Summary

The Environment Agency is responding to the compliance difficulties that businesses face as a result of COVID-19 with some much needed reassurance as to its enforcement position.

In the last few days, the Environment Agency of England & Wales (“EA”) has published thirteen regulatory position statements (“COVID-19 RPSs”) that set out its regulatory enforcement response to short term compliance shortcomings resulting from the current pandemic.

Each COVID-19 RPS sets out specific situations where environmental permitting and other compliance responsibilities are hard to meet in the current climate, and a series of achievable conditions that, if met, will mean that the EA will not normally take enforcement action for breach of the responsibilities. 

The COVID-19 RPSs are in effect for a limited time, with each RPS specifying a withdrawal date (which may be extended by the EA). 

The list of COVID-19 RPSs is as follows:

C1           Storing or treating COVID-19 cleansing waste at a healthcare waste management facility

C2           Exceeding waste storage limits at permitted sites because of COVID-19

C3           Water and sewerage company operator self monitoring and Urban Waste Water Treatment Regulations sampling affected by COVID-19

C4           Incinerating specified healthcare wastes at a municipal waste incinerator

C5           PPE waste from home healthcare workers treating patients with COVID-19

C6           Storing treated sewage sludge that cannot be move because of COVID-19 restrictions

C7           Monitoring emissions from installations, radioactive substances and waste activities

C8           Social distancing when signing and handing over waste transfer and consignment notes in person

C9           COVID-19 and packaging waste: registering as a packaging producer

C10         Reporting for installations, radioactive substances and waste permits

C11         Emissions to air from large combustion plant during black start events

C12         COVID-19 and spreading slurry or milk on land, or storing slurry

C13         Accumulating radioactive waste that cannot be transferred because of COVID-19

By way of commentary:

• The EA recognises that the restrictions surrounding COVID-19 are making compliance very difficult and, in a number of situations, is not insisting on compliance for the sake of it. Flexibility from the EA is welcome in these difficult times.
• That said, many of the situations where compliance leeway is granted are very narrow indeed. Furthermore, even in these narrow situations, the EA has set out conditions that must be met before the leeway is granted and is still generally expecting everyone that they regulate to take all reasonable steps they can to comply with relevant legislation.   The COVID-19 RPSs certainly do not give carte blanche to permit holders to ignore environmental regulation generally during this period. 
• It is also important to note that the COVID-19 RPSs do not impact other regulatory requirements that fall outside their specific terms, which must still be complied with.