Transcript SEPA/COPFS TRAINING DAY

Challenges in recovery of
money to pay for remediation –
experiences in Scotland
3 October 2014
Structure of presentation
 Attempting to ensure funds for remediation
exist in absence of financial provision having
been made
 Remediation toolkit under Regulatory Reform
(Scotland) Act 2014
 Water Environment Fund
The Question
Petition by the Joint Liquidators of the
Scottish Coal Company Limited
Petition by the Joint Liquidators of the
Scottish Coal Company Limited –
Outer House
 SEPA argued: ““responsible person” means the person who is
responsible for securing compliance with the terms of a
water use licence and has been identified as such by
SEPA in accordance with regulation 8(6), and
includes…
 …(c)(iii) if the responsible person is a company and a
liquidator has been appointed, the liquidator.”
 (Reg 2(1) Water Environment (Controlled
Activities)(Scotland) Regulations 2011
Petition by the Joint Liquidators of the
Scottish Coal Company Limited –
Outer House
 SEPA argued (cont): Regulation 27, where authorised activity ceased,
responsible person must apply to SEPA to surrender
authorisation. In determining application, SEPA
required to take account of any steps necessary to
avoid risk of adverse impact on water environment
arising from cessation, and leave the water
environment so it complies with, amongst other things,
Water Framework Directive and Groundwater Directive.
 Marleasing v La Comercial Internacional de
Alimentacion
Petition by the Joint Liquidators
of the Scottish Coal Company
Limited – Outer House
 Joint liquidators argued: Although s178 Insolvency Act 1986 didn’t
apply in Scotland, effect same due to s169(2)
giving liquidators same powers as trustee on
a bankrupt estate.
 Re Celtic Extraction Limited – polluter pays
principle didn’t extend to requiring unsecured
creditors of insolvent polluter to pay
Petition by the Joint Liquidators
of the Scottish Coal Company
Limited – Outer House
 Lord Hodge : All things being equal, would have preferred
Justice Neuberger’s reasoning in Re Mineral
Resources Limited BUT
 Section 101 Scotland Act 1998 competency
point
Petition by the Joint Liquidators
of the Scottish Coal Company
Limited – Inner House
 Lord Advocate and Advocate General
 CAR a self-contained code
 “responsible person” clear statement of
intention
Petition by the Joint Liquidators
of the Scottish Coal Company
Limited – Inner House
 “…The Water Framework Directive is
extensive in its scope and ambitious in
its objectives…it would seem to be
beyond argument that the broad
interpretation of CARs will better
achieve the desired result. As a
consequence, SCC’s environmental
obligations will be treated as liquidation
expenses, thereby giving them priority
over other obligations.” (paragraph
143)”
Petition by the Joint Liquidators
of the Scottish Coal Company
Limited – Inner House
 “…there is nothing surprising in the notion that
the legislature should have intended that
continued compliance with a WML should
override the interests of the creditors or
contributories of a company…the interest in
the protection of the environment should
prevail over the interest in fair and orderly
winding up of companies.”
 Justice Neuberger, Re Mineral Resources
Limited
Petition by the Joint Liquidators
of the Scottish Coal Company
Limited – Inner House
 “true nature and character”, “pith and
substance” was protection and control of
activities in the water environment
 No appeal to Supreme Court
Challenges in securing
remediation
 S59 Environmental Protection Act 1990
 “Occupier”
 Quash if satisfied occupier didn’t deposit or
knowingly cause/knowingly permit deposit
 Practical issues re recovery of costs
 Regime-dependant whether can serve notice
on unauthorised offender
Regulatory Reform (Scotland) Act
2014
 Integrating authorisation regimes, proportionate and
effective toolkit for SEPA and courts
 Framework for remediation notices to be standardised
cross regimes, and for unauthorised persons
 Section 41 – where significant environmental harm, if
appears to court within power of offender to remedy,
can order that, in addition to any other sentence
passed.
Regulatory Reform (Scotland) Act
2014
Regulatory Reform (Scotland) Act
2014
 Enforcement Undertakings
 Rationale to allow usually compliant operators
to voluntarily and pro-actively offer a quick
and effective resolution of non-compliance.
 Effect – if accepted, no FPN/VPN or criminal
prosecution for offence, unless SEPA certify
didn’t comply with Enforcement Undertaking
Regulatory Reform (Scotland) Act
2014
 Enforcement Undertakings in practice : No obligation to accept, need confidence will be
complied with
 No protracted negotiations
 Need reasonable grounds for suspecting offence
committed, wont accept if should be referred for
prosecution – Lord Advocates guidelines
 Has to commit operator to returning to, and remaining
in, compliance. Must remediate where possible. Expect
operator to go beyond minimum. More favourable if
community consultation?
Regulatory Reform (Scotland) Act
2014
 Environment Agency in England accepted undertaking
from operator re oil storage offence, offer to
decommission old pipework, install new, implement
planned maintenance regime, remediation works and
charity donation.
 South Australia Environment Protection Authority
offensive odour problems by upgrading equipment and
detection, update local community quarterly, pollution
hotline, further engagement with local community group
 Undertakings in response to notice of intent to serve
VPN too
Water Environment Fund
 Managed by SEPA, with support from SNH, Forestry
Commission and Scottish Government
 Commenced 2008, over £2million projects funded last
year
 Deliver improvements to tackle impacts on morphology
or physical condition of water environment, where goes
beyond applicants legal responsibility, so delivering
non-regulatory improvements
 Eg historical legacies , restoring morphology, fish
barriers, invasive non-native species
 Decision factors on website, eg multiple benefits for
biodiversity, natural flood risk management, amenity
value, as well as match funding
Challenges?
 Practical challenge where offender no longer
has funds.
 May well be case eg unauthorised waste
offences . Go up chain?
 Proactive, intelligence based approach
Conclusion