Rural Affairs and Environment Committee, 11 Nov 2009

Meeting date: Wednesday, November 11, 2009

Official Report 281KB pdf

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Subordinate Legislation

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Water Environment (Groundwater and Priority Substances) (Scotland) Regulations 2009 (Draft)

Agenda item 2 is evidence on the draft Water Environment (Groundwater and Priority Substances) (Scotland) Regulations 2009, which is an affirmative instrument. I welcome the Minister for Environment, Roseanna Cunningham; Francis Brewis, who is team leader in the Scottish Government's water pollution control team; and Stephen Rees, who is a solicitor in the Scottish Government's solicitors food and environment division.

The Subordinate Legislation Committee's comments on the draft regulations are reproduced in paper RAE/S3/09/27/6. Agenda item 2 enables members to ask questions about the content of the draft regulations before we move to the formal debate under agenda item 3. Officials can speak under agenda item 2, but they cannot participate in the formal debate.

I invite the minister to make a brief opening statement on the draft regulations.

I am pleased to be here to discuss the draft regulations, which will implement the revised groundwater directive and the priority substances directive, both of which are daughter directives of the water framework directive. The draft regulations underpin the aims and objectives of the water framework directive and set out additional provisions to protect groundwater from all substances that are liable to cause pollution. They develop our legislative framework for protecting the water environment from the impacts of hazardous substances. We already have a legislative and operational framework in place in Scotland to implement the water framework directive, and we have been able to incorporate the additional requirements of the daughter directives into that framework relatively easily.

I will say something briefly about the background to the draft regulations. In 2000, the water framework directive established a framework for Community action for the protection and improvement of our water environment. In Scotland, the requirements of the directive are transposed through the Water Environment and Water Services (Scotland) Act 2003, which is better known as the WEWS act. The measures to control inputs into the water environment are contained in the Water Environment (Controlled Activities) (Scotland) Regulations 2005, which are known as CAR.

In March, we issued a consultation paper on our proposals to implement the two daughter directives. There was a generally positive response, and the draft regulations take that consultation into account. They set out the consequential amendments to the WEWS act and CAR to reflect the additional requirements of the daughter directives. It makes sense to implement both directives through one instrument.

Our legislative framework is designed to protect and improve the water environment in Scotland in a way that balances environmental, economic and social objectives. It requires the Scottish Environment Protection Agency to control activities that may have an impact on the water environment and to consult the many parties that have an interest in water. In doing so, SEPA aims, through the river basin management planning process, to achieve a balanced approach that takes account of both the quantity and quality of water, including measures to address climate change and flood risk management. Therefore, there are a number of substantive provisions for the protection of surface waters and groundwater. SEPA has powers to prohibit actions that could result directly or indirectly in the discharge of polluting substances into the water environment, and it is expected to exercise those powers to ensure that there is an effective balance between the protection of our water environment and the interests of those who depend on that environment.

The draft regulations will amend the WEWS act to require that SEPA and other responsible authorities take account of the two daughter directives when they exercise their functions. They amend CAR and replace the previous approach of listing certain hazardous substances in legislation with one that defines "hazardous substances" as those that are

"toxic, persistent and liable to bioaccumulate"

and which requires SEPA to maintain and publish a list of hazardous substances. The Subordinate Legislation Committee drew attention to that change. The current regulations include a list that refers to groups of substances, such as "organotin compounds", but now SEPA has on its website a detailed list that specifies those substances—for example, "tributyltin" or TBT. That is an improvement in terms of certainty and transparency.

The Subordinate Legislation Committee asked questions about the way in which future amendments to the list will be made. I assure the committee that there is a robust process, involving expert advisory committees and consultations, before substances are added. I can provide the committee with more detail on that, if members would like.

The other consequential amendments update the primary and secondary legislation to which SEPA must have regard in its decision making under CAR. We have also taken the opportunity to revoke four sets of regulations that were made under the old dangerous substances directive, as those are either superseded or addressed through directions issued to SEPA on behalf of Scottish ministers.

The draft regulations complete the transposition of the two daughter directives of the water framework directive and update arrangements for the effective and proportionate regulation of the water environment in Scotland. I am happy to answer any questions that the committee has. If I cannot answer a question, I hope that one of the officials will be able to do so.

Can you provide us with more detail on the expert committees that will advise you on what are dangerous and hazardous substances? It appears that you will leave decisions on the matter to SEPA. I am not questioning its ability, but is it sufficiently well informed to be able to define such substances? I presume that it will be in the hands of experts, who will provide it with information.

The committees in question are existing expert advisory groups that are already working for the Scottish Government. If you want me to give chapter and verse on what those groups are and who is involved, I can follow that up. I do not have information on the groups' membership with me.

The main work has been done by the United Kingdom technical advisory group for the water framework directive, which is a partnership of technical experts from across environmental protection and conservation agencies. Its scientific regulations are put to ministers for consideration.

Are you seeking information on the membership of the committees?

We just want to satisfy ourselves that the Government is satisfied that the level of technical expertise advising SEPA will be sufficient to deliver all that the draft regulations are intended to do.

We are.

In your opening statement, you sought to address the Subordinate Legislation Committee's concern about delegation of responsibility to SEPA. Paragraph 8 of the committee's report states:

"There is no requirement on SEPA to publish its intention to change the list of identified hazardous substances."

The potential risk with any list is that it may not always be obvious that changes such as the addition of certain substances or the provision of more detail have been made. Can you provide the committee with an indication of the specific requirement that has been placed on SEPA? How can changes be highlighted, instead of being submerged in a longer, pre-existing list of substances?

SEPA will hold a list that any member of the public will be able to check. The list will be freely available on the SEPA website, so it will be accessible by anyone. That will provide the necessary transparency. The difficulty in this area is that scientific knowledge changes regularly. The process that we propose will make it far easier for us to update the list more flexibly, so that we will not have to come back to Parliament every time we think that a new substance should be added.

Those who work in the water environment will know that the list is where to go for accurate information. It will also be more detailed than before. Previously, groups of substances, rather than specific substances, were listed, but that system relied on people knowing that a substance was part of one of the groups, and people did not always know that.

The concern is about how changes will be brought to the attention of those who work in the water environment. One assumes that what has gone before and the current arrangements are fairly well understood, but perhaps the Subordinate Legislation Committee's concern—it is certainly my concern—is about how the list is intended to be changed on the basis of evolving scientific information and evidence.

Changes will not be made without consultation or arbitrarily—they will be made after consultation. When the advice is that a new substance should be added, SEPA will follow a consultation process. We are trying to avoid constantly returning to Parliament every time that a change must be made and to allow SEPA to make changes on a rolling, more transparent basis.

Will that process allow appeals or an opportunity to challenge robustly whatever changes SEPA proposes?

Yes, but SEPA will not propose adding a substance unless an expert advisory committee has notified it of that substance. That is how the process will work.

Are we talking about new groups of substances that are not listed in the current legislation, new compounds that are in the existing groups of substances, or both?

We could be talking about both. We expect to talk about specific substances rather than groups of substances. On the basis of their knowledge, scientists might add specific substances, or specific substances in a new group.

The idea is not to talk about groups, because talk of groups makes it harder for people to understand precisely which substances will be caught. Although I am not a scientist, I understand that new groups of substances might give rise to concern, but we will still expect specific substances to be listed.

For specific substances that fall into existing groups, it could be argued that the new situation will be an improvement. Under the current system, such substances are automatically added, but people do not know that unless they are organic chemists. The new system is at least far more transparent.

The feeling is that the current situation is not as transparent, because it deals only in groups of substances. It is far fairer to potential users to list substances precisely. As you say, a person who is not an organic chemist does not automatically know what a generalised group contains.

I declare an interest as a farmer. Perhaps I am missing the point, but I am concerned about occasional users of pesticides or sheep dips, for example. Is there no danger that farmers who are occasional users will inadvertently break the law because a substance's designation changes from one month to the next and—possibly—they do not look at websites every day?

I presume that such people could be in that position now—occasional users who do not update themselves on what is and is not required might make mistakes now. If they are advised that a group of substances is not to be used, they might already inadvertently do themselves an injustice unless they check whether a substance that they have—that is named on a label, for example—falls within or without that group.

The matter is one of the constant difficulties for Government. We make the information publicly available and ensure that folk know that it is there. If individuals have the slightest concern or doubt, they are able to access the information quickly and easily. The occasional user should still know that some substances may be problematic, in which case, he or she had better check whether the one that they use is okay. That is as much as we can do. If we were to write to every potential user listing the current substances and advising them how they could update themselves as and when necessary, no doubt half the letters would go in the bin. I am not sure that there is a simple way to ensure that everybody pays attention all the time, but the Government must make it as easy as possible for users to find out the information that they need to know.

I presume that SEPA could make a point of contacting overarching bodies such as the NFU Scotland so that, if it listed a new chemical that it knew was used in sheep dip, it could tell the NFUS, which could help to inform its members. There must be ways of ensuring a greater level of communication.

Yes. I hope that that happens anyway. I am not certain that it hangs on the back of the draft regulations.

The farming press is pretty good at publicising such matters.

How regularly will the website be updated? If it was updated monthly, for example, regular users would know to check every month to ensure that a substance had not been added to the list. Will it be updated as concerns are raised about a substance?

We do not anticipate a requirement for monthly updates. The website will be updated as and when a substance is ascertained to be potentially dangerous and we are advised that it should be added to the list. I cannot say how frequently that will take place, because it is a matter entirely for the scientists, but we do not anticipate it being as frequently as once a month.

I am thinking about users. If the website was updated every three months, they would know that, every three months, they had better check whether the substances that they use are okay. However, if it was updated as and when, people who use a chemical regularly would have to check more or less daily to ensure that it had not crept into the list.

That is the opposite of the occasional user. I understand your point, but I am not sure that there is an easy answer to it. As well as making the information available and ensuring that people know where it can be obtained if they need it, we rely on the normal process of publicising such changes. We expect that, if there were consultations at any point on the potential addition of specific substances, the specialist press, such as the farming press—although users are not always farmers—would be interested in the fact that there was a consultation. I know from experience that, if ordinary garden chemicals are being considered, virtually all the gardening press carries the information regularly. That happens frequently. I hope that such responses will be part and parcel of what happens. We will make the information freely available in detail on a website that will be accessible to everybody. I guess that we have to rely on the individuals who use the substances to exercise a certain amount of common sense.

Could you give us a brief outline of the consultation process that SEPA would undertake if a change was made to the status of an agricultural chemical, and who would be the stakeholders in such a consultation? It will be useful for us to understand the process if SEPA seeks to add a substance to the list. At the moment, substances are added through regulations that come before the Parliament, so it is obvious to everybody that it is happening. What will the new process be?

We have not had any changes in the list of hazardous substances, which tends to contain groups of substances, in recent times, but it is possible that there will be changes. In practice, changes in environmental quality standards are more common—such changes are already the subject of consultation.

SEPA will be able to put out any consultation document to trade organisations and interested parties—there is normally a 12-week consultation period. We expect that to happen when the committee that covers the UK and the Republic of Ireland comes up with recommendations for additions to the list of hazardous substances.

I want to be clear about the process. A recommendation comes forward to SEPA from the scientific panel—

That is, the UK technical advisory group.

SEPA then says, "Okay", and puts out a 12-week consultation to relevant stakeholders, who can respond before it makes the change—I assume that the recommendation would go ahead.

SEPA would take account of responses to the consultation that were received during the consultation period.

I assume that if the scientific advisers say that something should be on the list, it will go on the list.

The presumption is that it will go on the list, but the consultation allows the potential for the presumption to be rebutted.

I am interested in Mr Brewis's comment about what has happened in the recent past. When I read about the draft regulations I assumed that the rate of additions or changes to the list has been such that the new approach is regarded as the best means of expediting the process in the most transparent and efficient fashion. However, from what Mr Brewis said it seems that there have been no great changes to the list in recent times. Therefore I wonder what prompted the decision to delegate authority to SEPA rather than go down the route of laying an instrument before the Parliament, which is a transparent process, as Karen Gillon suggested.

I assume that one of the reasons is the move from talking about groups to talking about specific substances, because that opens up the potential for changes to happen a little more frequently than they have done in the past. We do not anticipate changes being made on a monthly basis, but once we move away from talking about groups and start talking about specific substances we open up the possibility of rather more frequent changes.

We do not want to be in a situation in which we get scientific advice in June that a substance should be added, so we try to put a statutory instrument through before Christmas, but then in November the scientific advisers come along with another recommendation. There is a slight concern that that could happen, although I am not saying that it will happen. The current approach is to talk about whole groups, which by definition will not change anywhere near as often as specific substances might need to be added.

We move to the formal debate on the draft regulations. I remind members that officials cannot participate in the debate, and I invite the minister to move the motion.

The draft regulations implement the additional requirements of the revised groundwater directive and the priority substances directive over and above those in the existing domestic legislative framework. I therefore commend them to the committee.

I move,

That the Rural Affairs and Environment Committee recommends that the draft Water Environment (Groundwater and Priority Substances) (Scotland) Regulations 2009 be approved.

Motion agreed to.

I thank the minister and her officials for their attendance.

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Rural Development Contracts (Rural Priorities) (Scotland) Amendment (No 3) Regulations 2009 (SSI 2009/335)<br />Pollution Prevention and Control (Scotland) Amendment Regulations 2009 (SSI 2009/336)

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Sea Fishing (Enforcement of Community Quota and Third Country Fishing Measures and Restriction on Days at Sea) (Scotland) Amendment Order 2009 (SSI 2009/338)<br />Welfare of Animals (Transport) (Scotland) Amendment Regulations 2009 (SSI 2009/339)

Agenda item 4 is consideration of four negative instruments. The Subordinate Legislation Committee has commented on SSI 2009/335 and SSI 2009/338, and the relevant extracts of that committee's report have been circulated to members in paper RAE/S3/09/27/6. No member has raised any concerns, and no motions to annul have been lodged. Do we agree not to make any recommendations in relation to the instruments?

Members indicated agreement.

Before we proceed to item 5, I remind members that I will suspend the meeting at 11 o'clock to observe two minutes' silence for remembrance day. There will be an announcement on the public address system.