Response 493988673

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About You

What is your name?

Name
Jason Drummond

Are you responding as an individual or an organisation?

Please select one item
(Required)
Individual
Ticked Organisation

What is your organisation?

Organisation
Green Highland Renewables Ltd

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?§
We are concerned with the proposed fee structure and the significant impact it will have on small scale hydro schemes. Consideration needs to be given to the nature of small scale hydro which aims to optimise the available flow and head without the construction of large impoundments. This often results in schemes having more than one intake which does not necessarily reflect the total installed capacity (for example one 92kW scheme has 3 intakes, whilst one 2MW scheme has 1 intake). The potential cost, even assuming 100% compliance, would not reflect the amount of work required on that scheme to check compliance. It seems unfair to take a blanket approach rather than looking at the characteristics of each specific scheme. Additionally, subsistence fees that do not take into consideration the installed capacity of the scheme have the potential to undermine the commercial viability of an operational installation with potentially severe consequences for the operator. The proposed approach contradicts with SEPAs own vision of establishing a “consistent and proportionate” approach to regulation. A better approach, one which would see the benefits outlined in point 1 realised, would be to review the application fees to allow for a greater site presence to address the highest risk phase of small scale Hydro.

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

How could SEPA better support the uptake of new technologies?
Not relevant to the sector.

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
Comments:
Yes, however the prevention of incidents and accidents should be augmented with the commitment to work in partnership with the industry. This would better emphasise SEPA’s commitment to preempting environmental incidents.

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:
GHR believes a useful approach would be to hold workshops and invite the most active principal contractors in the sector to contribute to the development of industry guidance. Too much of the current guidance is neither in the context or the tone of a construction site and as a result can be misinterpreted. Engaging with the right contractors to form this guidance would provide the right baseline.

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

Please select one item
Ticked Yes
No
Comments:

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

Please select one item
Ticked Yes
No
Comments:
Yes, but the implementation of the guidance needs to be consistent across SEPA. It is appreciated that much of this will be on the advice of statutory consultees, however ultimately the imposition of conditions within the CAR licence is at SEPA’s discretion and is the approach to bespoke conditions that needs to be consistent.

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. The developers, operators and contractors can help to identify where the main risk lies within the various phases of Hydro and therefore with the structure of the tiers.

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

Comments:
Provided the standard rules are implemented consistently then yes. There does need to be a degree of flexibility in them but not to the extent where the response from SEPA varies to the point where the developer cannot reasonably predict the likely outcome.

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

Please select one item
Ticked Yes
No
If not, why not?
Yes. This process needs to be streamlined, perhaps through the creation of task groups inclusive of SEPA and industry members.

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

Please select one item
Ticked Yes
No
Comments:
Yes. The regulatory landscape must have the ability to react to unforeseen or changing circumstances. It is also an opportunity to convey best practice.

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?
GHR believes that there should be a responsible person who meets the criteria set out in the FPP tests. How this is managed during operation requires careful thought. For example, the definitions of a person are in control includes whether the person “can make sure activities are controlled in an emergency situation”. GHR provides and Operation and Maintenance service whereby the scheme is managed to varying degrees by GHR on behalf of the responsible person. Should an emergency situation arise it is likely that GHR would manage the situation, not the responsible person. This conflicts with the definition as set out above and is likely one which will occur across the majority of schemes in Scotland. GHR believes that these definitions blur the line between responsible person and O&M provider.

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:
The person in control should be able to delegate during construction and operation to a named 3rd party. This would make the site more dynamic with regards to SEPA authorisations and minimise the potential for non-compliance/unauthorised activities.

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

Please select one item
Yes
Ticked No
Comments:
No. Naming more than one person is likely to lead to confusion over whether the person is in control according to the definitions stated in the consultation, and it creates administrative issues should the licence be varied or transferred at any point.

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

Comments:
They should either be able to demonstrate that they have met the criteria or have taken steps to address any shortcomings.

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:
In theory, it should deliver the right approach however in practice it seems like this will be hard to implement, with the following relevant: • How far is the net cast when looking at other relevant persons, and does the extent of FPP test change depending on proximity to the project or company? • How will this be applied retrospectively? • Will SEPA look at the existing authorised person and insist on a change if they don’t meet the proposed tests? In that instance would consistent compliance since the authorisation was issued be sufficient evidence to prove competency? • Additionally, if the same person is named on multiple authorisations suffers a series on noncompliance scores (not major non-compliance) would this impact their FPP test outcome?

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

Comments:
The same issues with the definitions of the person in control apply here. There is a significant and important difference between the scheme operator and the O&M provider which needs to be considered when either confirming the criteria or performing the tests. Should the person not pass the FPP test they must be given the opportunity to demonstrate that they have taken steps to address the shortcomings if possible.

19. Do you agree with the proposed application processes?

Please select one item
Ticked Yes
No
Comments:
Generally, yes with the following considerations: • The criteria for accepting a valid application is made available to the public. • Confirmation of the maximum delay between the submission of an application and the registration of the application (i.e. point of submission to the beginning of the consultation phase), allowing for the provision of additional information should the application not meet the required standard. • Registrations should be deemed acceptance at the end of the determination period. • There should always be either an extension agreed in writing or approval within 4 months – no deemed refusal.

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?
Yes, and generally SEPA have issued the authorisations either on time or agreed extensions where there are complex issues. It was suggested that SEPA may offer an accelerated determination whereby the applicant can pay a higher fee for a quicker turnaround time. GHR believes this to be a bad idea due to the following: • It will likely see majority of applicants pay the higher fee. • SEPA will become overwhelmed, creating a bottleneck of accelerated applications resulting in deadlines being missed. Instead, perhaps SEPA could establish a set of criteria which would enable an accelerated application to be made which would then warrant a higher fee.

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

Comments:
Not necessarily. A screening process which included engaging with the permitting team would: • Enable the activity to be accurately defined to avoid confusion. • give the applicant the ability to understand how to adapt the activity to help it fit within a specific tier.

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

Comments:
As above, the ability to screen the project with SEPA. If this is considered then SEPA need to be willing to engage with the applicant to ensure the key characteristics of the activity and the criteria of the application process are understood by both parties.

23. Do you agree with the proposals for variations?

If not, why not?
Clarity over the charging with regards to a change in the definition of the various authorisations/tiers is required before comment can be made.

24. Do you agree with the proposals for transfer?

Please select one item
Ticked Yes
No
If not, why not?
Yes, but strict controls need to be put in place to prevent fraudulent applications by the new applicant when the existing authorised person cannot be located or contacted.

25. Do you agree with the proposals for surrender?

If not, why not?
For permits yes. The inclusion of registrations though will be difficult to achieve. The bulk of the registrations on GHR sites are temporary and only relevant for the duration of the construction phase. If SEPA require a significant amount of detail on the removal of the registered activities then this undermines the objective of simplifying the approach.

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

Comments:
Generally, yes, however the description allows for far too much interpretation with the current approach to construction. If SEPA are to potentially issue enforcement notices then it is vital that SEPA are integrated into the site and possess sufficient technical expertise and construction experience to appreciate what represents a real risk and requires pre-emptive action.

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
Yes
Ticked No
Comments:
No, calling it an improvement notice can trivialise the issue.

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 response

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
Any suspension notices for a run-of-river Hydro scheme would result in lost generation, lost revenue and will therefore impact the ability of the scheme to meet the financial requirements. There needs to be a way for the operator to recover any loss of revenue as a result of this type of action by SEPA.

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

Please select one item
Ticked Yes
No
Comments:
Yes, but in reality this will be difficult to achieve.

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?
GHR has not had any experience of the appeals process, all applications have been processed by SEPA. GHR are therefore not in a position to comment on the effectiveness of the appeals process and its continued suitability.

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

Comments:
See Q23.

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

Comments:
Place some of the burden onto the responsible person. Publishing guidelines of authorisation tiers would allow the RP to do the bulk of the work, freeing SEPA to process the authorisations.

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:
Provided the Data Protection Act is adhered to then yes.

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

Comments:
Within reason. The vast majority of comments made on applications are logical but they can be based on misconceptions, all of which need to be addressed. If SEPA are looking to increase the public exposure, which GHR broadly supports, then SEPA must be willing to act as a buffer between the comments and the applicant/application. The intention of this is to filter out the comments which are valid and applicable to the specific application and those which add no value to the consultation phase.

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
Comments:
Yes, however the current scenario does not put a timeframe on the determination by the Scottish Ministers. This should be amended to provide some sort of tangible consultation phase.