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Session 2009 - 10
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Delegated Legislation Committee Debates



The Committee consisted of the following Members:

Chairman: Bob Russell
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 Minister’s 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 Minister’s 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 facilities—category 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 facilities—the 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.
However, I acknowledge that there is one issue on which we have not been able to meet all the industry’s concerns—the 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 directive’s 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 directive’s 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 authority’s 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 politician’s mouth. We did not deliver the guidance in the autumn.
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 assessment’s 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.
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 industries—certainly the china clay industry—major 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 extensive—and when I was elected to Parliament—the 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 decades—the history of the success of that speaks for itself.
The China Clay Association’s concerns, therefore, rest on the practical implementation—the 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. Gentleman’s expertise and I do not want to delay the Committee’s 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 operator’s 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 robust—we know that he cannot be exact—and 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 operator—or 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?
 
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