Official Report 791KB pdf
Environmental Authorisations (Scotland) Amendment Regulations 2025 [Draft]
Agenda item 2 is consideration of a draft statutory instrument. The current regulations were laid on 27 February and concern regulation of various activities by the Scottish Environment Protection Agency. These regulations are very similar to regulations that were laid on 27 November last year, which were withdrawn on 9 December at the request of this committee to allow additional time for scrutiny. Again, I thank the Government for doing that; it has made for better scrutiny.
The clerk’s paper notes the evidence that we have heard on the matter. The Delegated Powers and Law Reform Committee has made no formal recommendations on the regulations. It has noted that issues that it raised about previous regulations have been addressed in the new regulations.
I welcome to the meeting Gillian Martin, Acting Cabinet Secretary for Net Zero and Energy, and her supporting officials: Carolyn Boyd, solicitor, Scottish Government legal directorate; Gary Gray, senior policy adviser, Scottish Government environment and forestry directorate; and Phil Leeks, senior policy manager, Scottish Government environment and forestry directorate.
The instrument is laid under the affirmative procedure, which means that it cannot come into force until the Parliament approves it. Following this evidence session, the committee will be invited to consider a motion to recommend that the instrument be approved. I remind everyone that the Scottish Government officials can speak under this item but not in the debate that follows.
I invite the cabinet secretary to make a brief opening statement.
Thank you very much, convener, for the invitation to attend today’s session. I will take the next couple of minutes to put on record the context for this large and quite complex instrument.
The aim of the instrument is to amend the Environmental Authorisations (Scotland) Regulations 2018 to bring three existing environmental regulatory regimes—industrial emissions, waste, and water—into the framework provided by the 2018 regulations. That will provide an integrated regime for the four main environmental regimes regulated by SEPA in Scotland. At the same time, the instrument will revoke various secondary pieces of legislation relating to environmental permitting in their entirety, greatly simplifying the statute book.
In 2017, the Scottish Government consulted on a single integrated authorisation framework for environmental regulation. Stakeholders were widely supportive of the basis of the proposal. The regulations then set up the framework and brought radioactive substances activities within its scope. The intention, at that time, was to bring other environmental regulatory regimes within scope in the future. At the start of 2024, the Scottish Government consulted on fulfilling that intention. Again, it had wide support. At the same time as adding those three activities to the framework, the instrument will change or introduce regulation for some sectors that were not covered previously.
Based on the recommendations in the “Review of the storage and spreading of sewage sludge on land in Scotland” in 2016, the instrument also amends the regulation of the sewage sludge to land regime.
The instrument will also bring three new activities within scope: non-waste anaerobic digestion; carbon capture, utilisation and storage; and smaller generators of electricity that are not currently regulated. The introduction of those three new activities will provide a level playing field in those sectors and ensure that environmental risks are appropriately managed.
The instrument also makes limited policy changes to the current regulation of environmental activities to improve the functioning of regulation. At this time, I am not extending that to cover other activities in which I know that the committee has an interest. Work is on-going to better understand emissions of ammonia from livestock farms and battery energy storage systems, the impact of any potential regulation and the best way to regulate those particular sectors.
The overriding purpose of the instrument is to simplify SEPA’s environmental regulatory regime. The changes that I have highlighted will maintain alignment with European Union legislation and ensure compatibility, and will improve the 2018 regulations. By streamlining SEPA’s regulatory regime, the instrument will contribute to the improvement and efficiency of Scotland’s public services.
Thank you. The first questions are from the deputy convener, Michael Matheson.
Good morning. What environmental outcomes do we expect to achieve from the introduction of the regulations?
We are not saying that these activities are highly risky, but we are bringing them into scope so that they are regulated, that there are no issues and that there are guidelines. Obviously, the structure that exists for other sectors applies to them as well.
It is a long-held objective of the Government and SEPA to have an integrated authorisation. We are making the process and the regime simpler for people to follow when they apply for particular permits or notify SEPA of their activities. That will provide greater environmental protection and simplify and streamline SEPA’s regulatory functions.
SEPA will be able to take a more targeted and risk-based approach to regulation, focusing on the operators and activities that present the greatest risk. Having a tightly regulated landscape for all those sectors, so that operators understand the guidelines, frees up SEPA to interrogate some of the riskier activities to prevent environmental harm. I hope that the committee would agree that SEPA is largely there to prevent harm and limit the consequences of accidents, and that it should use its resources for that.
The fact that we are bringing some new activities into scope means that there will be the same environmental protections in relation to any risk that is associated with those new or currently unregulated activities.
On the whole, it is a case of making SEPA more efficient, giving it the space to be more proactive in taking targeted action and simplifying the regulations so that they cover more sectors. The result of all that will be that we will protect the environment.
I am looking at the timetable that includes key target dates for implementation of the regulations. The intention is that the new regulatory regime that is provided for by the regulations will be implemented by November this year.
Yes.
However, I do not see any key milestones relating to how we will ensure that the necessary preparations are made to allow SEPA to progress with the implementation of the regulations. Are there any milestones in advance of the target date in November for ensuring preparedness for implementation of the regulations?
Yes. As you said, the initial target date for implementation of the sludge to land regulations is 1 November this year. We have set up a governance group with SEPA for exactly the reasons that you have set out: we need to check that the milestones are met and that preparations are made. The governance group includes key SEPA personnel to ensure that SEPA is on track to deliver all the changes by those dates, to implement the regulations effectively and to communicate them effectively to various stakeholders.
The group is meeting monthly, and its first meeting was a few weeks ago, so a meeting has already taken place. If the committee wants to see the group’s terms of reference, we can provide them.
As I understand it, the delivery of digital services will be phased over the next year. The governance group will be looking at that aspect to ensure that the website pages are up to date, that the rules, advice and codes of practice are easily accessible, that the new conditions with which people will need to comply are available and that the new service manages the volume of applications as a result of the instrument. The target date for implementation of the first set of regulations—the sludge to land ones—is 1 November.
That is helpful. The part of the timetable that probably causes me the greatest level of anxiety is staff training and the transition involving the integrated authorisation framework products and services being handed over to the functional teams being completed by October this year. Does the oversight or implementation group have authority in relation to the stop-go of the regulations if it feels that there is a gap that will impact SEPA’s ability to implement them in November?
I might need to ask my officials for a definitive answer, but the oversight group has been set up so that we actively monitor the situation. As I said, the group will meet every month, and we will get reports on staff training and our ability to meet the deadlines. I would hope that, if things were not going to plan, we would find that out early and be able to provide assistance or guidance, even if resources were required. I would hope that that would happen well ahead of a situation in which we had to think about stop-go.
Phil Leeks might want to add something.
I do not have the terms of reference with me, but we can supply them to the committee. The idea of having the governance group is precisely to enable senior teams to inform the cabinet secretary of any concerns that need to be raised.
Who does the oversight group report to? Who would make the decision on stop-go?
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The oversight group reports to me. Given that, I imagine that decisions would be taken as a result of advice coming to me about any issues that might arise. I am confident that that will not happen, though, because governance arrangements have been put in place. The group has met ahead of the regulations coming into force. Its members know that scrutiny and oversight will be regular and that actions will be associated with every meeting that takes place. A report will come to me about progress on that, too.
I have some follow-up questions. First, in case we come on to discuss farming matters, I remind members and the cabinet secretary of my entry in the register of members’ interests, in that I am a partner in a farm in Moray that covers about 500 acres. Therefore, I come into contact with SEPA on occasion—although not in any nasty way.
Going back to the deputy convener’s comment, I have received representations that the computer system will not be ready, and that the forms will not be easy to populate for either previous or new applicants. Given that SEPA has had problems with its computer systems in the past, do you recognise that that could be an issue again? Are you prepared for it?
I was just checking with my officials that the previous applicants will be transferred to the new system by SEPA in-house. The information that I have about the build-out of the digital system is that the digital service will be in place to manage the volume of applications expected by the start date of 1 November. The new website pages will be published by 1 August. A number of registration-level authorisations are expected. The existing end-to-end digital services for those regimes will be updated between 1 November 2025 and 1 April 2026. The digital system is on track to be ready for new applications by 1 November, and the oversight group will monitor progress on that.
All Governments have problems with computer systems, as we have seen in the past, and SEPA has been one of them. I will be interested to see how the oversight group responds. From the committee’s point of view, once the system has gone live on 1 November it would be interesting to have an update from the cabinet secretary on how it is responding. I am sure that you would be happy to feed into that.
Although, of course, SEPA will be able to give greater detail on the operational aspects of what it is doing.
The effectiveness of a tiered regime is all down to people knowing and understanding the general binding rules, so that they can comply with them. Are you going to publicise those? How will you make them known? For example, I did not know that there were general binding rules on matters such as hot tubs. How will typical small businesses and households become aware of them? I do not have a hot tub, but, if I did, and there were rules regarding it, how would you let me know?
You have picked on quite a niche aspect by mentioning hot-tub owners. I do not know whether such owners could be in the list of stakeholder groups, but it is possible that, if SEPA has not already done so, it will have to communicate that. We would hope that hot-tub owners would dispose of their waste water responsibly, as they would with any waste water, and not put in it anything that should not be there that would cause harm to the environment. I imagine that if something in there were to cause such harm it would also cause harm to anyone sitting in the hot tub. Anyway, I digress.
The new website pages will be published on 1 August, and they will include all the guidance that is associated with the issue. The fact that there have been quite a few consultations means that stakeholders—I am not sure whether hot-tub owners are in that group—who will generally be using SEPA for the existing regulations and the new regulations have already fed into those consultations, so there is widespread knowledge that the changes will happen.
You make a good point: it is important that whenever SEPA changes anything operationally, or when new sectors come into regulation, it communicates the changes with stakeholders.
There have been stakeholder engagement sessions on the draft regulations with SEPA and some of my officials in the Scottish Government. It was made clear to those stakeholders that the existing GBRs under the water environment regulations were going to be brought into the regulations, and that some new GBRs were going to be added.
SEPA will be able to give more detail on its plan to communicate the new regulations to businesses to make sure that they are aware of them and to provide any kind of advice, as it does.
At Government level, we support Farming and Water Scotland, which has been very helpful in developing a range of fact sheets and collating frequently asked questions on changes to the binding rules that are being disseminated to stakeholders.
I hope that, in the round, that acknowledges that there has to be a communications strategy around this, which SEPA and others are undertaking.
I am sure that those people with hot tubs will be rushing to find out what the general binding rules are for them, but my question is a serious one. Have you allowed for some money to advertise the changes and to promulgate them to people who might not necessarily pick up on them? For example, someone with a small holiday let might not know about regulations on hot tubs. What money has been put aside to make sure that everyone understands the GBRs? If they do not, the tiered system will not work.
SEPA has not requested additional money for that. It is able to do it within its existing budget.
That will be an interesting conversation when we next have SEPA in. Monica Lennon is the next person to ask questions.
I do not have a hot tub, but I feel that I will have to ask more questions about that subject in future.
I want to ask about issues with odour from sewage sludge, because some stakeholders have raised concerns about the regulations. Can you clarify whether the regulations are designed to have an impact on odour issues, and if so, how do you anticipate that those changes will reduce odour complaints?
A great deal of work has been done on odour in general in the past decade, particularly as a result of a couple of reports that came to ministers more than 10 years ago. The committee will be aware that a lot of the odour is associated with waste water treatment. Scottish Water has been undertaking a comprehensive process to improve the waste treatment centres, and it is using new technologies that reduce odour and have better environmental outcomes.
I highly recommend visiting one of Scottish Water’s new treatment centres, of which there are a few. They use a bacterial digestion process, so the waste water coming in is the only point in the process where you will smell anything. I have been to quite a few of those centres, as you can imagine, in my capacity as cabinet secretary. Very quickly, the bacterial digestion systems eliminate odour, so there have been a lot fewer complaints from anyone in the vicinity.
With regard to how the regulations relate to odour, if a member of the public detects any odour, they would initially, as always, contact their local authority. If the odour results from an activity of which SEPA has oversight, the local authority would get in touch with SEPA. By the process of reporting to the local authority, and the local authority then contacting SEPA, if there was excessive odour associated with any activity that was in breach of any of the regulations, SEPA would be monitoring that.
The activities that are authorised under these regulations include sewage treatment, which is regulated by SEPA, with the Scottish Government providing guidance on it. The definition of “pollution” in the regulations includes
“the ... introduction ... of substances ... into air, water or land which may ... cause offence to any human sense”.
That includes odour.
We hope that, as a result of bringing all those aspects into one instrument, any new activities that may have odour associated with them are now brought within the scope of the regulations and should not cause excessive offence to the senses, as the regulations set out.
As I said, however, that is happening not just as a result of the regulations. Targeted work has been done on processes around sewage in particular to reduce odour, largely as a result of investment by Scottish Water in its waste treatment works, but also resulting from the rapid acceleration in technology associated with the treatment of sewage.
So the intention is, through the regulations, to reduce—it is hoped—the impact of odour, which would lead to a reduction in complaints, but if there are complaints, members of the public should go to the local authority in the first instance.
I imagine that they would, in the first instance. If people have the knowledge to enable them to associate the odour with a specific activity on a particular site—for example, if it was on the land, and they contacted SEPA—they will obviously not be turned away by another body. Indeed, if there was excessive odour associated with any of the sites that are operated by Scottish Water, they could contact Scottish Water. In a general sense, however, regarding the environment in someone’s own local authority area, they would contact the council in the first instance.
It is important to get clarity on that. We know that some local authorities have queried it and asked how the new approach would interact with their role in dealing with odour nuisance complaints. For example, East Ayrshire Council has suggested that revised guidance should be provided to clarify roles. There are definitely questions about the interaction between SEPA and local authorities in relation to statutory nuisance complaints.
I am just having a little confab with my officials around that.
If councils are looking for specific guidance on the matter, we could produce that in order to make it clear.
Okay, so you recognise that additional guidance is perhaps required.
Of course. We do not want any local authority to be in any doubt about what they have to do if they receive complaints. It would be fairly straightforward to provide guidance to all 32 authorities.
Okay—thank you.
The next questions are from Mark Ruskell.
Cabinet secretary, I want to ask you specifically about the change in the cadmium threshold in relation to sewage sludge. I believe that that has changed since the regulations were originally introduced in November. I want to understand what the change means in practice with regard to islands, grasslands and other areas where there are exemptions for higher cadmium thresholds. Can you explain that, please?
It has been recognised that cadmium can occur naturally in certain areas, so there have to be exemptions in place because of the geology of a particular area.
You mentioned islands. Many islands will have naturally occurring cadmium in their soil as a result of their geology. Exemptions could be put in place for that. The draft regulations will reduce the maximum concentration of cadmium that is allowable in soils for spreading sewage on land. The reason for that is that there is evidence of cadmium uptake in wheat, for example. Where cadmium levels are above the maximum concentrations, it is taken into growing wheat.
09:45Scottish Water and SEPA identified that reducing the maximum permissible concentration of cadmium in soils could lead to unintended consequences in areas where there are naturally occurring levels of cadmium; in island situations, there can be limited options for the disposal of sewage sludge, and we do not want a situation where an island community cannot dispose of their sewage sludge within their geographical area. That would be an unintended consequence of reducing the maximum permissible level, given their geology. So, we have drafted the regulations to allow SEPA to provide an exemption for those reasons.
You mentioned grassland and the fact that it is not used for growing crops for human consumption. There could be another exemption there. SEPA has determined that there may be exemptions for grassland, if that is the only thing that the land is used for.
Will the exemptions be considered on a case-by-case basis? Say there was a situation where there was an arable area on an island, and there were, therefore, concerns about cadmium uptake in crops, could SEPA still say, “Well, actually, that’s not an appropriate area to be spreading sewage sludge,” and therefore rule against it, or is it that, if you are on an island, it is fine to spread sewage sludge?
My understanding is that exemptions will be considered on a case-by-case basis.
Okay. That answers the question.
Just to push a little more on the subject, one of the ways that sewage sludge used to be used was as fertiliser for trees and young grain crops. It was in the form of pellets and was applied that way. That seems to have fallen by the wayside. Is causing the trees to grow quicker using sewage sludge something that you will look at in the future to help us lock up carbon?
Again, you have touched on something that is quite niche, for which I do not have a specific answer. I need to find out more about that, but SEPA would be able to advise on whether it is something that it wants me to look at. It is something that I will need to take away, convener.
Okay. I will hand back to Monica, who has more questions on sewage.
I will ask about emerging contaminants, such as microplastics and forever chemicals, that are in sewage sludge and how they might affect human health and the environment. It is fair to say that there is still a lot that we do not know, so we need to get that knowledge and robust evidence. In that context, we have heard from stakeholders about the safe sludge matrix being out of date. Can you give the committee an update today on what the Government has been doing to improve that understanding and evidence and on what the timescale is in relation to the safe sludge matrix?
I will come to the safe sludge matrix in a second. The committee is aware that the Scottish Government wants to keep pace with EU regulations, and the approach to this issue is no exception in that regard. At the moment, the EU is considering new legislation on sewage sludge and on the wider circular economy. We are keeping up to date with how that is going and what it could mean for us. As a result of deliberations at the EU level, modifications to the urban waste water treatment and sewage sludge directives might be considered.
From what I hear, the EU is consulting on the matter over the summer, and we will be keeping a close eye on that. It is potentially looking to introduce new legislation by the end of the year, which could have an impact on us. The EU is doing a great deal of work on that.
The matter has been looked at by the Scottish Government, with partners, including, in particular, Scotland’s Rural College. You are right that there are new contaminants as well as existing ones, which we must always be aware of. We have left the EU, but there are regimes in place in the United Kingdom of which we need to be mindful.
I will bring in Phil Leeks on the safe sludge matrix.
Sorry—it should be Gary Gray.
If it is to do with sewage sludge, it is you, Gary.
Gary is in the weeds of this, so I will hand over to him.
The 2016 review recommendations included the incorporation of certain elements of the safe sludge matrix in legislation. We have discussions—albeit not regular discussions—with the UK Government about the safe sludge matrix, but certain elements have been brought into the regulations, as recommended by the review.
Thanks for that.
One of the recommendations in the 2016 review was that planning guidance on the use of sewage sludge in land restoration should be reviewed. I do not think that that has happened yet. Can you give an update?
We will get the framework into place and the regulations up and running. As the cabinet secretary said, there is an advantage to bringing sewage sludge into the framework. The previous regulations—the Sludge (Use in Agriculture) Regulations 1989—were quite passive and gave stakeholders a lot of elbow room to operate in. The framework brings sewage sludge into SEPA’s scope, so that it can issue permits and properly enforce measures in response to any illegal action, or actions that are not being done properly.
As the cabinet secretary said, the list of contaminants is under review by the EU. We will take note of the consultation that comes out in the summer, and we will take appropriate action following that.
I will press you a little bit more on that. Although I appreciate there are a lot of different moving parts, particularly in relation to EU alignment, I would like to get a bit more clarity about when the recommendation, which dates back to 2016, will be implemented.
As I said, the decision was that, once we get the regulations up and running, it is a matter of us looking at what guidance is required with SEPA, or making changes to planning, if any are required.
From my point of view, it is important, first, that the regulations are in place, that everyone knows what they are and that continuous work is done on the matter. I come back to my earlier point that new contaminants could be identified, and there has to be consistent monitoring of the sort of things that have been used and are appearing in sewage sludge. This is not just a one-time thing; it is a continuous piece of work.
Good morning. I turn to the subject of anaerobic digestion. Concerns have been raised by some anaerobic digestion stakeholders that the regulations will threaten the viability of non-waste anaerobic digestion plants, because of the retrofitting that they might have to do on such sites to comply with the licence conditions. A number of the folks who have concerns are those who use distillery by-products in anaerobic digestion. What does all of that mean? Can you give us assurances that those folks have nothing to fear from the changes to the regulations? How will you monitor all of that as we go forward?
I have a couple of things to say in response to that. I will deal first with the questions around the on-going discussions between the whisky industry and SEPA.
Effectively, in order to create a level playing field, we are bringing AD plants that use non-waste feedstocks into the scope of existing regulations on those that use waste feedstocks. Operators who use waste feedstocks are used to the existing regulations. SEPA is in discussion with non-waste AD operators—it is communicating and engaging with them. As I said, that communication is important. Due to the simplification of the regime and the digital interface for applications, there will be heightened communication with the sectors that will be covered by the regulations.
Regardless of whether feedstocks are classified as waste or non-waste, there is always a risk in the operation of an AD plant that contaminants could get into the environment, which is why the regulations are being tightened to level the playing field. The Government has not reclassified AD feedstocks; it has used the definitions from the Pollution Prevention and Control (Scotland) Regulations 2012 and waste management licensing.
You are right that there have been stakeholder concerns. There is anxiety about having to do something new, and anything that stakeholders have not had to deal with before will present an administrative challenge that they would rather not have to manage. SEPA will phase in the changes in recognition of the fact that some operators have not had to comply with the regulations before—obviously, that is an operational aspect that SEPA can discuss—and there will also be flexibility about the appropriate level of authorisation. For example, a waste AD plant in which the activity threshold is more than 100 tonnes would have to apply the best available techniques standard. Everything will be proportionate to the size of the plant. SEPA is mindful of the concerns and is engaging specifically with the whisky industry, because a lot of anaerobic digestion is associated with its stock.
Under the regulations, non-waste and waste feedstocks that are used in anaerobic digestion will have the same rules, so there will be no risk of contamination—or the risk of contamination will be monitored, identified and regulated.
I recognise the ambition to create a level playing field, but sometimes, when regulations come into play, that does not happen. I am sure that you will monitor that to the nth degree.
I know that you recognise the issue of the distilling industry because of your constituency interests. The fact that those AD sites have not had to be authorised and are not regulated to the same degree has allowed for innovation, and I am sure that we would all want that to continue in the industry. Are discussions taking place on the potential impact of the proposed regulatory changes on distilleries that use AD? Will SEPA take all that into account as it gradually begins to regulate? This is a very sensitive area, and I do not think that anyone would want to stop the innovation that is going on. Could I have your comments on that?
10:00
First, I recognise that, in the way in which it powers its distilleries, the Scottish whisky industry, in particular, is one of our greatest innovators when it comes to bringing down production emissions. It has been one of the first movers in the use of anaerobic digestion technology, and the associated biogas, as well as hydrogen technology. We need to applaud that, and we do not want to put in place anything that will limit or diminish that or lead us not to recognise the industry’s impact on reducing the production emissions arising from the making of whisky, or the innovation associated with it.
That is happening not just because the Scottish whisky industry wants to produce the best whisky available for export to the whole world in terms of its taste, provenance and whatever, but because it also wants to be one of the first movers in the food and drink industry in low-carbon production. That is very important to them, and to me, and it is why I am interested in and will be keeping a close watch on the discussions that SEPA will have with the Scottish whisky industry. It is for exactly the reasons that you have highlighted, Mr Stewart.
I am not going to bite on the hydrogen prompt that you gave me, as I would have done normally.
My final question is a very simple one. You say that you are going to take a great interest in the issue, and I think that you recognise that the committee is going to take a great interest in it, too. Therefore, I ask that, as you monitor the situation, you keep committee members up to date on how we are dealing with it, considering the sensitivities.
Yes, I will.
Thank you very much.
Cabinet secretary, you said that SEPA was going to phase the changes in. Given the importance of the issue—you have based your answers on that—how long will that phasing-in process take? Will it be one year, two years, three years, or four?
Again, that is operational stuff for SEPA, convener. [Interruption.] Oh, I do have that information.
I would be surprised if you did not.
The non-waste AD regulations will come into place on 1 April 2028. That means that, in effect, there will be just under two years of working with the sector to get operators content with what is required.
You almost did yourself down by saying that you did not have the information when you did.
Well, I did.
Phil Leeks came to your rescue. Thank you for the answer. The next question is from Michael Matheson.
How many non-waste AD plants do we have in Scotland?
I definitely do not have that information in front of me just now, but we can do an assessment of that. SEPA will be aware of the exact number, and we can certainly get it to the committee, but I do not have it in the information that is in front of me. I am looking at my officials, and I do not believe that they have it either.
So Phil cannot come to the cabinet secretary’s rescue.
No, I am afraid not. It was too good to be true.
I must confess that I am somewhat surprised by that. I understand that there are more than 80 AD plants in Scotland; we are bringing in regulations to cover the non-waste AD plants, but at this stage we do not know how many there are. Do we know that SEPA does know that?
Yes, because it will be in touch with them.
But they are unregulated at the moment, so they will not necessarily be in contact with SEPA.
My understanding is that, ahead of the regulations for non-waste anaerobic digesters being put in place, we will put them out for consultation, but SEPA is in touch with those whom the regulations will affect. If you want detail on that, I can certainly get it from SEPA, and I can write to the committee with it. I am happy to do so, even though I do not have the exact figure in front of me right now.
That is helpful. We have had evidence from stakeholders that, in their view, there was no meaningful consultation with them on the regulations.
If that is the feedback from anaerobic digestion companies and operators, I will take it away and put it directly to SEPA myself.
Okay—that would be helpful.
To pick up on the convener’s point about what phasing in looks like, I would like some clarification regarding non-waste operations that are currently unregulated and will be covered by the new regulations as of 1 April 2028. The committee raised the matter with the Government, which stated in response:
“there may be additional costs for businesses to bring their facilities into compliance.”
With the phasing in taking place over approximately the next two years, a business will be facing significant costs associated with the introduction of the regulations, which they were previously not covered by. Over two years, it might actually make a business financially unviable if the costs are significant.
Given that we might not know as yet what the actual financial costs on some of these businesses will be, what flexibility is there in that regard? Some may come back with seven-figure or eight-figure sums. What scope is there to say, “Well, we recognise that it will take you more than the next 18 months or two years to raise the capital and to make sure the business is financially viable”, and offer flexibility so that a business has the time that it needs to make that type of capital investment?
I would hope that there would be flexibility. SEPA is working on how it is going to bring forward the regulations and implement the conditions. SEPA will be watching today’s committee session, so my message to it would be that we do not want to put anyone out of business.
It is about good will. If businesses want to comply with the regulations—retrofit might be required in some areas—but there is a financial cost associated with that, and it is estimated that complying will take them beyond the specified time limit, I would not want a situation in which they were in breach. I would want SEPA to work with them to get them up to the standard that they have to meet under the regulations in a way that is flexible and collaborative. That is my message. I will also take that point away from this session, and it will form part of the discussion at the next meeting of the group that has been set up; I will put that question to it.
Retrofit may be required in some areas, although I am hopeful that it would not be substantial. I would hope that the organisations that are involved in processing non-waste materials have the highest standards. As somebody who used to be involved in the oil and gas industry, I know that where there is leakage of anything, there is always a cost to business. Businesses do not want to leak product and have high emissions—they want to act responsibly, not just for their environmental credentials but for their bottom line. Any leakage of anything is waste and is money down the drain.
Where there is a case in which there may be substantial costs and time associated with bringing something up to the standard that SEPA wants, I would be hopeful that the organisation would—and I will put it to SEPA directly that I want it to—work with the business on that, and be flexible when necessary.
That is very helpful, cabinet secretary, and I am sure that some in the industry will find that supportive.
My final question is that, although the regulations will be implemented from 1 April 2028, when a business is required to make significant retrofit amendments to its existing facility but cannot meet the financial costs of that within the timeframe, will there be the flexibility for it to have an extended period to allow it to continue and to make the required amendments?
That would be more than sensible.
Is it the expectation that SEPA will allow that?
There is a more general point here. We want to see innovation in energy generation and a reduction in the emissions associated with hydrocarbons. Anaerobic digestion is a way in which we can decarbonise a lot of our processes—the whisky industry has been mentioned. We should be as supportive as possible on that.
Thank you.
I want to briefly follow up what the deputy convener said, because I am also concerned that existing plants might have to be retrofitted, which could be expensive and completely change the business case. I am all in favour of having a level playing field, but we have to be careful that we are not moving the goalposts. Is there a case for having a dispensation in place for existing non-waste AD plants and then having regulations in force for any new plants that come on board?
I would say no. Heaven forbid that existing plants are polluting, as I am hopeful that they are not in any way. I come back to my earlier point that any plant that is polluting is probably leeching money as a result.
The regulations will be put in place over a two-year period to allow businesses the flexibility to get ready for them. Providing such wholesale dispensation would not be a level playing field at all; you would not expect to see that in the regulation of any other type of energy production. I am not sure that it would be the right way to go.
I come back to Mr Matheson’s point. Where a healthy business is generating a profit and is one of the businesses that is helping the industry to decarbonise, we want to do everything to support it. We would not want any such business to go out of business. If there are issues with any particular plant coming up to the standard, we have to look at that on a case-by-case basis and allow some flexibility. That is obviously an operational matter for SEPA, but it will be listening to what has been said today.
We do not want a burgeoning sector—and an important sector for our net zero goals and for the decarbonisation of industry—to be put out of business as a result of any regulation.
I totally welcome that flexibility, but this feels like retrospective regulation. I am concerned that businesses have made decisions on the basis of existing regulations and, as those change, they might have to retrofit and spend more.
I do not agree that this is retrospective regulation. Regulations come into place when issues come up that need to be looked at. Consider vaping, for example. That is an innovation that has happened, but the UK and Scotland are now looking at rules associated with the harms that it causes.
So, this is not changing the goalposts; it is regulating and making sure that we have the tightest environmental and health controls on everything that is possible. It is not regulation for its own sake.
If someone raises a case saying that they had made a financial decision and that the rules have changed, so they will now have to spend a lot more money to operate—I do not know how much that would be; it might be nothing or it might be a lot—are you confident that, legally, that would be okay?
10:15
I hope that my message would be that SEPA should be working directly with that particular company and ensuring that it assists it in every way to come up to the required standards.
Thank you.
Mark Ruskell has a question on this issue and then some follow-up questions on another subject.
I am struggling to understand the difference between waste and non-waste AD. I used to live next to a whisky distillery, and what came out of its back end was definitely waste, to all intents and purposes. Why is there a distinction between waste and non-waste? Is it not the case that those who do anaerobic digestion with waste already have the technology that those doing non-waste anaerobic digestion could just pick up and implement?
It is for SEPA to decide what is waste and what is non-waste. However, I might have to bring in my officials, because I am not an expert on feedstocks and what is categorised as waste and non-waste. If Phil Leeks wants to jump in and say anything, he will be most welcome.
Well, maybe if there is more information—
I just want to make it clear that a lot of us view what comes out of distilleries as non-waste. The draff is used for feeding cattle; therefore, it is food waste, as it is being used by other ruminants.
I would not eat what was coming out of the distillery that I used to live next to, to be honest, nor would I want to smell it.
Perhaps I can reference the brewery sector here, because, as I understand it, this is about trying to create a level playing field with brewing. Is that right?
Very much so. On the original question whether something is a by-product or whether it is waste, I should point out that the definitions in the instrument have not been changed. We have retained the existing definitions. Operationally, it is for SEPA to determine whether something is a waste product or a by-product, through engagement with the relevant sectors.
I hope that that clarifies the matter, Mr Ruskell.
But this is about creating a level playing field with the brewing sector. Is that correct? The brewing sector is covered by the waste aspects, even though it is still using a natural feedstock.
It comes back to the classification and whether the feedstock has been defined as waste through the regulatory authorities or has been classified as a by-product. Those are defined in the pieces of legislation that we have brought across from the previous waste regime. I am not an expert in the area, though—I would have to go back to SEPA on that.
I have in front of me some definitions and the schedules that they relate to. Waste feedstock permit level activity is set out in proposed new schedule 20 to the 2018 regulations, as inserted by schedule 11 to the amendment regulations, while permit level activity for non-waste feedstock is set out in proposed new schedule 26 to the 2018 regulations, as inserted by schedule 17 to the amendment regulations. SEPA determines the environmental limits. I hope that that is helpful.
I am trying to give you as much information as possible, but I think that SEPA is, as Phil Leeks has said, the determining body as to whether something is waste or non-waste. That is the discussion that it is having at the moment with the Scotch Whisky Association.
I will be pushing SEPA, if it is listening in, to answer that question, and I am sure that you will bring it to its attention, too, cabinet secretary.
Mark, you have some questions on another subject. I want to give you a couple of chances to develop them.
Something that is not included in the regulations is ammonia emissions. My understanding is that the large industrial point-source emissions of ammonia from pig and poultry units are covered by the PPC regulations. They are already covered as industrial units under EU law, and under our laws, too.
However, there is an issue with other, larger collective sources of ammonia, which are not covered by any kind of regulation at all. As I understand it, the Government has, with those sources, decided to go down the route of best practice and codes of conduct with the industry. Having made that decision last year, can you tell us what progress is being made on tackling that greater source of ammonia emissions, which is causing air quality problems, particularly in rural areas?
A number of pieces of work are being done on this particular issue, but an awful lot more work and research still needs to be done. For example, Scotland’s Rural College is developing tools for land managers to reduce ammonia emissions; the work involves a process of communication with land managers so that we can get good practice on this, and I want that to be developed and disseminated among land managers before we consider anything associated with regulation.
The project will also provide us with evidence to demonstrate the benefits of mitigation measures on commercial farms and to support the identification of future regulation that might have to be introduced. The EU is looking at ammonia emissions, too; again, we will keep a watching brief on that with regard to alignment, but by the end of next year, the EU will have assessed whether there is a need for further regulation of the ammonia emissions associated with livestock. Of course, we are not waiting to see what happens in the EU, as important as that is—we are doing work in that area with the agricultural college.
Obviously, we want best practice on reducing ammonia emissions to be followed voluntarily before we consider whether anything might need to be done through regulation. That work is going on at the moment.
In the last cleaner air for Scotland strategy, which was published in 2021, there was a commitment to bring in that code of practice. Is that work now really quite behind schedule?
Not really. The reduction of ammonia emissions has been incorporated into existing codes of practice; for example, there is the “Prevention of Environmental Pollution From Agricultural Activity”. Instead of having a completely different document and code of practice, we have brought ammonia emissions into an existing code of practice. That work has been done.
If, in the future, the EU decided to change that threshold and bring more intensive livestock units under regulation, and the Government decided that there was a strong evidential basis for such a move to do with air quality and everything else, what would be your next steps? At the moment, it seems that the focus is on a firm voluntary approach with a code of practice. If the EU were to move towards widening the scope of regulations, would the Government engage early on with the agriculture industry on what the best-available technologies would be? They might even include anaerobic digestion, so the industry might need more time to think about how it would implement them. Does the Government have a commitment to move forward in that respect?
As I have indicated, we are not waiting for the EU to decide something and then saying, “How do we figure out the alignment bit?” The SRUC is doing work on good practice, and it has a route into working with land managers in order to evidence what is happening at the moment, the acceptance of mitigation measures and how widespread that good practice is. That will inform what we would do, if the EU were to decide to bring in regulations on that. Obviously, we will assess that at the time.
If the code of practice does not work and does not bring down ammonia emissions, will you regulate?
I am hopeful that it will make a difference. The SRUC has a very good reputation in the work that it does with land managers to bring forward innovative practices that are good for the environment.
Okay.
As that brings us to the end of our questions, we move to the next agenda item, which is a debate on motion S6M-16752. Cabinet secretary, I am sure that you will want to move the motion, but do you want to speak to it?
I will just move it, convener.
Motion moved,
That the Net Zero, Energy and Transport Committee recommends that the Environmental Authorisations (Scotland) Amendment Regulations 2025 [draft] be approved.—[Gillian Martin]
Motion agreed to.
The committee will report the outcome of the instrument in due course. Is the committee content to delegate authority to me as convener to approve the draft report for publication?
Members indicated agreement.
I thank the cabinet secretary and her officials, and I briefly suspend the meeting to allow a changeover of witnesses. We will start again at 10:30.
10:25 Meeting suspended.