Environmental Authorisations (Scotland) Regulations 2018 - proposed amendments: consultation analysis

2. New Activities

2.1 Sewage sludge

We proposed to bring the regulation of sludge into the 2018 Regulations and to incorporate a number of new technical requirements which will:

• make appropriate parts of the Safe Sludge Matrix mandatory
• ensure the transport, storage and use of sewage sludge is subject to environmental authorisations and that all Authorised Persons can demonstrate they are a ‘Fit and Proper’ person
• tighten soil protection values in line with best evidence and improve monitoring and sampling provisions
• make it possible for the Scottish Environment Protection Agency (SEPA) to charge for authorisations to fund regulatory activity in this area.

Question 1 asked if there are any other regulatory measures relating to the spreading of sewage sludge to land that you felt should be considered for inclusion in the Regulations.

2.1.1 Summary of responses

22 respondees provided 83 comments in relation to Question 1 regarding sewage sludge. Most comments were supportive of the proposals and no serious objections were lodged. The main areas commented on are noted below.

There were several responses simply stating opposition to the practice of spreading sewage sludge to land itself.

Several responses expressed concerns in relation to the monitoring of contaminants within sewage sludge and noted the recent commitment for a review in the European Union (EU). The issue of odour was raised by some respondees.

The proposed introduction of a fit and proper persons test was highlighted and responses sought clarity on how the system would work effectively.

Comments were received (particularly from industry) focusing on the technical aspects of the legislation. These comments will be considered in any future development of legislation relating to the spreading of sewage sludge. Also, within the responses were a number of suggestions for additional legislative actions to be taken, whilst others expressed concern with definitions within the legislation.

2.1.2 Scottish Government response on sewage sludge

The main aim of including the sewage sludge regime in these Regulations is to implement the legislative recommendations arising from the review of sewage sludge held in 2016. Implementation of these proposals has unfortunately been significantly delayed. The consultation responses contained a wide and varied list of comments / objections ranging from outright opposition to the practice, to technical and legal suggestions. Some suggested amendments have been accepted at this time, however in light of the delay in implementing the review recommendations, the proposals relating to sewage sludge contained within the draft Regulations will remain largely the same. As indicated in our consultation document and in line with the Scottish Government’s commitment to remain aligned, where possible, with EU law, we intend to await the results of a recent evaluation of the Sewage Sludge Directive by the European Commission and will then consider further potential amendments to the 2018 Regulations as appropriate.

It is Scottish Ministers’ position that properly treated sludge, when managed safely and effectively on the course of its journey from the treatment facility to being spread to land, is an effective fertiliser. As part of the review of sewage sludge conducted by the Scottish Government in 2016, an independent research report was commissioned from the James Hutton Institute. The aim of the research was to provide up-to-date and robust evidence that the practice had no harmful effect on the environment or human health. The findings of the report, whilst highlighting areas which should be closely monitored over the next few years, did not identify any new or increased risks. We will consider our position as new evidence emerges.

The EU Commission is currently conducting a review of contaminants that should be monitored in sludge for land spreading and we are awaiting the results of that work. The Scottish Government is committed to remaining aligned with EU law and will take the appropriate action necessary to do so when the results of the review are published. It was also suggested that meeting any new EU criteria should be the minimum action taken in respect of contaminants. The Scottish Government will consider whether contaminants not recommended by the EU should be considered as well, where appropriate. Any actions on this will be fully consulted on before progressing.

Whilst the main focus of the current proposals relating to sewage sludge is to implement the legislative recommendations arising from the review of sewage sludge carried out in 2016, all legislative suggestions in the responses have been noted and will be considered in any future review. SEPA has guidance available which will provide the necessary information on how the ‘fit and proper person test’ will operate and be used to ensure sludge is effectively managed by persons who meet the necessary criteria.

The comments received focusing on the technical aspects of the legislation will be considered in any future development of legislation relating to the spreading of sewage sludge. The following suggestions have been accepted.

• Limits on Application to Land – Nitrogen Addition. It was suggested that the same wording is used in the 2018 Regulations as in The Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2008. We are content for the draft Regulations to mirror relevant provisions from these Regulations.
• Soil Sampling - Total Nitrogen. It was suggested that testing soils for total nitrogen is not required (in table 2). As this test is useful for only a limited number of waste types with a high carbon to nitrogen ratio to prevent nitrogen lock-up in the soil. We note that this can be managed via SEPA guidance on those specific waste streams and not applied generally. Therefore we are content for Total Nitrogen to be removed from Table 2.
• Soil Sampling – Total Carbon. It was suggested that Total Carbon can be calculated from organic matter and is not required for normal agronomic practices (table 2). We have confirmed with SEPA that Table 2 is to be amended to read ‘Total Carbon or Organic Matter’.
• Safe Sludge Matrix – Definition of Conventionally Treated and Enhanced Treated Sludge. It was suggested that the ‘conventional treated sewage sludge’ definition should also refer to ‘or, a maximum allowable concentration of 100,000 E.Coli/gram dry solids’; and that the ‘enhanced treated sewage’ definition should also refer to ‘or, free from Salmonella and a maximum allowable concentration of 1,000 E.Coli /gram dry solids.’ We agree this is an important point. While the definitions in the draft Regulations were lifted directly from the Safe Sludge Matrix as per the recommendations of the 2016 Sludge Review, the biosolids assurance scheme recognises this issue and has made appropriate adjustments. BAS-Standard-Issue-5-10th-July-2020-web-version.pdf (assuredbiosolids.co.uk). It is important that the process must be ‘capable’ through process validation to achieve the necessary reduction in pathogens and through routine monitoring achieve the maximum limits. We would be content to make this amendment, however we do not think it is ‘or’ as suggested but ‘and.’ Whilst this is not quite the language in the Safe Sludge Matrix, we are content that is much more appropriate in practice.
• Safe Sludge Matrix – Grazing Land. We accept that the restriction in the regulation on conventionally treated sewage sludge being applied to the surface of grass to be used for grazing does goes further than the recommendation of the safe sludge matrix and we are therefore content for Paragraph 6 (c) to be updated to say that conventionally treated sewage sludge must be deep injected or ploughed down when applied to land used for grazing and that there should be no grazing in the season of application or in any circumstances no grazing within three weeks of application.

The Scottish Government also intends to clarify the scope of GBR 18 in relation to the storage and application of fertiliser to land, and its overlap with the requirements in relation to the application of waste to land under Schedule 14.

2.2 Carbon Capture

We proposed to include “Any activity, if not related to any activity described in paragraph 46(13) of Part 4 of Schedule 20 for the capture of carbon dioxide from any other source” as another emissions activity in proposed Schedule 26 such that this activity will require an authorisation in Scotland. The types of activity that would require an authorisation are:

• carbon capture removal technologies such as Direct Air Capture
• carbon capture and utilisation plant
• carbon capture plant for the purpose of storing carbon dioxide.

Question 2 asked if you agreed that carbon capture activity should be a regulated activity in the 2018 Regulations.

2.2.1 Summary of responses

The vast majority of respondees who replied to this question agreed to the introduction of the capture of carbon dioxide from any other sources as a regulated activity under the 2018 Regulations. We received two responses disagreeing with the principle of carbon capture and with monitoring requirements. One respondent disagreed that the scope of this activity extends to capturing biogenic CO₂, but accepted that if this activity were to have regulatory controls that these would be proportional to the scale and perceived risk.

Respondees sought clarity on terms such as ‘capture,’ ‘storage’ and ‘waste’ when used in connection with this proposed activity. Also, respondees sought clarity on ‘from any other source,’ seeking to limit this to industrial and technological carbon capture and storage, and not extended to capture of carbon in nature (woodland creation or peatlands). Responses highlighted the role that captured CO₂ may have in a circular economy. Stakeholders acknowledged that large scale capture plants may be regulated by a number of different regimes (such as the Control of Major Accidents Hazards) and requested that any regulatory controls to be proportionate, risk based, having account of the sensitivity of the location of the development, and the significance of any potential environmental impacts.

2.2.2 Scottish Government response on carbon capture

We will bring carbon capture, utilisation, and storage (CCUS) into the 2018 Regulations as a regulated activity and are reviewing the activity description to add clarity on its scope. This will ensure that all appropriate carbon capture, utilisation, and storage activities are regulated to protect the environment. We also acknowledge that carbon capture and storage is still a fledging industry that is important in helping Scotland achieve net zero. These Regulations provide SEPA with the flexibility needed to support innovation and enable the sector to develop whilst protecting the environment.

The 2018 Regulations include any requirements specified in EU Directives, whilst allowing greater flexibility for activities outwith of those thresholds. The Industrial Emissions Directive (IED) requirements for carbon capture and storage are specified in Schedule 20. All other carbon capture and storage activities will be regulated as a Schedule 26 activity. Schedule 26 activity regulatory controls will be administered by SEPA, including any standards set through conditions in permits and registrations. SEPA may have regard to any applicable Scottish, United Kingdom (UK) or EU guidance on the best available techniques for preventing, or where that is not practicable, reducing emissions from a Schedule 26 activity in setting conditions. We welcome the offers from stakeholders who have indicated that they wish to be party to the development of any potential future guidance.

The new CCUS activity will not change whether a captured stream of CO₂ is, or is not, considered a waste. In terms of CO₂ some sources will be sufficiently pure (i.e. no contaminants) to be used directly as a non-waste. There are examples of this already, e.g. breweries reusing CO₂.

2.3 Non-Waste Anaerobic Digestion

We proposed to add the anaerobic digestion of non-waste materials as another emissions activity in a new Schedule 26 so that this activity will require an authorisation in Scotland. Question 3 asked if you agreed that non-waste anaerobic digestion should be a regulated activity in the 2018 Regulations.

2.3.1 Summary of responses

The vast majority of respondees who replied to this question agreed to the introduction of non-waste anaerobic digestion as an activity under the 2018 Regulations. We received two responses disagreeing with non-waste anaerobic digestion plants being regulated under the 2018 Regulations. Of the respondees in agreement seven caveated their support with the following themes:

Clarification was sought for the scope of waste anaerobic digestion below the 100 tonnes/day threshold. Concerns were also raised that the proposal for the non-waste anaerobic digestion thresholds will be linked to the IED, as respondents considered that this has the potential to have a disproportionate effect on smaller facilities. Respondees raised concerns about retrospectively fitting secondary containment and the regulation of non-waste derived digestate.

A couple of respondees noted that the generation of biogas serves to support decarbonisation of their industry and the Scottish gas network (back-up power, domestic heating, and industrial processes). As such, the environmental and economic benefit of this should not go unrecognised, and the Regulations should serve to help not hinder the journey to net zero, and support the delivery of the Scottish Government’s own targets.

2.3.2 Scottish Government response on non-waste anaerobic digestion

We will bring non-waste anaerobic digestion into the 2018 Regulations as a regulated activity. This will ensure a level playing field across the sector and ensure all anaerobic digestion plants are regulated to protect the environment. We welcome the contribution that the generation of these low carbon gases are able to play in supporting Scotland’s progress towards meeting our net zero targets but they require management of associated environmental risks. The proposed level of authorisation for non-waste anaerobic digestion plants will be proportionate to the capacity and environmental risk.

The 2018 Regulations integrate requirements specified in the EU Directives for particular activities, whilst allowing greater flexibility for other activities outwith their scope, including non-waste anaerobic digestion, which is set out in the draft Environmental Authorisations (Scotland) Regulations (EASR) 2024, Schedule 26. SEPA has consulted on their authorisation levels to define the threshold for non-waste anaerobic digestion. Additionally, SEPA may have regard to any applicable Scottish, UK or EU guidance on the best available techniques for preventing, or where that is not practicable, reducing emissions from a Schedule 26 activity. SEPA intends to engage with stakeholders on guidance on conditions, standards, and best available techniques for non-waste anaerobic digestion.

The anaerobic digestion plant process for both waste and non-waste anaerobic digestion may include the onsite storage of digestate arising from the activity. The use of digestate or storage of digestate off-site is controlled by GBRs or other types of authorisation depending on the status of the digestate. The digestate output from non-waste anaerobic digestion plant would not normally be classified as waste and when removed from the regulated non-waste anaerobic digestion site it would be stored and used in accordance with GBR (18 and 34).

2.4 Generators of Electricity Aggregating to 1 Megawatt Thermal Input (MWth) or More

We proposed to add combustion plant generating electricity on the same site with an aggregated total rated thermal input of 1 MWth as another emissions activity in the proposed Schedule 26, so that this activity will require an authorisation in Scotland.

We asked three questions seeking your opinions as to whether: any combustion plant on the same site that generate electricity and aggregate to 1 MWth or more should be an environmental activity in the 2018 Regulations (question 4); that the scope be expanded to all combustion plants on the same site that aggregate to 1 MWth or more including those that generate heat (e.g. boilers) (question 5); and finally, for combustion plants on the same site that generate electricity and aggregate to 1 MWth or more, located in the highlands or on the islands are there plans in place to upgrade the plant or to replace it with renewable / low carbon technology / carbon capture usage and storage (question 6).

2.4.1 Summary of responses

There was near unanimous support to bring combustion plant on the same site that generate electricity and aggregate to 1 MWth or more into the scope of an environmental activity as defined in the 2018 Regulations (Question 4). However, the majority of responses supporting inclusion also identified the need for modification or exclusion from the 2018 Regulations for specific cases. Two respondents provided extensive and detailed discussion and reasoning for specific cases relating especially to the Islands. One other respondent provided a separate situation that they argued would require a different approach.

These respondees set out their reasons why exclusions for the following five situations from this new regulated activity (i.e. amending Schedule 26, Part 1, paragraph 1(4)) would be needed:

• existing island standby generation
• onsite emergency back-up and black start generation
• mobile generation operating solely for security of supply purposes in the running of the electricity network
• an operating hours exemption of 1,000 hours for plant on the Scottish Mainland and the islands
• generators with a defined nuclear safety role and operated under a nuclear site licence

In summary, these detailed responses made the following points. Currently the islands rely on standby diesel generation when national grid electricity becomes unavailable (owing to subsea cable problems or maintenance). The majority of this standby fleet, where plant aggregate to 1 MWth or more, does not meet NOx limits that would apply should new regulation as environmental activity apply (190 mg NOx/Nm³). Various approaches to rectify the situation have been assessed as part of an ongoing phased investment strategy in line with 2045 Net Zero targets. No single solution is applicable for all islands and all situations, and investment decisions need to consider a wider set of factors to give the best overall outcomes for the environment and communities.

Responses on whether the 2018 Regulations’ scope should be expanded to all combustion plants on the same site that aggregate to 1 MWth or more including those that generate heat (e.g. boilers) (Question 5) were mixed. Of the respondents that answered this question directly, five supported their inclusion while five did not. Reasons given not to support their inclusion included avoiding ‘double regulation’ in some instances (several respondents cited that (some) small boilers were already caught under certain of the Energy-related Products regulations and building regulations for their emissions), and that the measures would go beyond those applied under equivalent regulations in England and Wales and so disproportionately impact operators in Scotland. Respondees also identified that the types and situations of heat generation can be very varied, which could make proportionate regulation difficult to implement (for example, the different emission profiles of natural gas versus heavy fuel oil fired heat plant, and the use of plant to provide heat to social housing).

A number of respondees described plans and factors involved with upgrading plant or replacing it with renewable / low carbon technology / carbon capture usage and storage (Question 6). This includes information from the detailed responses described in relation to Question 4 above. In terms of electricity supply to the islands, use of standby generation during peak use periods is now minimal thanks to recent increases in renewables generation capacity. This respondent also continues to explore alternatives to standby diesel generation, including the use of alternative fuels (hydrotreated vegetable oil), battery storage, upgrades to existing plant to reduce emissions (focussed on CO₂ reduction rather than NO_x) including deployment of more modern mobile plant. Some of these technologies have already been deployed (e.g. battery storage on Shetland) but as is the case for the longer term investment programme, the different individual situations and requirements mean that a single approach cannot be applied across all islands. Respondees also cited planned CCUS development, current use of hydropower, wind, and solar Photo-Voltaic to offset operations’ electricity consumption, use of biogas as an alternative to fossil-based fuels, and deployment of heat pumps for heating operators’ buildings.

Some respondents also identified a need to clarify some definitions, including ‘same site.’

2.4.2 Scottish Government response on generators of electricity aggregating to 1MWth or more

Based on the information submitted during the consultation and other stakeholder interactions, we intend to include provisions that will add any combustion plant on the same site that generate electricity and aggregate to 1 MWth or more as a regulated activity under the 2018 Regulations. We will do this to protect the environment and people from the impacts such plant can have, because when they operate their emissions profiles do not materially differ from equivalent unabated plant that are individually >1 MWth and that are already captured as regulated activities under the 2018 Regulations.

We recognise that certain specific exclusions are needed for this addition, to reflect the unique situation that exists in the Islands, the important role of back-up plant for many operators and the need to protect people and the environment where nuclear safety is concerned.

All generators of 1 MWth or more (individually or in aggregate on the same site) in Scotland will require an authorisation to operate, except:

a) Back-up generators (generators operating solely to supply power during an on-site emergency e.g. a power cut, and which do not run for test purposes for more than 50 hours per year)

b) Certain generators operating on a site that is the subject of a nuclear site licence (generators operating with a defined nuclear safety role within arrangements approved by the Office for Nuclear Regulation under a Nuclear Site Licence).

c) Mobile plant unless connected to an electricity transmission or distribution system, or performing a function at a site that could be performed by a generator that is not mobile

unless they require an authorisation because they are a Schedule 20 or 27 activity.

The intent is that SEPA will use its discretion to set appropriate and proportionate standards as it thinks fit, with the overall policy intent that equivalent standards to those applied to specified generators in England and Wales will apply as a minimum.

With respect to the security of electricity supply on the Islands, which rely on subsea cable connections to the national grid, we consider that a balanced approach is needed that will, for the time being, allow the current fleet of standby diesel generation to operate when strictly necessary for contingency power, and we will put in place arrangements to achieve this that also continue to protect air quality.

2.5 Emissions of Ammonia From Livestock Farms

We sought views to explore how ammonia emission from livestock farms, particularly dairy and intensive livestock might be better managed and reduced.

Questions 7 and 8 asked how ammonia emissions from intensive livestock farms should be controlled in future and what should be considered when looking at future control or management of ammonia emissions from intensive livestock farms.

2.5.1 Summary of responses

20 respondees provided 43 comments to questions 7 and 8. Of these responses two respondees raised concerns about intensive agricultural and animal welfare in relation to both questions. The other responses noted the following themes:

A common response acknowledged that to reduce ammonia emissions there was a need for the provision of advice, guidance and examples of good practice backed up with targeted support. This was supported by responses noting cost differences between the various good practices highlighted in the consultation, with others commenting on the requirement that capital investment may need additional funding support. A respondent recommended the use of BATNEEC (Best Available Technology Not Exceeding Excessive Costs) to ensure that measures identified were reasonable for operators.

Respondees sought to ensure that any potential regulations would be proportionate, with the focus being on higher risk activities. It was noted that any proposed regulations should be applied in a flexible manner, as one size does not fit all. By focussing on the largest farms it was suggested that the mitigation measures used will eventually become less expensive and can then be implemented on smaller farms. Other respondees supported the use of voluntary measures with the provision of advice and good practice, as this can be as effective as regulation.

Respondees supported the Prevention of Environmental Pollution from Agricultural Activity (PEPFAA) code as providing unbiased, trusted, and clear science backed information, whilst an example of guidance from England noted Defra’s Code of Good Agricultural Practice (COGAP) for reducing ammonia emissions. The Clean Air for Scotland 2 (CAFS2) Agricultural and Environment working group and, from UK Government, the Defra regulation co-design group on tackling pollution from slurry were recognised as examples of good government engagement with the sector.

The definition of ‘intensive livestock farms’ was raised a number of times and respondees noted the difficulties of this definition, citing stock numbers / land size and the difference between indoor and outdoor housing as alternative approaches.

Some respondees advocated for Agroecological farming.

2.5.2 Scottish Government response on ammonia emission from livestock farms

We welcome the feedback from respondees as to how emissions of ammonia from livestock farms might be controlled. We note the support for advice and guidance provision to the sector and understand the caution expressed that the measures identified in the consultation cover a range of costs and effectiveness. We will now give consideration on how to proceed to promote good practice across the sector.