UK: Environmental Permitting: Regulatory Simplification?

A new environmental permitting regime was introduced in England and Wales on 6 April 2008 combining integrated pollution prevention and control and waste management activities.

Introduction

On 6 April 2008, a new regulatory framework for environmental permitting was introduced in England and Wales in the form of the environmental permitting regime ("EPR")¹. The EPR regime attempts to simplify the administration of environmental permitting and create a risk based proportionate system of regulation. The EPR is the government's response to the Better Regulation Taskforce which identified environmental permitting and the administration involved in permit applications as an area in need of regulatory simplification. In particular, a principal aim is, where possible, to reduce the number of permits and regulators governing sites. A number of regimes have grown up independently of each other, with the common purpose of protecting the environment. The idea is to create a platform for multiple environmental regimes to adopt the same administrative processes and for other environmental permitting to be added in the future (e.g. water discharge consenting, groundwater abstraction, radioactive substance regulation, the Batteries and Mining Waste Directives). Initially only two key regimes have been brought within the EPR: (i) PPC permits derived from the IPPC Directive (covering various heavy and some light industrial installations /operations); and (ii) waste management licences ("WMLs") for waste management activities. In addition, the permitting elements of several EU Directives are re-transposed by the EPR².

Administrative Changes

The EPR creates a uniform permit called administration process for PPC Permits and WMLs. There is one process of application, surrender, variation, transfer and appeal. The applicable standards of the historic permits' regimes will remain largely unchanged; for example the principle of Best Available Techniques will continue to apply to the PPC activities and the duty of care on the waste producer will continue to apply to waste activities. However, there will be some changes to the standards, for example in the availability of defences.

Regulatory Simplification & Transitional Arrangements

As from 6 April 2008, all PPC permits and WMLs automatically became environmental permits as a matter of law without new applications being required. A number of the associated administrative changes introduced could generate some practical benefits in the future by the creation of:

(i) a process by which one regulator can be substituted with another, so that a site with multiple facilities/operations is regulated only by one regulator (i.e. either the environment agency or the local authority) rather than two.

(ii) a process by which one permit can govern a site with multiple facilities /operations (which is facilitated by (i)): in the past, multiple permits might have been required for one site e.g. WML, PPC permit and Landfill permit.

(iii) a system of standard permits for certain activities/operations - standard permits have standard conditions published by the Government and currently only exist in relation to certain low to medium risk waste management activities. They will be easier and quicker to apply for, as the conditions will already have been subject to consultation.

Another significant change is that the permit holder must now be the operator of the facility. In the past, particularly in relation to waste facilities, the permit holder may have brought contractors in to operate the facility on its behalf. In circumstances where such an arrangement is still in place as at 6 April 2008, the non-operating permit holder will be treated as the operator for the purposes of the EPR but the permit may need to be transferred to the actual operator in due course.

The reduction in regulatory burden is welcome insofar as it reduces the need for multiple and often overlapping regulatory permits and controls. However, the standards applying to the substance of EPR permits for different activities still vary widely and the EPR regulations are, like their predecessors, complex and heavily reliant on Government guidance for interpretation. Consideration of including other regimes within EPR should be undertaken soon so that the benefits of "one-stop shop" permitting can be fully realised.

Footnotes

1. Under the Environmental Permitting (England and Wales) Regulations 2007, SI 35384/2007.

2. the Waste Framework Directive, the Landfill Directive, the End of Life Vehicles Directive, the WEEE Directive, the Waste Incineration Directive, the Solvents Emission Directive, the Large

Combustion Plants Directive, the Asbestos Directive, the Titanium Dioxide Directive and the Petrol Vapour Recovery Directive.

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