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Simpler environmental law framework could give SEPA greater powers over less serious cases

Plans to create a simpler framework for environmental law could give the Scottish environment regulator more power to pursue less serious offences without recourse to the courts.15 May 2012

The Scottish Government consultation proposes giving the Scottish Environmental Protection Agency (SEPA) the power to hand out fines of between £500 and £40,000 to environmental offenders. It will also be able to accept 'enforcement undertakings', giving an offender the opportunity to make an offer to take steps to correct its behaviour, in a wider range of circumstances.

SEPA currently has to refer alleged breaches to the procurator fiscal for prosecution through the courts, although it has a very restricted power to issue fines in relation to breaches of certain regulations including the Greenhouse Gas Emissions Trading Scheme and CRC Energy Efficiency Scheme. There is also a "gap" between SEPA's powers to require an operator to do something and the point at which it should refer a report to the procurator fiscal, according to the consultation.

"If SEPA is to be able to advise and encourage those who are confused or careless about their responsibilities, and to set them on the right path, it needs other tools in addition to criminal prosecution," the paper said. However, criminal prosecution will be retained for "serious and wilful breaches" of environmental laws.

In England and Wales the Environment Agency now has the power to issue civil sanctions including fixed and variable monetary penalties for certain environmental offences without resorting to a criminal prosecution. However, the power to issue civil sanctions for environmental permitting offences was delayed further this year whilst the Government undertakes further work on "whether and when" these powers can be introduced.

Gordon McCreath, environmental expert at Pinsent Masons, the firm behind Outlaw.com, said: "The elements of the new enforcement toolkit proposed for SEPA have been already been discussed at length in England and Wales. If this toolkit is implemented the real test will be in the tasting. Will it result in an overall lighter touch for regulation or will new powers result in new levels of intervention in operators' businesses? Ensuring consistency of approach by environmental protection officers on the ground will be absolutely key to achieving true risk based regulation in practice."

The Scottish consultation also proposes creating a new corporate permit system intended to regulate a company's overall environmental performance, rather than regulating individual sites or activities.

Under the plans the 29 separate regimes currently operated by SEPA either on its own or together with other bodies will be replaced with a single structure involving a common set of procedures, notices and other regulatory tools. SEPA is currently the primary regulator for the environmental regulation and enforcement regimes covering water, waste, radioactive substances and pollution, prevention and control.

"The new system will be flexible enough to allow SEPA to develop a more outcome-focussed approach to regulation," according to the paper. "It should be recognised that complete integration may not be possible due to the specific requirements of some of the relevant EU Directives. However, there is still scope to make significant improvements."

The new framework will be based on a hierarchy system with three different levels of permission depending on the risk a particular activity poses to the environment. Low-risk activities will need to conform to activity-specific general binding rules, but operators will not need to notify SEPA that they plan to carry out that activity. A simple registration against a set of activity-specific standard conditions will apply to the next level of activity, with the Scottish Government anticipating a "light touch form of permission" with "very simple procedural requirements". Written permits at a range of levels will be granted to the highest risk projects, and those on which specific requirements under EU legislation must be met.

"The environment would be better served by a clear, robust permitting regime that provides a proportionate level of control against which SEPA can target its active regulation," the consultation document said. Such a regime would "support SEPA in taking a more joined-up, targeted approach to how it actively regulates" which would relate more to a particular activity's actual risk to the environment rather than the type of activity undertaken.

"These proposals see Scotland returning to the risk based permitting that it introduced for the first time in the UK in the Controlled Activities Regulations", commented McCreath. "This will certainly make life simpler for SEPA and operators who are new to the existing regimes. However for those already used to the longstanding environmental regimes, the costs of re-consenting and retraining will be significant. Operators will also want to check whether the protections and defences that they are afforded under existing regimes are translated across to the new single structure.  Experience in England and Wales suggests that a lot of these may be lost."

A proposed new corporate permissions system will enable SEPA and relevant companies to agree on priorities which will meet that company's legal obligations regarding the environment.

Companies that have already reached a high level of environmental management, complete with robust monitoring systems, would be able to reduce their administrative burden through annual performance reporting rather than prescriptive monitoring requirements. Corporate permits could also include voluntary obligations that the company wished to make to improve the environment, over and above its regulatory requirements. Integrated permissions could also be issued where one installation needs permits for several different types of activity.

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