Note On Appeals To The Planning Inspectorate Against The Revocation Of A Permit By The Environment Agency- Random Jottings From The Silk Coal Face

This note concerns an appeal against a revocation notice by the Environment Agency of a waste transfer permit in respect of which the Agency is regulator. It is not concerned with a determination of an appeal by written representations or inquiry.

PERMIT CONDITIONS

When granting the permit the Agency will impose such conditions as are" necessary and enforceable".

The Environmental Permitting Guidance Core Guidance for the Environmental Permitting (England and Wales) Regulations 2010 deal with conditions in the following terms:

""Necessary" means that the regulator should be able to justify at appeal if necessary the permit conditions it attaches. To be enforceable, conditions should clearly state the objective, standard or desired outcome of the condition so that the operator can understand what is required".

"Permit conditions may comprise some or all of the following: conditions stipulating objectives or outcomes; standards to mitigate a particular hazard/risk or conditions addressing particular legislative requirements".

"The requirement to avoid any pollution risk must be interpreted in a proportionate way. In practical terms operators should tackle the risks of any pollution that could occur unless they are so small that further action is not justified".

CONSIDERATIONS

The Agency will consider inter alia the adequacy of the operator's management system, its technical competence, its record of compliance with regulatory requirements and adequacy of financial competence and any environmental or other consequences of failure.

ENVIRONMENTAL MANAGEMENT SYSTEM

The Environmental Management System is an integral part of the management system and the Agency will not hesitate to scrutinise any EMS submitted. Any fragility in the EMS will show in a Compliance Assessment Report which will then be used when revocation is being considered. Whilst for simpler regulated facilities externally certified schemes or a full EMS will be less appropriate than for the complex facilities, they "should still be carefully encouraged by operators and where appropriate encouraged by regulators".

It makes life simpler for the revocation and appeal process if the EMS has been certified.

TECHNICAL COMPETENCE

Where there are criticisms of the site and its management, the absence of provable technical competence in the form of Certificates of Technical Competence (CoTC) will count against the operator. Employees who have successfully completed the WAMITAB course will continue to attract breaches until the certificate is issued.

RECORD OF COMPLIANCE

A poor record of compliance is defined in general terms as "... a poor record of compliance with regulatory requirements (such) that it appears unlikely that (the operator) would comply with permit conditions".

Risk based compliance assessment includes targeting those facilities that pose the greatest risk to the environment or human health, have poorer standards of operation, are failing to comply.

COMPLIANCE ASSESSMENT

Compliance Assessment Reports based on inspections may go unanswered by the operator. If so it will be difficult to counter the CARs at the hearing of an appeal. It is useful at least to engage with the Agency both to acknowledge the positives in the CARs and declare an intention to build on them, deal with the negatives and counter anything with which issue is taken.

It may not be asserted by the Agency that the site has been the cause of pollution or that the operation involves a risk of serious pollution justifying a suspension notice. The absence of a suspension may not impact on the issue whether all enforcement tools have been exhausted before proceeding to revocation. It is likely to be relevant where the pollution conditions of the permit have not been breached and thus at least count in the proportionality argument.

When it comes to proceedings, the Agency will argue that a breach of the conditions as to competence and management generally will reflect the risk of pollution even if actual pollution has not resulted.

Noncompliance findings are classified according to the Compliance Classification Scheme. The scheme categorises breaches based on their potential for environmental impact. Thus category 1 is for a noncompliance which has a potentially major environmental effect; category 2 is for a potentially significant environmental effect; category 3 is for minor...