The Environmental Permitting (England and Wales) Regulations 2010: Enforcement Policy

The Environmental Permitting (England and Wales) Regulations 2010

Enforcement Policy

Last Updated: 1st February 2009

Introduction

This Enforcement Policy relates specifically to the operation of Local Authority - Integrated Pollution Prevention and Control (LA-IPPC) and Local Air Pollution Prevention and Control (LAPPC) as prescribed in the Environmental Permitting (England and Wales) Regulations 2010, [referred to in the remainder of this document as the EPR].

It is the aim of Wrexham County Borough Council’s Housing and Public Protection Department to improve the health, safety and welfare of the County Borough’s residents, visitors and business community and to protect and improve the quality of our environment from the effects of pollution.

In relation to the EPR, the Environmental Protection function of the Housing and Public Protection Department supports this in the following ways:

Undertaking inspection and monitoring
Responding to complaints
Providing advice
Raising awareness
Enforcing legislation as required

The purpose of this policy is to ensure effective compliance with legislation, having regard where necessary to the type and severity of any non-compliance and the effect it may have on the public and the environment. This policy should be considered in conjunction with the guidance provided in the Housing and Public Protection Department’s General Enforcement Policy (Appendix 1). The Housing and Public Protection Department has adopted the enforcement concordat promoted by the Cabinet Office and endorsed by central and local government bodies. Conformance is a best value indicator, and its application is important in complying with the Human Rights Act.

The Environmental Protection Act 1990 established a system of Local Air Pollution Control (LAPC), under which many industrial processes required approval of measures to combat actual or potentially harmful emissions to air. This was designed to achieve the following four principal objectives:

To reduce industrial emissions and improve air quality
To provide greater clarity and certainty for industry
To allow greater public access to information about their local environment
To provide a clearer basis for enforcement if needed

This system has been progressively replaced by a revised regime under first the Pollution Prevention and Control Regulations 2000 and currently the EPR, which introduced a two-tier permit system of ‘Part A2’ and ‘Part B’ installations. ‘Part A2’ installations operate under a regime called Local Authority Integrated Pollution Prevention and Control (LA-IPPC) which regulates emissions to air, land and water. ‘Part B’ installations(the majority of the old ‘Part B’ processes under the Environmental Protection Act 1990) are subject to air pollution control only under Local Air Pollution Prevention and Control (LAPPC). The Pollution Prevention and Control Regulations 2000 also revised the Best Available Techniques not Entailing Excessive Cost (BATTNEEC) objective of the Environmental Protection Act 1990, to Best Available Techniques (BAT), which raises the importance of protection of the environment in that cost takes second place to environmental protection. The concept of BAT continues with the EPR.

The Environmental Protection Section of the Housing and Public Protection Department will endeavour to ensure that operators of installations adhere to the standards of control as detailed in their Permit, and that the installation is operated using Best Available Techniques ‘BAT’ to prevent or minimise the release of pollution into the environment. Further we will also endeavour to ensure that standards contained in the appropriate Process Guidance Notes/Sector Guidance Notesare being adhered to.

Contents

Page

1 Policy

/ 4

2 5 Guiding principles of good enforcement

/ 4

2.1 Proportionality

4

2.2 Consistency

4

2.3 Openness

5

2.5

Targeting

2.5

Accountability

Communication and procedures

3.1

Communication and working relationships

3.2

Finding unregistered operators

3.3

Requiring Information

3.4

Processing applications

3.5

Payment of Fees

3.6

Compliance Monitoring

Levels of enforcement action

4.1

Prosecution

4.1.1

Companies and Individuals

4.1.2

Penalties

4.2

Formal Cautions

4.3

Suspension Notices

4.4

Enforcement Notices

4.5

Variation of Conditions

4.6

Revocation

4.7

Remedying Pollution

4.8

Appeals

Appendix 1 General Enforcement Policy

Appendix 2 Specimen Notices

Appendix 3 Guidance Documents

Appendix 5 Definitions

1Purpose and methods of enforcement

Wrexham County Borough Council will assist operators of installations in meeting their legal obligations under the EPR without unnecessary expense, while taking firm enforcement action, including prosecution for those who flout the law or act irresponsibly. ‘Enforcement’ also includes providing advice and assisting with compliance as well as formal enforcement action.

Powers available to officers include:

verbal and written advice
visits and routine inspections
variation of condition of Permit
warning letters
enforcement notices
suspension notices
the remedying of pollution (works in default)
revocation of permit
prosecution or formal caution

2Principles of good enforcement

The Environmental Protection Section as part of the Housing and Public Protection Department believes in a consistent, balanced and fair approach to regulation, and its enforcement activities will follow these essential criteria:

proportionality in applying the law and securing compliance
consistency of approach
openness about how we operate and what the regulated may expect
targeting of enforcement action
accountability of our service and our actions

2.1Proportionality

Proportionality means relating enforcement action to the risks posed. Any action taken by officers to achieve compliance will be proportionate to the severity of any breach, whilst upholding current legislation. If prosecution is the likely course of action, advice will be taken from the Council's Department of Legal Services.

2.2Consistency

Operators of installations have the right to expect consistency in all aspects of PPC regulation and enforcement. Officers need to take into account many variables, including the scale of impact on health or the environment, and the attitude and competency of the management and history of previous incidents. Decisions on enforcement action are a matter of professional judgement and the officer must exercise both consistency and discretion, including effective arrangements for liaison with other enforcement authorities.

To promote consistency:

Notices are to be signed by the Chief Housing and Public Protection Officer or a Senior Officer of the Public Protection Department.
Correspondence will be monitored by the Senior Manager (Environmental Protection)
When formal enforcement is being considered discussions will be held with the SeniorOfficer of the Environmental Protection Sectionto agree the required course of action.

Periodic meetings to review service delivery and check compliance with policy and procedure will be undertaken, and changes made where considered appropriate to do so. Changes resulting in an update of the Enforcement Policy or procedures will be brought to the attention of relevant staff, installation operators where appropriate as soon as possible.

2.3Openness

Openness means helping businesses to understand what we expect of them, and what they should expect from us. Operators of installations need to know what to expect from enforcing authorities and their procedures with regard to regulation. We willendeavour to ensure that

where action is required, it is clearly explained (in writing wherever possible) why the action is necessary, together with a suitable timescale; a distinction being made between good practice and what is legally required.
the requirements of the law are fully discussed and considered before enforcement action is taken, unless urgent action is required to protect the environment or prevent evidence from being destroyed.
where urgent action is required, a written explanation of the reasons is provided as soon as practicable after the event.

Where there is a right of appeal against formal action, advice on appeal mechanisms will be clearly set out in writing at the time the action is taken. Wherever possible, this advice will be issued with any enforcement notice.

The Housing and Public Protection Department maintains a Public Register of all permitted installations. The public has right of access to the register, which contains the information required under the relevant legislation.

2.4Targeting

Targeting means making sure that the regulatory effort is directed primarily towards those whose activities actually or potentially give rise to the most serious risks to health or the environment. This will take into account the hazards associated with each installation and the nature and extent of the risks involved, together with other factors such as site management. All installations (with the exception of waste oil burners, petrol filling stations and dry cleaners) will be subject to risk based inspection as recommended by the Welsh Assembly Government (WAG).

2.5Accountability

Should there be elements of dissatisfaction with the level of service, our complaints procedure can be found on the Council’s website, and in printed format at the Council Offices: Chief Housing and Public Protection Officer, Public Protection Service, WrexhamCounty Borough Council, Ruabon Offices, High Street, Ruabon, Wrexham, LL14 6NH.

In cases where disputes cannot be resolved following formal enforcement action, the right of appeal will be explained. Information about the Local Government Ombudsman will be provided where agreement cannot be reached.

3Communication and Procedures

3.1Communication and Working Relationships

The Welsh Assembly Government (WAG) amends legislation and guidance notes from time to time. The Council recognises the importance of communicating relevant legislative changes to operators and will ensure it does so at the earliest opportunity.

Provided that it does not involve the release of commercially sensitive information, the Council will make all operators aware of the existence of any newly developed techniques representing BAT for their particular industry sectors.

The Council expects operators to investigate the suitability of all available technologies in achieving the BAT objective for their particular process or installation.

The Council recognises the practical and financial demands that legislation places on operators, and the benefits a spirit of co-operation can provide in allowing operators to develop sensible business strategies for compliance with the legislation.

Where an operator fails to comply with the requirements of the legislation, the Councilmay take one of the formal enforcement options, detailed in Sections 4.1, 4.2, 4.3, 4.4, 4.6 below, as appropriate.

3.2 Finding Unregistered Operations (Regulation 12 EPR)

The operation of an unregistered prescribed process gives the operator of that process an unfair advantage over registered operators who incur additional operating costs in meeting the environmental standards required of them.

Where the Council suspects a company is operating, whether knowingly or not, an unregistered prescribed process, installation or mobile plant, the Council will make that company aware of the fact. If necessary, it will require the company to provide relevant information by serving it with formal notice (see section 4.4 below). If it is found to be a prescribed operation, which should be registered, the Council will write to the company and request that they make an immediate application. The instigation of formal/legal action will also be considered.

Where an unregistered prescribed process, installation or mobile plant is found to be causing harm to health or the environment, the operator will be notified that an offence is being committed. They will be requested to cease the operation until an application for a permit has been submitted and determined.

Failure to comply with either request will render the operator liable to prosecution.

In all cases the company will be given information and advice on the potential effects of emissions on the environment and the need to adopt Best Available Techniques as well as on the legal requirements and relevant technical guidance.

3.3 Requiring Information(Regulation 60 EPR)

Where the Council reasonably suspects that a prescribed process/installation is being operatedat a premises, a notice requiring information will be served on the operator at that address. The notice may require any information relating to the operation of the process that might reasonably be required to determine whether it requires a permit.

The notice will specify the information needed and the form and timescale in which it is required. Having received the information the Council will advise the operator whether the process/installation requires a permit, and if so will invite the operator to make an application.

Failure to make an application renders the operator liable to prosecution.

3.4 Processing Applications

All applicants will be given an advice pack containing a standard application form and guidance on making an application. They will also have the opportunity to discuss a draft application prior to submission. Each application will be followed by a formal site inspection to view the whole process/installation.

The Council may serve a notice on the operator, requesting further information for the process or installation, prior to determining the application.

The Council will determine all applications within the determination period laid down by the Welsh Ministers.

The determination period for applications is normally 4 months, after which time the applicant may appeal to the Welsh Ministers. However, if either party requires an extension to the determination period this can be done by agreement in writing.

The Council will issue permits with conditions that are clear, concise and enforceable.

All permits will initially be issued to the operator in a draft form, and a period of 14 days will be allowed for any written representations concerning the conditions to be made.

The Council will respond to any query relating to the draft within 7 days and endeavour to resolve the matter. The operator has a right of appeal, to the Welsh Ministers, against any or all of the conditions imposed (see section 4.8).

The conditions will be based on the Secretary of State’s Guidance Note(s) most aptly fitting the process/installation and the way it is operated.

3.5 Payment of Fees

An application forapermit or variation can not be accepted without the payment of the appropriate fee.

Any application received without the appropriate fee (set annually by WAG) will be returned to the applicant as not being ‘Duly Made’.

The Council will issue invoices to operators in respect of the Annual Subsistence Fee which are payable immediately upon receipt.

If the Annual Subsistence Fee is not paid, the Council will revoke the permit rendering the operation illegal and liable to prosecution.

3.6 Compliance Monitoring

The Council's inspectors (appointed and designated as “Authorised Persons” under the Acts) will make regular routine site visits to inspect processes/installations and to discuss any matters arising with the operator.

The Council will carry out an annual risk assessment to determine how many programmed site inspections are required for each process/installation. Guidance from WAGdetermines the appropriate frequency for each risk category. All such visits will be made by prior appointment with the operator.

The inspector may wish to inspect the whole of the process/installation or only certain aspects of particular interest on each occasion.

Inspectors will also make such random inspections of processes/installations as deemed necessary.

Inspectors will from time to time carry out observations and make such written or photographic records as considered necessary. These will be used to assess the operator’s performance, in complying with permit conditions, and any potential adverse affects the operation is having on the amenity of the neighbourhood.

The Council will respond to complaints arising from neighbours of the site, or other concerned parties, relating to the operation of a process/installation.

All complaints relating to a process/installation will be fully investigated to determine if there is a cause for complaint and that the source of the pollution is or is likely to be from the process/installation.

Where the Council is of the opinion, by virtue of a site visit, inspection or complaint that pollution is arising from a process/installation, the operator will be required to investigate, locate and remedy the cause.

In the first instance the inspector will normally inform the operator verbally, in person or by telephone, of the nature of any problem found, and the action required to remedy the problem.

The Council will then consider whether or not there has been any breach of the permit conditions or whether the problem has arisen from an unforeseeable accident or causation. The course of action taken will depend on the circumstances of the case. This will range between the issue of an informal written request for action and one of the formal enforcement methods detailed below.

If necessary, in light of a real or perceived serious risk to the environment, Authorised Officers of the Council will enter premises at any time and exercise their powers under Section 108 of the Environment Act 1995.

Authorised Officersof the Council have powers of entry at all reasonable times. If entry is obstructed they may enter accompanied by the Police. If the premises are locked, forced entry can be made under a warrant granted by a Justice of the Peace.

If serious harm to the environment is perceived the Authorised Officers will enter the site and if necessary, stop all or part of the process/installation pending investigations. The Officers investigations may include interviewing any director, manager or employee, taking statements under caution, taking of photographs, seizure of articles or materials, examination of plant and equipment and the copying of paper and computer records.

4Taking remedial action

The Council seeks to secure compliance with the law in a variety of ways. Most of the dealings we have with installation operators are informal, providing advice and assistance over the telephone, during visits and in writing. However, where informal methods have been unsuccessful, or a serious breach of legislation has or is likely to occur, formal enforcement mechanisms will be taken to ensure compliance with the law. Such action may include:

prosecution for a direct offence, such as operating an installation without a valid permit, or after the service of a Revocation Notice.
enforcement notices, where an operator is contravening a condition of the permit;
suspension notices, where imminent risk of serious pollution is likely;
variation of permit conditions, either through instigation by an inspecting officer or installation operator;
formal caution where a criminal offence has been committed;
revocation, to formally remove an installations permit;
the remedying of pollution (works in default)

It is an offence to operate, without reasonable excuse, an installation without a valid permit, in contravention of a condition attached to a permit, or other variation, enforcement or suspension notice. Legal proceedings will be initiated against the operator of an installation where a breach of legislation has occurred and is an important part of the enforcement process. It aims to punish those who flout the law, to serve as an example and a deterrent to others, that a breach of legislation is punishable. In severe circumstances, prosecution without prior warning will be pursued.