COVID-19: environmental permitting -considerations for businesses

Correct as of 8am on 26 March. This article is not being maintained.

Amongst many considerations relating to the EHS management response to COVID-19 in addition to immediate health and safety and occupational health factors, businesses should bear in mind ongoing legal requirements arising in connection with environmental permitting.

A number of sectors including, chemicals, food and drink, metal production and treatment, energy generation, utilities and waste management will continue to carry out regulated activities that are necessary for the continuation of essential public services. Operators will need to ensure that they continue to comply with environmental permit requirements and conditions throughout this uncertain period or consider whether any discussion with regulators is required to cover conditions where compliance may not be possible.

Some of the main ongoing legal requirements include:

• Technical competency: where illness or self-isolation cause difficulties contingency measures should be considered including reduced attendance and remote working if this is possible. Communication with the regulator would be advisable.
• Operating techniques: any alterations to operating techniques (partial or other change in activities) brought about by measures to cater for COVID-19 should be considered in line with permit requirements and knock on effects to any other parts of the process. In certain circumstances it may be helpful to discuss proposed changes with the appropriate regulator in advance of effecting changes.
• Suspension of activities: many permits require notification to the regulator in the event that there is cessation of activities for part or all of the installation. The permit will set out the notification provisions.
• Monitoring and record keeping: where temporary personnel are drafted in, the induction training should include necessary monitoring and record keeping obligations.

Other aspects to consider:

Breach of an environmental permit condition in England and Wales is a criminal offence to which, if prosecuted and upon conviction, unlimited fines apply. It is a statutory defence for a person (including body corporate) charged with such an offence to prove that the acts alleged to constitute the contravention were done in an emergency in order to avoid danger to human health provided that (a) the person took all such steps as were reasonably practicable in the circumstances for minimising pollution, and (b) particulars of the acts were furnished to the regulator as soon as reasonably practicable after they were done. It could be that a breach of permit arises because of COVID-19 measures and potentially this “emergency defence” may be available. However this line of defence would be an act of last resort, and in most cases it would be best to have a conversation with the regulator if there is a concern that COVID-19 measures may give rise to risk of breach of permit.

Sadly, there may be some organisations and individuals who will seek to take advantage of the present position (particularly where land may be less occupied or staffed than usual) to illegally deposit waste or to consign waste inappropriately to permitted waste facilities. Landowners and tenants of land which is attractive to these illegal waste disposers may wish to consider whether security arrangements are adequate and permitted waste facilities should ensure that duty of care and other waste acceptance checks remain implemented to avoid unwanted and costly liabilities.

Co-authored by Lucy Charatan.