10 TRANSFER OF PERMITS
10.1 Ownership of IPPC installations may change hands through normal business transactions. The Regulations makes provisions for permit transfers. It aims to ensure that new Operators have adequate management systems and competence to run installations properly.
Applications for Transfers
10.2 The Operator of an installation wishing to transfer the whole or part of a permit to another person must make a joint application with the proposed transferee to effect the transfer. The permit and any relevant fee must be forwarded to SEPA along with contact details for the Operator and the proposed transferee. For a partial transfer, where the original Operator intends to retain part of the permit, a map or plan identifying those parts of the site and installation(s) to be transferred must accompany the application.
Determination of Applications
10.3 SEPA must determine whether or not the transfer should be allowed. The Regulations, which apply to all installations, provide that SEPA is to effect the transfer unless it considers that the proposed transferee will not comply with the conditions of the transferred permit. The Regulations add a second test for a permit covering a "specified waste management activity". In such cases, the Regulator may only effect the transfer where satisfied that the proposed transferee is a "Fit and Proper Person". These requirements match provisions relevant to new applications and should be applied in the same way.
10.4 The Regulations stipulate a two-month period for transfer applications to be determined. The Regulator and the applicants may agree a longer period. If the Regulator has neither effected the transfer nor rejected the applications within the time allowed or agreed, the applicants may notify the Regulator that they are treating this as a deemed refusal. The applicants may then appeal against this decision to the Scottish Ministers.
Effecting Transfers
10.5 Where the Regulator effects the transfer of the whole permit, it must endorse the permit with the particulars of the proposed transferee as the new Operator. In the case of partial transfer, the Regulator must issue a new permit to the proposed transferee covering all parts of the operation which have been transferred. This should contain the same conditions as the original permit in so far as they are relevant. At the same time, the Regulator must return the old permit to the original Operator indicating the extent of the transfer, and thus the parts of the permit which remain applicable.
10.6 Regulators should consider whether the division of an installation following a partial transfer requires any new or modified permit conditions. For example, conditions may become necessary upon shared operation , to ensure that any inter-reliances needed for proper control of the installation as a whole are maintained.
11 VARIATION PROCEDURES
11.1 Once an Operator has obtained a permit, SEPA must be advised whenever a change in the operation of the installation is proposed. A "change" in this context is defined by the Regulations as "a change in the nature or functioning or an extension of the installation or mobile plant which may have consequences for the environment". The Operator can tell the Regulator about an intended change in one of two ways: a notification under Regulation 12; or an application under Regulation 13. Figure 4 sets out the regulatory procedures applicable to handling such changes. Regulation 13 also allows the Regulator to initiate a variation in the permit conditions. The process that applies where the Regulator does this is shown in Figure 5.
Regulation 12
11.2 Regulation 12 implements a requirement of the Directive for Operators to notify "changes in operation" to the Regulators. Such notification is not required when an application for a variation is made under Regulation 13. Therefore, operators should consider in the first instance whether any change they are proposing could breach the existing permit conditions or if the Regulator is otherwise likely to want to review the conditions in light of the proposal. Thus notifications under Regulation 12 generally will only be appropriate in the case of minor changes in the operation of an installation. When in doubt the Operator should seek the advice of the Regulator as to whether a notification under Regulation 12 or an application under Regulation 13 should be made.
11.3 If an Operator decides to proceed under Regulation 12, the notification must be provided to the Regulator at least 14 days before any change is intended to take place. The Regulator will acknowledge receipt of such a notification. Unless the Regulator takes steps to prevent it, the Operator may go ahead with a change notified in this way as long as this will not cause an offence by breaching any permit conditions. As a matter of good practice, if the Regulator believes that the proposed change can proceed as notified, it should confirm this to the Operator. Conversely, if the Regulator believes that the change might in fact breach the existing permit conditions, or otherwise should be subject to a formal variation under Regulation 13, then it should act to prevent the change. Ideally the Regulator should advise the Operator either way within the 14 day period. However, if an Operator has not had any specific comment from the Regulator at the end of the 14 days, then it is responsible for ensuring that the permit conditions are not breached if it decides to go ahead with the change.
11.4 The Regulator may act in several ways to prevent change notified under Regulation 12. For example, if the Regulator believes that the change might breach an existing permit condition, it could simply advise the Operator of this view and indicate that the change should not therefore proceed. If necessary, the Regulator could serve an enforcement notice to prevent the contravention of any permit conditions. Alternatively, if the Regulator thinks the change would need the permit conditions to be altered in a way that would be permissible under the regulations, it may invite the Operator to apply for a variation under Regulation 13. This may be appropriate either because it is apparent that a proposed change might breach existing permit conditions, or because the nature of the change means that a more detailed reconsideration of the permit conditions is needed. The proper submission of an application under Regulation 13 would then give the Regulator the information needed to determine whether the change should be permitted and any new conditions. In some cases, the Regulator may already know what new conditions are required, and so may issue a variation notice itself, also under Regulation 13.
Regulation 13 : Applications to Vary Conditions
11.5 The Operator may apply to the Regulator for a variation in the permit conditions, for example when proposing to extend the installation or change operating procedures. The procedures for making and determining such an application are set out in the Regulations. They are broadly similar to those for new applications.
11.6 The application must be made in writing and will need to use a standard application form if one has been produced. It must be accompanied by the relevant fee and contain certain information, including:
- name and address of the applicant and installation or mobile plant;
- a description of the proposed changes and variations the Operator is requesting;
- any additional information which the Operator wishes to be taken into account; and
- a statement of any changes that will arise in the matters dealt with in the original permit application (for example, the nature and quantity of foreseeable emissions, the proposed technology for reducing emissions, etc.).
11.7 The Regulator should ensure that the application is duly made as it would for a new application. It should then consider the need for consultation prior to determination.
11.8 A proposed variation that would involve a "substantial change" ( defined in Annex III of this Guide) normally will be subject to consultation with the public and statutory consultees. The Regulator will notify the Operator that this is the case. The consultation process will then operate much like that for a new permit application. In respect of public consultation, for example, the provisions for advertising the application are broadly similar to those required for new permits, except that reference will be made to changes in the operation of the installation. The normal provisions in respect of commercial confidentiality and national security will apply.
11.9 The procedures for consultation may also be followed in cases other than those concerning substantial changes. The Regulator may determine that this is appropriate for some other reason, for example if the installation is located in a particularly sensitive area. In such cases, the Regulator will notify the Operator of its determination. The consultation will then proceed in the same manner as if there were a substantial change.
11.10 If the proposed variation would result in the inclusion of an off-site condition in the permit the owner , lessee and occupier of the land must be notified and given the opportunity to comment. Similarly, if the application gives rise to the likelihood of a significant negative environmental effect ( which, by definition, would entail a "substantial change") in another Member State, there will need to be transboundary consultation. Again, these provisions are much the same as those set out for new permit applications.
11.11 The Regulator may request further information from the Operator, in the same way as it would do for an application for a new permit. If this is not supplied in the time specified the Regulator may give notice that it treats the application as withdrawn.
11.12 The Regulator must determine an application for a variation in accordance with the Regulations (unless the Scottish Ministers have directed that an application be transmitted to them for determination). Thus determining whether to vary the conditions of the permit, and setting conditions where the change is allowed, will largely follow the approach set out for a new permit. The main difference is that the determination should only relate to those parts of the installation affected by the proposed variation.
11.13 If the Regulator decides to vary the conditions, it will issue a "variation notice" under Regulation 13. This will specify the variations and the date(s) on which they will take effect. The Regulator need not simply accept the Operator's proposals, and must ensure that conditions sufficient to comply with the Regulations are imposed. The Regulator may decide that some parts of the variation requested by the Operator may be reflected in new permit conditions, but others may not be permitted. The Regulator may also need to impose conditions that are stricter than or additional to the Operator's proposals. The Regulator should only do this when confident the Operator will comply with the conditions. If this is not the case, the application should be refused.
11.14 If the Regulator decides not to vary any part of the permit conditions upon determining an application, it must notify the Operator of this decision under Regulation 13. The Operator may appeal against this, or against the condition imposed where the Regulator decides that a variation may be made.
11.15 The Regulations defines the specific time periods within which applications for variations should be determined, subject to special allowances where the Scottish Ministers make the determination or there is need for transboundary consultation. Applications subject to consultation with the public and statutory consultees normally should be determined within four months of receipt by the Regulator. Where such consultation is not undertaken, the period is three months. These periods do not include any time taken by the Operators to respond to requests for additional information. In addition, in either case the Regulator and the applicant may agreed a longer period. If the Operator does not agree to this, and the Regulator fails to decide on an application within the requisite time period, the Operator may give notice that it treats the application as having been refused. The Operator may appeal against this.
Regulation 13 : Variation of Conditions by the Regulator
11.16 Under Regulation 13 the Regulator may decide to vary the conditions of the permit at any time, even if the Operator has not requested this. The most likely reason for this are findings of a permit review under Regulation 11, or the need to impose additional conditions to deal with new matters arising. However, a variation may be necessary for another reason, such as the adoption of a new EQS. With respect to variations required as a result of significant noise pollution, the Scottish Ministers will expect SEPA to give proper consideration to any suggestions from a Local Authority in respect of noise conditions that should be varied.
11.17 Where the Regulator decides to vary the condition of a permit, it will serve a variation notice under Regulation 13, and may require the Operator to pay a fee. Various aspects of consultation on a proposed variation notice will be required or may be undertaken much the same as in the case that of a variation requested by the Operator.
Other Variations
11.18 Regulation 13 makes provision for variations which do not affect the conditions of a permit. This could be used, for example, where the name of the Operator changes but the actual operation of the installation does not change hands, or the map or plan, which must accompany the permit, is amended. Regulation 7 of the Regulations also allows the Regulator to replace a permit with a consolidated permit, without varying the conditions. This might be appropriate if a permit has been amended several times, making it desirable to issue a single consolidated version for clarity.