In this article Senior Environmental Consultant, Clare Fowell and Specialist Health and Safety Solicitor Julia Thomas discuss the environmental obligations on businesses coming out of lockdown and the potential risks to keep in mind.
During the coronavirus pandemic, the Environment Agency (EA) has recognised the difficulties that businesses may be facing and have put in place some changes via temporary COVID-19 Regulatory Position Statements (COVID-19 RPSs). The RPSs are designed to help businesses minimise risks to the environment and human health, and they identify the specific circumstances where normal regulatory requirements are being relaxed.
However, the EA has made it clear that it expects business to take all reasonable steps to comply with regulatory requirements, and if this is not possible due to exceptional circumstances, then they expect to be notified and unavoidable non-compliance prioritised. The pandemic will not be seen as a reasonable excuse for non-compliance.
The EA has stated in its regulatory response to coronavirus (28 April 2020) that it will consider the appropriate enforcement response to non-compliance based on:
- the extent to which the business minimised unavoidable non-compliance and prioritised the regulatory requirements that protected the environment and human health,
- the impact of coronavirus on the business’ activities, supported by records showing why the non-compliance occurred,
- the effect of any COVID-19 RPS.
The COVID-19 RPSs cover particular circumstances within agriculture, environmental permitting monitoring and reporting, radioactive substances, large combustion plants, waste management, and the water industry. Business must comply with the specific conditions within the RPS and the requirements concerning the prevention of pollution and harm to human health. Each COVID-19 RPS has a withdrawal date, after which time business must comply fully with its permit.
Business must ensure that as sites are reopened, or as work or production is increased following lockdown, it mitigates the risk of enforcement action from the EA by keeping on top of how they are meeting their environmental compliance obligations. This may be more challenging with reduced numbers of staff due to social distancing requirements, furlough or even redundancies.
A compliance audit or gap analysis of where the business is now compared to where it needs to be is a useful tool to understanding environmental risks. Coming out of lockdown is an opportunity to manage the compliance requirements more effectively which will help to reduce risks and identify opportunities to improve.
Important areas to consider are:
Waste
Check any new waste Duty of Care requirements, particularly if generating more waste or different types of waste due to changes to offices or sites to implement social distancing measures, or when removing waste that has been stored on site during lockdown. Ensure that any waste is removed only by a registered waste carrier and taken to a permitted waste site.
During lockdown, there has been an increase in waste criminals targeting empty land and property and using it as illegal waste sites. Therefore, business should also check that there has been no fly tipping or illegal waste storage on its sites as they reopen.
If COVID-19 RPS C2 has been used to exceed the waste storage limit under an environmental permit, then the current withdrawal date is the 30 September 2020.
Permit Compliance
Check that the environmental monitoring and reporting requirements within an environmental permit have continued to be followed during lockdown. Unless the use of COVID-19 RPS C7 has been agreed with the EA to delay or reschedule these requirements, you need to continue as normal regardless of any difficulties due to a lack of staff or monitoring contractors, or site coronavirus management restrictions. The current withdrawal date of COVID-19 RPS C7 is the 30 September 2020, after which any agreed changes will cease.
Energy and Carbon Reporting
Check that energy use data is still being collected to ensure that environmental performance can continue to be tracked to provide efficiency, cost-savings and to comply with company requirements or legislation such as the Streamlined Energy and Carbon Reporting (SECR) requirements.
Water Use
Similar to energy use, also check that mains water use data is being collected as a key environmental performance indicator.
Check that, where applicable, abstraction licence returns for 2019/20 are made to the EA. The deadline of 30 April has been delayed until an unspecified date later in the year, but businesses should be ready to report. The EA has also indicated that alternative payment arrangements may be possible if the business is having difficulties paying their abstraction invoice.
Legionella
With the easing of lockdown many businesses are returning to premises which may not have been in use for 11 weeks or more.
Any system that uses water can be a legionella risk if any of the following conditions exists:
- The system stores or re-circulates water.
- Legionella is present in the water system.
- The water in the system is around 20 – 45°
- The system can create and spread water droplets that can be inhaled (aerosols).
- The system could feed the legionella organism through the presence of chemicals , impurities, or waste products.
Dutyholders should be considering the risk from bacteria such as legionella, having built up in their water systems and checking all their systems which use water including hot and cold-water taps, cooling towers, and other plant and/or systems that either create or use water during their operation. Effective measures to control the risk of the development of legionella should be identified in risk assessments.
If legionella is present, premises may need to be kept out of use. The discovery of the bacteria in London’s Lincoln’s Inn earlier this month for example, not only caused disruption to business and to the water supplies of residents, but was costly to those responsible for the Inn as alternate washing facilities and drinking water had to be provided.
The duties owed to others under the Health and Safety at Work etc. Act 1974, apply to the obligation to control the risk of legionella. This includes duties by employers to employees and others (sections 2 and 3), directors and managers to employees and others (section 37) and by employees to others (section 7). Breach of these duties is punishable with fines and, for individuals, with imprisonment.
The prosecution of Gillian Beckingham following an outbreak of legionella in Barrow in Furness, which led to 180 people becoming ill and 7 fatalities, and which concluded in July 2006, remains as a stark warning that it is not just corporate landlords and employers who may have liability. Ms Beckingham was the design services manager for Barrow Council which in turn was responsible for a building on which was situated an air conditioning unit. Ms Beckingham cancelled a contract that had ensured that the air conditioning unit was regularly tested which allowed the growth of the harmful bacteria. Although charged with but acquitted of manslaughter, Ms Beckingham was found guilty of a breach of section 7 and was fined £15,000. The Council was fined £125,000 for breaching Section 3(1) of the HSWA 1974, to which it had earlier pleaded guilty and ordered to pay prosecution costs of £90,000.
The case highlights the need for all those responsible for the management of systems which carry a risk from legionella to take the risks from legionella, seriously.
Finch can assist you in meeting your health, safety, and environmental compliance obligations through the provision of advisory, auditing, compliance, risk management and legal services to allow the safe and effective operation of your business.
If you wish to discuss your business needs, please contact
Clare Fowell – Senior Environmental Consultant
Julia Thomas – Health and Safety Solicitor
