COVID-19 and Environmental Permit compliance flexibility- could your business benefit?

Introduction 

The COVID-19 pandemic has created extraordinary business disruption and societal changes.

To help businesses cope with the disruption, the Environment Agency (EA) has issued a series of temporary COVID-19 Regulatory Position Statements (COVID-19 RPS). As at 9 am on 23 April 2020, there are 11 of these COVID-19 RPS, with the number growing on an almost daily basis.

In summary, the COVID-19 RPS aim to give operators a degree of flexibility where, for reasons beyond the operator's control as a result of the pandemic, it is not possible to comply with conditions of an environmental permit or obligations under environmental law. 

Perhaps the most well publicised effect of these RPS is the ability of municipal waste incinerators to accept COVID-19 healthcare wastes. This is provided for by COVID-RPS C4 Incinerating specified healthcare wastes at a municipal waste incinerator.

This article sets out further details of the legal effect of the COVID-19 RPS and includes a summary table to enable you to consider, at a glance, whether your business could benefit from these RPS. 

Status and effect of COVID-19 RPS

As with the EA's other RPS, the COVID-19 RPS do not amend the environmental permitting regime or the applicable environmental permit. Rather, they set out the circumstances in which, if the conditions in the RPS are followed, the EA will not 'normally' take enforcement action against the operator where such action would otherwise be a breach of an environmental permit or environmental laws. 

Applicability of COVID-19 RPS

While the COVID-19 RPS provide a degree of flexibility, their applicability must be considered individually. A common theme running through the COVID-19 RPS is that they can only be relied upon to the extent that the operator's business is in fact impacted by COVID-19. Record keeping will therefore be particularly important to demonstrate compliance with the RPS conditions.

For example, RPS C2, which allows environmental permit holders to exceed waste storage limits, only applies to the extent that the operator can demonstrate that it needs to store more waste than permitted under its current permit because of COVID-19 restrictions. The RPS explains that the EA expects 'all reasonable steps' to be taken to comply with an operator's permit, including COVID-19 contingency planning and response planning. 

Similarly, RPS C3, which allows water and sewerage companies to reduce sampling, only applies if sample collection or analysis is affected by (i) staff shortages due to COVID-19 or (ii) restricted access caused by people or places being infected or potentially infected with COVID-19. In the same way, RPS C10 (Reporting for installations, radioactive substances and waste permits) only applies to certain types of reporting listed in the RPS, e.g. (i) routine monitoring of releases to air and water – for example, quarterly emissions monitoring, or (ii) reports required by an improvement condition. 

The overall approach of the EA is that the COVID-19 RPS should only be used where the circumstances justify a departure from business as usual compliance. This is captured in RPS C10 (which relates to reporting obligations) where the EA says: 

"If, after taking these steps, you still cannot meet the reporting requirements specified in your environmental permit……..you can use this COVID-19 RPS."

Conditions and requirements 

In addition to the circumstances in which the COVID-19 RPS can apply (set out above), each of the COVID-19 RPS contain various conditions and requirements which are tailored to specific applicable circumstances. As such, operators should carefully review the conditions and requirements to ensure that the operator can take the benefit of the RPS.  The summary table below provides details on the COVID-19 RPS at a glance however a fuller table, including key conditions, can be found here.

For example, RPS C4 (Incinerating specified healthcare wastes at a municipal waste incinerator), has 13 conditions, including that the healthcare wastes fall within 6 specified EWC codes and that the operator can demonstrate the waste producer has used all other appropriate permitted options available for the waste’s treatment or incineration; i.e. incineration of these hazardous wastes in the municipal waste incinerator is a last resort. 

Notification or prior written agreement 

The more straightforward COVID-19 RPS can simply be used by operators, with appropriate records kept. For example, RPS C8 (Social distancing when signing and handing over waste transfer and consignment notes in person) does not require any notification to or further agreement of the EA. 

There are however a group of RPS which require notification to the EA. An example is RPS C2 (Exceeding waste storage limits at permitted sites because of COVID-19) which requires the environmental permit holder to notify the EA in writing of the types and quantities of waste which will be stored over the permitted limits. 

Finally, there is a group of RPS which require the EA's written agreement before an operator may rely on them. An example is RPS C4 (Incinerating specified healthcare wastes at a municipal waste incinerator). This reflects the risk-profile of the relevant RPS and the EA's requirement to monitor how these specific RPS are being used. 

How long will the COVID-19 RPS remain in place for? 

The COVID-19 RPS are temporary and will be of shorter duration than 'standard' EA RPS. Underscoring their temporary nature, the COVID-19 RPS have specific withdrawal dates, after which date the 'standard' permitted position must be complied with unless otherwise extended by the EA. 

The current withdrawal date for 8 of the 11 RPS is 30 June 2020. While benefitting from a COVID-19 RPS, operators need to bear in mind their temporary nature. Facilities will therefore need to be managed so as to comply from when the relevant COVID-19 RPS is withdrawn, subject to any extensions issued by the EA.

For example, as it currently stands, municipal waste incinerators will not be able to incinerate hazardous healthcare wastes after 30 June 2020 (unless the environmental permit otherwise specifically includes this waste type or is varied). 

Given the current uncertainty as to how long the COVID-19 crisis will continue, the EA has reserved its position to extend the withdrawal dates. Operators should therefore monitor the EA's website and keep in touch with local officers to understand if the COVID-19 RPS on which they are relying are to be extended, to ensure ongoing compliance.

Relationship to other permit conditions and regulatory regimes

 All of the other requirements of environmental permits must be complied with throughout the COVID-19 crisis as usual – there is no general waiver of compliance.

Advice

Should you have any specific queries in relation to the application of these COVID-19 RPS or environmental compliance and enforcement more generally, please get in touch.

¹.  Unless otherwise extended