Response 331980091

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About You

What is your name?

Name
Laura Tainsh

Are you responding as an individual or an organisation?

Please select one item
(Required)
Individual
Ticked Organisation

What is your organisation?

Organisation
Davidson Chalmers LLP

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?§
In relation to Q1, the benefits listed are desirable but it is questionable whether the IAF has the potential to deliver all of those. There is not enough detail in the consultation document(s). In general terms, the objectives which SEPA is aiming to achieve with the proposals for an IAF, such as simplification, reduction of regulatory burdens and encouragement of innovation have merit. However, some of the new proposals, and in particular the potential for introduction of universal obligations, presents a significant change from the current system and further consultation on guidance will be required out. In addition, it would not appear that SEPA intends to further consultation on the universal outcomes and that is a fairly significant issue. Clearly the UK’s withdrawal from the EU will have a significant impact on environmental law and therefore the proposals for the IAF. Can more detail be provided on how SEPA and the Scottish Government intend to “future-proof” the proposals?

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

How could SEPA better support the uptake of new technologies?
It is not clear what new technologies are envisaged in this or how the current system supports uptake of new technologies. Is the intention that people will be “allowed to fail” in carrying out the tests or trials necessary for new innovation which might fail to meet environmental obligations before a compliant solution can be found. That is not currently the case from SEPA’s perspective.

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:
From an operator’s perspective, this is potentially one of the most controversial aspects of the proposal. General conditions could lead to problems if people are not then clear as to what they can and cannot do. There is no point in a permit if the permit-holders can comply with conditions and still face sanctions. The status of the proposed universal outcomes needs to be made clearer – there is a question as to whether these are intended to be guiding principles or could failure to achieve them be used as grounds for bringing an enforcement action.The universal outcomes are not sufficiently clear in this regard. A further question arises as to the definition of “harm”. If this is not clearly defined at the outset, the concept could end up evolving; it is not practical (and would be prohibitively costly) to expect companies to retain consultants on a permanent basis to monitor such developments in order to avoid falling foul of the requirements. . Although in practical terms this will depend upon interpretation. The objectives are sound but significant effort will be required to ensure that they are achieved.

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

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?

Please select one item
Ticked Yes
No
Comments:
In relation to the public interest, this should not necessarily affect the form of authorisation. There is no provision for reassessment of the level of authorisation required. The concept of risk is still quite broad – further clarity is needed as to how risk will be determined. We would expect that this would be set out in more detail in the guidance as it is imperative that risk should be assessed consistently.

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?
I agree that SEPA should consult on the guidance. In particular, detailed guidance will be required around universal outcomes if these are to be introduced and this should be industry led.

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

Please select one item
Ticked Yes
No
Comments:
Standard rules have the potential to deliver benefits in terms of standardisation but they will need to be clear and accessible if the aims of consistency and certainty are to be achieved. In addition, it needs to be made clear how SEPA would deal with non-compliance relating to one specific activity covered under an integrated authorisation covering more than one activity or more than one site, from an enforcement perspective. Would the poor/non-compliance in one activity affect the whole authorisation and/or the CAS score for the whole site (or indeed for multiple sites if applicable)? This is particularly relevant for the waste sector.

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

Please select one item
Ticked Yes
No
If not, why not?
There should be scope for them to be updated.

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

Please select one item
Yes
Ticked No
Comments:
There are issues around SEPA and the Scottish Ministers having the power to make GBRs, particularly around the principles of certainty and transparency.

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?
However, it is not clear what would happen to the individual/company if something goes wrong. There may not be a single person who automatically appears appropriate to take on the role of authorised person and so a clearer provision for substitution, where required, is necessary. The individual may die or be otherwise incapacitated, s/he may (voluntarily or not) cease to hold an appropriate post in the body undertaking the relevant activity or that body may itself cease to exist (e.g. if a company is wound up). There should be provision for substitution or specifying whether and when responsibility comes to an end.

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:
Is the need for an authorised person in relation to a notification perhaps excessive?

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:
But also see answers to Q13 and Q16.

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

Comments:
The rules need to reflect the reality of the situation. More detail is needed as to how you assess culpability and assurance is required that action will only be taken where a certain matter was within the relevant person’s control. Deciding who has “control” in terms of the proposals could prove difficult. Particularly in larger companies, there may be someone who is responsible for environmental compliance but is not able to exercise control in the sense of finances or investment decisions. A threshold might be needed to determine who the appropriate person would be in such circumstances.

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:
I do not consider that reference to SEPA’s statutory purpose is helpful in this regard.

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

Please select one item
Yes
Ticked No
Comments:
It is not entirely clear what “good repute” would mean. I understand that the term is used in a security context but this would be wider than what I have in an environmental context at present. “any other grounds” gives an incredibly wide discretion to SEPA. There is a need to take a more targeted approach to identifying the mischief which these proposals are intended to resolve so as to avoid compromising certainty.

19. Do you agree with the proposed application processes?

Please select one item
Ticked Yes
No
Comments:
However, whilst I appreciate that applicants are responsible for ensuring that the application forms and information supplied are correct and in compliance with the applicable legislation and guidance, it would be useful if SEPA could agree to include a mechanism for ensuring that applications are given an initial check (i.e. for incomplete information or minor inaccuracies) within a fairly short timescale from receipt and that applicants are then informed if, as result of such initial check, their application is ‘duly made’. The current practice, in some cases, to refuse applications on the basis of such minor errors but often after some time has passed is not particularly helpful to the overall application process and does not improve confidence and transparency in the system. SEPA need to be careful to ensure that any new process is as user-friendly and consistent as possible.

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
Ticked Yes
No
Comments:
There is already a way to deal with “non-standard” activities and I feel this is sufficient. I would expect to see thresholds and a specific procedure to be set out [in the guidance] to give users the requisite clarity in these cases.

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

Comments:
As noted above at Q21, I would expect that the default procedure should be outlined in the guidance setting out timescales of what should happen and when it is anticipated that various milestones will be reached.

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
Yes
Ticked No
If not, why not?
Provision should be made for the position when the authorised person dies or is no longer able to act and specifying where responsibility lies when a company enters liquidation or otherwise ceases to exist as a distinct entity. See also comments at Q16.

25. Do you agree with the proposals for surrender?

Please select one item
Yes
Ticked No
If not, why not?
Where there is a lower risk, there should be a simpler process; as with registration the procedure should be proportionate to the activity in question. Again the guidance is key and I assume that this will be consulted on.

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

Please select one item
Ticked Yes
No
Comments:
However, where environmental harm is identified in a situation where the permit-holder is complying with the conditions of the permit and a notice is to be served, this should not be regarded as an enforcement notice. I anticipate that in many cases the appropriate course of action would be to vary the authorisation and a notice of variation should be sufficient.

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:
I agree that such cases should be dealt with separately. As above, where the permit-holder is not at fault, the notice should have a neutral name (i.e. not enforcement or improvement).

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:
See responses to Q26 and Q27.

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
These should continue to be used but they should not be used in place of enforcement notices and it should be clear that there is not suggestion of non-compliance. My understanding is that the general premise of this type of notice is to deal with matters which are out with the control of an operator (rather than relating to the operator’s non-compliance) such as a wider or adjacent pollution incident, where temporary suspension of activities which could aggravate an environmental problem is justified. Currently, that is not always the premise on which such notices are issued. My view is that going forward, that is the basis on which they should be issued and that SEPA should also consider whether compensation for loss of business, profit etc (resulting from such temporary suspension) should be built into the use of such notices.

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

Please select one item
Ticked Yes
No
Comments:
I emphasise that revocation is only appropriate in the most serious of circumstances: all other means of dealing with a problem should be exhausted before resorting to revocation.

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?
There current system is fragmented as it allocates appeal jurisdiction to a range of different bodies and some consistency would be preferable.

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

Comments:
Specific questions have not been posed on the part 6 of the consultation in relation to waste but one issue which arises in relation to this question and is likely to require some further (industry specific) consultation relates to the transition arrangements for waste licensing exemptions. Whilst the proposal appears to be that some such exemptions will simply transfer to the lowest tier of the new framework, that is not intended to be the case for other exemptions. Clarification, including by way of additional consultation, would be welcome to ensure that the balance between lighter regulatory control (in some cases) and the need for stricter regulatory control (in other cases) is struck appropriately.

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

Comments:
It may be helpful if this is customer-led: SEPA should consult stakeholders to gauge the likely uptake. An industry or sector-specific approach may be appropriate in this regard.

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:
It is important that there should be transparency around what information SEPA will make 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:
But the criteria for such participation must be clear.

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:
I do not consider that the arrangements should be extended. The approach is appropriate for CAR because of the number of third party users but it is not needed in other situations (e.g for waste).