What does coronavirus (COVID-19) mean for environmental compliance in areas such as environmental permitting?

What does coronavirus (COVID-19) mean for environmental compliance in areas such as environmental permitting?

What issues of compliance might arise?

Permit holders are generally expected to comply in full with the terms and conditions of their permit. However, due to the disruption caused by the coronavirus (COVID-19), regulators acknowledge that such compliance may not be possible. There may be necessary changes in operation, such as changes to production of items necessary to deal with the COVID-19 crisis.

Staff shortages may disrupt continued business operation, and may prevent compliance with the requirements of an environmental management system. Staff shortage may also affect key competencies. Waste management issues due to changes in collection and/or the generation of new types of waste, could also affect compliance.

How are regulators responding?

Regulators need to consider the welfare of their own staff, alongside the disruption to their own business processes as a result of COVID-19. Relevant regulators are now clarifying their position on compliance through letters, guidance and in the case of the Environment Agency (EA), the publication of COVID-19 regulatory position statements (RPSs).

On the whole, regulators are tending towards a relaxation of regulation where strict compliance is not possible. However, according to the chemical safety and regulatory intelligence network Chemical Watch, regulations concerning pollution and the control of chemicals in products is ‘ramping up, not slowing down’. For further information see: Regulatory environment ramping up amid Covid-19 pandemic, say industry experts.

Environment Agency

To help businesses cope with the disruption caused by COVID-19, the EA has published a series of temporary COVID-19 RPSs. These COVID-19 RPSs are intended to help minimise risks to the environment and human health where compliance with certain regulatory requirements is not possible due to COVID-19. They also cover specific circumstances where the EA are relaxing normal regulatory requirements to avoid increasing risks to the environment or human health during the particular circumstances of COVID-19. The following RPSs have been issued :

Storing or treating COVID-19 cleansing waste at a healthcare waste management facility: RPS C1

This COVID-19 RPS allows for the storage and treatment of waste from cleaning people or places infected or potentially infected with COVID-19, in addition to the permitted waste at a healthcare waste management facility.

Exceeding waste storage limits at permitted sites because of COVID-19: RPS C2

Under this COVID-19 RPS, waste storage limits can be exceeded without applying for a permit variation. It only applies to waste authorised under a permit, and does not apply to radioactive waste or to mobile plant. Various conditions must be complied with including notifying the EA in writing and storing all waste within the permitted site boundary.

Water and sewerage company OSM and UWWTR sampling affected by COVID-19: RPS C3

Under the conditions outlined in this COVID-19 RPS, regulatory sampling carried out in accordance with a permit in relation to operator self-monitoring (OSM) and the Urban Waste Water Treatment Regulations 1994, SI 1994/2841 (UWWTR), can be reduced. Written agreement must first be obtained from the EA.

Incinerating specified healthcare wastes at a municipal waste incinerator: RPS C4

This COVID-19 RPS applies to operators of permitted municipal waste incinerators and allows them to accept and incinerate COVID-19 infectious waste without varying an environmental permit. There are certain conditions that must be complied with, including limiting healthcare waste to the European Waste Catalogue classifications, and demonstrating that the waste producer has used all other appropriate permitted options available for the waste’s treatment or incineration.

PPE waste from home healthcare workers treating patients with COVID-19: RPS C5

Under certain conditions, NHS healthcare workers treating patients with COVID-19 in their own homes can dispose of personal protective equipment (PPE) waste through the householder’s normal non-recyclable waste collection.

Storing treated sewage sludge you cannot move because of COVID-19 restrictions: RPS C6

This COVID-19 RPS applies to treated sludge as described in the Sludge (Use in Agriculture) Regulations 1989, SI 1989/1263. It does not apply to septic tank sludge (which can go to a sewage works) and waste containing sewage sludge (which is covered by the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154). Under certain conditions, sewerage companies can store dewatered treated sludge at a place other than the place where it will be used, without an environmental permit.

Monitoring emissions from installations, radioactive substances and waste activities: RPS C7

Holders of installation, waste or radioactive substances (nuclear or non-nuclear) activity permits must operate in accordance with the Environmental Permitting (England and Wales) Regulations 2016, SI 2016/1154. Under COVID-19 RPS C7, certain reasonable adjustments can be made to monitoring requirements, for example, delaying and rescheduling some of those specified in the permit. Written agreement must be sought from the EA before relying on this COVID-19 RPS.

Periodic monitoring of emissions to air can be delayed or cancelled. Routine servicing of ‘business critical equipment’ may be suspended. If continuous monitoring systems are no longer able to operate, the area regulatory officer or site inspector should be notified immediately. Effluent quality periodic monitoring and effluent flow monitoring may be delayed, but alternatives should be considered.

The EA advises taking a a risk-based approach to environmental monitoring programmes.

Social distancing when signing and handing over waste transfer and consignment notes in person: RPS C8

Under the conditions, in this COVID-19 RPS, paper copies of waste transfer and consignment notes do not have to be handed over in person.

COVID-19 and packaging waste: registering as a packaging producer: RPS C9

This COVID-19 RPS applies to obligated packaging producers who have been unable to register with the EA directly or through a compliance scheme on or before 7 April 2020 and/or have been unable to provide accurate and complete information with the application. Provided they comply with the limitations and conditions in this COVID-19 RPS, the EA will not take enforcement action or charge an additional fee, in the case of non-compliance.

Reporting for installations, radioactive substances and waste permits: RPS C10

This COVID-19 RPS applies to permit conditions requiring the submission of certain information, for example, routine environmental monitoring reports, and reports required by an improvement condition. It allows for a delay, under certain conditions, in submitting these reports.

Emissions to air from large combustion plant during black start events: RPS C11

Under certain conditions, power stations can exceed emission limit values if restoring electricity supply after a significant electrical emergency during the COVID-19 crisis.

COVID-19 and spreading slurry or milk on land, or storing slurry: RPS C12

Under the conditions in this COVID-19 RPS, slurry can be stored without complying with all the requirements for storing silage, slurry and agricultural fuel oil. It also allows for the spreading of slurry or milk on some areas of agricultural land where it would not normally be allowed. Written agreement must first be obtained from the EA.

Accumulating radioactive waste that you cannot transfer because of COVID-19: RPS C13

This COVID-19 RPS applies where radioactive waste cannot be transferred to destinations in the UK and overseas as a result of COVID-19 business disruption. It applies to waste sealed sources and to other radioactive waste that is transferred for recycling, treatment or disposal. It allows for the accumulation of such radioactive waste above the limits allowed in a permit and for a longer time than allowed in a permit. The EA must be notified before this RPS is relied on.

COVID-19 and delaying hazardous waste consignee returns: RPS C14

This COVID-19 RPS applies if compliance with the reporting deadline of 30 April 2020 is not possible, due to COVID-19 restrictions. It allows for a delay in submission of consignee returns to no later than 31 July 2020.

COVID-19 and exceeding permit limits for medical use of radioactive substances: RPS C15

This COVID-19 RPS applies to radioactive material that is used to carry out medical diagnosis or treatment in humans and waste that arises from these procedures. Under the conditions of the COVID-19 RPS, numerical limits on the amount of radioactive material that can be kept or stored, and on the amount of radioactive waste that can be accumulated and disposed of, can be exceeded.

COVID-19 and temporary storage of incinerator bottom ash aggregate: RPS C16

This COVID-19 RPS allows for the temporary storage of incinerator bottom ash aggregate (IBAA) at a permitted site when the permit does not authorise this waste type.

COVID-19 and storing waste at unpermitted sites due to exceeding your storage limits: RPS C17

This COVID-19 RPS temporarily allows for the storage of waste at an unpermitted site and for the exceeding of storage limits for certain registered waste exemptions. It does not apply to radioactive waste or to mobile plant. Before relying on this COVID-19 RPS, approval of the EA must be obtained.

EA Guidance

On 28th April, the EA published guidance on its regulatory response to COVID-19. The EA recognises that businesses may be unable to comply fully with regulatory requirements because of COVD-19. The EA will ‘consider the appropriate enforcement response to any non-compliance during this time in line with its Enforcement and sanctions policy and take into account:

  • the extent to which expectations have been followed
  • the impact of coronavirus on activities, which should be supported by records showing why the non-compliance occurred
  • the effect of any relevant COVID-19 RPS’s.

EA Operational Update

In addition to its regulatory position, the EA has published its operational update. Most offices are closed but it remains fully operational with the majority of staff working from home. It’s Flood Warning Service continues but will concentrate on the most important warnings, where flooding is expected or where there is a risk to life.

Flood defence construction work will continue as this has been identified as essential by the government. Inspections of flood defences damaged by recent storms are still underway and the EA are prioritising work to protect the most at-risk communities .The EA intends to carry out a full assessment of the impact of COVID-19 on its asset repair programme, but in the meantime will continue to prioritise work that has the most impact in terms of protecting lives and livelihoods.

The EA is continuing to enforce regulatory requirements, following the government’s guidance on social distancing, including liaising with courts and, where possible, continuing with any sentencing cases still outstanding using remote technology to conclude legal action.

Natural England

In common with most organisations dealing with the effects of coronavirus, Natural England (NE) is following government guidance and taking all steps necessary to protect its staff and help prevent the spread of the virus.

In terms of compliance, NE is pausing and re-profiling a number of work areas. Its highest priority work areas are now:

  • customer enquiries—these are to be sent by email as offices are now closed
  • Wildlife Licensing and Incident Investigation services—NE is prioritising resources to continue to assist all those who need consents and permissions, where work can be done remotely, and will prioritise licences where the environmental risks are highest and where health and safety is concerned
  • SSSI consenting services—site visits are suspended but NE staff are still available to provide advice. In exceptional circumstances, for example if there are concerns that immediate action is required to prevent harm, or where serious breaches of the law are reported that merit immediate investigation, then NE may make a site visit but will observe social distancing
  • agri-environment work
  • planning casework, and
  • essential work (including livestock management and health and safety) on National Nature Reserves (NNRs)—local residents may still use NNRs for exercise as long as they follow the new social distancing guidance. Management work on NNRs is limited to essential tasks for things such as public safety, animal welfare and water level management

NE is adapting the way it gives advice to support farmers, land managers and rural businesses. It is working with the Rural Payments Agency on making vital payments to the rural community and helping customers submit their claims and applications.

NE has said that it also intends to sustain work that allows progress towards key policy ambitions for the environment, including the 25 Year Environment Plan, the commitment to move towards net zero and the role of nature in mental and physical health, as well as ensuring that environmental law is maintained through its regulatory activities.

Natural Resources Wales

Natural Resources Wales (NRW) has published its response to the coronavirus pandemic.

NRW expects businesses and individuals to ‘continue to comply with environmental regulations and their permit conditions. This includes developing contingency plans and putting appropriate measures in place to ensure that all reasonable actions are taken to foresee and mitigate any potential issues’. If a regulated business or individual is facing problems complying with their permit conditions as a result of COVID-19 they should:

  • inform NRW of the issues and how they are being managed as early as possible
  • prioritise compliance with those permit conditions that directly protect the environment
  • take all practicable alternative measures to prevent and minimise any harm to the environment or risks to public health
  • keep clear and comprehensive records of the decision made and actions taken
  • In addition, the regulatory position has been temporarily amended in certain areas, including the following:

In addition, the regulatory position has been temporarily amended in certain areas, including the following:

  • Water Abstraction Returns are delayed until further notice
  • environmental permitting consultations will continue as normal. However, high public interest applications will be considered on a case by case basis
  • survey work for species licensing should only be undertaken where absolutely necessary and following the latest social distancing guidelines from the government.

Water industry

The Drinking Water Inspectorate (DWI) has suspended the taking of water samples from households. Legal requirements to install or upgrade operational monitoring, however, must be completed on schedule or prioritised for early completion whenever possible. The Water Services Regulation Authority (Ofwat), has said that regulatory obligations remain in place although it acknowledges there may need to be adjustments to the regulatory system at a later date.

Scottish Environmental Protection Agency

The Scottish Environmental Protection Agency (SEPA) has published its regulatory response to COVID-19. It expects businesses and individuals to make their best endeavours to meet their environmental obligations. If a regulated business is unable to meet all its obligations under SEPA’s licence, permit or other authorisations because of COVID-19, the business is expected to:

  • prioritise compliance with conditions that directly protect the environment over those that are indirect controls or more administrative in nature
  • alert SEPA as early as possible if it believes it will be unable to meet any obligations and work closely with SEPA on making choices and finding solutions
  • keep a clear record of choices made and actions taken

What practical steps can be taken?

Businesses faced with potential areas of non-compliance will still have to take steps to mitigate the legal risk arising from non-compliance. A common condition for reliance on the COVID-19 RPSs is a written management plan and engagement with the appropriate regulator. This should minimise the risk of enforcement by the regulator in the future or the consequences of any such enforcement action, even if there has been a technical non-compliance caused by COVID-19.

The EA states that records should be kept to justify reliance on any COVID-19 RPS. For example, records of:

  • staff absences
  • contractors being unavailable
  • supply chain failures

These records must be kept for 24 months after the COVID-19 RPS has expired and must be made available to the EA on request. In addition, all permit holders have a duty to make sure their activities do not endanger human health or the environment.

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