The Environment Agency (EA) has published a number of temporary regulatory position statements (Covid-19 RPSs) to help organisations manage their activities during the current disruption. Regulators in Scotland, Wales and Northern Ireland have taken a similar approach. In this article, John Barwise looks at those RPSs that are likely to affect businesses.
Covid-19 RPSs are designed to give businesses some much-welcomed flexibility with environmental permitting rules, as normal operating activities continue to be disrupted during the pandemic. The Environmental Services Association (ESA), describes the EA’s approach as “common sense,” particularly where waste storage and social distancing rules can be difficult to maintain. Permitting rules covering industrial air emissions and effluent discharge monitoring can also be difficult or some businesses to schedule during lockdown.
The EA’s official rationale for introducing RPSs is to “help minimise risks to the environment and human health where, for reasons beyond your control, compliance with certain regulatory requirements is not possible due to coronavirus”.
The EA itself is having to adjust working practices to cope with pandemic guidelines. Site visits, for example, can be problematic due to social distancing and changes to staffing schedules. Site visits have been reduced and “virtual” inspections of permitted sites are being undertaken where appropriate, to check businesses are complying with regulations. But the agency insists that Covid-19 is not an excuse to operate illegally and that visits to sites that could cause serious environmental harm are continuing during the pandemic.
RPS — the basics
The EA expects regulated businesses to take all reasonable steps to comply with regulatory requirements during restrictions. Where this is not possible businesses are still expected to:
notify their usual EA regulatory contact
minimise any unavoidable non-compliance
minimise the effects of any unavoidable non-compliance
prioritise complying with regulatory requirements that directly protect the environment and human health
keep records showing why a non-compliance occurred.
In circumstances where a business is unable to comply fully with regulatory requirements, the EA will consider the appropriate enforcement response, taking into account:
the extent to which they have followed EA expectations as set out above
the impact of Covid-19 on their activities, which should be supported by records showing why the non-compliance occurred
the effect of any relevant Covid-19 regulatory position statement.
There are RPSs for a wide range of activities and operations. Businesses that wish to use a Covid-19 RPS must comply with both its:
specific conditions — including any requirements to notify us or get our approval to use it
requirements concerning pollution and harm to human health.
Businesses that follow these procedures will not normally be subject to enforcement action, according to EA guidance.
Targeted RPS response
The EA has published a range of Covid-19 regulatory position statements (RPSs) about legal requirements and has set out specific circumstances where the agency will relax normal regulatory requirements. Similar measures have been introduced by environment regulators in Scotland (Scottish Environment Protection Agency), Wales (Natural Resources Wales) and Northern Ireland (Northern Ireland Environment Agency).
The sectors where most RPSs have been introduced include the following.
Monitoring and reporting — this RPS applies to a number of activities permitted under the Environmental Permitting (England and Wales) Regulations (2016) including:
radioactive substances (nuclear or non-nuclear) activities
water discharge and groundwater activities.
Businesses that follow the conditions in this Covid-19 RPS are allowed to make certain reasonable adjustments to their air and water monitoring requirements. For example, businesses can delay and reschedule some of those monitoring activities specified in their permit.
This Covid-19 RPS also applies to all standalone water discharges and groundwater activities where operators cannot meet monitoring required by their permit because of Covid-19 restrictions Operators must also explain why they have been unable to meet permit conditions due to Covid-19.
The EA says this RPS only applies if businesses cannot meet the emissions, radioactive discharge and environmental monitoring required by their permit because of Covid-19 restrictions and that all businesses that seek to use the RPS must first get written agreement from the agency.
Waste management (excluding radioactive waste) — this RPS applies to a wide range of waste storage and handling situations where businesses cannot function properly because of Covid-19. Exceed waste storage limits at permitted sites and unpermitted sites, signing over waste transfer and consignment notes, and packaging producer obligations are some examples. Also included, are PPE waste from healthcare facilities and hazardous waste consignee return and other waste management regulations.
Water industry — this RPS applies to sampling discharges from water and sewerage company waste water treatment works. Operators can reduce regulatory sampling carried out in accordance with permits in relation to Operator Self-Monitoring (OSM) and the Urban Waste Water Treatment Regulations 1994 (UWWTR) monitoring. It applies to the monitoring of discharges of:
treated sewage effluent from waste water treatment works
trade effluent from water treatment works.
This Covid-19 RPS only applies if sample collection or analysis is affected by staff shortages due to the virus or where access is restricted because of people or places being infected, or potentially infected with Covid-19.
Regulated industry installations (non-waste) — RPS C19 covers emissions to air from Large Combustion Plants during black start events. It relates to situations where power stations can exceed emission limit values if restoring electricity supply after a significant electrical emergency during the pandemic. RPS C18 covers emissions to air from Large Combustion Plants (LCP) in the Transitional National Plan, where LCP operators can delay meeting new emission limit values scheduled to take effect from 1 July 2020 because of Covid-19.
Radioactive substances regulation — RPS C13 relates to when organisations can accumulate radioactive waste over the permit limits or exemption because organisations cannot transfer it due to Covid-19. RPS C15 explains when organisations can exceed radioactive substances permit limits because of Covid-19, in order to carry out medical procedures.
Agriculture — RPS C12 sets out amendments to agricultural permits, allowing farmers to:
store slurry without complying with all the requirements for storing silage, slurry and agricultural fuel oil
spread slurry or milk on some areas of agricultural land where it would not normally be allowed.
The Environment Agency says it recognises that many businesses may be struggling to pay licence fees and other charges due to the impact of the virus on operations and sales. Where customers are experiencing difficulties, the agency has announced it will consider requests for payment plans.
In a statement released in June, the EA said it would continue to work closely with businesses and industries to help them meet their legal requirements during this difficult time. Full details of environmental permitting arrangements and variations for each of the four nations during the pandemic are available below.
Environment Agency — has published multiple guides on the topics covered above.
The Northern Ireland Environment Agency — NIEA has published RPSs related to specific topics.
Natural Resources Wales — NRW has issued a number of temporary RPSs including contingency plans and actions to mitigate potential issues.
Scottish Environment Protection Agency — SEPA has issued overarching guidance of regulation during Covid-19 with several RPSs on waste management and producer responsibility.
Each of the UK’s four environment protection agencies will continue to review and update RPSs according to how restrictions and other Government measures affect their own operations and those of the businesses they regulate.