A View From The Coast – The Scottish Approach To

The Regulation Of Onshore Aspects Of Offshore

ProductionRobert Sutherland, Advocate

Terra Firma Chambers

2

3

Decommission

• 470 offshore oil and gas installations on UK Continental Shelf by 2030

• OSPAR Decision 98/3– Presumption of removal

4

Structure

• Role of EU

• The Emissions Directive

• Scottish Legislative Framework

• Onshore Enforcement and Activity

• NORM + NORM Case Study

• Decommissioning

• Regulatory Reform

5

The Role of the EU• TEU, Article 3(3)“The Union shall establish an internal market. It shall work for the

sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe's cultural heritage is safeguarded and enhanced.”

6

The Role of the EU• TFEU, Article 191(2)“Union policy on the environment shall aim at a high level of

protection taking into account the diversity of situations in the various regions of the Union. It shall be based on the precautionary principle and on the principles that preventive action should be taken, that environmental damage should as a priority be rectified at source and that the polluter should pay”.

• TFEU Article 193“The protective measures adopted pursuant to Article 192 shall not

prevent any Member State from maintaining or introducing more stringent protective measures. Such measures must be compatible with the Treaties. They shall be notified to the Commission”.

7

The Role of the EU• Environmental Impact Assessment Directive 85/337/EC• Strategic Environmental Assessment Directive 2001/42/EC• Industrial Emissions Directive 2010/75/EU• Air Quality Directive 2008/50/EC;• Water Framework Directive 2000/60/EC• Marine Strategy Framework Directive 2008/56/EC• Waste Framework Directive 2008/98/EC• Habitats Directive 92/43/EEC• Wild Birds Directive 2009/147/EC• Seveso II Directive 96/82/EC• Registration, Evaluation, Authorisation and Restriction of Chemicals

(REACH) Regulations 1907/2006/EC• Classification, Labelling and Packaging Regulations 1272/2008/EC

8

Industrial Emissions Directive

• Article 1• “to lay down rules on integrated prevention and control of

pollution arising from industrial activities, and to lay down rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole”

• Chapter II covers industrial activities with major pollution potential

9

Industrial Emissions Directive

• Permits must provide for:• emission limit values for pollutants

• rules guaranteeing protection of soil, water and air

• waste monitoring and management measures

• emission measurement methodology, frequency and evaluation procedure

• obligation to inform monitoring results at least annually

• maintenance and surveillance of soil and groundwater

• measures relating to exceptional circumstances (leaks, malfunctions, momentary or definitive stoppages, etc.)

• minimisation of long-distance or transboundary pollution

• assessment of compliance with emission limit values10

Industrial Emissions Directive

• Article 8 – breach of permit conditions - Member States shall ensure that:

a) operator immediately informs the competent authority

b) operator immediately takes measures necessary to ensure compliance restored within shortest possible time

c) competent authority requires operator to take any appropriate complementary measures considered necessary to restore compliance

d) where breach of permit conditions poses an immediate danger to human health or threatens to cause an immediate significant adverse effect upon the environment, and until compliance is restored, operation is suspended

11

Industrial Emissions Directive

Activities operated according to 8 principles:

•all appropriate preventive measures taken against pollution•best available techniques applied•no significant pollution caused•generation of waste prevented

12

Industrial Emissions Directive

• waste to be prepared for re-use, recycled, recovered or, where that is technically and economically impossible, it is disposed of while avoiding or reducing any impact on environment

• energy to be used efficiently• necessary measures taken to prevent accidents

and limit their consequences;• necessary measures taken upon definitive

cessation of activities to avoid any risk of pollution and return site to satisfactory state

13

Industrial Emissions Directive

• Inspection

• Access to information

• Public participation in permitting process

• Access to review procedure before a court– Fair– Equitable– Timely– Not prohibitively expensive

14

Legislative Framework of Environmental Law in Scotland

• Scotland Act 1998, ss 29, 30 & Sched 5

• Environmental Protection Act 1990

• Environment Act 1995

15

Onshore Regulatory Enforcement

• Pollution Prevention and Control

• Water• issuing authorisations, licences and consents for

emissions, discharges and disposal to air, water and land

• monitoring compliance and enforcement, including prosecutions under Pollution Prevention and Control (Scotland) Regulations and the Water Environment and Water Services (Scotland) Act 2003

16

Onshore Regulatory Enforcement

• Waste• waste management licensing, including registration

of carriers and regulating movement

• production of technical guidance on waste management

• provide site-specific advice to local authorities on contaminated land

• regulation of special waste contamination (including cost recovery powers)

• implementing National Waste Strategy

17

Onshore Regulatory Enforcement

• Radioactivity

• regulation of radioactive waste

• radioactive waste disposal

• radioactive contaminated land

18

Onshore Regulatory Enforcement

• Other Matters• advice and guidance on best environmental

practice• inspection of business and industrial as Competent

Authority (CA) in conjunction with Health & Safety Executive (HSE) under Control of Major Accident Hazards Regulations 1999 (COMAH)

• regulator for carbon capture and storage• consultee in the planning system

• Scottish Natural Heritage

19

Onshore Regulatory Enforcement

• Local authorities• Town and Country Planning (Scotland) Act 1997• Town and Country Planning (Environmental Impact

Assessment) (Scotland) Regulations 2011• noise control, statutory nuisances, and air quality• control of hazardous substances• duty to inspect area to identify contaminated land

and to designate special sites; enforcing authority for non-special sites to secure remediation; duty to maintain public registers of contaminated land; cost recovery powers

20

Onshore Regulatory Enforcement

• Waste Framework Directive Article 4(1) – waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy:–prevention–preparing for re-use–recycling–other recovery, e.g. energy recovery–disposal

• EPA 1990, s 34(1)

21

NORM

• Naturally Occurring Radioactive Material

• Scale

• 50 – 100 tons / year onshore

22

Aberdeen Beach

Picture source: Prof. S.Haszeldine, University of Edinburgh (www.geos.ed.ac.uk) and Google Earth23

NORM Waste Case Study

• 1996 - certificate of authorisation

• 2001 – review of authorisation

• March 2003 – report of radioactive contamination of beach

• November 2006 – Notice of Variation

• 2008 – appeal hearing and recommendations• contrary to statute, policy and internationally

accepted best practice; not Best Practical Means• 3 years to develop alternative means of disposal

24

Decommissioning

• 97% of recovered material re-used or recycled

• Miller Field– discovery 1982– exploitation 1992 - 2007

• Miller Decommissioning Programme– decommissioning activities 2007 – 2019?– £300m

25

Environmental Regulatory Reform

• Regulatory Reform (Scotland) Bill -

EEPA 1995“20A (1) SEPA is to carry out the functions conferred on it by or under

this Act or any other enactment for the purpose of protecting and improving the environment (including managing natural resources in a sustainable way).

(2) In carrying out its functions for that purpose SEPA must, except to the extent that it would be inconsistent with subsection (1) to do so, contribute to —(a) improving the health and well being of people in Scotland, and

(b) achieving sustainable economic growth.”26

Environmental Regulatory Reform

• General Binding Rules

• Authorisation

• Notification

• Registration

• Permit

• Standard Rules for Basic Permit Conditions

27

Environmental Regulatory Reform

• Fixed Monetary Penalty– maximum of £2,500

• Variable Monetary Penalty– maximum of £40,000– option to give an undertaking offering

restoration – power to recover the costs of investigation, of

administration and of obtaining expert advice (including legal advice)

28

Environmental Regulatory Reform

• right to make representations

• early payment discounts and late payment penalties

• enforced as if civil debt

• right of appeal (although where to is not specified

29

Environmental Regulatory Reform

• Compensation order up to £50,000– court to have regard to any financial benefit

accrued

• Publicity order

30

Environmental Regulatory Reform

• Vicarious liability for companies, partnerships and limited liability partnerships– where an offence has been committed by an

employee or agent– the employer or principal either knew about it

or ought to have known about it,– not take reasonable precautions and exercise

due diligence to prevent offence occurring

31

Environmental Regulatory Reform

• strict liability criminal offence of causing or permitting significant environmental harm– fine up to £40,000 and/or 1 year imprisonment

on summary indictment (a sheriff or judge)– unlimited fine and/or 5 years imprisonment on

solemn indictment (sheriff or judge, and jury)

• Remediation orders– remediate or mitigate significant

environmental harm

32

33

Environmental Regulatory Reform

•Better environmental protection

•Consistent national approach

•Better upfront guidance

•More long-term certainty and transparency34

A View From The Coast – The Scottish Approach To

The Regulation Of Onshore Aspects Of Offshore

ProductionRobert Sutherland, Advocate

Terra Firma Chambers