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

3. ^96%

4. Decommission
470 offshore oil and gas installations on UK Continental Shelf by 2030
OSPAR Decision 98/3
Presumption of removal

5. Structure Role of EU The Emissions Directive
Scottish Legislative Framework
Onshore Enforcement and Activity
NORM + NORM Case Study
Decommissioning
Regulatory Reform

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.”

7. The Role of the EU TFEU, Article 191(2) TFEU Article 193
“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”.

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

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

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

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

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

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

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

15. Legislative Framework of Environmental Law in Scotland
Scotland Act 1998, ss 29, 30 & Sched 5
Environmental Protection Act 1990
Environment Act 1995

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

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

18. Onshore Regulatory Enforcement
Radioactivity
regulation of radioactive waste
radioactive waste disposal
radioactive contaminated land

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

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

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)

22. NORM Naturally Occurring Radioactive Material Scale
50 – 100 tons / year onshore

23. Aberdeen Beach
Picture source: Prof. S.Haszeldine, University of Edinburgh ( and Google Earth

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

25. Decommissioning 97% of recovered material re-used or recycled
Miller Field
discovery 1982
exploitation
Miller Decommissioning Programme
decommissioning activities 2007 – 2019?
£300m

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.”

27. Environmental Regulatory Reform
General Binding Rules
Authorisation
Notification
Registration
Permit
Standard Rules for Basic Permit Conditions

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)

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

30. Environmental Regulatory Reform
Compensation order up to £50,000
court to have regard to any financial benefit accrued
Publicity order

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

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

34. Environmental Regulatory Reform
Better environmental protection
Consistent national approach
Better upfront guidance
More long-term certainty and transparency

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