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Board meeting - 26 April 2022

The one hundred and seventy-ninth meeting of the Agency Board took place on Tuesday 26 April 2022 at 1.00pm via MS Teams.

Safe SEPA @ Board:

The Clerk to the Board apologised for the delay and advised that the testing phase of the 2-factor authentication for Diligent Boards has been completed and that it can now be rolled out to the Board members. Part of the process involves authorising mobile devices using the Diligent Boards App. She asked board members to confirm with the Corporate Officer as soon as possible if they access Diligent Boards via their iPad, mobile phone or PC.

Chair's opening remarks

The Chair welcomed everyone to the meeting and welcomed Kieron Gallagher and Martin Grey. He also welcomed Kari Speirs and Laura Hamilton from the AMT and Board Support team in attendance with the Clerk to the Board.

The Chair welcomed Alison Baker in attendance as a member of the public observing the Agency Board meeting.

The Chair confirmed that 10 minute breaks had been scheduled after item 10 and before the private session.

Matters arising

The Clerk to the Board provided an update. She advised that:

Action 696 (Chief Executive’s Report – SEPA 02/22) It has been agreed that this is worth further investigation in places where it adds value, and it may have particular relevance for the Falkirk-Grangemouth project. Consideration will be given in relation to the findings of the Scottish Government’s ‘Role of incineration in the waste hierarchy’ review when published. Proposed closed.

Action 697 (Chief Executive’s Report – SEPA 02/22) A 1:1 discussion is being arranged with the Board member who raised the question to deal with the specifics of this action. Proposed closed.

Action 698 (Monthly Performance Report – SEPA 03/22) The cyber-attack meant much of the data normally used to show meaningful trends is not accessible. As the regulatory processes and in particular reporting capability are rebuilt, and as addressed in part at the seminar session on the morning of 26 April 2022, the ability to present data and information containing context in particular trend information will be ensured as part of the process end make the information and data presented more meaningful. It should be noted that as a consequence of the cyber-attack, current regulatory data collation, analysis and reporting is much more time consuming and manual than was previously the case. Proposed closed.

Action 699 (Quarter 3 Financial Monitoring Report – SEPA 01/22) International Services secured grant funding for two projects from the Regulators Pioneer Fund.

• Industrial Net Zero Regulatory Hub
• Regeneration for Growth - Data Innovation for Collaborative Regulation

The grant for both projects covered the period 23 August 2021 to 31 March 2022, and both were completed within timescale. Proposed closed.

Action 700 (Quarter 3 Financial Monitoring Report – SEPA 01/22) The overspend is primarily associated with:-

• Rent £148k – Increase not included in budget set.
• Cleaning £86k – ASB and Aberdeen office opening.
• Property Maintenance £69k – ASB, Aberdeen and Strathallan Covid secure measures.
• Service Charge – £21k budget understatement

Proposed closed.

Action 701 (Standing Orders – SEPA 06/22) This amendment has been made. Proposed closed.

Action 702 (Standing Orders – SEPA 06/22) The Model Code of Conduct is on the agenda for the Agency Board meeting on 26 April 2022 with training planned for a Board seminar session after this. The Clerk to the Board is contacting the Standards Commission to check whether they offer training. Ongoing.

Action 703 (Standing Orders – SEPA 06/22) This work is ongoing. Ongoing.

Action 704 (Standing Orders – SEPA 06/22) This amendment has been made. Proposed closed.

Action 705 (Report on Board Seminar 22 February 2022) Expressions of interest for a charging seminar have been received from six board members. The Charging team have been informed and will develop a session to take members through the key point of the schemes and the planned future work in this area. Covid related absences, year-end work and annual leave have restricted the ability to schedule for April 2022. The proposed date is for May 2022 and once the session has been confirmed the item will be closed. Ongoing.

Chair's report - verbal

The Chair advised that he had attended a Quarterly Ministerial meeting on 2 March 2022 covering progress from the cyber-attack, CEO recruitment and timelines, and the handling of CSO’s and related pressures and incidents with Scottish Water. Also discussed was Aquaculture, following the Griggs report and the growing problem of waste crime.

He advised that Audit Committee and Strategy Board meetings had taken place on 22 March 2022.

Several meetings have taken place regarding the CEO recruitment. Nicola Gordon and Kevin Quinlan from Scottish Government will join him on the recruitment panel. The advert has gone live via a mixture of newspaper, online channels and social media and some SEPA staff will be involved in the recruitment with respective candidates being made aware of this as they are advised of the selection steps and process. The expectation is that the interviews will take will place in June 2022 with the Board being kept informed of progress.

He has also been conducting the quarterly 1:1 meetings with Board members and Agency Management Team members and advised that the Board Annual Reviews will be scheduled shortly.

Following discussions with the Acting Chief Executive, he advised that the importance of getting together has been a recurring theme in all Board 1:1s and that work is ongoing to have the May 2022 Board meeting in person. He highlighted that while there may be some technology challenges regarding this, the formula and flow will be amended to make the meeting work effectively.

The Chair advised that several site visits for the Board are underway and that others should take place imminently.

The Chair highlighted that going forward himself and the Acting Chief Executive will continue the plan of meetings with industry bodies, non-governmental organisation and local authorities and will offer the organisations the choice to decide the most suitable format to meet, either on site, person or virtually. Meetings are currently being scheduled for Environment Link and National Farmers Union Scotland (NFUS) and in respect of Aquaculture.

The Board noted the update.

Management reports

Chief Executive's Report (SEPA 14/22)

The Acting Chief Executive introduced the report with Anne Turner and Roisin Lochrin Hopkins in attendance. In response to a question regarding local reports claiming the issue of Diageo operating three of their sites without an Emissions Trading Scheme (ETS) permit was only discovered via an internal Diageo audit and whether there were any issues for SEPA as a result, and what implications the new ETS regulations will have, David Harley advised that he would follow this up and report back. John Kenny confirmed that part of the responsibility of a company within the ETS is for them to carry out audits and report any failures to comply to SEPA.

Action: David Harley

The Board suggested that in the enforcement section, the use of a traffic lights system might be beneficial to understand if the expectations of the team were met, exceeded or not.

In response a question seeking an understanding on why it took over two years to ascertain that the source of noise disturbance in section 2.2 was due to a turbine, what could have sped up the process and if there are similar instances elsewhere that are taking similar time to ascertain the source, David Pirie advised that it did take a couple of years and that it is a long time for the local residents however the instance detailed was a complex area and site with a number of potential sources and the noise was intermittent. The deployment of new and remote kit that is triggered when noise happens was key to establishing the root cause of the noise. He advised that there are other sites, however the increased capability of the new kit for noise monitoring will aid the process in the future. He highlighted that it can take time to establish the root cause, particularly if it as a low frequency. SEPA also has to ensure it has a high standard of evidence.

In response to a question on whether SEPA foresee any issues arising from the consultation on the guidance for the storage and treatments of healthcare waste referenced in section 2.7, David Harley advised that he is not aware of any issues but will investigate and come back to the Board.

Action: David Harley

In response to a question on how much of the consultation on the guidance for the storage and treatment of healthcare medical waste is related to the trauma of medical waste incidents over the last two years, Ian Buchanan advised that it is not directly related but that it will help with some of the lessons that were learned from those incidents, specifically around the chain of custody flow. However, it does not address the fundamentals of why those issues arose.

In response to a related question on how the cause of those fundamental issues are being addressed, Ian Buchanan advised that there are ongoing discussions with the NHS regarding the supply chain and the robustness of the infrastructure and confirmed that there are ongoing legacy criminal proceedings that will appear in court next month.

In response to a question on how the collaboration between the UK Environment Agencies in relation to REACH (EU Regulation, Authorisation and Restriction of Chemicals Regulation) is going, David Harley advised that the collaboration is at the set-up stage and very early in the process.

In response to a question on the phased re-opening of workspaces and the pace that is being set regarding the re-opening plan, the Acting Chief Executive advised that unlike other organisations looking to reopen following the relaxing of the rules around the Covid-19 pandemic, SEPA is different as it has been hit over the last two years with the twin challenge of both the pandemic and the cyber-attack but confirmed that the detailed planning is underway. John Kenny advised that the plan has been broken down into the business need, staff feedback, the work required on each building and then combined into a comprehensive plan for the financial year with milestones. The plan will be rolled out in the coming weeks. A key aspect is the rebuilding of the IS infrastructure and its prioritisation. He confirmed that the AOP target is for all staff to have an alternative workspace this financial year and that subject to co-dependencies it could go on beyond the end of the financial year. The Board asked that a detailed session on the plan and operating practice for the future be brought to the Board in May 2022.

Action: John Kenny/ Clerk to the Board

In response to a question regarding the pipeline for International Services, Bridget Marshall advised that a review is currently underway following the retirement of the Director and the disruption of service delivery due to Covid-19. The review will also look at the capacity, of International Services, over the next few years to deliver projects as there is a high dependency on SEPA staff outwith the core team to deliver projects. She confirmed that there is a Board Buddy group on International Services to assist with the review. The Acting Chief Executive advised that this is not the only international focus for SEPA highlighting the network of European Environment Agencies, which are expected to meet in May or June 2022. They can assist in shared lessons and knowledge, particularly in relation to regulatory reform.

In response to a question on whether the number of users visiting NetRegs is up or down, David Harley confirmed that he would gather user research on the NetRegs site and report back to the Board. Martin Grey also highlighted that a significant web project has commenced which involves a review of SEPA’s web estate - all nineteen websites of which NetRegs is one partner site, and that part of the project, will involve detailed user research across those sites which will provide some of the information being sought. John Kenny advised that one of the reasons behind the rise in visits to the NetRegs site was visits from outside the UK.

Action: David Harley

In response to a question on further quantification of numbers regarding illegal waste activities highlighted in section 2.1, Ian Buchanan advised that SEPA is moving to a much stronger position to inform the scale and extent, and that this links to the discussion earlier in the day regarding measurements and trends. We are beginning to build a picture however, it is not specified in the report as there is a need to be careful not to relay tactics publicly in dealing with criminal activity. The trends will become clearer in the months ahead. The Acting Chief Executive advised that the Regulatory Report for 2021-2022 will be published shortly and will be made available to the Board.

Action: Ian Buchanan/ Clerk to the Board

The Board noted the report.

Consideration of New Risks (SEPA 16/22)

The Acting Chief Executive introduced the report with Anne Turner and Katie Cairnie in attendance and advised that a request had come from the March 2022 Audit Committee meeting to have a standing item at each Agency Board and Audit Committee meeting to discuss any potential new risks that should be considered for the Corporate Risk Register.

The Chair of the Audit Committee highlighted that the intention of this item was to complement the existing arrangements and allow private and regular broad discussions on enterprise level risks.

The Chair noted that the greatest risk to risk management is complacency. It is important to have the opportunity to step back to consider the relevant risks of strategic discussions. The Acting Chief Executive also advised that as part of the Annual Operating Plan process, the Agency Management Team is carrying out a holistic review of areas of risk and asked Anne Turner and Katie Cairnie to provide any comments and views.

Anne Turner commented that concerns had been raised previously by the Audit Committee that SEPA is not always quick enough at raising risks and highlighted that this is a way to formerly capture all risks that are part of wider conversations as well as those formerly logged in the risk register. An aid memoir will made available at every meeting, so it is clear whether the risk is already being addressed and how it is being mitigated. Some risks will be captured formally on the risk register, and some will be addressed via other means including internal conversations.

The Board suggested a risk around “SEPA failing to support its workforce in relation to training, development, safety and capacity” to reflect the importance of staff and the implementation of cultural change through One Planet Prosperity and the transformational change programme. The Board discussed two potential risks around Regenerative SEPA:

1. a reputational risk by not delivering; and
2. on the financial implications regarding offsetting.

The Board suggested a risk around “the failure to attract and retain talent within SEPA” and commented that risks to SEPA’s brand and security were missing as part of the digital transformation and web project.

The Board queried whether the climate emergency, regenerative SEPA, and the 24/7-365 flood alert service are areas that should be included in the risk register or were handled elsewhere.

In response Anne Turner confirmed that the team were already looking at the risk of attracting and retaining talent within the organisation and that they will further investigate the other risks raised by the Board.

The Board noted the report.

Risk Management Annual Review 2021-22 (SEPA 15/22)

The Acting Chief Executive introduced the report with Anne Turner and Katie Cairnie in attendance. Anne Turner advised that the report contains the Annual Review of SEPA’s formal risk management activity during 2021-2022 and that twice a year a report is provided to the Audit Committee where the conversation focuses the risk management process. The Audit Committee are asked to flag significant risks to the Board with the latest paper providing reassurance to the Committee that progress was being made with risks. The focus over the last year has been on re-establishing the risk management toolkit following the cyber-attack, assessing the risk of the cyber-attack, rebuilding legal registers and on bringing risk and resilience closer together. In the aftermath of the pandemic and cyber-attack, there is a more receptive culture to risk and resilience and the team have been building on this engagement.

The Board were asked to contemplate if they are happy with the approach and risk register, do they want to continue to see the full risk profile cards or see a more concise risk register in the knowledge that the Audit Committee are reviewing the full risk register. The Board agreed that a shorter, more concise risk report would be presented to the Board going forward with a more detailed report continuing to be presented to the Audit Committee with risk discussion being built into both Board and Audit Committee agendas.

Action: Acting Chief Executive/ Clerk to the Board

The Board noted the report.

Cyber Costs (SEPA 12/22)

Stuart McGregor introduced the report with David Morgan in attendance.

He confirmed that the exercise on cyber costs was completed by the end of March 2022 and that the Agency Management Team were provided with a copy of the information before it was released publicly. As of 25 April 2022, the media interest was minimal. He highlighted an error in what was published in respect of the communications costs attributed to 3x1 which were overstated as £246k, instead of £136k. All relevant parties will be informed of the correction. This amends the overall cyber costs to under £4million. Martin Grey provided further detail highlighting the essential requirement during the cyber-attack of good public communications to keep staff and regulated business involved updated on how SEPA would continue to work and fulfil its statutory obligations, as well as keeping those impacted by the data theft and publication of the stolen data informed and supported. He also noted that the importance of that communication and engagement was referenced as best practice by the independent audits and Audit Scotland.

Stuart McGregor drew the Board’s attention to the progress being made to recover debt and confirmed that additional agency resource has been recruited to assist with this area.

In response to a question on whether there were any areas of work that on reflection could have been done differently in relation to the financial impact that is now being dealt with, David Pirie confirmed that there were not. In respect of the technical aspects, SEPA was faced with pressing and stark challenges in the aftermath of the cyber-attack and he is comfortable with the choices made.

In response to a question about whether due to the speed involved, different procurement routes were used and well documented, David Pirie advised that despite being under intense pressures to implement forensic investigation work, the contracts were procured via established partner contracts and frameworks.

In response to a question about whether the costs from the impact of the cyber-attack are now concluded and whether IS and digital costs now being incurred are part of building the requirements for the future as part of the digital transformation programme, David Pirie confirmed that this was the case.

The Board noted the report.

Regenerative SEPA - Route Map (SEPA 11/12)

Bridget Marshall introduced the report with Neil Deasley and Rebecca Badger in attendance.

The Acting Chief Executive advised that this report was only for noting and to provide the Board with a detailed update including on next steps.

Neil Deasley advised that most of the update was included in the paper and route map which was one of the milestones agreed. Based on the agreement by the Board in October 2021 to deliver a new set of regenerative targets for the next ten years, the first couple of years actions are now in place. The aim of the report is to give the Board oversight and confidence and to demonstrate that there is a plan of action.

He also highlighted that the route map contains three main aims, 1) to understand where impacts are, 2) to integrate the regenerative goals and ambitions into everything SEPA does, and 3) to continue to take opportunities. An example given was the work being undertaken with Procurement to embed the regenerative goal into big strategic contracts.

The Board noted that care is required in respect of communication emphasising that before SEPA gets to regeneration, the initial stages will be related to reduction.

The Board also noted that SEPA needs to clarify what it means by net zero materials and water use, that the offsetting paper will be critical, and recognised that there will be new activities every year leading up to 2045.

In response to a question about where other Environment Agencies are with their regenerative goals and ambitions, Neil Deasley advised that he did not have that information to hand however, he will share it with the Board. He confirmed that the team is also already working with different partners.

Action: Neil Deasley

The Board suggested that authors of papers coming to the Board are encouraged to think about how their paper helps drive the regenerative agenda when completing the environment and carbon impact section on the cover note.

In response to a question on what the feedback from SEPA staff on the regenerative programme has been and how to reduce the carbon imprint of staff, Neil Deasley advised that several workshops took place to stress test some of the content of the route map and that the feedback was similar to the Board’s feedback. The workshops included what it means for staff in their day to day working life. He highlighted that there is a dedicated regenerative MS Teams channel for staff to share ideas and suggestions and that work is ongoing to develop this further.

Neil Deasley concluded the item by welcoming the feedback and advised that the team is acutely aware that the language needs to be as clear as possible and that communication is important. The route map is viewed as a flexible and living map that will evolve and change over time.

He confirmed that offsetting will be part of exploratory discussions with the Agency Management Team, followed by a strategy discussion with the Board. It will be discussed in the next few weeks with the Regenerative SEPA Board Buddy group.

The Board noted the report.

Environmental Standards Scotland (ESS) Information Notice - Verbal

Alison York was in attendance and provided a verbal update to the Board regarding Environmental Standards Scotland (ESS) Information Notices.

She highlighted that one of the powers of ESS is to require the provision of information through an Information Notice for the purpose of exercising its statutory functions. ESS launched its first investigation last year regarding the arrangements put in place by Scottish Government to execute compliance with statutory air quality limits in relation to nitrogen dioxide.

In liaison meetings with ESS, SEPA was made aware that ESS were planning to issue information notices not only to the public authority they were investigating but also to third parties and SEPA were therefore anticipating an Information Notice regarding this investigation. It was received on 18 March 2022. The Information Notice sought information on SEPA’s role in respect of the local air quality management process in respect of Part 4 of the Environment Act 1995. It contained sixteen specific questions of SEPA relating to reporting, monitoring, consultation and participation, the exercising of any powers, the working groups SEPA are part of, and how SEPA assist local authorities to develop their plans. SEPA had fifteen days to respond and complied with this timeframe on 7 April 2022.

Alison York confirmed that there was a process within SEPA to process Information Notices received from ESS.

In response to question on how many other investigations are underway and in what areas, Alison York advised that this is the only current investigation however, ESS will publish a list of investigations and already publish pre-investigation on their website.

There are currently four pre-investigations and SEPA is assisting with one of these regarding licencing enforcement regimes in relation to redundant structures and weirs in Scottish rivers.

The Board noted the update.

Board Work Programme

Report on Board Seminar 26 April 2022

The Clerk to the Board advised that two seminar sessions had taken place earlier in the day. One was on Grangemouth and the other on Regulatory Recovery Service Reform.

For the Grangemouth session the Board were joined by Pauline Silverman, Erik MacEachern, Laura Sloan and Hannah Swanson. They described the background to the Grangemouth Future Industry Board including the governance structure, the intentions around the Grangemouth Regulatory Hub and what the future would like, including details of deliverables. The team will come back to the Board as part of a session on what is SEPA’s role in delivery net zero by 2045 for Scotland. A Board Buddy group is welcome and Board members should submit their interest to the Clerk to the Board. The Board thanked all those involved for the work done.

For the second session on Regulatory Recovery Service Reform, the Board were joined by Jo Zwitserlood, Olivia Cunningham, Lauren Davidson, and Simon Bingham who provided detail on the regulatory reform and build, the programme framework, including the objectives and conditions for success, the One Planet Prosperity attributes being sought, what was already in place, the programme approach, and the priorities areas of work. The Board recognised the challenges and noted that support is already being provided by a Board Buddy group issuing an invite to the team to return for a future seminar session when required, and requesting that the Board are kept updated on timelines and progress. The Board thanked all those involved in this significant area of work.

The Board noted the update.

Board Member Engagement

In response to a question on whether engagement with SEPA staff in relation to VIBES should fall under the Board Buddy Register or be recorded separately, the Clerk to the Board advised that engagement is recorded on the Board Engagement tracker and asked that Board members ensure she is copied in on any such activity.

Harpreet Kohli advised that he had attended a workshop the previous week on Audit and Risk Committee.

Vinay Mulgundmath confirmed that he had met with David Pirie regarding technology for the future, particularly in relation to enforcement and flood monitoring. He also attended a Climate Action against Climate Change webinar on community engagement and visited an exemplar waste energy plan in Copenhagen, highlighting that numerous lessons could be learned from this site.

Julie Hutchison advised that she visited Lyne Burn in Fife to see the Water Environment Fund completed project and highlighted the obvious and positive visible social impacts.

The Board noted the update.

Board Buddy Register

The Clerk to the Board advised that a review of the register has been completed and that there had been a few changes to Board membership on groups that were received after the registered was circulated so the updates will be included in the May 2022 circulation. She advised that Nicky Chambers is joining the Future of Work, Regenerative SEPA and Environment Standards Scotland Board Buddy Groups.

She confirmed that there is a proposal that the Health & Safety Board Buddy group should not continue. John Kenny provided further detail. The Board agreed that this project should be closed.

The Board noted the update.

Board Committee Reports

Audit Committee minute of meeting held on 22 March 2022

The Chair of the Audit Committee advised that the minutes of the meeting on 22 March 2022 had been shared with the Board and highlighted two areas 1) risk management (covered earlier in the meeting, items 9 and 10) and 2) internal audit, with a reminder that it should be seen as an opportunity for learning and improvement and to gain insight and transparency on how things are working as well as making improvements within the organisation.

The Board noted the update.

People Committee Update

The Chair of the People Committee advised that the Committee had met for the second time on 21 April 2022 and received an eighty-four page, comprehensive report on surveys carried out within SEPA to gain a better understanding of what had been undertaken, how SEPA engages with staff, the systems and processes used, the detail of feedback and responses received, and actions taken.

Over the last two years several surveys have been carried out including two Future of Work surveys, monthly Wellbeing surveys, a bi-annual people survey and a few quick polls. The report provided reassurance regarding the richness of the content. One of the features of the report was a benchmarking exercise against other public sector organisations showing that SEPA had an overall higher engagement rate than many other public organisations and flagging areas for further work including training and development.

The Committee also looked at the Annual Operating Plan (AOP) following on from the last discussion of the full Board and tried to identify the issues in relation to people, culture, management and delivery in the AOP. This touched on issues such as trust across the organisation and reporting of adverse events and near misses.

While developing a workplan for the People Committee, several areas of focus were identified for the future/ The two areas scheduled for the next Committee are Health and Wellbeing and Cultural, Conduct and Behaviour. Objectives setting, performance review system, workforce flexibility and training are amongst the themes flagged for the future.

The Board noted the update.

Action Note

The Clerk to the Board provided an update to the action note:

Action 649 (Report on Board seminar – 28 July 2020 – Covid-19 lessons learnt) A full report will go to the Board when the actions are complete. Ongoing.

Action 657 (Key Lockdown decisions – SEPA 46/20) Different decisions were taken for specific matters for example the Regulatory position statements published on the website. These will be reviewed when the COVID philosophy ends. The control mechanisms around decisions was discussed at Audit Committee meetings in respect of the Decision Making Framework audit report which gave reassurance on integrity. A lot of this work was overtaken by cyber with decisions published in the responses to the independent audit reports and the Parliamentary Committee etc. Proposed closed.

Action 671 (Q1 Performance Report – SEPA 20/21) A 1:1 discussion is being arranged with the Board member who raised the question to deal with the specifics of this action while a wider Placemaking and Sector
update will come back to the Board at Strategy sessions this year. Proposed closed.

Action 677 (Chief Executive’s Report – SEPA 29/21) Given current priorities a session with the full Board is not being planned and this action is proposed closed. However, if the two new Board members would be interested in a discussion on this topic, the Clerk to the Board can arrange this. Proposed closed.

Action 678 (Chief Executive’s Report – SEPA 29/21) A Strategy Board session on decarbonisation is being planned for no later 25 October 2022. Ongoing.

Action 684 (IAF Update – 33/21) IAF is part of the Regulatory Reform project. Board Buddies have been informed and a seminar session is planned for 26 April 2022. A further session is being added to the Strategy Board agenda for 28 June 2022. Ongoing.

Action 690 (Waste Prosecution – SEPA 39/21) A seminar session is planned on sentencing guidelines for 24 May 2022. Ongoing.

Action 693 (Corporate Plan-draft outcomes/objectives and measures – SEPA 42/21) Planning for the new Corporate Plan will begin in quarter one of new financial year. Sessions will be added to the Board planner for Strategy board meetings and seminar sessions. Ongoing.

Actions 649, 678,684, 690, 693, 702, 703, and 705 are ongoing.

Actions 657,671, 677, 696, 697, 698, 699, 700, 701, and 704 are closed.