Scottish environmental regulation during the Coronavirus (COVID-19) pandemic
The Scottish Environment Protection Agency (SEPA) has set out a number of ways in which it is helping businesses adjust and adapt to the extraordinary circumstances posed by the Coronavirus (COVID-19) pandemic.
It has issued a COVID-19 philosophy that acknowledges the constraint on most businesses resources and capacities at this time. It identifies the priorities to focus on and the impact on the regulator’s core functions of compliance, enforcement, monitoring and licensing during the pandemic.
SEPA has set out its approach to regulation during the Coronavirus (COVID-19) pandemic in its overarching guidance. It has greatly reduced regulatory inspections on site, instead saying that it will “continue to use a variety of means of checking compliance including phone calls, issuing written advice, remotely managed technologies such as drones, targeted site and field visits and other forms of intelligence gathering”.
Changes to the Compliance Assessment Scheme for 2020
The existing Compliance Assessment Scheme for 2020 has been suspended in recognition of the practicalities of the current circumstances. Businesses will therefore not be scored and assessed for any permit non-compliances in line with the scheme for the remainder of the year. However, if businesses are unable to meet their compliance obligations due to the Coronavirus (COVID-19) pandemic they are advised to
- prioritise compliance with conditions that directly protect the environment;
- liaise with SEPA as soon as possible; and
- keep a record of any decisions made.
Temporary Regulatory Position Statements
A number of temporary Regulatory Position Statements (RPSs) have been issued to help businesses avoid potential enforcement action as a result of difficulties created by the Coronavirus (COVID-19) crisis.
RPSs set out how SEPA will not seek to enforce certain aspects of the environmental permitting regime in specific circumstances directly related to Coronavirus (COVID-19). Each of the temporary RPSs sets out when they apply and the strict conditions which businesses must comply with if they are to be used. They do not exempt businesses from other regulatory and legal requirements.
To benefit from the use of an RPS, SEPA states that you must:
- have made best endeavours to meet your environmental obligations;
- adequately manage any risks of harm to the environment or human health arising from the non- compliance;
- comply with the conditions attached to a temporary regulatory position; and
- continue to meet all other permit conditions and/or other environmental regulatory requirements not covered by a temporary regulatory position.
Key RPSs for businesses
This applies to obligated packaging producers who have been unable to pay SEPA producer registration fees for the 2020 compliance period due to financial difficulties during the Coronavirus (COVID-19) situation.
If you are a member of a compliance scheme, you have three months from the date of the RPS (23rd April 2020) to pay membership fees to your registered compliance scheme and remain compliant. If you register directly with SEPA, you have the same period by which to pay the required fees.
All other regulatory conditions must still be met.
This applies to all elements of waste management, including permitted waste facilities, duty of care, waste transfer notes and special waste consignment notes.
Movements of non-hazardous waste:
The RPS stipulates that as far as possible remote electronic systems should be used, such as email correspondence to record waste transfers.
Where paper notes are the only option, both parties should keep their own copy of the transfer note containing the relevant details, including the name of the person who would normally sign it and mark it with ‘CV19’ instead of a physical signature. The statutory requirement to retain copies for two years remains.
Movements of special waste:
For transfers of special waste, you are still legally required to include a SEPA issued SA/SB/SC code on your note or buy pre-coded paper notes directly from SEPA.
If you have a stock of SEPA–issued paper special waste consignment notes (SWCNs), you may not wish to use them, as they require signatures from multiple people.
SEPA is currently unable to sell pre-coded paper SWCNs due to the closure of its offices. Instead, you can create and use your own paperwork for special waste consignments. If this is the case, you should contact SEPA to discuss the requirements. To help, SEPA has produced an editable PDF version of a consignment note to use.
Each movement must still be accompanied by a unique code supplied by SEPA. These codes can currently be purchased by:
- paying via a credit card on the SEPA payments website, with the SWCN codes issued alongside your receipt;
- emailing email@example.com for SC codes for extended carrier rounds or landings of offshore waste; or
- emailing firstname.lastname@example.org to pay by Purchase Order or BACS.
The RPS allows you to pass SWCN paperwork electronically (via email or other means) between parties. However, SEPA’s preferred option is for parties to use electronic signatures provided by the parties involved. Where this is not possible the code “CV19” should be used in place of missing signatures.
In either case, all parties must be clearly identified, and contact details provided. For example, the carrier could complete all sections on behalf of the parties and include CV19 instead of the relevant signatures. The carrier would then email the completed note to all the relevant parties and to SEPA.
The requirement within the regulations to submit the Deposit copy to SEPA must still be met under the conditions of the RPS. It is not possible to send them to SEPA offices at this time so all copies should be emailed to email@example.com .
A list of all the RPSs issued by SEPA in relation to the Coronavirus (COVID-19) pandemic can be found on its COVID-19 Hub.
The terms of any temporary RPS may be varied or withdrawn by SEPA at any time. SEPA will generally provide notice in advance of its intention to vary or withdraw any RPSs but may do so without providing notice. It is therefore advised to regularly check the SEPA website for any changes to RPSs and their applicability.
As the situation with the Coronavirus (COVID-19) pandemic continues to unfold, it is likely that we will see further changes to the way businesses operate and are regulated. Look out for future updates where The Compliance People will keep you up to date with what is happening, and what this means for you and your business.