Response 554764959

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About You

What is your name?

Name
Simon Rutledge

Are you responding as an individual or an organisation?

Please select one item
(Required)
Individual
Ticked Organisation

What is your organisation?

Organisation
Biffa Waste Service 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?§
Many of the paragraphs are repetitive making the same points again with perhaps slightly differing emphasis making the document longer than it needs to be. It should be noted in 2.3.8 indents 1 and 2 that there is a cost associated with reviewing the consultations and with tracking the progress of the process and ultimately with familiarisation with any new system of authorisations. There are many people within the industry and within organisations who are fully conversant with existing systems and thus there is a cost associated with this change in re- training, changing materials and dissemination of details of the new system. When the new regulations are available for consultation we can fully assess the future cost savings of any real simplification. 2.3.8 indent 6 we would make the point that unless illegal operators are regulated properly then any benefit from going beyond compliance will be eroded. Indent 7 is therefore key to realising benefits in indent 6. Additional detail could however been provided at para 2.3.10 where the number of sites currently operated under more than one regime should be available and therefore some quantification of the numbers which would benefit from the proposed simplification should be presented along with some estimated costings.

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

How could SEPA better support the uptake of new technologies?
We have usually found SEPA helpful in supporting innovative trials where backed up by sound risk assessment and environmental justification under the existing authorisations regime.

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

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

Comments:
Preventing harm and preventing incidents and accidents are correct outcomes. The sustainable use of resources in general is always a desirable outcome and most responsible business will want to minimise the inappropriate or wasteful use of resources. In the resource and waste management industry we are often dealing with legacy issues which may require the use of additional resources as a one off to deal with those legacy problems. The consideration of the sustainable use of resources has to account for this and allow for life cycle thinking and health and safety considerations. There will be cases where deviation from this overall outcome will be necessary.

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:
We have had experience of working with trade and professional bodies and a number of regulators to develop industry-led guidance and this has worked well where the regulators have bought into the process and endorsed / sign off on such guidance. We have also had very disappointing examples where time and effort has been expended on the production of guidance just for regulators to completely ignore it. The former we could continue to support but the later is a waste of time and resources.

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

Comments:
The wording of description 1 is slightly confusing. We believe it should be: ‘Operating an Annex 1 IED installation’ or ‘Operating an installation listed in Annex 1 of IED’ The rest appear to be self-explanatory.

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

Comments:
The final factor listed in paragraph 3.3.14 will be very hard to determine. Any regulatory requirement is vulnerable to misuse, what is key is the financial benefit an illegal operator might realise by their illegal activity offset by the deterrent value provided by a high likelihood of the illegal activity being detected alongside a financial penalty that removes all financial benefit as well as punishes the illegal behaviour.

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?
It would be our preference that the tier of authorisation for particular activities is set in regulation rather than left to guidance. Such clarity is better for giving business certainty upon which it might determine its investment strategy. If it is to be left to guidance then it is clearly essential that SEPA consult fully on the initial guidance and any subsequent amendments.

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

Comments:
Paragraph 3.4.5 talks about the use of bespoke conditions alongside standard rules. The benefits highlighted all appear to be for the regulator. Indent 2 of paragraph 3.4.6. highlights the potential benefit to the applicant of knowing the clear rules on the regulatory requirements at the time of application rather than upon grant of the permit. This is a marginal benefit if any at all as most experienced operators will have a very good idea of the requirements. The point also talks about this enabling the production of a good application but does not explain how this is achieved. By implication, without this knowledge, all applications are poor. We would have thought that the quality of application is in greater part due to the availability of clear guidance and easily understood forms and procedures as well as the attitude, experience and expertise of the applicant rather than the clear advanced knowledge of the end conditions which might as stated in paragraph 3.4.6 be bespoke conditions.

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

If not, why not?
We agree that SEPA should consult on any draft standard rules and publish them but there is no other procedure detailed. Paragraph 3.4.8. has no indication of the frequency of review of standard rules nor the timescale for formulating these potential new standard rules. It should be clear that where standard rules are not available for the circumstances of a particular application or authorisation then the use of bespoke conditions should be considered. Were authorisations have already been issued with standard rules that are then later amended or updated. It is essential to business that the existing rules as written into the authorisation at time of issue will remain in force. If it intended that the updating of the standard rules will automatically update the wording of all of the individual authorisation already issued then a system of notification to all affected operators needs to be put in place.

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

Comments:
We could agree that SEPA would have the ability to write general binding rules as long as the process is subject to some form of consultation and the Minister has the final sign off.

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?
Whilst we agree that there should be an authorised person as long as that can be a company as described in paragraph 3.5.5. This could also be Governmental bodies such as SEPA and local authorities as well. Paragraph 3.4.9. re-states the idea of strict liability for environmental authorisation holders which is well established for waste management license holders but might be new for those who previously held exemptions. It needs to be made clear that it does not apply to general binding rules. The ability of SEPA to revoke a permit where they identify that an authorised person is no longer in control of an activity needs to be subjected to a rigorous process of notification prior to the re-vocation. Paragraph 3.5.12 5th indent talks about responsibility for site clean-up which we support as long as there is consideration given to the pre-existing state of the site prior to the authorisation coming into force. We do not want this requirement to hinder the development of infrastructure or facilities on brownfield or historically contaminated sites.

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:
As long as the authorised person can be a company we agree that it should be the authorised person who should be responsible for notifying or applying to SEPA for transfer or surrender of a permit or registration. There probably needs to be some clarity about what happens in the case of insolvency in order to prevent the issue or orphaned sites.

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

Comments:
Yes or more than one company

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

Comments:
The tests set out in paragraph 3.5.6 appear reasonable: • Has day-to-day control of the regulated activity, including the manner of operation; • Can make sure that the authorisation is complied with; • Can make investment and financial decisions that affect how the regulated activity is carried out; and • Can make sure activities are controlled in an emergency situation. All of the above listed points could be under the control of a board of a company in the same way that an authorised person can be a company or body corporate.

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:
As an approach we agree that there needs to be a number of test or criteria for fit and proper person. There is no mention of the issue of insolvency and how the test will deal with companies entering insolvency and what happens to the authorisations. Consideration needs to be given to this in order to prevent orphan authorisations and cost to the public purse.

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

Comments:
The criteria in paragraph 3.5.22 indent 2 is very vague, there is no clear indication as to what is meant to be good repute and how this is to be measured. The totality of the other criteria give an indication of repute but it is too vague a concept to be a determining factor on its own. Full consultation on the detail of the FPP test is essential.

19. Do you agree with the proposed application processes?

Comments:
We disagree with many aspects of the proposed application process. We agree that SEPA might want to use an initial check list to ensure the application is complete and of sufficient quality before commencing the processing of the application and the timescale. The idea that the ‘clock will not stop’ is troubling in that some complex authorisations, new or novel processes may need a number of additional information requests. Information requests may be at the behest of the consultees and they are not bound by timescales for responses. Whilst we are not suggesting we have had this experience with SEPA there have been occasions where regulators determining similar types of authorisations appear to issue endless information requests in order to avoid determining contentious applications, and on occasion we get the impression that apparently vexatious information requests have been issued in order to allow the regulator to meet internal targets. This linked to the idea that the application is deemed withdrawn if the information request is not complied with within the timescale specified is very troubling. We can foresee that towards the end of a complex application an information request is made and timescale set too tightly which leads to an application deemed withdrawn and there is usually no right to appeal. If such a process is to be adopted then there will need to be proper appeal at all stages of the process with the potential for cost awards for vexatious or improper use of the system. Reliance on Judicial review is too costly.

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
Yes
Ticked No
If not, what do you think the determination period should be?
No. The idea that all authorisations would have a determination period of 4 months is not justified. Currently waste management licences applications have a determination period of 2 months and so doubling the period is certainly not supported. If SEPA are to set internal targets for different types of authorisations then there should be different determination periods set in regulation to reflect the complexity of the differing types of authorisations. What will happen is very unclear as on the one hand section 3.6.5 states that it will be possible to agree to extend the determination period, but the same section gives some doubt where information request notices are served. Some clarity is needed and it may be necessary to have provision to extend the determination period where notices are served and/or to extend the date for responding to such notices

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

Comments:
It is difficult to provide feedback without seeing examples of what applications will be deemed non-standard. Whilst in principle we can see that there will be examples of particularly problematic applications which could be deemed non-standard, there would need to be full consultation on the criteria and cut off points for non-standard activities.

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

Comments:
We have no comment to make on this question

23. Do you agree with the proposals for variations?

If not, why not?
Variations to standard rules as set out in paragraph 3.6.15 need to be subject to consultation prior to adoption and implementation. We refer you back to the 2nd paragraph of the answer to Q11 above in that there may need to be a system of notification of all authorisation holders if amended standard rules are to be applied retrospectively.

24. Do you agree with the proposals for transfer?

If not, why not?
This consultation gives no indication of the scale off fees and charges for variations which would have a great impact upon the acceptability of the proposals. There is no mention of appeal processes should a SEPA initiated variation prove unacceptable to the authorisation holder.

25. Do you agree with the proposals for surrender?

If not, why not?
There is no consideration of historical contamination or pre-activity contamination set out in the section for authorisation surrender. This would deter development of waste management facilities on brownfield sites. There needs to be a clear timescale for the determination of the surrender of an authorisation. Consideration should be given to the issue of landfill sites which have ceased to accept waste and are closed but where the authorisations have not been surrenders. There needs to be a proportionate approach to the regulatory regime during the aftercare period prior to authorisation surrender which ensures a high level of environmental protection but is proportionate to the risks posed. The idea that SEPA could require an operator to surrender an authorisation as set out in para 3.6.20 is alarming for a compliant business who may have a longer term plan for a site. If an activity has ceased because the operator has mothballed a site, which could be on a temporary basis, the operator would not want SEPA to decide the activity has ceased and to require the holder to surrender the authorisation. The authorisation may have value to the holder, in terms of potential future re-commencement or a sale of that business to a potential new operator who may want to take on the authorisation subject to the relevant transfer requirements.

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

Comments:
The ability to issue an enforcement note in any situation is a very great increase in powers for SEPA especially when linked to the criteria set out in paragraph 3.7.3 that a person ‘might cause harm to the environment or human health’. This threshold is far too low given the broad and extensive nature of the power. For such an extensive power to be granted there must be a real likelihood that serious harm to the environment of human health will take place. Leaving a light on might cause environmental harm (such wastefulness almost certainly does) but it would not be proportionate for SEPA to issue enforcement notices to all Scottish businesses requiring them to install PIR controlled LED lighting. The power to issue an enforcement notice should be limited to instances where an authorised party is non-compliant with an authorisation or where an activity which for which an authorisation is required is taking place and an authorisation hasn’t been applied for or obtained. There should also be a very clear delineation of powers with the HSE Scotland having the lead role and expertise for Health and Safety issues and prevention of harm to human health. SEPA clearly have the expertise to deal with environmental regulations. It is not clear that this delineation is to be maintained by the wording in paragraph 3.7.3. To justify such an extension of powers it would have been useful for the consultation document to highlight some of examples of the types of issues which have arisen for which existing legal remedies were insufficient to control.

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:
It is not clear that the use of enforcement notices described in paragraphs 3.7.10 to 3.7.12 is materially different the uses described previously which include issue on businesses which do not actually operate an activity which could be authorised. It is all a bit confused from the descriptions provided.

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:
A better approach would surely be to amend permit conditions if they do not require the authorised person to operate in such a way so as to protect the environment rather than issuing enforcement notices or temporary improvement notices. I see the main drawback as being the lack of clarity for the authorised person operating the activity as to what they can expect from the regulator and what compliance actually is.

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
Suspension notices should be retained for use where there is a serious and imminent risk of environmental harm. For easily foreseeable circumstances there should be a considerations when the authorisations are being drawn up, of the sorts of conditions that will be required to protect the environment in normal conditions as well in the unseasonable conditions so trigger levels are built into authorisations. In this way there should be no need to suspend a permit as it will contain a condition restricting water extractions during periods of drought.

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

Comments:
Again there should be some consideration of insolvency and the link to revocation. We agree with the suggestion in 3.7.15. We agree with 3.1.16 and welcome the consideration of sustainable economic growth. We consider that there should be guidance to the regulator on the use of these powers which is consulted upon.

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 particular preference as to the independent body which will hear appeals. The timescales for appeals should be made clear.

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

Comments:
We have no comments to make at this point in time but may wish to comment on the proposed timescales for transitions when that is available.

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

Comments:
Clearly it is not just SEPA who will have to manage their workloads and time must be given for regulated industry to implement the new system of authorisations. We envisage that there should be a phased timetable of review of existing authorisations with tranches transitioning to the new scheme over time.

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 have no comment to make at this point in time

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

Comments:
We agree that the system should be proportionate but cannot provide further comment until the guidance is available for consultation

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

Comments:
This appears to be a sensible approach however there appears to be an inconsistency in the proposed timescales. Para 4.4.3 seems to give third parties 21 days to ask for an application to be called in and para 4.4.4 appears to give 28