Environmental Performance Assessment Scheme (EPAS) - a fair way to report performance​ 

Compliance information is one of three parts that determine the environmental performance rating, alongside time taken to resolve non-compliance and environmental harm caused. 

Figure 3: EPAS focus on compliance.

For EPAS, compliance includes: 

• Compliance with legal environmental requirements. 

• Compliance with relevant authorisation conditions. 

• Compliance with financial requirements (e.g. payment of annual charges). 

Section 6.1: How we check compliance

We call checking compliance with legal environmental requirements, compliance verification. We verify compliance according to the better regulation principles set out in the Scottish regulators’ strategic code of practice: transparent, accountable, proportionate, consistent and targeted only where necessary. We prioritise compliance verification according to the severity of environmental harm a regulated activity could cause and an operator’s compliance history. For some activities we must be present on site or in the field to verify compliance. Other activities can be verified remotely, for example, through review of operator monitoring data. 

We verify compliance in two ways: 

• Planned compliance verification: This includes site inspections at a set frequency, our environmental monitoring programme and operator monitoring data that must be provided at a set frequency. 

• Reactive compliance verification: This includes site inspections following reports of potential environmental harm received from the public or an operator, or indicated by our environmental monitoring programme. 

We do not think it is fair to rate an operator’s environmental performance unless we have verified compliance. However, where we verify compliance, we will assess environmental performance. 

Figure 4: The various ways that we verify compliance.

Section 6.2: Authorisations included in phase 1 of EPAS

Authorisations already included or expected to be included in the upcoming amendments to the Environmental Authorisations (Scotland) Regulations 2018 and the Integrated Authorisation Framework, planned for November 2025 will be the first to be included in EPAS (see table A1, Annex 1).

The type of authorisation required to undertake a regulated activity reflects the level of risk to the environment and the type and frequency of planned compliance verification activities. 

Our planned compliance verification programme focuses on permit level activities as these are highest risk. However, we also undertake compliance verification work for registration and notification activities. This is alongside work we carry out on rural diffuse pollution as General Binding Rule compliance, which sits within our river basin management activities. Where we carry out compliance verification, we will also rate performance. 

Figure 5: Authorisation types that a performance rating will be calculated for in phase 1. Performance ratings will only be calculated following compliance verification.

Section 6.3: Compliance categories

Compliance is unambiguous – operators are either compliant with the conditions set out in authorisations and/or legal environmental requirements or not. Compliance categories were formally consulted on in 2017. We have been using compliance categories operationally in draft status, together with major non-compliance criteria, since April 2023.

An operator can be categorised as 'Compliant', 'Non-compliant' or 'Major non-compliant'. If an operator does not provide us with the evidence that we need to assess whether they are compliant, this is categorised as a major non-compliance. Operators are responsible for taking all necessary steps to remain compliant.

We have defined the major non-compliance criteria for water, waste, industrial activities and radioactive substances in Annex 3. Late payment of annual charges will be treated as a compliance issue under EPAS, see section 6.8. We will start assessing compliance against our major non-compliance criteria later this year. 

Table 3: Description of compliance categories. 

The compliance category is important for the environmental performance rating. If an operator is 'Major non-compliant' once in a 365-day period, they cannot achieve a 'Good' environmental performance rating. If an operator repeats a major non-compliance with the same cause within 356 days, they are rated as 'Unacceptable'. Causing a Category 1 or 2 environmental event is also always categorised as 'Major non-compliance'. 

Section 6.4: Exclusions

Sample results may be excluded from a compliance assessment under specific circumstances: 

• Where we have made errors or mistakes. 

• Where discharge sample results meet with the exclusion criteria provided in our regulatory method WAT-RM-40 Assessment of Numeric Discharge Quality Conditions. 

• Where an operator can demonstrate that exclusion of a sample result is appropriate as it is allowed under the authorisation e.g. extreme weather conditions or situations beyond their control (e.g. vandalism). 

Section 6.5: Retrospective changes to a compliance category

There are situations where non-compliance is discovered retrospectively, for example: 

• Operator data submitted at year-end shows a mid-year exceedance that we were not notified of at the time.

• Evidence is available that indicates a non-compliance occurred prior to it being identified.

• Evidence provided by an operator is found to be of substandard quality. 

In these situations, the operator’s compliance category will be retrospectively changed for the period that the relevant non-compliance occurred. 

Similarly, if an operator successfully disputes a compliance decision, their compliance category will be retrospectively changed to reflect this. 

Where a compliance category is retrospectively changed, the environmental performance rating will also be changed as soon as reasonably practicable to reflect this. 

Section 6.6: When are operators informed about any compliance issues?

When we attend a site in person, where practical we will verbally inform an operator of any compliance issues before we leave the site. This is subject to appropriate personnel being available to speak with us. We will aim to provide a written Compliance Verification Report (CVR) within seven days that informs the operator of the relevant compliance category: 'Compliant', 'Non-compliant' or 'Major non-compliant'. 

When we need to review data or reports an operator has submitted to us, we will inform operators once this is complete. This review may involve, for example, checks on completeness, format, timeliness and data quality to ensure we can use this evidence with confidence in our compliance assessment. An operator should already be aware if this data identifies any non-compliance. Most authorisations that require the operator data to be provided to us also include a condition that requires the operator to notify us at the time of any non-compliance. Our expectation is that an annual data submission demonstrates that an operator has resolved any compliance issues. 

Section 6.7: How long does non-compliance last?

An operator is categorised as ‘Non-compliant’ or ‘Major non-compliant’ until they provide us with satisfactory evidence that they have resolved the relevant compliance issues. It is the operators responsibility to do this. Evidence that may demonstrate compliance includes accredited monitoring information, date stamped video and photographs, remote tour etc. We will review the evidence provided and only re-visit a site where necessary to confirm an operator has resolved any compliance issues. 

Should this evidence satisfy requirements for compliance, the operator will be treated as compliant as of the date the evidence is received. It is not the date that we review this evidence to confirm compliance. How long operators remain non-compliant affects their environmental performance rating. For this reason, it is essential to provide evidence of compliance as soon as possible. 

Section 6.8: Annual charges

It is important that operators pay their annual charges, set under our various charging schemes, on time. This enables fair opportunities for all operators, ensures that fees reflect the regulatory effort required and we do not waste time and money trying to recover fees that are due to us. We propose to include consideration of whether subsistence fees have been paid in our assessment of compliance. An operator should not have a ‘Good’ environmental performance rating if they have failed to pay their annual charges. 

Late payment of annual charges will be treated as a compliance issue under EPAS. Operators have 30 days to pay an invoice from the date of the invoice. Acknowledging that time can sometimes be required to resolve invoice queries, we propose to categorise an operator as ‘Non-compliant’ if they have not paid an invoice within 90 days of the date of the invoice. If the debt goes into the next financial year or the debt recovery process is initiated, the operator will be categorised as ‘Major non-compliant’. The only exception to this is where an operator has agreed a payment plan with us in advance. The ‘Major non-compliance’ will only be lifted once any annual charges due are paid in full. 

We recently consulted on The Environmental Regulations (Scotland) Charging Scheme 2018: Technical changes. This includes a proposal that payment of charges under the Environmental Regulations (Scotland) Charging Scheme is a condition of an authorisation.