Response 1001382028

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About You

What is your name?

Name
Rhona McLaren

Are you responding as an individual or an organisation?

Please select one item
(Required)
Individual
Ticked Organisation

What is your organisation?

Organisation
SSE

Part 2: Policy Overview

2. Are there any other comments you would like to make on Part 2?

Are there any other comments you would like to make on Part 2?§
SSE has been keenly involved in the discussions on the BER programme with the Scottish Government and SEPA from the start, through attendance at workshops and bi-lateral meetings and responding in detail to the various consultation papers on each of the areas that have been considered to date. We welcome and support the aim to move towards a simpler, more risk-based approach to environmental regulation with more integrated permissions and a single consistent regulatory procedure. We therefore welcome the opportunity to comment on the proposals for an Integrated Authorisation Framework (IAF). In our view, permitting is the cornerstone of environmental regulation and underpins the ability of SEPA and operators to protect and improve the environment. It is therefore vital that any changes proposed to the current framework result in a better overall outcome than the status quo and, in particular, deliver at least the same level of environmental protection as is currently provided. However, it is equally important that through the proposed integration process, environmental obligations or standards are not tightened unnecessarily or indeed unknowingly. Any tightening of standards in a particular area needs to be explicit and clearly justified. It also appears that some regimes will undergo a more significant degree of change than others, for example waste, and it is difficult to provide meaningful comment without sight of the detail of the proposals. We therefore welcome the stated aim to consult separately on much of the detail at a later date. Against this background, we support much of what is set out in the paper and the potential benefits listed but we also believe that there are a number of risks associated with specific elements of the proposals which are not considered in the consultation paper. We have therefore set out below what we consider to be the main benefits and risks of the proposals. Universal Environmental Outcomes We support a key ambition of the Better Regulation Programme to focus environmental regulation on clear outcomes and we agree that the three universal outcomes (subject to modification in line with our response to Question 5) are reasonable aims of an environmental regime. However, we do not agree that it is appropriate or helpful to include such high level aims in operators’ authorisations. In our view, it is the regulator’s role to develop the specific permit conditions which are best suited to meeting these aims (taking into account the need to balance often conflicting interests), rather than placing the high level aims of the overall regulatory regime on individual operators through their permits. The placing of such all-encompassing requirements on individual operators through their authorisations would in our view only serve to further increase regulatory risk as many operators would view such requirements as acceptance of a potentially unlimited regulatory liability. This could deter operators from investing in new or existing operations that require an authorisation. In addition, we are unsure how such outcomes could be enforced and may be open to interpretation and challenge, resulting in a costly, resource and time intensive legal process. Industry-Led Guidance It is not clear from the consultation paper whether the best practice guidance would be binding on operators or not. If the intention is for the guidance to be binding on operators, we cannot see what benefit this delivers and indeed would actually be detrimental as it is clearly more simple and transparent to have all operators’ obligations in one location. Alternatively, if the intention is for the guidance to not be binding, we are unclear how this will deliver an appropriate level of environmental protection. That is, while a responsible operator would take due cognisance of best practice, a less scrupulous operator may not thus leading to a significantly unfair playing field. In our view, this would not be a satisfactory outcome and would undermine many of the benefits which could be realised from other elements of the proposals. In addition, who would ‘own’ the guidance in the same way that SEPA ‘owns’ the authorisations? The paper refers to “industry-led” guidance but a single body requires to take ownership of such guidance to ensure that it is managed correctly. Appropriate governance would be needed, for example to determine who can propose changes to the guidance (SEPA, operators, non-governmental organisations), how voting rights would work, who can veto changes, who would pay the costs of developing and maintaining the guidance, how often would it be updated, who would enforce the guidance if not complied with, what appeal rights would apply etc. Taking these issues into account, an increased reliance on guidance could increase regulatory uncertainty for operators and could also be significantly more onerous than the present arrangements. Therefore, while there may be a small number of specific examples where guidance may have a role to play (for example, sediment management, due to a lack of scientific understanding / practical experience), we would not support its wider use in the energy sector as proposed in the paper. Delivering Simpler Outcome Focussed Authorisations Section 3.4 of the paper outlines the proposals to deliver simpler outcome focussed authorisations, including the greater use of standard rules by SEPA. We support the aim to produce simpler and more aligned permits and registrations that provide greater flexibility for operators in how they manage their activities and environmental obligations. We also welcome the proposed greater use of clear and simple standard rules by SEPA to support particular sectors; as recognised in the paper, this should improve consistency and certainty for operators. However, it is important that the increased use of standard rules does not unintentionally or unnecessarily tighten some standards or requirements to the highest common standard across regimes without open and transparent discussion where this may be the case. In addition, we welcome the proposed removal of prescription from registrations as we believe that this will deliver a number of the benefits listed in the paper. However, we would urge caution regarding the stated intention to remove prescription from permits as much as possible, in particular given that these activities are, by definition, higher risk non-standard activities. While we support simplifying permits where appropriate and in discussion with the relevant operator, the stated overall aim to remove prescription needs to be balanced with the need to ensure that environmental protection is not compromised. In particular, over-simplification of permits through the removal of detailed conditions could lead to a lack of clarity (and therefore understanding) of the regulatory requirements, with a resultant increase in regulatory risk for operators. This could also result in operators and individual SEPA staff members making their own interpretation which in turn would lead to a lack of consistency across operators and sectors. Regulatory requirements need to be clear, concise and upfront i.e. operators need to know what they have to comply with. In the case of permitted sites, given their complexity and generally a need for bespoke permit conditions, such clarity may be difficult to provide through the use of standard rules or guidance. In addition, SEPA’s expectations may differ from that of operators (especially in relation to more complex, permitted sites) and again this needs to be addressed upfront in the form of clear requirements set down in an operator’s permit. In our view, therefore, the intention to produce more simple, outcome-based permits needs to be measured and judged against the need for regulatory clarity, consistency and certainty. To be clear, regulatory clarity is in our view the key requirement for permit conditions directly relating to the protection of the environment; in areas less critical to the direct environment such as administrative requirements, reporting timescales, calibration of equipment etc. less prescription and increased flexibility would be welcome. Integrated Authorisations We support the intention to allow more activities to benefit from the significantly simpler regulatory processes associated with the lower tiers of authorisation. We also welcome in principle the proposal to introduce integrated authorisations replacing regime specific authorisations, such as a single site permit or a corporate permit. This has the potential to reduce costs for both SEPA and operators; significantly simplify regulatory processes; and reduce monitoring and reporting. It could also potentially reduce site inspections by SEPA with considerable associated benefits for both SEPA and operators, however this would be dependant on the inspectors having the appropriate expertise in the required areas. There are a number of areas that would need to be clarified on how integrated authorisations would be treated but subject to this we believe that integrated permits could deliver considerable benefits to both operators and SEPA. However, it is essential that the principle of operator’s choice whether to apply for individual authorisations or an integrated authorisation is clearly maintained in the final proposals as there are many reasons why individual authorisations may be more appropriate. For example linear construction sites, by their very nature, often do not have all the detailed design information at the initial phase and may therefore need to apply for individual authorisations in order to progress the development. Enforcement The proposals represent a significant extension of the use of enforcement notices, whereby SEPA would be able to serve an enforcement notice in relation to any activity, whether authorised or not, and with no requirement for the notice to be related to a failure to comply with an authorisation condition. We consider this to be an excessive and unwarranted addition to SEPA’s enforcement powers with very little (if any) justification of the need for such a power provided in the consultation. SEPA already has powers to issue improvement, enforcement, suspension and revocation notices in addition to the ability to vary an operator’s permit in order to secure compliance and restoration of the environment. In addition, it is only recently that SEPA’s range of enforcement powers was significantly added to and these powers have not been fully introduced as yet by SEPA, let alone bedded in and assessed. Therefore, while we accept that it might be appropriate to align the enforcement provisions and criteria that apply across the different regimes for the integrated framework, we cannot accept such a completely inappropriate extension of the use of enforcement notices as a general power. In addition, it is also proposed that SEPA would be able to use an enforcement notice to require someone to cease carrying on a regulated activity and that this would take effect even if an appeal is lodged against the notice. If the intention is to only use this power where an operator is carrying on an authorised activity without an authorisation i.e. to require them to stop immediately until they secure the necessary authorisation, this would appear a reasonable use of enforcement notices. However, if this is the intent, this power needs to be narrowly defined and specific to this circumstance only. We could not however support a wider use of enforcement notices to require any operator to cease activities immediately before an appeal is determined upon. This could have a significant financial or reputational impact on a business which could not be reversed in the event that the appeal was successful. A fair and effective regulatory regime requires appropriate checks and balances to be in place; in our view, the protection afforded to operators through the right to an appeal being determined before they are required to cease carrying on a regulated activity is a prerequisite of a robust yet proportionate regulatory system. Public Engagement in Decision Making In principle, we support an integrated, simple and effective means of involving the public in decision making. However, it is vital that the extent of public participation, and the weight given to their opinion, is proportionate to the proposed activity. If the correct balance is not struck between public participation and progressing applications, this could lead to unreasonable delays in the regulatory decision-making process which could in turn result in operators incurring significantly increased costs. It could also result in some parties opposed to a particular project using the routes available for public participation as a cynical means of delaying time-critical projects. In addition, there is a risk of creating or exacerbating duplication with the planning process for larger projects. We therefore welcome the stated intention for SEPA to consult separately on the detailed proposals for public participation. In conclusion, there are risks associated with such a radical review of the approach to environmental regulation that is being proposed in the consultation paper, which we have set out above. These risks are not discussed in the paper. We believe that it is vital that such risks are openly considered and fully taken into account in any measures implemented in order to ensure the best possible outcome from this review.

3. How could SEPA better support the uptake of new technologies?

How could SEPA better support the uptake of new technologies?
We welcome the intention of SEPA to better support the uptake of new technologies. In our view, a key factor when considering the development or introduction of new technologies is the ability to have an open and constructive discussion with the regulator at an early stage in the deliberations. It is often the case that a lot of the detail may not be determined at this stage but early, albeit often informal, talks are very helpful in terms of giving a steer as to the regulator’s views and thus helping operators to manage their regulatory risk.

Part 3: Key features of the new framework for authorisation holders.

4. Do you agree that the framework should include a set of universal outcomes?

Please select one item
Yes
Ticked No

5. If so, are the outcomes proposed the right ones?

Please select one item
Yes
Ticked No
Comments:
Should the framework include a set of universal outcomes? No. We support a key ambition of the Better Regulation Programme to focus environmental regulation on clear outcomes and we agree that the three universal outcomes (if modified in line with our comments below) are reasonable aims of an environmental regime. However, we do not agree that it is appropriate or helpful to include such high level aims in operators’ authorisations. In our view, it is the regulator’s role to develop the specific permit conditions which are best suited to meeting these aims (taking into account the need to balance often conflicting interests), rather than placing the high level aims of the overall regulatory regime on individual operators through their permits. The placing of such all-encompassing requirements on individual operators through their authorisations would in our view only serve to further increase regulatory risk as many operators would view such requirements as acceptance of a potentially unlimited regulatory liability (we expand on this below). This could deter operators from investing in new or existing operations that require an authorisation. In addition, we are unsure how such outcomes could be enforced and may be open to interpretation and challenge, resulting in a costly, resource and time intensive legal process. If so, are the outcomes proposed the right ones? No. While there is a condition in CAR licences requiring operators not to cause harm to the environment, we do not believe that it is appropriate to include a universal outcome to “prevent harm” in authorisations as proposed. This is too simplistic and all-encompassing a requirement that, if challenged, no operator would be able to demonstrate they had complied with fully. For example, under the PPC regime, generators emit NOx which is known to harm the environment and human health. The aim of responsible operators, encouraged by the regulatory regime, is to take appropriate action to minimise NOx emissions i.e. harm to the environment. Similarly, the development of a windfarm may initially cause harm to flora and fauna but again, a responsible operator would seek to mitigate this during development and remedy the harm afterwards. That is, an absolute requirement to prevent harm is not realistic or achievable and would require operators to accept potentially unlimited regulatory liability. In addition, the environmental benefit of a measure needs to be assessed against the cost – such cost-benefit assessments are a fundamental premise of environmental regulation. At the very least, therefore, the outcome should require an operator to minimise harm, rather than prevent it, and SEPA would need to define ‘harm’ and ‘appropriate measures’, reflecting a ‘reasonable endeavours’ requirement on operators and the need to take due regard of cost-benefit assessments. Similarly, the proposed outcome to “prevent incidents and accidents” is again too simplistic and all-encompassing as a responsible operator could take all reasonable measures but an incident could still occur. Therefore, ‘necessary measures’ to prevent accidents and limit their consequences needs to be subject to a test of reasonableness. This outcome could also be interpreted in its widest sense as requiring operators to report all incidents, including trips, faults and even maintenance regimes to SEPA where there is no non-compliance or environmental impact. This could potentially be an onerous and invasive requirement.

6. Do you see any opportunities within your sector for industry- led guidance to be produced to support this approach and how could it support you to deliver better?

Please select one item
Yes
Ticked No
Comments:
No. It is not clear from the consultation paper whether the best practice guidance would be binding on operators or not. If the intention is for the guidance to be binding on operators, we cannot see what benefit this delivers and indeed would actually be detrimental as it is clearly more simple and transparent to have all operators’ obligations in one location. Alternatively, if the intention is for the guidance to not be binding, we are unclear how this will deliver an appropriate level of environmental protection. That is, while a responsible operator would take due cognisance of best practice, a less scrupulous operator may not thus leading to a significantly unfair playing field. In our view, this would not be a satisfactory outcome and would undermine many of the benefits which could be realised from other elements of the proposals. In addition, who would ‘own’ the guidance in the same way that SEPA ‘owns’ the authorisations? The paper refers to “industry-led” guidance but a single body requires to take ownership of such guidance to ensure that it is managed correctly. Appropriate governance would be needed, for example to determine who can propose changes to the guidance (SEPA, operators, non-governmental organisations), how voting rights would work, who can veto changes, who would pay the costs of developing and maintaining the guidance, how often would it be updated, who would enforce the guidance if not complied with, what appeal rights would apply etc. Taking these issues into account, an increased reliance on guidance could increase regulatory uncertainty for operators and could also be significantly more onerous than the present arrangements. Therefore, while there may be a small number of specific examples where guidance may have a role to play (for example, sediment management, due to a lack of scientific understanding / practical experience), we would not support its wider use in the energy sector as proposed in the paper.

7. Do you understand the descriptions of the regulated activities in Annex 2?

Please select one item
Ticked Yes
No
Comments:
Yes, we understand the descriptions of the regulated activities in Annex 2 of the paper. We welcome the intention to allow more activities to benefit from the significantly simpler regulatory processes associated with the lower tiers of authorisation, whilst also allowing SEPA to focus its effort on addressing the most significant environmental issues. In addition, we welcome in principle the proposal to introduce integrated authorisations replacing regime specific authorisations, such as a single site permit or a corporate permit. This has the potential to reduce costs for both SEPA and operators; significantly simplify regulatory processes; and reduce monitoring and reporting. It could also potentially reduce site inspections by SEPA with considerable associated benefits for both SEPA and operators, however this would be dependant on the inspectors having the appropriate expertise in the required areas. Other areas that would need to be considered carefully in advance of introducing integrated authorisations include: how a non-compliance in one area would affect the authorisation as a whole and how the revised compliance assessment scheme would apply in such circumstances; given the authorisation would be for the highest of the applicable tiers, would this result in tighter obligations on some areas that actually required; and presumably an integrated authorisation would be cheaper than individual authorisations. Subject to clarification of these issues, we believe that integrated permits could deliver considerable benefits to both operators and SEPA. However, it is essential that the principle of operator’s choice whether to apply for individual authorisations or an integrated authorisation is clearly maintained in the final proposals as there are many reasons why individual authorisations may be more appropriate. For example linear construction sites, by their very nature, often do not have all the detailed design information at the initial phase and may therefore need to apply for individual authorisations in order to progress the development.

8. Do you agree that these are the right factors for SEPA to consider?

Please select one item
Ticked Yes
No
Comments:
Yes, these factors appear reasonable.

9. Do you agree that SEPA should consult on the guidance setting out the likely tier of authorisation for particular activities?

Please select one item
Ticked Yes
No
Do you agree that SEPA should consult on the guidance setting out the likely tier of authorisation for particular activities?
Yes. In our view, a requirement on SEPA to consult on the guidance setting out the likely tier of authorisation for particular activities and any changes to such guidance is essential in order to ensure transparency and due regulatory process is followed.

10. Do you agree that standard rules will deliver the benefits we have set out?

Please select one item
Ticked Yes
No
Comments:
Yes. Section 3.4 of the paper outlines the proposals to deliver simpler outcome focussed authorisations, including the greater use of standard rules by SEPA. We support the aim to produce simpler and more aligned permits and registrations that provide greater flexibility for operators in how they manage their activities and environmental obligations. We also welcome the proposed greater use of clear and simple standard rules by SEPA to support particular sectors; as recognised in the paper, this should improve consistency and certainty for operators. However, it is important that the increased use of standard rules does not unintentionally or unnecessarily tighten some standards or requirements to the highest common standard across regimes without open and transparent discussion where this may be the case. We also welcome the proposed removal of prescription from registrations as we believe that this will deliver a number of the benefits listed in the paper. However, we would urge caution regarding the stated intention to remove prescription from permits as much as possible, in particular given that these activities are, by definition, higher risk non-standard activities. While we support simplifying permits where appropriate and in discussion with the relevant operator, the stated overall aim to remove prescription needs to be balanced with the need to ensure that environmental protection is not compromised. In particular, over-simplification of permits through the removal of detailed conditions could lead to a lack of clarity (and therefore understanding) of the regulatory requirements, with a resultant increase in regulatory risk for operators. This could also result in operators and individual SEPA staff members making their own interpretation which in turn would lead to a lack of consistency across operators and sectors. Regulatory requirements need to be clear, concise and upfront i.e. operators need to know what they have to comply with. In the case of permitted sites, given their complexity and generally a need for bespoke permit conditions, such clarity may be difficult to provide through the use of standard rules or guidance. In addition, SEPA’s expectations may differ from that of operators (especially in relation to more complex, permitted sites) and again this needs to be addressed upfront in the form of clear requirements set down in an operator’s permit. In our view, therefore, the intention to produce more simple, outcome-based permits needs to be measured and judged against the need for regulatory clarity, consistency and certainty. To be clear, regulatory clarity is in our view the key requirement for permit conditions directly relating to the protection of the environment; in areas less critical to the direct environment such as administrative requirements, reporting timescales, calibration of equipment etc. less prescription and increased flexibility would be welcome.

11. Do you agree with the procedure for making standard rules?

Please select one item
Ticked Yes
No
If not, why not?
We support a requirement on SEPA to consult on any draft standard rules.

12. Do you agree that SEPA and Scottish Ministers should have the ability to make GBRs?

Please select one item
Ticked Yes
No
Comments:
Yes. It would seem reasonable to provide for SEPA to be able to make GBRs, subject to the requirements that any GBRs made by SEPA must be approved by Scottish Ministers and that any draft GBRs must be consulted on. However, we are not clear in what circumstances Scottish Ministers would make GBRs once SEPA has the ability to do so.

13. Do you agree that all regulated activities should have an authorised person responsible for overall compliance and that this person should be named in a permit and registration?

Please select one item
Ticked Yes
No

14. Do you think it is proportionate to require the person in control to be the person that notifies an activity in the notification tier?

Comments:
No comment.

15. Do you agree that SEPA should include more than one person as the authorised person where appropriate?

Please select one item
Ticked Yes
No

16. Do you have any views on how SEPA should decide if a person is in “control”?

Comments:
The factors listed in Section 3.5.6 of the paper that SEPA will consider to determine whether a person is in ‘control’ of an activity appear reasonable.

17. Question 17 – Do you think the core requirements set out here will deliver the right approach to FPP for the integrated authorisation framework?

Please select one item
Ticked Yes
No
Comments:
Yes. We support streamlining the different assessments of an applicant undertaken under each of the existing regimes into an integrated Fit and Proper Person (FPP) test.

18. Do you think that the criteria set out above will achieve the stated purpose of the FPP test?

Please select one item
Ticked Yes
No
Comments:
Yes. However, one of the criterion listed in Section 3.5.22 is “whether the authorised person(s) has made adequate financial provision to protect against foreseen and potential environmental liabilities”. While we support this requirement in principle, the level of financial provision required needs to be proportionate to the level of potential risk and the likelihood of it being necessary. For example, the restoration of an open cast coal mine is an inevitable end cost of the mining operation whereas the potential restoration costs that would arise from the decommissioning of a major reservoir, while significant, are very unlikely to occur in practice.

19. Do you agree with the proposed application processes?

Please select one item
Ticked Yes
No
Comments:
Yes. We support the intention to introduce a standardised application process. For activities in the notification tier, the paper states that the authorised person will be able to notify via an on-line system. It is important that any such system is simple and easy-to-use. We also strongly support the stated intention by SEPA to continue to offer pre-application advice and to improve application forms and guidance.

20. Do you agree with the proposal to have a statutory determination period of four months for the majority of permit applications?

Please select one item
Ticked Yes
No

21. Should the legislation make a clear distinction for applications for “non-standard” activities?

Please select one item
Yes
Ticked No
Comments:
No. It would seem reasonable for SEPA to develop guidance on what it considers to be non-standard applications. However, such guidance (and any subsequent changes to it) should require to be consulted on by SEPA.

22. What other alternative arrangements would you suggest for managing non-standard applications?

Comments:
No comment.

23. Do you agree with the proposals for variations?

Please select one item
Ticked Yes
No

24. Do you agree with the proposals for transfer?

Please select one item
Ticked Yes
No

25. Do you agree with the proposals for surrender?

Please select one item
Ticked Yes
No
If not, why not?
Yes. In our view SEPA guidance is essential in this area, for example to inform operators of the circumstances in which SEPA will consider an activity to have ceased, and we welcome the intention to consult separately on this guidance.

26. Do you agree with the proposed approach to enforcement notices set out above?

Please select one item
Yes
Ticked No
Comments:
No. The proposals represent a significant extension of the use of enforcement notices, whereby SEPA would be able to serve an enforcement notice in relation to any activity, whether authorised or not, and with no requirement for the notice to be related to a failure to comply with an authorisation condition. We consider this to be an excessive and unwarranted addition to SEPA’s enforcement powers with very little (if any) justification of the need for such a power. The paper refers to making it “more straightforward for SEPA to secure compliance and restoration of the environment” and “being able to enforce the requirements of authorisations…”. However, SEPA already has powers to issue improvement, enforcement, suspension and revocation notices in addition to the ability to vary an operator’s permit in order to secure compliance and restoration of the environment. In addition, it is only recently that SEPA’s range of enforcement powers was added to under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 with the introduction of Fixed Monetary Penalties, Variable Monetary Penalties and Enforcement Undertakings. Indeed, these powers have not been fully introduced as yet by SEPA, let alone bedded in and assessed. Therefore, while we accept that it might be appropriate to align the enforcement provisions and criteria that apply across the different regimes for the integrated framework, we cannot accept such a completely inappropriate extension of the use of enforcement notices as a general power. If there are specific concerns that SEPA do not believe can be addressed through use of its existing enforcement powers, these should be explicitly consulted on along with a discussion of possible ways to address such issues. In addition, the proposal to allow the use of enforcement notices to be issued even where an activity is being carried out in compliance with the conditions of an authorisation would appear to circumvent the authorisation process itself. That is, if there are areas of concern that are not covered by the conditions of an authorisation, the appropriate route is for SEPA to vary the authorisation accordingly to address any such areas of concern. Given the lack of rationale for the proposed widening of the use of enforcement notices to go beyond instances of non-compliance, we would urge SEPA not to consider such notices as a means of ‘encouraging’ operators to go beyond compliance in their environmental performance. This would clearly not be an appropriate use of such notices. Finally, it is also proposed that SEPA would be able to use an enforcement notice to require someone to cease carrying on a regulated activity and that this would take effect even if an appeal is lodged against the notice. If the intention is to only use this power where an operator is carrying on an authorised activity without an authorisation i.e. to require them to stop immediately until they secure the necessary authorisation, this would appear a reasonable use of enforcement notices. However, if this is the intent, this power needs to be narrowly defined and specific to this circumstance only. We could not however support a wider use of enforcement notices to require any operator to cease activities immediately before an appeal is determined upon. This could have a significant financial or reputational impact on a business which could not be reversed in the event that the appeal was successful. A fair and effective regulatory regime requires appropriate checks and balances to be in place; in our view, the protection afforded to operators through the right to an appeal being determined before they are required to cease carrying on a regulated activity is a prerequisite of a robust yet proportionate regulatory system.

27. Do you agree a notice used in the way set out in 3.7.10 to 3.7.12 is a different type of notice and should be therefore be called something different, such as an improvement notice?

Please select one item
Ticked Yes
No
Comments:
Yes. In our view, it would be highly inappropriate to call the notices described in Section 3.7.10 to 3.7.12 enforcement notices with the associated negative impact of such a term on an operator’s reputation.

28. What benefits and drawbacks do you foresee from SEPA using enforcement notices in the way set out at 3.7.10 to 3.7.12?

Comments:
The main benefit from the proposed use of notices as described in Sections 3.7.10 to 3.7.12 of the paper appears to be the ability to keep permits simple. However, such an approach appears to circumvent the existing permit variation process, suggesting that over time the only tangible record of an operator’s obligations would be the notices that they have been served with (even though such notices would no longer be valid). That is, while the paper refers to “temporary additional requirements” on poor operators, our understanding is that these would be ongoing requirements / SEPA expectations that would simply not be captured anywhere (other than in expired notices). While we understand that there is frustration from a number of sectors regarding the time taken to vary permits, we do not believe that circumventing the process in the way proposed is an appropriate means of addressing this concern. In addition, the use of notices in the way proposed would appear to remove a key opportunity in the existing permit variation process for operators and SEPA to discuss issues requiring action or improvement; such communication is vital to ensuring the right outcome is achieved. There is also the potential for a “yo-yo” situation to arise where an operator performs poorly, is served with a notice, complies, the detailed requirements are removed, the operator’s performance deteriorates again etc. Varying the permit to include the additional requirements would prevent such a situation from arising. In our view, therefore, it would be more appropriate for a permit to be varied to include the additional steps to be taken by an operator, where required. This would also provide a clear incentive for operators to maintain their performance in order to retain as simple a permit as possible.

29. Do you agree we should retain suspension notices for use in circumstances where we wish to suspend an activity in order to protect the environment, but the authorised person is not being ‘enforced’ against?

Please select one item
Ticked Yes
No

30. Do you agree SEPA should have the power to revoke authorisations in these circumstances?

Please select one item
Ticked Yes
No

31. Do you agree that appeals against SEPA decisions should continue to be heard by the DPEA on behalf of Scottish Ministers?

If not, which alternative body do you think should hear such appeals and why?
No comment.

32. Do you have any views on the proposed policy principles for transitional arrangements?

Comments:
The paper states that there are some activities currently operating under a waste exemption that SEPA anticipates will need to apply for a registration or permit. We would welcome further clarification on which activities would fall into this category and welcome the stated aim to consult separately on this at a later date.

33. Do you have any suggestions for how SEPA might manage the workload to implement integrated, and corporate, authorisations?

Comments:
A possible approach would be to implement integrated and corporate authorisations one regime at a time. This would allow both SEPA and operators to spread the workload and also give an opportunity for any issues that might arise to be addressed before adding another regime. In addition, rather than working to a rigid timetable, the next regime should not begin to be integrated into the new system until the previous regime has been fully implemented and any significant issues resolved.

Part 4: Key features of the new framework for the public

34. Do you support SEPA having more flexibility in how information is made available to the public?

Please select one item
Ticked Yes
No
Comments:
Yes. We support SEPA having more flexibility in how information is made available to the public, subject to our comments under Question 35 below and normal commercial confidentiality provisions.

35. Do you agree that a consistent, flexible and proportionate approach to public participation should be adopted?

Please select one item
Ticked Yes
No
Comments:
In principle, we support an integrated, simple and effective means of involving the public in decision making. However, it is vital that the extent of public participation, and the weight given to their opinion, is proportionate to the proposed activity. If the correct balance is not struck between public participation and progressing applications, this could lead to unreasonable delays in the regulatory decision-making process which could in turn result in operators incurring significantly increased costs. It could also result in some parties opposed to a particular project using the routes available for public participation as a cynical means of delaying time-critical projects. In addition, there is a risk of creating or exacerbating duplication with the planning process for larger projects. We therefore welcome the stated intention for SEPA to consult separately on the detailed proposals for public participation.

36. Do you agree that the procedural arrangements for third party call-in under CAR should be extended to all regulated activities?

Please select one item
Yes
Ticked No
Comments:
No. While we recognise that such arrangements already exist under CAR for third party call-in, we do not believe that it would be appropriate to extend these arrangements to all regulated activities. In our experience, just the potential for third party call-in has itself lead to significant and costly delays in the regulatory process. However, if SEPA and the Scottish Government decide to extend these arrangements then we would support the use of similar criteria as currently used in CAR but with the addition that the objection is not about a matter that has already been considered in the planning process.

Part 5: Pollution Prevention and Control

37. Do you consider that the provisions of the universal outcomes contain equivalent protection as BAT in relation to domestic activities?

Please select one item
Yes
Ticked No
If not, why not?
No. We have set out our concerns regarding the proposed universal outcomes in response to Questions 4 and 5 above and will not repeat the same points here. However, we do not consider that the provisions of the universal outcomes contain equivalent protection as BAT in relation to domestic activities and indeed, in our view, they would represent a significantly more onerous and unrealistic obligation than the provisions of BAT.

38. Do you have any comments on the potential impact of this change for other industrial pollution risk activities?

Do you have any comments on the potential impact of this change for other industrial pollution risk activities?
No comment.