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Integrated Authorisation Framework - A Major Overhaul to Environmental Permitting and Regulation in Scotland

Date: 29/11/2021 | Environmental, Regulatory Law

Background

At present, different legislation and corresponding rules apply to environmental permitting depending on the applicable regime.  For example, if the activity being carried out is a discharge to the water environment, you would have to consider the rules set out in The Water Environment (Controlled Activities) (Scotland) Regulations 2011 (‘CAR’). If the activity involved emissions to air or operation of a landfill site, you would look to the Pollution Prevention and Control (Scotland) Regulations 2012 (‘PPC’).  This can be confusing and unnecessarily complicated (as the rules are inconsistent) as well as costly if multiple authorisations are required at one site under each regime.

The integrated authorisation framework (‘IAF’) has been designed to overhaul the current system, replacing a range of existing legislation and standardising the authorisation, procedural and enforcement arrangements for all regimes (water, waste, radioactive substances and pollution prevention and control).

The Environmental Authorisations (Scotland) Regulations 2018 will deliver the IAF in a staged manner.  For the time being, the regulations only apply to radioactive substances.

Key features of IAF

  • Standardisation, simplification and streamlining of the process for obtaining, modifying, transferring or surrendering an authorisation. Replacing existing regimes, where possible, with a common framework;
  • Creation of integrated approach to public participation;
  • Integrated fit and proper person test across all regulated activities;
  • Standardisation of arrangements relating to statutory notices such as enforcement and revocation; and
  • Risk based assessment in relation to authorisation. See below for more detail.

Why the overhaul?

Key stated aims include:

  • To provide a simple, consistent, transparent, integrated system that is easier to understand;
  • To allow SEPA to deliver proportionate, joined up, outcome focused regulation and enable them to concentrate efforts in areas which pose the greatest environmental risk.  This is also one of the stated aims behind SEPA’s new enforcement tools (see separate articles Variable Monetary Penalties and SEPA Have New Enforcements Tools);
  • Ensure more effective environmental protection whilst reducing regulatory burden on businesses;
  • Enable the introduction of simpler, integrated authorisations (e.g. single site and corporate authorisations; and
  • Streamline the administrative processes and increase efficiency.

Risk based assessment to determine authorisation required

Under the IAF, the authorisation required will depend on the complexity and risk of the proposed activity and will range from simple to complex as follows:

  • General binding rules (‘GBR’) – a set of mandatory rules which cover specific low risk activities.  If you intend to carry out activity covered by GBR, you do not need to apply for any authorisation and simply have to comply with the rules.  If you exceed the limit or cannot comply with the GBR, you will need a different type of authorisation.
  • Notifications – for low-risk activities where SEPA do not need to grant an authorisation but just need to know that the activity is being carried out.  Notifications may be associated with GBR that have to be complied with.
  • Registrations –  for activities where a simple assessment or screening is sufficient for SEPA to determine whether or not to allow the proposed activity to be carried out.  An application needs to be made.  They only include standard conditions which apply to a particular activity and will be consulted on before they are made but once made cannot be appealed.  If you cannot comply with the standard conditions which apply to your activity, you must apply for a permit instead.
  • Permits – for higher risk and/or non-standard activities which require a more rigorous assessment to be carried out before SEPA decide whether they should be granted or refused.  Activities requiring adequate financial provision, bespoke conditions and/or involve a consultation process will be authorised under a permit.  An application is required and permits may contain both standard and bespoke conditions.

SEPA have created an authorisation guide for radioactive substance activities and others will follow as the separate regimes are brought under IAF.

Businesses have been inundated with new environmental legislation and this is unlikely to ease given the ambitious Scottish Government targets.  It is essential to keep on top of the changes to make the most of opportunities and avoid any breaches of legislation.  If the issues raised affect you or you would like to know more about this or any other environmental law, please contact our Environmental Team.

Disclaimer 
The matter in this publication is based on our current understanding of the law.  The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers Stewart LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.


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