Keeping the Authorities off the Scent

Thursday 14th June 2018

If you operate a regulated facility then your environmental permit will contain conditions to protect the environment and human health, often including an odour boundary condition.

A number of older permits issued by the Environment Agency and local authorities require that:

“There shall be no offensive odours beyond the installation boundary (outlined in red in the attached plan) as perceived by the Regulator.”

This wording creates a risk for businesses as it allows a subjective assessment of compliance by an officer from the regulator. If the regulator thinks there is an offensive odour at your facility’s boundary then they can take action as a failure to comply with a permit condition is an offence.

The regulator can issue a warning, caution or even prosecute your business (and you personally) for any “perceived offensive odours beyond your facility’s boundary.” Aside from the costs and disruption of dealing with an investigation the threat of higher fines in environmental cases coupled with associated orders following a conviction can have a long term damaging impact on your business.

Alternatively, a Regulator can serve a variety of enforcement notices including those which can suspend, partially suspend or revoke your permit. Even if you succeed in overturning an enforcement notice or discharge it by meeting the additional criteria imposed, you will still have to deal with the costs and reputational damage caused to your business, if you had to close temporarily or reduce your operational capacity.

However, the Environment Agency’s guidance suggests that an odour boundary condition should contain the ‘appropriate measures defence’ within the wording of the condition. This removes the subjective element of the condition and allows businesses to put forward evidence of compliance with the condition, not only to the Regulator, but if necessary to a Court.

The wording of your permit conditions are important, especially where the effects of not complying with them could have a significant adverse impact on your business. There are actions you can take to protect your business, such as varying your permit conditions to include a defence or remove the subjective element of a compliance assessment.

If you would like further information on reviewing your permit conditions or support in dealing with an investigation or enforcement action by a Regulator please contact Andrew Logan.