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REGULATORS POWERS

Contents of this section

Introduction – regulator’s power to require information – variation and enforcement of an environmental permit – enforcement, suspension and revocation of an environmental permit – High Court proceedings – regulator’s power to take steps – environmental permits and criminal offences – enforcement undertakings and RESA sanctions in environmental permitting.

Introduction

Regulation 34 requires a regulator periodically to review environmental permits and periodically to inspect regulated facilities. This allows a regulator to undertake a risk-based compliance assessment approach to the risks posed by regulated facilities. Regulators will target those facilities which pose the greatest environmental risk.  They will also reduce the regulatory burden on operators whose standards of operation are high.  See §11, EP Code Guidance.

Whether as a result of an inspection, or of the exercise of the power to require information , or otherwise (for instance after receiving complaints from local residents), the regulator has various powers of enforcement.  One option is the variation of the permit.  Other options are the issuing of an enforcement notice, including a suspension notice, and finally the revocation notice.  By reg.42 the regulator may take proceedings of the High Court in order to secure compliance with an enforcement notice.  Where the regulator considers that there is a risk of serious pollution as a result of the operation of a regulated facility or extent facility, it may arrange for steps to be taken to remove the at risk.  It is open to the regulator to prosecute the operator and in some circumstances its officers.  An offender may offer an enforcement undertaking as a civil sanction.

Power to require the provision of information

By reg.61, the regulator or exemption authority may serve a notice which requires the recipient to provide such information as it may request.  This power is a very broad one. It may even require the provision of information about emissions where that information is not in that person’s possession and which would not usually come into that person’s possession.

Variation

Regulation 20 of the Environmental Permitting Regulations allows the regulator to vary an environmental permit and the request of the operator or on its own initiative.  Clearly the operator itself is entitled to apply to vary an environmental permit to accommodate its activities at a facility, but it is also recognised that the regulator-initiated variation can be a form of enforcement.

An application may be made for a variation, for instance, if it is intended to increase the extent of the site, or if the name of the operator of the site is to be changed.  An operator will be expected to apply for variation if it is intended to change the processes carried out at the facility.  On the other hand, the regulator may initiate a change in the permit conditions if the regulator considers, for instance,  that they need to be changed because there is some pollution emanating from the site which can be prevented.

Enforcement notices

Regulation 36 of the Environmental Permitting Regulations sets out provisions in relation to enforce notices.  The regulator may serve an enforcement notice on the operator if it thinks that the operator has contravened, is contravening, or is likely to contravene an environmental permit condition.

The notice which is served on the operator must comply with certain formalities.  It must explain the regulator’s view as to the nature of the contravention, and it must “specify” both the matters constituting a contravention, the steps that must be taken to remedy the contravention and the period within which those steps must be taken.  In addition, the notice may include steps to be taken to make the operator comply with the environmental permit conditions and to remedy the environmental effects caused by the contravention.

It is important that the notice is sufficiently clear about its requirements.  If it is not clear, then it may be possible judicially to review.

Suspension notices

Regulation 37 allows the regulator to suspend an environmental permit.  Confusingly perhaps, the suspension notice is sometimes referred to as a form of enforcement notice.

In order to have the power to suspend an environmental permit under the Environmental Permitting Regulations, the regulator must consider that the facility has given rise to a risk of serious pollution or a risk of serious flooding, etc.  Alternatively, the regulator may serve a suspension notice on the operator if the regulator considers that there has been a breach of an environmental permit condition and that the contravention gives rise to a risk of pollution or a risk of flooding, etc.  As with the enforcement notices, the notice must “specify” various matters.  These include the nature of the risk, the steps that must be taken, the matters constituting a contravention, any steps required to remedy the contravention and the period for taking the necessary steps.

It is important to note that when a suspension notice is served, it has the effect of suspending the activities at the site until the notice is withdrawn.  Moreover, a permit will cease to have effect to the extent stated, and the notice must state that environmental permit ceases to have the effect to the extent specified in the notice until the notice is withdrawn.

There is no doubt that the service of a suspension notice is a very dramatic move.  The only way in which the suspension notice can be cancelled is following a decision by the regulator.  The fact that the facility can no longer be operated until the notice has been withdrawn, requires the operator to take immediate steps to challenge the notice on an urgent basis.  This requires the intervention of the High Court.  Although an appeal can be made through the PINS process, that process will take months to conclude. See appeals and legal challenges below.  (PINS is the Planning Inspectorate).

Revocation

Regulations 22 and 23 of the Environmental Permitting Regulations contain the provisions governing the revocation of an environmental permit.  The revocation of an environmental permit is the end of the road for the regulated facility, unless the permit is only partially revoked.  Regulation 23 governs the steps to be taken after the revocation takes effect.  It allows the regulator to make sure that the operator take steps to avoid pollution risks and to return the site of the facility to a satisfactory state.  A permit continues to have effect to the extent that it requires steps to be taken.  A permit finally comes to an end when the regulator issues a certificate stating this is satisfied that all the steps have been taken.

 

Enforcement by the High Court

Regulation 42 of the EPR provides that a regulator may take proceedings in the High Court for the purpose of securing compliance with an enforcement notice (including a suspension and other such a notice).

Power of the regulator to take steps

By reg.57 the regulator has a separate, free-standing power, to arrange for steps to be taken to remove a risk of serious pollution.  This power is available in respect of the operation of either any regulated facility or an exempt facility.  The same power is available if an offence has been committed contrary to reg.38 and has caused pollution, or if the regulator suspects that an offence is being or has been committed and that pollution is the result.  Notification must be given to the operator in advance.  The regulator may recover the costs of any steps which it takes.

A similar power is available by virtue of reg.58.  This is a power to prevent or remedy the effects of flood risk activities.

An operator on whom a notice is served under either reg.57 or reg.58 may contest the requirement to pay the regulator’s costs in certain circumstances, for instance if there was no risk of serious pollution or if costs were unnecessarily incurred.

Criminal offences

Regulation 38, Environmental Permitting Regulations, provides that it is an offence for a person either to contravene the central prohibition of regulation12, or knowingly to cause or knowingly permit a contravention of regulation 12.  Regulation 38 also provides that it is an offence for a person to fail to comply with or to contravene an environmental permit condition.

By reg.38(3) it is also an offence for a person to fail to comply with the requirements of an enforcement notice (including suspension notice, etc.).

Additional offences are provided for by the same regulation concerning compliance with notices.

These are offences which are considered serious enough to attract penalties which include an unlimited fine or imprisonment for a term of up to five years (see reg.39).  They are offences of strict liability.  Limited defences are set out in reg.40.  They include proof by the person charged that the acts alleged were done in an emergency in order to avoid danger to human health.

By reg.41, officers of companies as well as the companies themselves are guilty of the same offence if (a) the offence has been committed with the consent or connivance of the officer, or (b) the offence is attributable to any neglect on the part of the officer.

By reg.44, if a person is convicted of one of the more serious offences set out above, then it is open to the court to order the offender to take steps to remedy matters.

The usual procedures which apply in criminal cases apply to these offences. Of special relevance is the Environmental Offences Definitive Guidelines – Sentencing.

RESA sanctions and enforcement undertakings

In the context of the Environmental Permitting Regulations, Part 3, Regulatory Enforcement and Sanctions Act, 2008 (and secondary legislation) provides regulators in England and in Wales with powers to accept civil sanctions as an enforcement option as an alternative to prosecution.

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