Response 454810599

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Breedon Northern Limited

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?§
The minerals industry is subject to considerable regulation and any move to simplify the regulatory landscape is welcomed. Industry and investors need a clear, strategic, supportive and encouraging operating environment to boost confidence, justify investment and ensure continuity of supply. Local communities and other key stakeholders also require clarity about how current and potential future workings will be regulated to provide confidence that amenity and environmental concerns will be appropriately addressed. As implementing the proposed Integrated Authorisation Framework requires the Scottish Government to re-transpose several European Directives into Scottish legislation, there is an opportunity to remove some ‘gold plating’. For example, the current Pollution Prevention and Control (Scotland) Regulations 2012 (PPC) regulation 29(2) extends the meaning of the Industrial Emissions Directive (IED): paragraph 2.1(c) of Part 6 of Annex VI to the Industrial Emissions Directive is to be read as if for “and dioxins and furans” there is substituted “dioxins, furans, dioxin-like polychlorinated biphenyls and polycyclic aromatic hydrocarbons”. In this instance, Scottish Government could remove this additional requirement, and if necessary and in line with a proportionate and risk based approach, use the equivalent regulation in England and Wales: but only in the case of particular plants where the regulator can demonstrate that emissions of those additional substances are, or are likely to be, significant.

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
Ticked Yes
No

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

Please select one item
Ticked Yes
No

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:
We would welcome the industry-led guidance approach. In our experience, 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.

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

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

Please select one item
Ticked Yes
No
Do you agree that SEPA should consult on the guidance setting out the likely tier of authorisation for particular activities?
Yes in the interests of transparency and the spirit of better regulation. It is noted that landfill and restoration are two proposed categories of waste activity. 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 fulfill 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 this regard we request that SEPA and Scottish Government 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. 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

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

Please select one item
Ticked Yes
No

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

Please select one item
Ticked Yes
No

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

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

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

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:
The concept of FPP is already established under the waste management regime therefore we do not see an issue with extending this concept.

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

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?
As the determination period can be extended with the agreement of the applicant, who is unlikely to decline such a request, SEPA should be encouraged at all times to stick as far as possible to the statutory determination period to remove possible uncertainty.

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

Please select one item
Yes
Ticked No
Comments:
It is preferable for all applications to be taken on a case-by-case basis and therefore have a determination period agreed in writing with SEPA if the determination period is greater than 4 months. 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 activity is ‘innovative’ but may result in better environmental outcomes.

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
Ticked Yes
No

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 unit, 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

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?

Please select one item
Ticked Yes
No
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). Extraction will only take place where demand allows therefore at times 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 as a result of inactivity.

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

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

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

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

Comments:
Through the planning process, considerable public consultation is already undertaken and we do not see the need to duplicate this process and potentially cause further delays to the approval/permitting procedure.

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

Comments:
We would like to see greater liaison with planning authorities in this regard. 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.