Members present:

Rev Dr William McCrea (Chairperson)
Ms Lewsley (Deputy Chairperson)
Mr A Doherty
Mr Ford
Mr Molloy
Mrs Nelis
Mr Poots
Mr Watson

Witnesses:

Ms E Harkness )
Mr N Simmons ) Department of the Environment
Ms J Purdy )
Mr D Bell )

The Chairperson: I thank Ms Harkness, Mr Simmons, Ms Purdy and Mr Bell from the Department for coming this morning. I am sure they will wish to respond to matters raised in our discussions last week.

Mr Simmons: The Department’s letter of 1 July addressed points raised by the Committee last week. In the time available we have only been able to give an initial assessment; we have referred the matters to legislative counsel and await a response.

The first points arose over clause 2(4). The Committee asked us to put in a specific requirement in clause 2(4)(a) to consult district councils, and we are happy to do that. The Committee also asked, with regard to clause 2(4)(a), about consultation with small businesses and why the formula "any such businesses" was not used. We are quite happy to insert the reference to "any such businesses". However, as the letter says, we are required when preparing legislation to consider the specific impact on small businesses, so we should like to include, in addition to "any such businesses", a drafting reference to small businesses.

Clause 2(5) concerns prior consultation. By stating the Department’s intentions quite clearly, we can deal with that without the need for an amendment. Clause 2(5) is designed to facilitate consultation on the Regulations under the Pollution Prevention and Control Bill. It will enable us to publish those Regulations for consultation as the draft Bill is going forward. The letter says:

Mr Simmons: If it helps clarification, we shall certainly be happy to do so.

Mr Ford: That would make the matter very clear.

The Chairperson: It is not in law if it is only in the explanatory and financial memorandum.

Mr Ford: I appreciate that, but it has slightly more substance than a statement to the Committee has.

The Chairperson: Our legal advice still says that that would not be binding. If it is implicit, why is it not explicit? You acknowledge our concern, so why not make it explicit?

Mr Simmons: We are keen to move as few amendments to the Bill as possible, and we thought that a clear statement of intent made the point. There is no difference in thinking between us, but if you —

The Chairperson: I appreciate that you want as few amendments as possible, but if they are agreed between yourselves, the Department and the Committee, there will be no fear of the amendment going askew. One hopes it will have the approval of the Assembly. If we want to get things right, we should insert the promise as an amendment rather than leave it where there is still a question mark over it. Our advice is that a promise in the explanatory and financial memorandum would leave such a question mark. Rather than leave a point for solicitors to argue, why not be explicit on it?

Mr Simmons: We will take the matter back to legislative counsel and keep the Committee informed.

The Chairperson: I should appreciate that.

Ms Harkness: The next issue raised was over clause 4(6) — specifically the use of the word "concluded" in that subsection. There were two issues. The Department has sought the views of legislative counsel on the definition of the word "concluded". I have examined the issue again, and my research has not thrown up any particular difficulty with the use of the word "concluded" as opposed to "commenced". There is no more ambiguity or difficulty attached to "concluded".

I understand that the Committee has obtained contrary legal advice. I have not had the benefit of that and should welcome an opportunity to see it so that I can see exactly what the difficulty is. I speak here of the technical legal definition of the word "concluded" rather than whether you prefer "commenced". I have not identified one.

The Chairperson: Our legal advice says that it is difficult to define "concluded". Can you define it?

Ms Harkness: My point is this: are there any more difficulties with defining "concluded" than there are with defining "commenced"? Every word in the statute is open to interpretation. My review has not shown any previous case law where the definition of the word "concluded" caused a problem. I have carried out Lexis searches in that respect through the law of this jurisdiction and others based on common law. That is why I want to know the legal advice on what has been missed.

The Chairperson: Doctors differ, and patients die. We do not want solicitors making money arguing over the meaning of a word.

Ms Harkness: Far be it from me to want to line the pockets of the legal profession, but whatever word is used will be open to interpretation. It is a question of where there is going to be most scope.

The Chairperson: Nothing should be left open to interpretation. Words must be used that clearly show the meaning of the legislation. I do not want legal advisers arguing over a word and ignoring the substance.

Ms Harkness: Should the portcullis fall at the point which might be called "concluded" or at the point which might be called "commenced"? The overarching purpose of the provision is not to prosecute anyone or chase prosecutions. There is a possibility that certain operations have continued to operate under the cover of an expired licence. Such an operator is not necessarily being fraudulent — maybe neither side was aware that the licence had expired. The purpose of the provision is to bring those persons under the net of the new waste management licences. If those people are brought under that net, the controls of that regime will apply to them, and they will not be able to walk away from a site leaving the potential for long-term pollution.

If anyone was prosecuted for operating after his licence expired — not for having infringed the terms that would have been attached to the licence had it continued — and acquitted, no offence was committed. If he was convicted, the case is history and should not be reopened. That is what we are hoping to achieve. The alternative is to say that proceedings have commenced rather than been concluded. In such circumstances one official would have commenced a prosecution against a person who continued to operate after the expiry of a licence, and he would have to continue with that prosecution. At the same time another official would be regularising the similar position of another operator. However, that official would not be taking proceedings against that operator. Instead, the expired licence would be renewed and made subject to the provisions of the 1997 Order — inconsistent and unequal treatment of two comparable operators.

On the point of substance, as it has been called, the decision has been to apply this provision in subsection 6 to proceedings that have been concluded as opposed to proceedings that have been commenced. I am sorry for that lengthy explanation, but it is a very complex situation.

Mr Ford: It certainly was lengthy. I accept that the thrust of this clause is to do with regularising existing positions. However, you seem to be saying that subsection 6 applies only to prosecutions for the continuation of previously authorised activities. As I see it, that could have a wider effect on prosecutions for activities that were in contravention of licences previously issued. That is the part I have difficulty with, though you may be able to explain it to me.

Ms Harkness: Perhaps this arises out of the relationship between subsections 5 and 6. Subsection 5 has been described as the rogue provision — the one that the Department wants to amend. That provision, as it stands, is going too far and would give immunity not only to people who had done what they were previously entitled to do, but done it after the expiry date, but also to people who had done what they should never have been doing, and we do not want to do that. Subsection 6 does not affect that. Subsection 6 concerns situations where there have been criminal proceedings, and that issue is closed. The complexities of re-opening criminal proceedings and getting a situation back to as though those proceedings had never happened are tremendous. I do not know if that answers the point, but I think the question you were posing arose out of the relationship between the two.

Mr Ford: Given that subsection 6 refers to the entire section, and we do not know what the Department is proposing for subsection 5, we probably cannot advance this discussion now. I want to look at subsection 6 again when we see the details of the Department’s amendment to subsection 5.

The Chairperson: We only have a short time for this, and it is totally unacceptable that we do not have the amendment for subsection 5.

Ms Harkness: Legal advice has been sought on this, and part of that advice has been received. However, subject to it, the intention will not be to change the wording — it will be deleted.

The Chairperson: We need that clarification, because we must look at subsection 6 in relation to what is removed.

Mr Molloy: The best approach is for subsection 6 to become subsection 5.

Ms Harkness: Yes. It will move up.

Mr Molloy: My concern is similar to what you have expressed. In the United States, for instance, people who dumped and disposed of stuff 30 years ago — particularly asbestos — are now finding themselves being prosecuted because of the way in which the disposal happened. We want to ensure that we can follow cases of past pollution, instances in which people disposed of something wrongly at the time — did not do it under licence, or did it wrongly under licence. The Orders themselves will not do that; they will only implement Directives. Any Directive implemented under this provision will be subject to the regulation-making provisions of the Bill and, therefore, subject to scrutiny in the normal way.

The Chairperson: Mr Ford, you were concerned about that. Our legal advice is that it may be fine.

Mr Ford: It seems fair enough as Mr Simmons described it.

The Chairperson: We got the matter clarified and were advised that it can be a way to move forward.

Mr Simmons: We are working on a detailed paper on the consequential amendments and repeals in schedules 2 and 3. We will let you have that as soon as possible. There is a lot in it, so it needs preparation.

The Chairperson: You know your limits. You drew them up. We need the papers to do our work.

Mr Ford: The fact that there is a detailed list shows the Committee’s need to examine it.

Mr Simmons: My colleague, Mr Bell, will speak on agriculture. I want to move to the Human Rights Commission. The Department supplied you with the correspondence, including the commitment to consult the commission on the detailed Regulations, which includes material on the powers of entry, et cetera. We will send a copy of the Regulations to the commission for its scrutiny.

The Chairperson: Can you clarify that the Bill —

Mr Simmons: The Bill has not gone yet. It will be sent to the commission with the Regulations.

The Chairperson: So the Bill will be going as well?

Mr Simmons: Yes.

The Chairperson: It is important that that be clarified.

Mr Bell: I will go through the contact we have had with farming organisations and the industry in general. I have been writing to farming organisations for the past couple of years to say that this legislation was on the way. Last January I contacted the Ulster Farmers’ Union (UFU) and the Northern Ireland Agricultural Producers’ Association (NIAPA) to advise them of the timetable. I arranged to give a presentation to the Northern Ireland Poultry Federation, which represents a range of interests in the poultry industry from farmers to processors and the feed companies. I arranged to make a presentation to the UFU’s central pigs committee.

The purpose of the presentations is to show what the Integrated Pollution Prevention and Control (IPPC) Directive is all about and the likely timetable for its implementation here. At the end of the presentations we identified working groups to enable the poultry industry and the pig sector to have more detailed discussion on the technical implications of IPPC for farmers, and meetings have started. We held poultry working groups in May and June, and we have had one meeting of the working group on pigs. Another is scheduled for August.

At an earlier meeting with the Committee we said that we were proposing to follow a similar approach to the rest of the UK in adopting standard farming installation rules here. We have been discussing those rules in detail with the organisations. It has been a useful exchange, and we will continue to have regular contact with the industry until the Regulations are in place.

The Chairperson: How are you dealing with the problems that are being identified?

Mr Bell: In several areas we have amended the rules as a result of discussions, although the scope for changing some rules is limited. We previously discussed the hierarchy of guidance that comes from the EU, the BAT reference notes, that are then reflected in national guidance. Our approach has been that where we have identified a particular technique in the rules, and where farmers or other sectors of the industry have expressed a particular concern about it and have been able to suggest alternatives that deliver an equivalent level of environment protection, we have been able to use our flexibility and change the rules. That is what the working group meetings are about.

The Chairperson: Can you give us some instances of your flexibility and the changes made with UFU and NIAPA?

Mr Bell: One example was to do with the dietary requirements of pigs. One of the main thrusts of standard farming installation rules is to try to match the crude protein requirements of an animal with the protein content in its feed. The reason is that if an animal is fed too much protein, it is excreted and additional nitrogen is excreted — that presents a disposal problem. By matching the protein content of the feed with the needs of the animal, the amount of nitrogen excreted can be reduced.

In one GB rule, there was a requirement for multi- phase feeding systems to be employed in all pig houses for finishers. We amended the rule to make it apply only to new pig houses and to optimise the feeding regimes of existing pig houses.

Another example of where we agreed to change a rule — though we do not have the revised wording yet — relates to the number of diets fed to broilers for roasting or to specialist birds that tend to grow slightly larger. The GB rule required an additional diet after 56 days, which is an absolute cut-off point. We are going to introduce flexibility to that rule also. Those are areas where there are benefits to the industry of allowing a little more flexibility without incurring a significant environmental penalty.

Mr Molloy: Is any support being given to farmers? Anaerobic digesters and other ways of creating energy from waste in this type of situation, where there is a cross-departmental role, should allow farmers to draw down financial support. We could then use waste more productively?

Mr Bell: There are two parts to that question, and I will answer them separately. I will start with the technical part about anaerobic digesters. There is limited experience of using anaerobic digesters to process animal slurries. However, that could have the potential benefit of energy recovery.

The other issue concerning the disposal of slurry is its nutrient content, particularly its phosphorous content. Anaerobic digesters will not address that. However, it is a useful point that there may be other means of dealing with waste or slurries from intensive livestock installations. An example of that is broiler litter. Elsewhere in the UK, large quantities of broiler litter are sent for energy recovery in a power station or incinerator — the term you use depends on how you look at it. That can generate a phosphorus-rich ash, which can be used as a fertiliser in a more controlled way. There may be merit in looking at disposal routes other than land spreading.

I am looking at support for farmers from the rather narrow perspective of our being a regulator. As such, we cannot push or support people to look at a particular solution. We assess the solutions that people come up with. If they represent an acceptable way forward, given environmental controls, we will authorise them. Trying to encourage people to deal with waste in different ways is relevant, but it is not something for us to address as regulators.

Mr Molloy: While I accept that it is not your job to solve the problem, there are different departmental roles. The Department of the Environment is, perhaps, the project initiator. The cross-departmental element is in line with the Executive programme funds, which are dedicated to innovation and trying to come up with solutions to problems, rather than just regulating and legislating.

Mr Bell: The principle employed in regulating other industries is that they must find solutions to their problems. We will help where we can, and that is the purpose of our contacts with the farming industry. We want to ensure that guidance is clear and that we have taken on board the farming industry’s concerns about the development of the rules, but from my narrow perspective as a regulator, it is not for me to encourage uptake of other more general waste treatment approaches.

The Chairperson: Mr Ford, is your question on the same point because that is what we want to deal with?

Mr Ford: It follows from the last point. This is useful information today. Can you give some detail of the case studies that the Scotland and Northern Ireland Forum for Environmental Research (SNIFFER) is funding, and will we have the results before you formulate the regulations?

Mr Bell: Certainly. Case study broiler farms have been identified in both Scotland and Northern Ireland. People have asked why we just pick broiler farms. The reason is that they are most likely to get caught early by the Regulations. As you probably know, we said that existing installations will not get called in until as late as possible. Many broiler houses are being built, and that sector is most likely to get caught. The purpose of the study is to get the farmer to compile an IPPC application, using the available documentation, to identify areas that present difficulties and opportunities to improve the guidance documentation. I hope that we will be able to learn lessons from that quickly and amend the documentation. The report on the case study should be complete by the end of September, which will give us time to amend documentation for the first applicants.

In response to Mr Molloy’s question on anaerobic digesters, one of the farmers on the working group on pigs was going to look at an anaerobic digester in Devon. He is planning to report back to the group, so we may get some more information on that technology.

Mr Armstong: Farmers have been looking at the possibility of using anaerobic digesters since 1980. The Government and officials have given little support to people who wish to explore how they can contribute to lower levels of pollution. If farmers had been making a little more profit in the past six to eight years, they would have done more about it themselves. The work on this is far behind because the Government did not provide enough support. Work is being done with anaerobic digesters in Fivemiletown and Ballymoney. The by-product is a product itself with an analysis of phosphorus potash and nitrogen. When the by-product becomes a product, there is no pollution. That kind of work must be done, and those who want to bring in this legislation should contribute to it. Farmers are waiting for that kind of effort to be made, for they need that support.

Mr Bell: That is the point that I made earlier in the context of the Department’s role as a regulator. If someone has an innovative solution that will benefit the environment, he will not have a problem getting a permit. I have a difficulty though in promoting solutions for those whom we regulate.

Mr Simmons: This is not my field, but these issues are probably being considered, or will be considered, in the context of the waste strategy, which is being developed. It makes provision for developing agricultural strategies, and that is the sort of forum in which progress on this work will be made.

Mr Armstrong: Farmers have been looking at this since 1980, and if they had got their way, we would not have the pollution problem that we have today.

The Chairperson: Clause 2, subsection 8a refers to

The Chairperson: What about the first set of Regulations?

Mr Simmons: The first set will be the PPC Regulations and will be subject to affirmative resolution. Clause 2 (8)(a) is a specific reference to them.

The Chairperson: We will send you the remaining questions on this so that every member can see the answers.

Can we go to schedule 1, paragraph (15)(1)(c), which says

The Chairperson: To define it too much could tie the officer’s hands. He could be challenged and would defend himself by taking that action.

Mr Bell: Such action would be taken only in extremis.

The Chairperson: We shall send the remaining questions to you, because our time is up. Thank you.