Response 390219358

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Are you responding as an individual or an organisation?

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Individual
Ticked Organisation

What is your organisation?

Organisation
Chemical Industries Association

Part 2: Policy Overview

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

Please select one item
Yes
Ticked 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?§
Whilst the consultation is set out in a clear manner, it was felt that some aspects did not include sufficient depth to assess the intentions and therefore impacts on specific regimes and specific industries. The most extensive piece of legislation covering chemical sites is the PPC regulations and the directive it transposes, the IED, which leaves little room for introducing the flexibility proposed by SEPA i.e. Best Available Technique Reference (BRef) documents are prescriptive and their associated BAT Conclusions must be followed. Therefore how can / will a more outcome focussed and less prescriptive approach be applied in these circumstances? It is noted that the intended efficiencies created through the integration will free up SEPA resource that can then be redistributed. How will authorisation holders be selected to work beyond compliance with? Will this then mean that charges from the whole of those regulated by SEPA will fund this type of work for a small number of authorisation holders? Or will all authorisation holders have the opportunity to work with SEPA on “beyond compliance” and this be reflected in their charges accordingly? Significant work that goes beyond compliance already occurs within our membership. It is not clear how exactly SEPA would contribute to this in our industry.

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

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

Comments:
If standard rules are developed for a sector as diverse as the chemicals industry, the diversity should be kept in mind and standard rules only developed in a manner that does not put the industry at a competitive disadvantage.

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?

If not why not?
Clarity is requested on the relationship between “operator” as defined in the Industrial Emissions Directive, and Authorised Person (AP) as provided for in this consultation. If the AP and operator are the same, it would be welcome to stipulate this in the IAF to demonstrate this consistency. Please also see response to Q 17.

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
Yes
Ticked No
Comments:
CIA has concerns about taking a feature of waste legislation, i.e. the FPP test, and applying it to all regulated activities. It is to our understanding that FPP works in waste industry due to the emergence of an external certification scheme and before the certification was developed, the application of FPP was problematic. Therefore if similar mechanisms would be required for each sector, this could cause significant disruption for an undefined period of time at an unknown cost. Requests for clarity: • If a company can be named as AP, is it proposed to also include persons as APs in the same permit? • If only a company is named as AP, how is the FPP test applied? • Is it proposed to apply the FPP test to companies? • Is the AP(s) the person with responsibilities to ensure the conditions of the authorisation are met (site manager/CEO), or the person with the technical expertise to deliver the conditions of an authorisation (environment specialist) because the former will have control over the vast number of factors that feed into authorisations being complied with and the latter will have the technical expertise to demonstrate FPP although it would not be fair to assign also the responsibility of compliance to the environment specialist. If both are intended to be AP, standardising tests for multiple levels of staff in organisations across many diverse sectors would be very complex and onerous for both regulators and the regulated. • Given the broad and general nature of the proposed approach, how will the principles be applied consistently by those making the assessment? The openness to interpretation and subjective nature of the proposed approach may lead to significant differences in the way the tests are applied. In light of the aforementioned points, the complexities appear to outweigh any perceived benefits in the chemical industry. Particularly given the high level of expertise and specialisation required to implement permit objectives and thus the implied complexity of assessing against FPP criteria. The UK chemical industry already assesses competence of individuals when they are assigned responsibilities. Instead of applying FPP to all regulated activities, a risk-based approach should be adopted and FPP only applied in areas where it is likely to have the greatest impact.

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:
Please see response to Q17.

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
Yes
Ticked No
If not, what do you think the determination period should be?
It is understood that particularly complex permit applications require more than 4 months to be determined. If this provision is carried forward, CIA proposes there is also a facility to reduce the 4 month period for very simple permit applications, by mutual agreement of SEPA and the applicant.

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

Please select one item
Yes
Ticked No
Comments:
CIA has concerns over the application of subjective provisions such as “likely to cause harm”. Can this be applied consistently across authorisation holders, different activities and most importantly by different SEPA representatives? To do so would require significant guidance and may even still be a point of contention. The preventive intent is not disagreed with but the practical realities need careful consideration if this power is to be adopted.

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?

Comments:
From the consultation documents it is understood that the intention is to reduce prescription and use improvement notices to instil additional prescription when outcomes are not met. “Improvement” is softer language than “Enforcement”, could an unintended effect be that Improvement notices are not taken as seriously but the difference to the previous enforcement notice is cosmetic? How will improvement notices affect Compliance Assessment Scores?

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:
Please see response to Q28.