Official Report 850KB pdf
Environmental Authorisations (Scotland) Amendment Regulations 2025
Our second item of business is an evidence-taking session on the proposed Environmental Authorisations (Scotland) Amendment Regulations 2025, which were laid at the end of last month. I have to say that the lack of prior notice was unfortunate; if the committee had known that the regulations were coming, and that they were unusually important, complex and long, we could have begun scrutiny and work on them much earlier.
That said, I put on record my thanks to the Acting Cabinet Secretary for Net Zero and Energy for her prompt and positive response to the committee’s request to withdraw and re-lay the instrument early in the new year to allow us to carry out some additional scrutiny. That decision was also appreciated by stakeholders, who now have a more reasonable length of time to respond to the questions that we have put to them on the regulations. This evidence session is with the Scottish Environment Protection Agency, to hear its views on the regulations and the resources and skills needed to ensure that they are enforced effectively.
Before I welcome the witnesses to the meeting, I remind members that I am a farmer and a landowner. As such, I use the regulations, not only to carry out activities on the farm but in relation to watercourses that run through it.
I welcome Lin Bunten, chief operating officer, regulation, business and environment, SEPA. She is supported this morning by Scott Crawford, senior manager, compliance and beyond, permitting; and Wendy Thornton, senior manager, compliance and beyond, environmental performance. Before we move to questions from members, Lin will make a brief opening statement.
Good morning. As I have already been introduced, I will not repeat what has been said.
Thank you for inviting me here today to provide evidence on what are important regulations for SEPA. It is important to point out that we are responsible for their implementation, so we will focus our remarks on that and leave any policy issues for the committee to address with our Government colleagues.
The Environmental Authorisations (Scotland) Amendment Regulations 2025, which I will refer to as the amendment regulations from now on, represent the final legislative step in a 10-year journey of significant regulatory reform and modernisation since the passing of the Regulatory Reform (Scotland) Act 2014. Throughout that time, we have worked collaboratively with colleagues in the Scottish Government to turn the concept of a truly integrated approach to environmental regulation into a reality, with the Government responsible for the legislative side and SEPA responsible for practical implementation. We welcome the amendment regulations as the final piece in the jigsaw to enable that genuinely transformative work to deliver for SEPA, for businesses and, most important of all, for communities and the environment.
The regulations bring all four of our main regulatory regimes—for water, waste, industrial pollution control and radioactive substances—into a single regulatory framework with common processes and timescales, common tiers of authorisation and common ways of engaging. The framework will simplify and modernise regimes that are in many cases old, complex and bureaucratic and which are spread across many different pieces of legislation, and it will give clarity about the type of authorisation that is needed, why it is needed, and what is required to comply, making it much easier to use and more cost effective for SEPA and regulated businesses. One of those regimes—radioactive substances—has been in the framework for a few years now, and we are applying our experiences from that phased approach to make sure that we are ready to migrate the other three regimes for November 2025, subject to the laying of the regulations.
The regulations significantly simplify the landscape. It is worth understanding that, with this piece of work, we are taking in all or part of 70 pieces of legislation dealing with waste, water and industrial pollution control and retransposing the requirements of all or part of 14 directives. It is all about consolidating and updating processes, and that is what accounts for much of the considerable volume of the draft regulations.
The amendment regulations also take the opportunity to bring into the framework new activities that were previously out of scope, where there are good environmental or business reasons for doing so. In our written evidence, we provided some examples of the work that we are doing to prepare for implementation and the engagement work that we are and have been conducting with our stakeholders. I welcome the opportunity to talk about those in a bit more detail.
I am joined by Wendy Thornton and Scott Crawford, both of whom are involved in various elements of the implementation of the regulations. Thank you for giving me the opportunity to make an opening statement.
Thank you, Lin. In the past, I have come across controlled activities regulations when, for example, I have been cleaning ditches on the farm. That sort of work requires authorisations if the ditch is over a certain level, and it is not just SEPA that is involved; other agencies, such as NatureScot, can be involved, too. Will you talk me through how the regulations will simplify the tortuous process of writing in for consent, waiting for ages and paying for other consents that you might need under CAR? I am unclear as to how the regulations will benefit that situation, and I would like to know what that benefit is, please.
The requirements in the controlled activities regulations are being assimilated into the new framework, with the benefit that the processes that sit behind the decision making will be harmonised across all four regimes. The process that will be gone through for the kind of activity that you are talking about will remain largely unchanged.
As we bring in the regulations, we are looking at our wider transformative approach to regulation, which brings digital experiences to customers. I can talk a bit about what we have already brought in for private sewage treatment works that significantly speeds up the decision-making process; that is the approach that we plan to take across the board, with, over time, all the permissions that will, where possible, enable that decision making to happen more swiftly. As I am sure that you understand, the conditions and considerations that we have to apply to ensure that we protect the environment remain unchanged by the introduction of this regulatory framework.
You are setting yourself timescales, but do they also apply to the other agencies that are involved?
Where other agencies are involved, they will continue to have the same timeframe to respond. I am talking about where we have been able to bring forward a much speedier process, which does not involve that consultation step with any other agencies.
Okay. So, basically, there is no change.
We are harmonising the processes across four big regulatory regimes, which form the majority of the regulatory framework that applies to protecting Scotland’s environment. At the CAR—or controlled activities regulations—level, which is the example that you have given me, we are bringing across the requirements as they are, and implementing them through the new framework.
I am not sure that I am any clearer, but perhaps I am being difficult this morning—I hope not.
You talked about private sewage and septic tanks. I seem to remember that the septic tank registration process was probably the most tortuous thing that I have ever done in my life. Will that be simplified, too, or will it be the basis of the new system?
The septic tank registration process is relatively straightforward, and digitising it makes the customer experience much faster. We will take the human processing element out of a lot of the decision making as we anticipate bringing our digital tools forward. The example that I gave was about the registration process for small-scale private sewage treatment systems, which are slightly bigger than a septic tank.
So, one process will become easier, and one is already easy. Is that what you are saying?
The intention is that, as we bring forward our improved customer experience, everything will become easier and much more straightforward. We have operated paper-based systems, which we have moved into an electronic environment. We are now talking about taking that digital step, which is a much bigger step into the future, to speed up our decision making in relation to the majority of the decisions that we make, particularly those that are of low risk to the environment.
With regard to digital systems, you are still struggling as an organisation to get past the 2020 hack and get everything back online. The system still does not work particularly easily, to my mind. In your submission, you say that you are creating, designing and formulating new systems, and yet we are putting the regulations in force before those systems are in force. Are you confident that SEPA’s digital transition is going to be smooth? I would suggest that you have not had a great record in that respect in the past.
I might indicate that it is unfair to characterise our behaviour in terms of previous unexpected experiences. Our approach is to have a digital system available at the point at which the regulations come into effect for applications. That is our plan at the moment, and we are working hard towards making that a reality.
Other committee members want to ask questions, so I will stop hogging the floor and move to Douglas Lumsden.
Did SEPA consider how any changes to waste licensing might support the transition to a circular economy?
Absolutely, yes.
Will you expand a bit on that and on how it all fits together?
The waste sector will see the most significant changes, because of the age of some of the waste sector regulations that we are assimilating into the new framework—they are some of the oldest, most complex and most bureaucratic that we have. The circular economy principles underpin our thinking across the regulatory framework that we are bringing into effect.
Will the changes that you are bringing in drive us all towards a more circular economy?
They will support it. If you want to know about the detail of the policy behind the regulations, I recommend that you ask our Government colleagues. This is about the assimilation of the regulations as they exist at the moment.
09:15
Monica Lennon has some questions.
What are the key workstreams and associated resourcing requirements for SEPA as it transitions to the integrated authorisation framework? Do you accept what is said in the business and regulatory impact assessment about SEPA not incurring any additional costs?
We are working through a number of workstreams. We have a large programme of engagement and consultation with the stakeholders that will be affected and will see a change in how they are regulated. We are working through our digital transformation workstream in order to make our customer journey more straightforward, efficient and effective. We are working closely with our technical teams to develop appropriate guidance that reflects the changes to the regulatory framework. Last but not least, we are working through our internal staff development and training. Those are the main workstreams in our implementation plan for bringing the regulations into effect.
Regarding any comments in the BRIA, I refer you to Scottish Government colleagues.
Will the new regulations have any implications for SEPA’s existing fee structure and for the approach to full cost recovery?
The consultation that closed in the past month or so considered the changes that the framework will make. We will publish the consultation output early in the new year and will make a recommendation to the cabinet secretary about the charging scheme changes that will be necessary. That scheme ensures that we have full cost recovery for chargeable elements that we undertake, and we will continue operating on that principle in the future.
The draft Scottish budget for 2025-26 has recently been announced, and your budget will remain relatively steady. Do you have any concerns about resourcing the transition in the coming year, and do you have any other budgetary concerns?
We have been working on implementation plans in recent years. As always, we engaged with our sponsor division in the Scottish Government to discuss the draft budget settlement. Implementing the regulations is a key outcome in our corporate plan and has formed the basis of the budget discussions.
What have you identified as the key risks to the implementation of those plans?
We are working through a comprehensive plan that assesses and mitigates any risks that we have identified in planning the implementation phase.
My greatest concern—if I can turn the question that way—would be any avoidable delay that stopped us bringing the regulations forward in line with the timescale that we currently anticipate.
Can you expand a little? What would be the impact of any delay?
I will eulogise if I am not careful, but the benefit for us and for communities, the environment and those that we regulate is significant when compared with the position that SEPA has been in, as an environmental regulator, since we were formed in 1996.
The regulations present an opportunity to harmonise processes. That might not sound like a significant step change, but we have faced challenges as a regulator because regulations have been constructed as a patchwork or network. The challenges that the current position can present to us are difficult to comprehend unless you work in the system, but those will be removed as we bring in the new integrated framework across the four major regimes.
Those are only four of the big regimes that we deal with. I have talked about the 70 statutory instruments that we are bringing together. We have 150-plus statutory instruments from which we, as an organisation, draw duties and powers. This is a big deal—these are the biggest activities. Therefore, it is important to us that we are able to gain the efficiencies and effectiveness that the regulations will bring, so that we can do the job of protecting the environment better in the future.
That is helpful. I understand that SEPA might be changing the way that the out-of-hours contact centre operates by moving to a more automated system. You can correct me if I have got that wrong. If that is the case, what assessment has been made of the impact of the change on transitioning to the new framework that we have just discussed?
The services that the 24/7 contact centre has offered historically will continue under the new arrangements. The ability of the public, those that we regulate and emergency services to make contact with us, as a civil contingencies category 1 responder, continues. The provisions to ensure that that contact is available will still be in place as we move forward and modernise our approach with our new customer hub—I think that that is the terminology that we are using—so we will retain the ability to do what we were able to do.
When will the change to the customer hub approach come into effect?
We are in the midst of the transition.
A couple of years ago, your previous chief executive talked quite openly about SEPA focusing its activities on the big sectors that were not meeting environmental compliance—at the time, salmon farming was a focus, as was the Mossmorran plant—and that is where a lot of SEPA’s resources were going. He also talked about streamlining the regulatory process for sectors that were broadly compliant and in which a lack of compliance was a rarity.
The previous chief executive has been gone for some time, but is that the current direction of SEPA—simplifying regulation at one end and focusing on key sectors that are still problematic at the other end—or are we looking at a slightly different approach now? I am trying to see where you sit now, several years on, in relation to how you focus resources on the current environmental challenges in Scotland.
Our current direction of travel with the integrated framework is the same as it was during the period that you are talking about, so there is a continuum in our thinking. I cannot speak to the evidence that was provided before, but you should have the written evidence that we provided to the committee in advance of today’s meeting. At the back of that evidence, we have set out the pyramid of types of authorisation. That is really important, because it is based on an assessment of risk to the environment and the kinds of conditions that need to apply to different types of activities. One could say that it does not matter what sector you are in; the issue is the risk that you pose to the environment because of the inherent characteristics of your activity, which fit you into a particular area in that pyramid.
However, examples have been given of some common characteristics of certain activities. For example, that approach has allowed us to drop mobile crushers down the hierarchy of permissions that we have put in place. We are an intelligence-led or evidence-led organisation, and we operate on the basis of environmental risk. I would not use a blanket category of sectors to describe our approach to authorisation through the integrated authorisation framework. I hope that that helps.
Yes, but do particular sectors stand out at the moment in relation to compliance?
As a result of work over the past few years, we are moving forward with the development of an environmental performance assessment scheme, which we intend to consult on next year. That is outwith the scope of the evidence that we are here to give, but that scheme will give us the ability to report holistically on the environmental performance of all those that we regulate at this moment in time. Our site-by-site compliance information drives how we focus on each individual activity that we regulate.
Is that transparent for members of the public who want to get a grasp on which sectors or sites are problematic? We have talked about point-source pollution, for example. How will that interface with all those issues?
Our environmental performance assessment scheme, which will be subject to consultation next year, will reintroduce transparency for everyone.
That is long awaited, I think.
Mr Lumsden wants to ask a question. As it is Christmas, I will let him in.
Thank you very much, convener. I will follow up on Monica Lennon’s question. What changes have been made to the call centre? Have things all been automated? When did it go live?
It would perhaps be helpful if we provided information to the committee separate from the evidence that I am able to give you today about the integrated authorisation framework. You are moving into an area that is outwith the scope of the regulatory change.
Did the call centre go live on 8 December?
We are in the process of transitioning—I have provided that answer already.
So, do you not know?
We are in the process of transitioning.
It would be helpful if you provided a briefing with the dates, so that we can understand the position.
Monica Lennon asked a question about raising fees on a full recovery basis. When other agencies are involved, will you be the central fee point? If NatureScot and Scottish Water must give consent, will they raise a fee and put it to you, and will that be part of the licence fee?
In relation to the consenting process, we cost recover for our activities and, when other organisations are licensing, they cost recover for theirs. We often have input from other organisations when they are statutory consultees that provide advice to us; likewise, we provide advice to the planning system. Those costs are not recovered by SEPA on the part of other organisations.
Do you predict big fee increases for some of the activities?
Our consultation, which closed in November, did not. Let me just check—Mr Crawford has confirmed that it did not. We will go through the process of publishing the results of that consultation early next year.
The integrated authorisation framework is an amalgamation of the four schemes. The current fee structure will broadly continue, with the additional activities and the subtle changes in certain areas that were consulted on last year. We are going through due process to ensure that we get sign-off for those changes.
Would it be fair to say that fees will not increase by more than the retail prices index, or am I putting words into your mouth?
I would prefer to take those matters off the table. We can provide you with a written update on the consultation response. I am not in a position to confirm whether that will be the case, because the decision making is subject to our recommendation to the cabinet secretary.
We look forward to seeing that.
Good morning. I want to ask about the fit-and-proper-person test. First, can you explain how that test will be applied to the new framework? How is it expected to support more robust environmental regulation?
The fit-and-proper-person test was a once-and-done process for certain types of application historically. Its introduction through the new framework across the activities more broadly makes a significant difference to our ability to consider an authorisation holder’s abilities on an on-going basis.
Historically, for some regimes, we were able to make a judgment to some extent about whether an applicant would be able to comply with the conditions. In specific areas of the waste regime, there was a requirement to ensure that there were no relevant convictions and that financial provision was in place, as well as the technical competence to deliver. The new framework expands our consideration of the fit-and-proper-person test.
I will bring in my colleague Wendy Thornton to add a bit more detail and to put some context around that.
09:30
Lin Bunten has covered most of the key changes to the fit-and-proper-person test. An important one is that an applicant will have to maintain their fit-and-properness over the lifetime of the authorisation.
The fit-and-proper-person test currently applies only to waste activities, and we can apply it only at the application stage. For example, if we require an operator to have financial provision for site remediation at the end of a site’s life, nothing requires them to maintain that financial provision. They can have the money in the bank at the application point, but that money might not be there at the end of the activity’s life when it is needed for remediation. The change to that is really important in making the fit-and-proper-person test maintain compliance and protect the environment.
We will also be able to take additional factors into account when we consider the fit-and-proper-person test. We will be able to take a wider range of convictions into account, which is important to help us to tackle waste crime. We will also be able to take into account things that we have not been able to take into account in the past. For example, if somebody has a history of forming and dissolving companies to avoid their environmental liabilities and we can see such a pattern over time, we can take that into account in our decision on whether they are a suitable person to be given an environmental authorisation in the first place. That is a really important improvement for us, because ensuring that we give an authorisation only to the right person in the first place avoids a lot of enforcement problems further down the road if they prove not to be the right sort of person to hold an authorisation.
The other big change is that the fit-and-proper-person test currently applies only to waste activities, but we will have the ability to apply it across all our activities, although we are still thinking about how we will do that. We are planning to consult on some changes to our guidance on the test, which was published in January 2018.
Obviously, that applies to the new framework, but what about current permit holders? Where do they lie in the change?
The new fit-and-proper-person test will apply to current permit holders. We do not plan to assess every existing authorisation holder retrospectively against the new test, but we will be able to take it into account as part of our routine compliance work.
Why will you not go back and reassess current permit holders? You said earlier that, throughout the lifetime of the authorisation, you will continue to check whether a person is fit and proper.
Most current permit holders are compliant. That ties in with the work that Lin Bunten described on our environmental performance assessment scheme. We will target the assessments where we consider that non-compliance is perhaps due to somebody not being fit and proper.
I understand the targeting aspect, but you said earlier that this change will ensure that, throughout the lifetime of a permission, you will check whether somebody is fit and proper. Why would you not go back and check current permit holders—obviously, targeting those who are non-compliant first—if you intend the change to involve continuous consideration of whether somebody is fit and proper under the new regime?
There are a couple of reasons for that. First, as Wendy Thornton said, most of the activities that we regulate are compliant and we can use the fit-and-proper-person test to impose additional requirements that an operator has to comply with.
We absolutely need to focus our resources, which are not unlimited and are precious, in the areas where we have known issues. In that regard, we will use the test as a tool. We will not go back and run through the assessment element of the fit-and-proper-person test as a decision-making tool; we use it to decide whether someone can have a permission granted to them. We are not in the business of taking permissions away from people, unless there are very good environmental reasons for us to do so.
That tool will allow us to use other criteria to consider whether there are other reasons, or other signals that we can use with regard to the behaviour of those who hold permits. That might include, for example, whether they have other types of convictions, or whether they are exposing SEPA staff and other public servants to behaviours that would be characterised as violence and aggression. That will influence how we might then consider our compliance activity.
We will have available to us the same tools that we currently have to consider whether to remove a permission from someone, and that heavily, if not wholly, relies on their environmental impact. It is partly about ensuring that we are fairly and equitably considering new material as we transition to the new regime. There is no guillotine that comes down. SEPA operates its enforcement policy as a continuum of activities that we apply, from offering advice and guidance on correcting and adjusting behaviours to ensure compliance, to a hard-nosed approach by which we can directly fine people through variable and fixed monetary penalties or make a report to the Crown Office and Procurator Fiscal Service to seek a prosecution if an offence is significant.
That activity falls into our consideration of environmental behaviour. Rather than taking the step of going back and reviewing every single permission that we have in place, which is not an efficient or effective way for us to use the new power, we will bring it in as we go through the compliance work—
Let me be helpful here. I am quite sure that SEPA, and certainly the public, would not want to see two regimes: one for those folks who have received permission under the new framework, and another for those folks with existing permits. That would be fair to say, would it not?
There will always be a transition—
I get the transition point, but what you do not want to see, as you progress with the new power, is that there are, or are even seen to be, two regimes. Would it be fair to say that?
We will move across as we progress. If an operator were to come to us and seek to vary their licence, that would be an opportunity for us to reconsider their status as a fit and proper person for a particular activity.
What I think that you are trying to get at is whether there will be dual standards here. We will apply the fit-and-proper-person test consistently. We will apply it at the application phase, and then consider it through the life of every activity that has had it applied at the application stage. For anything that has not had it applied, we will consider it through the life of an activity anyway, in the future.
I think that this is a very easy question but, to be honest, you are complicating the answer. I get the point about transition and all the rest of it, but there is a simple question. We want to know that this will not lead to two regimes, whereby those folks who apply under the new framework are under a different regime from those folks who have current permits.
You will transition to ensure that everybody is deemed to be a fit and proper person.
Over time, yes, because that will form part of—
A simple answer.
Yes.
So—
Sorry, Kevin—I am sure that you want to know the timeframe that is being talked about.
I will come to all that, convener.
Good.
As the convener has just asked about the timeframe, I move to that question first. What are the timeframes for the changes, so that we have the transition complete and one regime in place?
The regime will come in, as is currently planned, on 1 November. For some elements, it will be on 1 June but, for the majority of the elements that we are bringing in, it will be on 1 November. There are then further transition dates throughout the following three or four years. From the point at which all the authorisations that are currently in effect are deemed—which will be on 1 November 2025—we will be able to apply the fit-and-proper-person considerations to our compliance work.
One of the things that I am most interested in, and that the general public is interested in, is complaints. If there are complaints, will you apply the fit-and-proper-person test to ensure that nothing has gone askew since the application or since a previous look was taken at whether somebody is a fit and proper person? Beyond that, are there court notifications if folks with permits fall foul of the law in some shape or form?
Yes, we will do that if we receive complaints. I take that in its widest sense. Perhaps I could ask you to elaborate. Did you mean environmental concerns that are raised with us?
Somebody might come to SEPA with environmental concerns, or somebody could say that there might be a financial problem with a permit holder. It could be a number of things. How do you deal with those things?
We look for evidence and identify whether there is an issue, and we follow our enforcement policy in addressing that issue, if we have identified that there is supporting evidence.
On court notifications, I do not think that there is anything specific relating to fit-and-proper-person tests; that is a regulatory decision for us. However, a court notification would be a factor in our considerations. If there was evidence that supported our taking forward our enforcement policy, we would use it in that way. It might factor into a decision about whether a notice is required to adjust the behaviour of someone who holds a licence, or about any other kind of enforcement activity that we undertake. I think that that answers the second part of your question.
At the beginning of the meeting, you talked about the simplification and modernisation of the regulations. Some of today’s evidence does not make it sound as if there is simplification. In fact, some of what you have said sounds a bit complicated, to say the least. If Parliament passes the regulations and they come into play, what is the communications strategy from SEPA to get across the supposed simplification and ensure that the messaging to the general public, in particular, is simplified?
I am sorry to hear that it is coming across as a more complex situation. That is certainly not our expectation or the design intent behind the regulations or our implementation plan for them. Our consultation and engagement exercises started some time ago, and the feedback from those whom we have consulted—they are many and varied and include individual bodies, third-party stakeholders and trade bodies—is very supportive of the changes that we propose.
I ask Scott Crawford to provide a bit more detail about our consultation and engagement processes, the way that we have gone about that and what we have planned for the future.
During the past year alone, we have done three public consultations. We ran stakeholder events for the first one, which was on the type of authorisation that regulated business would require under the amended regulations. We did that in collaboration with the Scottish Government, which was consulting on the draft regulations at that time. Since then, we have done two further public consultations, one on changes to the charging scheme, which we have already mentioned, and one on standard conditions that apply to the registration tier.
Overall, 160 stakeholders came along to those events. We received quite a lot of feedback from that. We engaged further with those who raised concerns and we made some changes on the back of that. Another consultation will go live at the beginning of next year.
09:45
Can I stop you there, Mr Crawford? My question was not about consultation. I get the point about all the consultation that has been going on, but my question was about communication. How will you communicate to the public about the changes if the Parliament passes the framework?
We heard earlier that this is about simplification. I and colleagues round the table have constituents who talk to us about the complications in dealing with SEPA. It was you who talked about simplification, Ms Bunten. What is the comms strategy? In simple terms, how do we get across the changes so that they are meaningful not only to the stakeholders, who know a lot more, but to the general public, who often feel that they are not listened to?
We have a transition plan that has been built up, and which we are developing. We are doing a complete review of a lot of the guidance that will apply, and we are developing new guidance in simple terms on the types of authorisation that people need and on how much that will cost them. That will go on our website, and we are doing a review of the content. We have done external usability testing with people from outside the organisation to see how the web pages would look. Overall, that has been very positive. We have a comms strategy for campaigns and social media, highlighting the stakeholders and members of the public who will be most affected, and we are using targeted communications.
We come to questions from the deputy convener, Michael Matheson.
Good morning. I turn to the call-in procedure and the new pre-application process that is envisaged under the new regulations. How do you feel the existing call-in procedure for CAR has operated? What has not worked well under the existing procedure and resulted in the need to change it?
From SEPA’s perspective, the call-in procedure is a process that we follow. It is a process that the Scottish Government undertakes, so I suggest that the Scottish Government could provide its view on how effectively the process has worked. We follow the processes as they are set out.
Yes, but what is your opinion on how the processes have operated?
In terms of opinion, we follow the process as it is set out.
So you do not have an opinion on whether the process operates well. Was that a serious answer?
The process has applied only to CAR. It was brought in 10 or so years ago, and it has applied to a very small number of the applications across the whole range that we are talking about regarding the integrated framework. We consider that on an annual basis. This is not an area where I have an opinion.
So you do not have an opinion on the call-in procedure.
Regarding the existing system, the consultation document states that, to judge from practical experience,
“the procedure ... rarely results in a change of outcome”
but often
“results in delays”,
with very little change. Is that an accurate reflection of your experience, as the regulator, of how the call-in procedure under CAR operates?
If those are the facts that have been provided by the Scottish Government, I have nothing to add.
I am asking you specifically whether that is your experience of the process. I am not asking you for your opinion—I am asking whether, as a fact, that is your experience.
My apologies, deputy convener—I do not think that I can answer that question, because it is beyond the scope of the work that SEPA undertakes. We await a response when a third-party call-in has been made, and we act on it when we receive it.
So, as the regulator, you have no view on whether the call-in procedure operates well or whether what is set out in the document is correct. You have no idea, as the regulator.
It is not that we have no idea—it is that we follow the process as set. It is an element of the decision making that we follow through.
As for timing, the key issue, from my perspective, is that when a call-in has been triggered, we pause our determination until we have a response, and then we restart our determination. It is a due process that we follow.
I am not really asking you about the due process that you presently follow as a regulator. The claim in the consultation is that the change is needed because the existing procedure
“results in delays, rarely results in a change of outcome, and is of limited utility”.
That is a direct quote from the consultation document and the findings of the review. Does that match your experience as the regulator, with responsibility for implementing the call-in procedure? I find it quite hard to believe that, as the regulator, you have no view on your experience of using the call-in procedure. It is quite a simple question; it is not a trick. To be very clear, I am asking you whether what is reflected in the document accurately reflects your experience.
What is reflected in the document is the Scottish Government’s experience. Yes, when an application is called in, an extra piece of time appears in the determination window from the point at which the applicant makes their application to the point at which we are then able to move forward and determine something. The point that is being made in the evidence that the Scottish Government has provided to the committee is that there is very rarely a change, if ever, to the decision that has been proposed.
We follow the due process as set out. Would I prefer us to move forward as swiftly as possible? I would, but the call-in procedure is part of the process at the moment, and we factor it into our determination period. It is just a fact of life with the decision making that we have at the moment.
Okay—right. I do not know whether that gives me much to go on. However, I will put on the record that I find it really surprising that, as the regulator, you cannot confirm whether the details that are set out in the document and the consultation are correct. I will let you take that away and you can reflect on it as a regulator, but I do not think that it reflects well on you.
My second issue is pre-application community engagement. You will be required to put in place a public participation statement, given the discretionary nature of what will operate with regard to some of the call-in procedures. How do you intend to develop the public participation statement, and what is the timeline for that?
I can confirm that we will be consulting on our proposed approach in January, which will give stakeholders and the public an opportunity to respond to our proposal.
How long will the consultation last for and when will the finalised document be published?
The best practice for our normal consultation window is 12 weeks, so the consultation would run from January to 12 weeks thereafter. As you will understand, it takes a period of time to distil consultation responses, and then we will move to publish the response to the consultation and set out our proposal as a result of any feedback that we have received.
What is the end point for when you expect that to be published?
I anticipate that we will have it done in advance of 1 November 2025.
How far in advance?
You are asking me to anticipate how long it will take, how many consultation responses we will receive and how complicated they will be. I would hazard a guess that it might take us six months from January to do that, on the basis of some significant unknowns at this moment.
Monica Lennon has the next question.
I turn to the issue of sewage sludge. Will you summarise what the key regulatory changes are in relation to sewage sludge as a result of it being brought into the integrated authorisation framework? What environmental issues does that move aim to address?
This follows on from a public petition to the Parliament regarding odour impacts on communities—that was the starting point. The regulations will bring in, for the first time, whole supply chain control by one organisation.
It is currently proposed that, from 1 June, SEPA will authorise all the steps in relation to the production, transport, storage and use of sewage sludge. It will also be subject to the fit-and-proper-person test that we talked about earlier. One of the big steps is that that test will also apply to those transporting sewage sludge. That enhancement, which will be provided by the amended regulations on the integrated authorisation framework, will be quite a significant step forward. We can bring that tool to bear in future, and the fact that we are the single regulator means that there is a single point of contact for all those who may have concerns or may be interested in such activity.
We are working with the major producers—Scottish Water is the biggest—and others to implement the regulations. Those are the significant changes that I would highlight to the committee.
Part of the public concern about sewage sludge involves whether we know enough about the impact of microplastics and forever chemicals getting into the environment and food chain. Do you accept Environmental Standards Scotland’s recent recommendation that more research is required on that? Will the regulations support that through improved monitoring and soil sampling?
We are certainly looking to review the availability and the processes around monitoring for the substances that you mentioned. I am aware that the James Hutton Institute produced a report on that earlier this week, but we have not had an opportunity to fully consider the content of that report. This area is a work in progress for us.
That is helpful, thank you.
One change that was made between the draft and the final regulations was to remove the default requirement to monitor nitrogen in the soil. Are you aware of the background to that change? What impact will that have on the robustness of the regime for sewage sludge?
I am afraid that the specific issue of what was included following the consultation on the regulations is for the Scottish Government, so I would ask you to raise that with it.
I am happy to do so. On the point about nitrogen in the soil, is there anything that you can advise the committee on?
No.
Okay—no problem.
I am sorry to jump in, but I would like to press you on that. You are laying the blame on the Scottish Government. Did you give the Scottish Government a view on whether the default requirement to monitor nitrogen in the soil should be included?
As I said earlier, we have worked closely with the Government on the development of the regulations. I am not sure that I can answer on that particular point. We do not have the information in the room, but we could provide it in a separate follow-up communication.
We would like to follow up the matter and find out why that requirement was dropped. You have laid the responsibility for that decision at the Scottish Government’s door. If we do not know why it is at that door when we come to ask the question, Monica Lennon cannot ask the right question.
I do not want to be pushy if you do not have the information at hand, Lin, but we will take you up on the commitment to write to us, because it feels as though it might be a not insignificant change.
I am just trying to make clear that we are responsible for implementation and enforcement rather than decisions about what to include in the regulations. Although we have been involved in the development process, such decisions are a matter for the Scottish Government.
10:00
I think that the committee understands the distinction, but it is clear that, in the close working relationship between SEPA, as a regulator, and the Scottish Government, there has been discussion, dialogue and input in relation to those matters. Having as much information about those aspects as possible in the public domain would help us to understand why certain decisions have been made.
I have one final question on sewage sludge. To what extent are the provisions in line with existing European Union law, and are you aware of any divergence?
We are aware that there are developments in Europe that have not yet come to fruition, which will in due course be considered—I suspect that that will be in terms of EU parity, too. Wendy Thornton might want to add something.
I will just add that the regulations are in alignment with existing EU law but, as Lin Bunten mentioned, we know that some amendments are in the pipeline.
So there could be further changes, which we have to take into account. I will leave it there, convener.
Douglas Lumsden has a brief question.
I was going to move on to carbon capture, utilisation and storage.
Okay—absolutely; that is what I was expecting.
SEPA’s scope in relation to CCUS is broad. Will you be covering much activity in the broader area? I presume that you are already fully involved in the Acorn project and Peterhead power station. What else would you be involved in, as far as you are aware?
This is an evolving area, and there are no shovel-ready projects that I can talk about. However, one of the things that a sector often welcomes is having clarity about the regulatory framework that will apply to it as organisations are starting to develop their projects. That is what the amendment provides. It will take us from a country that has limited controls over activities that are happening on the same site to a country that has expanded those controls to make sure that we have the appropriate environmental protection for any technologies that apply to carbon capture, utilisation and storage.
Do you have the expertise to deal with that just now, or will you have to go out and get that?
We develop and grow our own expertise, and it will depend very much on the types of technologies that are brought forward. We have experience and knowledge about chemical separation, for example, which is one of the potential carbon capture and storage techniques. There might be other areas where we have to draw on expertise if we do not have it in-house. We have good relationships with our sister agencies across the rest of the UK and with other regulators, which enable us to cross-fertilise our experiences.
So you do not anticipate this causing you a problem.
I do not anticipate it causing a problem.
Mark Ruskell, it is your turn.
I want to ask about the conversations that you have been having with Environmental Standards Scotland with regard to the regulations. To go back to the point that the deputy convener made about call-in procedures, it appears that you do not really have a view on their efficacy. Does ESS have a view on that, and has it communicated that to you?
I am not aware of ESS sharing such a view with us directly. Again, it might have provided a response to the Scottish Government’s consultation. That would be my best assessment of where that information might sit.
Has there been any discussion with ESS in relation to the development of the regulations, or have SEPA and ESS been communicating directly with the Government and not with each other?
I am sorry, Mark, but I am not sure that I understand the question.
Okay. ESS is your regulator. It assesses whether you are enforcing regulations appropriately. It also advises on whether the law is appropriate, whether regulations need to be changed and whether regimes need to be amended, and on their compliance with EU law. That is my understanding. Is that your understanding?
Broadly, yes.
Therefore, what conversation has there been between you and ESS on the regulations?
We have many interactions with ESS on a range of subjects. I am not in a position to give you specifics on our interaction with ESS on this particular topic. Again, if the committee would find that information useful, I can come back with a response.
I presume that I could submit a freedom of information request and that you would eventually provide me with the information.
If the committee is interested in that information, I think that we could provide it directly to you, without the need for an FOI request.
I think we would be interested in that information, because we will be inviting ESS to the committee in the weeks ahead, and the interaction between you, ESS and the Government is an area of interest to the committee, but—
Forgive me for interrupting. The regulations are a matter for the Scottish Government, which has consulted on them. With regard to formal interaction, I believe that ESS has provided a response to the Scottish Government’s consultation on the regulations. I cannot speak definitively on whether it has given us formal responses to the many consultations that we have been undertaking on the implementation side. Nor can I speak, at the moment, to our informal interactions with ESS when we have regular updates and discussions with it on particular issues.
To avoid my submitting an FOI request, it would be useful if you could summarise what that engagement has looked like and whether it has covered any of the issues that we have talked about this morning, including the matter of call-in procedures, which the deputy convener raised. We are trying to understand where the advice sits and how Government responds, both to ESS and to any views that you might have.
I understand that, over the past 30 years, ammonia emissions have barely dropped. In fact, there is some evidence that suggests that they have increased. As we know, ammonia causes public health issues and environmental problems. Do you see that situation as a failure of regulation?
Certain ammonia sources, such as intensive agriculture installations, are covered by regulation, but not all known sources are covered by regulation. Therefore, it might be that you could characterise that as a gap.
It is a gap in relation to these regulations, is it not?
I go back to my description of this framework at the beginning of the evidence session. It is the amalgamation and the consolidation of four existing big pieces of legislation. The framework has introduced one or two additional elements, and we have talked about a couple of those. The Government has chosen not to include ammonia. Again, I suggest that the question why that is the case is for Government colleagues.
Okay, but you are a science-based organisation, so what does that tell you, as scientists, about ammonia levels? If ammonia levels are going up, would you see that as a failure of regulation?
Speaking for a science-based and evidence-based organisation, I am not in a position to give you a scientific or evidence-based answer to that question at the moment. However, again, that might be something that we can follow up after the meeting.
That would be very welcome. Let me consider this from the perspective of a constituent. Let us say that I have a constituent who lives close to a dairy farm and that members of the family have particular lung health conditions that are exacerbated by particulates that are derived from ammonia. The family is looking for regulation, for answers to those problems and for action to be taken by the polluter. If they called your helpline, what information would you give them? Where do they sit in the authorisation framework?
The framework brings in the application of material to land, including sewage sludge, with a regulatory framework that will contain controls in that area.
I have to say that, at this moment in time, I am racking my brains. There is no additional provision relating to dairy farming in the regulations.
So it is not covered by permit, by registration, by notification and by general binding rules. Is that correct?
Not the activity of dairy farming, per se.
Let us go back to this conversation with the constituent. The constituent phones your helpline, wanting answers and action. What action can you take?
In the future state, when it comes to the impacts that people are experiencing from sewage sludge being applied to land, there are some considerations that we can make. In relation to dairy farming—
I am not talking about sewage sludge. The fact is that 92 per cent of ammonia comes from agriculture, so I am not talking about human sewage. I am talking about the inappropriate application and management of slurry wastes in a facility, resulting in increased ammonia.
Let us focus the discussion on where 92 per cent of the problem is in relation to ammonia. What actions do you take?
I am perhaps being a bit slow in picking up the impact on the environment that you are raising here.
So, would that be your response if I phoned you up? I am talking about a health issue here. This is an environmental nuisance, with, say, odour issues and impacts on lung health as a result of PM2.5 derived from ammonia. I am on hold to you. What action can you take? What regulatory tools do you have available?
When someone contacts us about something, we seek evidence to try to identify the source of the problem. We look at the regulatory framework and identify the action that we can take.
The integrated authorisation framework that we are bringing in contains certain controls that we can bring to bear. There will, in future, be consideration of whether activities should be included in it that are not included currently. This is not the answer that I would give somebody on the phone, because I do not have that skill set, but the activity that we are talking about is something that I know that the EU is considering under the industrial and livestock rearing emissions directive 2.0—or IED 2.0. I imagine that, if the Scottish Government were to consider, in future, that the regulatory framework needed to be amended or expanded, that would be the route by which those controls would be brought in.
Right. So, basically, my constituent will have to wait until a European directive is considered and concluded in 2026, and then there might be a consultation with the Scottish Government about whether it wants to implement any of those provisions in domestic law. There is no recourse to environmental justice in the short term for somebody living next to a dairy farm or point-source emission of ammonia who has concerns and is suffering real health impacts, because it is not covered by general binding rules, notification, registration or permit.
For dairy farming per se, that is my understanding.
Would you say that that is a gap?
Simply because it does not exist in the regulations, it is a gap.
Okay, and do you feel that there are other approaches—
Mark, I am sorry, but I have given you a fairly good run at this and Bob Doris wants to come in. We are quite short of time, so I must ask you to make this your last question, please.
I have just one more question.
I thank you for responding on what is a difficult issue, given that there is a gap. In that case, is there anything that SEPA—with your limited resources, which I acknowledge—is able to do in this space by, say, promoting good practice with the farming sector? Would that be in any way effective in dealing with the kinds of issues that I have just raised with you?
We do work very closely with the farming sector on impacts on the water environment, but I need to correct something that I said a moment ago, if I can. I have just been advised that IED 2.0 does not include dairy farming. I think that it is a gap in IED 2.0. I hope that I am okay to correct the record in that way.
There is a landscape of regulators who work with the agricultural industry, and we will be working with other regulators in our various statutory roles in order to ensure that best practice is delivered. As a regulator, we must operate within the rules that are set. We are a delivery agent for Government in that regard—in every regard, in fact—and we operate within the frameworks that are set for us.
10:15
Okay—I think that that is pretty clear from your evidence this morning.
Bob Doris, I ask you to ask your question very briefly.
I will be incredibly brief, convener, because I was not intending to ask any questions this morning—I am just here to listen. However, I need to know more about your role as a regulator in general.
In many of your answers, you have effectively said, “These are the operational matters, and here is the fact of the matter in terms of operational matters”, and you have not strayed into policy matters. The deputy convener had quite an extensive exchange with you, and I think that members were trying to tease out how your operational experience informs Government as to how it might change its policy as a consequence of that. Members were trying to bring out some of that contrast, but I do not think that we have ever seen such a passive position from a regulator at committee.
I went and looked at the consultation responses in relation to the changed call-in procedures. A majority were in favour of the change, and a substantial minority were not in favour, so there was a finely balanced decision for Government to make. SEPA must surely have had a role in some of that, but I do not think that we are any the wiser as to what SEPA’s role was in relation to any of that.
More generally, in relation to these regulations, what has SEPA’s role been? After listening to this evidence session, I am completely unclear.
Let me think about how to give you some more information to help with that question.
We are very involved in technical matters to do with future and current regulation. That will be, as it has been, a joint process of continuous improvement, because these regulations are the baseline from which we will move forward. We are involved, in the range of policy areas that are brought into effect through these regulations, in identifying where potential adjustments, amendments, improvements and gaps that need to be filled exist. The integrated framework that we are talking about does a lot, based on the evidence that SEPA has brought forward to the Government over the years, to identify where improvements in regulation need to be made.
If I have characterised the process as a passive journey, that is not the case. We are a delivery agent. We are involved in putting forward thinking and ideas about policy areas and issues and impacts, and recommending other ways by which adjustments can be made. In the event that a decision is taken that a certain element will or will not go forward, we can influence that, but we are not the final decision maker.
I am trying to tease apart our position. Prior to our role in implementing what we have in front of us, we have had 10 years plus of exercises in identifying where improvements would be made. Those have come from the experience of the regulator, the evidence that we have built up and the challenges that we have faced, and we now have the new tools that will help us to address those challenges.
I have no doubt that we will have more challenges in the future, for which we will seek further amendments or changes to regulation in due course. That will happen as we build up the evidence piece to enable us to say, “This is a gap”, “This is an issue” or “This is a change that needs to be made”.
If I have given the impression that we have not been intrinsically involved in developing this work, I have downplayed my colleagues’ work to almost a criminal extent, and that was not my intention. We are heavily embedded in this work.
I am grateful to you for putting that on the record—I do not think that that was particularly teased out during the session, so I thank you for that.
We have slightly overshot our timing. I will keep my last question very simple; it refers back to something that I said earlier.
I am looking at the evidence that you submitted to the committee. To remind you, it says:
“the water, waste and PPC regimes”
will change “from ... 2025” and that will be led by “digital transformation”.
It slightly worries me that, with less than a year to go, you are talking about “developing” and “creating” things to try to deliver efficiencies through a computer system with which, I stress, I think that SEPA is still struggling. Can you set my mind at rest and convince me that you are going to be digitally ready by November 2025?
To the best of my ability, yes. We are identifying how best to engage with our customers on a user-friendly platform. We are following the principles of reusing what we have, if that is appropriate, before we buy or build something new, which would take us down the hierarchy, given the time that it can take in order to bring a new system into effect. The principles that we are using are designed to bring us the benefits that we need in the shortest possible time.
I have to say that I am less than convinced. As somebody who interacts with SEPA using the forms, I think that there is a huge amount of work to do—those forms are not easy to complete or user-friendly. In my opinion, you could learn a lot of lessons from other organisations.
Anyway, today we have looked at a 291-page Scottish statutory instrument, which is pretty complicated. I am extremely grateful that the Government has given us more time to look at it, because I think that we will need every moment of that time. I am not sure that I feel confident that I am much the wiser as a result of today’s session. You have offered various bits of information, and you have offered some information to Mark Ruskell that the committee would welcome, too. I think that it would be inappropriate for him to FOI it when it is part of committee business, and I have no doubt that we will get it quicker as a committee than we would through an FOI process.
I thank you for your evidence this morning. I ask the committee members to be back here by 10:26—that would be perfect—and I suspend the meeting.
10:21 Meeting suspended.Air adhart
Land Reform (Scotland) Bill: Stage 1