Environment, Climate Change and Land Reform Committee

Meeting date: Tuesday, September 24, 2019

Official Report 500KB pdf

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Subordinate Legislation

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Environmental Protection Act 1990 Amendment (Scotland) Regulations 2019 [Draft]

Our third agenda item is evidence on the draft Environmental Protection Act 1990 Amendment (Scotland) Regulations 2019. The Minister for Rural Affairs and the Natural Environment, Mairi Gougeon, is staying with us. She is joined by Elspeth Macdonald, the Scottish Government’s policy adviser in this area. I invite the minster to take us through the draft instrument.

Thank you. The regulations amend section 57 of the Environmental Protection Act 1990 to ensure that ministers’ power to direct holders of a waste permit to accept, keep, treat or dispose of waste covers all kinds of permits.

Currently, under section 57, ministers have the power to direct holders of a waste permit to accept, keep, treat or dispose of waste. However, that power does not extend to holders of permits that were issued under the Pollution Prevention and Control (Scotland) Regulations 2012, including, for example, larger industrial installations and waste incinerators. The power also does not extend to operators that rely on exemptions from the waste management licensing regime. Essentially, the regulations will rectify that so that all operators that handle waste can be subject to the power of direction.

Section 57 is a failsafe provision that is for use in circumstances in which the normal regulatory powers fall short or have been exhausted, such as where sites have been abandoned or where an operator becomes bankrupt. It can be used only to prevent harm to human health or the environment.

The power has—so far—not been used, but, as the Cabinet Secretary for Environment, Climate Change and Land Reform stated in her letter to the committee,

“In circumstances where the UK may be leaving the EU without a deal then there is a greater risk of failures in the market, and a greater risk that Ministers will need a viable power to direct waste holders and operators on the treatment and disposal of waste.”

The power of direction can be exercised only for the purpose of preventing damage to human health or harm to the environment.

I am happy to take any questions that the committee has on the regulations.

I am trying to get my mind around the scope of the regulations. I have a specific question relating to the disposal of hospital waste and the difficulties that arose when a commercial company that was involved in that failed. Are such issues caught by the regulations? Will there be a new regulatory regime around such situations? In particular, as I understand it, a lot of hospital waste—perhaps all of it—is subject to incineration, to which the minister made specific reference. Is that caught by what is proposed? Would the regulations have been of benefit in dealing with the situation that we found ourselves in, albeit that that related not necessarily to a failure of waste management but to the commercial failure of a company?

I am sorry—I will hand over to Elspeth Macdonald for that question.

The power that is in existence now would not have applied in the circumstances that Stewart Stevenson talked about. However, the power of direction would apply in such circumstances in future. Nonetheless, the power of direction would only ever be used as a power of last resort. Members may be aware that SEPA, the liquidator and various other parties are involved in sorting out the issue that Stewart Stevenson talked about, so I cannot answer the question fully. However, the extension of powers would add the power of direction to the list of options that are available to deal with such a situation.

I emphasise that, as I said in my opening statement, we are talking about a failsafe power; it is not a power that we have had to use under the 1990 act. However, in preparing and considering contingency plans for Brexit, we realised that the area needed to be rectified so that all handlers of waste are covered by the same regulations.

Three out of four respondents to the Scottish Government’s website consultation commented on the lack of an appeal mechanism. I think that it was you, minister, who considered that there was no need for a right of appeal. Will you talk the committee through why you consider that not to be necessary?

A few different issues were raised through the consultation, one of which was the lack of an appeal process; another was a point about consultation.

Essentially, this is a failsafe power and one that we would use only in an emergency to protect the environment or human health, and the fear is that an appeal process could delay the taking of action. If we were in extreme circumstances in which we were talking about threats to human health and the environment, we would need the power to be able to take action immediately, rather than having to wait and face the potential consequences if there was a delay.

I want to go into that a bit further. As an example, let us say that immediate action is taken because there is a threat to human health or the environment, but the situation involves a commercial or industrial business going into liquidation or bankruptcy. What happens if there is a right of appeal but nothing is found? How would that business have any comeback?

I know that we are talking about a different power, but would it be related in any way to a situation in which there was found to be no threat to human health or the environment? Is that just something that would move on past this?

I am sorry—I want to try to understand the question. Are you asking whether that would supersede—

Yes.

Are you asking how we would determine an immediate threat to human health or the environment?

Yes.

With regard to issues that arise just now, we are in constant discussions with SEPA, and SEPA is in constant discussions with all the waste operators. Therefore, I would hope that we would never find ourselves in that situation—and, luckily, so far we have not. Are you asking about what would happen if a company went bankrupt during the process of having to deal with the waste and looked at the situation afterwards?

It is a possible situation. You have just said that the power is a failsafe and has never been used. It is perhaps a hypothetical scenario, but I am trying to work out what would happen. You believe that there will never be a problem, but perhaps a company that was subject to the power might want an appeal. There is a clear issue here, because three or four respondents to the consultation questioned the lack of such a right, and there were only 10 respondents in total. Nearly half those who responded asked why there was no right of appeal. There must be a reason behind that, regardless of whether the power is just a failsafe.

I understand why people may wish to consider an appeal or have it as an option. However, I say again that if we were facing a scenario in which there was a threat to human health or a significant threat to the environment, we would need to have the power to be able to take action immediately. I do not know how long an appeal process could take. The regulations are about ensuring that we have the power to deal with such immediate threats.

The power would only ever be used if there was, in the view of Scottish ministers, clear evidence of such a risk. They would take advice from SEPA and anybody else who chose to give evidence, but the power would not be exercised in isolation in any sense whatsoever. The alternative of harm being caused to human health or the environment would, in such circumstances, outweigh the suggestion of a right of appeal.

Is the instrument preparing for a predicted increase in incineration?

As I said, we have been going through contingency planning for Brexit, and that is what the regulations are designed to deal with. Going through that process flagged up that some waste operators—for example, the larger industrial installations and those under the specific exemptions that I mentioned—should be covered by the power of direction. We are really just ensuring that all operators of waste are subject to the same direction.

I have a simple question. Is there any predicted increase in cost to waste operators with the introduction of the power?

We would not expect there to be an increase in cost.

As everyone has finished asking questions, we move to the fourth item on the agenda. I invite the minister to move motion S5M-18936.

Motion moved,

That the Environment, Climate Change and Land Reform Committee recommends that the Environmental Protection Act 1990 Amendment (Scotland) Regulations 2019 [draft] be approved.—[Mairi Gougeon.]

Motion agreed to.

We will have a short suspension to allow the minister and her officials to leave.

10:00 Meeting suspended.  

10:00 On resuming—