Memorandum submitted by Prospect: Environment
Agency Branch
EXECUTIVE SUMMARY
— There is still a lack of clarity
as to where the income from fees and charges on industry is spent.
— Prospect is concerned about the high
turnover rate among specialist staff eg hydrologists and geoscientists.
— The predecessor committee recommended
that the Agency reconsider its decision to downgrade its Integrated
Pollution Prevention and Control (IPPC) staff: a new threat to
this recommendation is planned.
— Around a quarter of the Agency's
white-collar staff are employed by Head Office. Prospect is worried
that the centralisation of control will lead to impoverishment
of jobs at the point of delivery.
— The BRITE (Better Regulation Improving
the Environment) Project appears to have failed but the lack of
an honest and open report on the project is preventing the necessary
learning.
— Much of the Agency's IT provision
has been launched without sufficient testing, leading to delays,
inefficiencies, additional costs and huge levels of staff frustration.
— The Agency's production of guidance,
templates and applications for operators appears to be on an exponential
growth to the detriment of clarity and succinctness.
— Prospect believes that the Agency's
approach to health and safety is contrary to the advice on good
practice given by the Health and Safety Executive and may not
meet the requirements of the Health and Safety at Work etc Act
1974.
— The Agency is moving towards a charging
scheme that offers incentives to operators for good environmental
performance. However, one aspect of its proposals threatens the
concept of natural justice.
— The increasing use of standard conditions
in permits issued under Integrated Pollution Prevention and Control
(IPPC) may not meet the Agency's legal obligations to deliver
the objectives of the EU Directive and domestic legislation.
1. INTRODUCTION
Prospect is one of the recognised trade unions
in the Environment Agency. It was formed as a result of a merger
between the Institution of Professionals, Managers and Specialist
(IPMS) and the Engineers' and Managers' Association (EMA). IPMS
submitted written and oral evidence to the Environment Select
Committee's 1999-2000 inquiry into the workings of the Agency.
Prospect's submission today picks up on the Agency's response
and actions following that inquiry's report.
2. FEES AND
CHARGES
Although the Agency is moving to a risk-based
charging scheme for Integrated Pollution Prevention and Control
(IPPC) waste and process industry operators the charge rate for
the latter is still linked to the old "inspector day rate".
This was £1,215 in 1999-2000 and is now £1,305. The
rate was based on recovering all overheads associated with the
regulatory regime through the field inspector. He was assumed
to work 220 days per year spending 60% of his time on chargeable
work: some £172,000 per inspector per year. Of this some
38%—£65,500—goes in direct costs of employing
front-line staff (gross salaries, national insurance, pension
contributions and travel and subsistence). The remainder is split
as follows:
37% (£63,700 per front-line inspector per
year) goes on the development of policy, technical advice and
supervision of service delivery by Head Office + some centralised
service delivery carried out once nationally;
16% (£27,500 per front-line inspector per
year) in regional support—management, accommodation, finance,
human resources, legal and administrative services;
7% (£12,000 per front-line inspector per
year) on information technology—personal computer, billing
and permit tracking systems.
The original inspector day rate was based on
an average inspector salary of £35,000; today's rate equates
to nearly £38,000.
The Committee might wish to examine where all
of this money is spent given that the cost recovery legal provisions
and the Agency's Financial Memorandum forbid the cross-subsidisation
of activities.
3. TREATMENT
OF SPECIALISTS
Prospect represents specialist staff in hydrological
(water catchment modelling and planning), geoscience (contaminated
land, landfill engineering) and civil engineering (flood risk
management) posts. In parts of the country where workload for
these posts is significant there is difficulty in recruiting and
retaining such staff. The Agency's pay system seems to be incapable
of rewarding such staff sufficiently despite the use of one-off
"loyalty" bonuses.
Anecdotal evidence suggests that in some areas
of the Agency the hydrology expertise is stretched so thinly that
some members of teams involved in water abstraction licensing
have less than full understanding of the water catchment models
(ie the science behind the decision making on how much water may
be abstracted without threatening springs, streams and rivers).
These models have been developed jointly with the water plc's
who are the main abstractors.
The inability to recruit and retain experienced
geoscience staff has led to the situation where existing staff
are being denied repeatedly the opportunity to undertake short-term
assignments in the Agency's policy and process units. This impoverishes
the delivery of eg contaminated land remediation in two ways.
Firstly, the field officer is denied exposure to the policy-making
milieu that would broaden his appreciation of the bigger picture.
Secondly, without field officer input the policy-making lacks
the essential "muddy boot" feel —a phrase much
used by Ed Gallagher, the previous Chief Executive.
The problem of recruitment in Flood Risk Management
is compounded by the Agency's insistence on candidates being chartered
engineers for posts not requiring that level of qualification
to do the job.
The failure to address properly the treatment
of specialists threatens the technical resilience of planning
and delivery in these areas and the Committee might care to examine
the impact this may have on the Agency's ability to protect water
resources, land and property at risk of flooding.
4. INTEGRATED
POLLUTION PREVENTION
AND CONTROL—DOWNGRADING
OF THE
PROCESS INDUSTRY
SPECIALISTS
The predecessor committee recommended that the
Agency reconsider its decision to downgrade these staff. An uneasy
standoff during the last five years is being replaced by a plan
to introduce 70 lower-graded officers (see Fees and charges above)
to carry out this work over the next three years. These officers
are graded in Agency terms as AS4U that in 2005-06 equates to
an entry salary of £19,884. This rises to £23,839 after
eight years in the job. (NB The Agency's pay structure is designed
to move staff up to a market median salary for similar jobs—based
on data provided by Hay Consultants—after a maximum eight
years in post). The Committee will note that even after eight
years experience these staff will be earning a salary of around
one third of the sum allocated to the employment of front-line
staff and some £14,000 less than the figure used to derive
the inspector day rate.
The Committee might wish to examine whether
such a downgrading may threaten the technical resilience of the
Agency's delivery of continued environmental improvement from
major industry and the high-level outcomes of EU legislation.
5. CENTRAL COMMAND
AND CONTROL
AND THE
IMPACT ON
JOB QUALITY
Somewhere around 2,500 staff are now employed
by Agency Head Office, between them producing some 3,500 pieces
of guidance, instruction or template. Apart from the sheer impossibility
of following all of these documents field staff are suffering
impoverishment in their roles due to the disempowering influence
of this central command and control style.
Example 1. The Agency has sought to develop
risk-based regulation through its Environmental Protection Operator
and Pollution Risk Appraisal (EPOPRA) scheme and Compliance Assessment
Scheme. This is part of its wider modernising regulation agenda
(Delivering for the environment—a 21st century approach
to regulation). For example in PPC, the EPOPRA score seeks to
assess the risk presented by a site and to target regulation according
to that risk. This is an admirable principle but the practice
is perhaps less admirable. The EPOPRA scheme is unduly complex,
and although the Agency has recently modified it to reflect operator
performance the impact of this on the total score (and charge)
is insignificant especially for large scale and complex sites,
where the need for good operational practice is greatest. The
compliance assessment scheme is unnecessarily bureaucratic and
displays the typical Agency approach of trying to micro-manage
Area activities without the ability (or effort) to monitor whether
such procedures have been implemented or indeed have been successful.
This is not to criticise the basic principles but in this as in
most areas of work Agency has failed to recognise that "less
is more" ie the approach should be to minimise internal bureaucracy,
guidance and procedures involved, not to make these as complex
and exhaustive as possible.
This is of course connected to the issue of
training and competence of staff and the balance between employing
well trained, experienced staff capable of exercising discretion
and employing less well trained and experienced staff who are
not so capable and who is consequence need much greater direction.
The committee may wish to consider whether the
Agency is developing its modern regulation in an effective way
both in terms of its procedural approach and in terms of staff
competencies.
Example 2. The PPC regime has progressively
replaced IPC from 2000. The PPC regime does extend the scope of
IPC (by covering energy efficiency, accidents etc) and has a wider
application than IPC (farms, the food and drink sector) but PPC
closely mirrors IPC in both its technical requirements of operators
and its procedural and administrative requirements of both the
Agency and Operators. The IPC regime had an excellent record for
effective permitting to time and budget and one might have expected
Agency to build on this for PPC. The Agency, however, chose not
do so but to put in place a team-based approach to permitting.
The reason for this seems to have been to make a break for political
reasons from the IPC regime. The team-based approach was so ineffective
in delivering permits on time that the Agency decided to centralise
PPC permit determination into the "strategic permitting group"
(SPG). This group has expanded to around 170 staff although this
has not been sufficient and in fact much permit determination
has been contracted out to contractors. Despite much hard work
by staff in SPGs, many of whom are experienced staff with practical
experience of regulation, the fact is that
— SPG is struggling to meet the internal
target of 8 months to determine permits (the statutory target
is actually four months and this was routinely achieved in IPC);
— The quality of permits in particular
from contractors is poor, requiring much corrective work by Agency
staff;
— It is questionable whether the SPG
approach has been cost effective.
— In excess of 100 appeals have been
lodged against permit conditions
This is compounded by the fact that most of
the complex industries (power stations, iron and steel, chemicals)
was previously regulated under IPC with relatively little change
required to bring these under PPC. The new entrants are both relatively
simple (food and drink) and environmentally less harmful.
The performance of SPGs in our view arises from
the combination of a flawed centralised approach and a failure
to adopt a risk based approach to technical issues.
The committee might wish to examine how effective
the SPG has been in practice in terms of permitting to time and
cost, and also to examine the quality of the permits issued, including
whether conditions in permits are proportionate and risk-based.
6. FAILURE OF
BRITE
Much was made of the Better Regulation Improving
the Environment (BRITE) project for improving communication lines
and transferring resource to the front line to cope with new duties.
Unfortunately it became, in the words of the Chief Executive,
a "disaster we must not repeat". After three and a half
years the project delivered negligible additional resource to
the field, contributed to the "command and control"
problem highlighted above and failed to even mention one of the
largest new duties: Integrated Pollution Prevention and Control.
It is believed that two reports have been compiled but not released
to staff or trade unions.
Many of the shortcomings of BRITE have been
repeated in the Incident and Flood Risk Management (IFRM) Project.
In the short term the Project failed to identify and address the
impacts of the changes on the Flood Risk Management (FRM) programme
in 2005 and 2006. In the longer term it threatens to repeat the
"command and control" problems of BRITE. By way of example
National Flood Risk Assessment (NaFRA) work is being delivered
once nationally to amend the Agency's published flood maps. This
is producing work of poor quality that is unrealistic in terms
of level of risk in many areas and which disregards the local
knowledge and experience of area staff.
Prospect suggests that the Committee might care
to examine the findings of any audit of the BRITE benefits realisation
delivery.
The Committee might also care to ask for a review
of the implementation of IFRM.
7. UNTESTED IT
SYSTEMS
The structured testing of new IT systems is
now being taken seriously in the Agency with the in-house appointment
of a team to recommend and oversee software and system testing.
This is a vast improvement on the situation where the specification
and programme of testing were left to individual project managers
(sometimes employed under contract) or, incredibly, to the project
software suppliers! There is still scope, however, for Project
Executives to force the pace of change against expert advice.
One such occasion was the switching off of the National Time Recording
System more than 12 months prior to the date when its replacement—Oracle
Time and Labour (OTL) (part of the larger 1B1S system) was fit
for purpose. This led to the loss of 12 months' time recording
data that is needed for reconciling expenditure against income
from regulatory charges and grant-in-aid.
The Committee might wish to inquire as to how
such reconciliation was effected in the absence of time recording
information in 2004-05.
8. AVAILABILITY
AND CLARITY
OF GUIDANCE—OVERWHELMED
BY PAPER
The predecessor Committee recommended that the
Agency ". . . continue to give priority to the clarity and
openness of its regulatory requirements and to seek further ways
to improve such clarity and openness.". Since then the Agency
has produced an overwhelming quantity of guidance, templates and
application forms. In fact the Agency's web site alerts PPC applicants
to the fact that the application package is so big each document
could take 40 minutes to download from the internet and that they
should request the information be sent on compact disc. For example
the Fuel and Power sector application form runs to 163 pages;
the sector guidance note to 123 pages; the site report (a statement
on any contamination of the land under the site) guidance and
the EO OPRA scoring sheet similarly-sized. All of this may seem
fairly daunting to operators who are new to the regulatory regime
but, astonishingly, there are no shortened versions for operators
who are merely converting from IPC to PPC. The Agency's centralised
permitting function has been treating existing IPC operators as
if their activities were new to the Agency. All previous interactions
with the Agency (and its predecessors) are invisible: files containing
inspection reports, improvement plans completed, details of enforcement
action, neighbourhood complaints, independent monitoring reports,
incidents and accidents, audit findings—all going back as
long ago as 15 years—are ignored. Instead of "bolting
on" the additional requirements of PPC—state of the
land below the site, noise, waste minimisation etc—to an
already-proven, highly successful IPC regime [Introduction to
DEFRA's Financial Management and Performance Review (FMPR)] the
Agency has chosen to start afresh and charge the full fee.
The Committee might wish to question whether
such an approach meets the spirit of "Better Regulation"
and, more recently, Hampton.
9. HEALTH AND
SAFETY
A paper "Health and Safety—Securing
a Step Change" [EA(05)30] was endorsed by Agency's Board
on 11 May 2005. This paper states that the Agency needs to give
a sharper focus to Health and Safety. It proposes to build on
the Health and Safety strategy by a step change programme focussed
less on process and more on people. While it is stated that there
will continue to be a need to work on policy, process and systems
the focus is to be centred on people and their behaviours.
Focussing on people and their behaviour is a
method of improving safety but it is only effective if it leads
to an examination for and removal of hazards. In the paper emphasis
is placed on campaigns and the use of display boards. The use
of poster campaigns has been shown to be of negligible value and
is rarely used by safety professionals as their main tool. Indeed
emphasising the behaviour of individuals instead of examining
management systems has not been considered by safety professionals
to be a prime tool in improving safety for some 30 years. It was
in late 1960's that the change to examining management systems
commenced. Since then it has proved highly successful in those
companies where directors and managers consider safety performance
as a direct result of their decisions. This principle underpins
the basis of the Health and Safety at Work Act 1974, which places
the main duty on the employer and emphasises those aspects over
which the employer has direct control. These are equipment design,
equipment maintenance, procedures, training, and supervision of
staff. The Health and Safety Executive have published guidance
on the management of health and safety, (HSG65 Successful health
and safety management first published 1991). The HSE's approach
identifies two factors; immediate causes and underlying causes.
The underlying causes are those concerned with management and
organisational factors and research by HSE has identified that
failings in management systems underlie most accidents. One of
the key messages in HSG65 is to recognise that "accidents,
ill health and incidents result from failings in management control
and are not necessarily the fault of individual employees".
It particularly points out that accidents "usually arise
from organisational failings that are the responsibility of management".
The Committee might wish to examine the Agency's
approach to securing the health and safety of staff and members
of the public.
10. INCENTIVE
CHARGING—EXTRA-JUDICIAL
PUNISHMENT ON
OPERATORS
The risk-based charging scheme, based on EPOPRA
(Environmental Protection Operator and Pollution Risk Appraisal)
scores, is influenced by the number of breaches of permit conditions
occurring throughout the fiscal year. As a principle this sounds
fine. Where a breach has resulted in a successful prosecution
or an improvement or enforcement notice that is uncontested (ie
the operator did not exercise his right of appeal or such an appeal
was denied) then it would be fair to raise the annual subsistence
fee as part of incentive charging. However, most breaches of permit
conditions do not result in the type of enforcement action outlined
above. They are simply recorded by Agency staff on a computer
database linked to the billing system. This means that operators
will not have recourse to any independent method for contesting
such alleged breaches and hence no chance of influencing any decision
to raise the subsistence charge.
The Committee might care to examine whether
such a system squares with the concept of natural justice.
11. FETTERING
DISCRETION IN
EXERCISING REGULATORY
POWERS
The Agency is charged with determining applications
made under the Pollution Prevention and Control (PPC) Regulations
to deliver the obligations under the EU IPPC Directive. The regulations
cover new activities (ie new sites), activities not previously
regulated under analogous regimes and activities which were subject
to the integrated pollution control (IPC) provisions of the Environmental
Protection Act 1990. The PPC regulations require that permits
contain conditions to deliver all of the objectives of the Directive
particularly that all appropriate preventative measures are taken
against pollution through application of the best available techniques
(BAT). The Agency is issuing permits containing standard conditions
that transfer the onus onto the operator of the site to determine
BAT for himself in several key aspects. There are two main problems
with this approach:
(a) the Agency has accepted a fee—in
some cases in excess of £100,000—with the application,
presumably to carry out a BAT assessment of the operator's activities;
(b) there is recent case law that supports
strongly the contention that the regulator should carry out the
BAT assessment. [R v Daventry (Thornby Farms) and R
v Chester City Council (Quinn Glass)]. In both cases the regulator
was the local authority but both were working within the same
legislation as the Agency.
The Committee might care to inquire into how
the use of standard conditions may conflict with legal requirements.
Prospect: Environment Agency Branch
December 2005
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