Emma Tattersdill - Responding to Environment Agency Site Visits

Earlier this month, it was reported that the operator of a waste facility was fined £3000 and ordered to pay prosecution costs for obstructing Environment Agency officers who wanted to check that the site was being operated in accordance with the conditions of an environmental permit and that appropriate pollution control measures were in place: (https://www.gov.uk/government/news/east-london-waste-boss-fined-for-obstructing-site-checks).

Environment Agency officers have relatively wide powers of entry when monitoring permit compliance or investigating potential offences, as well as powers to gather and compel the provision of evidence. Obstructing an officer in the exercise of such powers is a criminal offence.

In an ideal world, the operator of any regulated facility will never breach their environmental permit and never have to deal with an environmental accident. In the real world, though, even the most reputable operators can find themselves dealing with an unexpected environmental incident and, possibly, breach of environmental permitting requirements. How the operator responds to the challenge can have huge impacts.

Naturally, in the event of an incident, one of the main priorities will be swift action to minimise the risk of environmental harm. However, co-operation with the regulator – in the immediate response to an incident and during any investigation into regulatory compliance – can reflect positively on the operator when the regulator is deciding what, if any, enforcement action is appropriate or – in a worst case scenario – when a court is deciding on sanction in the event of prosecution and conviction.

Most environmental permits include an obligation to self-report permit breaches or incidents causing environmental harm in any event. Failing to do so may be a criminal offence and will simply compound the original problem. It follows that it is important to understand what the permit requires, in the event of an incident, as well as the regulator’s powers of entry and investigation.

However, it is also important to understand that the regulator’s powers come with protections for the operator, such as a right to legal representation when being asked questions under caution. Of course, I am not talking, here, of demanding the Environment Agency pays an inspection fee or provides insurance documents as is reported to have happened in the East London case! However, it should be possible to co-operate with the Environment Agency while also fairly benefitting from relevant legal protection. The challenge may be knowing where the balance lies and how to react – especially in the heat of the moment when there is little time to reflect.

It perhaps goes without saying, then, that planning in advance can bring very real benefits. Most operators will have an incident response plan in place but do those “on the ground” know how to respond to Environment Agency officers attending site? Who will take control? Do they understand the nature and extent of the Environment Agency’s powers? Do they have the name of a suitably experienced lawyer they can call for immediate advice and, if necessary, representation?