We are all now familiar north of the border with the new regulatory strategy from the Scottish Environmental Protection Agency (Sepa), One Planet Prosperity, and the approach to the delivery of sustainable environmental protection and improvement which it introduces. But what will it mean in practice for the industry in Scotland?
Compliance: The message from those at Sepa who have been publicly discussing the new strategy is that there is now zero tolerance towards non-compliance with environmental law: “Compliance is not up for discussion.” Those who previously fell into the three categories at the red end of the old compliance spectrum (above right) have been warned to expect a stricter attitude in relation to all breaches and offences.
Enforcement: Sepa’s new approach to compliance will be supported by the enforcement measures available to it in terms of the Environmental Regulation (Enforcement Measures) (Scotland) Order 2015. While the new financial penalties have not yet been deployed in many cases, it is clear that Sepa’s intention is to start making increased use of them in relation to a number of minor offences which might previously have attracted only an informal or warning notice.
“A in a period where resources are constrained for most businesses, it is arguable that penalties which more directly hit the bottom line could have some success, but time will tell”
The goal is to drive behavioural change so that repeat offending becomes a thing of the past. In a period where resources are constrained for most businesses in the industry, it is arguable that penalties which more directly hit the bottom line could have some success, but time will tell.
Waste crime: Operators engaged in major offences or operating entirely outside the regulatory regime are being targeted across all parts of the UK by environmental regulators working jointly with other public bodies and an increasing number of specific task forces. Once caught, offenders can expect any financial benefit accrued as the result of an environmental crime to be something which the courts will take into account in determining an appropriate sentence (as they are now required to do).
sepa compliance spectrum
Charging: with a view to creating a more transparent and balance approach to charging, there is a new regime (Environmental Regulation (Scotland) Charging Scheme 2016) being implemented by Sepa. This replaces the five previous schemes – waste management, waste exemptions, pollution prevention and control, radioactive substances and water activities – with a single risk-based scheme.
The most recent guidance was updated in June but is still subject to further improvement following industry feedback. For sites with multiple operations or activities, the intention is to simplify the charging process.
Sector approach: Sepa intends to define specific sectors, introduce separate sectoral plans and put sector leads in post to focus on the key influencing factors and issues in those sectors, with the main stakeholders working within them. If this is done well, it could be a useful approach for industry.
Waste management: Although it has not been widely publicised by Sepa, it is clear to those operating in the waste management sector that there are potentially major changes on the horizon. The agency appears to be working towards phasing out the use of certain exemptions from waste management licensing on the basis that they have been widely misused over the years.
But the impact, in practice, on the construction and waste management industries of an abrupt change in practice is something which does not appear to have been fully considered.
The over-arching aim now ingrained in the new policy documentation and, it would appear, in the attitude of the decision-makers at Sepa, is consistency across the industry to create a level playing field. Given the variable approach that has been taken to some aspects of resource management in the past decade or more, that will be a significant challenge not just for the regulator but for those in the industry for whom it will likely involve a step change in mind-set and practice.
To have a realistic chance of delivering this step change, Sepa will need to follow through on the assurances contained in its strategy of engagement, support, collaboration and interaction with all of the businesses that it regulates.
Laura Tainsh is Partner at Davidson Chalmers