10 January 2024
DEFRA is planning to bring battery energy storage systems (BESS) into the environmental permitting regime. However, some operators may be unaware that they may be subject to it already, putting themselves in potential legal jeopardy.
For those unaware of the system, the Environmental Permitting Regulations (EPR, or more formally The Environmental Permitting (England and Wales) Regulations 2016) integrate a series of disparate environmental controls, covering such things as groundwater discharges and industrial emissions, into a cohesive whole. This means that charges, application forms, inspections, and such all follow the same format.
The regulations are policed by the Environment Agency, Natural Resources Wales or local authorities for less hazardous sites. Similar rules are enforced under the Environmental Authorisations (Scotland) Regulations 2018 (EAR).
Operating an installation without a permit or breaching one in force is a criminal offence and liable to a potentially hefty fine or civil penalty. However, regulators may take a kinder view if the failure is confessed to them.
There have been hints about the plan for battery storage for some time. It was mentioned in an answer to a parliamentary question in October and briefly in the disappointing Battery Strategy, not to mention during the passage of the Energy Bill. But it was raised before then in parliament by Conservative MP for Basingstoke Dame Maria Miller, who put forward her Lithium-ion Battery Storage (Fire Safety and Environmental Permits) Bill in September 2022.
Her action should be seen more as a lobbying effort than a genuine attempt to change the law – private member’s bills rarely reach the statute book. It would have made local fire services, the Environment Agency and the Health & Safety Executive statutory consultees for seeking planning permission for lithium-ion BESS, made them subject to the Planning (Hazardous Substances) Regulations 2015 and the Control of Major Accident Hazards Regulations 2015 (known as COMAH), plus brought them within environmental permitting.
Miller’s focus was on fire risk: “The only way to stop a battery fire is to cool it down with a constant stream of water and wait for the fire to go out, which might take days, creating huge quantities of water containing highly corrosive hydrofluoric acid and copper oxide—by-products of battery fires. These toxic chemicals cannot be allowed to seep into watercourses, because they would cause immense environmental damage,” she told the Commons.
Meanwhile, “Planning permission is being granted near nurseries, hospitals, houses, rivers and even industrial chemical manufacturing plants. In my constituency, a battery facility has been granted planning permission on Basing Fen, metres away from the headwaters of the River Loddon, close to a hospital and near the town centre,” she said.
Whether these claims are valid or otherwise, DEFRA has considered the bill, and change is coming.
Consultation on integrating BESS into environmental permitting will arrive later this year, according to the Department’s Air Quality and Industrial Emissions Team. Its view is that permitting is the most appropriate option, rather than COMAH or development planning energy infrastructure, “which could post environmental/health risks generally falls under permitting,” planning lacks compliance and enforcement mechanisms and batteries “do not fit within the established scope of COMAH.”
Bringing BESS within permitting would also ensure that costs are clear. Expectations are that installations would run under standard rules permits – simpler and cheaper than bespoke permits – setting universal rules on the likes of location, temperature control, limiting inventory, appropriate disposal at end-of-life, fire plans and firewater containment. The latter may imply the need for retroactive bunding, firewater storage and floodgates, which would indicate a need to seek planning permission.
A DEFRA presentation added that requirements on the nature of the batteries themselves and their casings may also be added.
A stakeholder group will be established soon, which will, of course, have input from Solar Energy UK. As of yet, no specific dates have been set for meetings, nor for when BESS regulation will go live.
The group will help work out certain aspects ahead of the consultation, such as if only lithium-ion batteries should be regulated, what capacity threshold should apply and who should be the regulator: the Environment Agency or local authorities? Civil servants also added that they intend to seek agreement to extend the measures across the UK, rather than have them apply to England alone.
As mentioned earlier, certain BESS sites are – or should be – subject to environmental regulation already. The reason is that some BESS sites operate backup generators, emissions from which may be regulated, though not every operator is aware of this.
Data centre operators found themselves in the same position a few years ago. Due to their vast electricity demands and need for extreme reliability, they have extensive banks of diesel generators, capable of generating tens of megawatts. Even though these are rarely used beyond occasional testing, their capacity puts them firmly within the rules that apply to full-blown power stations.
One of the highlights of my previous career as an environmental journalist was proving that even GCHQ – reputed to run one of the largest data centres in the country – fell foul of the law, as I explained to the Guardian five years ago.
The legal position is complex, but essentially:
- Any combustion installation with an aggregated thermal input (not electrical output) of over 50MW is subject to the EU-derived Integrated Pollution Prevention and Control regime, as implemented in the EPR in England and Wales and EAR in Scotland. These are regulated by the Environment Agency, Natural Resources Wales and SEPA.
- Individual compression ignition (i.e. diesel) engines with a thermal input over 20MW and under 50MW are subject to the Local Air Pollution Prevention and Control (LAPPC, aka ‘Part B’) regime, again under EPR. These are regulated by local authorities in England and Wales and by SEPA in Scotland.
- Specific limits on emissions of sulphur dioxide, nitrogen oxides and dust may also apply to installations with a thermal input of 1-50MW, as specified in the Environmental Permitting (England and Wales) (Amendment) Regulations 2018 and the Pollution Prevention and Control (Scotland) Amendment Regulations 2017. These ‘medium combustion plants’ (MCPs) are regulated by the Environment Agency or Natural Resources Wales. Confusingly, LAPPC and MCP rules may apply in parallel, the strictest taking precedence.
- MCPs may either need a permit already or may not need to make a lighter-touch registration until 30 June 2028, depending on various factors including, capacity and when the MCP was set up.
- Whitehall guidance on the MCP regime is available here, while SEPA has its own guidance.