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8.1 Section 10 of the Act, when read with Part II of Schedule 1 to the Act, sets out the procedure to be followed when an enforcing authority decides to amend an extant authorisation. Section 11 and regulation 3 of the Environmental Protection [Applications, Appeals and Registers] Regulations 1992 S1507 explain what is required when an operator initiates a proposal to vary an authorisation.
8.2 Under section 10, the enforcing authority may serve a 'variation notice' on the operator, specifying the variations which it has decided to make and the date or dates on which they are to take effect. The operator has to respond with details of what action he intends to take to meet the terms of the variation notice - for example, what additional control equipment he will fit or what changes to his process technology he will introduce to meet any new emission standards set out in the notice. If the enforcing authority is of the opinion that this action will involve a substantial change (see paragraphs 8.9 and 8.10 below) in the manner in which the process is being carried on the proposal will be advertised by the operator and consulted upon as if an application were being made for an authorisation. There is no such requirement to consult or advertise where the change is not substantial but the enforcing authority will seek the views of the consulted authority before making any such change and the variation to the authorisation will be placed on the public registers.
8.3 The procedure is different where the operator initiates matters, under section 11. The usual first step for an operator wishing to make a relevant change in his process is to notify the enforcing authority of the fact and ask it to determine whether this would require a variation in the authorisation, and if so what. Regulation 3 provides that a notification and request for determination under section 11(1)(b) of the Act must be made in writing and that the name, address and telephone number of the person who makes the request for a variation must be included, together with the address of the premises where the prescribed process is carried on (or, in the case of mobile plant, the address of the applicant's principal place of business). The request must also include:
a. a description of the proposed change in the manner in which the prescribed process would be carried on;
b. any changes in relation to matters dealt with in regulation 2(1)(e) to (i) of S1507;
C. any additional information which he wishes to be taken into account.
8.4 Once the enforcing authority has made a determination that a variation would be needed, the operator can make a formal application for the necessary variation to be made (under section 11(4)(b) if the change is substantial, under section 11(3)(b) if it is not) .
8.5 A request for the conditions of an authorisation to be varied may also be made under section 11(5) or (6) of the Act. In neither case does. a request first have to be made under section 11(1). Section 11(5) is designed to cater for processes which have not yet begun to operate (but in respect of which an authorisation has been granted by the enforcing authority.) If, during the construction of the plant, the operator wishes to vary his conditions he may seek to do so under this subsection. Section 11(5) would also be used in a case where the operator wished to seek a variation in his authorisation but did not propose to make a relevant change in the process. Section 11(6) is designed to cater for those circumstances where it appears to the operator that a relevant change will require particular variations to be made to the conditions of an authorisation. Section 11(6) gives him the right to apply to the enforcing authority, specifying the particular conditions he wishes to be varied. In both cases the application for a variation must indicate the precise variations the person wishes the enforcing authority to make, together with any additional information he wishes to be taken into account.
8.6 As in paragraph 8.2 above, the application will be consulted upon and advertised by the operator if the variation involves a substantial change. If, after the due process, the enforcing authority agrees to vary the authorisation, it will serve a variation notice on the operator.
8.7 The Secretary of State has reserve powers to direct the enforcing authority to serve a variation notice (and if so, to specify the variations in the conditions) - or to prevent it from doing so.
Relevant Change
8.8 A relevant change in a prescribed process is defined in section 11(11) of the Act as a change in the manner of carrying on a process which is capable of altering the substances released from the process or of affecting the amount or any other characteristic of any substance so released. In practice, this could 7embrace quite minor adjustments to the process and could include, for example, changes in the method of storing or possibly even the amount of feedstock stored on site.
Substantial Change
8.9 "Substantial change" is defined in section 10(7) of the Act as a "substantial change in the substances released from the process or in the amount or any other characteristic of any substance so released". Such changes will be of a significance which justifies requiring the operator to submit in the prescribed format as if for a new application, together with the full public consultation procedure.
8.10 A change will generally be regarded as substantial if it results in an increase in the rate, concentration or absolute quantity of a prescribed substance released, unless the enforcing authority can be satisfied that no significant environmental harm will result. Where operators believe that a proposed change may lead to an increase in releases therefore, they should consult the enforcing authority in writing who will determine whether or not the change is substantial.
8.11 Figure III seeks to explain the key variation procedures diagrammatically.
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