Environmental permitting and site condition assessment
Dr Tom Henman, Director, RSK Environment Ltd
Many industrial operators are looking to surrender their industrial environmental permits – regulated under either the Environmental Permitting (England and Wales) Regulations 2016 or Pollution Prevention and Control (Scotland) Regulations 2012 – as part of ongoing consolidation or other changes. RSK has worked on several such projects in recent years, so has collated some lessons learned to help operators to achieve permit surrender as quickly and cost-effectively as possible.
Permit surrender can be a complex and lengthy process, particularly for sites that have operated for many years. One of the key challenges in achieving permit surrender is that the site operator must demonstrate to the regulator’s satisfaction that the land is in a “satisfactory state” with no remaining risk of pollution occurring. This means no deterioration in land quality from releases to soil or groundwater throughout the site’s operation under the permit, otherwise site remediation will be required.
Our experience shows you can never start the surrender process too early. A key aspect in demonstrating that the permitted activities have not led to releases to soil and groundwater is providing detailed documentary evidence of the pollution prevention measures in place and how they have been inspected, tested and maintained over the lifetime of the permit. Similarly, any pollution incidents need to have been recorded and assessed for likely impacts. Getting these records together usually takes time, so it is best to start this while the site is still operational and key staff with relevant knowledge are in post. This also enables operators to focus on any identified gaps in records and where other data gathering may be needed to supplement this.
Keep dialogue going with the regulator
It is also best to start dialogue with the regulator early to inform the process and to maintain this throughout the process to ensure that its expectations are met and the surrender application proceeds smoothly. There will usually be a need for input from the regulator’s land contamination and groundwater specialists and local and/or national permitting staff. It is preferable to select a consultant who is well versed in such dialogue. Note that the Environment Agency (EA) may now require an applicant to apply for a pre-application consultation to engage with the specialists before submitting the formal permit surrender application. The EA charges for this but it may well save time later.
Use a phased approach
The first stage in the surrender process is to collate and review the detailed records regarding site operations over the lifetime of the permit. This informs an assessment of the risk of releases to soil and groundwater from the permitted activities, as opposed to other sources, for example, those predating the permit or migration from off-site sources. Except for low-impact surrender applications, an intrusive site investigation (SI) is usually required by the regulator to quantify the final condition and enable comparison with a baseline dating from when the permit was first issued (usually under the earlier pollution prevention and control regime). It is best to engage with the regulator on the findings of the desk-based stage and the proposed scope of intrusive investigations so that all parties agree on the strategy and planned approach. This minimises the commercial risk before undertaking the more costly SI phase.
During the SI, contamination may be encountered that changes the assessment or leads to the SI strategy needing modification or a detailed risk assessment to avoid further phases of work. It is therefore important to retain a consultant who is highly experienced in permit surrenders for this phase.
Record decommissioning activity in detail
Decommissioning of operations is seen by regulators as a high-risk activity for releases to soil and groundwater. Robust record keeping, including providing risk assessments and method statements, duty-of-care waste records, audit and/or inspection findings and a photographic record, is crucially important for all decommissioning, either during the lifetime of the permit or at surrender. This enables the operator to demonstrate to the regulator that decommissioning has been managed effectively and that no unacceptable releases to ground have occurred.
What is the baseline condition?
During the later stages, the surrender process typically involves comparing the baseline condition of soil and groundwater from the start of the permit with the condition at permit surrender. Remediation is required for any deterioration that is attributable to the permitted activities. This is irrespective of risks to receptors, so is potentially onerous.
Comparing baseline and surrender conditions is an imperfect process, as there are many restrictions on sampling on permitted sites for safety and operational reasons. This, along with changes in sampling and testing methods over time, can hamper the assessment of significant changes in site condition. However, more significantly, many sites regulated under the pollution prevention and control regime from the early 2000s did not obtain or had very limited baseline data, despite operating before permit issue. In this scenario, the regulator could, in principle, require remediation back to virgin conditions.
RSK has developed statistical approaches to inform such assessments and to minimise the need for site remediation that have gained regulatory acceptance. We also offer National Quality Mark Scheme (NQMS) accreditation of our reports, which helps to facilitate regulatory approval.
Once the site assessment is complete, the permit surrender application can then be made to the regulator by the operator or by RSK on the operator’s behalf. An application fee is payable at that point.
Stay in control of the site
In our experience, if control of the site is handed to a third party before permit surrender, this can significantly affect the surrender process. For example, new activities or development can inadvertently cause pollution incidents or changes in contaminant distribution through, for example, the removal of hardstanding. This is likely to delay achieving permit surrender and can lead to uncertainty about who is responsible for undertaking site remediation.
If you do need to hand a site to a third party, consider undertaking a detailed site audit, create a photographic record first and retain oversight or auditing of activities until permit issue has been achieved.
RSK has a proven track record of achieving permit surrenders and working closely with operators and regulators (the EA, Natural Resources Wales and the Scottish Environment Protection Agency) to meet all regulatory requirements. More details of our capability and case studies are shown here.