Environmental Permitting - Understanding the Issues and Pitfalls

Understanding the Issues and Pitfalls

This report was prepared by: Bryan Hughes and reviewed by: Nigel Leehane

Environmental Permitting

Environmental Permitting Understanding the Issues and Pitfalls

December 2013

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TABLE OF CONTENTS

1.0 Introduction

1.1 Background

1.2 Where can you find out more?

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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

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

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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

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1.0 INTRODUCTION

1.1 Background

CRA’s clients and newsletter readers often ask if

we have experienced, or have experience with,

certain issues relating to the Environmental

Permitting regime (as applied in England and

Wales) or the similar legislation that is applicable in

both Scotland and Northern Ireland.

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.

1.2 Where can you find out more?

Please contact Bryan Hughes

on [email protected] or 0151 207 7848 if you

would like to know more about environmental

permits, the permitting process, and the

implications for your organisation. Alternatively,

please visit the environmental permitting web page

on our website www.cra.co.uk.

mailto:[email protected]

http://www.cra.co.uk/service/environmental-permitting

http://www.cra.co.uk/


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2.0 SEVEN THINGS YOU SHOULD KNOW ABOUT ENVIRONMENTAL

PERMITS

Frequently asked questions (FAQs) formed the

basis for this first short article where we explore

some of the issues that can arise with the

permitting process in England and Wales. CRA

gathered what we believe to be seven key features

of the permitting process that we think should be

more widely known.

1. The need for an Environmental Permit is

determined by the Environmental Permitting

Regulations 2010, as amended, that applies

only to England and Wales.

Similar but separate legislation and terminology

apply in Scotland and Northern Ireland. The

legislation does not affect the Isle of Man or the

Channel Islands.

2. Under the updated Regulations, regulated

facilities (see later) may overlap, ‘stand

alone’ or form part of the operation of other

facilities.

For example, polluting water discharges that

also contain radioactive material will be both a

water discharge activity and a radioactive

substances activity; waste operations which

might lead to a discharge to groundwater will be

both a waste operation and a groundwater

activity.

3. The operator of a regulated facility requires

an environmental permit for activities

carried out onshore and at offshore

locations within UK territorial waters.

The Regulations also extend to offshore

locations that are beyond territorial waters,

where activities involve radioactive substances.

This is for oil and gas installations within the

English area of the continental shelf. The

legislation also applies to activities carried out

both underground and above ground. The only

exceptions are in Section 1.1 Part A(1) of

Schedule 1 of the current Regulations where

certain offshore platforms are excluded, and

Section 3.5 Part B of the Regulations, where

underground activities are excluded in a similar

way.

4. An environmental permit is location

specific; unless applied to mobile plant.

If premises involving a regulated facility are

sold, the permit cannot be moved with the

activity to the new location. The permit will need

to be transferred to the new owners or an

application made for a new permit (preferably

before implementation of location plans) to

allow continuation of the activity at the new or

proposed location.

5. A permit application that is deemed to be

potentially contentious or high profile can

require two rounds of public participation

consultation before the Environment

Agency (EA) finalise a permit.


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The EA’s considered reasoning behind the

determination of a permit application and the

permit itself will become a matter of public

record. A permit application and the details

used within it, also form an integral part of that

permit.

6. The Permitting process can take much

longer to conclude than envisaged.

The process can take up to a year or more for

the more complex processes. An appropriate

timeframe should be allowed to obtain an

environmental permit and to integrate it into

other developmental plans, needs and permits.

7. The boundary of a permitted facility (the

Regulated Facility) need not necessarily be

the same as the site boundary.

The boundary of a permitted facility can be

significantly smaller than the overall site

boundary. Indeed it can sometimes extend onto

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

more than one environmental permit at the

same location, an application can be made to

have them consolidated. If a permit or part of a

permit is no longer needed, they can be

surrendered in order to remove a facility or

reduce the land area covered.


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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

if an activity was part of a regulated facility requiring

an environmental permit.

A ‘regulated facility’ is a collective term used to

describe different operations or activities specified

under the Environmental Permitting Regulations

that has been amended annually since 2010. The

following are ‘types’ of facility that the regulations

are directed towards:

1. Installations consisting of one or more activities

listed in the regulations and other unlisted but

directly associated activities. These comprise

activities that are the subject of Integrated

Pollution Prevention and Control (IPPC) and

activities that are the subject of air pollution

control only. Activities include:

SECTOR TYPES OF ACTIVITY

Energy Combustion, gasification,

liquefaction and refining.

Metals and

Surface

Treatment

Ferrous and non-ferrous metals,

surface treating metals and

plastic materials.

Minerals Cement & lime, activities

involving asbestos, manufacture

of glass and glass fibre, other

minerals, ceramics.

Chemicals Organic and inorganic

chemicals, production of

pharmaceuticals, fertilisers, plant

SECTOR TYPES OF ACTIVITY

health products and biocides,

explosives, storage in bulk and

manufacture involving ammonia.

Waste

Management

Incineration and co-incineration,

landfills, and other forms of

disposal, waste recovery,

temporary or underground

storage of hazardous waste and

also waste water treatment.

Other Paper, pulp and board

manufacture, carbon, tar and

bitumen, coating activities,

printing and textile treatments,

dyestuffs, timber, rubber, food

industries, and intensive

farming.

2. Waste management activities not forming part

of an installation; including those activities that

are technically linked. However, some specific

waste operations are ‘excluded’ from the

regulations, whilst other waste operations are

‘exempt’. Those operations, which are

‘excluded’ or ‘exempt’, cannot be regulated in

their own right but can potentially form part of

an installation and its associated permit.

Exempt facilities and excluded waste

operations are not deemed to be regulated

facilities.

3. Mobile plant used to carry out a waste

operation or other listed activity.


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4. Mining operations or more specifically their

management of extractive waste.

5. Water discharge activities not involving

discharges made to foul sewer that come under

separate legislation.

6. Activities involving groundwater.

7. Activities involving radioactive substances,

including mobile radioactive equipment.

8. Waste incineration plant which is below the

capacity thresholds specified in the regulations

and which is not classed as an installation.

9. Activities involving the emission of solvents.

Some of the above activities may be carried out

within what is termed a “Standard Facility”. This is a

regulated facility having to meet the requirements of

Standard Rules for a Standard Permit.

An ‘exempt facility’ can only mean an exempt waste

operation, an exempt water discharge activity or an

exempt groundwater activity.


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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

the Environmental Permitting Regulations.

The information submitted will be reviewed by the

Regulators and, through dialogue with the applicant

during the determination period, technical aspects

of the information will be refined to a point where

the permit is issued as a draft and then as the

actual permit itself. From that point in time, the

conditions and requirements pertaining to the

permit are essentially fixed and cannot be changed

without permission being obtained from the EA.

It is important to realise that the fixed nature of a

permit and any need to modify it can be an involved

process, largely dependent upon the nature of the

change required, and not without significant costs.

The permit is also a “living document” that should

be reviewed periodically to ensure its

appropriateness and accuracy. Indeed, the EA will

take it upon itself to review permits approximately

every 4 years, but in the intervening period it is

important to monitor the suitability of the permit.

Some common causes behind a permit

becoming unsuitable include:

Activities, plant and equipment are changed or

added to. Such changes or additions have not

been pre-notified to the EA and their agreement

received beforehand;

Corporate identification and contact details

displayed on the permit are incorrect;

The activity, or part of the facility, becomes the

responsibility of another party; Permitted

activities may be within what is termed a

“Standard Facility”; but the activities fail to meet

the conditions of Standard Rules for a Standard

Permit at that facility;

Former permits, licences, consents and

authorisations may have been superseded, or

replaced, by a newer environmental permit;

New legislation relevant to the regulated facility

may have been introduced and where

compliance has not been implemented or

factored into the permit’s demands;

The operator carries out activities that are not

allowable within the conditions and

requirements of the permit or they are outside

the scope and/or details presented;

Having licences or registrations, which are

complimentary to the environmental permit, that

are out of date, not being complied with, or that

have been revoked;

Storing, receiving or producing materials that

are not within the scope of permit; and

Not carrying out specific actions within required

timescales agreed with the EA.


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5.0 EIGHT THINGS TO CONSIDER BEFORE COMPLETING AN

ENVIRONMENTAL PERMIT APPLICATION

Continuing with the theme of trying to reduce the

risk of having to make avoidable and potentially

costly changes, we now look at a selection of

issues to consider before completing an

environmental permit application. We assume here

that a site activity requires an environmental permit

as part of a Regulated Facility (see the first article

in our series “Seven things you should know about

environmental permits”) and that the activity is not

‘excluded’ or ‘exempt’ from the Environmental

Permitting Regulations. These issues can also be

relevant to applications being considered for permit

variations where similar matters can arise.

5.1 The Regulated Facility

It is important to recognise which type of

environmental permit or variation should be applied

for, particularly the significance of what is being

proposed; how long the overall process might take;

and what technical issues could arise, particularly if

the application has to integrate the demands and

possible conflicts from other legislation such as

planning and EIA.

5.2 The Permitting Process

Determining the type of environmental permit

application and the significance of what is to be

proposed will typically govern the regulatory route

and, to an extent, the time it will take for an

operator to be in receipt of an environmental permit

or variation.

Failure to recognise the type of permit needed or its

significance could add considerable time and cost

to a project; it might also introduce elements of risk

e.g. planned or actual site activities having to be

halted as a result.

Before embarking on an application, it is also good

practice to check that relevant environmental

legislation has not recently changed or about to be

changed. The requirements of such changes would

need to be considered and factored into the

application as appropriate.

5.3 The Permit Application Forms

There are a range of permit application forms to

choose from and also software applications to

assist with some technical assessments. The

correct combination of forms should be selected,

completed in full, and supported by sufficient

information and data that is both robust and

accurate.

The overall level of information should be at least

sufficient to achieve the minimum needs of the EA

and the other regulators who they liaise with as part

of the process. Beyond that, the amount of

information supplied to the EA should be at a level

that an organisation is happy to tolerate in terms of

general business risk.

The latter can be especially relevant for the

requirements of site condition reports, which will be

used as the benchmark when a site is eventually


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returned to their pre-permit condition at permit

surrender.

5.4 The Overall Timeframe

The type and significance of a permit application

and the regulatory route will largely determine the

time taken to be in receipt of an environmental

permit or a variation. That timeframe will also be

governed by other factors, such as the amount of

accurate information submitted and its robustness;

something that can be audited and/or verified by

technical specialists appointed by or available

within the EA.

The extent of any further information and data

supplied can also influence the speed at which a

permit application is determined, but it should be

noted that it will usually be information released into

the public domain and at a level that an

organisation must be able to tolerate in terms of

business risk.

The timeframe will also be governed by the

availability of specialist EA staff and the number of

public consultations. As highlighted in our second

article in this series (“Do you require an

environmental permit?”), a permit application that is

deemed to be potentially contentious or high profile

can require two rounds of public consultation that

adds to the time.

5.5 The Overall Cost

Costs are more than just the EA’s application fee.

The cost of a permit application will also incorporate

an annual fee that, in most instances, will be

determined by the environmental risk posed by the

activity at a particular site. This rating will be in the

context of the risk caused by the site location and

also the robustness of environmental management

techniques used or proposed to reduce the threat of

pollution and any resulting environmental damage.

Notwithstanding the time and cost to prepare a

permit application and the demands from that

permit, there will be the various ongoing costs

associated with, for example, having to gather

information and data through rigorous monitoring

and sampling.

There will also be the costs attributable to staff

training and ensuring that competency progression

is maintained. It should not be forgotten that

resources to facilitate the routine and periodic

reporting of statutory information and data to the EA

will also be required.

When there are plans to cease an activity at a

regulated facility, there will be the fees charged by

the EA for permit surrender and there will be the

potentially significant costs associated with the

decommissioning, decontamination, dismantling,

and demolition of plant and equipment.

5.6 Available Technical Guidance

The information required to demonstrate that

technical proposals will protect the environment and

not harm human health is generally explained

within an array of guidance, such as: Technical

Sector; Horizontal (cross-sector); and general

regulatory. These are underpinned by “BREF

notes” issued by the European Community. Where

specific guidance is unavailable, the Environmental

Permitting Regulations allow guidance to be drawn

from other recognised sources.


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When a permit application is being prepared, it is

good practice to check that relevant guidance has

not been updated or superseded during that time.

New or updated guidance has been known to

“arrive unannounced” with resulting permit

applications having to be reworked. An application

using superseded guidance risks being rejected

and the associated fees to the EA being lost.

5.7 Supporting Information and Data

There can be a direct ‘tie-in’ between permit

applications and the demands of Environmental

Impact Assessments (EIA) from the Planning

Authority, as well as other regulatory regimes. It is

as important to identify the potential conflicts posed

by these processes, as it is to use the information

that they offer.

Similarly, it could be argued that the EIA and

planning process should, in turn, recognise

potential conflicts and information offered by the

environmental permitting process.

5.8 Outsourcing and In-house Capability

In planning for a permit application and the

permitting process, it is considered prudent to

continually reflect on what in-house resources will

be both available, and also capable of, effectively

supplying information needed to fully support a

permit application.

It is important to identify the external support and

/or capability that will be needed when/where there

are shortfalls. The timely availability of an internal

resource will vary from operator to operator, but

some level of external support could well be

required for many permit applications.


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6.0 PITFALLS TO AVOID WHEN APPLYING FOR AN ENVIRONMENTAL

PERMIT

The following suggestions can be utilised to avoid

potential pitfalls that may arise before, or when

applying for, an Environmental Permit or Variation.

Such pitfalls, which are avoidable, can result in:

Delays to the project programme;

Permit applications that fail or which are

delayed, e.g. not Duly Made;

A need for retrofitted equipment etc; and

Additional costs that could be significant.

6.1 Non-alignment with Business

Strategy

Considering the need to embark on an

Environmental Permit or a Permit Variation

application, like any other decision-making process

in business management, should:

Form part of an organisation’s ongoing

assessment and perception of business risk;

Be seen as part of an investment cost and not

necessarily as a Regulatory burden;

Fully consider and assess “make-buy”

decisions for operations at the site; and,

Determine the other requirements and

potential conflicts that may need to be factored

into the above as a result.

6.2 Insufficient Planning

As with any project, timely and effective planning is

absolutely key to preparing a strong and potentially

successful permit application. Full consideration

should be given to operational requirements,

resource availability (both internal and external;

including the need for specialist and general

technical skills); budget availability including spend

profiles/phasing and procurement (see below).

An assessment of business risk should be

undertaken to identify the resulting impacts on or

from other areas of the business. Examples might

include the effects of:

Other legislation such as general Health &

Safety requirements;

Other environmental legislation such as the

Environmental Damage Regulations (where

permit holders have strict liability);

Legislation and/or guidance that has been

recently updated or revised or which is about

to be changed;

The responsibilities of other regulatory bodies,

e.g. Trade Effluent Discharge consents for

discharges made to foul sewer, which are the

responsibility of the appropriate sewerage

undertaker; and

Operational factors including lack of access to

and/or inadequate observational control of

areas supporting core operations, in particular

outside of operational hours and those areas

not normally manned.


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6.3 Procurement Disconnect

Part of the Regulator’s determination of a permit

application is to decide whether plant and

equipment will continue to meet the technical

requirements of “Indicative BAT” (Best Available

Techniques) as a minimum. Notwithstanding

maintenance and installation requirements and the

need for an operator to have trained and capable

staff, it is considered sensible to review all

significant plant procurement needs against

“Indicative BAT” as applicable to each sector.

It should be noted that guidance published for BAT

in particular industrial sectors (not forgetting

European BREF notes), can be outdated by the

changing pace of technology. At an early stage,

the procurement process should determine if newer

technologies can fulfil the same operational duty

whilst enhancing environmental protection.

Regulators can and do challenge the selection of

plant and equipment where there is an

environmental impact!

It must not be forgotten that any significant change

from a production perspective, which results in the

alteration of emissions or other environmental

impacts, will need to be authorised by the

Regulators. Again, a similar early review of BAT is

best undertaken as part of the procurement process

and before commitment is made to purchase any

plant and equipment. Organisations should be

satisfied that such plant and equipment will satisfy

regulatory scrutiny throughout the whole permitting

process.

6.4 Non-alignment with “Regulator

Thinking”

It is generally advisable for an operator to have a

pre-application discussion with the Regulator before

preparing and submitting an application. This

approach will help with getting a permit or variation

application “right first time” and raise issues of

concern early; ultimately reducing time and cost.

The key point here is to consider at what point

should that meeting occur, who needs to be

involved, and what information will or may be

needed (see also below)?

Considering a single point of contact for the

Regulator is also worthwhile and indeed is required

on the application form. That person does not need

to be part of the operator’s internal team but should

be reasonably available during normal working

hours and effect good communication.

The first and possibly subsequent meetings will

typically be with the local inspector (one may have

been appointed) and involve regional technical

specialists as appropriate. It is worth noting that

views put forward locally or regionally by

Regulators concerning applications, particularly for

installations, have been known to be overturned by

the Regulator’s central permitting team.

6.2 Conflicting legislation

There can be a direct ‘tie-in’ between Permit

applications and the demands of other directly

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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The key point here is that the pitfalls may be

associated with other legislation. It has been known

for unexpected pieces of legislation to potentially

conflict with the requirements of permit applications.

These have included Civil Aviation Authority

requirements, Port Authority needs (including

navigational and pilotage demands), and legislation

that is applicable to neighbouring facilities, which on

one occasion included counter terrorist measures!

It should also be noted that being convicted of a

relevant offence under other legislation can cause

complexities and delays to a permit application.

This is applicable to organisations and individuals

convicted under, but not limited to, legislation linked

to environmental protection.

The above reinforces the need to meet the

Regulator early in the process and to remember

that when a Permit application is being prepared, it

is very good practice to check that all relevant =

guidance has not been updated or superseded with

new or updated editions.

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Environmental Permitting - Understanding the Issues and Pitfalls