European and External Relations Committee, 01 Feb 2005

Meeting date: Tuesday, February 1, 2005

Official Report 139KB pdf

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Waste Incineration

Item 7 concerns a note from the committee's legal adviser on the burning of sewage sludge pellets as fuel at Longannet power station. The matter was raised at our previous meeting by John Home Robertson, who expressed concern about the issue, which has been the subject of media comment and attention. More particularly, it has been the subject of a court action—which was determined only recently—involving Scottish Power and agencies of the Scottish Executive, principally the Scottish Environment Protection Agency, in relation to the enforcement of European law. The note that has been prepared comments on the issues that are at stake and the legislative instruments that have driven the debate.

Before I open the matter up to discussion, I remind committee members that the issue is still within the sphere of the courts. I am not saying that it is sub judice, but I encourage committee members to be mindful of the implications of any remarks that they make.

Perhaps Ailsa Heine, our legal adviser, would like to say something.

I have nothing to add to the paper at the moment, unless committee members have questions.

I am grateful for the paper, although I am depressed by it, because it confirms what we had understood from press reports, which is that two executive agencies are opposing each other in the courts over the interpretation of a piece of European legislation, and that what was intended to be a constructive initiative to dispose of waste in the most efficient and environmentally friendly way possible is suddenly giving rise to serious difficulties. That is an absurd state of affairs. The committee could do with some definitive understanding of what the relevant European legislation says. If Scottish Power has picked up the wrong end of the stick, let us try to understand that; if not, why is one executive agency wasting time and money entering into legal action against another?

The situation is depressing. We have problems with sewage disposal and we have taken all kinds of remedies to try to remove the problems in line with EU regulations on clean water and goodness knows what, but there is now no solution to what to do with sewage waste. We have problems with using it on the land and we now have problems with burning it. From my past experience in the electricity industry, it seems to me that we already have fairly stringent rules on air emissions under generation practice. Providing that burning waste pellets does not exceed those emission limits, we are putting a block on recycling. Whether the fault lies in Europe or in the way that the legislation is interpreted in Scotland is now incidental, given that the issue will be decided in the courts, but it is a case of well-intentioned legislation creating mayhem.

The paper refers to "huge capital investment" being required of Scottish Power if it is to bring the plant up to the standard of the more stringent emission controls for waste incineration. Do we have an idea of how much that "huge capital investment" would be?

No, that was not specified anywhere. Scottish Power simply stated that vast capital investment would be needed to install the equipment to ensure that the emission controls were complied with.

The paper also says:

"SEPA were apparently acting in accordance with a Direction from Scottish Ministers."

What exactly was the direction? Did ministers instruct SEPA to request Scottish Power to apply for a variation of its current authorisation?

As far as I am aware, ministers instructed SEPA to identify which plants needed a new authorisation and to ensure that those authorisations were applied for well in advance. Hence, SEPA specified the end of March as a deadline for Scottish Power to apply for the revision of its authorisation. That was the only direction that ministers gave.

As a former employee of Scottish Power, I should perhaps declare an interest, albeit that I am not friendly towards the organisation these days due to its stance on wind generation.

It must be pointed out that Scottish Power does not need to burn the waste, the disposal of which is really a problem for the Executive and for SEPA. To a degree, Scottish Power is doing the Executive a favour by burning the stuff, so why should it be faced with additional capital investment?

I agree with Mr Gallie that Scottish Power is doing the Executive a favour by disposing of the waste, but the central question is whether that action is compatible with European regulations and whether ministers could have done anything to make it more likely that Scottish Power's method of burning the waste complied with the regulations.

Ministers appear to have directed SEPA to enforce the European regulations, as we would expect them to do, but they have not taken a strategic view of the implications of their direction. As far as I understand the situation, the implications are that the sewage sludge might need to be spread on fields, which none of us is enthusiastic about. It seems that Scottish Power's constructive approach to tackling a genuine issue is now in some jeopardy.

The question is whether ministers could have done more to avoid the issue going to the Court of Session for determination. Once the Court of Session gets involved, the judgment can go in any direction. The committee must judge whether the Executive could have issued guidance or exerted more influence to avoid the unhappy situation that has been created, whereby the courts have determined in a fashion that is hostile to Scottish Power. I do not know whether the Executive could have made a different direction to SEPA or whether SEPA could have applied some regulatory discretion. We should perhaps put those questions in writing to ministers.

If that has not depressed members enough, I share with them another problem that is on the horizon. ScotAsh Limited, which is a joint venture between Scottish Power and Lafarge Cement UK, uses new technology from the United States to separate unburned coal from ash to return the unburned coal to the fuel stock. SEPA has now informed Scottish Power that unburned coal is waste like waste-derived fuel, but Scottish Power will not be able to burn any waste at Longannet after December 2005. We can write to ministers on that directly, because the issue is yet to arise, but it fails a test of common sense. How on earth can unburned fuel be waste?

If the fuel is unburned, it is still fuel.

Exactly. You do not need to be a geologist to work that out.

I have a major constituency interest in this.

You will have, yes.

If the judgment in relation to Longannet is setting a precedent, it could raise all sorts of questions about what are obviously environmentally friendly ways of dealing with other waste—questions that I prefer not to talk about here. I cannot believe that the European directive or European legislation was intended to outlaw this kind of activity. We need to seek clarification. We need to establish exactly what the European legislation is intended to do. Was it ever foreseen that it could run into this kind of difficulty? We need to find a remedy because it would be crazy if we were to compel operators to revert to landfilling and other infinitely less environmentally friendly ways of disposing of material—material that might be waste in one sense but, in another sense, has a self-evident value as fuel.

We need to write to ministers and perhaps to the European Commission to find out what representations have been made on this matter in Europe. How did we arrive at this position? Was the present interpretation to be expected? Were the difficulties resulting from that interpretation considered?

I wonder whether Ailsa Heine would tell us whether Scottish Power can take the issue further—for example, to the European Court of Justice—or is the Court of Session decision the end of the matter?

Secondly, is there any way of getting round the decision by varying the proportion of waste-derived fuel and the proportion of coal? If people were burning a mix that had more coal and less WDF, would that be a way round the problem, or is any proportion banned?

On the first question, Scottish Power can take the issue further: it can appeal. I understand that there are still some procedural issues to be dealt with, so any appeal might not be made until a bit later. It would be up to the Court of Session to refer the matter to the European Court of Justice, if it wanted to do so. Scottish Power could suggest that the matter might be referred.

In the judgment that was issued in December, Lord Reed said that he had considered referring the matter to the European Court of Justice but had decided not to. He felt it unnecessary because the European Court of Justice's case law was clear enough on the definition of waste. In the judgment, Lord Reed went through the case law in quite a lot of detail, going through what the European Court of Justice had already said. The court has already given a lot of guidance on the definition of waste, so Lord Reed felt that he was able to make his own judgment. If there were an appeal, the appeal court might find differently, although it might decline to refer the case as well.

On the second point, I do not think that the percentages in the mix of fuels matter. The fact that waste is being burned as a fuel brings a plant within the definition of a co-incineration plant, which would therefore be subject to the new controls.

I clarify that the new provisions do not stop the burning of waste. Scottish Power could continue to burn waste, but it would have to comply with tighter emission controls. As far as I understand it, there are no emission controls for burning this type of waste. There are emission controls for hazardous waste, but we are talking about non-hazardous waste. I think that, at the moment, non-hazardous waste is unregulated—hence the new provisions.

I cannot say how much tighter the new provisions are than other general emission controls, but they have been brought in because the area is currently unregulated.

I stress that I am speaking off the top of my head, but my understanding from my constituency interest is that the reference point is that the level of pollution arising from burning these sorts of fuels must be at least as low as that arising from conventional fuels. Therefore, if somebody is burning a so-called waste material, that is okay, provided that it does not emit any more pollution than coal does. If the pollution is worse than that from conventional fuel, it will not be allowed.

Members have raised a number of worrying points in relation to Ailsa Heine's note and to the Scottish Power and Lafarge joint venture. We will raise those points with Executive ministers and with the European Commission.

We now move to agenda item 8, on the promotion of Scotland worldwide inquiry. The committee decided earlier to take the item in private.

Meeting continued in private until 16:13.