Out-Law News 2 min. read
29 Aug 2013, 10:07 am
Scotgen, which operates the Dargavel plant on the outskirts of Dumfries, will also be required to return the site to a satisfactory state once the notice comes into force on 23 September. It is entitled to appeal against the decision, and will be able to carry on operating until the Scottish Ministers make a decision if it does so.
The Scottish Environment Protection Agency (SEPA) said that the plant had "never achieved a level of compliance" with its permit in its four years of operation. It said that its "serious and unusual" decision to revoke the permit had followed "careful consideration and assessment of the regulatory options available".
"SEPA recognises the importance of plants like this as part of the overall mix of facilities and services that will have a role in delivering a Zero Waste Scotland," said Ian Conroy, SEPA's technical support manager for the South West.
"Since the plant came into operation we have provided support and assistance to Scotgen (Dumfries) Ltd including affording them considerable time and opportunity to demonstrate that this facility can meet the Best Available Techniques, and the specific requirements of European Directives designed to protect the environment. Unfortunately, despite this, they have not done so," he said.
Scotgen was first issued with an operating permit for the site in May 2009. In February 2013, SEPA varied the permit so that the company had to bring the commissioning period to an end, begin thermally treating waste and recover energy with a high level of efficiency. Under the terms of the notice, these actions had to be completed by 30 June 2013.
According to SEPA, the plant had "consistently failed to meet any reasonable expectation of environmental performance" and its predicted 3% level of energy recovery was "particularly disappointing and unsatisfactory". In addition, Scotgen had failed to comply with a separate notice ordering it to remove an estimated 800 tonnes of partially burned waste from the site, following a major fire that took place last month, SEPA said. That notice and its conditions are still in force.
As well as persistent non-compliance with the permit requirements, failure to comply with the enforcement notice and failure to recover energy efficiently, SEPA said that the company had failed to "maintain financial provision and resources to comply with the requirements of the permit". According to The Herald, Scotgen has filed a notice of intention to appoint administrators with the Court of Session.
"SEPA's attitude to enforcement grows ever more bold," said environmental law expert Gordon McCreath of Pinsent Masons, the law firm behind Out-Law.com. "Time was that SEPA would have shied away from using its revocation powers out of fear of getting it wrong and facing a compensation claim. These days, however, while they are obviously still being careful in their reasoning, we see a more confident regulator and all the more reason for regulated firms to take compliance seriously."
"Another point to watch is whether the administration turns into a liquidation, in order to allow arguments similar to those in the Scottish Coal case to be run. If so, SEPA may be facing a disclaimer of the permit before they have time to revoke it," he said.
