Response 397511708

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Name
India Redrup

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Organisation
Energy UK

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?§
Energy UK considers that 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 in response to Question 1. These risks are not discussed in the consultation paper. Energy UK considers that it is vital that such risks are openly considered and taken into account in any measures implemented to ensure the best possible outcome from this review. We would like clarification that the terms ‘authorisation holder’ and ‘Fit and Proper Person’ could apply to a company or a role within an organisation (e.g. company director, environmental compliance manager), rather than a named individual (assuming that the individual taking the role is a Suitably Qualified and Experienced Person). This would avoid the unnecessary process of re-designating the authorised person as individuals move roles within their organisation. This approach is particularly relevant in instances where SEPA identifies more than one authorised person. Furthermore, this would be consistent with the approach used for the authorisation holder in current authorisations under the Radioactive Substances Act. Identifying individuals on a permit granted to a Nuclear Licensed site, particularly with regards to access to radioactive waste, would be of concern from a Nuclear Security and a personal data protection perspective. We find Figure 1 slightly misleading, and recommend the following amendments:  The bubble to the right of the ‘future’ pyramid states that there will be “more resources focused on most hazardous and highest risk” activities. This is inconsistent with the text which focuses on the risk that activities pose, as opposed to the hazard. In line with the principles of Better Regulation, it is appropriate to consider the overall risk posed by an activity (as outlined in the text), rather than focusing on either the likelihood or hazards associated with an activity. We therefore recommend that the text in the bubble be amended to read “More resources focused on highest risk”.  The bracket to the right of the ‘future’ pyramid incorrectly gives the impression that only the General Binding Rules, Notification and Registration tiers of the new framework will be automated, simplified and focus on risk. We therefore recommend that this bracket is removed from the diagram. Furthermore, Energy UK understands that the implementation of the radioactive substances framework is planned to be completed by February 2018. This is a challenging timescale for such a fundamental change. We request that a comprehensive programme of engagement is put in place during this period to ensure that detailed implementation of the framework is satisfactory.

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 members’ 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 deliberations. We consider that early, albeit often informal, talks are very helpful in informing the Regulator’s views and thus reducing the regulatory burden placed upon Operators, even if much of the detail is not determined at this early stage. This is an area in which SEPA can lead by example. We recommend that SEPA develops a high quality, user friendly, web-based portal to support this new framework.

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

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

Comments:
While Energy UK considers that these outcomes appear to be reasonable as headline outcomes, we believe that the terms are overly simplistic and require further description/qualification. For example, in developing low carbon power facilities, such as windfarms or solar arrays, it may not be possible to prevent all harm to flora and fauna but the project would result in a net reduction in Scotland’s CO2 emissions, and a responsible developer would seek to remedy the harm afterwards. That is, an absolute requirement to prevent harm is not realistic or achievable and could prevent the development and operation of projects which result in net benefits to Scottish society and the environment. 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 simplistic and all-encompassing, as a responsible Operator could take all reasonable measures but an incident could still occur in extreme circumstances. Therefore, ‘necessary measures’ to prevent accidents and limit their consequences needs to be subject to a test of reasonableness. If SEPA and the Scottish Government do decide to introduce universal environmental outcomes into Operators’ authorisations, it is vital that long-established principles of environmental regulation, such as cost-benefit analysis and proportionate and transparent obligations, are not lost in the process.

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?

Comments:
To ensure industry-led guidance was acceptable practice there would have to be a form of SEPA agreement of that guidance to ensure its acceptance within the industry otherwise the guidance may not be used due to uncertainty of its status. We see some opportunities within the electricity generation sector for industry-led guidance. However, before this is taken forward, the following issues need to be further addressed satisfactorily: • Best practice guidance should not be binding on Operators. • Consequently, not all issues will be appropriate for guidance – some aspects of operation will need to meet a specified standard, without exception. Less responsible Operators should not be able to implement a lower standard of performance on key environmental aspects. • The ultimate ownership of the guidance needs to be clarified. Our assumption is that the owner would be SEPA, who would manage the compilation and revisions to the documents. • How the costs of preparing guidance would be recovered needs to be established and the cost-benefit balance of producing guidance needs to be assessed. • An increased reliance on guidance could increase regulatory uncertainty for Operators and could also be significantly more onerous than the present arrangements. These concerns need further consideration.

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

Please select one item
Ticked Yes
No
Comments:
Energy UK members understand the descriptions of the regulated activities in Annex 2 of the consultation paper but note that the descriptions are an overview and not an exhaustive list. We consider that the Scottish Government should consult industry when producing a definitive list. Energy UK welcomes 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, Energy UK welcomes in principle the proposal to introduce integrated authorisations replacing regime-specific authorisations, such as a single site permit or a corporate permit. Provided that inspectors have the appropriate expertise in the required areas, this has the potential to:  reduce costs for both SEPA and Operators  significantly simplify regulatory processes  reduce monitoring and reporting  reduce site inspections by SEPA with considerable associated benefits for both SEPA and Operators. 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;  whether this would result in tighter obligations in some areas than actually required, given that the authorisation would be for the highest of the applicable tiers; and,  whether an integrated authorisation would be more cost effective than individual authorisations. Subject to clarification of these issues, Energy UK considers that integrated permits could deliver considerable benefits to both Operators and SEPA. It is, however, important that the principle of Operator’s ability to choose 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 on site 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:
Energy UK agrees that these are the right factors for SEPA to consider, but would like more information on how SEPA intends to screen activities against these factors, and whether this would be qualitative in nature, or use some sort of scoring system including weighting factors.

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

Do you agree that SEPA should consult on the guidance setting out the likely tier of authorisation for particular activities?
Energy UK considers that 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 that due regulatory process is followed. It is also important that industry is able to feed back to SEPA on the likely level of regulatory interaction that their proposals would require and the level of resource that SEPA should allocate to deal with this.

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

Comments:
Energy UK considers that, if the wording of the standard rules is carefully considered and is produced in consultation with industry, then standard rules could deliver the intended benefits. We would appreciate more detail on how extensively SEPA intends to use standard rules under the new framework, as well as how SEPA intends to engage with industry to develop these. Energy UK supports 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, which should improve consistency and certainty for Operators. In addition, we welcome the proposed removal of prescription from registrations as we consider that this will deliver a number of the benefits listed in the paper. However, Energy UK 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. We would also like to highlight that including standard rules which cannot be varied in ‘bespoke’ permits may cause confusion and create unnecessary burdens for industry, especially for large Part A processes or complex sites with multiple processes and Operators. Consideration should therefore be given to allowing Operators to request the replacement of standard rules with bespoke conditions in certain circumstances, on a case by case basis. 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 making their own interpretation, which in turn would lead to a lack of consistency across Operators and sectors. Regulatory requirements need to be clear 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 simpler, outcome-based permits needs to be measured and judged against the need for regulatory clarity, consistency and certainty.

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

If not, why not?
Energy UK supports a requirement on SEPA to consult on any draft standard rules; however, due to the lack of specific detail in the consultation document, we cannot definitively agree or disagree with the proposed procedure.

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

Comments:
Energy UK considers that SEPA has the expertise for defining General Binding Rules (GBRs) and will be able to respond more quickly if changes are required, subject to Scottish Ministers’ approval and consultation with industry. Energy UK therefore suggests that only SEPA should have the ability to make GBR’s to prevent confusion arising over the appropriate points of contact for industry when seeking advice on GBRs.

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?
We agree with this proposal, provided that the term ‘authorised person’ could apply to a company or a role within an organisation (e.g. Company Director, Environmental Compliance Manager), rather than a named individual. This would avoid the unnecessary process of re-designating the authorised person when individuals move roles within their organisation. This approach is particularly relevant in instances where SEPA identifies more than one authorised person. Furthermore, this would be consistent with the procedure used for the “Authorisation Holder” in current authorisations under the Radioactive Substances Act. Identifying individuals on a permit granted to a Nuclear Licensed Site, particularly with regards to access to radioactive waste, would be of concern from a nuclear security and a personal data protection perspective. We consider that more detail is needed on how an authorised person is designated as a Suitably Qualified and Experienced Person (SQEP), as the consultation document does not identify whether SEPA or the regulated organisation is responsible for identifying SQEPs, and the level of influence that the other party may have on this. Anyone who is nominated as an authorised person should be supported by very clear guidance on the expectations and responsibilities put upon them, given the seriousness of the consequences that they could face if they fail to uphold these. More clarity is also required as to what sanctions might be imposed on an authorised person who is an employee of a large organisation, and what sanctions might be imposed on the organisation itself. For example, in instances where a large fine is to be imposed, it should be clarified how the discrepancy in the ability of the two parties to pay would be taken into account when imposing a fine upon either, or both, parties.

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:
We do not consider that it would be proportionate to require the person in control to be the person that notifies an activity in the notification tier. In large organisations, central support functions may make certain notifications and registrations on behalf of power station staff. Retaining the ability to do so is necessary to reduce the burden on station staff and ensure that compliance is managed consistently across the company. The person in control should therefore be allowed to delegate the requirement to notify an activity in the notification tier to other SQEPs within their organisation.

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

Comments:
Energy UK agrees that SEPA should include more than one authorised person where appropriate, provided that the term ‘authorised person’ could apply to a company or role within an organisation (e.g. Company Director, Environmental Compliance Manager), rather than a named individual. This would avoid the unnecessary process of re-designating the authorised person when individuals move roles within their organisation.

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

Comments:
We consider that a distinction should be made between routine control, and overall responsibility. The authorised person (i.e. company) should have an overall responsibility for ensuring regulatory compliance and be ultimately accountable for this, but may delegate routine control to other SQEPs within their organisation. We would like clarification that it is the Scottish Government’s intention that the applicant would nominate the Authorised Person, and that SEPA would approve this application, provided that the nominee met all of their relevant criteria. SEPA’s existing process for determining competence should be used to assess whether an individual is suitable to be in routine control of an activity. The individual should also have the relevant authority within their organisation to control the environmental impact of the activity. It is important that once a person has been designated as being in control, they must be supported by very clear guidance on the expectations and responsibilities put upon them, given the seriousness of the consequences that they could face if they fail to uphold these. Where a site has a formal management system (which may incorporate a distinct environmental management system); these arrangements should provide evidence of the allocation and delegation of responsibilities, and the processes and procedures to manage this. An effective management system should demonstrate clearly who has direct control, and who has ultimate responsibility, for the management of an activity.

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:
Energy UK supports streamlining the different assessments undertaken under each of the existing regimes into an integrated Fit and Proper Person (FPP) test; however, we are unclear as to how the arrangements are intended to work in cases where a number of roles are involved in supporting compliance with an authorisation.

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

Comments:
Energy UK does not consider that there is sufficient detail in the consultation document to determine if the requirements will deliver the right approach. One of the criteria 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 Energy UK supports this requirement in principle, the level of financial provision required needs to be proportionate to the level of potential risk. Energy UK is unclear as to the reason for extending the FPP test to “other relevant persons” in addition to the proposed authorised person. The term “other relevant persons” is not defined in the paper and the only example given is those benefitting financially from the activity which could potentially cover multiple people. Given that the proposals include the ability for SEPA to include more than one person as the authorised person, who would then be individually and jointly responsible for the registration or permit, we do not see a justification for the inclusion of “other relevant persons” in the FPP test. Further explanation of the term ‘good repute’ is also necessary in order for this test to be applied. For example, we are unclear as to how being of ‘good repute’ would differ from having no criminal convictions and being technically competent.

19. Do you agree with the proposed application processes?

Comments:
Energy UK supports 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. We also consider that it is important that the process should include an opportunity for the applicant to review drafts of new permits. It is unclear if the process of ‘SEPA considering the application, and consulting where necessary’ is intended to include sharing the draft permit with the applicant.

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?
We agree that a statutory determination period of four months is likely to be appropriate for the majority of permit applications. This is consistent with the Environmental Permitting Regulations in England & Wales.

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

Comments:
Energy UK considers that it is important that non-standard activities which require longer determination periods are granted these; however, as noted in paragraph 3.6.13, these activities do not necessarily require longer determination periods. Therefore, the legislation should make it clear that the non-standard activities which require more than the statutory four-month determination period can be granted a longer period by agreement. However, extending the determination period beyond four months does not necessitate an entirely separate category of application for non-standard activities simply to enable this option. This should be achievable by stating in the legislation that the statutory determination period is not applicable to non-standard activities, with a list or definition of non-standard activities left to Regulatory Guidance. This would ensure that non-standard activities are subject to the appropriate determination period, while maintaining the Scottish Government’s aim of simplification of the framework as far as possible. 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 carry a requirement to be consulted on by SEPA.

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

Comments:
In some cases, low risk novel or innovative activities might be considered to be “non-standard”. In such cases, it would be disproportionate to extend the permitting process beyond the four-month determination period, especially where these applications have gone through pre-application with SEPA and have provided all necessary and appropriate supporting information. However, in other cases, a “non-standard” activity may reasonably be expected to take more than four months to process. In these cases, it is desirable, but not always possible, to set a longer determination period early in the application process.

23. Do you agree with the proposals for variations?

If not, why not?
Energy UK broadly agrees with these proposals; however, we consider that there should be an ability to remove or alter a location or activity via a variation. This would reduce the administrative burden associated with the cessation of an individual activity or closure of a site. We also consider that given the potentially minor nature of some variations, it would be unreasonable for the same timescales (28 days / four months) to be applied to permit variations as new applications, and that a fast-track process should be available for minor or administrative variations. We would also appreciate clarification that where SEPA is required to revoke and reissue a registration, in line with paragraph 8.3.9, this would be done simultaneously so as not to leave an Operator unregistered between the revocation of the old registration and the issue of the new one.

24. Do you agree with the proposals for transfer?

Please select one item
Ticked Yes
No
If not, why not?
We agree with the proposals for transfer, but would like to reiterate that we consider that the term ‘authorised person’ should be able to refer to a role rather than a named individual.

25. Do you agree with the proposals for surrender?

If not, why not?
Energy UK considers that 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. We also consider that partial surrender is an important process, which gives SEPA the flexibility to remove from the authorisation an activity or site which is no longer relevant, and would appreciate more details on this process. Unless it is intended that activities and sites could be removed from an authorisation via a variation (which does not appear to be the case – see our response to Question 23), this would significantly reduce the administrative burden on both SEPA and the authorisation holder, as the only other option appears to be full authorisation surrender followed by reapplication for authorisation. We would also appreciate more detail on the responsibilities of the authorisation holder for the restoration of land which has been contaminated by neighbouring activities. We assume that, in line with the ‘polluter pays’ principle, the authorisation holder would only be responsible for restoration associated with its activities, but in instances where activities have had an impact beyond the site boundaries on an adjacent and neighbouring site, it would be the authorisation holder whose activity caused these impacts who would be responsible for restoration.

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

Please select one item
Yes
Ticked No
Comments:
We do not agree. Energy UK considers that the ability to issue enforcement notices, even where there is no authorisation in place, could be an effective alternative to prosecution, which can be the only option open in terms of enforcement action where no authorisation is in force. However, 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. Energy UK considers this to be an excessive addition to SEPA’s enforcement powers, given the lack of justification in the consultation document of the need for such a power. The consultation 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 augmented 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, Energy UK’s members do not consider that such an extension of the use of enforcement notices as a general power is reasonable. Furthermore, paragraph 3.7.11 suggests that an enforcement notice is the only tool at SEPA’s disposal for dealing with an authorised person who has failed to adequately manage their activity. However, such a limited approach is not proportionate for all non-compliances. We therefore seek reassurance that, in addition to enforcement notices, SEPA will continue to use a range of measures which are proportionate to the non-compliance in question. SEPA’s 2015 Guidance on the use of enforcement action is a good reference for SEPA to follow to identify when it is proportionate and appropriate to issue notices, or to issue guidance and advice. If there are specific concerns that SEPA does not believe can be addressed through the use of its existing enforcement powers, these should be explicitly consulted on along with a discussion of possible ways of addressing 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. We are therefore concerned that the less prescriptive nature of the proposed permits may increase the likelihood of SEPA needing to use enforcement notices. 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, Energy UK 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. 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; 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, Energy UK agrees that it would be highly inappropriate to call the notices described in Sections 3.7.10 to 3.7.12 enforcement notices due to the associated negative impact of such a term on an Operator’s reputation. Therefore, there is a strong need for these notices to be differentiated from current enforcement notices, as current enforcement notices are often seen as a last resort before referral to the Procurator Fiscal. We agree that ‘improvement notice’ seems an appropriate term for this alternative notice. More information is also required to put these notices into context i.e. where in the enforcement hierarchy will they be used.

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 consider that the ability to use enforcement notices when no authorisation in place is a positive step. This will allow SEPA to act to protect the environment without resorting to prosecution. This is particularly important where an Operator has not acted irresponsibly, but where unintended consequences have arisen from actions which seemed reasonable when they were taken, especially if those consequences were difficult to foresee. 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 consultation 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 consider 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. Varying the permit to include the additional requirements would prevent such a situation from arising. Having permits which are less prescriptive could also lead to a rise in the use of enforcement notices. This may occur if a less prescriptive permit fails to clearly define the circumstances which would result in the issue of an enforcement notice. This would mean that the use of enforcement notices may no longer be limited to those circumstances which currently result in enforcement action being taken, and Operators may have enforcement action being taken against them for activities which were compliant with their previous permit. A new system of authorisation which leads to an increase in the use of enforcement action while there has been no deterioration in environmental performance would have the potential to do substantial reputational damaged to both Scottish industry and to SEPA. Energy UK therefore considers 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?

Comments
Energy UK recognises that there may be extraordinary circumstances where such measures require suspension notices to be used, despite the authorised person not being ‘enforced’ against. Before such a notice is imposed, the impact of the notice and the circumstances which would lead SEPA to impose it should be made clear to the affected authorisation holder.

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 SEPA should have the power to revoke authorisations as described in the consultation document. However, we would like to highlight that care should be taken to ensure that the revocation of an authorisation does not increase the likelihood of an Authorised Person leaving a problematic site that could have been better dealt with through the use of enforcement notices.

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?
We have no comment to make in response to this question.

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

Comments:
Energy UK considers that it is important that the transitional arrangements should be as simple as possible, and that the need for new applications to be submitted for activities with existing authorisations should be minimised. We would also like to highlight the importance of allowing sufficient time and support from Regulators during the transition to the new framework. To ensure as smooth a transition as possible, we would appreciate specific guidance on the transition process. The consultation 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.

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

Comments:
In general, we consider that the clearer the requirements and guidance, the easier it will be for both authorisation holders and SEPA to implement these authorisations. One possible approach would be to implement integrated and corporate authorisations one regime at a time. This would allow SEPA and Operators to spread the workload and also provide an opportunity for any issues that might arise to be addressed before adding another regime. Where SEPA intends to initiate integration, it should consult the organisation beforehand to determine if the organisation wants the integration authorisation, as there may be circumstances in which an organisation would prefer to keep its authorisations separated. If an organisation does want its authorisation to be integrated, then SEPA should work with it to agree the timescale for this work. SEPA should also ensure that there is a process in place to appeal against the integration before starting work on integrations.

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?

Comments:
We agree in principle that SEPA should have more flexibility in making information available to the public. However, we do not consider that there is sufficient detail in the consultation document for us to fully understand this proposal.

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

Comments:
In principle, Energy UK supports 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 public 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 significant costs. 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:
We do not agree. Energy UK considers that the arrangements under CAR for third party call-in are reasonable and work well, but does not consider that it would be appropriate to extend these arrangements to all regulated activities. 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, provided that arrangements are in place such that these are limited to genuine cases and only where SEPA’s ability to determine an application objectively is in doubt, and 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?
We do not agree. We have set out our concerns regarding the proposed universal outcomes in response to Questions 4 and 5 above so will not repeat the same points here. However, Energy UK does not consider that the provisions of the universal outcomes contain equivalent protection to 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?
Energy UK considers that it is important that, as the various regimes are brought together, the respective scopes of the Pollution Prevention and Control (PPC) and Radioactive Substances Regulation (RSR) pollution inventory submissions are defined in instances where both occur on a single site. This will allow the submission of non-radiological emissions data relating to the PPC permitted activity to remain focused only on that installation. This will avoid scope confusion with the RSR authorisation under which radiological data is submitted in relation to a different activity on the same site.

Part 7: Radioactive Substances

39. Do you agree that it is appropriate to have controls on radioactively contaminated materials whilst they remain on the premises where they were contaminated?

Please select one item
Ticked Yes
No
If not, why not?
We agree in principle that it is appropriate to have controls on radioactively contaminated materials whilst they remain on the site where they were contaminated, in order to be able to control the generation of radioactive waste. However, controls are already applied at nuclear licensed sites through Licence Condition 4 (Restrictions on nuclear matter on the site) of the site licence. As a result, control of such materials on nuclear licensed sites under the Radioactive Substances Act is exempted. Energy UK would seek assurance that this exemption will continue to apply under the proposed framework in order to avoid dual regulation.

40. Do you foresee any practical implications of the proposal to have controls on radioactively contaminated materials whilst they remain on the premises where they were contaminated?

Do you foresee any practical implications of the proposal to have controls on radioactively contaminated materials whilst they remain on the premises where they were contaminated?
Energy UK understands that the current exemption for radioactive material on nuclear licensed sites will continue. If this is the case, we have no further comment to make in response to this question. We would welcome confirmation that our understanding of this exemption is correct.

41. Do you agree that all substances associated with NORM industrial activities should be subject to control under the integrated authorisation framework, where they exceed the out-of-scope values, irrespective of whether or not they are classed as radioactive material or waste?

If not, why not?
We have no comment to make in response to this question.

42. Do you foresee any significant implications of this proposed change, e.g. are there any finished products (consumer products or construction materials) that would become classified as radioactive material?

Do you foresee any significant implications of this proposed change, e.g. are there any finished products (consumer products or construction materials) that would become classified as radioactive material?
We have no comment to make in response to this question.

43. Do you agree that we should continue to exclude the public from the scope of the radioactive substances regulatory regime?

Please select one item
Ticked Yes
No
If not, why not?
Energy UK agrees that the public should continue to be excluded from the scope of the radioactive substances regulatory regime. We would also like to highlight that there is an opportunity to address an "unintended consequence" of the current arrangements for self-employed people who have ingested medical radioisotopes, e.g. radioactive tracers. Many self-employed people’s home address is also their business address, so there is an "undertaking" at this address and the premises fall into scope of the regime (irrespective of the nature of the undertaking). In such circumstances, the exemption provision for patient excreta takes effect, but this has four conditions, two of which the individual is unlikely to be able to comply with (i.e. keep an adequate record of the waste which is disposed of from any premises and allow the Regulator access to such records or such premises as the Regulator may request in order to determine that all of the conditions that apply are complied with). We consider the Scottish Government should use this opportunity to remove these requirements for the self-employed at home.

44. Do you agree with the proposed radioactive substances regulated activities?

Please select one item
Ticked Yes
No
If not, why not?
Energy UK agrees in principle with SEPA’s aim to regulate the management of radioactive waste in order to effectively control waste which needs to be disposed of, however, we are concerned that there is the potential to introduce a degree of double regulation between the new framework, and the Nuclear Site Licence at nuclear licensed sites. This is expanded further in our response to Question 45.

45. Do you agree with the proposals for applying the new regulatory regime to nuclear licensed sites?

Please select one item
Ticked Yes
No
If not, why not?
Energy UK agrees in principle with SEPA’s aim to regulate the management of radioactive waste in order to effectively control waste which needs to be disposed of, however, we are concerned that there is the potential to introduce a degree of double regulation between the new framework, and the Nuclear Site Licence at nuclear licensed sites. Accumulation of waste is the explicit subject of Licence Condition (LC) 32 (Accumulation of radioactive waste). While paragraph 7.3.25 of the consultation document states that "there is no intention, or desire, to duplicate any of the functions or responsibilities of the Office for Nuclear Regulation (ONR) or impose additional regulatory burden on nuclear licensed site Operators", regulation of the same wastes by different Regulators for different purposes raises the potential for an Operator to be given conflicting directions in relation to such wastes. We note that discussions between the Scottish Government and the ONR are ongoing, and seek reassurance that the expansion of SEPA’s powers on nuclear licensed sites in this regard would only be implemented once it is clarified how such conflicts would be avoided.

46. Do you foresee any problems with removing the requirement to display certificates?

Do you foresee any problems with removing the requirement to display certificates?
In principle, Energy UK does not foresee any problems with the removal of the requirement to display certificates, as this is an outdated requirement which was initiated before it was practicable to use a computer system to hold and distribute these. However, we would appreciate more clarity on the proposed move to require that an authorisation is made available to anyone who needs it.

47. Do you agree that SEPA should have the power to impose conditions in an authorisation requiring the permit holder to carry out operations off their site?

Please select one item
Ticked Yes
No
If not, why not?
In principle, we agree with this proposal; however, we consider that more detail is required as to how SEPA would deal with circumstances where the authorisation holder is denied access to off-site areas.