Scotland will have a new integrated framework for environmental authorisations if proposals by the Scottish Government and the Scottish Environment Protection Agency (SEPA) are brought forward.
A consultation launched this month proposes combined authorisation, monitoring and enforcement approaches for the regulation of water discharges, waste management, radioactive substances and pollution prevention and control. Scotland has long had the ambition to move to an integrated approach and is using new powers under the Regulatory Reform (Scotland) Act 2014 to do so.
The proposal to integrate the regulation of different environmental impacts in a single procedural system finds parallels with the environmental permitting programme in England and Wales where operators can obtain a single permit for a number of different activities. However, this is by no means a carbon copy of the English and Welsh approach and businesses operating throughout the UK will need to understand some of the more significant differences.
A tiered approach to authorisation
SEPA and Scottish Government propose four tiers of authorisation, with operators being regulated at the lowest tier appropriate to the environmental risk arising from their activities.
- General Binding Rules: for low risk activities, operators do not need to contact SEPA at all and are free to proceed provided the activities are carried out in accordance with a set of rules to be known as the general binding rules.
- Notifications: for certain lower risk activities, there is no need for approval from SEPA, but there is a requirement to let SEPA know that the activity is taking place and to follow prescribed rules.
- Registrations: for activities where SEPA is content to carry out a short assessment or on-line screening, it will be possible to apply to SEPA for a registration, to be determined within 28 days. Following approval, the operator will need to comply with a set of standard conditions.
- Permits: operators carrying out higher risk activities or who require bespoke conditions for their operations will need to apply for a permit and undergo a more rigorous assessment from SEPA. This will also include activities requiring financial provision or where public consultation is required.
Less prescriptive conditions
Whether standard rules or bespoke conditions, SEPA wishes to implement outcomes focused conditions that are less prescriptive and allow operators to come up with innovative ways to achieve the desired outcomes.
Fit and proper persons
For registrations and permits, operators will need to pass the fit and proper person test, giving SEPA confidence that the appropriate person is competent, has no history of being involved in environmental crime and has sufficient finances to properly manage their liabilities. There will also be greater scrutiny to ensure the appropriate person responsible under the authorisation has sufficient control of the activities so that they can be held to account.
This goes much further than the position in England and Wales where a detailed fit and proper person test is reserved for only a handful of specific waste activities, and where there have been calls for the reintroduction of a stronger fit and proper person test for a greater range of activities.
The consultation also proposes broader enforcement powers for SEPA, so that SEPA can use enforcement notices in a wide variety of scenarios, including where SEPA considers the authorised person no longer meets the fit and proper person test or where SEPA foresees a risk of environmental harm even though the operator is in full compliance with the authorisation. SEPA's proposed use of enforcement notices will reflect the regulatory focus on outcomes and the protection of the environment rather than process and compliance with the strict terms of the authorisation. It is also a consequence of less prescriptive conditions: SEPA can issue prescriptive enforcement notices when operators simply are not doing the right things to meet the outcomes in the permit condition.
Our environmental law team has specialists qualified in all UK jurisdictions and our clients are asking us to pay close attention to the divergence in environmental policy, law and practice between the constituent countries. The devolution agenda is a major issue for environmental law and the impact of Brexit may provide further freedom for the devolved administrations to follow their own paths. Businesses operating across the UK should continue to watch these developments closely. Businesses operating in Scotland may wish to consider a formal response to the consultation. The consultation closes on 12 April 2017.