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January 31, 2019

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Environmental Legislation

Environment Agency publishes response to the Compliance Classification Scheme guidance consultation

Earlier this month, the Environment Agency published its response to replies received from permitted site operators, Trade Associations and Non-Governmental Organisations following an external consultation into the operation and application of the Compliance Classification Scheme (‘CCS’) Guidance. Tim Hill, Partner, and Dean Hickey, Associate, from Eversheds Sutherland LLP explains what this means for operators.

environmentUnder the CCS framework, Environment Agency Officers apply this guidance when assessing an operator’s compliance with their environmental permit. A breach by an operator is captured in a Compliance Assessment Report (‘CAR’) and categorised depending upon its actual or, in some cases, potential impact. Each category attracts a corresponding compliance score. These scores are compounded over a 12-month period (March to March) to determine an operator’s compliance banding (graded A–F) and subsistence fee for the coming year.

In summary, despite positive feedback from respondents, the Environment Agency determined not to act upon the proposals originally mooted in the consultation document. Specifically, the Environment Agency will now not enact the proposals to amend the way Emission Limit Values (‘ELVs’) scores are consolidated, suspend compliance scores for periods beyond six months to allow operators the time to achieve compliance, nor increase the Environment Agency’s response time on CAR forms from 14 to 28 days to allow for more detailed analysis to be included.
One common theme emerging from the replies was the clear need for consistency and transparency in the application of the CCS guidance by Environment Agency Officers. In its response, the Environment Agency acknowledged that this is an area of concern and has pledged “further training for regulatory staff” and “clearer guidance [for staff]” when determining a categorisation for a non-compliance.

Whilst those holding environmental permits for “installations”, waste operations and non‑nuclear radioactive substances will now fall under the new “principles-based” guidance, operators with permits which continue to be subject to the CCS regime will be liable to vagaries in the CCS guidance and the risk of inconsistent application of the same by their local Environment Agency Officer. That said, some comfort can be drawn from the Environment Agency’s recognition of the need for its Officers to receive further training and clearer guidance.

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