Response 470427784

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UK Environmental Law Association

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Organisation
UK Environmental Law Association

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?§
Enabling and supporting innovation is to be encouraged, but SEPA produces no evidence that the current regulatory framework stifles genuine innovation. In the context of recent reports that SEPA has been considering proposals for a huge salmon farm – known as an “innovation site” – which would breach SEPA’s current 2,500 tonne biomass limit for fish farms, SEPA’s support for such forms of “innovation” might be viewed with some concern. Additional information - PART 6 Waste Paragraph 6.1.6 says “the Duty of Care obligations (s.34 of the EPA 1990) … are not included in these reforms as they do not relate directly to the granting of authorisations”. There are situations which issues with waste management licences, exemptions or the lack thereof can result in a s.34 offence. How will SEPA integrate the new authorisations with this retained provision? Paragraph 6.3.12 discusses notices under s.59 of EPA 1990, which must be served on the occupier of the land. The reason for this is that the occupier needs no further permission before being able to remove the waste in compliance with the notice, whereas any other person would need permission from the occupier of the land. It is proposed that “the new notice” can be served on the person who deposited the waste too. That person will need the permission of the occupier of the land before complying with such a notice, potentially leading to delay in removing the waste: this must be considered in drafting of the notice provisions. Paragraphs 6.4.38 to 6.4.46 discuss existing WMLR paragraph 9 and 19 exemptions. Further consideration and clarification of the use of such exemptions for legitimate reasons is required alongside the current consultation relating to the infilling of quarries etc. There are potential wide-ranging consequences for both the waste and C&D industries if these proposals are implemented in a blanket fashion.

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

How could SEPA better support the uptake of new technologies?
No comment

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

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

Comments:
Broadly yes, but if they are to be enforceable, more detail on the definition of the terms used is needed, and any supporting conditions set will need to meet the tests of necessity, relevance, enforceability, precision and reasonableness.

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:
No comment

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

Please select one item
Ticked Yes
No
Comments:
Yes. If SEPA is to issue a single authorisation covering all regulated activities at a given site, or even at multiple sites with the same authorised person, it needs to be made clear how SEPA would deal with non-compliance relating to one specific activity covered under that integrated authorisation, 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.

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

Comments:
It is not clear from paragraph 3.3.11 whether authorisation of an activity by ‘notification’ will require compliance by the notifying person with any rules. Paragraph 3.4.12 does say that “some activities in the notification tier will also have GBRs that apply”. That implies that other activities in the notification tier will have no rules that apply. However, if no rules apply to an activity, the activity cannot be described as ‘regulated’. Therefore if, as seems essential, standard rules are required for all notifications, they will all need to be set out in legislation, like GBRs, because SEPA will not be issuing an authorisation document containing conditions. It would be clearer to describe the first tier of authorisation as ‘GBRs (without notification)’ and the second tier as ‘GBRs with notification’.

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, this is critical.

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

Comments:
Mostly, but it is difficult to see how the use of standard rules will lead to “reduced burden and cost for SEPA to review and change authorisation conditions across a sector”. As paragraph 3.4.10 says, “final standard rules will be published on the SEPA website and those affected will be notified by SEPA”. This must apply to changes to standard rules too, because SEPA cannot lawfully avoid having to give notice of rule changes to every affected person in writing, but it is not clear how SEPA will lower costs if it continues to notify every affected person whenever there is a change to the standard rules.

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
Yes
Ticked No
Comments:
No. Scottish Ministers should continue to have the power to make GBRs (using secondary legislation), but SEPA should not. UKELA’s response to the 2012 consultation said: “UKELA considers that GBRs should be set out in legislation, not “in rules developed by Scottish Ministers or SEPA”, even “under a procedure set out in the legislation”. The whole point of GBRs under CAR, and as proposed here for the integrated structure … is that the operator would not be required to notify SEPA “in any way”. The intentional absence of an interface between the operator and SEPA at this level (until there is a non-compliance) should imply that the operator has no need to refer to SEPA literature or search the SEPA website to find out what is required of him or her, but such would be the consequence of having the rules developed by SEPA or Scottish Ministers. An operator subject to GBRs should be able to find them on the legislation.gov.uk website or from any professional adviser without reference to SEPA at all. In other words, where no regulatory contact is expected, maximum legislative transparency is required. Furthermore, UKELA considers that where rules are to have direct effect on any person, i.e. without the issue to that person of a document setting out or referring to those rules, the rules should be subject to proper parliamentary scrutiny, with appropriate publicity and consultation. New GBRs have been introduced into CAR on 3 occasions since 2005, demonstrating that it is not difficult for the Scottish Government to do this using secondary legislation, so there appears to be no good reason for adopting a different procedure for GBRs under the proposed structure.” UKELA’s position has not changed substantively. There remain concerns around SEPA having the power to make GBRs without reference to parliament, based on the principles of certainty and transparency. Paragraph 3.4.15 says that SEPA and/or Scottish Ministers would consult “those people likely to be affected by [the GBRs]”. As environmental protection is a matter of public interest, any such consultation should be cast more widely, to involve the general public or those representing the public interest, such as environmental NGOs. Consulting only those who are going to be regulated by the rules in question is not likely to produce a balanced set of responses.

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?
UKELA agrees with the concept of authorised persons for permits and registrations, provided there are clear rules on what is to happen when the authorised person ceases to be in a position to exercise responsibility as envisaged. An individual may die or become incapacitated, or s/he may cease to hold an appropriate post in the body undertaking the relevant activity. A company may go into administration, receivership or liquidation. There should be clear provision for substitution (cf. the definition of “responsible person” in regulation 2(1) of CAR 2011) or provision specifying whether and when responsibility comes to an end. While it may be reasonable to identify a responsible person in relation to a registration, it seems excessive to do so in relation to a notification, especially as SEPA will issue no document to the person making the notification telling them they will be an “authorised person” under the legislation (or indeed to any substitute in the event of the death, retirement, incapacity or corporate insolvency of the authorised person).

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:
No. See above.

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

Comments:
In principle it is much clearer and simpler to have one authorised person per authorisation. There could be many more “difficulties in practice” if an authorisation is granted to more than one legal person, and UKELA can see no circumstances in which it would be helpful, except possibly in situations where responsibility for compliance can be assigned jointly and severally, such as a joint venture (between two or more companies) or joint owners of a domestic property with a registered septic tank discharge. SEPA should ensure that there is a clear linkage between its new enforcement guidance and how authorised persons are to be determined.

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

Comments:
Where a company or other corporate body has applied for and is granted an authorisation, the corporate body should be the “authorised person” (as currently under CAR).

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:
Paragraphs 3.5.20 and 3.5.21 say the CAR test is “too narrow and does not take into account wider community and business interests. A wider outcome is therefore necessary; one which will enhance SEPA’s ability to ensure high environmental standards, protect legitimate business from unfair competition and communities from the harm associated with environmental crime”. But compliance with authorisation conditions should “ensure high environmental standards, protect legitimate business from unfair competition and communities from the harm associated with environmental crime”, so the CAR test should be adequate.

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

Comments:
UKELA has concerns about the “good repute” limb of the FPP test, as it is a particularly vague and subjective concept. What additional information does SEPA envisage it will need to establish “good repute”, over and above what the other limbs of the test (in terms of paragraph 3.5.22) will require? There used to be a test of this nature in liquor licensing, which generated much case law: it seems better to try and avoid this sort of uncertainty. If it is to be included, the guidance mentioned at 3.5.23 will need to be detailed, to ensure a reasonable and proportionate approach and to give some indication as to how’s SEPA’s discretion might be exercised and how it applies to different activities.

19. Do you agree with the proposed application processes?

Comments:
Paragraph 3.6.5 seems to suggest that SEPA may stop using information notices during the determination of applications for authorisation to require applicants to provide more or better information about the application, and refuse applications where there are “significant gaps” in the information provided. But where SEPA has the power to require the provision of additional information in connection with an application, it would arguably be unreasonable for SEPA to refuse an application without using that power first. Currently, an information notice should make it completely clear what information is required and by when, and that the clock stops until the information is received, meaning there should be no uncertainty as to timescales, so it is not clear how this proposal reduces uncertainty for applicants. It would clearly, however, reduce the time available to SEPA for assessing the application, thereby putting staff under unnecessary pressure, and potentially lead to many more applications being refused that could otherwise have been determined, merely due to time constraints.

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:
Yes. The legislation should make a clear distinction for applications for “non-standard” activities, and “non-standard” activities should be defined. Otherwise, there is a risk that inconsistency creates an unfair competitive advantage.

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

Comments:
UKELA considers that SEPA should consider the use of “processing agreements” for complex and difficult applications, as in England and Wales, where the applicant contributes towards resources to facilitate a timescale for determination.

23. Do you agree with the proposals for variations?

If not, why not?
No comment

24. Do you agree with the proposals for transfer?

If not, why not?
No comment

25. Do you agree with the proposals for surrender?

If not, why not?
It is important that where a surrender notice specifies steps “to avoid or mitigate any environmental harm resulting from the regulated activity or its cessation” (as stated in paragraph 3.6.24), it clearly states that the surrender is not complete until SEPA has inspected the site and issued a certificate of completion.

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

Comments:
SEPA needs to be clear about its intentions in respect of non-compliance with universal outcomes (see above re Q4) and how it will enforce the outcomes, if at all. Above all, it must be clear to the holder of an authorisation when they are committing an offence.

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:
No comment

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:
No comment

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

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

Please select one item
Ticked Yes
No

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?
Appeals against the new enforcement measures under the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015 are to be heard by the Scottish Land Court. UKELA considers that allocation of appellate jurisdiction to different bodies leads to inconsistency and uncertainty. We support the creation of a dedicated environmental court or tribunal in Scotland to consider all environmental appeals, and in the meantime, call for a review of all environmental appeals to replace the current piecemeal approach.

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

Comments:
No comment

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

Comments:
No comment

Part 4: Key features of the new framework for the public

34. Do you support SEPA having more flexibility in how information is made available to the public?

Comments:
Paragraph 4.2.3 says “the traditional approach of putting documents on a public register (in paper or electronic form) does not always make the information available in an easily understandable form.” Paragraph 4.2.4 says that the new framework “will be clear on what information will be available to the public but will provide flexibility to SEPA in how that information is made available”. There seems to be a suggestion here that SEPA might prefer to make secondary (or interpreted) information about regulated activities available, rather than the primary sources. It is critical that public register requirements are not diluted, and that the primary data and other primary sources of information remain available to the public.

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

Comments:
Paragraph 4.3.2 proposes that the framework will require SEPA to consult “such persons as it considers appropriate” about GBRs, standard rules and certain applications for authorisation. This leaves too much discretion to SEPA. As environmental protection is a matter of public interest, public participation must involve the general public and those representing the public interest, such as environmental NGOs, in accordance with the Aarhus Convention. A requirement to consult the public (by advertising on the SEPA website, in the Edinburgh Gazette and, in the case of applications for authorisation, in the relevant locality) should therefore be prescribed in relation to all the matters listed.

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

Comments:
It is appropriate that the third party call-in arrangements of CAR not be extended to other regimes. Other regimes do not have the same wider uses/third party users that the water environment does and there are sufficient means for third parties to participate or object in relation to other authorised activities. Also, given the requirement under the IED to consult the public on draft permits (stemming from the Public Participation Directive), this would cause unnecessary duplication or confusion for as long as those EU Directives remain applicable.

Part 5: Pollution Prevention and Control

37. Do you consider that the provisions of the universal outcomes contain equivalent protection as BAT in relation to domestic activities?

If not, why not?
It is unclear how what is being proposed in paragraph 5.3.8 is less confusing than what is described in paragraph 5.3.7. UKELA notes that BAT conclusions have only been published for 8 out of 33 IED Annex 1 activities. It is unclear what happens for those Annex 1 activities where there is no BAT. BAT as currently set out in Bref Notes is very detailed, while the universal outcomes, as discussed above, are extremely broad. There is therefore a huge gap between the expression of the universal outcomes and how they will be delivered in practice, and SEPA needs to set out in more detail how it will agree the technical standards that will have to be written into permits with operators and other interested parties. Suggesting that industry can take on the role of producing guidance risks making it too limited.

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?
Leaving this to guidance risks creating uncertainty. As regards the proposal in paragraph 5.3.17, it is important that the provision in regulation 55 of the PPC Regulations, that an enforcement notice can be served where the operator “is likely to contravene” any permit condition, is carried forward into the integrated authorisation framework.

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

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?
No comment

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?

Please select one item
Ticked Yes
No

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?
No comment

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

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

Please select one item
Ticked Yes
No

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

Please select one item
Ticked Yes
No

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?
No comment

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