This is our first post on the new blog and if you’re just joining us for the first time please understand that we’re in the middle of a very long story. If you have been on our mailing list you will have all the details. If not, bear with us and you’ll soon pick up where we are now at.
Pol na Gille has been a major concern of saveseilsound for many years. It's an enormous fish farm positioned at the South east corner of the Isle of Shuna, clearly visible from Craobh Haven and situated in an area of outstanding natural beauty.
The site frequently receives unsatisfactory reports from SEPA, but despite this they have allowed the operators to increase the permitted biomass, despite plenty of evidence of severe damage to the seabed. We have tried and failed to get SEPA to halt the expansion.
During 2015 the SEPA database started to record tonnages and mortality figures at levels that should have been causing concern. We duly sent in an information request in an attempt to discover what was being done and what follows is a summary of the history since then.
First of all we asked certain questions of SEPA and here are extracts from their response dated 18 November 2015
Our request included:
“3. The most recent pollution report on your website in respect of Poll na Gille dates back to February 2014 and is recorded as "unsatisfactory".
(a) What was the reason for this finding?
(b) Please supply details of all steps taken by SEPA subsequently, including copies of all communications, by letter, email and notes of conversations between your officers and employees of the operators in respect thereof.
4. Poll na Gille was licensed by you to carry a maximum biomass of 1500 tonnes, but in the period between October 2013 and March 2014, both inclusive, tonnages were always in excess of this, sometimes by a factor of 50%.
(a) What steps did SEPA take in response to this?
(b) Again please supply copies of all communications, by letter, email and notes of conversations between your officers and employees of the operators.
5. During the said period the operators of Poll na Gille reported mortalities totalling 43,899 kg, with a peak in November 2013 when fish totalling 19013 kg died on the site.
(a) What action did SEPA take in response to this information? Again please supply copies of all communications, by letter, email and notes of conversations between your officers and employees of the operators.
(b) What was/were the causes of death?
(c) What procedure did the operators adopt to dispose of the resulting waste?”
Answers
“SEPA holds information relating to this however the information has been withheld from release at this time under Regulation 10 (5) (b). The text of which is reproduced below;
(5) A Scottish public authority may refuse to make environmental information available to the extent that its disclosure would, or would be likely to, prejudice substantially;-
(b) the course of justice, the ability of a person to receive a fair trial or the ability of any public authority to conduct an inquiry of a criminal or disciplinary nature;
The release of the information in question would be likely to prejudice substantially any evidence in a case prior to it being considered by the Procurator Fiscal, thus putting it in the public domain means the accused may not receive a fair trial.
The Public Interest Test was carried out in relation to the information to be withheld under Regulation 10(5)(b) of the EIRs. In this case, we recognise that Regulation 10(2)(b) requires SEPA to apply a presumption favour of disclosure. The public interest in favour of disclosure is outweighed by that in favour of withholding. Requests for such information are considered by SEPA on a case by case basis. In this case, it was determined that the public interest would not be served by the release of the information at this time.
[5c] We advise SEPA do not hold information on the procedure the operators adopted to dispose of the resulting waste.
This information is excepted under Regulation 10(4)(a) of the Environmental Information Regulations 2004.”
From this it appeared that SEPA were taking action against an operator, perhaps for the first time ever! Encouraged but perhaps not elated, we sent a further request to the Crown Office, who confirmed that not one, but two cases were currently being processed, but refused to give us any information on the grounds that to do so would interfere with the course of justice. They would not even disclose that one of these cases might be Pol na Gille.
There followed quite a lengthy exchange, in which we challenged that ruling and lost. Subsequently we discovered that one of the cases was now resolved. Nobody had been prosecuted, but matters had been settled privately between the Crown and the operator. It seemed reasonable to ask for details and we did so, but were again refused.
That, briefly, brings you up to today’s date.
We aren’t giving up and have today written to the Crown Office as follows:
"As secretary to the saveseilsound campaign group I am writing to request a review of the decision contained in the email received from yourselves on 17 February 2017 under reference R015266, but only in respect of the case described therein as closed. I accept that where there is still an ongoing investigation matters must remain secret.
I assume that you will have access to the emails which I have exchanged with the Crown Office. You will see that I requested information following the discovery by members of our group that there had been significant overstocking of the fish farm situated at Pol na Gille in our area of Seil/Shuna/Melfort during several months in 2014. The operator was a subsidiary or associated company of Marine Harvest Limited, who are one of the largest fish farm companies in the world. Our members were concerned that a seemingly respectable company had apparently behaved in breach of the conditions of its CAR licence over a sustained period, because this could not have been allowed to continue due to inadvertence.
The initial information request to SEPA in 2015 met with a refusal on the grounds that there could be a prosecution, following which I started communicating with the Crown Office. We have now arrived at a position where we have no information whatsoever, only a suspicion which may or may not be well-founded, leaving the obvious possibility of an unjustified slur on the reputation of the operator of Pol na Gille.
It is clear that the exemption from disclosure that has been applied is not absolute. During the email exchanges your colleagues have offered various justifications for their position. They have stated inter alia that there is a “strong public interest” in non-disclosure and that withholding information ensures that agencies such as SEPA can operate in a manner that is “fair and frank”. With respect the members whom I represent would challenge both of these assertions in relation to enforcement of the CAR Regulations and SEPA.
As you will know, the current CAR Regulations were introduced in 2005 and updated in 2011 under the provisions of the Water Environment & Water Service Act (Scotland) 2003. The system of regulation depends almost entirely on self-reporting of data by the operating companies, in terms of which their operatives on site record data, add it to official forms and are supposed to send it to SEPA, who presumably peruse it before adding it to their data-base.
SEPA are very proud of this system and encourage the public to inspect it and to use it as a basis for engaging with them. Without a system of environmental policemen SEPA depend very much on concerned members of the public reporting pollution incidents and the like.
Locals have had their eyes on Pol na Gille for many years. We have engaged with SEPA in connection with the application for its expanded CAR licence. Members of saveseilsound took video footage of the seabed, which I respectfully ask you to view. It can be accessed here:
The footage dates from before the overstocking referred to and shows a seabed already seriously overstressed, basically an anoxic desert.
Unlike the situation with land agriculture, aquaculture proceeds unseen, unless divers take the trouble at their own expense to record what is going on. I would argue that there is a strong public interest in local residents not being discouraged from reporting such things.
To suggest that SEPA might feel intimidated in some way from operating in a “fair and frank” manner seems counter-intuitive. Surely their job is simply to pass on information filed by the operators when the data submitted suggests that an offence may have been committed?
Available evidence suggests that there is a greater threat to environmental regulation from SEPA becoming too friendly towards the industry. Recently local residents have been reading an exchange of emails between SSPO and SEPA, which you can access here:
In general our members have been concerned that during the entire period of the CAR regime there does not yet appear to have been a successful prosecution. During that period there have been several hundred, perhaps some thousands, of individual breaches of the regulations, with hundreds of “unsatisfactory” notices issued to individual sites. There have been several incidents of catastrophic mortalities, which have been left to the industry to sort out without official monitoring.
My requests for information have covered the period during which the COPFS Wild Life Crime Unit has been operating and have resulted in disclosure of only the two cases subject to the recent email exchanges. Historically there may also be the following two incidents:
Anecdotal evidence locally suggests that, following evidence submitted by a member of the public who had been diving, the former operator of the site known as Port na Cro was issued with a formal warning many years ago. Apparently the issue was “resolved” by the “Allowable Zone of Effects” being expanded to include the area that they had polluted.
In 2010, according to reports in the press, a prosecution was begun against two employees of the fish farm at Hoganness on Shetland, see here:
The 2010 incident is interesting, partly because we have also heard that the prosecution was duly initiated but failed for some technical reason, but also because it shows that it was the SSPCA, a charity, that was first on the scene and alerted the authorities. One is left with the assumption that without that private involvement nothing would have happened. There is also the uneasy suspicion that Crown Office may have acted with less than exemplary efficiency on that occasion.
In summary, local residents such as myself are left with the serious concern that the system of regulation is simply not working. Surely there is a “strong public interest” in reassuring us that that is not the case?
I look forward to hearing from you."
