Environmental permitting post Brexit: regulation 61(1) notices

Article 4 of the European Commission’s Industrial Emissions Directive (IED) requires EU Member States to ensure that many industrial processes operate under an Environmental Permit issued by the Environmental Regulator to ensure minimal impact upon human health and the environment. The IED is implemented into English and Welsh legislation under the Environmental Permitting (England and Wales) Regulations 2016 (as amended) (EPR) and into Scottish legislation under the Pollution Prevention and Control (Scotland) Regulations 2012 (PPC).

The IED also introduces the concept of Best Available Techniques (BAT) which are the most effective and advanced stage in the development of activities, and their methods of operation designed to prevent, and where that is not practicable, to reduce emissions and the impact on the environment as a whole. The European Commission publish BAT reference documents (BRefs) for various industrial activities, however as technology advances, so does BAT. This means that the European Commission must update the BRefs which usually happens every eight years.

It is noted that the EU Withdrawal Act 2018 maintains established environmental principles and ensures that existing EU environmental law will continue to have effect in UK law, including the IED and BAT Conclusion Implementing Decision made under it. As such, the European Commission BRef and BAT documents continue to apply in UK law.

It is understood that the UK government will put in place a process for determining future UK BAT Conclusions for industrial emissions. This will be developed with the devolved administrations and competent authorities across the UK. The UK Government’s Clean Air Strategy for England sets out actions for determining future UK Best Available Techniques for industrial emissions.

Article 21(3) of the Industrial Emissions Directive (IED) requires the UK Environmental Regulators to review conditions in Environmental Permits that they have issued and to ensure the Environmental Permits deliver compliance with relevant standards including updated BRef and BAT Conclusions within four years of the publication of updated decisions.

In England and Wales this process is accomplished by issuing a Notice under Regulation 61(1) of the Environmental Permitting (England and Wales) Regulations 2016 (as amended) to an Operator which request that the Operator provide information to demonstrate how the operation of their installation currently meets or will subsequently meet revised standards.

Regulation 38(4)(a) of the Environmental Permitting (England and Wales) Regulations 2016 (as amended) outlines the consequences of failure to comply with a Regulation 61(1) Notice which may include a warning, a formal caution, or prosecution. Alternatively, a civil sanction can be offered in the form of an enforcement undertaking.

At the time of writing, October 2021, the following EC BAT Conclusion[1] documents were identified as having been updated in the past four years:

• BAT Conclusions for Waste Incineration. Reference C(2019) 7987, dated 12 November 2019.
• BAT Conclusions for Waste Treatment. Reference C(2018) 5070, dated 10 August 2018.
• BAT Conclusions for Surface Treatment using Organic Solvents including preservation of Wood and Wood Products with Chemicals. Reference C(2020) 4050, dated 22 June 2020.
• BAT Conclusions for the Food, Drink and Milk Industries. Reference C/2019/7989, dated 12 November 2019.

If these BAT Conclusion documents are referenced within your Environmental Permit, then you will/have received a Regulation 61(1) Notice from the Regulator. SLR are on hand to assist should you require assistance with:

• Interpreting the updated BAT Conclusions and how they apply to your installation.
• Designing a strategy to achieve compliance with Regulation 61(1).
• Completing the Regulation 61(1) response and submitting to the Regulator.

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[1]Under Directive 2010/75/EU of the European Parliament and of the Council