Developing a Framework for Effective Air Quality Management
3.7 Implementation of Air Quality Plans
3.7.11 United Kingdom Air Quality Management Program
3.7.11.1 Overview
Similar to the United States, the United Kingdom has split their environmental enforcement obligations among a few different groups. One group is the Environment Agency. "They are the biggest organization protecting and improving the environment in England and Wales. They were set up under the Environment Act 1995 and given certain duties and powers. They are a public body – around 60 percent of their funding comes from Government, and most of the rest comes from various charging schemes. They are independent but work closely with the Government to get the best possible results for the environment" (“What We Do,” 2008). England's Environment Agency addresses more than air quality. They work to protect people from flooding, they work with industry to protect environment and human health, they focus their efforts on higher risk businesses who are potentially more hazardous to the environment, they work to guide businesses to use their resources more efficiently, they take action against those who do not take their environmental responsibilities seriously, the look after wildlife, help people to get the most out of their environment, work with farmers, and work to influence the government and industry and local authorities to make the environment a priority.
3.7.11.2 The UK Environment Agency and their Enforcement and Prosecution Policy
The Environment Agency has several options when it comes to recourse. "The powers available include enforcement notices and work notices (where contravention can be prevented or needs to be remedied), prohibition notices (where there is an imminent risk of serious environmental damage), suspension or revocation of environmental licenses, variation of license conditions, injunctions and the carrying out of remedial works. Where the Agency has carried out remedial works, it will seek to recover the full costs incurred from those responsible" (“Enforcement and Prosecution Policy,” 2008). The Agency opts to use measures such as these when prosecution is not the best solution. For more clarification, "a caution is the written acceptance by an offender that they have committed an offense and may only be used where a prosecution could properly have been brought. It will be brought to the Court's attention if the offender is convicted of a subsequent offense. A warning is a written notification that, in the Agency's opinion, an offense has been committed. It will be recorded and may be referred to in subsequent proceedings" (“Enforcement and Prosecution Policy,” 2008).
In addition to these more minor enforcement actions, the Environment Agency also has the power to prosecute companies or persons whom they feel have committed a serious enough environmental crime. In these cases the Environment Agency will refer the crime to the Magistrates' Court, or if the crime is severe enough, then the Environment Agency may request that the case go to a higher court, the Crown Court. The courts have the ability to give unlimited fines and the higher courts may impose imprisonment. Some examples of potential court penalties include, "Magistrates' Court; up to 6 months imprisonment and/or £20,000 fine. Crown Court; up to 5 years imprisonment and/or an unlimited fine. The Agency will always seek to recover the costs of investigation and Court proceedings" (“Enforcement and Prosecution Policy,” 2008). As of 2006, Wales is attempting to increase the £20,000 fine to £50,000 and the six months imprisonment to 12 months. The following circumstances are ones in which the Agency would typically prosecute, as long as there is sufficient evidence: "1. Incidents or breaches which have significant consequences for the environment or which have the potential for such consequence, 2. Carrying out operations without a relevant license, 3. Excessive or persistent breaches of regulatory requirements, 4. Failure to comply or to comply adequately with formal remedial requirements, 5. Reckless disregard for management or quality standards, 6. Failure to supply information without reasonable excuse or knowingly or recklessly supplying false or misleading information, 7. Obstruction of Agency staff, 8. And Impersonating Agency staff" (“Enforcement and Prosecution Policy,” 2008).
Lastly, the Environment Agency is not the only body in charge of enforcement. If another agency, in addition to the Environment Agency, has the ability to prosecute an offender, the Agencies will work together to avoid inconsistencies.
3.7.11.3 DEFRA (Department for Environment, Food, and Rural Affairs) and their Enforcement Policy
Defra is an additional agency geared towards making a better overall Environment for England. They are responsible for environmental protection, food production and standards, agriculture, fisheries, and rural communities. Air quality, along with climate change and energy, are part of what Defra works to protect. When it comes to climate change and energy, Defra has the following interest in, "making a full contribution, domestically and internationally, to addressing the long-term threats presented by climate change and unsustainable energy use, and to ensure adequate mitigation of the consequences which are already unavoidable" (“Climate Change and Energy,” 2005). Defra works along with England's Local Air Quality Management (LAQM) groups. The job of the LAQMs is to assess current and future air quality and help local areas to obtain air quality objectives. These activities are overseen by Defra. They work together for enforcement purposes.
When it comes to enforcement of regulations, Defra, like the Environment Agency, also has the ability to take actions against an offender up to the point of prosecution. However, prior to prosecution, Defra has several types of Notices it can distribute to help get the offender back on track. One type of Notice is the Enforcement Notice. "Regulation 24 allows the local authority to serve an enforcement notice if it believes an operator has contravened, is contravening, or is likely to contravene any permit conditions. Enforcement notices may include steps to remedy the effects of any harm and to bring an installation back into compliance" (“Chapter 28: Enforcement”, 2003). If an offender fails to comply with a notice, they will be liable for a fine or imprisonment, depending on the offense. A second type of notice is the Suspension Notice. "If, in the opinion of the local authority, the operation of an installation involves an imminent risk of serious pollution, the authority must serve a suspension notice under regulation 25 unless the authority intends to take action under regulation 26 (power of regulator to prevent or remedy pollution)…If the operator continues to operate the installation in question the part thereof which has been suspended, the notice will be breached. When the operator has taken the remedial steps required by the notice, the local authority must withdraw it. Authorities may withdraw a suspension notice at any time" (“Chapter 28: Enforcement”, 2003). As another option, Defra may serve installations with a Revocation Notice. "Under regulation 21, the local authority can revoke a permit by written notice at any time, in whole or in part, by serving a revocation notice…The permit then ceases to authorize the operation of the installation or an activity within it, (a partial revocation) depending upon what is specified in the notice…The local authority may use revocation whenever appropriate. Revocation may be appropriate where exhaustive use of other enforcement tools has failed to protect the environment properly" (“Chapter 28: Enforcement”, 2003). Finally, there is a Formal Caution. "Where a prosecution is not the most appropriate course of action, the local authority should consider issuing a formal caution and may increase the inspection frequency. As with conviction, the local authority must place details of any formal caution on the public register. Formal cautions must be removed from the register after 5 years" (“Chapter 28: Enforcement”, 2003).
Defra recognizes that there may be instances where a notice may not be the best course of action. More immediate action may be necessary. If a local authority feels that an installation is imposing an imminent risk of pollution, they have the option of skipping a suspension notice and going into the installation to remove the problem. "This may take the form, for example, of removing or making safe chemicals or ensuring safety works are carried out" (“Chapter 28: Enforcement”, 2003). If an installation causes pollution, the local authority may go ahead and remedy the situation at the operator's expense. However, if the operator of the installation can show that there was no imminent risk of serious pollution or the local authority is charging the operator for unnecessary costs, then the operator does not have to pay for the costs.
For more specific information regarding notices and offences, please visit http://www.defra.gov.uk/environment/ppc/localauth/pubs/guidance/manuals.htm and click on "manual" for the entire Secretary of State's Guidance: General Guidance Manual on Policy and Procedures for A2 and B Installations.
3.7.11.4 DEFRA and the LA-IPPC (Local Authority Integrated Pollution Prevention and Control) Risk Method
The United Kingdom government notes that it is beneficial to the country if installations that pose the highest environmental threat are monitored more closely than other installations. Thus, it is up to Defra and the LAQMs to use the Risk Method to determine which companies are, in fact, the greatest threat. The method assigns a level of high, medium, or low depending on their level of threat. The assessment is broken into two major categories, "Environmental Impact Appraisal (EIA), which concerns the potential environmental impacts of an activity according to its type, level of upgrading to meet regulatory requirements, and its location and Operator Performance Appraisal (OPA), which relates to how well the operator manages the potential environmental impact of the activity" (“LA-IPPC Risk Method”, 2005). Within these two major groupings there are seven sub groups that each have a numbered scoring method. The seven groups are as follows, "1. Inherent Environmental Impact Potential of Activity, 2. Progress with Upgrading, 3. Sensitivity and Proximity of Receptors, 4. Other Targets, 5. Compliance Assessment, 6. Monitoring, Maintenance, and Records, and finally, 7. Management, Training, and Responsibility" (“LA-IPPC Risk Method”, 2005). For enforcement purposes, the Compliance Assessment score is very useful. If any incidence of non-compliance has occurred in the past 12 months before this assessment, then the risk score is raised. Thus, companies that have proved non compliant in the past will be watched more carefully in the future.
Once the final score is determined, the air quality regulators have a better idea of how much regulatory effort each installation will require. "Regulatory effort refers to the time taken to regulate an activity that is dependant upon the activity's characteristics. This includes both time spent on inspections and time spent at the office preparing for inspections, writing reports and reviewing data supplied by operators. The average regulatory time spent per activity is estimated to vary from 50 – 70 hours per year…Note that it is not intended that application of the risk-based method should lead to a significant reduction in overall regulatory effort; rather effort should be prioritized towards those activities posing the greatest risk of environmental pollution" (“LA-IPPC Risk Method”, 2005). This risk-based method is not used in the United States.
Similar to the United States, the United Kingdom has split their environmental enforcement obligations among a few different groups. One group is the Environment Agency. "They are the biggest organization protecting and improving the environment in England and Wales. They were set up under the Environment Act 1995 and given certain duties and powers. They are a public body – around 60 percent of their funding comes from Government, and most of the rest comes from various charging schemes. They are independent but work closely with the Government to get the best possible results for the environment" (“What We Do,” 2008). England's Environment Agency addresses more than air quality. They work to protect people from flooding, they work with industry to protect environment and human health, they focus their efforts on higher risk businesses who are potentially more hazardous to the environment, they work to guide businesses to use their resources more efficiently, they take action against those who do not take their environmental responsibilities seriously, the look after wildlife, help people to get the most out of their environment, work with farmers, and work to influence the government and industry and local authorities to make the environment a priority.
3.7.11.2 The UK Environment Agency and their Enforcement and Prosecution Policy
The Environment Agency has several options when it comes to recourse. "The powers available include enforcement notices and work notices (where contravention can be prevented or needs to be remedied), prohibition notices (where there is an imminent risk of serious environmental damage), suspension or revocation of environmental licenses, variation of license conditions, injunctions and the carrying out of remedial works. Where the Agency has carried out remedial works, it will seek to recover the full costs incurred from those responsible" (“Enforcement and Prosecution Policy,” 2008). The Agency opts to use measures such as these when prosecution is not the best solution. For more clarification, "a caution is the written acceptance by an offender that they have committed an offense and may only be used where a prosecution could properly have been brought. It will be brought to the Court's attention if the offender is convicted of a subsequent offense. A warning is a written notification that, in the Agency's opinion, an offense has been committed. It will be recorded and may be referred to in subsequent proceedings" (“Enforcement and Prosecution Policy,” 2008).
In addition to these more minor enforcement actions, the Environment Agency also has the power to prosecute companies or persons whom they feel have committed a serious enough environmental crime. In these cases the Environment Agency will refer the crime to the Magistrates' Court, or if the crime is severe enough, then the Environment Agency may request that the case go to a higher court, the Crown Court. The courts have the ability to give unlimited fines and the higher courts may impose imprisonment. Some examples of potential court penalties include, "Magistrates' Court; up to 6 months imprisonment and/or £20,000 fine. Crown Court; up to 5 years imprisonment and/or an unlimited fine. The Agency will always seek to recover the costs of investigation and Court proceedings" (“Enforcement and Prosecution Policy,” 2008). As of 2006, Wales is attempting to increase the £20,000 fine to £50,000 and the six months imprisonment to 12 months. The following circumstances are ones in which the Agency would typically prosecute, as long as there is sufficient evidence: "1. Incidents or breaches which have significant consequences for the environment or which have the potential for such consequence, 2. Carrying out operations without a relevant license, 3. Excessive or persistent breaches of regulatory requirements, 4. Failure to comply or to comply adequately with formal remedial requirements, 5. Reckless disregard for management or quality standards, 6. Failure to supply information without reasonable excuse or knowingly or recklessly supplying false or misleading information, 7. Obstruction of Agency staff, 8. And Impersonating Agency staff" (“Enforcement and Prosecution Policy,” 2008).
Lastly, the Environment Agency is not the only body in charge of enforcement. If another agency, in addition to the Environment Agency, has the ability to prosecute an offender, the Agencies will work together to avoid inconsistencies.
3.7.11.3 DEFRA (Department for Environment, Food, and Rural Affairs) and their Enforcement Policy
Defra is an additional agency geared towards making a better overall Environment for England. They are responsible for environmental protection, food production and standards, agriculture, fisheries, and rural communities. Air quality, along with climate change and energy, are part of what Defra works to protect. When it comes to climate change and energy, Defra has the following interest in, "making a full contribution, domestically and internationally, to addressing the long-term threats presented by climate change and unsustainable energy use, and to ensure adequate mitigation of the consequences which are already unavoidable" (“Climate Change and Energy,” 2005). Defra works along with England's Local Air Quality Management (LAQM) groups. The job of the LAQMs is to assess current and future air quality and help local areas to obtain air quality objectives. These activities are overseen by Defra. They work together for enforcement purposes.
When it comes to enforcement of regulations, Defra, like the Environment Agency, also has the ability to take actions against an offender up to the point of prosecution. However, prior to prosecution, Defra has several types of Notices it can distribute to help get the offender back on track. One type of Notice is the Enforcement Notice. "Regulation 24 allows the local authority to serve an enforcement notice if it believes an operator has contravened, is contravening, or is likely to contravene any permit conditions. Enforcement notices may include steps to remedy the effects of any harm and to bring an installation back into compliance" (“Chapter 28: Enforcement”, 2003). If an offender fails to comply with a notice, they will be liable for a fine or imprisonment, depending on the offense. A second type of notice is the Suspension Notice. "If, in the opinion of the local authority, the operation of an installation involves an imminent risk of serious pollution, the authority must serve a suspension notice under regulation 25 unless the authority intends to take action under regulation 26 (power of regulator to prevent or remedy pollution)…If the operator continues to operate the installation in question the part thereof which has been suspended, the notice will be breached. When the operator has taken the remedial steps required by the notice, the local authority must withdraw it. Authorities may withdraw a suspension notice at any time" (“Chapter 28: Enforcement”, 2003). As another option, Defra may serve installations with a Revocation Notice. "Under regulation 21, the local authority can revoke a permit by written notice at any time, in whole or in part, by serving a revocation notice…The permit then ceases to authorize the operation of the installation or an activity within it, (a partial revocation) depending upon what is specified in the notice…The local authority may use revocation whenever appropriate. Revocation may be appropriate where exhaustive use of other enforcement tools has failed to protect the environment properly" (“Chapter 28: Enforcement”, 2003). Finally, there is a Formal Caution. "Where a prosecution is not the most appropriate course of action, the local authority should consider issuing a formal caution and may increase the inspection frequency. As with conviction, the local authority must place details of any formal caution on the public register. Formal cautions must be removed from the register after 5 years" (“Chapter 28: Enforcement”, 2003).
Defra recognizes that there may be instances where a notice may not be the best course of action. More immediate action may be necessary. If a local authority feels that an installation is imposing an imminent risk of pollution, they have the option of skipping a suspension notice and going into the installation to remove the problem. "This may take the form, for example, of removing or making safe chemicals or ensuring safety works are carried out" (“Chapter 28: Enforcement”, 2003). If an installation causes pollution, the local authority may go ahead and remedy the situation at the operator's expense. However, if the operator of the installation can show that there was no imminent risk of serious pollution or the local authority is charging the operator for unnecessary costs, then the operator does not have to pay for the costs.
For more specific information regarding notices and offences, please visit http://www.defra.gov.uk/environment/ppc/localauth/pubs/guidance/manuals.htm and click on "manual" for the entire Secretary of State's Guidance: General Guidance Manual on Policy and Procedures for A2 and B Installations.
3.7.11.4 DEFRA and the LA-IPPC (Local Authority Integrated Pollution Prevention and Control) Risk Method
The United Kingdom government notes that it is beneficial to the country if installations that pose the highest environmental threat are monitored more closely than other installations. Thus, it is up to Defra and the LAQMs to use the Risk Method to determine which companies are, in fact, the greatest threat. The method assigns a level of high, medium, or low depending on their level of threat. The assessment is broken into two major categories, "Environmental Impact Appraisal (EIA), which concerns the potential environmental impacts of an activity according to its type, level of upgrading to meet regulatory requirements, and its location and Operator Performance Appraisal (OPA), which relates to how well the operator manages the potential environmental impact of the activity" (“LA-IPPC Risk Method”, 2005). Within these two major groupings there are seven sub groups that each have a numbered scoring method. The seven groups are as follows, "1. Inherent Environmental Impact Potential of Activity, 2. Progress with Upgrading, 3. Sensitivity and Proximity of Receptors, 4. Other Targets, 5. Compliance Assessment, 6. Monitoring, Maintenance, and Records, and finally, 7. Management, Training, and Responsibility" (“LA-IPPC Risk Method”, 2005). For enforcement purposes, the Compliance Assessment score is very useful. If any incidence of non-compliance has occurred in the past 12 months before this assessment, then the risk score is raised. Thus, companies that have proved non compliant in the past will be watched more carefully in the future.
Once the final score is determined, the air quality regulators have a better idea of how much regulatory effort each installation will require. "Regulatory effort refers to the time taken to regulate an activity that is dependant upon the activity's characteristics. This includes both time spent on inspections and time spent at the office preparing for inspections, writing reports and reviewing data supplied by operators. The average regulatory time spent per activity is estimated to vary from 50 – 70 hours per year…Note that it is not intended that application of the risk-based method should lead to a significant reduction in overall regulatory effort; rather effort should be prioritized towards those activities posing the greatest risk of environmental pollution" (“LA-IPPC Risk Method”, 2005). This risk-based method is not used in the United States.
