Biggart Baillie Solicitors

A Summary of the SEPA Compliance Assessment Scheme Consultation

Thursday, August 14, 2008

by Neil Amner and Martin Sales

SEPA's Consultation on its revised Compliance Assessment Scheme closed on 03 October 2008.  The final Scheme, informed by Consultation responses, is expected to be phased in from 01 January 2009. 

As part of its commitment to delivering better regulation, SEPA has issued a consultation document that seeks responses to its proposed Compliance Assessment Scheme by 03 October 2008.

We can help if you have any queries about either the consultation, the current regime or would like assistance to prepare a consultation response.

Please contact us for an initial discussion and indication of whether legal advice might be appropriate for you.

Glasgow:
Neil Amner, Partner: namner@biggartbaillie.co.uk / tel 0141 228 8000

Edinburgh:
Martin Sales, Partner:  msales@biggartbaillie.co.uk / tel 0131 226 5541

In Brief

The proposed scheme will:

• be SEPA’s new method of assessing compliance with a SEPA licence/permit/authorisation/registration (“licence”);
• focus on a licence holder’s compliance with their licence conditions (and any general/specific statutory requirements associated with the relevant regime e.g. Best Available Technique in relation to PPC) rather than the inherent risk associated with the activity they carry out;
• come into force in January 2009 for PPC Part A and B licences.  Introduction in respect of other regulatory regimes will be phased (see table below);
• run on a yearly basis from 01 January to 31 December.  Assessment will be carried on throughout that period with results being notified to the licence holder during the spring of the following year;

The scheme will replace the Operator Performance Assessments currently undertaken for PPC, Waste Management Licensing and the Radioactive Substances Act.
Page 3 of the Consultation document contains a definitive list of activities to be included or excluded from the scheme. 

Please see the indicative compliance assessment sheets prepared for the applicable regulatory regimes at Annexes 2 to 10 (page 18 onwards) of the Consultation document for an illustration of what the new scheme may involve.

The proposed scheme will not entail changes to your existing licence nor require provision of additional data to SEPA.  It is only the method of assessing compliance that is changing. 

The New Compliance Framework

The compliance framework is narrated at page 5 of the Consultation document.  The proposed scheme distinguishes between licence conditions relating directly to (a) the environment; and (b) management requirements.  SEPA considers both types of conditions to be of equal importance. 

a) Environmental Limit Conditions: A classification of environmental events (categories 1, 2 and 3 – major, significant and minor) can be found at page 13 of the Consultation document.  The overall assessment in respect of environmental conditions will be one of:

• No breach(es);
• Minor breach(es); or
• Significant breach(es) or repeated minor breach(es).

b) Environmental Management Conditions: The assessment of compliance with these conditions will be either:

• Low performance;
• Medium performance; or
• High performance.

Implementation Timetable

The Consultation is scheduled to finish in “late 2008.”  Implementation of the Compliance Scheme is phased according to regulatory regimes and the proposed timetable is as follows:

Charging

SEPA are considering linking compliance performance to the charges applied to licence holders, as an incentive towards fuller compliance.  However, charging will be part of a separate Consultation and does not form part of the Consultation referred to here.