The
Committee consisted of the following
Members:
Austin,
John
(Erith and Thamesmead)
(Lab)
Bottomley,
Peter
(Worthing, West)
(Con)
Cunningham,
Mr. Jim
(Coventry, South)
(Lab)
Dobson,
Frank
(Holborn and St. Pancras)
(Lab)
Farron,
Tim
(Westmorland and Lonsdale)
(LD)
Gerrard,
Mr. Neil
(Walthamstow)
(Lab)
Irranca-Davies,
Huw
(Parliamentary Under-Secretary of State for Environment, Food
and Rural Affairs)
Kumar,
Dr. Ashok
(Middlesbrough, South and East Cleveland)
(Lab)
McIntosh,
Miss Anne
(Vale of York)
(Con)
Marris,
Rob
(Wolverhampton, South-West)
(Lab)
Mercer,
Patrick
(Newark)
(Con)
Rifkind,
Sir Malcolm
(Kensington and Chelsea)
(Con)
Ryan,
Joan
(Enfield, North)
(Lab)
Taylor,
Matthew
(Truro and St. Austell)
(LD)
Watkinson,
Angela
(Upminster)
(Con)
Wright,
David
(Telford) (Lab)
Mark
Etherton, Committee Clerk
attended the Committee
Second
Delegated Legislation
Committee
Monday
18 January
2010
[Bob
Russell in the
Chair]
Major
Accident Off-site Emergency Plan (Management of Waste from Extractive
Industries) (England and Wales) Regulations
2009
4.30
pm
The
Chairman: We have 90 minutes allocated. That is not a
target to reach, but a time that we must not
exceed.
Miss
Anne McIntosh (Vale of York) (Con): I beg to
move,
That
the Committee has considered the Major Accident Off-site Emergency Plan
(Management of Waste from Extractive Industries) (England and Wales)
Regulations 2009 (S.I. 2009, No.
1927).
May
I welcome you to the Chair, Mr. Russell, and say what a
great privilege it is to serve under your chairmanship on this historic
occasion? I look forward to the proceedings with great
pleasure.
I welcome the
Minister. I gather that he is standing in for his colleague, the
Under-Secretary of State for Environment, Food and Rural Affairs, the
hon. Member for Wansdyke (Dan Norris), at short notice. May we send our
best wishes to his colleague for a speedy recovery? I hope that the
Minister will be fit for
our
The
Parliamentary Under-Secretary of State for Environment, Food and Rural
Affairs (Huw Irranca-Davies): Long
sittings.
Miss
McIntosh: Yes, our long sittings throughout the rest of
the week on the Flood and Water Management Bill.
The reason
why we have prayed against the regulatory statutory instrument is that
the majority of provisions in the mining waste directive, as the
Minister will be aware, are transposed through the Environmental
Permitting (England and Wales) (Amendment) Regulations 2009. However,
article 6 of the mining waste directive covers matters that are outside
the scope of the environmental permitting regulatory regime, under
which certain facilities need a permit to operate. In particular, we
would like to address our concerns about the regulations that set out
to transpose the provisions of the mining waste directive in respect of
the following: the requirement to prepare an off-site emergency plan;
the provision and review of information to the public; and the
provision of information in the event of a major accident. I invite the
Minister to set out, in the customary way, what the ramifications of
those regulations will be.
I have some
other concerns, but I would particularly like to draw the
Ministers attention to the cost-benefit analysis and the fact
that the start-up costs seem particularly high. Also, the impact
assessment sets the start-up costs
and the running costs at 2005 prices, which are now clearly five years
old. Those costs will probably now be considerably greater, and I
wonder if the Minister will have the opportunity in the next half hour
to tell us what the actual costs will be.
The Minister
is aware that the regulations are already late in their transposition.
You know from my previous experience of being your MEP, Mr.
Russell, the close attention that I pay to maintaining a clean sheet,
as regards implementing European directives. We seem to be rather late
in this instance. Are we the only member state not to have transposed
the regulations? Will the Minister confirm that we tend to go beyond
the spirit and letter of the European directive? Are other European
countries being as prescriptive and going quite as far as we
are?
At the
outset, let me say that I understand, particularly given the
Ministers background, why we put safety and environmental and
human health above any other considerations. Obviously, we are mindful
of the Aberfan disaster and the background to the regulations. However,
the Minister will be aware that we have not had any major, or even
minor, incidents since that notable and very sad incident. Will he
therefore explain the background to the regulations and say why they go
as far as they do?
Will the
Minister comment on the key provision of article 6 of the directive?
Member states are required to make specific provisions for certain
types of waste facilitiescategory A facilities. Those are waste
facilities where the risks to environmental and human health,
in the event of an accident, might be perceived to be greatest; where
hazardous waste is involved; or where other waste in the mining
industry contains dangerous substances.
In January
2007, the Government consulted on a number of options for
transposition. They came up with a preferred option, the environmental
permitting programme. That is a bit of a misnomer. In this case it is
an environmental disabling programme, and it could lead to some of
those who have permission to operate, and a permit to operate, being
prevented from doing so. I would argue that the proposed transposition
goes further than was intended in the original EU directive, and that
the regulations relating to article 6 are not appropriate to the
environmental permits.
Following
their consultation and the discussions, the Government conceded a
number of changes, including a change to the definition of
competent authority, which is now the emergency
planning authority for the area concerned. Will the Minister give us
the background to that thought process? If the emergency planning
authority is not to be the Environment Agency, which body will it be?
What will be the relationship of that authority to the Environment
Agency? Will he also update us on changes to the process of preparing
the plans, on the requirement to test the plans and on what the cost of
those tests will be? The new provisions relating to enforcement by the
competent authority, where an operator of a waste facility fails to
provide information, carry a penalty. What particularly alarms us is
that the penalty creates a criminal offence.
I shall pause
there and ask the Minister to respond on those key points, and perhaps
also to update us on the guidance. The Government indicated that
guidance to support the regulations and to provide greater clarity
would be drafted in the autumn of 2009 and sent to the
industry for consultation. However, I understand that to date only an
outline of the scope of the guidance has been published, and that there
has been no indication of when the draft guidance will be published.
Against that background, it is very difficult for the industry to
prepare for the introduction and the impact of the regulations. I wait
to hear from the
Minister.
4.37
pm
Huw
Irranca-Davies: It is good to serve under your
stewardship, Mr. Russell. First, I thank the hon. Member for
Vale of York for her kind words about the Under-Secretary of State for
Environment, Food and Rural Affairs, my hon. Friend the Member for
Wansdyke, and his recovery. I will pass them on. I welcome the way the
hon. Lady has opened the debate. This is a good opportunity to debate
the rhyme and reason behind the way we have brought forward the
regulations. Before I deal with her specific points, it might help if I
set the
context.
The
regulations are part of the package of measures necessary to transpose
the mining waste directive in England and Wales. The purpose of the
directive is to ensure that waste from the mining and quarrying
industries is managed without endangering human health or harming the
environment. Many of us have industrial concerns in our constituencies
and are concerned about both the viability of those industries and the
health and safety aspects. The regulations also ensure that in the
unfortunate event of an accident, emergency plans are in place for
coping with the consequences. We all agree that that is
right.
It
is important to emphasise that the emergency plans are required only
for category A facilitiesthe most dangerous type of facility
controlled under the directive. A site is classified as a category A
facility if the collapse of a heap or the bursting of a dam could give
rise to a major incident. As the hon. Lady remarked, such incidents are
very few and far between, but it is right to take the appropriate
measures for those potentially most hazardous instances.
The
objectives of external emergency plans are: to contain and control
major accidents and limit the damage to human health and the
environment; to implement the necessary protection measures; to
communicate the necessary information to the emergency services and the
public; and to provide for clean-up and restoration after a major
accident.
As we have
made clear, the Government are committed to full and effective
consultation with the industry on the implementation of the regulations
transposing the mining waste directive. In a moment, I will turn to
some of the detail of how we have consciously tried to work with the
industry to get the balance right between protecting human health and
safety and making sure that we have the right systems in
place.
The
Government have taken full advantage of all the derogations available
under the directive, and have taken care to ensure that the transposing
regulations do not impose requirements that go beyond the minimum
required by the directive. In short, we have transposed the directive
without gold-plating. Let me explain
how.
As
I mentioned, we developed the regulations in close consultation with
the industry. There was both formal public consultation and informal
consultation with industry
representatives. We revised our regulatory proposals wherever we could
to meet the industrys concerns. For example, we extended the
time that an operator has to provide additional information to the
emergency planning authority from 21 to 30 days. We also introduced a
provision requiring emergency planning authorities to provide the
operators with 15 days written notice before they issue a
notice to the Environment Agency saying that the operator has not
provided the necessary information to draw an off-site emergency plan.
Both those changes are included in the regulations laid before
Parliament.
However, I
acknowledge that there is one issue on which we have not been able to
meet all the industrys concernsthe issue of refusal of
a permit for an existing category A facility where the operator has not
provided sufficient information to allow an off-site emergency plan to
be drawn up. That is to do with the right of appeal. If we provided the
right of appeal that the industry has called for on the provision of
information, it would mean that category A facilities would be allowed
to operate after 1 May 2012, even if the operator had not provided
sufficient information to allow the emergency planning authority to
draw up the plan; we are talking about category A sites, and the time
line is May 2012. That would run directly counter to the
directives requirements and its principal aim of protecting the
environment and, of course, human health.
The directive
clearly requires that no mining waste facility be allowed to operate
without a permit. A permit can be issued only if the operator complies
with the directives requirements. The directive requires the
operator to provide sufficient information to enable the off-site
emergency plans to be drawn up for category A facilities. All existing
sites must comply with the directive by 1 May 2012. That is what fellow
Ministers and I have to deliver. It would not be right for us to ignore
the clear requirements. They are in place for very good reasons: to
protect human health and the environment from the very highest-risk
sites and to ensure that, if there is a major accident at a category A
site, the emergency planning authorities have the necessary
information, and a plan for dealing with the accident.
However, let
me make it clear that there is a fall-back. Even by that date of May
2012, in the event of a permit being refused, the operator would have
the right to apply for a judicial review of the emergency planning
authoritys decision to issue a notice to the Environment
Agency, and a right to submit a formal complaint to the local
government
ombudsman.
The
deadline for the submission of applications for permits is May 2011. I
would argue strongly that there is ample time for pre-application
discussions on the necessary information between the operators and the
emergency planning authority. However, the hon. Member for Vale of York
is right. I recognise the need for my Department to produce guidance on
the transposing regulations, and for the information necessary for the
off-site emergency plans to be drawn up. I am not too proud, if there
has been a delay, to stand up and say, We wanted to deliver
this in the autumn. Autumn is often a bit of a nebulous term,
in a politicians mouth. We did not deliver the guidance in the
autumn.
Let me point
out where we are. It may be helpful to show that we have made
significant progress. My Department began consultations on the scope of
the guidance with the emergency planning authorities and
the industry in October. We have considered the comments received in
response to that initial consultation and I have taken steps to ensure
that resources are committed to the preparation of the guidance. I am
pleased to report that, at the end of last week, I received a first
draft of the guidance. Our priority is to review that first draft and
ensure that it is fit for purpose before publishing it for a 12-week
public
consultation.
We
intend to continue the consultation process begun in October by first
holding a meeting with our stakeholder group, which has already been
established, to discuss the first draft of the guidance on the
regulations. Our aim is to set up that meeting in the next two to three
weeks, diaries pending; we will do it sooner if we can. Our aim
thereafter is to publish the draft guidance for a formal, 12-week
public consultation as soon as possible this spring. That will be in
good time for all concerned to know where they stand well before the
May 2011 deadline for permit applications. We can therefore make good
on what we have said, even if there has been a slight slippage. We
commenced the process in October and hope to introduce the guidance for
full consultation this
spring.
On
the issues raised by the hon. Lady, the cost of producing the emergency
plans will depend on the different characteristics of each waste
facility and the emergency plan that will be required for each
one. The impact assessment estimates that the initial cost will be
around £5,500 to £7,000 per plan, with total ongoing
costs, including maintenance updating, testing and monitoring and so
on, of £18,000 to £23,000 per plan over a 10-year period.
That is a broad estimation, but it will vary depending on individual
sites and facilities. The emergency plans have not changed since the
impact assessments figures were published. We have no reason to
demur from our original assumptions on the costs; we think that they
are robust. I can also give the assurance that the related challenges
must not exceed the costs reasonably incurred by the authority in
drawing up the
plans.
The
hon. Lady rightly asked whether we are the only ones who are slightly
tardy in transposing. We are not. I cannot give a full list, but
Belgium, for example, has been referred to the European Court of
Justice for late transposition. I do not know whether there are others,
but the example I gave is not unusual when member states try to
implement the provision without gold-plating or working with their
industry to get it
right.
The
hon. Lady also referred to alternative ways in which the provision
could have been implemented. Two other options were considered, but the
impact assessment concluded that environmental permitting was the
preferred one. We always look at the impact assessment, as well as the
burdens assessment on industry, as part of the policy process within
Government, and that was the preferred
option.
It
was also asked which authorities could be used other than the
Environment Agency. Mineral planning authorities and others could have
been used, but we strongly feel that the Environment Agency has the
necessary expertise to do the
work.
Finally,
the additional information for operators, which they are quite rightly
demanding so that they can get on with their business and so that we
can progress, will be
dealt with in guidance. Moreover, information will be related directly
to the risk presented by each sitethe collapse of a heap on one
site, for example, or the impact of a bursting dam on another. It will
therefore be specific and targeted. I hope that my opening responses
have helped fill in some of the gaps, but I am happy to respond
further.
4.50
pm
Matthew
Taylor (Truro and St. Austell) (LD): The Minister may be
aware that my constituency covers the vast bulk of the china clay
mining industry. I was interested in his comments about category A
sites being those at highest risk, but we need a bit of context. First,
I do not think that there have been any major incidents since 1966,
partly because, not just in the coal industry but in all tipping
industriescertainly the china clay industrymajor
changes have taken place as a result of what happened at Aberfan.
Tipping is not tipping in the sense that it used to be. The works are
heavily engineered to ensure that they are safe. Therefore, although it
can sound alarming to talk about highest risk sites, we need to get a
bit of
perspective.
Secondly,
I cannot speak with direct knowledge of most of the facilities that
would be covered by the regulations, but I do speak with considerable
knowledge of the china clay industry. Again, a little perspective is
necessary. When the Minister talks about the reasonableness and the
specific nature of what is required, we need to bear in mind that even
in the 1980s when the coal industry in this country was
extensiveand when I was elected to Parliamentthe china
clay industry tipped more waste in one compact area every year than the
whole of our coal industry. That area is the largest area of open-cast
mining in Europe. The china clay industry operations are huge; the
industry is greatly affected by the regulations. The operations are
hugely technical, because of how the tipping and the micro-dams are
engineered, and the work on protecting the public has been extensive
for many decadesthe history of the success of that speaks for
itself.
The
China Clay Associations concerns, therefore, rest on the
practical implementationthe level of requirement on an industry
that is large and extensive and in that community. The measure places
an absolutely huge burden on the industry. That burden would be less if
a couple of things were true. It would be less if it was accepted, as
the association has strongly argued but officials have not agreed, that
most of what is tipped in the china clay area is not waste according to
the definition in the directive, because it is necessarily part of the
reconstruction of the landscape. All that material, by law, is required
to be used in the process of restoration. I query, therefore, whether
that extra level of bureaucratic requirement on top of all the current
rules is necessary under the EU guidance. Accepting that it is,
however, the burden on the industry would be materially reduced if the
original deadlines for guidance had been met. Although May 2011 may not
sound far away, the time scale for the technical work that we are
required to deliver on what are already operating facilities, is
extremely tight. The Minister has just set out a process of
consultation that will still need to be delivered so, to say the least,
the delays have caused enormous concern in the industry about its
ability to meet the targets, and every delay
increases the costs of delivery because compacting the time scale will
necessarily increase the number of staff devoted to the
work.
I
would appreciate, therefore, an explanation from the Minister about the
delays, and some cast-iron reassurance that the material will come out
in the time scale that he has indicated. To be fair, I hope that the
reason for the delay is materially a result of representations that
have been made and a willingness to listen to those concerns, but there
is no way of judging whether that is the case until we get outcomes.
The Minister says that he has the draft, so perhaps he can give us some
indication of how the regulations have evolved to meet the concerns of
the industry that I largely
represent.
The
third thing that would make a considerable difference to the industry
is the question of the enforcement that will cease operations if the
evidence presented is not felt to meet the requirements on the other
side. The industry is currently working blind without the regulations
and there is no guarantee that what it presents, even with the
guidance, will be deemed acceptable. To be in a position where, running
up against a deadline, it is potentially prevented from operating is of
enormous concern. The best way to meet that concern is to have some
form of arbitration provision and certainly some kind of stop process
while further information is gathered.
There will be
people operating category A waste facilities around the country who
will doubtless be considered dodgy. The worry is that such people will
take any opportunity to delay things while continuing to operate less
than safe operations. There is no record of major incidents since 1966.
It is already heavily regulated and has to meet high standards for
public protection and, certainly the industry that I represent, is not,
in my opinion at least, dodgy. It puts an enormous amount of time and
effort into protecting the community, not least because it lives in
that community. The whole community is bound up with the success of
china
clay.
As
things stand, the industry is working blind without guidance. It has no
real reassurance that what it has said has been listened to, although,
as I suggested, it may be that that is part of the delay, so
understanding that process and where we are at would be helpful. It has
had no reassurance that when it has done its best to provide the
information required and if it is deemed inadequate, it will be given
the time, while continuing the business, to meet those concerns. So I
have real worries about how things are at the moment and I hope that
the Minister can offer some real
reassurance.
4.58
pm
Peter
Bottomley (Worthing, West) (Con): I do not have the hon.
Gentlemans expertise and I do not want to delay the
Committees consideration, but I should like the Minister to
give us some indication of how many emergency planning authorities
there are in England in Wales. It would also be useful if he could tell
us how many emergency planning authorities there are in Northern
Ireland and Scotland. If he has that information to hand, he may want
to let the Committee know whether those other parts of the United
Kingdom will have met their transposing responsibilities either now or
shortly.
There is an
interesting point in the regulations. Regulation 9(2)
says:
The
enforcing authority for the purposes of these Regulations is not the
Health and Safety
Executive.
I
suspect that there are may other things that are not the enforcing
authority either if one has to have a list of what they are not.
Regulation 9(3) says:
The
competent authority is the enforcing authority... only to the
extent
and
so on. If there is a reason for including paragraph (2), it
would be interesting to know what it is.
Taking the
situation overall, I think I am right in saying, although I am new to
this in a sense, that we are talking about emergency planning, not the
operators responsibility to operate safely. For the purposes of
this discussion, that is taken for granted. We are not worrying
ourselves too much about the requirement every three years to make sure
that the public have the information that should properly be available
to them. I do not think that that has been raised as an issue that is
likely to generate much extra expense. It is the role of the emergency
planning authority to ask whether it should be worried about category
A. It is not that other categories should be ignored, but the authority
needs to be in control if something predictable goes wrong; it also
needs to say what can be done if something unpredictable
happens.
It would be
useful if the Minister gave some indication of whether his estimate of
15 to 30 is reasonably robustwe know that he cannot be
exactand who will decide whether something not yet known to be
a category A site should be properly classified as that. Will it be for
the emergency planning authority to make that decision, or will it be
for the operatoror the Health and Safety Executive or the
Environment Agency?
Those are
nit-picking points. One could go further, but it is probably better to
leave it at that. It would be useful if the Minister were to indicate
the boundary between category A and the next most intense
facility.
5.1
pm
Rob
Marris (Wolverhampton, South-West) (Lab): It is a
pleasure, Mr. Russell, to serve under your
chairmanship.
Following the
hon. Member for Worthing, West, I was wondering what will happen about
Northern Ireland and Scotland. My understanding is that if the European
Commission were to start proceedings for failure to transpose, it would
be against the United Kingdom, not against Scotland or Northern
Ireland. Given that the regulations cover only England and Wales, will
the Minister say a little about
that?
I
have a question about regulation 5(b):
to implement
the measures necessary to protect human health and the environment from
the effects of major accidents and other incidents.
Does the Minister
understand the term the environment to include
livestock?