Response 825300345

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What is your name?

Name
British Metals Recycling Association (BMRA)

Are you responding as an individual or an organisation?

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What is your organisation?

Organisation
British Metals Recycling Association (BMRA)

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?§
A simpler authorisations system could make the process more cost efficient and easier to comply with for regulated businesses. To do this, it must ensure that disreputable and illegal operators are unable to obtain authorisations in order to ensure a level-playing field is created for the legitimate industry. Additionally, greater clarity is required about what a ‘corporate’ authorisation may entail. Where an operator has multiple sites, a greater risk will potentially be carried by the single corporate entity. This may act as a barrier to growth where expansion is considered to be high risk. Although BMRA supports the notion of a voluntary corporate authorisation this should not become mandatory for multi-site businesses. Furthermore, proposals to support businesses going ‘beyond compliance’ requires further explanation. Although going ‘beyond compliance’ is described as a voluntary endeavour, SEPA should ensure that ‘compliant’ operators are not penalised for taking a commercial decision not to move ‘beyond compliance’ whilst being ‘compliant’ with the authorisation. If businesses move ‘beyond compliance’ it may be appropriate to consider rewards for these endeavours such as ‘lighter touch’ inspections or self-regulation.

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

How could SEPA better support the uptake of new technologies?
To support the uptake of new technologies, regulation should not be so onerous as to make it uneconomic. With particular reference to authorisations, clear and simple outcome focused regulation may foster innovation and adoption of new technology. In short, the regulatory risk should not be so burdensome as to make the uptake of technology unviable.

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?

Comments:
On initial inspection, we cannot see any disadvantage to the proposed universal outcomes provided they are supported by further detail. Operators may wish to know how to go about achieving the proposed outcomes and this could be burdensome on business if not properly supported by guidance and specific authorisation conditions.

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:
Yes, but the scope of any industry guidance must be agreed with the competent authority prior to the change of regime. Furthermore, as above, industry guidance must be supported if not endorsed by the competent authority prior to the change of regime. Industry-led guidance provides an opportunity to consult our members and offer them practical ‘best practice’ advice on how to achieve the desired outcomes. If properly supported, this could assist us to raise industry standards whilst helping to create a level playing in the sector.

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

Comments:
3.3.4 Specifies there is no intention to change the types of activity requiring authorisation therefore the relevant description in Annexe 2 is appropriate. Further detail on the definition of “waste management” is given in Part 6 of the consultation which specifies the authorised activity as: “…the collection, transport, recovery and disposal of waste, and actions taken as a dealer or broker of waste”. BMRA supports this definition as it incorporates the activities undertaken by our members.

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

Comments:
Whilst recognising the proposed ‘tiers of authorisation’ are subject to binding EU law, assurance is needed where proposals for ‘light-touch’ regulation are suggested. Paragraph 6.2.9 of the consultation document suggests the General Binding Rules (GBR) do not apply to professional waste management as GBR operations fall outside of the definition given in the Waste Framework Directive’ and so these do not apply to our members. However, care must be taken when defining genuinely ‘low risk’ activities. It is imperative the GBR rules are not open to abuse by illegal operators in the waste sector. There may be a genuine need for GBR in order that SEPA can allocate its resources appropriately and so BMRA would support a properly structured system of GBR. The same principle must apply to the use of notifications and registrations where it is more likely waste operations could fall into these tiers of authorisation. The factors considered at 3.3.14 are the appropriate factors to take into consideration. However, the scope of ‘public interest’ must be defined as this may offer certain community groups an opportunity to lobby for an otherwise inappropriate tier of authorisation based on a perceived ‘public interest’ or ‘risk’. BMRA proposes such consultations are suitably narrow so as not to unduly burden business and create barriers to innovation.

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?
We believe further consultation on the likely tiers of authorisation is essential to the success of any proposed changes.

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

Comments:
The clarity associated with including standard rules in some authorisations would enhance the opportunities for regulated businesses who will understand the conditions prior to the application stage. However, it is essential these rules are consulted on prior to implementation so they are appropriate for the metals recycling sector.

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

If not, why not?
Standard rules may increase the efficiency of permit application decisions and foster innovation in the waste sector. 3.4.7 Suggests there may be a downside due to activities not fitting the standard rules. However, this would only apply in a small number of cases and it is very unlikely to apply to BMRA 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, but in full consultation with the industry and drawing on the expertise of the competent authority.

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?
Regulated activities would benefit from having a named authorised person for overall compliance. This will enable SEPA to better enforce lower level authorisations where it may be difficult to identify the individual responsible for compliance. Within the current waste regime it is often difficult to identify the person actually ‘in control’ of the waste operation. Clearer identification of the person ‘in control’ could prevent those who may have previously engaged in criminal activity from operating as ‘shadow Directors’ in another business.

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:
Although a greater burden may be placed on operators if they must notify of a transfer under the notification tier, this could stop illegal activity and those who are persistent poor performers from operating in the sector. Members of the BMRA would welcome this mechanism as a way of ensuring legitimate metal dealers are operating on a level playing field and therefore submit, this requirement is proportionate to the risk if enforced effectively.

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

Comments:
This could be appropriate if one person is a corporate entity and may also include the names of Directors of a business. This may provide a solution where a company changes its name or Directors wish to share responsibility jointly and severally for environmental compliance.

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

Comments:
A person who is in ‘control’ is the person who has responsibility for the day-to day running of a business or a site and may include the competent person to whom the role of environmental compliance is delegated. However, a flexible position should be adopted in order that the person who is actually in ‘control’ can be identified. For example, it may be appropriate to identify the named Directors of a company.

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:
Although BMRA members welcome a robust Fit and Proper Person test (FPP), it is essential the requirements of what is ‘fit and proper’ are clearly laid out and proportionate to the activity. Additionally, the competent authority must ensure it is not acting beyond its powers when carrying out the test by ensuring that any evidence used is relevant to the proposed activity. 3.5.22 suggests including ‘…other relevant person (s)’ as one of a suite of criteria that might be used. This currently offers a huge amount of scope for SEPA to revoke or suspend an authorisation based on the presence of an individual that may have a marginal role in the authorised activity. Similarly, there is a suggestion that the FPP should be ‘technically competent’. This should be defined and relevant to the role that is actually carried out in a business. For example, a Director may delegate environmental compliance to another individual who is technically competent to deal with permit compliance. SEPA’s intention to consult on guidance that deals specifically with this issue is welcome as it will offer the industry a chance to contribute to requirements of the FPP test.

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

Comments:
At this stage it is too early to comment.

19. Do you agree with the proposed application processes?

Comments:
BMRA members would wholly support a simpler and more transparent application process for authorisations. Particularly a statutory requirement for applications to be determined within 28 days for the registration tier and four months for the permit tier is welcome. However, paragraph 3.6.5 suggests that if an application has not been determined that it should be treated as refused. A potentially unfair consequence could arise if an applicant has submitted his application with all the required information and SEPA is unable to make a determination on time. An applicant may then have to resubmit an application or appeal the decision through a formal process. More appropriate would be for the application to have been deemed as granted in the event that SEPA do not make a decision within the timeframe.

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, a statutory determination period would encourage all parties to work collaboratively to reach a decision in a timely fashion. Therefore, applicants would have a degree of certainty for the purpose of financial and business planning.

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

Comments:
BMRA has no particular comments on this question other than to say that it may be appropriate to have a derogation for the determination of non-standard applications if written into statute.

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

Comments:
Non-standard applications should be judged on a case-by-case basis. SEPA and operators should maintain a dialogue in order to reach a conclusion deemed fair to both parties. Additionally, where a process is novel, suitable expertise should be provided by the regulator to make an appropriate determination.

23. Do you agree with the proposals for variations?

Please select one item
Ticked Yes
No
If not, why not?
Yes, BMRA supports these proposals providing operators are notified well in advance of any changes to the standard rules where applicable. Information of this type could additionally be disseminated through trade organisations such as the BMRA.

24. Do you agree with the proposals for transfer?

Please select one item
Ticked Yes
No
If not, why not?
Yes, BMRA supports the proposals for transfer. It is particularly useful that a change can be applied unilaterally by the transferee.

25. Do you agree with the proposals for surrender?

If not, why not?
The requirements surrounding surrender should not be made so onerous as to run the risk authorisation holders may abscond without officially revoking the authorisation. However, BMRA welcomes the opportunity to provide the industry view in any proposed guidance on surrender.

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

Comments:
Proposals for a more robust enforcement regime are welcomed by BMRA members. Illegal operators and persistent poor performers continue to blight the industry. An opportunity to reduce numbers to a manageable level will help create a level playing field for the legitimate sector. However, it is essential that proposed changes to enforcement notices are used proportionately and that there are suitable checks and balances in place when one is issued. Proposals to create an offence for failure to comply with a notice are significant and therefore BMRA proposes that any changes are backed up with clear processes targeting those who genuinely pose a risk to the environment. Proposals to serve notices on unauthorised activities are potentially problematic. BMRA would like more information as to what regulatory regime SEPA would be enforcing if it could serve notices on unauthorised activities. In principle, this would offer a further avenue to reduce waste crime and so BMRA would support these proposals. However, the resulting policy should stand up to legal scrutiny.

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:
A notice used in this way is a wholly different enforcement power. The notice serves a different legal purpose by including long-term improvement requirements. The proposed notice potentially has far-reaching legal scope that must be clearly defined if it is to be successful and proportionate. It is also essential that those operating under notices are clear about the improvements that should be made and in what timeframe. Such notices should not become open-ended and exist in perpetuity as a way to begin criminal proceedings against an operator.

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:
As above. The benefits are that SEPA will have greater powers to tackle persistent poor performers and potentially illegal operators. However, these powers must be used sparingly and not as an indirect route to pursue criminal proceedings against operators.

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
Notices used in this way could potentially have far-reaching powers and should therefore only be used where no other avenue exists and all other attempts have failed. Again, suitable checks and balances should be put in place if enforcement notices are to be used to suspend an activity altogether. Additionally, legal clarity should be sought to ensure SEPA would not be acting ultra vires.

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

Comments:
As above

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?
The existing routes to appeal are satisfactory.

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

Comments:
It is essential existing authorisation holders in the metals recycling sector are smoothly transitioned into any replacement regime. BMRA is strongly opposed to any further administrative burden and uncertainty placed on business owing to a need to re-apply for or alter an authorisation.

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

Comments:
BMRA supports the view that those SEPA representatives with knowledge of the waste sector and metals recycling sector in particular should be utilised effectively to manage the workload. It is essential SEPA works with operators in an open dialogue and listens to the concerns of business as they are transitioned to the new regime.

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:
BMRA supports greater transparency through the use of technology. Proposals to bring environmental issues in line with wider public policy under “Scotland’s Digital Future – Delivery of Public Services” objectives.

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

Comments:
Any public consultation should take into account the need to encourage innovation in the waste sector. BMRA is concerned that a wide scope for public participation, extended to those running transport infrastructure, may prevent innovation and provide a platform for community groups to undermine legitimate operators. Any public consultation should therefore be targeted as narrowly as possible and in line with requirements under European Union law. BMRA welcomes the opportunity to contribute to this process through additional guidance.

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:
BMRA agrees with the procedural arrangements proposed for third party call-in provided robust checks and balances are in place where an application is referred to the Ministers for determination.