Net Zero, Energy and Transport Committee

Meeting date: Tuesday, June 27, 2023

Official Report 633KB pdf

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United Kingdom Subordinate Legislation

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Persistent Organic Pollutants (Amendment) Regulations 2023

Our next item is evidence on a type 1 consent notification on the Persistent Organic Pollutants (Amendment) Regulations 2023.

The United Kingdom Government is seeking the Scottish Government’s consent to legislate in an area of devolved competence in respect of a UK statutory instrument. On 18 June, the Cabinet Secretary for Transport, Net Zero and Just Transition notified the committee of the UK instrument. The Scottish Government asked whether the committee could, exceptionally, consider the regulations by 28 June, in order to complete parliamentary consideration before the summer recess. I agreed to place the item on the agenda for this meeting.

The committee’s role is to decide whether it agrees with the Scottish Government’s proposal to consent to the UK Government making the regulations within devolved competence, and in the manner that the UK Government has indicated to the Scottish Government. We aim to come to a view on that after today’s evidence.

I am pleased to welcome back Màiri McAllan, Cabinet Secretary for Transport, Net Zero and Just Transition. The cabinet secretary is joined by Dan Merckel, chemicals team leader from the Scottish Government. Before we move on to questions, would you like to make a brief opening statement, cabinet secretary?

I will be as brief as I can, convener, although sometimes in such complex matters it is helpful to set out the discussion in the clearest terms possible.

I am here to discuss a proposed UK statutory instrument to extend the expiry date for the specific use of a chemical called perfluorooctanoic acid or PFOA, which is a persistent organic pollutant that is regulated under the UK POPs regulations.

The purpose of the amendment regulations is to extend the expiry date from 4 July 2023 to 3 December 2025 to allow the continued use of PFOA in specialist textiles for oil and water repellency, for the protection of workers from dangerous liquids that comprise risks to their health and safety.

The UK POPs regulations implement the Stockholm convention in the UK. POPs are chemicals that remain intact in the environment for long periods and become widely distributed geographically, accumulate in the tissues of humans and wildlife, and have harmful impacts on human health or the environment. POPs therefore present a risk to the environment and people that extends beyond national borders and so require a coordinated international response.

The chemical commonly known as PFOA was listed as a POP under the convention in 2019 and is subject to elimination. That means that it cannot be made, imported, sold or used in signatory countries. Several time-limited exemptions are included in its listing, reflecting the continued need for its use in a number of critical applications in signatory countries. One such use is the subject of the UK statutory instrument. The use of PFOA is required for a defence-critical capability; the use is small, critical and the chemical is used and disposed of by professionals.

Having considered the matter, I am happy that that use presents a very low risk to the environment. I am less happy about the timeframe in which the Scottish Government has been asked to respond, and consequently the impact that that has had on the committee’s schedule. However, I understand that there were good reasons for the timescale and that ministers and officials in the UK Government alerted us as soon as they were able to. The committee should also note that the UK Government is having to break its own 21-day rule in order to lay the instrument before 4 July 2023.

In summary, I consider consenting to the UK instrument to be an appropriate course of action to allow continued access to a critical defence function, and its availability across Great Britain, including Scotland.

Thank you, cabinet secretary. I am sure that you are happy to take questions. The first one is from Mark Ruskell.

Am I right to say that PFOA is what is known as a forever chemical and that those are being banned under the regulation on the registration, evaluation, authorisation and restriction of chemicals? Is PFOA scheduled for withdrawal from the market under the REACH regulation?

Yes. I think that the phrase that I used in my opening remarks was that it was scheduled for elimination, but I will let Dan Merckel give us a brief update on that in the context of perfluorinated and polyfluorinated substances, or PFAS.

Good morning. Yes, it is one of the few PFAS chemicals that have already been banned. There is a small number of those, and PFOA is subject to complete elimination under the Stockholm convention.

The work that you refer to in the UK is much broader and is looking at PFAS chemicals as a whole, which is a class of more than 4,700 chemicals, depending on how you count them. The Health and Safety Executive, which is the agency for the UK REACH regulation, published a risk management options analysis earlier this year, which made recommendations on how to regulate those chemicals as a whole. Those actions will be taken forward, starting with work this year under UK REACH that will be published shortly.

Before you ask your next question, Mark, I think that part of your question was not answered, because I think that you referred to withdrawal from the market. It would be helpful for the committee to know about that. Mr Merckel, it is not a market, is it? Is it not correct that that chemical has one specific use?

Yes, we are talking about just one specific use today. There is currently an exemption under the UK POP regulations.

Therefore, it is not being sold.

That is right.

Generally speaking, PFOA is not available in a wider market. There is just the single exemption that we are discussing today, so I will turn to that matter. Is it the case that the Ministry of Defence or defence-related contractors apply for exemptions from environmental regulation? On the face of it, if you are a civil contractor wearing protective clothing, the use of PFOA in that clothing would be banned, whereas if you are working in a defence-related sector or industry, its continued use is allowed. Therefore, there is a bit of divergence between the situation for people who are working in defence-related industries and the situation for people who work in civilian areas, where there is no exemption for that chemical. It might be a minor divergence, but I wonder how those issues are discussed and resolved. Is it something that you just have to accept—that is the decision that the UK Government has made on that—or is there a protocol with the MOD or defence sector more generally around lower or different environmental standards?

Dan Merckel might want to say something about the interaction with the UK Government and the MOD. What makes answering that difficult is that we are limited in the information that we can give regarding the specific use of the chemical. It is for a defence-critical capability. It is small and critical and the chemical is used and disposed of by professionals, so it pertains to that specific use, the exact details of which we are not liable to share.

The other critical point is that the current scientific research suggests that only that substance provides the high level of protection that is required for that unique capability, which is why that exemption is required in that instance. There might be nothing to add on the MOD aspect.

Okay. Am I right that its use will be phased out by 2025 anyway?

That is the plan, yes.

Are you happy with that, Mark, or do you want to hear from Dan Merckel?

I am happy, unless Dan has anything more to say.

The only thing that I would add is that PFOA is still also restricted under UK REACH. When that restriction was put in place—it includes very similar provisions to those of the Stockholm convention—there was a thorough consultation in the EU, because we were still in the EU at the time, and that is where that date of 4 July 2023 comes from.

I emphasise that we are not entirely clear on the exact use, but we do not need to know that from the point of view of environmental risk. However, for the other uses, there are alternatives that will be sufficient for the application in question.

Cabinet secretary, you said that only that particular substance, PFOA, can be used, and that there is no substitute or alternative, so what happens on 3 December 2025? Does the need for it just disappear, or does the UK Government move away from its Stockholm obligations? Has that conversation been had with the UK Government?

I would not expect either of those things to come to pass. The reason why the extension is required just now is that the technical progress on an alternative has not reached a sufficient stage, as I understand it. I expect that the extension would focus the work on that technical alternative and give the time to develop it. That is our expectation anyway.

Scrutinising in the dark is a bit odd, cabinet secretary, but I appreciate what you say. In our committee papers, the Government says that

“Continued use is required for a defence-critical capability; the use is small, critical and the chemical is used and disposed of by professionals.”

Have you had reassurances from the UK Government on the monitoring and reporting of that to make sure that there are robust protocols in place, rather than an assertion that there are robust protocols in place?

I emphasise that it is a continuation of a use that it already has. I am not aware of what the specific monitoring and reporting requirements would be, but all that we are doing here is changing the deadline for that use to stop. Everything that is in place to make sure that the chemical is used safely will continue.

I am not minded to oppose that. I get that it is based on trust as much as anything, but I wanted to ask those questions to get some of that on the record. Thank you.

That is helpful. If there are no other questions, we will consider the consent notification. Cabinet secretary, as you have answered all the questions that you have been asked, I am content if you would like to leave at this stage. I thank you again for your attendance for both evidence sessions this morning.

Thank you very much.

Agenda item 4 is to formally consider the type 1 consent notification by the Scottish Government relating to the Persistent Organic Pollutants (Amendment) Regulations 2023 in light of the evidence that we have just heard. If members are content for consent to be given, we could write to the Scottish Government and ask it to keep us up to date on developments at a reasonable stage in the future. We could also write to the Government and say that we are not content.

Is anyone on the committee not content to grant consent? It appears that we are all content to ask the Government to grant consent. It would therefore be appropriate if the committee agreed that we ask to be updated in a year’s time to find out how we are moving forward on finding an alternative. That might be the most appropriate thing to do. Is the committee content to do that?

I am content with that course of action. It is a slightly odd situation because of the defence-related nature of the chemical’s use. There is a lack of transparency there. Bob Doris’s points on that are well made. Perhaps there will be an issue about ensuring that there is adequate opportunity for scrutinising how the Ministry of Defence applies environmental management and wider health and safety requirements.

We are taking it on trust that there is a defence-related use of the chemical and that it will be dealt with in a responsible way, but there is no real way for us to scrutinise that. It is worth putting on the record that this is not the only area that I have come across in this committee and in predecessor committees where environmental regulation has come up against a defence exemption. You are left wondering what the actual protocols and protections are for workers and the environment in the Ministry of Defence and related industries.

We could, as part of writing to the Scottish Government, say to it that we would like to be kept updated and that we would like comment from it on whether it feels that sufficient protocols are in place for disposal after use. We could easily do that as part of the letter.

My understanding is that, in the past, there has been a memorandum of understanding between the Scottish Government and the Ministry of Defence on a range of areas, most notably environmental compliance, habitats regulations, environmental management and that side of things. Obviously, this strays more into health and safety. It is clear that there is environmental compliance in the Ministry of Defence, but scrutinising that is pretty hard. This is another example of that. Such examples come up from time to time.

This is a very helpful discussion. In any letter that is sent, it would be worth asking whether such protocols have previously existed, what the current situation is, and whether consideration has previously been given or could be given in the future to how committees in the Scottish Parliament can appropriately scrutinise such matters. I am sure that we all agree that it is absolutely necessary but deeply unsatisfactory that what has been proposed has been proposed within days of the expiration and that there is no meaningful scrutiny. It has all been taken on trust.

Okay. I take that point. The committee could easily write a separate letter to the Government to ask it to identify that.

The substantive question is, is the committee content that the provision that is set out in the notification should be made in the proposed UK statutory instrument?

Members indicated agreement.

We will communicate that to the Government. That concludes the public part of the meeting.

11:31 Meeting continued in private until 12:39.