Consultation on modernising environmental permitting for industry

In contrast to the EA-led development of GET outlined in Chapter 1, which has quickly developed standards for key emerging sectors, standards which fall within departmental and parliamentary purview generally take much longer to update and have therefore been neglected. This is because government and legislative structures are not as well placed to determine complex technical process guidance as experts sitting within regulators and industry.  For example, standards for many Part B sectors have not been updated since the 1990s, with the most recent sector review completed in 2013. For Part A sectors, while the first two tranches of reviews through the new UK BAT process are progressing well, they will likely take 3 to 4 years in total to develop and undergo departmental and legislative processes. The main cause of delay is that the current system requires scrutiny and approval of highly detailed and technical requirements on the design of industrial processes from many different parts of government as well as parliament. The delay in publication of the standards undermines regulatory and investment certainty for industry. It also delays improvement to environmental and health outcomes, with a significant lag in improvements between Part A and Part B sectors.   

The UK BAT process for developing BAT for Part A sectors involves the UK and devolved governments initiating the review of BAT for a specific sector and commissioning the UK BAT team (which is part of the EA, but support the engagement of all UK regulators and industry in UK BAT processes) to set up a Technical Working Group (TWG) involving industry and other experts from NGOs and civil society. This TWG will undertake a detailed co-design process involving technical data collection and analysis to establish BAT for the sector in line with requirements set out in the EPRs and IED. Once this process is complete, the TWG will send the draft BAT conclusions to the Standards Council which will scrutinise them before recommending them to UK and devolved government ministers who, if in agreement, will then consult on them under the consultation on the statutory instrument that puts them into effect. This requirement to bring in a statutory instrument was set out in the Environment and Wildlife (Legislative Functions) (EU Exit) Regulations 2019 at EU Exit.  

The UK BAT process works as an independent, evidence-based, consensus-driven process and it is well established and understood by industry leading to high compliance. The process supports industry investment with thorough reviews of standards and sufficient lead times to enable the proper planning of upgrades. The UK BAT process has delivered draft BAT standards quicky – the standards for some BAT sector reviews under Tranche 1 were delivered in 6 to 8 months. The adoption of those standards is not maintaining that pace. 

BAT for Part B installations is defined in Schedule 8, Section 2 of the EPRs. While there is not an established process for updating Part B BAT as there is for Part A installations under UK BAT, the most recent review for crematoria followed a more streamlined version of the same process. This was led by the Local Authority Unit (LAU) hosted by the EA. The main difference is that the BAT is ultimately published via statutory government guidance to regulators rather than a statutory instrument.  

We would like to work with the devolved governments to consider an alternative approach, whereby the EPRs and accompanying guidance would set out in greater detail how BAT should be developed and how it should align with government policies. Regulators would then be required to develop, consult on and adopt BAT in line with a process set out in the EPRs (and equivalent devolved government legislation) in much quicker time. This would not involve asking regulators to take policy decisions, as key policy criteria on the scope and aims of BAT would be set out in the EPRs. Instead, it would give responsibility for the technical ‘micro-design’ of BAT to the regulators and industries which will have to implement these standards once they are developed. 

This change could be delivered through a duty on regulators to set and update BAT, within a clear legislative framework that aligns with UK and devolved government priorities and includes protections to ensure transparency, openness and accountability. This framework could cover: 

• requirements for regulators to co-produce standards with local authorities, industry, experts and civil society, through an open, consensus and evidence driven process, which considers international standards alongside UK data 

• alignment with governmental priorities and environmental targets 

• mechanisms to support alignment of BAT across the UK 

• mechanisms for proper technical oversight and scrutiny 

• requirements for detailed consideration of impacts on industry through cost-benefit analysis and impacts on economic growth 

• public consultation requirements on the proposed BAT 

• mechanisms for ministers to intervene to direct regulators on BAT if there is a wider public interest 

• mechanisms for independent appeal 

In England, the EA would likely be well placed to update standards for both EA and local authority regulated activities as EA experts already in practice lead on both UK BAT (Part A) and Part B BAT reviews. Defra could work with the EA to develop bespoke arrangements to ensure proper oversight and close engagement and consultation with local authorities, and to ensure that EA is appropriately funded and resourced to carry out this role. 

Though regulators already set detailed technical standards in practice, this would be a substantial change in principle. By embedding in statute the existing process of co-design of technical standards, we would be able to provide appropriate transparency and challenge safeguards and so strengthen regulatory processes while speeding them up.  Placing the current working arrangements on a sound statutory footing would improve transparency, openness, and accountability in the, necessarily, complex and detailed process of setting industrial standards. 

We would work with the devolved governments to agree a UK-wide approach for larger industries covered by the joint UK BAT system and consider how Part B sectors have standards set across the UK. Based on responses to this consultation, we will consult in more detail on this proposal and the design of a new standards-setting process in due course.  Industrial sectors already undergoing UK BAT standards reviews (‘Tranche 1’ and ‘Tranche 2’ sectors) will not be impacted by this proposal. However, any issues identified in early use of the UK BAT process can be used to inform new UK BAT tools and an improved approach for future UK BAT reviews. Any significant changes to the approach would require a revision of the BAT Common Framework.