New section 62ZA Special provision with respect to hazardous waste in England and Wales
510 Subsection (1) contains a power to make regulations to make provision about, or connected with, the regulation of hazardous waste.
511 Subsection (2) contains further details about the provision that can be made under the power in subsection (1). This includes prohibitions or restrictions on what can be done with hazardous waste, requirements on how such waste may be kept, the registration of persons in control of hazardous waste, and the keeping and inspection of records related to hazardous waste. Such regulations may also impose civil sanctions or create criminal offences in relation to contraventions of the regulations.
512 Subsection (3) states the maximum penalty that regulations made under this section can impose in relation to criminal offences. That maximum penalty is two years’ imprisonment.
513 Subsection (4) introduces a definition of "civil sanctions". This is defined as the type of sanction in Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
514 Subsection (5) makes further provision about civil sanctions. It states that the conduct which has led to the sanction need not be an offence. The regulations may impose civil sanctions, even if the person imposing them is not a "regulator" within the meaning of the Regulatory Enforcement and Sanctions Act 2008.
515 Subsection (6) contains further details as to what the regulations may provide for. This includes waste regulation authorities (the Environment Agency in England and Natural Resources Wales in Wales) supervising activities authorised under the regulations as well as the persons who carry out those activities. The regulations may also make provision about those regulators maintaining records (including registers), the regulator or person carrying out an activity in relation to hazardous waste recovering certain expenses or charges, and appeals to the Secretary of State or Welsh Ministers against the decisions of the Environment Agency and Natural Resources Wales respectively.
516 Subsection (7) clarifies that this section is subject to section 114 of the Environment Act 1995. This means that the Secretary of State or Welsh Ministers can appoint another person to determine appeals on certain matters listed in section 114.
517 Subsection (8) allows the regulations to confer functions on the Secretary of State, Welsh Ministers, the Environment Agency or Natural Resources Wales in relation to hazardous waste.
518 Subsection (9) is a power to make incidental, consequential and transitional provision, and to allow different provision for different purposes.
519 Subsection (10) inserts a definition of "mixing." This is to ensure that any hazardous waste that is mixed or diluted (perhaps to the extent that it is no longer hazardous waste) can still be regulated under regulations made under this section.
520 Subsection (11) introduces definitions of "activity", "hazardous waste controller", "relevant national authority", and "specified". "Activity" is defined in relation to hazardous waste. The effect of the definition is that anything defined as an activity can be regulated under the new power in relation to hazardous waste. "Activity" includes (among other activities) producing, keeping, treating, transporting, disposing and classifying hazardous waste, and directing and supervising others carrying out such an activity in relation to hazardous waste. "Hazardous waste controller" is defined as any person who carries out an activity (as defined above) in relation to hazardous waste. "Relevant national authority" is defined as the Secretary of State in England and Welsh Ministers in Wales. "Specified" is defined as specified in the regulations made under this section.
521 Subsection (3) of clause 57 amends section 75 of the Environmental Protection Act 1990 to insert a new definition of "hazardous waste" and "waste list". The new hazardous waste definition is inserted into section 75 of the Environmental Protection Act 1990 in a new subsection (8A). Hazardous waste is defined to include any waste listed in the waste list as hazardous, waste listed in regulations made under section 62A(2) of the Environmental Protection Act 1990, and waste treated as hazardous for the purposes of regulations made under section 62ZA of that Act or the Hazardous Waste (England and Wales) Regulations 2005 or the Hazardous Waste (Wales) Regulations 2005. The new waste list definition is inserted into section 75 of the Environmental Protection Act 1990 in a new subsection (8B). It is defined as EU Decision 2000/532 (establishing a list of wastes) as it has effect in England and Wales.
522 Subsection (4) of clause 57 amends the table in section 160A(2) of the Environmental Protection Act 1990, as inserted into that Act by this Bill. The changes require the affirmative parliamentary procedure to be used where the regulations made under the new section 62ZA create criminal offences, increase the maximum penalty for a criminal offence, or create civil sanctions.
523 Subsection (5) of clause 57 amends section 41 of the Environment Act 1995. The effect of this amendment is to enable the Environment Agency and Natural Resources Wales to make charging schemes as a means of recovering costs incurred in performing their functions under any regulations made under new section 62ZA of the Environmental Protection Act.
524 Subsection (6) of clause 57 amends section 114 of the Environment Act 1995, so that the Secretary of State can appoint an appropriate person to determine appeals under new section 62ZA of the Environmental Protection Act.
Clause 58: Hazardous waste: Northern Ireland
525 Clause 58 amends Articles 30, 31 and 82 of the Waste and Contaminated Land (Northern Ireland) Order 1997.
526 Subsection (2) amends Article 30 of that Order, which provides for the making of regulations to control the management of special waste (referred to as "hazardous waste" in Article 30(1) of that Order) in Northern Ireland.
527 Subsection (2)(a) substitutes a new paragraph into Article 30(1) of that Order which incorporates a revised and expanded power to make regulations that make provision for, about, or connected with, the regulation of "hazardous waste", which it defines as controlled waste that is or may be dangerous or difficult to treat.
528 Subsection (2)(b) amends Article 30(2) of that Order by inserting new sub-paragraph (za) before sub-paragraph (a) and new sub-paragraph (h) after sub-paragraph (g). New sub-paragraph (za) expands the power in Article 30(1) to allow the regulations to prohibit or restrict the treatment, keeping or disposal of hazardous waste or any other activity in relation to such waste. New sub-paragraph (h) expands the power in Article 30(1) to allow the regulations to contain provision for, about, or connected with the imposition of civil sanctions.
529 Subsection (2)(c) inserts new paragraphs (2A) and (2B) into Article 30 of that Order. New paragraph (2A) introduces a definition of civil sanctions for the purposes of Article 30. "Civil sanctions" are defined as a type of sanction for which provision may be made under Part 3 of the Regulatory Enforcement and Sanctions Act 2008. New paragraph (2B) makes further provision about civil sanctions. New paragraph (2B) states that regulations made under Article 30 may include civil sanctions even if the conduct leading to the sanction is not an offence or the person imposing them is not a "regulator" within the meaning of Part 3 of the the Regulatory Enforcement and Sanctions Act 2008. New paragraph (2B) allows the Department of Agriculture, Environment and Rural Affairs to make regulations that impose civil sanctions even if the Department cannot make provision for the imposition of civil sanctions under Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
530 Subsection (2)(d) inserts new paragraphs (3A) and (3B) into Article 30 of that Order after paragraph (3). Paragraph (3A) enables any regulations made under the power in Article 30 to make consequential, supplementary, incidental, transitional, transitory or saving provision. Paragraph (3B) sets out the definition of "hazardous waste" for the purposes of Article 30. This definition replaces the definition currently set out in Article 30(1), which will be removed once that paragraph is replaced through changes made by subsection (2)(a) of this clause.
531 Subsection (3) amends Article 31 of that Order, substituting "special waste" for "hazardous waste" in paragraph (2)(b) of that Article.
532 Subsection (4) amends Article 82 of that Order. This inserts new paragraphs (1D) and (1E) after paragraph (1C) (as inserted by this Bill). These new paragraphs clarify the Assembly procedure to be used in relation to the new powers contained in Article 30. New paragraph (1D) clarifies that Article 82(1) does not apply to regulations made under Article 30 that create a new civil sanction. This means that the creation of a new civil sanction under Article 30 is subject to the affirmative Assembly procedure. New paragraph (1E) states that where Article 82(1) does not apply given Article 82(1D), the affirmative Assembly procedure must be used.
Clause 59: Transfrontier shipments of waste
533 Clause 59 amends section 141 of the Environmental Protection Act 1990. Section 141 of that Act contains a power to make regulations to prohibit or restrict waste imports and exports. This clause amends that section to allow regulations to be made to regulate waste imports or exports or the transit of waste for export.
534 Subsection (1) introduces amendments that will be made to section 141 of the Environmental Protection Act 1990 by subsections (2) to (7).
535 Subsection (2) amends the heading of section 141. Paragraph (a) replaces the words "prohibit or restrict" with "regulate". Paragraph (b) adds "the transit of waste for export" to the heading of the section.
536 Subsection (3) replaces the existing subsection (1) and adds new subsections (1A) and (1B) to section 141. New subsection (1) gives a power to the Secretary of State to make regulations about, or in connection with, the regulation of waste imports and exports and the transit of waste for export. New subsection (1A) gives further detail on the provision that can be made by those regulations. This includes banning or restricting waste imports and exports, the landing and loading of waste in the UK, loading waste for export, or the transit of waste for export. New subsection (1B) clarifies that regulations made can include those relating to the intended final destination of the waste or the places the waste will travel through (before reaching its final destination).
537 Subsection (4) substitutes subsection (3) of section 141 with a new subsection (3). This allows the regulations made under section 141 to confer functions on the Secretary of State, the Environment Agency, Natural Resources Wales the Scottish Environment Protection Agency, or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. Those functions may include functions related to the enforcement of the regulations. The regulations may give those bodies discretion as to how they exercise the functions given to them.
538 Subsection (5) omits subsection (4) of section 141, because it is redundant given the new subsection (3). New subsection (3) can now be used to confer functions on the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency, or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
539 Subsection (6)(a) omits paragraph (a) of section 141(5). As with subsection (4), which this clause also omits, new subsection (3) means that this paragraph is no longer needed.
540 Subsection (6)(b) inserts new paragraph (aa) after omitted paragraph (a) of section 141(5). New paragraph (aa) allows the regulations made under this section to issue directions regarding how the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland exercise their functions when regulating waste imports and exports and the transit of waste for export.
541 Subsection (6)(c) omits "prescribed in or under the regulations" from paragraph (b) of section 141(5).
542 Subsection (6)(d) inserts new paragraphs (ba) and (bb) after paragraph (b) of section 141(5). New paragraph (ba) allows the regulations to include provisions about fees or charges to the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. Such fees and charges are to be paid by persons involved in the import or export of waste, or the transit of waste for export. New paragraph (bb) contains further provision in relation to those fees and charges. This states that the regulations may provide for the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland to use those fees or charges to meet the costs they have incurred when regulating waste imports and exports and the transit of waste for export.
543 Subsection (6)(e) amends paragraph (d) of section 141(5). Subsection (5)(e) substitutes the reference to section 69(3) of the Environmental Protection Act 1990 with a reference to section 108(4) of the Environment Act 1995. This is because section 108(4) of the 1995 Act is a similar provision (conferring similar powers) to section 69(3) of the 1990 Act, and section 69 of the 1990 Act has been repealed. This follows the approach taken in section 140 of the Environmental Protection Act 1990. This amendment allows the regulations to confer powers of entry and seizure in relation to the enforcement of the regulations.
544 Subsection (6)(f) amends paragraph (e) of section 141(5) and replaces the words "authorities under the regulations" with "waste regulation authorities". This is to make clear that the reference to "authorities" is to "waste regulation authorities", as defined in the Environmental Protection Act 1990 (as read with section 141(7)).
545 Subsection (6)(g) inserts new paragraphs (fa) and (fb) into section 141(5). New paragraph (fa) allows the regulations to make provision allowing HMRC to disclose information to the Environment Agency, Natural Resources Wales, the Scottish Environment Protection Agency or the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. New paragraph (fb) allows the regulations to confer functions on customs officials (designated under the Borders, Citizenship and Immigration Act 2009) in relation to seizing or detaining waste that has arrived at or entered into the UK or will go out of the UK.
546 Subsection (6)(h) inserts new paragraph (h) into section 141(5). New paragraph (h) allows the regulations to make provision about, or connected with the imposition of civil sanctions.
547 Subsection (7) inserts new subsections (5B) to (5E) into section 141 after subsection (5A).
548 New subsection (5B) introduces a definition of "civil sanctions". This is defined as a type of sanction in Part 3 of the Regulatory Enforcement and Sanctions Act 2008.
549 New subsection (5C) makes further provision about civil sanctions. It states that the conduct which has led to the sanction need not be an offence. The regulations may impose civil sanctions, even if the person imposing them is not a "regulator" within the meaning of the Regulatory Enforcement and Sanctions Act 2008.
550 New subsection (5D) clarifies where regulations made under section 141 can apply. The regulations can make provision in relation to the sea or seabed within the UK Continental Shelf (designated under the Continental Shelf Act 1964) or the exclusive economic zone (designated under the Marine and Coastal Access Act 2009).
551 New subsection (5E) is a power to make incidental, consequential, supplementary and transitional provision. This includes a power to make such amendments to primary legislation or retained direct EU legislation.
552 Subsection (8) inserts various definitions into subsection (6) of section 141. Definitions are inserted for "importation", "exportation", "primary legislation" and "transit of waste for export". "Exportation" and "importation" is defined as waste that leaves the UK or waste that arrives at or enters into the UK respectively. "Primary legislation" is defined as an Act of Parliament, a Measure or Act of the National Assembly for Wales, an Act of the Scottish Parliament, or Northern Ireland legislation (as defined in section 24(5) of the Interpretation Act 1978). "Transit of waste for export" is defined as moving or keeping waste that has arrived in the UK in order to facilitate it leaving the UK.
553 Subsection (9) amends the table in section 160A(2) of the Environmental Protection Act 1990, as inserted into that Act by this Bill. The purpose of the table is to detail the circumstances in which instruments made under those powers are subject to the affirmative parliamentary procedure. The amendments mean that the affirmative parliamentary procedure must be used where regulations under section 141 confer new powers of entry, seizure or detention, provide for new fees or charges to be paid, create a criminal offence, increase the maximum penalty for a criminal offence, or create civil sanctions. The affirmative procedure must also be used where section 141 regulations amend primary legislation or retained direct principal EU legislation.
554 Subsection (10) amends section 41 of the Environment Act 1995. Under section 41, the Environment Agency, Natural Resources Wales and the Scottish Environment Protection Agency can make charging schemes in relation to particular matters. Paragraph (a) substitutes paragraph (d) of section 41 of the 1995 Act with a new paragraph (d). This will allow the Environment Agency, Natural Resources Wales and the Scottish Environment Protection Agency to create a charging scheme to recover their costs in performing their functions in relation to the import or export of waste, or the transit of waste for export. Paragraph (b) inserts a new subsection after subsection (1) of section 41 of the Environment Act 1995. This inserts new definitions of "importation", "exportation", "transit of waste for export" and "waste" for the purposes of section 41(1)(d) of the 1995 Act. Those terms have the same definitions as in section 141 of the Environmental Protection Act 1990 (as inserted by this clause).
555 Subsection (11) amends the Transfrontier Shipment of Waste Regulations 2007. It omits paragraph (1) of regulation 46. This is because the amendments in regulation 46(1) relate to fees, and are no longer needed given the amendment made by subsection (9) above in relation to charging schemes.
Clause 60: Regulations made under the Environmental Protection Act 1990
556 Clause 60 amends the Environmental Protection Act 1990 by inserting new section 160A, and making consequential amendments to other sections of the Act. These changes consolidate the parliamentary procedure requirements for regulations and orders under the Act, including for regulations and orders made under new powers in the Environment Bill.
557 Subsection (1) of clause 60 introduces amendments that will be made to the Environmental Protection Act 1990 by subsections (2) to (6).
558 Subsection (2) of clause 60 inserts new section 160A into the Environmental Protection Act 1990.
New section 160A Regulations and orders
559 Subsection (1) of new section 160A sets out that regulations and orders under the Act are subject to the negative resolution procedure, subject to the exemptions listed in subsections (1)(a) to (d).
560 Subsection (1)(a) sets out that regulations and orders listed in subsection (2) are subject to the affirmative resolution procedure. Subsection (1)(b) sets out that regulations made by a Northern Ireland Department under section 156 of the Act are not subject to the negative resolution procedure. Those regulations are instead subject to the procedure listed in section 156(4) of the Act. Subsections (1)(c) and (d) set out that neither commencement orders nor orders under paragraph 4 of Schedule 3 to the Act (statutory nuisance) are subject to the negative resolution procedure. Such orders are not subject to any parliamentary procedure.
561 Subsection (2) of new section 160A provides a table detailing which regulations and orders made under the Act are subject to the affirmative resolution procedure. Regulations or orders made under a section listed in the first column of the table that also meet the description listed in the second column of that table are subject to the affirmative resolution procedure.
562 Any regulations made under section 34D (prohibition on disposal of food waste to sewer: Wales), 45AA(10) (separate collection of waste: Wales), 79(1ZA) (statutory nuisance) and 80ZA(11) (fixed penalty notices) are subject to the affirmative procedure. Any regulations made under section 88A (litter from vehicles: England) that set the amount of fixed penalties, detail how that penalty amount will be determined, or amend Part 4 of the Environmental Protection Act 1990 or Part 2 of the London Local Authorities Act 2007 are also subject to the affirmative procedure. Further, any orders made under section 78M(4) (offences of not complying with a remediation notice) are subject to the affirmative procedure.
563 Subsection (3) of new section 160A sets out that when the Secretary of State or Welsh Ministers make regulations or orders under the Environmental Protection Act 1990, those regulations or orders must be made by statutory instrument. However, orders under paragraph 3 of Schedule 4 to the Act do not need to be made by statutory instrument.
564 Subsection (4) of new section 160A sets out the parliamentary procedure requirements for regulations and orders made or to be made by the Secretary of State. Where regulations or orders made by the Secretary of State Under are subject to the negative resolution procedure, they are subject to annulment in pursuance of a resolution of either House of Parliament. Where such regulations or orders are subject to the affirmative resolution procedure, a draft of the regulation or order must be laid before Parliament and approved by a resolution of each House of Parliament. Subsections (5) and (6) of new section 160A contain equivalent provision for regulations and orders made by Welsh Ministers and Scottish Ministers respectively.
565 Subsection (7) of new section 160A allows for regulations or orders that can be made under the Environmental Protection Act 1990 that are subject to the negative resolution procedure to be made subject to the affirmative resolution procedure instead. Provision in regulations and orders that would otherwise be subject to the negative procedure can be included in affirmative regulations or orders.
566 The remaining subsections ((3) to (6)) of clause 60 make further amendments to the Environmental Protection Act 1990, as a consequence of new section 160A.
567 Subsection (3) of clause 60 deletes section 45B(3). Section 45B(3) is no longer needed, because new section 160A(1) applies to orders made under section 45B.
568 Subsection (4) of clause 60 deletes section 62A(4). Section 62A(4) is no longer needed, because new section 160A(1) applies to regulations made under section 62(A)(2).
569 Subsection (5) of clause 60 deletes section 78M(7). Section 78M(7) states that orders under section 78M(4) are subject to the affirmative resolution procedure. As section 78M(4) is included in the table in section 160A(2), section 78M(7) is no longer needed.
570 Subsection (6) of clause 60 amends section 161 of the Environmental Protection Act 1990. Paragraph (a) changes the heading from "regulations, orders and directions" to "Directions". Paragraph (b) removes subsections (1) to (4) from section 161. The effect of this is that section 161, as amended, only deals with directions under the Act, and not regulations and orders. Regulations and orders under the Act are instead dealt with in new section 160A, as inserted by this clause.
Clause 61: Powers to make charging schemes
571 Clause 61 makes amendments to sections 41 and 56 of the Environment Act 1995 to supplement existing charging powers available to the Environment Agency, Natural Resources Wales, and the Scottish Environment Protection Agency ("the Agencies"). These amendments relate to charging schemes and environmental licences for producer responsibility schemes.
572 Subsection (2) inserts five new paragraphs into section 41(1) of the Environment Act 1995, which creates powers to make charging schemes. Each of these powers is conferred on some or all of the Agencies. New paragraph (n) creates a power to create a charging scheme relating to producer responsibility schemes established under Schedule 4 of this Bill. It allows the Agencies to require payment of charges to them as a means of recovering costs they have incurred in performing the functions conferred on them. New paragraphs (o) and (p) create the same powers as new paragraph (n) but in relation to the End of Life Vehicles (Producer Responsibility) Regulations 2005 and the Waste Electrical and Electronic Equipment Regulations 2013, respectively. New paragraphs (q) and (r) create a power to create charging schemes to recover costs incurred by the Environment Agency and Natural Resources Wales when performing functions in relation to section 33(1) of the Environmental Protection Act 1990 (preventing the unauthorised or harmful deposit, treatment or disposal etc. of waste) or functions relating to a regulated waste operation under regulation 12(1) of the Environmental Permitting (England and Wales) Regulations 2016. This would allow fees to be charged to site operators for interventions at unpermitted waste sites or those in breach of a permit.
573 Subsection (3)(a)(i) extends the interpretation of the definition of "environmental licence" in section 56(1)(j) in relation to England and Wales. Currently that environmental licence definition only includes Waste Electrical and Electronic Equipment (WEEE) operation with a registered exemption under Schedule 2 to the Environmental Permitting (England and Wales) Regulations 2016. The definition will be amended to include any waste operation (not only a WEEE operation) with a registered exemption under the same regulations. Defining registered waste exemptions as environmental licences allows for charges to be prescribed for them under section 41(2) of the Environment Act 1995.
574 Subsection (3)(a)(ii) deletes section 56(1)(l) to (o) as it makes reference to WEEE. This is because the definition of "environmental licence" in paragraphs (l) to (o) was used as a way of creating a charging scheme, which is now done by new section 41(1)(p). The same deletions are made in relation to Scotland by subsection 3(b).
575 Subsection (4) makes provision about how new section 41(1)(n) of the Environment Act 1995 has effect prior to the repeal of section 93 of that Act. This ensures that the power to create a charging scheme in new section 41(1)(n) of the Environment Act 1995 can apply to functions conferred by regulations made under section 93 of the Environment Act 1995, as well as functions conferred by regulations made under Schedule 4 to this Bill, until the repeal of section 93 of the Environment Act 1995 by this Bill is fully in force.
Clause 62: Waste charging: Northern Ireland
576 Clause 62 amends the Waste and Contaminated Land (Northern Ireland) Order 1997 and the Waste Management Licensing Regulations (Northern Ireland) 2003 to supplement existing charging powers available to the Department of Agriculture, Environment and Rural Affairs.
577 Subsection (1) adds new Article 76A to the Waste and Contaminated Land (Northern Ireland) Order 1997 to provide the Department of Agriculture, Environment and Rural Affairs with a power to prescribe charges to be paid to it in relation to costs incurred by it in performing the functions referred to in paragraph (2) of that Article. These functions are functions set out in a number of pieces of subordinate legislation, including Article 4(1) of that Order (Prohibition on unauthorised or harmful deposit, treatment or disposal etc., of waste) and regulation 18(1) of the Waste Management Licensing Regulations (Northern Ireland) 2003. This would allow for fees to be charged for interventions at unlicensed waste sites or those in breach of a licence.
578 Other functions referred to in Article 76A(2) relate to extended producer responsibility. These are functions conferred by regulations made under Schedule 4 to this Bill, the End-of-Life Vehicles Regulations 2003, the End-of-Life Vehicles (Producer Responsibility) Regulations 2005, the Waste Batteries and Accumulators Regulations 2009, and the Waste Electrical and Electronic Equipment Regulations 2013. These functions allow the Department to levy fees in relation to its prescribed requirements in existing and future producer responsibility regimes.
579 Any charging scheme made under the powers that Article 76A will provide must describe who is liable to pay specified charges, and the Department of Agriculture, Environment and Rural Affairs must consult such persons as it considers to be appropriate before making any charging scheme under the Article.
580 Subsection (2) makes provision about how Article 78A(2)(c) of the Waste and Contaminated Land (Northern Ireland) Order 1997 has effect prior to the repeal of Article 3 of the Producer Responsibility Obligations (Northern Ireland) Order 1998 ("the 1998 Order"). This ensures that the power to create a charging scheme in new Article 76A(2)(c) of the Waste and Contaminated Land (Northern Ireland) Order 1997 can apply to functions conferred by regulations made under Article 3 of the 1998 Order, as well as functions conferred by regulations made under Schedule 4 to this Bill, until the repeal of Article 3 of the 1998 Order by this Bill is fully in force.
581 Subsection (4) amends regulation 17 (exemptions from waste management licensing) of the Waste Management Licensing Regulations (Northern Ireland) 2003 to require that the fee required under new regulation 20B (which is being inserted by subsection (6) of this clause) for an application for an exemption from waste management licensing requirements has to be paid in order for an exemption to apply.
582 Subsection (5) amends regulation 18 (registration in connection with exempt activities) of the Waste Management Licensing Regulations (Northern Ireland) 2003 to ensure that any notice provided by an establishment or undertaking in respect of the registration of an exemption is to be accompanied by payment of the appropriate fee as may be required under regulation 20B. Subsection (5) further amends regulation 18, adding to the list of exemptions which apply for only one year in paragraph (9), omitting paragraph (12) which lists the current charges payable for exempt activities, and updating the reference in paragraph (11)(b) so that it refers to new regulation 20B (which is being inserted by subsection (6) of this clause) instead of paragraph (12).
583 Subsection (6) creates new regulation 20B in the Waste Management Licensing Regulations (Northern Ireland) 2003, which provides the Department of Agriculture, Environment and Rural Affairs with power to make a charging scheme in respect of fees and charges for registration in connection with exempt activities. New regulation 20B requires that fees and charges, which may be provided for by the scheme, for applications for registering and renewing an exemption and in respect of the subsistence of registrations, are paid to the Department. New regulation 20B further allows for the scheme to provide for different fees depending on the nature of the activities, to set out the times and manners in which payments of fees and charges are to be made, and to provide for reductions in fees where an applicant is applying for multiple exemptions and specified conditions are met. The charging scheme may also specify charges in respect of the subsistence of registrations.
Clause 63: Enforcement powers
584 Clause 63 introduces Schedule 10 to amend legislation relating to enforcement powers for waste and other environmental matters.
Clause 64: Enforcement powers: Northern Ireland
585 Subsection (1) amends Article 27 of the Waste and Contaminated Land (Northern Ireland) Order 1997.
586 Subsection (2) amends paragraph (2) of Article 27 to account for circumstances in which waste might be taken to an appropriate storage site in the first instance, or otherwise not directly treated or disposed of.
587 Subsection (3) inserts new paragraph (2A) after paragraph (2) of Article 27. Sub-paragraph (a) allows the Department to direct a registered carrier of controlled waste to collect specified waste and deliver it to a specified site. Sub-paragraph (b) allows the Department to direct a keeper of controlled waste, or the owner or occupier of the land on which the waste is being kept, to facilitate the collection of the waste by the specified waste carrier.
588 Subsection (5) amends paragraph (4) of Article 27 to reflect the amendment to paragraph (2) of that Article.
589 Subsection (6) inserts new paragraph (4A) after paragraph (4) of Article 27. Sub-paragraph (a) allows the Department to direct the keeper of the controlled waste or the owner or occupier of the land on which the waste is being kept to pay the waste carrier’s reasonable costs. Sub-paragraph (b) allows the Department to direct the keeper of the controlled waste or the owner or occupier of the land on which the waste is being kept to pay the reasonable costs of the person the waste is delivered to.
590 Subsections (4), (7) and (8) amend paragraphs (3), (5) and (6) of Article 27 respectively, to make these provisions relevant to all of Article 27.
591 Subsection (9) amends paragraph (7) of Article 27 to clarify that the Department may choose to pay the reasonable costs incurred by the registered carrier of controlled waste or the specified person to whom the waste is delivered under paragraph (4) or new paragraph (4A).
592 Subsection (10) amends paragraph (8) of Article 27 so as to make the definition of "specified" relevant to all of Article 27.
Clause 65: Littering enforcement
593 Clause 65 amends Part 4 of the Environmental Protection Act 1990 ("the 1990 Act") in relation to enforcement against litter, and other offences of littering from a vehicle and the unauthorised distribution of free printed material.
594 Under section 88 of the 1990 Act, litter authorities (as defined under section 88(9) of the 1990 Act) may authorise members of their staff, or contractors operating on their behalf, to issue fixed penalty notices in lieu of prosecution for these offences. The income from fixed penalty notices is (in most cases) retained by the litter authority, and must be used for functions under Part 4 of the 1990 Act. Section 88(11) of the 1990 Act allows the appropriate person to make regulations which "prescribe conditions to be satisfied by a person before a parish or community council may authorise him in writing for the purpose of giving [fixed penalty notices for littering]".
595 Subsection (2) replaces existing subsection (11) of section 88 of the 1990 Act with new subsections (11) to (13). New subsection (11) confers a power for the appropriate person to prescribe conditions by regulations that must be met by an authorised officer operating on behalf of a litter authority, and to make provision requiring a litter authority to revoke an officer’s authorisation if that officer fails to meet the prescribed conditions. Regulations under new subsection (11) will be subject to the negative resolution procedure. New subsection (12) clarifies that different provision can be made for different cases – for example, to enable transitional arrangements for existing authorised officers to be made when new conditions are prescribed. New subsection (13) requires the appropriate person to consult such persons as the appropriate person considers appropriate before making regulations under new subsection (11).
596 Subsection (3) inserts new section 88B into the 1990 Act. This new section contains a power for the appropriate person to issue statutory guidance to litter authorities on the exercise of "littering enforcement functions" by them and their authorised officers. New section 88B(2) requires litter authorities to have regard to any such guidance when exercising those functions (including when exercising control over the way in which their authorised officers carry out those functions on the authority’s behalf). New section 88B(4) requires the appropriate person to consult such persons as the appropriate person considers appropriate before issuing guidance. This is likely to mean litter authorities, authorised officers, and the public. New section 88B(5) contains definitions of "littering enforcement function", making clear that the scope of the guidance may cover enforcement functions related to any of the three offences in Part 4 of the 1990 Act, as well as connected purposes. These functions include:
● setting fixed penalty levels;
● authorising enforcement officers;
● issuing penalty notices;
● collecting and processing payments;
● initiating and pursuing prosecutions; and
● designating land (for the purposes of Schedule 3A to the 1990 Act).
597 Subsection (4) amends section 98(1A)(b) of the 1990 Act. Section 98(1A) defines "appropriate person" for the purposes of Part 4 of the 1990 Act, and the amendment updates this section by replacing "National Assembly for Wales" with "Welsh Ministers".
Clause 66: Fixed penalty notices
598 Clause 66 amends sections 33ZA, 33ZB, 34ZA and 34ZB of the Environmental Protection Act 1990 to allow the level of fixed penalty notices (FPNs) under those sections, and the time period under which a less amount may be treated as payment of the fixed penalty, to be varied. This could, for example, be to reflect inflation, changes to the cost of waste disposal, or changing waste management practices. The exact level of fixed penalty notices are set by local authorities to reflect local needs, within a range prescribed in legislation. The Environment Agency and Natural Resources Wales can also set levels for penalties issued by them under sections 34ZA and 34ZB, within a range prescribed in legislation. An FPN is a financial penalty that gives a person the chance to pay a fixed amount of money by a set date. If the penalty is paid by the set time, that person is no longer criminally liable for that offence and no further action will be taken.
599 Subsections (2) and (3) amend sections 33ZA (fixed penalty notices relating to unauthorised depositing, treatment of disposal of waste: England) and 33ZB (fixed penalty notices relating to unauthorised depositing, treatment of disposal of waste: Wales) respectively. Subsections (2)(a) and 3(a) remove the specified ten-day early payment period in which an English or Welsh waste collection authority may choose to offer a discounted penalty, and allows that period to be specified by the authority instead. Subsections (2)(b) and 3(b) allow for the Secretary of State and Welsh Ministers to amend by regulations any of the penalty amounts currently specified in subsections (9) and (10) of sections 33ZA and 33ZB.
600 Subsections (4) and (5) amend sections 34ZA (FPNs relating to transfer of household waste by the occupier of a domestic property: England) and 34ZB (FPNs relating to transfer of household waste by the occupier of a domestic property: Wales) respectively. Subsections (4)(a) and (5)(a) remove the specified ten-day period an enforcement authority in England or Wales may choose to allow a lesser payment for, and allow that period to be specified by the authority. Subsections (4)(b) and (5)(b) allow for the Secretary of State and Welsh Ministers to amend by regulations any of the penalty amounts currently specified in subsections (7), (8) and (9) of section 34ZA, and the standard and lesser penalty amounts currently specified in subsections (7) and (8) of section 34ZB.
601 Clause 66 forms part of the law of England and Wales and extends to England and Wales.
Clause 67: Regulation of polluting activities
602 Clause 67 amends Schedule 1 to the Pollution Prevention and Control Act 1999, which sets out the purposes for which the Secretary of State can make regulations under Section 2 of that Act. The current purpose set out in paragraph 4 of Schedule 1 relates to the prohibition of operating an installation or plant of a specified description without a permit. In other words, under paragraph 4 of Schedule 1, the Secretary of State is able to make regulations relating to permits and also exemptions from permits.
603 Subsection (2) inserts a new sub-paragraph into paragraph 4 of Schedule 1, setting out a new purpose for which regulations can be made. This allows the Secretary of State to prohibit an activity unless it meets conditions determined by the Environment Agency and/or Natural Resources Wales in accordance with the regulations. This enables the Environment Agency and/or Natural Resources Wales to set conditions for exempt activities, which do not require a permit, but only relating to activities specified by the Secretary of State in regulations and only within the confines specified by the Secretary of State in regulations. This new purpose sits in addition to the existing purpose in paragraph 4 set out above.
604 Clause 67 forms part of the law of England and Wales.
Clause 68: Waste regulation: amendment of Northern Ireland Order
605 Subsection (1) amends Article 2(2) of the Waste and Contaminated Land (Northern Ireland) Order 1997 to reflect departmental changes in the Northern Ireland Executive. The Department of Agriculture, Environment and Rural Affairs has taken over the relevant responsibilities under the 1997 Order from the previous Department of the Environment.
606 Subsection (2) makes the necessary transitional provision.
Part 4: Air Quality and Environmental Recall
Clause 69: Local air quality management framework
607 This clause enacts Schedule 11, which amends Part 4 of the Environment Act 1995. Part 4 creates the Local Air Quality Management Framework. The amendments will require the Secretary of State to review the Air Quality Strategy, which sets out policies for the assessment or management of the quality of air, at least every five years; and to report annually to Parliament on progress to deliver air quality objectives and standards (set out in the Strategy) in relation to England, and the steps the Secretary of State has taken in that year to support the meeting of those objectives and standards.
608 Amendments will also strengthen the requirements for local authorities under the Framework. When an Air Quality Management Area is declared by local authorities because they have assessed local air and determined that it exceeds, or is likely to exceed, air quality objectives and standards (as set by the Secretary of State in the National Strategy and enacted in secondary legislation), local authorities will be required to prepare actions plans that will need to set out how the local authority will exercise its functions to ensure that air quality standards are achieved and maintained. All tiers of local government, and neighbouring local authorities where relevant, will be required to co-operate in the development of those action plans. The Secretary of State will have power to designate, following consultation, relevant public authorities as air quality partners who would also be required to co-operate with the development of action plans, and to take proportionate action to improve air quality where necessary. These amendments will ensure responsibility for tackling air pollution is shared across relevant parties.
Clause 70: Smoke control areas: amendments of the Clean Air Act 1993
609 This clause enacts Schedule 12, which amends the Clean Air Act 1993. The amendments will give local authorities the power to impose financial penalties for the emission of smoke in smoke control areas (SCAs) in England. This means that the emission of smoke from a chimney of a building or a chimney (not being a chimney of a building) that serves the furnace of any fixed boiler or industrial plant in an SCA in England will change from being a criminal offence to instead being subject to a civil penalty notice (a fine). The change will remove the current statutory defences that are making enforcement by local authorities very challenging, and reduce the burden and cost associated with enforcing SCAs. Additionally, the amendments remove the exemption in the Environmental Protection Act 1990 so that smoke emitted from a private dwelling in a Smoke Control Area can be enforced by local authorities in England as a statutory nuisance.
610 The amendments will also remove the limit on the fine for the offence of selling controlled solid fuels for delivery (leaving it to the discretion of the Magistrate’s Court), and create a new duty on retailers to notify customers of the law regarding the acquisition of controlled solid fuels in England. This is intended to help raise consumer awareness and improve compliance.
611 They will also enable a local authority to extend the scope of an SCA in England to cover moored vessels, subject to local consultation. This means that if a local authority amends its smoke control order to include vessels, smoke emissions from the chimney of such vessels could be liable to a financial penalty.
612 Schedule 12 also amends, for Wales, the procedure for declaring a fuel to be authorised or fireplace to be exempt for the purposes of Part 3 of the Clean Air Act 1993, by enabling Welsh Ministers to publish a list of these fuels and fireplaces and to update this list as needed.
Clause 71: Environmental recall of motor vehicles etc.
613 Subsection (1) provides for the Secretary of State to make regulations making provision for the recall of relevant products that do not meet relevant environmental standards.
614 Subsections (2) and (3) clarify that the specification or description of a "relevant product" will be set out in secondary legislation, but set constraints on the types of product that may be specified or described.
615 Subsections (4), (5) and (6) provide definitions for "relevant environmental standard", "enactment" and "environmental impact".
616 Subsection (7) provides that regulations made under subsection (1) will be subject to negative procedure.
617 Subsection (8) provides that subsequent clauses 72 to 74 will make further provision for regulations made under subsection (1).
Clause 72: Compulsory recall notices
618 Subsection (1) provides that regulations made under clause 71(1) can confer a power on the Secretary of State to issue a "compulsory recall notice".
619 Subsection (2) provides a definition for "compulsory recall notice".
620 Subsection (3) provides that the Secretary of State must have reasonable grounds for believing that a relevant product does not meet a relevant environmental standard prior to issuing a "compulsory recall notice".
621 Subsection (4) specifies that where a relevant product forms part of another product, a notice may require the return of the entire product.
622 Subsections (5) and (6) provide that a notice, or a supplementary notice, may impose supplementary requirements on a recipient.
623 Subsection (7) provides a non-exhaustive list of supplementary requirements that may be imposed pursuant to subsections (5) and (6), including requirements to publicise the recall, to achieve a minimum recall rate, to pay compensation, or to prevent any relevant products being sold while subject to a notice.
624 Subsection (8) provides a definition for "specified".
625 Subsection (9) provides that the Secretary of State may in the regulations provide for an appeal mechanism or for a means of withdrawing a notice or supplementary notice.
Clause 73: Further provision about regulations under section 71
626 Subsection (1) provides that regulations made under clause 71(1) may impose a duty on both manufacturers and distributors to notify the Secretary of State if they consider that a relevant product does not meet an environmental standard.
627 Subsection (2) provides that the Secretary of State may in the regulations confer investigative and information gathering powers on themselves for the purposes of deciding whether to issue a compulsory recall notice.
628 Subsections (3) to (5) provide that the Secretary of State may in the regulations make provision about enforcement of the regulations, including about the designation of an enforcement authority, the imposition of financial penalties, powers of entry to take documents and samples where there are reasonable grounds for suspecting a manufacturer or distributor has failed to comply with a requirement imposed by or under the regulations, and for appeals against the imposition of a financial penalty.
Clause 74: Interpretation of sections 71 to 73
629 This clause defines terms used in this Part of the Bill.
Part 5: Water
Clause 75: Water resources management plans, drought plans and joint proposals
630 Subsection (1) provides that the following subsections will amend Chapter 1 of Part 3 of the Water Industry Act 1991.
631 Subsection (2) makes a number of changes to section 37A of the Act. Subsection (2)(a) amends the heading of section 37A to remove the words "preparation and review". The procedure for the preparation and review of water resources management plans will now be set out in regulations and directions made under new sections 39F and 39G of the Act. Subsection (2)(b) removes from primary legislation the reference to water undertakers taking account of water introduced into their area of appointment by water supply licensees. This requirement will instead be addressed in secondary legislation. Subsections (2)(c) to (f) make some amendments in light of the fact that the procedure for preparing and publishing water resources management plans will be set out in secondary legislation. Cross-references to section 37B are also removed, as this section will be replaced by the new powers to make secondary legislation as to procedure.
632 Subsection (3) omits section 37B of the Act, which contains the current requirements for the publication of a draft and final water resources management plan and the handling of consultation responses on the draft plan, and section 37C, which contains the current requirements for water supply licensees to provide information to water undertakers. These provisions will be replaced by the provisions in regulations and directions made under new sections 39F and 39G.
633 Subsection (4) makes amendments to section 37D to remove references to section 37B and section 37C, since those sections have been omitted by subsection (3).
634 Subsection (5) makes amendments to section 39B, which relates to the procedure for preparing and revising drought plans, to change those provisions that rely on and refer to the water resources management plan provisions amended in the previous subsections.
635 Subsection (6) omits section 39C, which relates to information sharing in the context of drought plan preparation, since regulations made under new section 39F will provide for the process of information sharing in relation to drought plans.
636 Subsection (7) inserts new sections 39E, 39F and 39G in to the Water Industry Act 1991.