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Board meeting - 27 September 2022

The one hundred and eighty-second meeting of the Agency Board took place on Tuesday 27 September 2022 at 1.00pm via MS Teams.

Safe SEPA @ Board:

The Clerk to the Board advised there were no updates and advised Board member to flag any items they had from out with SEPA. No items were raised by the Board.

Chair's opening remarks

The Chair welcomed everyone to the meeting. He welcomed Martin Grey and Kieron Gallagher and Fiona Mactaggart as the sub for John Kenny for the public session of the meeting.

The Chair confirmed that 10-minute breaks had been scheduled after item 9 and before the private session.

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

Matters arising

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

Action 715 – Chief Executive’s Report (SEPA 27/22): An email was sent to Board members on 11 August 2022 detailing the response to this action. Proposed closed.

Action 716 - Financial Monitoring Report Ending 31 May 2022 – Analysis of Financial Risks (SEPA 29/22): The Audit Committee discussed this at the Audit Workshop on 29 July 2022 and will discuss further on 27 September 2022. Proposed closed and will be picked up on Audit Cttee action note.

Action 717 – Consideration of New Risks (SEPA 30/22): An email was sent to Board members on 11 August 2022 detailing the response to this action. Proposed closed.

Chair's report - verbal

The Chair advised that due to the summer period there had not been a huge amount of activity however he did meet with Nicole Paterson, SEPA’s new, incoming Chief Executive on 15 August 2022 and took part in a Board session on flooding on 25 August 2022 regarding the strategic framework that SEPA has responsibility for on behalf of the Scottish Government. He also met with the Agency Management Team (AMT) on 7 September 2022 prior to the Board Planning session on the same day.

The Chair met with Kevin Quinlan, Scottish Government, on 29 August 2022 to discuss the evolving picture of resourcing including budget queries and salmon farming in Scotland. The Chair confirmed that he is keen for early ministerial resolution on several items following the Grigg’s Report. Also discussed was water management and whether the current approach or framework regarding water scarcity needs updated to match requirements. These discussions are part of preparatory work ahead of January 2023 when budget figure and resourcing envelopes will be released.

The Chair advised that he will be unavailable from 30 October 2022 for an unknown (expected to be minimal) duration and that Fran van Dijk, Deputy Chair will become Acting Chair during this time. He noted that while there is never a good time to be unavailable, this is the best possible time as the new Chief Executive will be in post by then.

The Acting Chief Executive advised that with agreement from the Chair, she will remain as Acting Chief Executive for two weeks until 6 November 2022, to aid and support the transition when Nicole Paterson starts as Chief Executive on 24 October 2022.

The Board noted the update.

Management reports

Chief Executive's Report (SEPA 36/22)

The Acting Chief Executive introduced the report with Donna Brodie and Roisin Lochrin-Hopkins in attendance.

The Acting Chief Executive highlighted that within the Programme for Government 2022-2023 there remains a real focus on the environment and drew attention to the volume of work contained in the programme for SEPA. She advised that some areas are work that has been rolled over, with some new work that requires in cases both direct role and contributions from SEPA. She sighted a number of examples, including a roadmap for transition for the energy sector, development of a new hydrogen industry, the nation litter and fly-tipping strategy, the next climate change adaptation programme and the new flood strategy, aquaculture and water scarcity.

She advised that Bridget Marshall is meeting with Scottish Government to gain further clarity specifically on the Programme for Government and the other work SEPA does. Our sponsor unit is aware of the need to create a cohesive plan of all the work required of SEPA from Scottish Government and advised that there will be active discussions over the next few weeks.

Stuart McGregor provided an update on the Annual Report and Accounts and advised that this was covered earlier today at the Audit Committee. SEPA met with the Auditors, Grant Thornton on 23 September 2022 who indicated that they would not have their audit opinion ready until the end of October 2022. As a result of that and following discussion with the Audit Committee, it has been agreed that the Special Audit Committee on 10 October 2022 will be postponed and that the Annual Report and Accounts will be circulated to Audit Committee, excluding the opinion from Auditors, in the next few weeks for review and comments. A Special Audit Committee meeting will be scheduled, early to mid-November 2022, with the Final Accounts being submitted to the Board for approval on 29 November 2022. This means that we will meet the statutory submission deadline of 31 December 2022.

In response to a question on whether SEPA would be subject to the Parliamentary Committee again, Stuart McGregor advised that there is nothing to indicate this.

David Harley drew attention to the significant effort made by a large number of staff over a prolonged period of time regarding water scarcity and that this is something SEPA will learn from. The Chair endorsed the amount of work involved and the level of engagement required, particularly in the Fife area and noted it was handled calmly, professionally, and successfully.

In response to question regarding 2.4 (Intensive Agriculture – Best Available Techniques Conclusion Reviews) and the key things cited as areas to be learned and applied to other areas, Lin Bunten advised that one of the key things is to have a cast iron plan with clear deadlines and objectives and clear direct lines regarding decision making. In addition, improved clarity regarding the roles and responsibilities of operators verses SEPA’s role as the regulator with regards to gap analysis and the assessment Best Available Techniques (BAT) is important. She advised that these reviews are a major exercise and there have been significant challenges over the last two years in terms of the timetable. She noted that the Intensive Agriculture sector was a big sector and that SEPA had to find new ways, to make legally compliant licence determinations. The Waste Sector is the next sector to be reviewed and we are on track to achieve the March 2023 deadline.

In response to questions on how equipped SEPA is to be able to look forward over a number of years and see trends such as water scarcity and ammonia nitrates implications on the agriculture sector, as well as the long term aspirations regarding climate and discharges to rivers and are they compatible with sector targets by the end of the decade, and what conversations are underway with Scottish Government and industry to achieve these targets, the Chair and Acting Chief Executive advised that is part of ongoing discussions with Scottish Government including the Acting Chief Executive participating in a round table discussion the previous week on Water Resilient Cities and that there is a real opportunity for the Board with SEPA’s next Corporate Plan, the Scottish Government’s new Adaptation Programme and the new Flooding Strategy. The Acting Chief Executive highlighted the challenges to invest in both mitigation and adaptation.

In response to a question on 2.3 (Enforcement: Illegal Activity) and the increase in illegal sites since April 2022 and whether this is due to an increase in illegal activity or whether SEPA is more sighted on illegal activity, Lin Bunten advised that it is a combination of both and that SEPA operates on an intelligence led basis which allows us to work with partners to identify illegal activity.

In response to a question on when all of the SEPA offices will be re-opened, the Acting Chief Executive advised that not all of the offices will reopen due to a shift in SEPA’s Estates Strategy. Fiona Mactaggart provided an update and advised that of the twenty-three buildings we had progressed from two being open in June 2022 to eleven as of today. The third and final reopening batch has been confirmed and a further eight will reopened by November or December 2022. Two offices at this stage are not being reopened, one is currently in consultation with staff, and another requires significant repairs.

In response to a follow up question on what percentage of our staff will have access to a workplace now, Fiona Mactaggart advised approximately 50%. The Acting Chief Executive acknowledged that the target is for all staff have access to an office however, the important evolving question is how many of the staff will want or require going into the offices. It is early stages but currently not many are.

In response to a question on 2.5 (Deposit Returns Scheme, DRS) and whether we have sufficient resources to carry out audits, inspections and enforcement activity, David Harley advised that we are fully funded for the regulation and are successfully set-up to service DRS.

In response to a question on 2.2 (Oil Rig-Transfrontier Shipment of Waste) and how prepared SEPA is for the future with the evolving sector relating to the decommissioning of oil rigs, and what the feedback has been from industry, David Harley advised that there are some lessons learned which he can share regarding serving of notices on a non-UK company, and that SEPA are being more proactive and intelligence led in this area. SEPA has also been working with other agencies and DEFRA to update the relevant legislation. He advised that he will circulate more information regarding the industry response to those interested and is happy to engage further with Board members on this issue.

Action: David Harley.

The Board noted the report.

Quarter 1 Performance Report (SEPA 35/22)

Bridget Marshall introduced the report with Donna Brodie and Roisin Lochrin-Hopkins in attendance.

The Chair highlighted that “effective measures” for SEPA will become one of the priorities for the incoming Chief Executive.

The Acting Chief Executive noted the requirement for effective measures and advised that there will be an opportunity for the Board to focus on measure during the discussion on the next Annual Operating Plan in October 2022. With regards to the agreed measures for 2022-2023, effort has gone into Quarter One relating to measures, reporting and data mechanisms. There was an offsite meeting with the Board on 7 September 2022 to set the context and highlight pressures with regards to performance and draw attention to the fact that pressures and the impact they will have has grown during the year.

In response to a question regarding clarity on the difference between Green, Amber and Red, Donna Brodie advised that broadly speaking Green means the action is on track, Amber means work is required to get back on track, but it is still expected to meet target and Red means it may not be delivered. The Board noted that a brief explanation of the RAG status should be included in the Performance Reports.

Action: Bridget Marshall/ Donna Brodie.

The Board noted that specific and clear language should be used within the performance report and Donna Brodie advised that the Stacey Barr approach to performance reporting is being development and that she is looking for Board Buddy volunteers to assist with this.

Nicola Gordon and Harpreet Kohli expressed interest in being part of the Performance Reporting Board Buddy Group.

In response to a question regarding Greenhouse Gas Emissions terminology being clearer and universally aligned, and why the baseline for emissions is 2006-2007, Bridget Marshall advised that there is a lot of definition regarding the Greenhouse Gas Emissions, and that she will get a more detailed explanation from the team but advised that the baseline is 2006-2007 because that is when the legislation came into force to measure Greenhouse Gas Emissions.

Action: Bridget Marshall

The Board highlighted that there is an opportunity to streamline the Executive Summary. The Acting Chief Executive advised that this will be considered, and the summary made briefer.

The Board noted that a synthesis and analysis on what certain actions would require to be achieved would be beneficial in the overview.

The Board noted the report.

Chemical Framework (SEPA 37/22)

Janice Milne introduced the report (David Harley was having technical issues) with Carolyn Vannan, Emma Taylor, Olivia Downey, Ashley Roberts; Alex Pritchard; Janine Ballantine, Janet Wade and Olivia Cunningham in attendance.

She provided an introduction to the Chemicals Framework and Network. The Network is in the early stage of development we are already seeing benefits. Emma Taylor presented further detail on the Chemicals Framework and Network, Janet Wade presented on Persistent Organic Pollutants (POPs) and how it relates to Waste, Alex Pritchard presented on priorities for Water and Ashley Roberts presented on SEPA’s work with the Environment Agency (EA), particularly the prioritisation and early warning system for chemicals.

In response to a question on the differences because of the Phase 2 sector approach, Janice Milne advised that the framework is still at a very early stage and that we are gaining an understanding on what is expected of SEPA now and in the future and having in depth discussions with particular industry areas e.g. Scottish Water. Carolyn Vannan advised that it has resulted in a changed and phased approach and that a concerted effort is being made to best utilise a small number of technical staff. New duties and chemicals are coming forward and we are undertaking ongoing work with partners and other environment agencies to ensure SEPA is involved in future planning work. Ashley Roberts highlighted the Chemical Investigations Programme with Scottish Water as an example and advised that the framework cuts across sectors and provides an example of the importance of collaborative working. Emma Taylor listed other examples of existing relationships we have to ensure that the chemicals aspect is included in stakeholder conversations.

In response to a question regarding the criteria being used to prioritise and the process involved to do that, as well as SEPA’s role in proactively identifying innovative alternatives, Janice Milne advised that there are existing regulatory frameworks that require implementation and new regulations, and that work is ongoing to establish how to allocate and prioritise resources accordingly. Regarding innovation, it is not SEPA’s role to proactively innovate but it would be our role to provide advice for companies seeking to innovate and implement a new process as the regulator.

In response to a question on what engagement there has been with Environment Standards Scotland (ESS) regarding chemicals, Bridget Marshall advised that SEPA has ongoing liaison meetings with ESS and that chemicals are not on the ESS agenda in the short term but could be in the future.

In response to a question on whether the network is at the sustainable growth agreement phase with a strategic partner, or is it still in it’s first phase, the Acting Chief Executive advised that the team have outlined the scale of the challenge and detailed specifically what is required of SEPA and the priorities. As for the future, it will depend on the most appropriate method or approach to achieve the outcome.

The Chair noted that it would be good for this area to come back to the Board in the future including an update on the beyond compliance phase 2 way of working, monitoring and enforcement, partner relationships.

The Board noted the report.

Update on Significant Improvement in Sharing SEPA's Flood Maps (SEPA 38/22)

David Pirie introduced the report with Vincent Fitzsimmons and Jennifer McWhirter (in her role as Corporate Solicitor) in attendance. For the duration of this item, Jennifer McWhirter delegated Clerk to the Board responsibilities to Kari Speirs.

David Pirie advised that there is no point in having the best tools in the world if the information is unavailable.

Vincent Fitzsimons advised that SEPA will be releasing the flood hazard maps under Open Government Licence (OGL). SEPA’s flood hazard maps and river levels are the two most popular sources of information with the public and account for 21% of all page views on the SEPA website. River levels were made freely available in 2021 and flood hazard maps will be the first flood maps being released.

He advised that the flood hazard maps are a mosaic of lots of information sources provided by third parties many of whom had a keen interest in the associated intellectual property rights. Therefore, it has taken months of negotiation involving technical experts and legal resource to get us to the position where we can legally share this information. Due to the requirement of specialist software, members of the public will still access the maps through the website however, changes will be made to the legal restrictions on the use. As part of the release, FAQs and guidance will be made available.

He highlighted that the whole process represents a new working relationship between the legal specialists and the flood modellers. He advised that the suite of maps will be released in incremental stages.

Jennifer McWhirter advised that a group was established a few years ago to look at how to make the process easier for the public and more efficient internally. A lot of planning was involved to ensure communication with relevant stakeholders, identification of who the key licensers were, and the data sources used to create each data product, to prioritise the sets of flood maps for release. She advised that work was required to make sure that all permissions were in place and ensure SEPA was legally protected including the renegotiation of licences. A process has now been created that will make future iterations easier and there is a communications plan and risk mitigation in place.

The Chair noted that this work reflects collaboration working, digital transformation, finding efficiencies and impactful improvements.

In response to a question regarding the risk of complaints and the difference between this area and the established complaints process, Vincent Fitzsimons advised that the procedure has been developed over time and is about reducing concerns. Jennifer McWhirter advised that a lot of the concerns with partners related to the time involved due to constraints and that there were clear, consistent, standardised responses drafted to respond to members of the public to ensure consistency, confirming that the maps will be reviewed at regular intervals.

In response to a question on how we assist individuals to interpret the data, Vincent Fitzsimons advised there will be guidance and a set of FAQs available and that we are liaising with SCC (SEPA’s Communications Centre) and providing them clear guidance and standard crib sheets that will give clarity on what the maps can and cannot be used for.

The Board noted that this is win for SEPA, a win for the public and a win for the wider business and should be celebrated.

The Board noted that it would be of interest to review traffic to the website in a few months and consider what this means in terms of efficiencies.

In response to a question on when this will be communicated to partners and when will the Board see visibility, Vincent Fitzsimons advised that in the paper it stated the launch would be on 30 September 2022 however, this has been delayed to the end of October 2022 to ensure SEPA are able to speak to all key partners first. Discussions are ongoing with insurance, industry, heads of planning, and local authorities.

The Chair advised that it would be helpful to report back on the usage and reaction in the CEO Report in a few months.

The Board noted the report.

Board Work Programme

Board Member Engagement

Philip Matthews advised that with Nicola Gordon he had visited a Flood Protection Scheme over a month ago and passed on their thanks to those involved.

Philip Matthews highlighted the Nuclear Decommissioning Summit held in Edinburgh last month. This is a UK wide event, and the Nuclear Decommissioning Authority (NDA) is keen on enhancing its engagement in Scotland. Màiri McAllan, Minister for Environment, Biodiversity and Land Reform spoke at the event. Topics discussed were the new Energy Strategy and Energy Transition regarding nuclear decommissioning sites around Scotland. Alan Cumming, Deputy CEO of NDA and Directors of Sustainability and Environment asked to speak to him about engagement with SEPA and would value a meeting with the Chair and Chief Executive in relation to phase 2, collaboration and sustainability.

The Board noted the update.

Board Buddy Register

The Clerk to the Board advised that she has not been informed of any updates not included in the register and confirmed that earlier in the meeting Donna Brodie had asked for expressions of interest for Performance Measures and that Nicola Gordon and Harpreet Kohli had expressed interest. She asked for Board approval and highlighted that Terms of Reference would be drafted.

In response to a query on Board Buddy Groups that require to be put on hold, a review was undertaken and will be reflected in the Board Buddy register presented to the October Strategy Board – ESS, International Services, Future of IT and Regulatory Practice are to be moved to archive.

The Board noted that Net Zero may have been premature but will become important throughout October 2022, and that Communications has more meetings that have taken place and are scheduled then currently reflected on the register.

It was agreed that Future Design of IT, Data & Information, Environmental Standards Scotland, International Services and Regulatory Practice can be removed.

The Board noted that the most helpful way going forward for Board Buddy Groups is to have engagement and early development linking groups into areas within the Annual Operating Plan for 2023-2024. Board Buddy Groups should have a specific action and end point and be managed by the AMT lead.

The Board approved the new Performance Measures Board Buddy Group.

The Board noted the update.

Board Committee Reports

Audit Committee - verbal update of meeting held on 27 September 2022

The Chair of the Audit Committee advised that there was an Audit Committee earlier that morning, 27 September 2022 which included a Finance report. There are several challenges in the current financial year managing competing requirements.

The role of internal audit was discussed with progress made including an early review of the audit programme to ensure the most leverage to achieve both assurance in respect of risk and identify improvements opportunities. A number of improvements were highlighted in the recent audit reports.

She advised that the bi-annual risk paper was on the agenda and that a discussion had taken place on how risk is being managed as well as the interaction of new risks identified by the Committee and the Board and the development of a suitable process to give assurance. Performance Management is an example where the Committee discussed options to ensure assurance is provided that this will be progressed in due course. Proposals will come to the Board in October 2022 on a variety of areas discussed at the Audit Workshop in July 2022 including amending the Audit Committee to be an Audit and Risk Committee, and agreeing the financial reporting requirements to allow the Committee to provide detailed scrutiny monthly with a summary report being presented to the Board on a quarterly basis.

The Board noted the update.

People Committee Update

The Chair of the People Committee advised that last formal meeting had taken place on 29 August 2022 and included a discussion with four Unison representatives, which was very helpful. They spoke about their role and development including in the co-production of specific HR policies. They talked positively about the regular meetings held with SEPA including weekly meetings with John Kenny and the Head of HR.

He advised that Unison had raised some concerns regarding the Listening Exercise. They had encouraged staff to contribute and were looking for assurance that the outcomes would be shared with staff and used as an opportunity to rebuild trust. They also raised a concern in respect of the increased cost of living including travel and fuel.

Unison wants to ensure that moving forward, the correct policy background is in place to ensure that members’ concerns can be raised. The People Committee provided assurance that they would facilitate work to develop trust and guidance. The Chair or the Committee concluded that overall, it was a positive discussion.

He advised that the two substantive items covered were Workforce Planning which started in 20220 and had been restarted earlier in 2022 including a framework on what a five-year workforce plan will need to contain, which was discussed and shared with the Committee. The Workforce Plan template has been added to Diligent Boards. The other substantive item covered was the Listening Exercise with further discussion including in respect of our response. These discussions have been superseded by the series of further meetings involving People Committee members over the last few weeks related to the outputs which will be shared in the private session, item 16.

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 2022 (COVID-19 lessons learnt) Update: A full report will go to the Board when the actions are complete. Ongoing.

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

Action 684 – IAF Update (SEPA 33/21)
Update: A seminar session will be planned for later this year. Ongoing.

Action 702 – Standing Orders (SEPA 06/22)
Update: 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. This is being arranged for the seminar session on 25 October 2022. Ongoing.

Action 703 – Standing Orders (SEPA 06/22)
Update: The Board asked that the youth engagement part of the action remain open. Proposed closed – raise awareness of Board members, meetings, and published papers on social media. Ongoing – Youth engagement.

Action 710 – Chief Executive’s Report (SEPA 14/22)
Update: This report is likely to be published in September 2022 and the board will be notified when the report is published. Ongoing.

In response to a question regarding clarity on the seminar session item detailed in the action note (Action 678), Bridget Marshall advised that the focus is on using the regulatory framework and existing powers and duties and not on the energy side. This would need to be a separate session and consideration will need to be given as to when it is suitable.

In response to a question regarding the November 2022 meeting, the Clerk to the Board confirmed it will be on MS Teams.