Environmental Standards Scotland air quality investigation - Scottish Government improvement plan

Monitoring

A comprehensive monitoring network is essential for producing high quality data to inform both central and local government policy development, to aid research and to allow assessment of progress in reducing air pollution. Approaches to monitoring must be regularly reviewed to ensure that technological and analytical developments are being capitalised on, and also so that monitoring locations remain relevant for identifying areas of most concern.

Recommendation 4 - Identify or introduce a monitoring body with the remit to look at the system of air quality monitoring and compliance holistically (including the monitoring of the implementation and effectiveness of Low Emission Zones (LEZs)). It is critical that this body should be able to move quickly where air quality does not meet legal requirements, consistent with the principle of achieving compliance within the shortest time possible, and thus it should have the requisite power to direct action when deemed necessary.

Scottish Government response – accept recommendation.

Under section 85 of the Environment Act 1995 SEPA has wide-ranging powers to direct a local authority to take appropriate steps should that authority not be properly undertaking its statutory duties in relation to air quality. Such a direction can cover, amongst other things, review and assessment of air quality, declaration of an AQMA or preparation or modification of an AQAP.

The Scottish Government considers that the requirements of this recommendation can be satisfied by setting out more explicitly in the revised guidance referred to above the powers available to SEPA. In particular the guidance will be strengthened to include an assumption that the powers should be used routinely once the series of warning levels issued to local authorities when specified deadlines are missed have been exhausted (see table below), rather than on a case by case basis as at present.

Report two months overdue

• Month^*: August
• Enforcement level: Reminder

Report three months overdue

• Month^*: September
• Enforcement level: Warning letter

Report four months overdue

• Month^*: October
• Enforcement level: Final warning letter

Report six months overdue

• Month^*: December
• Enforcement level: Section 85 direction

*or agreed revised deadline

SEPA will work, as far as possible, with local authorities to ensure the requirements of the Environment Act 1995, and the associated guidance, are fulfilled satisfactorily. Where a local authority is not fulfilling their duties under the Act, SEPA, in dialogue with the Scottish Government, will initiate the enforcement procedure outlined in the revised policy guidance in all cases.

In most cases SEPA anticipate that a resolution can be achieved before the final enforcement stage is reached, however SEPA will approach the Scottish Government to use its reserve powers on every occasion where the other levels of enforcement have failed to satisfactorily resolve the issue of non-compliance. Throughout this escalation process SEPA will provide a local authority with every opportunity to comply prior to issuing a direction and will remain in dialogue and provide support to the local authority.

In relation to LEZs, sections 29, 30 and 31 of the Transport (Scotland) Act 2019 address monitoring the implementation and effectiveness. This is covered in more detail in section 11 of the LEZ guidance.^[3] A local authority which is operating a LEZ must prepare an annual report on the operation and effectiveness of that scheme, as soon as practicable after the end of the financial year. A copy of the annual report, as a minimum, must be sent to Scottish Ministers, and must be laid before the Scottish Parliament. A local authority will also publish their annual report in such a manner as it considers appropriate. In addition to annual reporting, the Scottish Ministers can mandate a local authority to undertake a review of the operation and effectiveness of a LEZ at any time. After a review has been undertaken, the Scottish Ministers can direct a local authority to take specific action where LEZ performance is in question.