The Pollution Prevention and Control (Public Participation etc.) (Scotland) Regulations 2005

Amendment to the Pollution Prevention and Control (Scotland) Regulations 2000

9.  In Schedule 7 (applications for variation of conditions)–

(a) in paragraph 4–

(i) in sub paragraph (1)(b) omit from “authorise” to the end and substitute–

“authorise–

(i) a substantial change in the operation of an installation or mobile plant; or

(ii) a variation in the conditions of a permit to operate a Part A installation as a result of a review under regulation 11(2)(a).”;

(ii) in sub paragraph (2), omit from “no substantial change” to the end and substitute “sub-paragraph (1) does not apply”;

(iii) at the end of sub paragraph (5)(c), insert–

“; and

(d) in the case of a proposed variation notice affecting the operation of a Part A installation, provide–

(i) information on the reasons and considerations on which that proposed variation notice is based;

(ii) information on any guidance relevant to the determination of the proposed variation.”;

(iv) in sub paragraph (9)–

(aa) for sub paragraph (9)(d), substitute–

“(d) state where and in the case of a variation affecting the operation of a Part A installation, how and at what times, any register which contains–

(i) particulars of the application or proposed variation;

(ii) in the case of a proposed variation affecting the operation of a Part A installation, a copy of the proposed variation notice and the information provided by SEPA under sub-paragraph (5)(d)(i) on the reasons and considerations on which that proposed variation notice is based,

may be inspected and that it may be inspected free of charge;”;

(bb) at the end of paragraph (9)(f), insert–

“;

(g) in the case of a variation affecting the operation of a Part A installation–

(i) explain that the particulars of the application contained in the register specified in paragraph (d) include a description of the elements listed in paragraph 1;

(ii) in the case of a proposed variation notice, describe the contents of that notice;

(iii) where applicable, state that the determination of the application or the serving of the variation notice is subject to a national or transboundary environmental impact assessment or to consultations between Member States in accordance with paragraph 9;

(iv) where applicable, explain that any guidance relevant to the determination of the proposed variation which has been provided to the operator under paragraph 4(5)(d)(ii) has been included in the register or otherwise made available.”;

(v) in sub paragraph (12)–

(aa) in paragraph (b), for “other persons” substitute “any other person”; and

(bb) after paragraph (b), insert–

“(c) in the case of all persons, the period of 28 days beginning with the date on which the draft determination is advertised pursuant to paragraph 7A.”;

(b) after paragraph 6, insert–

“6A.— (1) In the case of a proposed variation notice affecting the operation of a Part A installation to which the consultation and advertising procedure set out in paragraph 4 applies–

(a) where no representations are made to SEPA within the period allowed by paragraph 4(12) or, where applicable and if later, paragraph 5 or by the day on which SEPA receives notification by the Scottish Ministers that the bilateral consultations have been completed pursuant to paragraph 10(b), SEPA shall–

(i) serve the variation notice;

(ii) include in the relevant register a copy of the variation notice, together with the statement confirming that no representations have been received by SEPA on the proposed variation and information on the reasons and considerations on which the variation notice is based; and

(iii) where paragraph 9 applies, forward a copy of the variation notice and the information specified in sub paragraph (ii) to the Scottish Ministers,

within the period of 7 days beginning on the day on which the period allowed by paragraph 4(12) or, where applicable and if later, paragraph 5 ends or the day on which SEPA receives notification by the Scottish Ministers that the bilateral consultations have been completed pursuant to paragraph 10(b); or

(b) where representations are made to SEPA within the period allowed by paragraph 4(12) or, where applicable and if later, paragraph 5 or by the day on which SEPA receives notification by the Scottish Ministers that the bilateral consultations have been completed pursuant to paragraph paragraph 10(b), SEPA shall–

(i) serve the variation notice;

(ii) include in the relevant register a copy of the variation notice, together with information on the reasons and considerations on which the variation notice is based, including information about the public participation process;

(iii) advertise the notice on its web site or, if it considers it appropriate, by any other means; and

(iv) where paragraph 9 applies, forward a copy of the variation notice and the information specified in sub paragraph (ii) to the Scottish Ministers,

within the period of 21 days beginning on the day on which the period allowed by paragraph 4(12) or, where applicable and if later, paragraph 5 ends or the day on which SEPA receives notification by the Scottish Ministers that the bilateral consultations have been completed pursuant to paragraph 10(b) or within such longer period as may be agreed with the applicant.

(2) Where the proposed variation has been forwarded to another Member State pursuant to paragraph 9, the Scottish Ministers shall forward to the Secretary of State a copy of the variation notice and the information specified in sub paragraph (1)(a)(ii) or (b)(iv) as the case may be, as soon as practicable.

(3) Where sub paragraph (1) applies and SEPA fails to serve the variation notice within the periods specified in that sub paragraph, the proposed variation shall, if the applicant notifies SEPA in writing (or in electronic form acceptable to SEPA) that the applicant treats the failure as such, be deemed to have been withdrawn at the end of that period.”;

(c) for paragraph 7 substitute–

“7.— (1) Except in a case where an application has been referred to the Scottish Ministers under paragraph 6 and, subject to paragraph 10, SEPA shall give notice of–

(a) its determination of an application under regulation 13(2); or

(b) in the case of an application under regulation 13(2) for a variation to which paragraph 4(1)(b)(i) applies and which affects the operation of a Part A installation, its draft determination,

within the period specified in sub paragraph (2).

(2) The period specified for the purposes of sub paragraph (1) is as follows:–

(a) where the consultation and advertising procedure set out in paragraph 4 applies, within the period of 4 months beginning with the day on which SEPA received the application;

(b) where that procedure does not apply, within the period of 3 months beginning with the day on which SEPA received the application,

or, in either case, within such longer period as may be agreed with the operator.

(3) For the purpose of calculating the periods mentioned in sub paragraph (2) no account shall be taken of–

(a) any period beginning with the date on which notice is served on an operator under paragraph 3 and ending on the date on which the operator furnishes the information specified in the notice;

(b) any period allowed for making representations in relation to a notice given pursuant to paragraph 5 in so far as that period does not overlap with any other period allowed for making representations in accordance with paragraph 4(12);

(c) where a matter falls to be determined for the purposes of regulation 28 or under regulation 29, any period beginning with the date on which the period of 28 days referred to in paragraph 4(8) ends and ending on the date on which the application is advertised in accordance with paragraph 15(b).”;

(d) after paragraph 7, insert–

“7A.— (1) SEPA shall–

(a) within a period of 3 days beginning with the date on which notice of a draft determination is given pursuant to paragraph 7, advertise the notice on its web site or, if it considers it appropriate, by any other means; and

(b) take all relevant steps specified in the advertisement as falling to be carried out by SEPA, within the time-periods set out in that advertisement.

(2) In the case of a notice of a draft determination in respect of an application which has been forwarded by the Scottish Ministers to the Secretary of State for onward transmission to another Member State under paragraph 9, SEPA shall forward copies of the draft determination and of the advertisement made pursuant to this paragraph to the Scottish Ministers at the same time as the draft determination is advertised.

7B.— (1) An advertisement required by paragraph 7A shall–

(a) explain where, how and at what times any register which contains–

(i) any additional information which is relevant to the determination of the application which has become available after the application is advertised pursuant to paragraph 4(8);

(ii) a copy of the draft determination; and

(iii) information on the arrangements for public participation and the reasons and considerations on which the draft determination is based;

may be inspected and that it may be inspected free of charge;

(b) explain where any other information and guidance relevant to the application may be obtained free of charge;

(c) explain that any person may make representations to SEPA in writing (or in electronic form acceptable to SEPA) within the period of 28 days beginning with the date of the advertisement and give SEPA’s address for receiving representations;

(d) explain that where–

(i) no representations are made to SEPA within the period specified in paragraph (c) or where applicable, paragraph 11A, SEPA shall–

(aa) give notice of its determination; and

(bb) include in the register a copy of the final determination, together with a statement confirming that no representations have been made on the draft determination and information on the reasons and considerations on which the determination is based and information about the public participation process; and

(cc) advertise the notice on its web-site or, if it considers it appropriate, by any other means,

within the period of 7 days beginning on the day on which the period referred to in sub-paragraph (c) or, where applicable, paragraph 11A ends; or

(ii) representations are made to SEPA within the period specified in paragraph (c) or, where applicable, paragraph 11A, SEPA shall, subject to paragraph 7C–

(aa) serve the variation notice; and

(bb) include in the register a copy of the final variation, together with information on the reasons and considerations on which the variation is based, including information about the public participation process; and

(cc) advertise the notice on its web-site or, if it considers it appropriate, by any other means,

within the period of 21 days beginning on the day on which the later of the period specified in sub-paragraph (c) or, where applicable, paragraph 11A ends, or within such longer period as may be agreed with the applicant.

(2) Where the draft determination has been forwarded to the Secretary of State pursuant to paragraph 9 the Scottish Ministers shall forward to the Secretary of State a copy of the final determination and the information specified in sub paragraph (1)(d)(i)(bb) or (ii)(bb) as the case may be, by the date by which SEPA is required to give notice of its determination under sub-paragraph (1)(d)(i) or (ii), for the purpose of its onward transmission as soon as practicable to the Member State to which the draft determination has been forwarded under paragraph 9.

7C.   For the purpose of calculating the period specified in paragraph 7B(1)(d)(ii), no account shall be taken any period beginning with the date on which notice is served on the applicant under paragraph 3 and ending on the date on which the applicant furnishes the information specified in the notice.”;

(e) in paragraph 8–

(i) after “its determination” insert “or draft determination”;

(ii) for “the period” substitute “the applicable periods”; and

(iii) for “paragraph 7” substitute “paragraph 7 or 7B”;

(f) for paragraph 9, substitute–

“9.   Where the Scottish Ministers are aware that an application or proposal to serve a variation notice mentioned in paragraph 4(1) relates to a substantial change in the operation of an installation carrying out activities listed in Annex I to the IPPC Directive in Scotland which are likely to have significant negative effects on the environment of another Member State, or where another Member State likely to be significantly affected so requests, the Scottish Ministers shall forward to the Secretary of State for onward transmission to that State–

(a) a copy of the application or proposed variation notice and a copy of the advertisement made under paragraph 4(8);

(b) where applicable, a copy of the draft determination in respect of that application together with a copy of the advertisement made under paragraph 7A,

at the same time as the application, proposed variation or draft determination are advertised pursuant to paragraphs 4(8) and 7A (or as soon as they become so aware or receive such a request after the application, proposed variation or draft determination are advertised but before the application is determined or the proposed variation notice is served) and as soon as possible thereafter, any additional information which has become available after the application, proposed variation or draft determination and which may be relevant to the determination of the application or proposed variation, in order that the application or proposed variation notice or draft determination may serve as the basis for any consultations necessary in the framework of the bilateral relations between the United Kingdom and the other Member State on a reciprocal and equivalent basis, as referred to in Article 17 of the IPPC Directive.”;

(g) in paragraph 10–

(i) in sub-paragraph (a), after “application” where it first occurs, insert “or provide its draft determination”;

(ii) in sub-paragraph (b), after “determine the application”, insert “or to provide a draft determination”;

(h) after paragraph 11, insert–

“11A.   Any representations on the draft determination made in the Member State to which the draft determination has been sent, which have been received by the Scottish Ministers within the period of 35 days from the date of notification of the draft determination in accordance with paragraph 9, shall be forwarded to SEPA within the period of 10 days beginning on the day after that period ends.”;

(i) for paragraph 13, substitute–

“13.   The requirements of paragraph 4(8) or paragraph 7A of this Schedule shall not apply in so far as they would require the advertisement of information mentioned in paragraph 4(9) or, as the case may be, paragraph 7B which is not to be included in the register by virtue of regulation 28 or 29”; and

(j) after paragraph 15, insert–

“15A.   Where a matter falls to be determined for the purposes of regulation 28 or under regulation 29, the period within which an advertisement is to be made under paragraph 7A shall be 3 days beginning 14 days after the day on which the matters to be determined for the purposes of regulation 28 or, as the case may be, under regulation 29, are finally disposed of.”.