Environmental Permitting - Understanding the Issues and Pitfalls

Page 1

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

1


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.

2


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.

3


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.

4


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.

5


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.

6


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;

7


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

8


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

9


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

10


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

11


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.

12


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

13


CRA Europe Synergy House, Unit 1, Calverton Business Park, Hoyle Road, Calverton, Nottingham, UK NG14 6QL T: +44 (0) 115 965 6700 E: info@cra.co.uk

F: +44 (0) 115 965 5282 W: www.cra.co.uk

Bringing sustainability and safety to the world’s most complex environments


Turn static files into dynamic content formats.

Create a flipbook
Issuu converts static files into: digital portfolios, online yearbooks, online catalogs, digital photo albums and more. Sign up and create your flipbook.