Response 488644395

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Tarmac

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?§
Whilst we agree with the benefits, we believe there is an opportunity to be more proportionate. Since implementing the Integrated Authorisation Framework (IAF) requires the Scottish Government to transpose several European Directives into Scottish legislation, there is an opportunity to remove additional regulation which is not required under European Directives, which is applied to all permitted installations in Scotland, and so is at odds with the risk-based approach proposed under the IAF. For example, the current Pollution Prevention and Control (Scotland) Regulations 2012 (PPC) regulation 29(2) extends the meaning of the 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 can remove this additional requirement, and if necessary and in line with a proportionate and risk based approach, use in 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. We fully support the principle that the level of authorisation should be appropriate to the level of risk of an activity.

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

How could SEPA better support the uptake of new technologies?
As a Company who operate in all the United Kingdom, we would like to see better sharing of regulatory practice relating to the use of new technologies between the regulators in Scotland, England and Wales.

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

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

Please select one item
Ticked Yes
No
Comments:
4. Do you agree that the framework should include a set of universal outcomes? Whilst it is helpful to have stated outcomes, we don't think it is absolutely necessary to include them within the framework. If they are included then there needs to be transparency on how these outcomes relate to regulatory decisions. For example, Figure 2 of the consultation document says: ‘Use best practice to: Use resources sustainably – Activities are carried out in a manner that promotes sustainable resource use, including using water, other raw materials and energy efficiently, and preventing and managing waste in accordance with the waste hierarchy.’ The current waste hierarchy places recovery of materials in cement kilns on the same footing as energy from waste recovery. This fails to recognise the added benefit of cement manufacturing – co-processing, where all mineral and metal content from waste derived fuels is recycled into the final high quality product, that is, the process does not produce any ‘ash’. Thus, it will be important for the cement sector in Scotland that the IAF focusses on these universal outcomes when making decisions related to the implementation of Chapter IV IED (incineration and co-incineration) and transposed Scottish Regulations – such as removing the unnecessary measurement dioxin-like polychlorinated biphenyls and polycyclic aromatic hydrocarbons imposed in (PPC) regulation 29(2). 5. If so, are the outcomes proposed the right ones? Yes The proposed outcomes are somewhat limited, other outcomes could include such things as supporting a sustainable economy. Preventing harm only refers to the environment, not human health. ‘Prevent incidents and accidents’ sounds more Health and Safety related, it may be helpful to insert the word ‘environmental’ into the explanation to make clear the distinction. A reference to the circular economy may also be useful.

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:
In principle we support industry-led guidance, but only with SEPA's engagement in it's production. Without this the risk is that the guidance is not recognised or supported by SEPA's officers. Where to 'host' and access such guidance is also a challenge if it is not on SEPA's website. Guidance should not only ensure that regulation is transparent and promotes best practice, but also ensure that there is 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
Yes
Ticked No
Comments:
We do not consider that ‘vulnerability to misuse’ should be a factor in determining which authorisation type is suitable for an activity. This could potentially penalise businesses that undertake that activity in an entirely lawful way. Waste crime should be addressed through enforcement of the legislation, not by raising the tier of authorisation for all those undertaking that activity if it is inherently a low risk activity. When considering the factor “Consistency of the activity across a sector and the need for bespoke conditions”, the IAF must recognise that a ‘sector’ may extend beyond Scotland. There is broad consistency of the activity across the sector, although some specifics (e.g. type of emissions abatement equipment) will vary. Equally, companies may operate across regions and countries and have adopted internally consistent systems that need to be recognised when considering the ‘consistency of the activity’. The SEPA approach to environmental management systems can lead to inconsistency and drive unnecessary ‘bespoke’ conditions. That is, SEPA does not recognise business-wide ISO 14001 systems within permits, and this creates duplication and wasted effort in negotiations when clauses are inserted for new ‘management plans’ (for example, noise, water) that are controlled by accredited environmental management systems which may be, and often are, UK-based systems.

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?
Whilst we can appreciate that there are some advantages in not specifying which tier an activity will fall under in the legislation, such as being able to respond more quickly to changes in technology, we do have some concerns about this approach. Certainty is important for business decision making, and if guidance is changed without consultation, and without appropriate transitional timescales, this might cause an issue for business if an activity moves from one tier to another. We therefore fully agree that SEPA should consult on the guidance setting out the tier of authorisations, and give a full explanation of the process of how changes to that guidance would be undertaken in the future. It is noted that under 6.4.19 there are 13 proposed categories of waste activity. Landfill and restoration being two of the categories. 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 suggests that there is a lack of understanding by SEPA/Scottish Government of the differences in scale and of environmental risks posed by these two sectors. Whilst silent on this issue, it is assumed that quarry restoration requiring the importation of inert waste to fulfil 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. 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 the industry being subject to Landfill Tax in addition to the Aggregates Levy, which it is already subject to. 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.

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

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

Comments:
No comments

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:
We agree that the level of assessment undertaken should be reasonable and proportionate to the activity in question. However we again would argue that this should be focussed on the environmental risk and scale of the activity, rather than its vulnerability for misuse. Otherwise you could disproportionately impacting and penalising businesses that are willing to undertake an activity in an entirely compliant manner.

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
Comments:
More detail is required on what constitutes technically competent and how SEPA would assess whether adequate financial provision has been made, for example would SEPA require a bond to be in place? We do note that further guidance on this will be consulted upon this year.

19. Do you agree with the proposed application processes?

Please select one item
Ticked Yes
No
Comments:
We would like some clarity as to when the determination period starts, is this effectively the date SEPA receive the application? We note that SEPA may refuse an application after a determination period has started, but would do so within 6 weeks. Some clarity on the level of information in the application that would constitute a return/refusal at this point rather than the regulator choosing to issue a notice to request further information. Experience with other regulators has also led to inconsistencies in approach from different permitting officers, whereas in some circumstances applications have been returned, and in others an opportunity (either informally or by formal notice) has been given to provide the information. We would ask that SEPA provide robust guidelines and training to to their permitting staff in order to ensure a consistency of approach. Regarding the assessment of commercial confidentiality, we would appreciate timescales put on this so that it can be built into applicant's plans, rather than the clock stopping and there being no indication of how long the assessment might take.

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?
If not, what do you think the determination period should be? Some thought should be given as to whether a shorter determination period could be possible for permit variations and transfers?

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

Please select one item
Ticked Yes
No
Comments:
The criteria described in the consultation around non-standard applications is wide-ranging, particularly what is meant by controversial applications. This could cover a wide range of relatively low-risk activities that are subject to community objections. It is preferable for all applications to have a determination period agreed in writing with SEPA where the determination period is not 4 months, irrespective of the activity under consideration. 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. We note that guidance will be forthcoming on the determination of non-standard applications and would welcome this.

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

Comments:
These types of applications should be dealt with by specialist permitting officers who have the right range of skills to manage the different demands of these applications.

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?

Please select one item
Ticked Yes
No

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

Please select one item
Yes
Ticked No
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, action might be taken which could 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

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). The aggregates sector operates on a supply and demand basis and in certain circumstances 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.

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 operator's’ requirement to comply with its planning permission.

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

Comments:
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 seem to make sense to delay implementing the Integrated Authorisation Framework until the supporting standard rules and guidance is established, and for the regulations to set the timetable for implementation. SEPA should also ensure that they invest in their staff to ensure that they have the right skills and experience to implement the new framework, ensuring that decisions are taken in a timely and consistent manner.

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?

Please select one item
Ticked Yes
No

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
Ticked Yes
No