Response 194671614

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About You

What is your name?

Name
Stephen Freeland

Are you responding as an individual or an organisation?

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(Required)
Individual
Ticked Organisation

What is your organisation?

Organisation
Scottish Environmental Services Association

Part 2: Policy Overview

1. Do you agree with the benefits set out here?

Please select one item
Ticked Yes
No

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?§
We see considerable merit in the strategic objectives of the consultation proposals and welcome efforts by SEPA to simplify the process whereby regulation is focussed more on practical environmental outcomes and less on administrative process. We support the overall approach to consolidate and streamline the existing regulatory regime and welcome the introduction of standard rules. Standard rules should apply to both the permit and registration tiers of the authorisation framework to help deliver the benefits envisaged.

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

How could SEPA better support the uptake of new technologies?
There will always be instances where new technologies or new approaches do not fit into the existing regulatory regime. The industry needs SEPA to be pragmatic about how regulations are applied and take into account the overall environmental benefit offered by such new technologies or approaches.

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

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

Comments:
On the one hand we see considerable merit in a proposed reduction in prescriptive conditions and administrative process and empowering operators instead to focus more on practical outcomes. However, the universal outcomes are so broadly defined that they allow SEPA considerable discretion to regulate (and take enforcement action) as they see fit. This offers operators little in the way of certainty, and potentially allows for SEPA to pursue enforcement action for a perceived infringement of a universal outcome even where the operator has remained compliant with permit conditions. We would welcome more information on how the universal outcomes might work within the new framework and clarification on key aspects to such. For example, we assume that the universal outcome “prevent incidents and accidents” refers to environmental issues only. The current wording almost implies that SEPA would be straying into health and safety matters within HSE’s remit.

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
Ticked Yes
No
Comments:
Notwithstanding our comments above we welcome closer working with SEPA in developing industry-led guidance. Through our trade association our Member companies have had experience in working with the Environment Agency and HSE on such matters.

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

Please select one item
Ticked Yes
No

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

Comments:
The criterion is quite broad, particularly with regards to ‘risk’. We would welcome greater clarity on SEPA’s approach to determining risk in this context, which should be agreed in consultation with the industry.

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, as above this is essential.

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

Please select one item
Ticked Yes
No
Comments:
SESA supports the proposals for standard rules which should save time and resources for both regulator and the regulated industry. Such an approach should result in fewer, simpler rules and clearer guidance in order to allow industry, regulators and the public to focus more on environmental outcomes and less on how they are achieved. Standard rules permits have successfully been operating in England and Wales for a number of years and we have long called for a similar approach to be implemented in Scotland in order to extend the benefits of the system and to provide a level playing field for UK-wide operators.

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

Please select one item
Ticked Yes
No

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

Please select one item
Yes
Ticked No
Comments:
As a point of principle, we are uncomfortable with the prospect of GBRs being made outwith the legislative process.

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
Yes
Ticked No
If not why not?
We of course understand the need, and welcome proposals for applicants to demonstrate technically competent management of regulated activities. However, there are means of doing so other than naming the authorised person within the permit (and registration). For example, the Competence Management System (CMS) devised by EU Skills and the Environmental Services Association adopts a corporate approach to compliance and provides a route for a company to demonstrate competence across a number of its facilities or indeed across the whole company. To this extent the scheme does not necessarily rely on a specific named individual rather it relies on a management systems approach to ensure that its sites are well managed. It could be made a requirement to display an up to date, third party assessment of the company’s CMS scheme to address some of the concerns expressed by SEPA in the consultation.

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?

Please select one item
Yes
Ticked No
Comments:
Please refer to our response to question 13 above

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
Comments:
Please refer to our response to question 13 above

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

Comments:
Please refer to our response to question 13 above

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:
Overall, we welcome proposals for SEPA to adopt a more holistic approach to the Fit and Proper Person (FPP) test as the current approach has a number of well reported shortcomings. Rather than attempt to apply a ‘blanket provision’ to FPP, we suggest that SEPA adopt an activity-based approach to applying the test. Risk profiles vary, even within the same sector. Of course, there are two distinct parts to FPP. The first relates to the person in control of the operation and making sure they have sufficient resources etc. The second is to do with the management of the facility and is whether the management staff and structure is sufficient to operate the site to the required standard. It is relatively common that the person in control is not technically competent and does not need to be as long as they employ appropriately qualified management. A matrix of the key requirements and who (person in control, company or staff) can provide the evidence would help in this regard and could clearly define FPP. This would provide certainty but also allow some degree of flexibility to deal with different activities. We welcome the opportunity to respond to a more detailed consultation on the proposed FPP guidance.

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

Comments:
The key elements of the criteria are largely sound, although we suggest that preventing site abandonment be included as an overarching outcome. We note that SEPA intends to substantially increase the range of evidence used to support its FPP test and therefore the accompanying guidance will likely provide the relevant opportunity to comment on the detail of the proposed approach. However, as a general point (and as above), we would much rather SEPA apply a risk-adjusted company based approach to the FPP test than a blanket, sectoral approach. It should also be noted that the potential threat of site abandonment (and the greatest liability for clean up costs to fall on the public purse) is undoubtedly from illegal waste management sites operating outwith the licensing regime.

19. Do you agree with the proposed application processes?

Please select one item
Yes
Ticked No
Comments:
SESA Members recognise the need to supply high quality supporting information and already invest significant resources in the submission of robust permit applications. However, the proposal to simply refuse a ‘duly made’ permit application on the basis of incomplete or sub-standard information is an altogether blunt means of seeking to raise standards across the board. Rather than help streamline the application process and improve standards it is more likely to put additional pressure on the appeal process. The decision to refuse an application (on the basis of incomplete information) is of course rather subjective, and the ability to allow SEPA to refuse applications on a whim would do little to improve confidence and transparency in the system. The decision to deem an application withdrawn if the request to supply further information is not made in time is equally unreasonable. It is of course in the applicant’s interests to ensure a prompt response to a Schedule 4 notice and that the relevant information is supplied. However, depending on the nature of the information request, furnishing SEPA with such may be a time consuming and an expensive process, requiring revisions to previous models and the re-engagement with consultants. We would rather see, in the event that information has not been submitted in time, scope for open dialogue to understand the nature of the information request and whether more time should be afforded. Overall, we are concerned that in an attempt to streamline the system, the consultation proposals seem to point to SEPA having lost sight of its “customer service”. The proposals are likely to make the system less user-friendly and more inconsistent across the country. If SEPA were indeed minded to adopt this approach far greater significance should be attached to pre-application consultation whereby the exact information requirements should be clearly defined and agreed with applicants.

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
If not, what do you think the determination period should be?
On the basis that this is the existing determination period for PPC permit applications, we have no objection to the proposal for a 4 month determination period.

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

Comments:
While we agree that SEPA may wish to see “non-standard” activities defined and adopt a bespoke approach to the determination of such, we would consider projects such as the Forth Crossing, nuclear power stations or the Beauly/Denny replacement power line to fall within the definition of such. We therefore see no grounds for including waste incineration as “non-standard” and do not see why such development proposals could not be determined within the 4 month determination period (section 3.6.5 of the consultation even allows scope for such a timeframe to be extended upon agreement with the applicant). We also strongly refute the inference (3.6.9 and 3.6.10) that waste incineration is “likely to cause significant environmental harm”. This is not only incorrect but clearly at odds with SEPA’s position as set out in the thermal treatment of waste guidelines (2014). Section 2.4 of those guidelines recognises that well managed energy from waste facilities should not cause significant pollution of the environment or harm to human health.

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

Comments:
If SEPA is minded to make arrangements for “non-standard” applications we would urge that such are clarified and the relevant criteria defined by regulation. This would provide more transparency and democratic accountability to the selection process than to allow such to be defined by SEPA through guidance.

23. Do you agree with the proposals for variations?

If not, why not?
SEPA should ensure that the new registration and permit tiers are as accurate and as future proof as possible in order to minimise SEPA-initiated variations. The review of standard rules conditions should be undertaken only with advance notification with the permit holder, to ensure that the holder is fully aware of the reason for, and scope of, each variation.

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?

If not, why not?
We look forward to commenting on the detail included in the guidance when made available for consultation. However, we suggest that surrender arrangements for registrations (and standard rule permits) should be simpler and quicker than current arrangements under WML/PPC to reflect the lower risk posed by the activity.

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

Comments:
SESA has for some time expressed concern about the difficulty and length of time taken for SEPA to deal with poor performing waste management sites, those which blatantly disregard their permit requirements or operate outwith the permitting regime. The proposed approach to enforcement notices therefore appears sensible and should better equip SEPA for dealing with rogue operators. That said, the proposed approach nonetheless represents a significant step change to SEPA’s current approach to enforcement, a potential concern for all permit holders particularly as there has been much uncertainty over SEPA’s use of existing powers. Our Members note examples whereby enforcement notices have been issued incorrectly or inappropriately, and there is a risk legitimate operators’ operations could be adversely affected if these enhanced powers are not applied consistently and fairly, by properly trained officers, and without robust oversight or appeal structures. Legitimate businesses should be left in little doubt as to the process of regulatory enforcement placed upon them. Greater transparency would help both the regulator and the regulated to succeed in a context of consistent and proportionate regulation.

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:
Given that enforcement notices can be served by SEPA on operators who have done nothing wrong and are in compliance with their permit then a name change would probably be appropriate. ‘Improvement notice’ has equally negative connotations – something akin to ‘advisory notice’ might be more palatable. Regardless of such nuances, the serving of improvement/enforcement notices should be accompanied by guidance which clarifies the new approach. Such guidance ought to be made available to operators well in advance of the changes taking effect.

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:
We do have concern that these new powers rather than being used to target the criminal element (in the waste industry) or those operating outwith the permitting regime, could be used by SEPA against legitimate operators who are trying to do the right thing but who are occasionally subject to relatively minor permit breaches. We note that the current appeal procedure would be taken forward under the new regime, whereby an enforcement notice would remain in place even if an appeal had been lodged against it. However, given the greater significance attached to enforcement notices under the new regime we suggest that the appeals process is significantly improved, with perhaps a fast track appeals process to prevent legitimate operators being disproportionately affected.

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?

Comments
The lines between enforcement and suspension notice could become somewhat blurred under the proposals to broaden the scope of enforcement notices (ie to effectively suspend an activity). ‘Failure’ (to pay subsistence fees) should be qualified by SEPA if this were to incur a suspension notice.

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

Please select one item
Ticked Yes
No
Comments:
We agree that in the most serious of circumstances, where the operator has shown no intention of complying with permit conditions, this would be an appropriate course of action.

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

Please select one item
Yes
Ticked No
If not, which alternative body do you think should hear such appeals and why?
SESA has long called for the establishment of a dedicated, Environmental Tribunal for such cases. The proposed overhaul of the permitting system would provide a timely opportunity to consider our proposal in more detail.

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

Comments:
SESA has long supported a review of the waste exemption regime to ensure that such remains fit for purpose and to reduce scope for illegal operators to undercut the regulated industry. While some exemptions might therefore indeed be more suited to the regulatory oversight of the registration or permit tier we would, however, welcome clarification on the proposed fee structure for such authorisations. It should also be noted that exemptions provide useful benefit to responsible operators and an alternative to the lengthy and costly permit variation process. In considering the appropriate tier for exemptions under the new framework SEPA should therefore take care to avoid penalising the responsible waste industry by seeking to remove the exemption route simply because of their misuse by less scrupulous operators. The revised arrangements for exemptions should therefore set the right risk-based balance between lighter regulatory control and the need for strict and consistent regulation to protect the environment and human health, and to provide a level regulatory playing field. We suggest that the precise details would benefit from a separate consultation process. On the proposed transitional process in general, clearly one of the main priorities for SEPA in managing this process is to ensure that the standard rules have been consulted upon and published well in advance of the new framework taking effect. Without such in place, confidence in the new scheme would be undermined and would offer little benefit over existing arrangements.

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

Comments:
SEPA should engage the industry well in advance of the new framework taking effect to gauge the expected interest and potential uptake of consolidated (or corporate) authorisations. Confidence in the new framework might otherwise be eroded should SEPA’s ‘work load’ or ‘competing priorities’ result in lengthy delays in granting such authorisations.

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:
Provided SEPA is quite clear up front on the level of information to be made available in the public domain we have little concern on how this information is made available.

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:
We look forward to reviewing proposals in more detail as part of the separate consultation on this matter.

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:
It is difficult to imagine how this would do anything other than politicise the determination process. It is also difficult to envisage what added benefit Ministerial call-ins would offer as SEPA is the competent authority in such matters. We therefore oppose proposals to extend third party call-ins to all regulated activities.

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?

If not, why not?
It is difficult to compare the robust and prescriptive criteria of BAT against the more broadly defined policy objectives of SEPA’s proposed universal outcomes. That said, we welcome the opportunity for the industry to engage in the development of sectoral guidance but without details of the process by which such guidance would be prepared and approved it is difficult at this stage to comment on whether universal outcomes would in fact offer equivalent protection as 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?
We agree that the conditions of permit surrender should vary depending on risk.