is despite the existence o international standardsand guidance or accreditation as set out in this Guide. The certi cation andaccreditation community (certi cation/inspection bodies, trade associationsand UKAS) should address this concern. In addition to consistency o approach,regulators have a number o other expectations as shown in Box 3.1.

Box 3.1 Regulators expectations o accredited certi cation

Assurance that legal compliance is being e ectively managed: regulators expect:

certi cation assessments to provide assurance that organisations are con orming to the standards key requirements concerning legal compliance (ISO 14001:2004,clauses 4.3.2, Legal and Other Requirements and 4.5.2, Evaluation o Compliance);a greater emphasis on identi ying and correcting legal non-compliances, as well asdetecting and correcting non-con ormances with the standard;better communication and in ormation exchange, particularly with regard to theidenti cation and noti cation (to regulators) o non-compliances ound or reportedduring a certi cation assessment;

greater transparency in the circumstances and process or suspension or withdrawal o certi cation, including dealing with complaints rom third parties; and that organisations that have regular legal non-compliances (due to management ailures) would not retain their ISO 14001 certi cates, or EMAS registrations.

Competencies and training o certifcation assessors: regulators expect:assessors and assessment teams to be selected according to relevantenvironmental and legal competencies and experience related to the organisationbeing assessed; andall UKAS accredited certi cation bodies to have access to and use the same criteria

or selecting assessors. It should be stressed that accredited certi cation bodies arerequired to use auditors who meet the requirements o ISO 19011 (ISO, 2002).



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. Key deliverables or an e ective EMS

Regulators need to be convinced that an operators EMS is an e ective tool ormanaging legal compliance. E ectiveness is judged by:

Risk assessments: is the EMS well designed and t or purpose?

Per ormance: does the EMS result in ewer permit breaches and improvedcompliance with legal requirements?

To address their concerns, regulators have identi ed key deliverables or ane ective EMS in relation to legal compliance. These are:

policy commitment to legal compliance and improving environmentalper ormance;

identi cation o legal and other environmental requirements mappedagainst operational activities, services and products;

periodic evaluation o legal compliance to identi y and remedy non-compliances through appropriate corrective and preventive actions;

sta awareness, competencies and training required or managing legalcompliance;

operational controls and emergency preparedness to meet legalrequirements;

monitoring, audits and management review to check and makeappropriate changes to controls, systems and procedures; and

delivery o improvements where these have been identi ed or required by the regulator note that this deliverable is incorporated in the above sixpoints.

Boxes 3.2 to 3.7 set out criteria or each key deliverable applicable toany EMS; cross-re erences are provided to the relevant sections or clauses o ISO 14001:2004, BS 8555 and EMAS. The regulators believe that an EMS

that delivers in these areas will be e ective in managing compliance withenvironmental legal requirements.



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Box 3.2 Key deliverable 1: policy commitment to legal compliance

Applicable standards and schemes:

ISO 14001: 2004: Clause 4.2 Environmental policy

BS8555: 2003: Phase 1 Commitment and establishing the baseline, Phase 3Developing objectives, targets and programmes (stages 1, 2, 3, 4, 7)

EMAS Regulation: Annex 1(A) EMS Requirements (as or ISO 14001); Annex 1(B)1Legal compliance, Annex 3 Environmental Statement

There is a policy commitment rom top management to identi y and comply withall relevant legal requirements regarding environmental protection. The policy is

implemented via organisational structures and responsibilities to ensure that:

all relevant environmental legal requirements are met; there are adequate resources to ensure compliance; andprogress is monitored.

A company board member or director has ultimate responsibility or environmentalpolicy and per ormance including compliance with environmental legal requirements.The policy provides in ormation on environmental legal requirements and how they

will be met.

Box 3.3 Key deliverable 2: identi cation o legal requirements


ISO 14001: 2004: Clause 4.3.2 Legal and other requirementsBS8555: 2003: Phase 2 Identi ying and ensuring compliance with legal and other requirementsEMAS Regulation: Article 3, Clause 2 (a); Annex 1 (A) EMS Requirements (as

or ISO 14001); Annex 1 (B) Issues to be addressed by organisations (legalcompliance)

The organisation maintains a register o environmental legal requirements.

This sets out: the sources o legal requirements EU, national and other;names o requirements ull title and usual abbreviation;

e ecting instruments direct regulation, permit and other;e ective dates rom which requirements apply;activities, products and services to which the requirements apply;


cont over page


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Box 3.3 (cont) Key deliverable 2: identi cation o legal requirements

Box 3.4 Key deliverable 3: evaluation o compliance with legalrequirements

responsible department and/or post and name o current post-holder; andin ormation sources and types required to evaluate compliance status.

The register is periodically checked and updated with changes to legislation andchanges to activities, services and products.

All relevant sta have access to and are amiliar with legal and other environmentalrequirements relating to their role within the organisation.

Management regularly reviews applicable legal requirements and the environmentallegal register is updated accordingly.


ISO 14001: 2004: Clause 4.5.2 Evaluation o complianceBS8555: 2003: Phase 2 Identi ying and ensuring compliance with legal and other requirements (all stages)EMAS: Article 6, Clauses 1, 4, 5, 6 Compliance with, and breaches o , environ-mental legal requirements; Annex 1 (A) EMS Requirements (as or ISO 14001)

There is a procedure or periodically evaluating compliance with relevantenvironmental legislation and regulations. This should include, or re erence,monitoring and audits carried out under key deliverable 6 (see Box 3.9 below)There is robust evidence that the organisation checks the level o compliance

with relevant legal and other requirements, including all speci c permit, licence,authorisation and consent conditions at a requency related to the risk andpotential consequence o non-compliance but at least annually

Any breaches o permit, licence, authorisation or consent conditions are reported

to the regulator in accordance with speci ed requirementsResponsibilities and processes have been de ned or dealing with non-compliances, including:

a) handling, investigating and reporting incidents o actual or potential non-compliance (near misses) with operating procedures or emission limits;

b) handling, investigating, communicating and reporting environmental complaints;

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