Environmental Permitting Understanding the Issues and Pitfalls This report was prepared by: Bryan Hughes and reviewed by: Nigel Leehane
December 2013 Environmental Permitting Understanding the Issues and Pitfalls
TABLE OF CONTENTS
1.0 Introduction 1.1 Background 1.2 Where can you find out more?
2 2 2
2.0 Seven things you should know about environmental permits
3
3.0 Do you require an environmental permit?
5
4.0 Why your environmental permit may be invalid
7
5.0 Eight things to consider before completing an environmental permit application
8
5.1 The Regulated Facility 5.2 The Permitting Process 5.3 The Permit Application Forms 5.4 The Overall Timeframe 5.5 The Overall Cost 5.6 Available Technical Guidance 5.7 Supporting Information and Data 5.8 Outsourcing and In-house capability 6.0 Pitfalls to avoid when applying for an environmental permit 6.1 Non-alignment with Business Strategy 6.2 Insufficient Planning 6.3 Procurement Disconnect 6.4 Non-alignment with “Regulator Thinking� 6.5 Conflicting Legislation
8 8 8 8 9 9 9 10 11 11 11 11 12 12
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
1.0 INTRODUCTION 1.1 Background
1.2 Where can you find out more?
CRA’s clients and newsletter readers often ask if
Please
we have experienced, or have experience with,
on bhughes@cra.co.uk or 0151 207 7848 if you
certain
would like to know more about environmental
issues
relating
to
the
Environmental
contact
the
permitting
Bryan
process,
Hughes
Permitting regime (as applied in England and
permits,
and
the
Wales) or the similar legislation that is applicable in
implications for your organisation. Alternatively,
both Scotland and Northern Ireland.
please visit the environmental permitting web page on our website www.cra.co.uk.
As part of our newsletter service over the past few months, CRA delivered a series of short articles where we explored some of the more common questions that can arise before or during the permitting process and with the environmental permit itself. Following on from those five articles, CRA has now compiled this summary in the form of an e-booklet for your future reference.
Topics
include: 1. Seven
things
you
should
know
about
environmental permits; 2. Do you require an environmental permit? 3. Why your environmental permit may be invalid; 4. Eight things to consider before completing an environmental permit application; and 5. Pitfalls
to
avoid
when
applying
for
an
environmental permit.
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
2.0 SEVEN THINGS YOU SHOULD KNOW ABOUT ENVIRONMENTAL PERMITS Frequently asked questions (FAQs) formed the
carried
basis for this first short article where we explore
locations within UK territorial waters.
out
onshore
and
at
offshore
some of the issues that can arise with the permitting process in England and Wales.
CRA
The Regulations also extend to offshore
gathered what we believe to be seven key features
locations that are beyond territorial waters,
of the permitting process that we think should be
where activities involve radioactive substances.
more widely known.
This is for oil and gas installations within the English area of the continental shelf. The
1. The need for an Environmental Permit is
legislation also applies to activities carried out
determined by the Environmental Permitting
both underground and above ground. The only
Regulations 2010, as amended, that applies
exceptions are in Section 1.1 Part A(1) of
only to England and Wales.
Schedule 1 of the current Regulations where certain offshore platforms are excluded, and
Similar but separate legislation and terminology
Section 3.5 Part B of the Regulations, where
apply in Scotland and Northern Ireland. The
underground activities are excluded in a similar
legislation does not affect the Isle of Man or the
way.
Channel Islands. 4. An 2. Under the updated Regulations, regulated
environmental
permit
is
location
specific; unless applied to mobile plant.
facilities (see later) may overlap, ‘stand alone’ or form part of the operation of other
If premises involving a regulated facility are
facilities.
sold, the permit cannot be moved with the activity to the new location. The permit will need
For example, polluting water discharges that
to be transferred to the new owners or an
also contain radioactive material will be both a
application made for a new permit (preferably
water discharge activity and a radioactive
before implementation of location plans) to
substances activity; waste operations which
allow continuation of the activity at the new or
might lead to a discharge to groundwater will be
proposed location.
both a waste operation and a groundwater 5. A permit application that is deemed to be
activity.
potentially contentious or high profile can 3. The operator of a regulated facility requires an
environmental
permit
for
activities
require two rounds of public participation consultation
before
the
Environment
Agency (EA) finalise a permit.
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
The EA’s considered reasoning behind the
7. The boundary of a permitted facility (the
determination of a permit application and the
Regulated Facility) need not necessarily be
permit itself will become a matter of public
the same as the site boundary.
record.
A permit application and the details
used within it, also form an integral part of that
The boundary of a permitted facility can be
permit.
significantly smaller
than the overall site
boundary. Indeed it can sometimes extend onto 6. The Permitting process can take much longer to conclude than envisaged.
other people’s land and therefore be larger; highlighting that a Permit applies to an operator and not the site or land owner. Where there is
The process can take up to a year or more for
more than one environmental permit at the
the more complex processes. An appropriate
same location, an application can be made to
timeframe should be allowed to obtain an
have them consolidated. If a permit or part of a
environmental permit and to integrate it into
permit is no longer needed, they can be
other developmental plans, needs and permits.
surrendered in order to remove a facility or reduce the land area covered.
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
3.0 DO YOU REQUIRE AN ENVIRONMENTAL PERMIT? In April 2013 the EA updated Regulatory Guidance Note 2 (RGN 2) aimed at helping operators decide
SECTOR
TYPES OF ACTIVITY
if an activity was part of a regulated facility requiring
health products and biocides,
an environmental permit.
explosives, storage in bulk and manufacture involving ammonia.
A ‘regulated facility’ is a collective term used to describe different operations or activities specified
Waste
Incineration and co-incineration,
under the Environmental Permitting Regulations
Management
landfills, and other forms of disposal,
that has been amended annually since 2010. The
waste
temporary
following are ‘types’ of facility that the regulations
or
recovery, underground
storage of hazardous waste and
are directed towards:
also waste water treatment. 1. Installations consisting of one or more activities
Other
Paper,
pulp
and
board
listed in the regulations and other unlisted but
manufacture, carbon, tar and
directly associated activities. These comprise
bitumen,
activities that are the subject of Integrated
printing and textile treatments,
Pollution Prevention and Control (IPPC) and
dyestuffs, timber, rubber, food
activities that are the subject of air pollution
industries,
control only. Activities include:
farming.
SECTOR
coating
activities,
and
intensive
2. Waste management activities not forming part
TYPES OF ACTIVITY
of an installation; including those activities that Energy
Combustion,
gasification,
are technically linked. However, some specific
liquefaction and refining.
waste operations are ‘excluded’ from the
Metals and
Ferrous and non-ferrous metals,
regulations, whilst other waste operations are
Surface
surface
‘exempt’.
Treatment
plastic materials.
Minerals
Cement
treating
metals
and
Those
operations,
which
are
‘excluded’ or ‘exempt’, cannot be regulated in their own right but can potentially form part of
Chemicals
&
lime,
activities
an installation and its associated permit.
involving asbestos, manufacture
Exempt
of glass and glass fibre, other
operations are not deemed to be regulated
minerals, ceramics.
facilities.
Organic chemicals,
and
inorganic
production
of
pharmaceuticals, fertilisers, plant
facilities
and
excluded
waste
3. Mobile plant used to carry out a waste operation or other listed activity.
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
4. Mining operations or more specifically their management of extractive waste. 5. Water
discharge
activities
capacity thresholds specified in the regulations and which is not classed as an installation.
not
involving
9. Activities involving the emission of solvents.
discharges made to foul sewer that come under separate legislation.
Some of the above activities may be carried out within what is termed a “Standard Facility”. This is a
6. Activities involving groundwater.
regulated facility having to meet the requirements of Standard Rules for a Standard Permit.
7. Activities
involving
radioactive
substances,
including mobile radioactive equipment.
An ‘exempt facility’ can only mean an exempt waste operation, an exempt water discharge activity or an
8. Waste incineration plant which is below the
exempt groundwater activity.
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
4.0 WHY YOUR ENVIRONMENTAL PERMIT MAY BE INVALID Once an environmental permit application has been
submitted and “Duly Made” by the EA, this is a formal recognition that an application meets the minimum criteria and scope required by the EA for
Corporate identification and contact details displayed on the permit are incorrect;
The activity, or part of the facility, becomes the responsibility
the Environmental Permitting Regulations.
of
another
party;
Permitted
activities may be within what is termed a The information submitted will be reviewed by the
“Standard Facility”; but the activities fail to meet
Regulators and, through dialogue with the applicant
the conditions of Standard Rules for a Standard
during the determination period, technical aspects
Permit at that facility;
of the information will be refined to a point where the permit is issued as a draft and then as the actual permit itself.
licences,
consents
and
replaced, by a newer environmental permit;
conditions and requirements pertaining to the without permission being obtained from the EA.
permits,
authorisations may have been superseded, or
From that point in time, the
permit are essentially fixed and cannot be changed
Former
New legislation relevant to the regulated facility may
have
been
introduced
and
where
It is important to realise that the fixed nature of a
compliance has not been implemented or
permit and any need to modify it can be an involved
factored into the permit’s demands;
process, largely dependent upon the nature of the change required, and not without significant costs.
The operator carries out activities that are not allowable
within
the
conditions
and
The permit is also a “living document” that should
requirements of the permit or they are outside
be
the scope and/or details presented;
reviewed
periodically
to
ensure
its
appropriateness and accuracy. Indeed, the EA will take it upon itself to review permits approximately
Having licences or registrations, which are
every 4 years, but in the intervening period it is
complimentary to the environmental permit, that
important to monitor the suitability of the permit.
are out of date, not being complied with, or that have been revoked;
Some
common
causes
behind
a
permit
becoming unsuitable include:
Storing, receiving or producing materials that are not within the scope of permit; and
Activities, plant and equipment are changed or added to. Such changes or additions have not been pre-notified to the EA and their agreement
Not carrying out specific actions within required timescales
agreed
with
the
EA.
received beforehand;
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
5.0
EIGHT
THINGS
TO
CONSIDER
BEFORE
COMPLETING
AN
ENVIRONMENTAL PERMIT APPLICATION Continuing with the theme of trying to reduce the
Failure to recognise the type of permit needed or its
risk of having to make avoidable and potentially
significance could add considerable time and cost
costly changes, we now look at a selection of
to a project; it might also introduce elements of risk
issues
e.g. planned or actual site activities having to be
to
consider
before
completing
an
environmental permit application. We assume here
halted as a result.
that a site activity requires an environmental permit as part of a Regulated Facility (see the first article
Before embarking on an application, it is also good
in our series “Seven things you should know about
practice to check that relevant environmental
environmental permits”) and that the activity is not
legislation has not recently changed or about to be
‘excluded’ or ‘exempt’ from the Environmental
changed. The requirements of such changes would
Permitting Regulations. These issues can also be
need to be considered and factored into the
relevant to applications being considered for permit
application as appropriate.
variations where similar matters can arise.
5.3 The Permit Application Forms 5.1 The Regulated Facility There are a range of permit application forms to It
is
important
to
recognise
which
type
of
choose from and also software applications to
environmental permit or variation should be applied
assist with some technical assessments. The
for, particularly the significance of what is being
correct combination of forms should be selected,
proposed; how long the overall process might take;
completed in full, and supported by sufficient
and what technical issues could arise, particularly if
information and data that is both robust and
the application has to integrate the demands and
accurate.
possible conflicts from other legislation such as planning and EIA.
The overall level of information should be at least sufficient to achieve the minimum needs of the EA
5.2 The Permitting Process
and the other regulators who they liaise with as part of the process.
Beyond that, the amount of
Determining the type of environmental permit
information supplied to the EA should be at a level
application and the significance of what is to be
that an organisation is happy to tolerate in terms of
proposed will typically govern the regulatory route
general business risk.
and, to an extent, the time it will take for an operator to be in receipt of an environmental permit
The latter can be especially relevant for the
or variation.
requirements of site condition reports, which will be used as the benchmark when a site is eventually
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
returned to their pre-permit condition at permit
context of the risk caused by the site location and
surrender.
also the robustness of environmental management techniques used or proposed to reduce the threat of
5.4 The Overall Timeframe
pollution and any resulting environmental damage.
The type and significance of a permit application
Notwithstanding the time and cost to prepare a
and the regulatory route will largely determine the
permit application and the demands from that
time taken to be in receipt of an environmental
permit, there will be the various ongoing costs
permit or a variation. That timeframe will also be
associated with, for example, having to gather
governed by other factors, such as the amount of
information and data through rigorous monitoring
accurate information submitted and its robustness;
and sampling.
something that can be audited and/or verified by technical specialists appointed by or available
There will also be the costs attributable to staff
within the EA.
training and ensuring that competency progression is maintained.
It should not be forgotten that
The extent of any further information and data
resources to facilitate the routine and periodic
supplied can also influence the speed at which a
reporting of statutory information and data to the EA
permit application is determined, but it should be
will also be required.
noted that it will usually be information released into the public domain and at a level that an
When there are plans to cease an activity at a
organisation must be able to tolerate in terms of
regulated facility, there will be the fees charged by
business risk.
the EA for permit surrender and there will be the potentially significant costs associated with the
The timeframe will also be governed by the
decommissioning,
decontamination,
availability of specialist EA staff and the number of
and demolition of plant and equipment.
dismantling,
public consultations. As highlighted in our second article
in
this
series
(“Do
you
require
an
5.6 Available Technical Guidance
environmental permit?”), a permit application that is deemed to be potentially contentious or high profile
The information required to demonstrate that
can require two rounds of public consultation that
technical proposals will protect the environment and
adds to the time.
not harm human health is generally explained within an array of guidance, such as: Technical
5.5 The Overall Cost
Sector; Horizontal (cross-sector); and general regulatory. These are underpinned by “BREF
Costs are more than just the EA’s application fee.
notes” issued by the European Community. Where
The cost of a permit application will also incorporate
specific guidance is unavailable, the Environmental
an annual fee that, in most instances, will be
Permitting Regulations allow guidance to be drawn
determined by the environmental risk posed by the
from other recognised sources.
activity at a particular site. This rating will be in the
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
When a permit application is being prepared, it is
planning
process
should,
in
turn,
recognise
good practice to check that relevant guidance has
potential conflicts and information offered by the
not been updated or superseded during that time.
environmental permitting process.
New or updated guidance has been known to “arrive
unannounced”
with
resulting
permit
5.8 Outsourcing and In-house Capability
applications having to be reworked. An application using superseded guidance risks being rejected
In planning for a permit application and the
and the associated fees to the EA being lost.
permitting process, it is considered prudent to continually reflect on what in-house resources will
5.7 Supporting Information and Data
be both available, and also capable of, effectively supplying information needed to fully support a
There can be a direct ‘tie-in’ between permit
permit application.
applications and the demands of Environmental Impact Assessments (EIA) from the Planning
It is important to identify the external support and
Authority, as well as other regulatory regimes. It is
/or capability that will be needed when/where there
as important to identify the potential conflicts posed
are shortfalls. The timely availability of an internal
by these processes, as it is to use the information
resource will vary from operator to operator, but
that they offer.
some level of external support could well be required
for
many
permit
applications.
Similarly, it could be argued that the EIA and
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
6.0 PITFALLS TO AVOID WHEN APPLYING FOR AN ENVIRONMENTAL PERMIT
The following suggestions can be utilised to avoid
successful permit application.
Full consideration
potential pitfalls that may arise before, or when
should be given to operational requirements,
applying for, an Environmental Permit or Variation.
resource availability (both internal and external;
Such pitfalls, which are avoidable, can result in:
including the need for specialist and general technical skills); budget availability including spend
Delays to the project programme;
Permit applications that fail or which are
profiles/phasing and procurement (see below).
delayed, e.g. not Duly Made;
An
A need for retrofitted equipment etc; and
undertaken to identify the resulting impacts on or
Additional costs that could be significant.
from other areas of the business. Examples might
assessment
of
business
risk
should
be
include the effects of:
6.1 Non-alignment Strategy
with
Business
Other legislation such as general Health & Safety requirements;
Considering
the
Environmental
need
Permit
to
or
embark
a
Permit
on
an
Variation
Environmental Damage Regulations (where
application, like any other decision-making process
permit holders have strict liability);
in business management, should:
Other environmental legislation such as the
Legislation and/or guidance that has been recently updated or revised or which is about
Form
part
of
an
organisation’s
ongoing
assessment and perception of business risk;
to be changed;
Be seen as part of an investment cost and not
e.g. Trade Effluent Discharge consents for
necessarily as a Regulatory burden;
discharges made to foul sewer, which are the
Fully
responsibility of the appropriate sewerage
consider
and
assess
“make-buy”
decisions for operations at the site; and,
The responsibilities of other regulatory bodies,
Determine
the
other
requirements
undertaker; and and
Operational factors including lack of access to
potential conflicts that may need to be factored
and/or inadequate observational control of
into the above as a result.
areas supporting core operations, in particular outside of operational hours and those areas
6.2 Insufficient Planning
not normally manned.
As with any project, timely and effective planning is absolutely key to preparing a strong and potentially
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
6.3 Procurement Disconnect
6.4 Non-alignment Thinking”
with
“Regulator
Part of the Regulator’s determination of a permit application
is
to
decide
whether
plant
and
It is generally advisable for an operator to have a
equipment will continue to meet the technical
pre-application discussion with the Regulator before
requirements of “Indicative BAT” (Best Available
preparing and submitting an application.
Techniques) as a minimum.
This
Notwithstanding
approach will help with getting a permit or variation
maintenance and installation requirements and the
application “right first time” and raise issues of
need for an operator to have trained and capable
concern early; ultimately reducing time and cost.
staff, it is considered sensible to review all
The key point here is to consider at what point
significant
should that meeting occur, who needs to be
plant
procurement
needs
against
“Indicative BAT” as applicable to each sector.
involved, and what information will or may be needed (see also below)?
It should be noted that guidance published for BAT in particular
(not forgetting
Considering a single point of contact for the
European BREF notes), can be outdated by the
industrial
Regulator is also worthwhile and indeed is required
changing pace of technology. At an early stage,
on the application form. That person does not need
the procurement process should determine if newer
to be part of the operator’s internal team but should
technologies can fulfil the same operational duty
be reasonably available during normal working
whilst
hours and effect good communication.
enhancing
sectors
environmental
protection.
Regulators can and do challenge the selection of plant
and
equipment
where
there
is
an
environmental impact!
The first and possibly subsequent meetings will typically be with the local inspector (one may have been appointed) and involve regional technical
It must not be forgotten that any significant change
specialists as appropriate. It is worth noting that
from a production perspective, which results in the
views
alteration of emissions or other environmental
Regulators concerning applications, particularly for
impacts, will need to be authorised by the
installations, have been known to be overturned by
Regulators. Again, a similar early review of BAT is
the Regulator’s central permitting team.
put
forward
locally
or
regionally
by
best undertaken as part of the procurement process and before commitment is made to purchase any plant and equipment.
6.2 Conflicting legislation
Organisations should be
satisfied that such plant and equipment will satisfy
There can be a direct ‘tie-in’ between Permit
regulatory scrutiny throughout the whole permitting
applications and the demands of other directly
process.
related regulatory regimes such as COMAH, EIA, and the planning process (planning conditions from the Planning Authority). It is as important to identify potential conflicts posed by these processes.
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December 2013 Environmental Permitting Understanding the Issues and Pitfalls
The key point here is that the pitfalls may be
complexities and delays to a permit application.
associated with other legislation. It has been known
This is applicable to organisations and individuals
for unexpected pieces of legislation to potentially
convicted under, but not limited to, legislation linked
conflict with the requirements of permit applications.
to environmental protection.
These have included requirements,
Port
Civil Aviation Authority
Authority
needs
(including
The above reinforces the need to meet the
navigational and pilotage demands), and legislation
Regulator early in the process and to remember
that is applicable to neighbouring facilities, which on
that when a Permit application is being prepared, it
one occasion included counter terrorist measures!
is very good practice to check that all relevant = guidance has not been updated or superseded with
It should also be noted that being convicted of a
new or updated editions.
relevant offence under other legislation can cause
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