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Pollution Prevention And Control Bill [H.L.]

These notes refer to the Pollution Prevention and Control Bill [H.L.] as introduced in the House of Lords on 26th November 1998 [HL Bill 3] Pollution Prevention And Control Bill [H.L.] EXPLANATORY NOTES INTRODUCTION 1.     These explanatory notes refer to the Pollution Prevention and Control Bill [H.L.] as introduced into the House of Lords on 26 November 1998. They have been prepared by the Department of the Environment, Transport and the Regions in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2.     The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation, none is given. SUMMARY 3.     The Bill confers on the Secretary of State powers to make regulations providing for a new system of pollution prevention and control. It is intended that, generally, these will be transferred to the National Assembly for Wales in so far as they are exercisable in relation to Wales, and to the Scottish Executive in so far as exercisable in or as regards Scotland. BACKGROUND 4.     Part 1 of the Environmental Protection Act 1990 (the "1990 Act") contains the Integrated Pollution Control (IPC) regime and Local Air Pollution Control (LAPC) regime. Both regimes are concerned with regulating pollution from industrial processes. The first is concerned with preventing or minimising pollution of the environment due to the release of substances into the air, water or land. The second is concerned with preventing or minimising air pollution and applies to those industrial processes which are not considered to give rise to significant pollution of water or land. Central to both regimes is the requirement that the "Best Available Techniques Not Entailing Excessive Costs" should be used to prevent or minimise pollution. In addition to these regimes, Part II of the 1990 Act contains the Waste Management Licensing system, which is concerned with regulating the deposit, treatment, keeping or disposal of waste. 5.     The UK must implement EC Directive 96/61 on Integrated Pollution Prevention and Control (the "Directive") by 30 October 1999. This Directive requires a range of industrial installations to be regulated by a system of integrated pollution control (ie a system in which emissions to air, water and land, plus other environmental effects, are considered together and conditions set so as to achieve a high level of protection for the environment as a whole). Permit conditions must be based on the use of the "Best Available Techniques", which is a similar concept to "Best Available Techniques Not Entailing Excessive Cost" in Part I of the 1990 Act. The installations covered by the Directive include most of those regulated at present under the Integrated Pollution Control regime in Part I of the 1990 Act; some 1500 of the 13000 regulated at present under the Local Air Pollution Control regime in Part I of that Act; over 1000 of the installations regulated under the Waste Management Licensing regime contained in Part II of that Act; and significant numbers of installations which are at present unregulated by either Part I or Part II of the 1990 Act. 6.     The purpose of the Bill is to enable a single, coherent pollution control system to be set up by regulations which will apply to all of the installations to which the Directive applies and to those installations currently regulated under Part I of the 1990 Act but to which the Directive does not apply (Part I of the 1990 Act will be repealed by this Bill, subject to what is said below in relation to Northern Ireland). The Bill also provides for regulations to be made under the Bill to cover various ancillary matters connected with the prevention or control of pollution. An example would be the collection of information about emissions for inclusion in a polluting emissions register. 7.     The Government's proposals for the implementation of the Directive have been the subject of two consultation papers, "UK Implementation of EC Directive 96/61 on Integrated Pollution Prevention and Control: Consultation Paper" issued in July 1997 and "UK Implementation of EC Directive 96/61 on Integrated Pollution Prevention and Control: Second Consultation Paper" issued in January 1998. Copies have been placed in the libraries of both Houses of Parliament. A third consultation paper, including a draft of the regulations which the Secretary of State proposes to make under the Bill, is due to be published before the end of 1998. COMMENTARY Clause 1 and Schedule 1 8.     Clause 1 of the Bill confers on the Secretary of State power to make regulations creating a regime of pollution control. The new system will need to incorporate the concepts and principles used in the Directive (such as Best Available Techniques and the general principles concerning energy efficiency, the control of waste production and site restoration) in so far as the installations covered by the Directive are concerned. The Directive's requirements will, however, where appropriate, be modified or disapplied for the purposes of applying the new control regime to installations not covered by the Directive. The Regulations will be made subject to the Negative Resolution Parliamentary Procedure rather than the longer Affirmative Procedure because of the need to implement the Directive by 30 October 1999. In addition, the Negative Resolution Procedure will be the appropriate procedure for any subsequent amendments to the Regulations. 9.     Schedule 1 to the Bill lists some of the specific purposes for which the power in clause 1 may be used. The power will enable the procedural requirements of the new pollution control system to closely parallel those in Part 1 of the 1990 Act. Schedule 1 makes it clear, for example, that the regulation making power in the Bill may be used to establish a system of pollution control containing requirements on operators to hold permits (paragraph 4); for those permits to contain conditions (paragraph 6) which are to be reviewed by the regulator (paragraph 7); for publicity to be given to, for example, permit applications and for information to be supplied inter alia for inclusion in public registers (paragraph 12); for regulators to take enforcement action (paragraph 15); for the creation of offences (such as failure to comply with permit conditions) (paragraph 17); and for rights of appeal (paragraph 19). 10.     Clause 1 and Schedule 1 will also enable the new pollution control system to include requirements similar to those in Part II of the 1990 Act. Thus, for example, paragraph 5 of Schedule 1 will allow provision to be made restricting the grant of permits to those who are fit and proper persons, a test which is applied under the Waste Management Licensing system. The power to make regulations in this area is necessary in order that "fit and proper person" provisions may continue to apply to those waste management installations currently regulated under Part II of the 1990 Act to which the Directive applies and which, in future, will be regulated under the new regime to be set up in the regulations made under the Bill rather than under Part II. 11.     Similarly, paragraph 8 allows provision to be made regulating the transfer or surrender of permits (matters which are regulated under the Waste Management Licensing system). The Regulations will need to apply such requirements to all installations covered by the Directive to allow the implementation of the Directive's requirement that appropriate remedial activity takes place following closure of an installation. 12.     Paragraph 2 of Schedule 1 will enable the Regulations to determine the authorities which will exercise the functions under the new pollution control system. As under Part I of the 1990 Act it is intended that the role of granting and updating permits, taking enforcement action etc, will be divided between the Environment Agency and local authorities in England and Wales and carried out by the Scottish Environment Protection Agency in Scotland, save in relation to any matter affecting offshore installations, which will be regulated by the Secretary of State. 13.     As under the present regimes under Part I of the 1990 Act, fees will be payable to these authorities in relation to the exercise of some of their functions (for example, in relation to the determining of applications for the grant of a permit and for the variation of the conditions of a permit). The fees payable to local authorities or the Secretary of State will be set out in charging schemes made under the regulations (paragraph 9 of Schedule 1) and those payable to the Agencies will be set out in schemes under section 41 of the Environment Act 1995. Paragraph 10 of Schedule 1 will allow fees to be charged for prior testing of substances for whose discharge a permit is sought. 14.     Paragraph 1 of Schedule 1 enables the Regulations to establish standards, objectives, requirements and limits and to allocate quotas in relation to emissions, (things currently provided for in section 3 of the 1990 Act). The paragraph specifically provides for the making of quota trading or transfer schemes in relation to quotas so allocated. 15.     Paragraph 11 of Schedule 1 enables the Regulations to require people to compile and provide information on emissions. For example, this power will be used to obtain information on emissions to comply with any Commission decision on a European Polluting Emissions register. 16.     New installations will be regulated under the new regime set up under the Bill from the date on which the new regime comes into force. Existing installations will be phased into the new regime, generally on a sectoral basis. Clause 2 17.     Clause 2(1) and (2) enable the transfer order under the Government of Wales Act 1998 to follow the quicker Negative Resolution Procedure rather than the Affirmative Procedure. This is to enable the National Assembly for Wales to bring regulations into force in time for the implementation of the Directive. Clause 2(3) provides for the transfer of functions under the Bill to the Scottish Executive under the Scotland Act 1998. Clause 3 and Schedules 2 and 3 18.     The Bill provides for the repeal of Part 1 of the 1990 Act (subject to what is said below in relation to Northern Ireland), which will be superseded by the new pollution control regime set up under the Bill, and for a number of consequential amendments and repeals to other legislation to take account of the replacement of the Part 1 regimes by the new regime (clause 3 and Schedules 2 and 3). Some consequential amendments are being left to be made under regulations because their precise terms will turn on what is in the Regulations. The amendments in the Prevention of Oil Pollution Act 1971 and the Merchant Shipping Act 1995 take account of the consolidation effected by the 1995 Act. 19.     The Bill generally only applies to Great Britain. Part I of the 1990 Act also generally only applies to Great Britain but section 3(5) to (7) of that Part also applies to Northern Ireland. The repeal of Part I of the 1990 Act will not affect section 3(5) to (7) in so far as it applies to Northern Ireland. Clause 4 20.     Clause 4(9) will enable Regulations under the Bill to apply to installations under the jurisdiction of the United Kingdom but beyond its territorial waters. This will enable, for example, the regulation of large combustion installations on oil rigs whether or not they are in territorial waters.

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Prepared: 27 november 1998