House of Commons Hansard Debates for 30 Apr 1990

New Clause 31

Variation of authorisations by enforcing authority

(1) The enforcing authority may at any time, subject to the requirements of section 7 above, vary an authorisation and shall do so if it appears to the authority at that time that that section requires conditions to be included which are different from the subsisting conditions.

Column 779

(2) Where the enforcing authority has decided to vary an authorisation under subsection (1) above the authority shall notify the holder of the authorisation and serve a variation notice on him. (3) In this Part a "variation notice" is a notice served by the enforcing authority on the holder of an authorisation--

(a) specifying variations of the authorisation which the enforcing authority has decided to make ; and

(b) specifying the date or dates on which the variations are to take effect ;

and, unless the notice is withdrawn, the variations specified in a variation notice shall take effect on the date or dates so specified.

(4) A variation notice served under subsection (2) above shall also--

(a) require the holder of the authorisation, within such period as may be specified in the notice, to notify the authority what action (if any) he proposes to take to ensure that the process is carried on in accordance with the authorisation as varied by the notice ; and (b) require the holder to pay the fee (if any) prescribed by a scheme under section 8 above within such period as may be specified in the notice.

(5) Where in the opinion of the enforcing authority any action to be taken by the holder of an authorisation in consequence of a variation notice served under subsection (2) above will involve a substantial change in the manner in which the process is being carried on--

(a) the enforcing authority shall notify the holder of its opinion ; and

(b) the holder shall, within the prescribed period, advertise the change in the prescribed manner.

(6) The Secretary of State may, if he thinks fit in relation to authorisations of any description or particular authorisations, direct the enforcing authorities--

(a) to exercise their powers under this section, or to do so in such circumstances as may be specified in the directions, in such manner as may be so specified ; or

(b) not to exercise those powers, or not to do so in such circumstances or such manner as may be so specified ;

and the Secretary of State shall have the corresponding power of direction in respect of the powers of the enforcing authorities to vary authorisations under section ( --variation of conditions etc : applications by holders of authorisations --) --below.

(7) In this section and section ( --variation of conditions etc : applications by holders of authorisations --) below a "substantial change", in relation to a prescribed process being carried on under an authorisation, means a substantial change in the substances released from the process or in the amount or any other characteristic of any substance so released ; and the Secretary of State may give directions to the enforcing authorities as to what does or does not constitute a substantial change in relation to processes generally, any description of process or any particular process.

(8) In this section and section ( --variation of conditions etc : applications by holders of authorisations --) below--

"prescribed" means prescribed in regulations made by the Secretary of State ;

"vary", in relation to the subsisting conditions or other provisions of an authorisation, means adding to them or varying or rescinding any of them ;

and "variation" shall be construed accordingly.'.

-- [Mr. Heathcoat-Amory.]

Brought up, and read the First time.

The Parliamentary Under-Secretary of State for the Environment (Mr. David Heathcoat-Amory) : I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker (Sir Paul Dean) : With this we may take Government new clauses 32 and 14, and Government amendments Nos. 38, 40, 103, 152, 153, 41, 154 to 158, 55, 159 to 162, 239 and 57.

Column 780

Mr. Heathcoat-Amory : In our previous debate on public access, my hon. Friend the Minister for the Environment and Countryside explained that he thought it appropriate for more detail on public registers to be included in the Bill. We have also decided that more detail on the transfer and variation of authorisations should be included. When the Committee considered what has become clause 9 in the Report print of the Bill, I commented that I was not satisfied with parts of the clause and would return to the issue on Report. One of the main concerns expressed in Committee was that raised by my hon. Friend the Member for Norfolk, North- West (Mr. Bellingham), who complained about the potential for delay in settling transfers. We consider that there is advantage in separating the procedure for transfer of an authorisation from the more complex procedures for varying an authorisation. Accordingly, new clause 14 sets out the relatively simple procedure for transfer, which provides merely for notification by the new operator within three weeks. Failure to do so will attract penalties, which are the subject of amendments Nos. 55 and 57.

New clauses 31 and 32 set out in more detail the procedures that must be followed when authorisations are to be varied. New clause 31 details the action to be taken by the enforcing authority, whether the proposal to vary was initiated by it or by the operator. It is intended to keep the public informed of the proposals for substantial change, and allows them to make representations about such proposals.

New clause 32 sets out the procedure to be followed by the operator, whether he has himself initiated the request for change or has been served with a variation notice by the enforcing authority. Once an authorisation has been granted, not only will the regulatory authority be able to vary the authorisation from time to time, but the conditions of every authorisation will be reviewed from time to time as a matter of course. We believe that four years, for which amendment No. 38 provides, is an appropriate timetable by which to work as it allows enough time for new technology to develop in the relevant industrial sector.

Amendments Nos. 40 and 41 clarify which matters enforcing authorities must take into account when issuing authorisations for IPC and local authority air pollution control.

Amendment No. 40 makes clear on the face of the Bill the dividing line between the Bill and what more properly falls under the responsibility of the Health and Safety Executive. Amendment No. 41 requires enforcing authorities to have due regard to any guidance that may be issued by my right hon. Friend the Secretary of State on the best available techniques and environmental options to be required of operators generally or for a specific process or category of process.

7 pm

I notice that the right hon. Member for Halton (Mr. Oakes) has tabled amendment No. 103. I will not comment on it now, but if he speaks to it I will endeavour to answer the points that he makes.

Dame Elaine Kellett-Bowman (Lancaster) : Will my hon. Friend give way?

Column 781

Mr. Heathcoat-Amory : The new clauses are relatively uncontroversial and lie at the heart of our proposals to make effective improvements in industrial environmental protection.

Mr. Simon Hughes : May I put two questions to the Minister? First, are there any safeguards to prevent the transfer of an authorisation to an undesirable person--for example, someone who is known to have committed offences under pollution legislation?

My second question is more important and is on the guidance on the duties to which enforcing authorities must have regard. May I put a hypothetical case to ascertain whether a duty would be included? Would authorities have to take account of directions on Government policy, for example, on flue gas desulphurisation? The Government have said that there must be a 20 per cent. reduction in emissions by 1993. If authorities set their targets accordingly but the nature of the industry is changed substantially by imported coal, and if as a result by 1993 only one power station is fitted with flue gas desulpherisation equipment, as appears likely, will the Secretary of State be able to use his power of direction as a consequence of that? "Taking regard" can mean something or nothing. It can mean, "Yes, we hear what the Secretary of State says, but we do not have to do anything about it", or "Yes, we must do what the Secretary of State wants."

To what extent will amendment No. 41 allow the Secretary of State to influence the actions and practices of enforcement agencies? Concern has been expressed that if the Government seek to go back on international commitments--we are concerned that they are doing so--it could weaken the powers of the enforcement agencies, which would be a severe problem.

Dame Elaine Kellett-Bowman : I wish merely to ask my hon. Friend the Minister whether his observations of the best available techniques include the best available and most up-to-date modes of transport, for example, for transporting stuff to and from a waste disposal factory. Is transport included in his observations?

Mr. Oakes : I cannot understand why the Minister is giving directions when in almost every other clause he is making regulations. It seems to me, and particularly to the chemicals industry, that regulations would be far better than directions because it is essential that the people dealing with and controlling the processes have a clear understanding of the requirements from the outset.

Directions tend to be somewhat airy-fairy, but regulations made before the system comes into operation--that is the purpose of amendment No. 103-- would be clear, precise and definite, and those operating the important system of integrated pollution control would know where they stood.

The Minister mentioned amendment No. 103, but I seek a reply merely to that point.

Mr. Heathcoat-Amory : The hon. Member for Southwark and Bermondsey (Mr. Hughes) seemed to suggest that the risk of a transfer to an unsuitable person or operator should be blocked in advance. That would be extremely difficult to operate in practice and I would rather, as the Bill does, lay reliance on the fact that any operator will have to meet the conditions of the licence. If he does not do so, prosecution or enforcement notices can

Column 782

follow and are available in the Bill. If such an operator must be set new conditions appropriate to evolving technology or changing circumstances, the enforcing authorities have the power to compel him to do so. That is a better, more certain and more reliable safeguard than a subjective assessment of the suitability of the operator.

Mr. Simon Hughes : I hear what the Minister says, but will he reconsider whether a person who has breached a duty under pollution legislation should automatically be the recipient of a transfer? Those shown to have failed a responsibility should be exempted.

Mr. Heathcoat-Amory : Under part II on the suitability of licensed operators for waste disposal, one of the criteria that can be taken into account is whether the operator has breached prior conditions. I hope that that meets the hon. Gentleman's point.

As to the hon. Gentleman's second point about guidance for the Secretary of State, draft guidance has been placed in the Library on the meaning of BATNEEC--best available techniques not entailing excessive cost--which interprets what is meant by "available" and tries to determine what costs should be judged as excessive. That has nothing to do with Government policy, but in addition to the guidance issued the enforcing authorities must have regard to any directions issued by the Secretary of State. It would be perfectly in order for him to issue directions on whether a country or industry should fall within the provisions of EC targets or directives. I hope that that meets the hon. Gentleman's second point.

I must apologise to my hon. Friend the Member for Lancaster (Dame E. Kellett-Bowman), but I genuinely did not hear her trying to intervene. I did not wish to prevent her from asking her question. She may appreciate that part I deals with prescribed processes from factories, but part II deals with waste disposal where transport over a considerable distance may be a material consideration. In setting the tenders for waste disposal and collection, the distance that the waste travels must be taken into account. In considering BATNEEC, we are dealing with static industrial plants or factories where transport costs are not relevant.

Dame Elaine Kellett-Bowman : I meant not just the distance but the standard of lorries to ensure that goods do not spill out. The best, up-to- date lorries should be included in the regulations.

Mr. Heathcoat-Amory : We are dealing in this part of the Bill with the need for industrial processes to comply with emission controls and standards. That is where the concept of BATNEEC is relevant. Therefore, transport costs, either to or from a factory, are not a material consideration.

Dame Elaine Kellett-Bowman : The point is that the better the techniques and the quicker the lorries, the easier it is to refine the goods. If the goods were carried haphazardly, they would arrive in a less easily processable state than if they were carried in the best possible lorries. The process is very much better if the goods have been transported efficiently because the stuff gets to the waste processing factory in a better condition.

Mr. Heathcoat-Amory : That consideration will obviously be taken into account by the owners, managers or

Column 783

operators of the plant in question. It will not be enforced under this part of the Bill. That being so, I am sorry to disappoint my hon. Friend the Member for Lancaster.

The right hon. Member for Halton (Mr. Oakes) was worried about the powers of the Secretary of State and would prefer provisions to be laid out, where possible, in regulations. I am afraid that I cannot accept the right hon. Gentleman's amendment. The vast majority of cases will remain the responsibility of the issuing authorities and therefore will have nothing to do with either the Secretary of State or any regulations. I agree that in certain circumstances there may be a need in the national interest to take account of factors beyond the objectives set out in clause 7. In such cases, it is right that a higher authority should be able to require the inclusion of specific conditions.

Often such action will need to be taken quickly. In those circumstances, it is an advantage that there should be a direction from the Secretary of State rather than a more cumbersome requirement for the provisions to be set out in regulations. We have been under pressure, correctly, to ensure that the Bill's provisions are not unnecessarily unwieldy and unduly burdensome to business and industry. This is not--I think that I can give the right hon. Member for Halton an assurance--at the expense of reducing in any way the accountability of the process or the rights of the public or industries affected to understand and scrutinise what happens. There is no question that directions from my right hon. Friend the Secretary of State will in any sense be less viable than the regulations that are subject to parliamentary scrutiny. New clause 11, which has been discussed, repeats the undertaking in old clause 19 that prescribed particulars or directions made by the Secretary of State in relation to an authorisation will be placed on public registers.

In framing the provisions, we have emphasised the need for speedy, flexible arrangements without in any way compromising our commitment to accountability and to public and business access to information. Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 32

Variation of conditions etc : applications by holders of authorisations

(1) A person carrying on a prescribed process under an authorisation who wishes to make a relevant change in the process may at any time--

(a) notify the enforcing authority in the prescribed form of that fact, and

(b) request the enforcing authority to make a determination, in relation to the proposed change, of the matters mentioned in subsection (2) below ;

and a person making a request under paragraph (b) above shall furnish the enforcing authority with such information as may be prescribed or as the authority may by notice require.

(2) On receiving a request under subsection (1) above the enforcing authority shall determine--

(a) whether the proposed change would involve a breach of any condition of the authorisation ;

(b) if it would not involve such a breach, whether the authority would be likely to vary the conditions of the authorisation as a result of the change ;

(c) if it would involve such a breach, whether the authority would consider varying the conditions of the authorisation so that the change may be made ; and

Column 784

(d) whether the change would involve a substantial change in the manner in which the process is being carried on ;

and the enforcing authority shall notify the holder of the authorisation of its determination of those matters.

(3) Where the enforcing authority has determined that the proposed change would not involve a substantial change, but has also determined under paragraph (b) or (c) of subsection (2) above that the change would lead to or require the variation of the conditions of the authorisation, then--

(a) the enforcing authority shall (either on notifying its determination under that subsection or on a subsequent occasion) notify the holder of the authorisation of the variations which the authority is likely to consider making ; and

(b) the holder may apply in the prescribed form to the enforcing authority for the variation of the conditions of the authorisation so that he may make the proposed change.

(4) Where the enforcing authority has determined that a proposed change would involve a substantial change that would lead to or require the variation of the conditions of the authorisation, then-- (a) the authority shall (either on notifying its determination under subsection (2) above or on a subsequent occasion) notify the holder of the authorisation of the variations which the authority is likely to consider making ; and

(b) the holder of the authorisation shall, if he wishes to proceed with the change, apply in the prescribed form to the enforcing authority for a variation of the conditions of the authorisation and advertise the change in the prescribed manner.

(5) The holder of an authorisation may at any time, unless he is carrying on a prescribed process under the authorisation and wishes to make a relevant change in the process, apply to the enforcing authority in the prescribed form for the variation of the conditions of the authorisation ; and a person making such an application shall furnish the authority with such information as may be prescribed or as the authority may by notice require.

(6) On an application for variation of the conditions of an authorisation under any provision of this section--

(a) the enforcing authority may refuse the application or, subject to the requirements of section 7 above, vary the conditions as it thinks fit ; and

(b) if the enforcing authority decides to vary the conditions, it shall serve a variation notice on the holder of the authorisation ; (7) Any application to the enforcing authority under this section shall be accompanied by the applicable fee (if any) prescribed by a scheme made under section 8 above.

(8) This section applies to any provision other than a condition which is contained in an authorisation as it applies to a condition with the modification that any reference to the breach of a condition shall be read as a reference to acting outside the scope of the authorisation.

(9) For the purposes of this section a relevant change in a prescribed process is a change in the manner of carrying on the process which is capable of altering the substances released from the process or of affecting the amount or any other characteristic of any substance so released.'.-- [Mr. Heathcoat-Amory.]

Brought up, read the First and Second time, and added to the Bill .

New Clause 14

Transfer of Authorisations

.--(1) An authorisation for the carrying on of any prescribed process may be transferred by the holder to a person who proposes to carry on the process in the holder's place.

Column 785

(2) Where an authorisation is transferred under this section, the person to whom it is transferred shall notify the enforcing authority in writing of that fact not later than the end of the period of twenty-one days beginning with the date of the transfer.

(3) An authorisation which is transferred under this section shall have effect on and after the date of the transfer as if it had been granted to that person under section 6 above, subject to the same conditions as were attached to it immediately before that date.'.-- [Mr. Heathcoat- Amory.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 29

Preliminary

.--(1) The following provisions have effect for the interpretation of Part II.

(2) The "environment" consists of all, or any, of the following media, namely land, water and the air.

(3) "Pollution of the environment" means pollution of the environment due to the release or escape (into any environmental medium) from--

(a) the land on which controlled waste is treated,

(b) the land on which controlled waste is kept,

(c) the land in or on which controlled waste is deposited, (d) fixed plant by means of which controlled waste is treated, kept or disposed of,

of substances or articles constituting or resulting from the waste and capable (by reason of the quantity or concentrations involved) of causing harm to man or any other living organisms supported by the environment.

(4) Subsection (3) above applies in relation to mobile plant by means of which controlled waste is treated or disposed of as it applies to plant on land by means of which controlled waste is treated or disposed of.

(5) For the purposes of subsections (3) and (4) above "harm" means harm to the health of living organisms or other interference with the ecological systems of which they form part and in the case of man includes offence to any of his senses or harm to his property ; and "harmless" has a corresponding meaning.

(6) The "disposal" of waste includes its disposal by way of deposit in or on land and, subject to subsection (7) below, waste is "treated" when it is subjected to any process, including making it re-usable or reclaiming substances from it and "recycle" (and cognate expressions) shall be construed accordingly.

(7) Regulations made by the Secretary of State may prescribe activities as activities which constitute the treatment of waste for the purposes of this Part or any provision of this Part prescribed in the regulations.

(8) "Land" includes land covered by waters where the land is above the low water mark of ordinary spring tides and references to land on which controlled waste is treated, kept or deposited are references to the surface of the land (including any structure set into the surface).

(9) "Mobile plant" means, subject to subsection (9) below, plant which is designed to move or be moved whether on roads or other land.

(10) Regulations made by the Secretary of State may prescribe descriptions of plant which are to be treated as being, or as not being, mobile plant for the purposes of this Part.

(11) "Substance" means any natural or artificial substance, whether in solid or liquid form or in the form of a gas or vapour.'.-- [Mr. Heathcoat-Amory.]

Brought up, read the First and Second time, and added to the Bill.

Column 786

New Clause 33

Exclusion from registers of information

affecting national security

.--(1) No information shall be included in a register maintained under section 57 above (a "register") if and so long as, in the opinion of the Secretary of State, the inclusion in the register of that information, or information of that description, would be contrary to the interests of national security.

(2) The Secretary of State may, for the purpose of securing the exclusion from registers of information to which subsection (1) above applies, give to the authorities maintaining registers directions-- (a) specifying information, or descriptions of information, to be excluded from their registers ; or

(b) specifying descriptions of information to be referred to the Secretary of State for his determination ;

and no information referred to the Secretary of State in pursuance of paragraph (b) above shall be included in any such register until the Secretary of State determines that it should be so included. (3) An authority maintaining a register shall notify the Secretary of State of any information it excludes from the register in pursuance of directions under subsection (2) above.

(4) A person may, as respects any information which appears to him to be information to which subsection (1) above may apply, give a notice to the Secretary of State specifying the information and indicating its apparent nature ; and, if he does so--

(a) he shall notify the authority concerned that he has done so ; and

(b) no information so notified to the Secretary of State shall be included in the register kept by that authority until the Secretary of State has determined that it should be so included.'.-- [Mr. Heathcoat-Amory.]

Brought up, read the First and Second time, and added to the Bill.

Next Section

Home Page