Scottish Environmental Regulation of Onshore Activities Related to Oil and Gas Exploitation in the North Sea

1. A View From The Coast –
The Scottish Approach To
The Regulation Of Onshore
Aspects Of Offshore
Production
Robert Sutherland, Advocate
Terra Firma Chambers

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3. 3

4. Decommission
• 470 offshore oil and gas installations on
UK Continental Shelf by 2030
• OSPAR Decision 98/3
– Presumption of removal
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5. Structure
• Role of EU
• The Emissions Directive
• Scottish Legislative Framework
• Onshore Enforcement and Activity
• NORM + NORM Case Study
• Decommissioning
• Regulatory Reform
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6. 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.”
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7. 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”.
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8. 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
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9. 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
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10. 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 values
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11. 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

12. 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
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13. 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
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14. 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
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15. Legislative Framework of
Environmental Law in Scotland
• Scotland Act 1998, ss 29, 30 & Sched 5
• Environmental Protection Act 1990
• Environment Act 1995
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16. 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
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17. 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
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18. Onshore Regulatory
Enforcement
• Radioactivity
• regulation of radioactive waste
• radioactive waste disposal
• radioactive contaminated land
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19. 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
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20. 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
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21. 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)
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22. NORM
• Naturally Occurring Radioactive Material
• Scale
• 50 – 100 tons / year onshore
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23. Aberdeen Beach
Picture source: Prof. S.Haszeldine, University of Edinburgh (www.geos.ed.ac.uk) and Google Earth
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24. 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
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25. Decommissioning
• 97% of recovered material re-used or
recycled
• Miller Field
– discovery 1982
– exploitation 1992 - 2007
• Miller Decommissioning Programme
– decommissioning activities 2007 – 2019?
– £300m
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26. 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.”
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27. Environmental Regulatory
Reform
• General Binding Rules
• Authorisation
• Notification
• Registration
• Permit
• Standard Rules for Basic Permit
Conditions
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28. 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)
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29. 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
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30. Environmental Regulatory
Reform
• Compensation order up to £50,000
– court to have regard to any financial benefit
accrued
• Publicity order
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31. 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
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32. 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
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34. Environmental Regulatory
Reform
•Better environmental protection
•Consistent national approach
•Better upfront guidance
•More long-term certainty and transparency
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35. A View From The Coast –
The Scottish Approach To
The Regulation Of Onshore
Aspects Of Offshore
Production
Robert Sutherland, Advocate
Terra Firma Chambers