Environmental permits: what you need to know
A new environmental permitting regime is due to come into force next year which aims to bring more flexibility to waste operators. Eluned Watson looks at what's involvedThe current system of regulation through waste management licensing (WMLs) and PPC permitting (PPC) is to be overhauled by a new environmental permitting regime (EP regime) and the introduction of a single environmental permit. This is underpinned by the draft Environmental Permitting (England and Wales) Regulations (the EP regulations) which come into force on 6 April 2008.
What is the new environmental permitting programme?
The environmental permitting programme (EPP) was launched in April 2005 and is designed to reduce costs for business and regulators by streamlining the PPC and WML systems into a common permitting system. The fourth consultation on EPP in relation to a second set of draft guidance notes (referred to as directive specific guidance) closes on 10 October 2007.
How different will the new regime be?
The EP regime only deals with the process of obtaining permits - for example, applying for, varying, transferring, surrendering or revoking permits. It will not change the standards an operator is required to meet or the activities that are regulated. The EP regime will bring increased flexibility to waste operators allowing them to:
- transfer or surrender their environmental permit partially or completely
- extend the licensed area of their site by variation
- more easily change the terms of their permit when activities change or new activities are started
- demonstrate technical compliance through a choice of schemes, including a certificate of technical competence.
Currently, under the WML regime, the licence holder should be in occupation of the land, but does not necessarily need to be the person who operates the plant. Under the EP regulations, the only person who can obtain or hold an environmental permit is the person in control of the regulated facility - the operator.
How will the operator for environmental permits be determined?
The existing IPPC guidance on Understanding the meaning of 'operator' under IPPC will be used as a model for determining who the operator is for environmental permits. It will be necessary to assess whether the operator or proposed operator has the authority and ability to manage site operations through having day-to-day control of plant operation and to ensure that all permit conditions that are imposed or which apply are effectively complied with.
In the case of a local authority waste site being operated by a private company, the guidance concludes that: "in this example only the private company could be the operator as the local authority, despite owning the site and equipment and setting minimum standards of performance would be unable to satisfy the test that it was in control of the operations at the landfill".
What types of permits will be issued?
The EP regulations provide for two types of permits:
- standard permits for low risk PPC and WML activities which will have only one standard condition which refers to a fixed set of requirements that a permit holder needs to meet (known as general binding rules)
- bespoke permits for activities that are of higher risk which will incorporate site specific conditions set down by the Environment Agency.
The EP regulations allow, in some cases, for numerous facilities to be regulated under a single environmental permit - for example, if there is one operator and more than one regulated facility or part B installation on the same site. An environmental permit cannot cover facilities regulated by different regulators - this means a permit cannot cover a part A1 facility (regulated by the EA) and a part B installation (regulated by the local authority).
What happens to existing PPC permits and WMLs?
When the EP regulations come into force in April 2008, all existing WMLs and PPC permits will automatically become environmental permits. If an application for a PPC permit or WML is still awaiting determination at the date the EP regulations come into force, provided the application is granted, the permit will be an environmental permit.
Subject to further explanation of this as and when the EP regulations and the guidance are finalised, it seems that for sites where local authorities currently hold the WML and where those sites pass across to a private contractor, the local authority will remain the operator for the purposes of the environmental permit until such time as a transfer is effected.
How will the new regime affect local authorities as a regulator under the PPC regime?
Local authorities regulate over 23,000 installations under the PPC Regulations. Most (Part B installations) are regulated for air emissions and some 400 (Part A2 Installations) are subject to integrated PPC. Under the EP Regime, LAs will continue to regulate Part A2 installations under the LA-PPC Regime and Part B installations under the LA-PPC Regime.
What guidance is available to local authorities?
The key document advising local authorities is the 2003 version of the general guidance manual on policy and procedures for A2 and B installations. Defra is running a separate consultation relating to changes to the manual needed to reflect the new EP regulations.
The revised manual includes information on the arrangements for one regulator per site, expands advice on operator competence and local authority good practice, and provides guidance on the relationship between Defra and local authorities/industry.
Eluned Watson is a solicitor in the planning and environmental team at Pinsent Masons