Response 261474704

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About You

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Name
Mineral Products Association Scotland

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What is your organisation?

Organisation
Mineral Products Association Scotland

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?§
Industry would like to see greater interaction between SEPA and other regulators to truly embrace the concept of ‘better regulation’. Currently, the planning and environmental regulatory regimes do not seamlessly align and can result in repetitious approval processes with conflicting objectives. Whilst this places an unnecessary burden on industry, it also places local communities and other third parties at a disadvantage. Ideally, we would like to see the reinstatement of the primacy of the planning system over other regulatory measures, but appreciate that this is not always practical when there is a need to amend domestic legislation and policy in order to address European Directive requirements. It is also recognised that this goes beyond the scope of this consultation, however, we still take the view that greater interaction between regulators would enhance SEPA’s ability to regulate proportionately and transparently.

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

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

Please select one item
Ticked Yes
No
Comments:
MPAS agrees with the outcomes proposed.

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:
MPAS would welcome the industry-led guidance approach. Some regulatory officers are unfamiliar or inexperienced in dealing with the minerals industry and this can result in inconsistent regulation. This in turn can place operators at a competitive disadvantage. Guidance should not only ensure that regulation is transparent and promotes best practice, but would go towards creating a level playing field. MPA Cement has already worked with regulators across the UK to develop and deliver the “MPA Code of Practice for the Use of Waste Materials in Cement and Dolomitic Lime Manufacture”. Based on this experience, the industry led guidance has a role in the regulatory landscape, but regulator input is required for its development, scrutiny, approval and implementation. The MPA Code of Practice took many years to develop and it would have benefited from a clear and transparent process on how regulators engage, agree deadlines and involvement, and make decisions in relation to such guidance. However, despite the efforts of the MPA and UK regulators to produce this industry-led guidance, SEPA is only implementing it into relevant permits during 2017, although the application for this addition dates back to December 2015. If the Integrated Authorisation Framework aims to make the best use of industry-led guidance, there must be a willingness on the part of the regulator to implement this guidance in a timely and efficient manner. MPAS/MPA would be happy to support SEPA to establish transparent and logical ‘guidance development’ route maps for industry to follow.

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

Please select one item
Ticked Yes
No
Comments:
Yes, these are understood.

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

Comments:
When considering the factor ‘Consistency of the activity across a sector and the need for bespoke conditions’, the proposed Integrated Authorisation Framework should recognise that a ‘sector’ may extend beyond Scotland. For example, MPA Cement represents the cement manufacturers in England, Northern Ireland, Wales and Scotland. There is broad consistency of the activity across the sector, although some specifics (e.g. type of emissions abatement equipment) will vary. Equally, companies may operate across regions and countries and have adopted internally consistent systems that need to be recognised when considering the ‘consistency of the activity’. The SEPA approach to environmental management systems can lead to inconsistency and drive unnecessary ‘bespoke’ conditions. That is, SEPA does not recognise business-wide ISO14001 systems within permits, and this creates duplication and wasted effort in negotiations when clauses are inserted for new ‘management plans’ (for example, noise, water) that are controlled by accredited environmental management systems which may be, and often are, UK-based systems.

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?
In the interests of transparency and the spirit of better regulation, MPAS agrees that this should be the case. It is noted that under 6.4.19 there are 13 proposed categories of waste activity. Landfill and restoration being two of the categories. However, it is also noted that in 6.4.43 it is proposed that all backfilling (restoration) of quarries utilising waste, will require a permit regardless of whether the activity is a recovery or disposal operation and irrespective of scale. It is unclear why restoration that is a recovery operation under the Waste Framework Directive could not be authorised via a registration. 6.4.42 confirms that waste acceptance criteria, FPP tests and authorisation surrender would need to be adhered to under registration rules and this would appear to satisfy concerns raised in 6.4.43. Furthermore, 6.4.42 makes reference to the use of non-hazardous waste and contaminated soils in other restoration activities, so the basis for taking a more rigorous approach to quarry restoration (waste recovery) using inert waste is unclear. The proposal for all quarry restoration to be undertaken only in accordance with a permit would therefore appear to be disproportionate, without justification and prejudicial. It is also noted that 6.4.44 makes reference to coal sites using sewage sludge (and similar wastes) in their restoration, and the consultation drafting implies that this is the main reason for this activity being required to obtain a permit. This is clearly a different scale of risk when compared with restoration using inert waste. Whilst silent on this issue, it is assumed that quarry restoration requiring the importation of inert waste to fulfil planning obligations will be subject to environmental monitoring under a permit. Restoration / engineering activities under a registration (6.4.42) do not appear to attract this. We assume that the fees associated with applying for a permit, annual subsistence and surrender, are likely to be on a higher scale than those for registration. Whilst it is understood that authorisation fees to accompany these proposals will be consulted on in due course, this would pose an additional financial burden on industry for undertaking an activity that is essentially a planning requirement to fulfil safety, environmental and third party commitments. Planning conditions often require progressive restoration, particularly of sand and gravel sites. This essentially extends the restoration period and would therefore potentially incur additional costs associated with permit subsistence fees. Again therefore, it is queried why quarry restoration (where it is a recovery operation) could not be authorised under a registration, particularly as it is stated in the consultation that other restoration activities will not be limited in terms of waste tonnage or volume at registration level. The permit determination period proposed is also of concern, when compared with a registration. The Mineral Products Association’s Annual Mineral Planning Survey 2016, has identified that in the UK, it takes almost 3 years to secure planning permission for both sand and gravel and crushed rock reserves. Further uncertainty and delays associated with quarry restoration authorisations places additional burdens on industry and could conflict with planning obligations. It is accepted that some quarry restoration constitutes landfilling (the disposal of waste). Domestic and EU case law however, recognises that quarry restoration can, subject to meeting certain criteria, be classified as a recovery operation. We would hope that SEPA will continue to make this distinction and avoid imposing the requirements of the Landfill Directive on recovery operations. This is an extremely important distinction in order to avoid additional engineering requirements and the industry being subject to Landfill Tax in addition to the Aggregates Levy, which it is already subject to. Currently, there is no category under the PPC regime for quarry restoration that is a recovery operation rather than disposal (landfill). If SEPA does not differentiate between disposal and recovery under the permitting proposal, there would need to be assurances with Revenue Scotland that the restoration activity will not attract Landfill Tax of £2.70/tonne. Clearly the aggregate industry’s revenue is generated at the time of sale of the material and over several years. To date, Landfill Tax will not have been factored in to predicted restoration costings. An additional unforeseen tax is therefore likely to be extremely damaging to the industry, which, unlike the landfill sector (or where operators undertake both extraction and landfilling), does not generally financially benefit from fulfilling legally required restoration obligations. We are also concerned that what is proposed, will require operators undertaking quarry restoration that is a waste recovery operation, to address financial provision. Quarry operations are already subject to financial provision requirements under the planning regime. Whilst it is accepted that SEPA does not currently have access to funds set up between local authorities and quarry operators, these funds essentially cover the restoration and aftercare requirements that are required by both regulatory bodies – with the exception of any additional environmental monitoring required by SEPA. Duplication of a financial provision requirement is unnecessary, would impose an additional financial burden on the industry and would appear to be contrary to Section 4 of the Regulatory Reform (Scotland) Act 2014. In summary, MPAS members would urge SEPA and Scottish Government to reconsider its proposal to subject all quarry restoration operations requiring the importation of waste to fulfil safety and planning requirements, to be subject to a permit. The cumulative cost, timeframe and regulatory burden (dual regulation with planning) must be considered, as commercial returns for mineral workings are significantly less than other sectors, and coupled with regulatory uncertainty, this could lead to the importation of more aggregates. Clearly this would go against SEPA’s One Planet Prosperity strategy and be detrimental to the Scottish economy. Currently there are a number of consultations on Scottish Government’s proposals to review the planning system and the charging scheme, as well as a review of the climate change plan. The cumulative impact of all the proposals on industry needs to be considered and it is apparent that this has not been undertaken. Whilst it is acknowledged that this is a high level consultation and a charging scheme will subsequently need to be consulted on, the best case scenario of the financial impact on the aggregates industry for just restoration (based on current charging scheme information) is provided: Paragraph 9 and 19 waste management licensing exemptions: Initial registration - £465 to £2,000 Renewal - £370 to £1,200 Landfill of inert waste Application - £5,000 Annual subsistence - £7,078 (activity component) + an environmental component (environment score determined through the Environmental Assessment Scheme multiplied by the financial factor for the management of waste £5,634.21) Assuming the best case scenario of an environmental score of 1, annual subsistence will be £12,712. Minimum surrender period for a permit is usually 2 years for inert sites. Surrender application fee £3,500. Assuming all restoration can be undertaken within 1 year (clearly this is not possible where planning requires progressive restoration): Costs under an exemption = £2,000 Costs under a landfill permit = £46,636 Typically, a permit where there is a deposit of inert waste also requires environmental monitoring: 3 groundwater monitoring boreholes (1 x up gradient and 2 x down gradient) Gas monitoring (number of monitoring points is usually dependent on site area) 3.3.14 refers to an activity being allocated an authorisation tier based on a number of factors including ‘vulnerability to misuse’. MPAS would suggest that this is not an appropriate consideration for tier allocation, as it relates to SEPA’s competence in enforcement rather than considering the risks to the environment and human health by compliant operators.

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

Please select one item
Ticked Yes
No
Comments:
Agreed, as this should provide greater regulatory transparency.

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

Please select one item
Ticked Yes
No
If not, why not?
Agreed

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

Please select one item
Ticked Yes
No
Comments:
Agreed

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
If not why not?
Agreed

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
Ticked Yes
No
Comments:
Agreed

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

Comments:
The industry can foresee occasions where it may be appropriate to include more than one person as the authorised person. For example, there may be occasions where there is a requirement to contract in plant (and operatives) such as emergency back up generators. Whilst it would be a contractual requirement to comply with all site procedures, authorisations and health and safety requirements, a site operator does not have the same degree of control in these situations. However, a system would need to be put in place to ensure an additional person can quickly be notified to SEPA in emergency situations.

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

Comments:
No comment

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

Comments:
The concept of FPP is already established under the waste management regime and it is suggested that extending this should not be problematic for operators.

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:
Agreed

19. Do you agree with the proposed application processes?

Comments:
It is unclear whether any, all or a proportion of an application fee will be refunded if SEPA determine that the application (or variation) is incomplete, or of insufficient quality. This needs to be clarified. It will be important that, when SEPA confirms the determination period and type of consultation (if any) that SEPA communicates this information to the applicant so that they are able to manage relevant business stakeholders and dependent operational activities. If SEPA has not granted the application (or variation) within the agreed determination period, then, without affecting the applicant’s right to treat the application as refused, SEPA should provide the applicant with a revised determination deadline. Without such information, applicants will be faced with the choice of a costly and time-consuming appeal or an indeterminate ‘wait’ for a permit. If SEPA request additional information then a reasonable time period must be allowed before SEPA are able to treat the application (or variation) as withdrawn (e.g. a minimum of 20 working days for simple requests to enable operator’ internal verification and sign-off processes). The application process should allow operators the opportunity to agree a different period with SEPA. It is not clear whether there will be a right of appeal if SEPA refuses a permit because the applicant fails the FPP test. The right of appeal should exist under these circumstances.

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?
Agreed. However, under 3.6.5 it is noted that the determination period may still be extended with the agreement of the applicant. An applicant clearly wants an authorisation to be granted, so refusing to extend a determination period is not an option. Extension periods provide uncertainty and the basis for SEPA requesting such action is often not transparent. As an incentive to stick as far as possible to the statutory determination period, it is suggested that agreements should clearly state the reasoning behind deviations.

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

Comments:
It is preferable for all applications to have a determination period agreed in writing with SEPA where the determination period is not 4 months, irrespective of the activity under consideration. In developing a risk based and proportionate authorisation system, the legislative categorisation of some activities as ‘non-standard’ and therefore as “likely to cause significant environmental harm” is unhelpful, particularly as applications may be ‘non-standard’ because, for example, they are scoped within the Industrial Emissions Directive and require public consultation, or because the

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
If not, why not?
Agreed

24. Do you agree with the proposals for transfer?

Please select one item
Ticked Yes
No
If not, why not?
Agreed

25. Do you agree with the proposals for surrender?

If not, why not?
The guidance needs to be clear that partial cessations (e.g. shutting a single line, or stopping a single activity out of multiple permitted activities) will not require permits to be surrendered. In a similar manner to the application process, SEPA should notify the authorised person of the time period required by SEPA to determine whether to accept or refuse an application to surrender a permit, and that, unless an extension is agreed by both parties, the authorised person may deem the application as accepted if the period passes without notification from SEPA. This will prevent authorised persons having indefinite periods of open liability on a permit they wish to surrender.

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

Comments:
We welcome the proposal that enforcement notice provision should be extended to those undertaking a regulated activity that is unauthorised. We do not agree however, with the proposal in 3.7.5 that would enable SEPA to serve an enforcement notice in cases where an operator is complying with the conditions of an authorisation, but SEPA perceives that harm may arise. This is not transparent or proportional regulation. As suggested in Q27, this would be more appropriate for alternative action, such as an improvement notice which recognises that no breach of authorisation conditions has been committed. If this provision were to remain, it is suggested that SEPA should be required to fully compensate an authorisation holder should an appeal be upheld. This would deter SEPA from issuing notices without full consideration of the impacts when it may be authorisation conditions that are inappropriate rather than a failing of the operator.

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:
Agreed

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:
3.7.11 refers to authorisation non-compliance. As noted in the response to Q.26, the proposal would allow SEPA to issue notices where there is full compliance but there is a risk of harm. Whilst examples have not been considered, it is possible that where an operator identifies a potential risk despite being in compliance, in order to address this, the agreed action to be taken could legally be considered to be non-compliant. It is suggested that more details as to how the proposals would work in practice need to be provided for consideration, prior to SEPA being awarded these powers. Based on the information in the consultation, it is currently difficult to support the proposals.

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
Comments
Agreed in principle, but it is suggested that it is a heavy-handed approach and it is hoped that SEPA would be able to agree to a temporary cessation of certain activities without having to issue notices.

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

Comments:
We agree with the proposal in 3.7.15 However, there would need to be clarity as to when an activity has ceased to be carried on (3.7.16). The aggregates sector operates on a supply and demand basis and in certain circumstances there may be periods of inactivity. Prescriptive guidance on activity timescale may not be appropriate for this sector, particularly if the inactivity poses no increased risk to the environment or human health.

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
Ticked Yes
No
If not, which alternative body do you think should hear such appeals and why?
Agreed

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

Comments:
As 6.4.43 proposes that all quarry restoration, irrespective of the environmental risks or scale of the activity will be required to be undertaken in accordance with a permit. In circumstances where restoration is currently being undertaken in accordance with a waste management licensing exemption, there will need to be assurances that the transition will not impact on an operators’ requirement to comply with its’ planning permission. It is also noted that paragraph 3.9.9 suggests new applications will require a bespoke permit even though, in the longer term, alternative options will be available, which SEPA are suggesting elsewhere in the consultation will be more efficient, have a lower administrative burden, and may have a lower application fee. It would therefore make sense to delay implementing the Integrated Authorisation Framework until the supporting GBRs, standard rules and so on are established, and for the regulations to set the timetable for this implementation.

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

Comments:
No comment

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:
Generally, yes. At a SEPA workshop on 27 February however, it was suggested that Compliance Assessment Scheme (CAS) information could be presented on both a site specific and sector basis. Quarry restoration (essentially historic sites) may be undertaken by any individual who has no affiliation to the extractives industry. Poor sector CAS performance could create additional hurdles during the planning application process and it is suggested that scores from operators who are in the business of extraction should not be combined with those that are not.

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

Comments:
MPAS would like to point out that considerable public participation is already incorporated into the planning processes as mentioned in response to Q.2. Where there has already been public participation under the planning process, industry would not wish to see planning outcomes undermined by a duplication of the process under authorisation proposals.

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

Comments:
MPAS would like to see greater liaison with planning authorities in this regard. For some industry sectors this is a duplication of regulatory effort, may delay the determination process and set expectations that decisions made at the planning application stage may subsequently be overturned at the authorisation stage. This is unhelpful and creates additional uncertainty to what can be an extremely costly and drawn out 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?

If not, why not?
No comment

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