Regulating risk

The government is becoming ever keener on risk assessment as the basis of environmental regulation, but no one could accuse it of taking too many risks in applying it to local air pollution control (LAPC). The old Department for the Environment, Transport and the Regions spelt out its proposals for risk-based inspection frequencies for the sector as long ago as November 2000, but the system only took effect on 1 April this year.

Four options were proposed, and the one that found favour is the basis of the system adopted. Trials were undertaken by consultants with 14 local authorities at 173 processes in 39 different sectors, and further consultations followed once results were processed. The era when all LAPC-regulated processes receive a basic minimum of two inspections a year – in theory at any rate – is over. From now on, all regulated processes (except small waste oil burners and service stations) will be classified as high, medium or low risk and will receive the following minimum levels of inspection:

• High – two “full” inspections annually, during which the officer must examine full compliance with conditions and look at process or management changes. There would also be at least one “check” inspection to follow up concerns and extra inspections if needed;

• Medium – one “full” plus one “check” and extra inspections as required; and

• Low – one “full” plus extra inspections as required

Operator/regulator interaction

The assessment process to decide these rankings is crucial. It will involve a measure of physical assessment and is intended to have the advantage of allowing operators and regulators a chance to interact. DEFRA has published extensive guidance on what is intended to be a two-stage process: an environmental impact appraisal followed by an operator performance appraisal. Each will have a scoring process with numerical scores given at each stage, leading to a rating which DEFRA hopes will be as objective as possible, and to iron out discrepancies between individual assessors – inevitable when over 400 regulatory bodies are involved.

DEFRA believes, however, that councils should find nothing conceptually new about the systems, as they already use risk assessment in areas such as food inspection and health and safety. It will also be linked to other initiatives like best value and comparative performance assessment.

Local authorities will normally adopt a four-step process toward applying risk assessment to individual operators, on which the amount of regulation they receive will depend.

First, the council carry out desk studies of all the processes under their control. These will be based on the information they already hold and officers’ experience of them. It is likely that copies of the scores given to the various attributes will be sent to operators to provide a basis for discussion during the second stage of the process, a site visit. The scores will be discussed and council officers should indicate actions the operator could take to reduce their scores.

In the third stage, officers will apply the methodology to determine the level of regulatory effort required. Finally, the scores for each process will be subject to regular review, at least annually. Scores ought to be reviewed following visits, authorisation changes, complaints or enforcement action.

Minimising regulation

So what can operators do to keep their scores down and ensure they minimise the time they spend playing uncomfortable host to regulators? There are several things beyond the obvious stay-out-of-trouble policy – improving processes and pursuit of compliance with BATNEEC requirements for their sector. Adoption of some kind of environmental management system is also likely to help.

Reduced charges for low-risk operators would be another carrot, but sadly current legislation does not allow it. DEFRA hopes to remedy this in the not-too-distant future.

The logical approach

The Chartered Institute of Environmental Health (CIEH) is intending to publish a new version of its management guide to LAPC, revised to take account of the new system in June. It believes the new system will settle down quickly.

“Everyone recognises the logic behind it,” says CIEH principal policy officer Howard Price.

There have been suggestions that the new system will result in too little regulation for low-risk operators, but DEFRA is happy they have things about right. But in any case, the department is planning a review after the first year of the new system when any such failures can be tackled.