Scottish Government

A CONSULTATION PAPER BY THE SCOTTISH EXECUTIVE INCLUDING DRAFT REGULATIONS

The Scottish Executive
7 March 2000
Paper No 2/2000

1. INTRODUCTION

1.1 This Consultation Paper sets out the Scottish Executive's proposals for amendment to the current Regulations, made under sections 31A, 104(1)(a) and 105(1) of the Control of Pollution Act 1974 (as amended). This consultation paper therefore sets out the background to the proposed changes, identifies the options, and includes an appropriate Regulatory Impact Assessment.

1.2 Consultees views are invited on the proposed changes to the Regulations and the Regulatory Impact Assessment. Draft Regulations are attached at Annex A (pdf 75k) to this Paper, a Regulatory Impact Assessment at Annex B, and a list of consultees at Annex C. Responses should be sent to:

Linda Galbraith
Environment Protection Unit, Water Team
Scottish Executive Rural Affairs Department
Area 1-H
Victoria Quay
EDINBURGH
EH6 6QQ

Tel: 0131 244 0386
e-mail: linda.galbraith@scotland.gov.uk

to arrive no later than noon on 31 May 2000.

1.3 In order to help inform public debate on the matter covered by this paper, the Department intends to follow its usual practice of making available to the public, on request, copies of the responses received. The Department will assume that responses can be made publicly available unless respondents indicate that all or part of their response is confidential; such confidentiality will be strictly respected.

2. BACKGROUND

2.1 Since 1991, The Control of Pollution (Silage, Slurry and Agricultural Fuel Oil) (Scotland) Regulations have required those with custody or control of a crop being made into silage, livestock slurry or certain fuel oils to carry out works or take precautions (or other steps) to prevent water pollution. The 1991 Regulations established minimum legal requirements and are complemented by more detailed advice and guidance to farmers in the Code of Good Practice for the Prevention of Environmental Pollution from Agricultural Activity (the PEPFAA Code) *.

2.2 The 1991 Regulations have generally been effective in reducing incidence of point source agricultural water pollution, and the numbers and significance of agricultural pollution events reported by the Scottish Agricultural Pollution Group (SAPG) has declined since the introduction of the Regulations with the numbers of major events stabilising at around 16% of the total. However, events due to silage and slurry still account for about 60% of all reported incidents, and there is an increasing trend of slurry from spreading on fields to be implicated in pollution incidents.

2.3 There were 414 substantiated agricultural pollution events in 1998, an increase of 38 from 1997. Analysis of figures from recent years indicate that around 70-80% of these events are caused by operational failures. Whilst the incidence of silage related events has declined markedly the picture is less clear for livestock slurry. Statistics indicate that those events caused by slurry stores has decreased but that this has been offset by an increase in operational pollution incidents i.e. incidents caused by field run-off. This is indicative of a trend that has been emerging since introduction of the 1991 Regulations. Wet weather conditions are a factor affecting field-based activity and in generating more waste for collection and disposal but there may also be a longer term trend developing.

2.4 The discharge of agricultural pollutants such as silage and slurry result in very rapid and severe oxygen depletion of water, leading to the death of fish and invertebrates for many kilometres downstream, and also adds to the general level of diffuse pollution. The following proposed amendments target the risk of water pollution from these sources, and have been formulated in light of changes to Regulations south of the Border taking account of Scottish circumstances. They are supported by the SAPG.

* Those parts of the Code which are aimed at providing all waters with a general level of protection against pollution have effect as a Code of Good Agricultural Practice for the purposes of Article 4 of Council, Directive 91/676 EEC.

3.THE PROPOSED CHANGES

Citation, commencement and interpretation (Regulation 1)

Definitions

3.1 The absence of a definition of "silage" in the current Regulations has led to considerable debate as to whether other forage crops (e.g. maize, barley, peas, lucerne etc.) are adequately covered by the Regulations. While some of these crops have a high percentage of dry matter and may therefore have the potential to produce less effluent, their storage on farms may lead to very polluting discharges being made, particularly in wetter areas, where additives or preservatives are used to treat the crops and if stored in inadequate structures. A definition of "silage", and following from this "silage effluent", "silo" and "relevant substance" have therefore been included in the draft Regulations to clarify this matter. A definition of "forage crop" is also included.

3.2 At present the definition of "slurry" as detailed in the Regulations does not include "liquid fraction". It is proposed therefore that the definition be altered to include "liquid fraction" so as to cover effluent from dungsteads or middens, high level slatted buildings and weeping wall structures.

Making and storage of silage (Regulation 2)

4.1It has been suggested that there is a potential loophole in the current Regulation 2(1) in that it only deals with "any crop which is being made into silage". This may be interpreted to imply that an offence may only be committed during the actual process of making silage. Pollution may occur also following the removal of all silage from the clamp as seepage of effluent may take some considerable time to reach a watercourse.

4.2 Clearly the Regulations need to cover any effluent seepage and subsequent pollution problems throughout the year. The proposed amendment to regulation 2(1) will clarify that it applies both during the process of silage making and after that process has been completed. The title of this regulation has been changed to reflect this.

Exemptions (Regulation 6)

6.1 There is no evidence of a significant pollution risk arising from the making of bulk-bagged silage. It is therefore proposed to remove the 30-day notification period by the deletion of Regulation 6(2)(a). However it is not proposed to delete the provisions of Regulations 6(1)(a) and (b), 6(2)(b) and 6(3) governing the form of wrapping material, ensuring a good seal and the siting and opening of bulk bags as it is believed that these provisions have acted as effective pollution prevention measures.

6.2 It is also proposed toinclude recommendations that bulk-bagged silage be stored on a firm level surface with the incorporation of a facility or facilities to remove excess effluent in a controlled manner as required. This proposal will be achieved by the changes to regulation 6, as indicated in the draft Regulations attached.

Loss of exemption (Regulation 7)

7.1 Farmers who wish to make repairs of a substantial nature to existing exempt structures, purely as a measure to make them secure, may be discouraged from doing so as the current Regulations mean that they may be deemed to have substantially reconstructed the structure. The structure therefore ceases to be exempt, and must fully comply with the Regulations and the requirements in the appropriate Schedule.

7.2 It is proposed therefore that regulation 7 should be amended to allow SEPA discretion on a site-specific basis to allow works which will reduce the risk of pollution to proceed without these works being considered as substantial reconstruction under terms of the Regulations.

Notice requiring works etc. (Regulation 8)

Notice provisions

7.1 At present SEPA can use the Notice provisions under the existing Regulations in order to address problems identified with structures that are exempt by virtue of regulation 5 and where a significant risk of pollution is identified. However, this is not possible for structures substantially enlarged or re-constructed after 1 September 1991. For such a structure, the owner is required to advise SEPA of its location 14 days before its use (but see proposals for Regulation 10 below). If SEPA is not satisfied with the structure its only formal course of action is to consider reporting a breach of the Regulations to the Procurator Fiscal where problems of compliance can readily be proven.

7.2 In some instances structures are being brought into use without pre-notification to SEPA, and do not appear to conform to the Regulations. Notice provisions could address deficiencies in such structures. Such powers are already available south of the Border. There is a need therefore to give SEPA some discretion over legal proceedings and to give them the opportunity to issue a Notice for work to be done to new or substantially enlarged or re-constructed structures. It is proposed therefore to extend the powers available under Regulation 8 to allow SEPA to serve notices in respect to all structures used for purposes covered by the Regulations.

Farm Waste Management Plans

7.3 It has been proposed to incorporate into the Regulations powers for SEPA to stipulate the requirement to draw up and implement a Farm Waste Management Plan (FWMP) as part of an anti-pollution Notice requiring works. FWMP's would have to be "professionally prepared" only when such a Notice is served. Additional cost would only therefore be incurred where Notice provisions were invoked i.e. where actual pollution had been caused or a significant risk of pollution had been identified.

7.4 Guidance on production and use of FWMP's, which identify methods of collection, storage and land application of slurry and manure, is contained within the Code of Good Practice for the Prevention of Environmental Pollution from Agricultural Activity (the PEPFAA Code). This document gives practical guidance to persons engaged in agriculture and seeks to promote desirable practices by such persons. SEPA presently requests the preparation of such plans in relation to determining whether a lesser (or occasionally greater) period of slurry storage is required under the Regulations.

7.5 It is proposed to amend regulation 8, as indicated in the draft Regulations attached, to incorporate the inclusion of FWMP's in Notice provisions where appropriate, and to extend SEPA's powers to issue a Notice to new or substantially enlarged or substantially re-constructed structures.

Notification requirements (Regulation 10)

8.1 The current requirement to notify SEPA at least 14 days before a newly constructed, substantially enlarged or substantially reconstructed structure is first used is impractical and does not allow enough time for SEPA, or the farmer, to make appropriate arrangements. It is proposed therefore to extend the notification period to 28 days.

Schedules 1 and 2

9.1 It is proposed that the Regulations take account of the current versions of British Standards publications referred to in Schedule 1, paragraph 1(b), 7(a) and (c), and Schedule 2, paragraphs 3 and 4. These specify design and construction standards published by the British Standards Institution. Future changes to these will be incorporated by amendment to the Regulations.

Pumped tank/sump systems for silage effuent collection and transfer

9.2 It is proposedto amend Schedule 1, to allow for alternatives to the requirements of paragraph 3 relating to the sizing of silage effluent tanks, subject to approval by SEPA on a site-specific basis. This would involve incorporating the use of pumps and sumps together with sizing, pump installation and management requirements. This may prove a cheaper option for farmers by providing them with an alternative collection system to a fully sized effluent tank.

9.3 Advantages of the proposed amendment include the following:

• itwould allow SEPA to approve on a site-specific basis an alternative viable and cost-effective system to reduce pollution risk especially where the projected cost of installation of a full size effluent tank may be prohibative e.g. because of ground conditions;
• it may encourage voluntary improvement in effluent collection facilities being carried out;
• it would encourage the transfer of effluent to other slurry/contaminated water stores provides a viable method to obtain dilution in accordance with the requirements within the 'PEPFAA' Code and allows more flexible management of land application;
• it provides a cost effective method of handling effluent on sites with multiple clamps; and
• on some existing sites topography may restrict common drainage of effluent to one tank location. More than one 'collection' tank may be necessary to achieve an effective system. The ability to use one or more smaller pumped tanks in this situation can afford a viable solution.

9.4 Appropriate amendments to paragraph 3 of Schedule 1 are proposed.

Consultees' views are invited on this new measure.

The Scottish Executive, RAD
Environment Protection Unit, Water Team
March 2000

Annex B

THE CONTROL OF POLLUTION (SILAGE, SLURRY AND AGRICULTURAL FUEL OIL) REGULATIONS 2000

DRAFT REGULATORY IMPACT ASSESSMENT

Introduction

1.This Regulatory Impact Assessment deals with amendments to the Control of Pollution (Silage, Slurry and Agricultural Fuel Oil)(Scotland) Regulations 1991. The proposed changes to the Regulations will further reduce the risk of water pollution from silage and slurry effluent.

Purpose and intended effect of the measures

Issue

2. Although the existing Regulations have contributed to a substantial reduction in the number and significance of agricultural water pollution incidents, the number of pollution incidents caused by silage effluent and slurry remains high and together account for approx. 60% of all agricultural pollution events. These pollutants cause very rapid and severe oxygen depletion of water, leading to the death of fish and invertebrates for many kilometres downstream. There has also been an increase in the numbers of pollution events involving slurry due to operational failures.

3. Pollution of waters by agriculture has also been implicated in the failure of designated bathing waters, and damage to designated shellfish and freshwater fish waters under their respective EC Directives, and contributes to the nutrient content of rivers which can lead to problems of eutrophication.

4. The Scottish Environment Protection Agency (SEPA) forecast that unless significant improvements occur in reducing pollution from farm land, diffuse agricultural pollution will be the most important cause of downgrading in river quality by 2010.

Objective

5. The proposed amendments to the Regulations are aimed at a reduction in the numbers of silage and slurry related water pollution incidents, and include recommendations made by the Scottish Agricultural Pollution Group (SAPG), who take the view that the changes will provide further longer term potential to prevent water pollution. These changes will bring the Regulations into line with parallel Regulations south of the Border which were amended in 1996, and have been favourably received.

6. The main changes introduced by the proposed Regulations are:

• to extend the provisions to cover storage of made silage;
• removal of the 30 day notification period for making bulk-bagged silage;
• introduction of additional flexibility into the provisions to allow improvements to structures to protect the environment;
• introduce powers to allow SEPA to serve Notices on all structures used for the purposes of the Regulations,;
• to require, where appropriate, the preparation and implementation of a Farm Waste Management Plan, where SEPA have identified pollution or a significant risk of pollution and have served a Notice;
• extension of the 14 day notification period before use of a new or substantially enlarge or re-constructed structure to 28 days; and
• additional flexibility introduced to the sizing of silage effluent tanks.

Risk assessment

7. SEPA recorded 414 substantiated agricultural pollution events during 1998, including increasing numbers of incidents involving the runoff of animal wastes (slurry) following inappropriate land application. Silage and slurry account for 60% of all agricultural water pollution incidents. Compared to treated domestic sewage which has a biological oxygen demand (BOD) of between 20-60 mg/l, cattle slurry has a BOD of 10,000-20,000 mg/l and silage effluent 30,000-80,000 mg/l. It is considered that inappropriate applications of slurry may be being made as a consequence of inadequate slurry storage capacity, inadequate clean water separation and poor planning of farm waste applications.

8. The existing Regulations have been effective in reducing pollution due to silage with incidents reaching their lowest ever level of 20% of all substantiated events during 1998. The proposed changes relating to silage will however further target pollution from this source by extending the regulations to cover a potential loophole as regards silage storage. As indicated in paragraph 7, silage has a very high BOD, and although seepage from storage structures may be small in amount, the strength of effluent is usually greater with a greater risk to the environment.

Options

9. Two options have been identified. The first is to do nothing and to continue to rely on the existing powers which have been broadly effective.

10. The second option is to introduce new Regulations which will target pollution events caused by silage effluent and slurry which form a large proportion of total agricultural pollution incidents.

Issues of equity and fairness

11. It is not envisaged that the new Regulations will impose inequitable costs on any particular group.

12. Continued reliance on the existing Regulations would put farmers in Scotland at a disadvantage over their competitors south of the Border where the Regulations have been amended to cover all structures i.e. to include new structures and those substantially enlarged or reconstructed after 1 September 1991. At the moment SEPA cannot issue a notice for such structures and their only formal course of action is to report a breach of Regulation to the Procurator Fiscal.

13. The new Regulations will allow SEPA to address the problems giving rise silage and slurry water pollution and their underlying causes.

Benefits

14. The principal benefits are a reduction in the numbers and the risk of water pollution incidents. The measures would reduce the risks to wildlife and help to safeguard surface waters, groundwaters and drinking waters. There would also be overall benefits to recreational users of lochs and rivers with the maintenance of a healthy aquatic environment.

Quantifying the benefits

15. It is difficult to quantify the benefits of the proposed Regulations to the sustainability of the water environment. However, the main quantifiable benefits to the second option i.e. introducing the amended Regulations would be a further reduction in the numbers of silage and slurry water pollution incidents due to operational failures. Potential benefits flowing from this reduction in terms of savings both for the polluter and SEPA are set out below at paragraphs 16 and 17.

16. Costs incurred by SEPA for investigation, range from £0-2,500 per agriculturally related pollution incident. Costs will vary considerably depending upon the nature and location of the incident, number of staff involved, whether samples are taken, follow-up visits made and if enforcement is undertaken etc. For routine incidents (i.e. the majority), costs vary between approx. £250 and £600. For more serious incidents, between £600 and £1200 and for those involving the preparation of legal cases, between £1200 and £2500. Fines from successful prosecutions varied from £200 to £5,000 for farmers in Scotland (as reported in SEPA's Annual Report for 1998/99).

17. Clean-up costs are not generally an issue in agricultural pollution incidents Once the source of pollution has been identified and stopped, the aquatic environment can often be left to right itself. However, civil action may be taken by recreational users of waters e.g. angling clubs to have the polluter pay to restock the waters with fish. Autumn restocking of brown trout is often preferred by clubs when 9" to 11" fish are available from hatcheries. Typical costs for such fish range from £1,800 to £2, 500 per thousand depending on size. The quantity of fish required will depend on the characteristics of the waters being restocked but typically 1 to 3 fish per square metre may be needed. Restocking of salmon and other fish indigenous to the waters may also be required.

Compliance costs for business sectors affected

18. The Regulations will have greatest impact on livestock farms, more especially dairy and beef farms. In 1998, there were approximately 2,400 dairy holdings and 15,200holdings with beef cattle in Scotland.

Silage making and storage

19. As far as the changes proposed by regulation 2(1) in respect of silage storage, it is assumed that most farmers use their silos to both make and store silage and will therefore incur no additional costs. There were 22 pollution events involving failure of silos and associated structures during 1998 which required structural improvements.

20. Bulk-bagged silage and leaking big baled silage accounted for 15 pollution events during 1998. The amendments to regulation 6 in respect of bulk-bagged silage will help address this problem with minor cost implications for those using this method. Valves are fitted in any event to grass silage bulk bags to serve the dual purpose of allowing gas to be vented and when required effluent to be drawn. Valves can also be fitted retrospectively as required in other situations, and are re-usable. A valve currently costs £12. The dropping of the 30-day notification period from the Regulations will have minor overall benefits in terms of farm management practice.

Loss of exemption

21. The second option would also protect farmers who wish to make repairs of a substantial nature to existing silage or slurry stores, purely as a measure to make these secure. Under the current Regulations these structure may be deemed to have been substantially reconstructed and therefore cease to be exempt from the provisions of the Regulations. The proposed changes would encourage farmers to make their facilities secure, with potential benefits to the environment, whilst avoiding loosing exemption for the structure under the Regulations. Overall, savings in costs may accrue in these circumstances as the structure is not required to comply fully with provisions of the Regulations.

Extension of notice provisions

22. Extension of the Notice requirements by the new Regulations to all structures (i.e. to include new structures, and those substantially extended or reconstructed post 1 September 1991) will provide an alternative recourse for SEPA, and place farmers in Scotland on an equal footing with their counterparts south of the Border. There should be no additional compliance costs placed on farming enterprises as a result of this change. Benefits would accrue in terms of SEPA's effectiveness in dealing with problems by avoiding the need to proceed through the Procurator Fiscal in these circumstances.

Farm Waste Management Planning

23. Regulation 8(3) contains a new provision which provides for completion and implementation of a Farm Waste Management Plan (FWMP) as a condition of a "Notice" on an existing facility.

24. To reduce pollution risk it is often necessary to improve handling facilities (collection, transfer, storage and utilisation) as well as aspects of operational; management. The FWMP assists in the determination and specification of viable and cost effective methods of system modification/improvements. It reviews operational management procedures and promotes improved utilisation of wastes (slurries) which are applied to land.

25. This provision would enable SEPA to serve a "Notice" for specific problem sites where significant remedial actions are required to the farm waste management system and/or operational management. Typical costs (to a farm) of a professionally prepared FWMP, which includes liaison with the farmer and SEPA to obtain agreements, is £750. Costs of implementation will vary according to the circumstances prevailing on the farm but any actions taken must be viable and cost effective with regard to the business, and reduce the risk of pollution. The FWMP will identify efficiencies in handling and application of wastes (slurries) which will in most cases avoid the need for additional storage capacity. Depending on size, the capital costs of slurry storage can vary between approx. £16/ cubic metre for a large facility to £21/ cubic metre for smaller stores.

26. The majority of agricultural pollution incidents (approx. 90%) are dealt with effectively through pre-Notice Notices. It is only with major incidents and situations where significant risks have been identified that Notice provisions are used. It would only be within these limited circumstances that SEPA would consider issuing a Notice and, where appropriate, include a requirement that a FWMP should be prepared and implemented. There were 414 agricultural pollution events during 1998, 42 of which were regarded by SEPA as major incidents.

Notification requirements

27. The relaxation of the 14-day notification requirement (to 28 days) for structures substantially reconstructed or enlarged after 1 September 1991, will have no cost implications.

Pumped tank/sump systems for silage effluent collection and transfer

28. The minimum size of effluent tank presently specified represents a significant 'below ground' tank on most sites, typical sizes being 10 to 40m³ in Scotland. Costs on a reasonable site can be £1,500 to £6,000 respectively. A 1000 tonne silage clamp would require a tank of approx. 26m³ - typical cost £4,000 installed.

29. At present there is no 'discretionary' element within the legislation which SEPA can exercise on specific sites. The proposed changes would provide for more cost effective storage within existing or proposed slurry systems. Storing effluent within above ground slurry stores to which effluent is pumped typically will cost £25/cubic metre compared to £150/ cubic metre for below ground effluent tanks. This represents a considerable saving for typically sized effluent tanks.

Small businesses

30. The changes to the Regulations may benefit those running small farms. Making safe structures whilst avoiding full compliance with the Regulations will be a significant cost savings for smaller enterprises. However, any impact on small farms will only be determined on a case by case basis. In other respects the new regulations will not significantly disadvantage the smaller enterprise.

Total compliance costs

31. In respect of silage storage, it is anticipated that there will be only a minimal requirement for the upgrading of current storage facilities, including bulk-bagged silage. The provision permitting SEPA to determine whether substantially reconstructed structures should not be subject to the Regulations if the works are carried out for safely reasons may have substantial financial benefits for the farmer. Likewise the relaxation of provisions in Schedule 1 on the sizing of silage effluent tanks may have substantial financial and operational benefits for farmers. However, use of these provision will be determined on a case by case basis by SEPA.

32. The extension of Notice provisions to new structures and those substantially enlarged or reconstructed post 1 September 1991 have no additional cost implications for the farming enterprises concerned. FWMP's will impose addition costs on the polluter or potential polluter, but only in a very small number of cases will this have substantial cost implications in terms of provision of additional slurry storage capacity.

Consultation

33. [Full consultation with the industry and other interested parties will take place.]

Other costs

34. It is not anticipated that these amendments will have any impact on the industry in terms of international competitiveness.

Summary and Recommendations

35. For the vast majority of farming enterprises which observe good practice as exemplified by the PEPFAA Code of Good Agricultural Practice the cost implications of introducing amended Regulations are minimal. Introduction of amended Regulations offers benefits in terms of the potentially greater number of pollution incidents avoided, savings as a result of the flexibility introduced by the Regulations on their applicability to substantially reconstructed facilities, and the extension of Notice provisions to all structures used for the purposes of the Regulations.

36. The first option i.e. leaving the Regulations unchanged, would bring no additional benefit and would result in fewer potential pollution incidents being averted than would be the case if amended Regulations were introduced. The second option- to make the new Regulations- is the preferred one, and generally mirrors provisions already made in England and Wales.

Enforcement, monitoring and review

37. SEPA are responsible for enforcing these Regulations. However, they can also offer advice, for example, on the design of silage and slurry storage facilities. There are no plans for a formal review but the Scottish Executive Rural Affairs Department will wish to assess the effect of the changes, both in terms of the use made of such methods and from the perspective of water quality. To this end the annual statistics produced by SAPG will be carefully monitored.

Declaration:

I have read the Regulatory Impact Assessment and I am satisfied that the balance between cost and benefit is the right one in the circumstances.

Signed by the responsible Minister ............................................................

Date ............................................................

ANNEX C

LIST OF CONSULTEES

• All Scottish Political Parties
• Anglers Clearwater Association
• Association for the Protection of Rural Scotland
• Assoc. of Scottish District Salmon Fishery Boards
• Association of Scottish Shellfish Growers
• Association of Scottish Stillwater Fishery Managers
• Atlantic Salmon Trust
• British Geological Society
• British Institute of Agricultural Consultants
• British Organic Farmers & Organic Growers Assoc
• Centre for Ecology and Hydrology
• Centre for Environment & Business in Scotland
• CIWEM
• Confederation of Scottish Local Authorities
• Crofters Commission
• Crofters Union
• Crown Estate Office
• Farming and Wildlife Advisory Group
• Fertiliser Manufacturers Association
• Formartine Partnership
• Friends of the Earth (Scotland)
• Game Conservancy Trust
• Institute of Fisheries Management
• Institute of Terrestrial Ecology
• Law Society of Scotland
• Macaulay Land Use Research Institute (MLURI)
• National Farmers Union of Scotland
• River Leven Trust
• RSPB Scotland
• Salmon and Trout Association (Scotland)
• Scottish Agricultural College
• Scottish Agricultural Pollution Group
• Scottish Anglers National Association
• Scottish Landowners Federation
• Scottish Salmon Growers Association
• Scottish Environment Link
• Scottish Wildlife Trust
• Scottish Environment Protection Agency
• The Scottish Crop Research Institute
• Tweed Commissioners
• UK Agricultural Supply Trade Association
• Water Industry Commissioner
• Water Authorities
• WWF Scotland