The
Committee consisted of the following
Members:
Chairman:
Mr.
Eric
Martlew
Ancram,
Mr. Michael
(Devizes)
(Con)
Baldry,
Tony
(Banbury) (Con)
Banks,
Gordon
(Ochil and South Perthshire)
(Lab)
Bottomley,
Peter
(Worthing, West)
(Con)
Harris,
Mr. Tom
(Glasgow, South)
(Lab)
Hughes,
Simon
(North Southwark and Bermondsey)
(LD)
Joyce,
Mr. Eric
(Falkirk)
(Lab)
Kemp,
Mr. Fraser
(Houghton and Washington, East)
(Lab)
Kumar,
Dr. Ashok
(Middlesbrough, South and East Cleveland)
(Lab)
McIntosh,
Miss Anne
(Vale of York)
(Con)
Meacher,
Mr. Michael
(Oldham, West and Royton)
(Lab)
Norris,
Dan
(Parliamentary Under-Secretary of State for Environment, Food
and Rural Affairs)
Ruane,
Chris
(Vale of Clwyd)
(Lab)
Watkinson,
Angela
(Upminster)
(Con)
Williams,
Mr. Roger
(Brecon and Radnorshire)
(LD)
Wright,
David
(Telford) (Lab)
Joanna
Dodd, Sarah Davies, Committee
Clerks
attended the
Committee
Fourth
Delegated Legislation
Committee
Tuesday 1
December
2009
[Mr.
Eric Martlew in the
Chair]
Draft
Environmental Permitting (England and Wales) (Amendment) (No. 2)
Regulations
2009
10.30
am
The
Parliamentary Under-Secretary of State for Environment, Food and Rural
Affairs (Dan Norris): I beg to
move,
That
the Committee has considered the draft Environmental Permitting
(England and Wales) (Amendment) (No. 2) Regulations
2009.
As
always, Mr. Martlew, it is a pleasure to serve under your
chairmanship.
Those
carrying out waste recovery or disposal must have either an
environmental permit or register an exemption and meet the rules laid
down for the type of operation in regulations. The United Kingdom is
one of the few member states to provide permitting exemptions as a
lighter touch form of regulation. Over the years, exemptions have
developed in a somewhat ad hoc manner, with previous attempts to
tighten up the controls where problems have been identified leading to
the development of some complex registration requirements for
notifiable exemptionswith requirements not dissimilar to those
for applying for a
permit.
Experience
has shown that many exempt waste operations pose a much higher risk
than some permitted operations, such as commercial-scale composting and
spreading waste on agricultural land, when the regulatormainly,
the Environment Agencyis neither able to carry out sufficient
assessment of the proposals before operations start or recover its
costs when applying greater monitoring and inspection based on the
environmental risk posed and the level of compliance being achieved.
That has led to calls on the Government for increased regulation of
such types of waste operation.
Other exempt
waste operations have been subject to abuse, with landscaping
developments the size of small landfill sites operating under an
exemption for the use of waste in construction with no limits on the
quantities deposited. The House has heard the debate on the existing
poor state of affairs in that respect, and the Government have rightly
given a commitment to do something to prevent
it.
As
many right hon. and hon. Members will be aware, the environmental
permitting regime came into force in 2008 and provides simpler and more
streamlined permitting procedures and enforcement provisions, replacing
the various previous controls on waste and the environmental regulation
of other industrial processes. The permitting legislation did not look
at the boundary between operations that required a permit and those
that may benefit from an exemption. The exemptions review was carried
out jointly by the Department for Environment, Food and Rural Affairs,
the Welsh Assembly Government and the
Environment Agency over more than three years, with significant dialogue
with a wider range of businesses and others. It involved not one, but
two public consultations. The review has led to the proposals before us
today to change the boundary between operations that will need a permit
and those that will be exempt. The boundary is now based on a more
systematic assessment of the environmental risk posed by different
waste operations and on other criteria, an approach that was widely
supported by those responding to the consultation. The boundary is
drawn up in terms of the nature of the operation and the waste types
and maximum quantities of waste allowed, and the other requirements
that must be met for it to be and remain exempt.
The
Government established close and regular contact with the waste
management sector and others during the development of the proposals
for revised waste exemptions and we have maintained that contact.
Operators will be able to register one or more exemptions in relation
to as many sites as they operate at no cost, and will need to submit
only a minimum of information. Higher-risk or larger-scale operations
will be regulated through an environmental permit, which means that
risks can be assessed before operations commence and organisations will
be subject to greater monitoring and inspection based on environmental
risk and operator
compliance.
Eighty-eight
per cent. of the existing 145,000 sites registered as exempt waste
operations will remain exempt and will have to re-register every three
years. Most of them currently have similar simple exemptions, but many
others currently paying for and subject to a level of assessment under
notifiable exemption will benefit straight away from the free simple
exemption. The number of exempt sites will be added to by potentially
thousands of additional sites for which no exemption is currently
provided by law, but the agency has not required them to apply for a
permit as they have low-risk positions.
Nine per
cent. of current exempt sites will no longer need to register as they
are not considered to be carrying out a waste recovery or disposal
operation, and 3 per cent. of sites, which pose the highest risk and
merit closer scrutiny will, in future, need a permit. Most are already
subject to notifiable exemption controls and may be subject to
relatively minor changes to the measures they have to take to mitigate
any risk of harm or pollution. They will include larger metal recycling
sites and much of land
spreading.
Applying
for a permit brings additional requirements, such as the need to
provide evidence of planning permission before the Environment Agency
can grant a permit. Operators will also need to ensure that the
management of permitted waste operations is in the hands of someone who
is technically competent. It is recognised that the requirements will
lead to additional costs for some operators in some sectors. We have
given a commitment in the Government response to the second exemptions
review consultation to take measures to enable those affected by the
move to permit in respect of planning and technical
competence.
After
consideration of all the responses, the Government concluded that the
most effective and cost-efficient means to ensure that the waste
framework directives requirements are implemented in a
proportionate risk-based way is by increasing the provision of new and
amended exemption for smaller, low-risk waste operations, while
restricting or removing the extent of the exemptions for higher-risk
operators. Removing exemptions altogether would be wrong and would
undermine our important drive to encourage recovery and recycling to
deliver the objectives of the waste strategy. It would have a financial
impact on many smaller organisations across a variety of sectors that
rely on them to store, dismantle or treat a wide range of recycled
wastes. I commend the regulations to the
Committee.
10.36
am
Miss
Anne McIntosh (Vale of York) (Con): I welcome you to the
chair, Mr. Martlew. It is a great pleasure to serve under
your chairmanship. I thank the Minister for setting the
scene.
I
will start on a positive note. It is evident that in certain
casesparticularly anaerobic digestionthe Minister and
the Government listened to some of the responses, but in other cases
the Minister did not. I intend to press him on two outstanding areas
where he and his Department have failed to listen and I will ask for
the regulations to be amended. I simply want to know why he is relying
so much on the good will of the Committee and the industry in general
that he has not published the implementing regulations that will apply
at this
stage.
Bearing
in mind the two areas that I will turn to in a moment, I should like to
know why the Government were not committed to an earlier review of the
regulations. It is causing much concern that they are not seeking an
earlier reviewbefore 2013of the regulations once they
are adopted and implemented next year. If the Government would commit
to an earlier review, with the possibility of amending the implementing
regulations, and undertake today to hold full consultation on them,
with the possibility of scrutiny by a similar Committee, it would allay
many
fears.
The
Opposition are fully committed to a zero-waste strategy. We were
committed as early as 2004, so we are delighted to see that the
Government are adopting our policies, which were set out at that early
stage. We want to recycle more. We want industry to invest in new
technologies. We all want to reduce the amount of landfillif
for no other reason because we will all be clobbered by substantial
fines wherever in the country we happen to
live.
We
recognise the value attached to metals, so we go further and invite the
Government to consider recognising and pleading to the Commission the
case that metals and waste from metals should be adopted as a secondary
raw material. The implementing regulations would provide an ideal
opportunity to revise the EU waste framework directive.
We want a
level playing field and fair competition. The Minister said earlier
that we are the only country to have regulations creating exemptions.
The way the exemptions are applied is of concern to people with
existing facilities. Will the Minister give an assurance that
facilities currently enjoying planning permission will not lose their
current arrangements in the review of the regulations? That is one of
the major concerns.
In the
consultation it is the will of the industry, particularly of metal
recyclers, to see illegal operators stamped out. Reading the summary of
responses that the Government have put on the web to one of the
consultations on the regulations, it appears that they paid great
attention to what the Association of Chief Police Officers said about
the level of illegal operators. I would be very interested to find out
whether the Minister would share any evidence with the Committee of how
wide the level is and why he places such emphasis on the evidence of
ACPO, rather than the industry itself.
The Minister
will appreciate that businesses are struggling in the present economic
climate and are obviously challenged by the level of detail in the
regulations. Small businesses are not exempt and we believe that their
future is deeply threatened by the content of the
regulations.
The
Government could have shown more positive leadership in dealing with
our waste. They have failed to prepare sufficiently for the
implementation of the landfill directive, which could cost £150
per tonne of recycled material.
I mentioned
planning. In a written answer on 12 October 2009, the
Under-Secretary of State for Communities and Local Government, the hon.
Member for Dudley, North (Mr. Austin) wrote that 975 waste
applications were decided on in the 12-month period to that date and
only 893 were granted. We are told by industry that the Government
would need to decide on and build a new waste facility every day for
the foreseeable future to meet our current demand for landfill, yet
under the new regulations, the metal recycling and composting
industries are being actively discouraged.
Whereas many
current exemptions are valid for life, all will now need to be
re-registered every three years. DEFRA has dropped the mandatory charge
of £50 to do so, but we believe that the regulatory burden is
still high and that some businesses may be trapped and possibly invited
to act in an illegal sense. We want to work with businesses. We invite
the Government to do so and also to ensure that they invest in the
right plants particularly, as I mentioned earlier, those that have the
planning permissions and permits.
I turn to the
explanatory memorandum and the regulatory impact assessment. The
Minister said there were two consultations, but a close reading
indicates that there were four. There was an informal consultation
between March and June 2007, and a second three-month consultation
between July and October 2008. Then there was a further consultation in
February 2009 and there is to be a consultation on the Government
guidance to accompany amendments made, published in October
2009.
I understand
that the Minister and the Department have selected option 3 of the four
options set out in the cost-benefit analysis of the regulatory impact
assessment, but I have a query about the figures. The Government have
indicated that under option 3 the total cost, which I believe is
underestimated, is between £170 million and £216 million,
and that the total benefit is deemed to be twice that. I challenge the
Minister to explain how he arrived at those figures.
We are told
that the changes are to amend and simplify the current system using
risk-based methodology. It would help the Committee enormously if the
Minister would set out that methodology. We are told that the system
will create a single category of simple exemptions, remove notifiable
exemptions completely and make more effective use of permits. We are
told:
Permits
will continue to apply to higher risk operations where the costs and
additional regulatory burdens are justified by the...benefits of
reduced risks to the environment and human
health.
The
Minister must make the case to show why the existing regulations are
being revised as he proposes.
I shall pick
up three areas: the use of waste in construction work, metal recycling
and composting. The reasons given by those opposed to the revised
thresholds are that they would reduce the use of recycled aggregate in
construction projects and lead to an increase in those materials going
to landfill. The correlation between that exemption and the link with
the site management plan was called into question. The Government in
their response said the evidence shows
that
construction
and demolition waste can be subject to abuse and large deposits would
benefit from a higher regulatory
control.
However,
the Government
acknowledges
the concerns expressed in response to the consultation and does wish to
encourage the recovery of waste, including its use in
construction.
I ask the Minister to
analyse whether that response is completely to the satisfaction of the
industry.
Three areas
are causing specific concern. The original paragraph 45 has been called
into question by the metal recycling industry. In its draft response it
argued vigorously that
the existing
system of exemptions in England and Wales has worked
well.
That
means the existing paragraph 45, giving metal recycling exemption. In
its formal response, the British Metals Recycling Association
argued:
The
Paragraph 45 exemption provides many metal recyclers with a light
regulatory touch that is proportionate to the types of materials they
handle and the processes undertaken.
The association
believes:
There
has been insufficient evidence presented to the industry to suggest the
existing exemption is subject to abuse or failing to provide adequate
levels of environmental protection...The Review has failed to
consider the low risks posed by our industry...Now is not the time to
review the metals recycling exemption...The industry has been
subject to a plethora of change in recent years and has responded to
over 50 consultations in the last two years alone...The proposal
for a new metal recycling exemption does not consider the true impacts
it would have on the compliant
operator.
There
are deep concerns about the planning aspects and what they might mean
for existing facilities:
These
sites threaten the commercial viability of legitimate metal recyclers
and frequently do not employ environmental controls of their
operations.
The association draws
attention to the fact that:
Infrequent/unlikely
inspection of individual sites would make it too easy for sites
operating on the margins...to be part of the
regulated community.
Perhaps the Minister
could share his thoughts about such sites.
According to
the BMRA, the industry
strongly
supports the proposal to introduce an enhanced public register of
exempt business and believes this would help identify regulated and
legitimate
sites.
The
industry has made specific comments as to why it would like that
proposal maintained. It opposes the
proposed T9 exemption and has set out clearly why it believes that the
activities currently undertaken by exempt metal recyclers are low risk.
Again, there is insufficient evidence to suggest that change is
necessary.
All the
industrys arguments are well rehearsed. I commend them to the
Minister and ask why he ignored them. Unless he has changed his mind,
why does the Minister not accept the maintenance of the existing
paragraph 45 exemption for metal recyclers? If the Minister is not
prepared to accept that, we are minded to reject the
regulations.
I turn to the
thoughts expressed by the composting industry. Community composters
processing food waste tend to specialise, and are often in an urban
context, where gardens for home composting are in short supply. The
industry provides great benefits in removing putrescible waste from
areas of high population density, such as flats and high-rise estates,
and the resulting compost is used in many ways to benefit the local
community. The industry has benefits nationwide, and a number of
projects have developed on the same model as the Rotters, who have set
out a case study, although time prevents me from sharing it with the
Committee.
The existence
of community composters is, in their view, is financially fragile.
However, they make a contribution: it is localised and provides a
practical solution for food waste, which, as I understood from the
Government and the Ministers Department, is precisely where the
challenges
lie.
Although
community composters feel they were consulted during the process of
developing the current exemption, neither their formal response nor any
subsequent dialogue with DEFRA or the Environment Agency has changed
the original proposed limit on food waste, which remains at 10 tonnes.
I invite the Minister, having consulted the industry, to acquiesce to
its request that a 50 tonne limit be placed on food waste. That would
not only be in the interests of the industry, but would go a
substantial way to meet his Departments targets.
Those are our
main concerns, whichI repeatshould be widely familiar
to the Minister and his Department. I would like him to set out his
reasons for rejecting the arguments in favour of keeping paragraph 45
in its present form and his arguments for not acquiescing to the higher
50 tonne limit on food
waste.
I
have a number of questions for the Minister. Who will enforce the
regulations? What will be the cost of enforcement? What extra funding
will be allocated to those who are asked to implement the regulations?
What are the comparative costs of implementing the revised regulations
before us today and the existing regulations that have been in force
for some time?
We understand
that guidance on the new regulations has been issued to the industry,
particularly regarding the application process for environmental
permits. Will the Minister share with us what the responses were and
how many in the industry, particularly from the metal recycling and the
composting industries, were in favour of and agreeable to the
consultation on the
guidance?
Why
were the implementing regulations that will give teeth to the statutory
instrument not presented at the same time, so that we could view them
together? What will the transitional arrangements be for businesses to
comply with the new regulations? Does the Minister intend them come
into force strictly in April next year?
When can metal recycling site operators who are concerned that only
permits will be granted expect reassurance that the relevant planning
permissions in place will remain valid? They seek that reassurance
today, and I hope that the Minister will oblige. What arrangements are
there for flexibility in retrospective planning permission and for
assisting metal recycling sites with that
process?
As
I said, if the Government are to meet their targets, we will need one
new facility to be built each day. As I understand it, the Minister is
now asking those who have existing facilities to reapply for planning
permission. They will obviously be on the back foot. His answers in
response to the questions on paragraph 45 relating to metal recycling
and on the new 50 tonne limit on food waste will determine whether he
enjoys our support for the
regulations.
10.55
am
Simon
Hughes (North Southwark and Bermondsey) (LD): May I first
apologise to you, Mr. Martlew, to the Minister and to
colleagues for being late? I was at an all-party spokesmanship event at
Liverpool Street which finished at 10 am. I made it here as quickly as
I could. I also apologise on behalf of my hon. Friend the Member for
Brecon and Radnorshire, who is the expert on these matters; he cannot
be with us, but he has briefed me. On the last occasion that these
matters were debated, he spoke after the hon. Member for Vale of York
and took a similar view. He retains that view. If my hon. Friend
retains the view, having talked to all the people in the industry, I am
certainly not going to change that position. I can therefore be
brief.
The core
proposition that I put to the Minister is that the result of the
further consultation clearly has not satisfied people in an industry
that has been significantly regulated in recent years. Nobody objects
to there being proper rules for recycling, which has to be sufficiently
regulated because of both European and domestic law. However, having
picked up this issue only recently, I see that there have been almost
annual changes to the regulations in recent years. That is increasingly
difficult for many small businesses to have to contend with.
There are two
fundamental reasons why the British Metals Recycling Association argues
that, in spite of the widespread second consultation, the number and
merit of the objections should persuade the Minister that today it
would be wiser to withdraw the regulations and to try to get them
right, rather than force them through the Committee today. Obviously I
have no idea of the views of his Back-Bench colleagues, who are
obviously free to vote against their Government, although that does not
normally happen in Committee. If it happens, that is fine because the
regulations can be defeated, but the more sensible way to proceed would
be for the Minister to withdraw the regulations and then to embark on
further
consultation.
I
will not repeat the detailed points from the BMRA described by the hon.
Lady. Its substantive points are that when similar regulations to these
were looked at north of the borderthe regulations before us
apply only to England and Walesthe Scottish Government decided
that one part of the regulations, the certificate of technical
competence, was unnecessary gold plating and so would
not implement it. The association is strongly of the view that if we
are meant to be in a political culture where regulation happens only
when it
is necessary and where the Government seek to minimise regulation, not
maximise it, the principles of good regulation are being offended by
the regulations before us, because they are neither proportionate nor
targeted.
I
endorse and support the point the hon. Lady made about the paragraph 45
exemption. Many firms in the industry are small and engage in low-risk
activities. I am told that the industry is already subject to 15
different regulatory regimes. I am clear that there have been changes
to the regime in each of the past two years and, I assume, in the years
before that. I know that approximately 1,000 businesses will be
affected, and it could well be more than that. The Government are
trying to encourage everybody to recycle, but the industry argues that
this would be a significant disincentive to recycling for the
small-scale operator. It also says that the proposed exemption
compliance regime and inspection rate of 2 per cent. is
unacceptably low.
The industry
is not being difficult. The Minister has had talks with its
representatives and they have accepted some of the Governments
propositions, such as the proposal to introduce an enhanced public
register of exempt business. It is good for the consumer to know which
is a valid good business but does not have to comply and is therefore
exempted. It is important that that public information will be
available, so that people can identify regulated and unregulated sites,
know which are legitimate practitioners and which are not, and
therefore know how local enforcement officials can deal with those who
breach the
law.
On
the composting regulations, I and some other members of the Committee
represent inner-urban communities. Local community food composting
environmental schemes frequently take place and are increasingly
popular in such areas. Such schemes may derive from a link with local
allotments, or they may deal with food waste collected from shops at
the end of the day. More and more people in urban Britain are trying to
ensure that they use waste effectively. I understand that the
consultation did not change the Departments view that the limit
should be ten tonnes. That will catch lots of small activities. The
Community Composting Network, which is based in Sheffield and reflects
the views of organisations in the east end of London and other parts of
urban Britain, has written to all members of the Committee arguing that
there should be a significant increase in the compliance
thresholda 50-tonne limit, which is five times what is
currently
proposed.
I
have two further points. First, the food waste composting industry is
already heavily regulated by animal by-products regulations, so there
is no immediate need for further changes as proposed in the
regulations. Moreover, the Minister has not cited a significant example
of bad practice to make the case for the urgent change for which he is
arguing. It is not just Rotters in Liverpoolanother good and
well respected organisation in that citythat has written to us,
but others as well. All such organisations have been commended under
objective environmental assessments by organisations looking at good
practice, and they are winners of ethical awards and so on. There
therefore appears to be very good objective assessment as to the good
quality and standard of what is being
done.
Secondly,
the sums that the organisations would be required to pay from their
budgets are significant. If composting projects cannot operate under an
exemption,
they would have to apply for a permit, for which proposed cost is
£1,590, with an annual retention fee of £760 and a
surrender fee of £1,500 if they need to relocate or close. Those
are clearly significant costs for local community-based organisations.
The cost could be even greater, however, because the proposed standard
rule permit for up to 500 tonnes excludes composting activity within
250 metres of any residence or workplace within a groundwater
protection zone. In urban areas, it is very rare for such activities to
be so far away from peoples homes; they are normally located at
the back of terraced houses, or at the back of or in an estate. There
would therefore be no chance of getting such an
exemption.
In
certain cases, therefore, one would not be allowed to get the exemption
under the standard rules; one would have to apply for a bespoke
environmental permit, which is the most expensive one, with an
application costing £2,570 and an annual subsistence charge of
£1,660. Baseline and quarterly bioaerosol sampling would be
required at a further cost of £1,500 to £3,000 per
sampling, The average cost is estimated to be between £7,500 and
£15,000 in the first year. Whatever the specifics, those are big
bills for small community organisations that are well regarded, do not
appear to have offended, are not causing public concern and appear to
be unnecessary
targets.
I
hope that the Minister understands that it is consistent with general
Government policy, which is going in the right direction, to have less
regulation, to encourage recycling and local community composting
activity, and not to penalise small businesses unnecessarily. The
correct direction is to regulate less, not more, so the wise thing
would be to withdraw the regulations. I am happy, on behalf of my hon.
Friends, to have further discussions with the Minister and those
representing the Conservative party and others to try to reach an
agreement. I hope that that is possible. There is still time to do that
before a general election, which must happen in the spring, so I hope
the Minister does not feel that he has no option other than to force
the regulations through today. I ask him to use his personal
ministerial discretion to be brave, to do the right thing and to ask
for the regulations to be
withdrawn.
11.5
am
Peter
Bottomley (Worthing, West) (Con): I will not add or
subtract from what my hon. Friend the Member for Vale of York said, and
I will follow her in whatever decision she makes on voting.
The general
approach of the regulations seems to be right. One can easily provide
some entertainment by wondering how one can collect five tonnes of lion
faeces but up to 100 tonnes of deer, sheep and rabbit faeces. I am
surprised that the limit for lock gates is the same as for that last
group. Leaving that aside, the assessments of the three approaches seem
to be clear. I congratulate the authors on the way they were written,
because it is rare to be able to understand what is put in front of
us.
I
have a questionperhaps to be answered by letterabout
when we will not have discharge of human waste from railway trains. I
know the limits are low, but it would be interesting to know the
answer, although it is
not important for the consideration of the regulations today. Also, can
the Minister ask the Environment Agency how it calculates the costs of
employees? The cost appears to be about £660 a day. If there are
200 days of work from an employee, that would be
£132,000 a year, which is twice the rate of pay of a Member of
Parliament. One can understand an overhead of 100 per cent., but if
that is the way the calculation is done, it would be useful to know. It
is not important to know the answer today, but we would like to know
the answer in
time.
11.7
am