EA’S COVID-19 Update On Environmental Compliance

Covid-19 has brought many different uncertainties for businesses and companies across the country, including how to manage their environmental compliance obligations. Last week we discussed the key points presented in a useful guidance note that Burges Salmon issued on the topic. One of those points was the lack of government response to what is a particular stress point for our clients, the point where the lockdown meets environmental compliance responsibilities.

Fast forward to this week and the Environment Agency has recognised the challenges that have come along with Covid-19. Subsequently, they have issued a statement stating they are “taking action to aid and ease pressures where they can; their priority is to protect the environment and people, providing support and consistency”. Along with the statement, the Environment Agency has provided guidance on regulatory expectations.

What are the Expectations? 

You are still required to take all responsible steps to comply with regulatory requirements and action contingency plans. However, if for any reason you are not able to do so, you are expected to:

• Notify your usual Environment Agency 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 non-compliance occurred.
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If you are unable to comply fully with your regulatory requirements due to the coronavirus outbreak the Environment Agency have detailed that they will take into account, the following when considering the appropriate enforcement response in line with their Enforcement and sanctions policy:

• The extent to which you have followed the expectations as set out above.
• The impact of coronavirus on your activities, which should be supported by your records showing why the non-compliance occurred.
• The effect of any relevant COVID-19 regulatory position statement.
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Does this Count for Wales? 

Natural Resources Wales (NRW) has not followed exactly the same route as the Environment Agency. NRW has instead issued general guidance, where you are expected to fulfill the following:

• Inform NRW of the non-compliance issues and how those issues are being managed as early as possible.
• Prioritise compliance with those permit conditions that directly protect the environment.
• Take all practicable alternative measures to prevent and minimise any harm to the environment or risks to public health.
• Keep clear and comprehensive records of the decision made and actions taken.

NRW will then assess whether guidance provided has been followed and will adopt ‘a proportionate and reasonable approach’ to assessing compliance.

An expert’s opinion? 

Our James Dodds, an expert in regulation, stated “the Environment Agency and NRW statements are useful and provide some reassurance, but they are to some extent dependent on being able to contact and speak with individual officers, which at the moment is near impossible. What is critical is that decisions by permit holders are well justified and recorded and that it is clear that every effort is made to comply.”

We can help you

If you are expecting not to be able to comply with licence or permit conditions our trusted experts can assist you in developing and recording your decisions, assessing whether non-compliance is going to cause harm and if necessary design a monitoring system that will allow you to either comply or ‘comply enough’. Feel free to contact James Dodds or Phil Ham for an initial webchat to discuss your particular concerns in the strictest confidence.