Scottish Government Consultation on Reform on Environmental Regulation

Scotland
The Scottish Government has this month published its proposals for radical reform of environmental regulation in Scotland which will, among other things, move Scottish environmental permitting closer to the position in England and Wales where a broad Environmental Permit has been phased in over the last few years.  Protecting the quality of Scotland's environment is seen as essential to the objective of increasing sustainable economic growth and the Scottish Government's proposals are seen as an important contribution to meeting that objective.

Another component of the proposals is that SEPA has to "deliver major change in the way it operates", although the consultation recognises that SEPA has already started to deliver change through its Better Environmental Regulation work.

Key proposals in the consultation include:

Grey Square Single Permitting Structure: SEPA's existing permitting structure is to be simplified by creating a single permitting structure to cover water, pollution prevention and control, waste management and radioactive substances.  It is acknowledged that it might not be possible to achieve complete integration due to the requirements of relevant EU Directives but it is suggested that it will still be possible to make significant improvements.
Grey Square New Permitting Hierarchy: It is proposed that the single permitting structure would adopt a hierarchy of general binding rules for the lowest risk activities, registration with standard conditions/rules for the next level of activity and permits as the highest level of permission.  It is intended to develop a set of standard conditions for permits which could either be applied alone or combined with site specific conditions, as appropriate, taking into account the permitted activities.
Grey Square New Method for Determining Level of Permitting: Under the proposals, the hierarchy of permissions above will be set out in legislation but published guidance will determine where in the hierarchy the regulated activities will fall.  It is recognised that this approach will give less certainty and transparency for operators but it is seen as having the advantage of enabling SEPA to respond to circumstances, such as site specific risks and operator behaviour, to escalate and de-escalate activities.  This will mirror the approach adopted under the Water Environment (Controlled Activities) (Scotland) Regulations 2011.
Grey Square Single Set of Procedures: With the single permitting structure it is intended to introduce procedures which are common across each of the different regimes.  For example, a single application process with a 2 month determination period, or 4 months where SEPA is required to advertise, is proposed for permit applications.  The Scottish Government also proposes to introduce a single set of procedures for routine regulatory notices and a common enforcement notice.  Failure to comply with an enforcement notice will be a criminal offence.
Grey Square Fit and Proper Person: There is an intention to widen the list of relevant offences for the purposes of considering whether or not someone is a fit and proper person to hold a waste management licence.  Money laundering and the supply of illegal drugs are two offences specifically highlighted in the consultation.
Grey Square SEPA's General Powers: The Scottish Government proposes to consolidate and simplify the various enactments giving powers to SEPA and its officers by providing for a single set of statutory powers for SEPA and those authorised by SEPA.
Grey Square Joined-up Permissions: It is proposed that SEPA be enabled to adopt an integrated approach to permitting through joined-up permissions which would consist of a single permit which could potentially cover (i) a major time-limited construction project; (ii) the carrying out of various activities at a number of different sites; and (iii) different activities at a single site.
Grey Square Corporate Permits: There is an intention to consider whether corporate permits could be adopted to regulate a company's sites and activities as a whole.  Corporate permits could also be used to provide for voluntary commitments that a company wished to make, over and above the regulatory requirements.
Grey Square Accredited Permits: There is a suggestion that accredited permits could be trialled in the future to recognise companies who have achieved a high level of environmental performance and who have robust environmental management systems in place.  There would be a lighter administrative burden on these companies with annual reporting and independent audits in place of prescriptive monitoring and emission limits.
Grey Square Direct Sanctions: It is proposed to give SEPA greater powers to use direct measures including financial penalties, enforcement undertakings and publicity orders as enforcement mechanisms in the regimes subject to the single permitting structure plus other regimes including WEEE, special waste and transfrontier shipment of waste.  A revised enforcement policy would also be published to address the use of the increased enforcement options and safeguards would be built in to the legislation.
Grey Square Offences: a single set of offences is proposed to apply to the single regulatory framework.  It is still intended that serious and wilful breaches of environmental legislation will be prosecuted through the criminal justice system.
Grey Square Additional Sentencing Options: The Scottish Government intend to give the criminal courts additional options for sentencing offenders and more flexibility in how they use the options.  This could include remediation and allowing the courts to compensate SEPA and other authorities for costs incurred in remedying or mitigating harm caused by the offence.  It is suggested that cost recovery would be limited to £50,000.
Grey Square Costs Recovery: In the event of a successful prosecution, SEPA is to be enabled to recover its costs of investigation and enforcement to the point of submitting a report to the Procurator Fiscal.
Grey Square Sector Management: SEPA will be expected to adopt a sector management approach which will mean working with a small number of important sectors at any one time to deliver a small number of important, measurable outcomes.  This will allow SEPA to support key emerging sectors and prioritise and target sectors with significant problems.

Comment

Implementation of the proposals in the consultation would result in significant change to environmental regulation and enforcement in Scotland.  While a number of the proposals, such as the single procedures, joined-up permissions and accredited permits, are likely to be welcomed by operators, the proposals are not likely to be without controversy.

Operators may be concerned that the use of guidance to determine the level of control to be applied to an activity or site will lead to less certainty, transparency and consistency, however, greater flexibility may be welcomed.

The consultation can be accessed here and consultation responses must be submitted by 4 August 2012.