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COMMITTEE FOR THE ENVIRONMENT TOGETHER WITH THE MINUTES OF PROCEEDINGS, MINUTES OF
EVIDENCE, Ordered by The Committee for the
Environment to be printed 3 October 2002 COMMITTEE FOR THE ENVIRONMENT: Powers The Committee for the Environment is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, Section 29 of the NI Act 1998 and under Assembly Standing Order 46. The Committee has a scrutiny, policy development and consultation role with respect to the Minister of the Environment and has a role in the initiation of legislation. The Committee has power to:
Membership The Committee has 11 members including a Chairperson and Deputy Chairperson with a quorum of five. The membership of the Committee is as follows: Dr William McCrea (Chairperson)
1 Ms Patricia Lewsley replaced Ms Carmel Hanna as Deputy Chairperson on 21 January 2002. 2 Mr Billy Armstrong replaced Mr James Leslie on 8 April 2002. 3 Mr David McClarty replaced Mr Tom Hamilton on 26 February 2001, who had previously replaced Mr Tom Benson on 29 January 2001. Mr Benson died on 24 December 2000. 4 Mr Francie Molloy replaced Mr Mitchell McLaughlin on 4 February 2002. 5 Mrs Mary Nelis replaced Mr Mick Murphy on 1 July 2002. 6 Mr Michael Coyle replaced
Mr Arthur Doherty on 16 September 2002. TABLE OF CONTENTS Evidence on the Bill obtained by the Committee Clause by Clause Consideration Background to the Committee's Scrutiny Differences with current Legislation Consideration of the Clauses of the Bill Related issues considered by Committee Appendix 1 - Minutes of Proceedings Appendix 2 - Minutes of Evidence Appendix 3 - Written Evidence and Correspondence considered by the Committee
1. The Pollution Prevention and Control Bill (the Bill) was referred to the Committee for consideration in accordance with Assembly Standing Order 31(1) on completion of the Second Stage of the Bill on 25 June 2002. 2. The Minister of the Environment (the Minister) made the following statement under Section 9 of the Northern Ireland Act 1998: "In my view the Pollution Prevention and Control Bill would be within the legislative competence of the Northern Ireland Assembly." 3. The stated purpose of the Bill is as follows: (i) make provision for implementing Council Directive 96/61/EC and for otherwise preventing and controlling pollution; (ii) amend the transitional provisions in relation to waste management licences in Article 47 of the Waste and Contaminated Land (Northern Ireland) Order 1997; (iii) make provision about certain expiring disposal licences; and (iv) for connected purposes. EVIDENCE ON THE BILL OBTAINED BY THE COMMITTEE 4. During the period covered by this Report, the Committee considered the Pollution Prevention and Control Bill and related issues at fifteen meetings: 6 September 2001, 22 November 2001, 18 and 25 April 2002, 30 May 2002, 6, 13, 20 and 27 June 2002, 4 July 2002 and 5, 12, 19, 26 September 2002 and 3 October 2002. The Minutes of Proceedings for these meetings are included at Appendix 1. 5. The Committee had before it the Pollution Prevention and Control Bill (NIA 19/01) and the Explanatory and Financial Memorandum that accompanied the Bill. 6. This Bill transposes the EC Directive 96/61/EC on Integrated Pollution Prevention and Control (the Directive) to ensure that Northern Ireland meets fully its EU obligations - the effective date for transposition of the Directive in all Member States was 31 October 1999. However, the transposition process formally commenced in Northern Ireland on 25 June 2001 when the Department of the Environment (the Department) issued a public Consultation Document inviting comments on its proposals for relevant primary and subordinate legislation. (Appendix 3, Annex 1 refers. The full Consultation Document may be viewed on www.nics.gov.uk/ehs.) 7. The Committee considered the Consultation Document and the Department's proposals at its meeting on 6 September 2001 and identified a number of areas that required clarification before a final response could be made. A letter detailing the Committee's initial concerns was sent to the Department on 11 September 2001. (Appendix 3, Annex 2 refers.) 8. The Department replied to the Committee on 10 October 2001. (Appendix 3, Annex 3 refers.) Following further consideration, the Committee sent a formal response to the Consultation Document on 22 November 2001. (Appendix 3, Annex 4 refers.) 9. On 14 December 2001, the Department wrote to acknowledge receipt of the Committee's letter of 22 November 2001 and responded to two of the principal concerns highlighted by the Committee, namely, Simplified Permitting arrangements and Site Restoration. (Appendix 3, Annex 5 refers.) 10. Following agreement between the Committee and the Minister, in March 2002, on mutual co-operation to progress a number of Bills coming before the Committee, to comply with EU Directives, the Department wrote to the Committee on 3 April 2002, enclosing a copy of the Policy Memorandum that had been sent to the Executive Committee for approval. The Department also enclosed a summary of all responses received to its earlier Consultation Document. (Appendix 3, Annex 6 refers.) 11. On 25 April 2002 Department Officials attended the Committee's meeting and gave a presentation on the principal provisions of the proposed Bill and to explain how the Department addressed the various responses to the Consultation Document. (The Speaking Notes of the Officials are included at Appendix 3, Annex 7.) The Officials subsequently answered questions from the Committee. 12. Following the presentation of 25 April 2002, the Committee wrote to the Department on 8 May 2002 with further questions and concerns, for example, exceptional circumstances for financial support for the farming industry. The Committee also asked for early sight of the text of the draft Bill. (Appendix 3, Annex 8 refers.) 13. On 21 May 2002 the Department wrote to advise the Committee that, on 16 May 2002, the Minister had written to the Executive Committee to seek agreement to proceed with the introduction of the Bill. (Appendix 3, annex 9 refers.) Subject to the Executive Committee's agreement, it was intended to introduce the Bill to the Assembly on 10 June 2002 with the Second Stage Reading on 18 June 2002. The Department enclosed a draft copy of the proposed Bill, along with a draft Explanatory and Financial Memorandum (EFM). The Department highlighted that many of the Committee's comments to date on the proposals have been concerned with matters more likely to be covered in the Regulations which will flow from the enabling powers within the proposed Bill. 14. On 22 May 2002 the Minister wrote to the Committee Chairperson to express his concern at the proposed timetable for the Bill and associated Regulations. The Minister advised the Committee that, on 7 March 2002, the European Court of Justice had issued a judgment in favour of the European Commission that had commenced infraction proceedings against the United Kingdom because of its ongoing failure to transpose the Directive in Northern Ireland. The Minister wrote: 'This timetable does not sit easily alongside the anticipated pace of progress on the infraction case. Therefore, anything that can be done to expedite the passage of the Bill and therefore reduce the infraction risk must, in my view, be explored fully. Agreement to accelerated passage for the Bill would almost certainly mean that the Bill could complete its Assembly passage and receive Royal Assent by January/February 2003. This, in turn, could enable the Regulations to be debated before dissolution in March.' (Appendix 3, Annex 10 refers.) 15. The Minister concluded by inviting the Committee to consider his request for accelerated passage and indicated that he would be willing to attend a meeting of the Committee to discuss the matter. 16. On 28 May 2002 the Department replied to the Committee's letter of 8 May 2002 which detailed a number of questions arising from the presentation to the Committee by Officials on 25 April 2002. (Appendix 3, Annex 11 refers.) In its letter, the Department detailed the financial and other support made available to farmers in Great Britain and confirmed that similar provisions and charges would be included within the Northern Ireland Regulations. 17. At the Committee's meeting on 30 May 2002, Department Officials attended to answer Members' questions on the Minister's letter of 22 May 2002, particularly on the effects of accelerated passage and the likely timetable needed to progress the Bill through the Assembly. The Committee agreed to invite the Minister to its next meeting on 6 June 2002 to discuss the matter further. 18. On 5 June 2002 the Committee wrote to the Department asking for clarification on the fees to be paid as a consequence of this legislation, particularly within the farming industry. (Appendix 3, Annex 12 refers.) The Committee also expressed a desire to meet with senior Officials from the European Commission, should they visit Northern Ireland in the near future. 19. The Minister attended the Committee meeting on 6 June 2002, accompanied by Department Officials. After making an opening statement, the Minister answered questions from the Committee on a range of issues - notably, the timetable for progression of the Bill through the Assembly under accelerated passage. 20. After the Minister had left the meeting on 6 June 2002, the Committee discussed and voted on his proposal for accelerated passage for this Bill. The Committee Chairperson wrote to the Minister on 7 June 2002 as follows: 'The Committee could not agree to support your proposal for accelerated passage. Eight Members were present and the vote to support your proposal resulted in a tie - under Standing Order 26(6) the Motion falls. Should it be decided to take this Bill through normal procedure, I can assure you that the Committee would be mindful of the issues you have raised regarding the need for the Bill to receive Royal Assent and the key Regulations to be operational before dissolution in March 2003.' (Appendix 3, annex 13 refers.) 21. In response, the Minister wrote to the Committee Chairperson on 11 June 2002 with a revised proposal: '..a proposal that if the Committee could undertake to complete Committee Stage scrutiny and its Report by mid-September 2002, I would not proceed with the Motion for accelerated passage. The Bill would then go to Consideration Stage in late September. In this way, the Bill would go through by normal procedure, while at the same time ensuring as far as possible that there will be sufficient time to enable both the primary and subordinate legislation to be in place before dissolution.' (Appendix 3, Annex 14 refers.) 22. At its meeting on 13 June 2002 the Committee discussed the Minister's letter of 11 June 2002 and unanimously agreed to accept the proposal for normal procedure and scrutiny for the Bill with the objective of publishing the Committee Stage Report by mid-September 2002, on the understanding that one additional week may be needed. The Committee also agreed to write to a number of key interested parties for their views on the Bill, after it was introduced to the Assembly. 23. On 14 June 2002 the Chairperson wrote to the Minister to advise him of the Committee's agreement to undertake a scrutiny of the Bill with the objective of completing the Committee's Report by mid-September 2002. (Appendix 3, Annex 15 refers.) 24. On 14 June 2002 the Department replied to the Committee's letter of 5 June 2002. (Appendix 3, Annex 16 refers.) The Department confirmed that the level of fees for agricultural installations in England and Wales is similar to that in Scotland and that the details of the proposed charges for Northern Ireland across all sectors will be published later this year for public consultation. 25. On 17 June 2002 the Minister introduced the Bill to the Assembly. 26. On 18 June 2002 the Committee wrote to those key interested parties, identified by the Committee on 13 June 2002, seeking comments and, in particular, any concerns on the specific terms of the Bill. (Appendix 3, Annex 17 refers.) 27. On 25 June 2002 the Assembly agreed the Second Stage of the Bill. (Appendix 3, Annex 18, Hansard Report refers.) 28. On 27 June 2002 Department Officials attended the Committee's meeting and gave a structured clause-by-clause presentation on the Bill before answering questions from the Members. (The Speaking Notes of the Officials are included at Appendix 3, Annex 19.) 29. On 1 July 2002 the Department wrote to the Committee to clarify and confirm some of the responses and undertakings given to Members during the meeting of 27 June 2002. (Appendix 3, Annex 20 refers.) The letter confirmed that the Department was prepared to accept some of the amendments suggested by the Committee, explained why some suggested amendments were considered inappropriate and updated the Committee on ongoing discussions with the farming industry on implementation arrangements for the legislation. 30. On 4 July 2002 Department Officials attended the Committee's meeting and answered Members' questions on the Department's letter of 1 July 2002 and related issues. As there was insufficient time to deal with all of the concerns of Members, it was agreed that outstanding questions would be put in writing to the Department. 31. On 8 July 2002 the Committee wrote to the Department with the outstanding questions from its meeting of 4 July 2002. (Appendix 3, Annex 21 refers.) A response that the Committee had received as part of its consultation exercise with key interested parties was also forwarded to the Department for comments on the points raised. (Appendix 3, Annex 22 refers.) 32. On 6 August 2002 the Department wrote to the Committee responding to its 8 July letter. (Appendix 3, Annex 23 refers.) 33. On 19 August 2002 the Committee received a response from the Northern Ireland Meat Exporters Association (NIMEA) which was forwarded to the Department for comment. (Appendix 3, Annex 24 refers). 34. On 23 August 2002 the Committee received a response Department wrote to the Committee informing it that the draft Pollution Prevention and Control Regulations (Northern Ireland) 2003 would be published for consultation on Thursday 29 August 2002. (Appendix 3, Annex 25 refers.) The Department enclosed a copy of the Consultation Document, which can be viewed on www.doeni.gov.uk.. 35. On 28 August 2002 the Department wrote to the Committee enclosing an explanatory paper detailing the amendments and repeals provided for in Schedules 2 and 3 to the Bill. The Department also enclosed seven proposed amendments to the Bill. (Appendix 3, Annex 26 refers.) 36. On 3 September 2002 the Committee received a response from the Northern Ireland Chief Environmental Health Officers Group (CEHOG) which was forwarded to the Department for comment. (Appendix 3, Annex 27 refers.) 37. On 5 September 2002, Department Officials attended the Committee's meeting and gave a presentation on the Bill, which primarily addressed the seven proposed amendments to the Bill. Other key issues discussed included an update on consultations with the farming industry, the PPC Regulations arising from the Bill, Human Rights issues and consequential amendments and repeals from the Bill. 38. Following the presentation on 5 September 2002, the Committee wrote to the Department on 6 September 2002 outlining a brief summary of the discussions, including those issues that the Officials were to consider further. (Appendix 3, Annex 28 refers.) 39. On 9 September 2002, the Committee received a response to its letter dated 6 September 2002. The Department enclosed a text in respect of two amendments to the Explanatory and Financial Memorandum (highlighted in bold italics), an amendment to Clause 2, and an amendment to Schedule 1. (Appendix 3, Annex 29 refers). 40. On 11 September 2002. the Department forwarded a summary of the main reservations which it had in relation to the provision on fines and penalties. (Appendix 3, Annex 30 refers). 41. On 12 September 2002. Department Officials attended the Committee's meeting and gave a presentation on the issues within the Committee's letter dated 6 September 2002. The Officials also gave an oral response to the issues raised within the responses received from NIMEA and CEHOG. 42. On 18 September 2002, the Department wrote to the Committee forwarding a Schedule detailing the six amendments to the Bill, as previously discussed and agreed to date with the Committee. (Appendix 3, Annex 31 refers). 43. On 19 September 2002, Department Officials attended the Committee's meeting and clarified the position on Ministerial clearance on amendments to the Bill and stated that they had nothing further to add to the comments made at the last meeting on the committee's two further suggested amendments. CLAUSE BY CLAUSE CONSIDERATION 44. On 26 September 2002, the Committee carried out a detailed Clause by Clause consideration of the Pollution, Prevention and Control Bill. Officials from the Department attended the meeting. 45. The Committee agreed to advise the Assembly on each Clause as follows:- Clause 1 Purpose of section 2 That the Committee is content with Clause 1 Clause 2 Regulation of polluting activities That the Committee is content with Clause 2, subject to the amendments proposed by the Minister in his letter to the Committee dated 23 September 2002 Clause 3 New transitional provisions for disposal licences treated as site licences That the Committee is content with Clause 3 Clause 4 Disposal licences which expire before commencement of waste That the Committee is content with Clause 4, subject to the amendments proposed by the Minister in his letter to the Committee dated 23 September 2002 New Clause to be inserted - 'Financial Assistance' That the Committee is content that a new Clause be inserted after Clause 4, as proposed by Minister of the Environment in his letter to the Committee for the Environment dated 23 September 2002 Clause 5 Interpretation That the Committee is content with Clause 5 Clause 6 Amendments and repeals That the Committee is content with Clause 6 Clause 7 Commencement That the Committee is content with Clause 7 Clause 8 Short title That the Committee is content with Clause 8 Schedule 1 Particular purposes for which provision may be made under Section 2 That the Committee is content with Schedule 1, subject to the proposed amendment from the Minister in his letter to the Committee dated 23 September 2002 Schedule 2 Amendments That the Committee is content with Schedule 2 Schedule 3 Repeals That the Committee is content with Schedule 3 BACKGROUND TO THE COMMITTEE'S SCRUTINY 46. Before presenting a more detailed analysis of the evidence, it is important that the circumstances under which the Committee had to carry out its examination of this Bill are understood. 47. Since its inception, this Committee has taken great pride in the high standard to which it has carried out its role and duties. Due consideration, weight and time has been given to every issue brought before the Committee - this is clearly evidenced within the previous Reports issued by the Committee. 48. EC Directive 96/61/EC, the relevant Directive on Integrated Pollution Prevention and Control, had a final transposition date of 31 October 1999 for all Member States. Yet the Consultation Document for its introduction to Northern Ireland was not issued by the Department until 25 June 2001 and a Bill was not introduced to the Assembly until almost a year later on 17 June 2002. Northern Ireland is the only region within the UK not to have transposed the Directive and the Committee was unsuccessful in establishing why appropriate action was not taken sooner to avoid what can only be described as an inordinate rush at this time. 49. In accordance with the Standing Orders of the Assembly, the Committee Stage of the Bill is due to conclude on 10 October 2002, with an option for the Committee to seek Assembly approval to extend its scrutiny for a further period. On 6 June 2002 the Committee rejected the Minister's proposal for accelerated passage for the Bill on the basis that it was not proper to forgo, except in exceptional circumstances, what many would consider as the most vital part of a Bill's passage through the House. However, as a demonstration of its willingness to co-operate with and to assist the Minister, the Committee agreed that it would work to complete its scrutiny of the Bill by mid-September, despite the genuine lack of Committee time to carry out a proper, in-depth examination. While this timetable rendered it extremely difficult to give the Bill the due degree of scrutiny, the Committee undertook as comprehensive an examination as possible in the circumstances. 50. From the outset the Committee recognised the importance of the EC Directive 96/61/EC as it is seen by many as the central piece of European legislation regulating all of industry's environmental performance by introducing an integrated permitting procedure for qualifying existing and new installations. It is intended that the transposition of this Directive, through this Bill and subsequent Regulations, will replace the existing legislation - the Industrial Pollution Control (NI) Order 1997 (IPC) - with a more comprehensive system that will define an integrated permitting procedure for 30 industrial sectors with the aim of preventing pollution in air, land and water. The Committee found that the Directive requires permit holders to:- (a) apply preventative measures to avoid pollution; (b) avoid causing significant pollution; (c) minimise waste production; (d) use energy efficiently; (e) take preventative action to reduce accidental risk; and (f) pursue remedial action after the economic activity has ceased. DIFFERENCES WITH CURRENT LEGISLATION 51. The Committee identified a number of differences between the existing IPC legislation and the Directive in that:- (a) the Directive extends after site activity has ceased, by imposing a responsibility of site restoration; (b) the number of prescribed substances will be much greater than under IPC, particularly with water pollutants - this will especially impact where currently non-prescribed substances that need only be 'rendered harmless' will now be required to be prevented or minimised from release; (c) rather than 'activity/process' permitting, it will be the complete installation that will be permitted, meaning a much broader and comprehensive approach; (d) many more installations will be brought in under the Directive - the Minister has estimated a total of 250 existing and new installations will be affected. Those to be permitted for the first time will include poultry and pig intensive rearing units, slaughterhouses and landfilled waste sites; (e) as well as introducing permitting for both new and old installations, the range of environmental impacts to be considered by the enforcing authority is much wider to take account of issues such as accident prevention, noise, energy efficiency and raw material selection and use; (f) there are different arrangements for dealing with changes to the installations; (g) the conditions in permits must be reviewed periodically and updated according to technological and other changes; (h) unlike the current provisions, relevant installations will not be exempted from control purely on the basis of 'triviality'; and (i) the Directive allows for general binding rules as an alternative to individually tailored permit conditions. 52. The Committee would highlight the fact that this Bill is largely an enabling instrument with the detail of the new regulatory controls to be introduced through Regulations - in fact, this Bill may well set a precedent for the Assembly in that it provides for consultation on certain Regulations carried out before the Bill is passed, that is, it is to be treated as if carried out after the passing of the Bill. 53. While the primary focus of the Committee's scrutiny was on the introduction of the new regulatory regime, it did so in the knowledge that the Bill has two other purposes:- (a) in order to reduce the need for primary legislation, the Bill introduces a general power for EU measures to be transposed by way of Regulations - hopefully this will go some way to avoiding the unaccountable delays in transposing other Directives; and (b) it also provides transitional provisions for waste disposal licences, issued under the Pollution Control and Local Government (NI) Order 1978, to facilitate the new licencing system due in 2003. 54. This Committee firmly believes that those most likely to be affected by legislation, should be among the first to be asked for their views on what is specifically proposed. Consequently, copies of this Bill and the EFM were sent to a number of potential key stakeholders, identified largely because of their substantive responses to the Department's earlier consultation that led to the preparation of this Bill. The consultees were:- (a) the Council for Nature and Conservation of the Countryside (CNCC), (b) the Northern Ireland Meat Exporters' Association (NIMEA), (c) the Chief Environmental Health Officers Group (CEHOG), (d) the Committee for Culture, Arts and Leisure, (e) the Committee for Agriculture and Rural Affairs, and (f) the Ulster Farmers' Union (UFU) Replies were received from (a), (b) and (c) and these were immediately referred to the Department for comment. The Department provided the Committee with written responses to the points raised by these consultees and answered other questions during presentations before the Committee. 55. The CNCC queried three areas of concern within the Bill, namely; (a) that the compilation of information within Schedule 1, Clause 11 covers all agreements; (b) that the remedial action within Schedule 1, Clause 15 covers the restoration of sites 'post reasonable commercial operation'; and (c) that there are no details within the Bill on the procedures of Transboundary Consultation. The Department confirmed that each of these issues are addressed within the Regulations, issued for public consultation on 29 August 2002. 56. The NIMEA raised two areas of concern, namely; (a) that there is not one single enforcing agency within Northern Ireland as the role given to the 26 Councils is likely to lead to 26 interpretations of the legislation in its application; and (b) that the legislation accurately reflects the Directive and does not exceed the requirements. The Department explained that slaughterhouses, which the NIMEA represents, would only come within this new legislation if their output exceeds 50 tonnes per day and then they will fall solely within the remit of the Chief Inspector and not the District Council. Where the output is less than 50 tonnes a day, this legislation will not apply. As regards the transposition of the Directive, the Department emphasised the need to accurately reflect the Directive within the legislation and that Northern Ireland will go no further than the rest of the UK. 57. The CEHOG gave a general welcome to the Bill but did not comment, as such. Instead, it foresaw comments to be made on the relevant Regulations, issued for public consultation on 29 August 2002. CONSIDERATION OF THE CLAUSES OF THE BILL 58. As with all other Bills, the Committee utilised a 'tried and tested' approach that engendered co-operation and agreement between the Committee and the Department throughout this process. Having received and considered the Policy Memorandum on the Bill at an early stage and, subsequently, a draft of the Bill along with a draft EFM, the Committee was able to familiarise itself with the principal policy issues and to identify some initial concerns at an early stage. This pre-Committee Stage scrutiny was supported with presentations from Department Officials. Consequently, within the Committee Stage, when the Committee and Officials either agreed a possible need for changes in the text or sought clarification on the words/terms used in the Bill, the Officials promptly returned to the Department to consult and consider the intention of and possible effect on the stipulated policies. The Officials were then able to quickly return to the Committee with either suggested amendments or reasons/explanations as to why amendments may not be appropriate. The strength of this approach was that the Committee and Department went forward together, with the vast majority of concerns resolved to the satisfaction of both parties. This process culminated with the Minister agreeing to move a number of proposed amendments to the Bill with the support of the Committee. 59. The Long Title sets out the purpose the Bill. The Committee was content with this. 60. Clause 1 stipulates the purpose of Clause 2. The Committee was content with this. 61. Clause 2 is a key clause within the Bill as this empowers the Department to bring forward the required Regulations to create the new regime of pollution prevention and control to the extent provided for within Schedule 1. The Committee identified several areas of concern within the clause and, through discussion with the Department, was able to agree a number of proposed amendments. The following gives a brief summary of the issues raised within this Clause:- (a) Clause 2(4)(a) - as worded, the Committee failed to understand the specific exclusion of District Councils and the specific inclusion of small businesses. An amendment, to be brought forward by the Minister, will recognise the need for inclusive consultation with District Councils and representatives 'of the interests of District Councils' and the need to consult with all businesses, large and small, that is; Clause 2(4), line 2 - after consult insert '( ) district councils and such bodies or persons appearing to it to be representative of the interests of district councils as it may consider appropriate' Clause 2(4)(a), line 2 - delete from 'district councils' to 'businesses' and insert ' industry, agriculture and business' ' (b) Clause 2(5) - the Committee was seriously concerned with the scope of this subsection in that it was unclear what would be the limits to its effect, that is, to treat all consultation undertaken before the passing of the Bill as if undertaken after the passing of the Bill. While the Department's initial response to the Committee was to suggest an amendment to reflect its limitations - which Legislative Counsel had concerns with - the Committee ultimately felt that it would be sufficient to clarify these within the EFM. The following revised wording for the EFM was agreed with the Department; 'However, subsection (5) provides that consultation undertaken before the passing of the Act shall be considered as effective compliance with the requirements of subsection (4). This provision is intended to have a strictly limited application and its main purpose will be to enable the Department to publish for consultation the draft Regulations to be made under the Bill before the latter has been passed by the Assembly. This will enable the Bill and draft Regulations to be considered in parallel thereby ensuring that all the legislation necessary to deal with the ongoing infraction case can be enacted as quickly as possible. It is intended that the regulation-making powers in Clause 2 will be used by the Department to transpose the requirements of other EU Directives and it is possible that the Department may wish to use subsection (5) to facilitate the carrying out of consultation on some of these before the passing of the Act. However, in no circumstances will the Department use this power to rely on consultation carried out on any issue before the date of the introduction of the Bill to the Assembly.' 62. Clause 3 provides for the necessary amendments to the Waste and Contaminated Land (NI) Order 1997, so that disposal licences may be treated, transitionally, as site licences. The Committee recognised the need for such amendments but felt that, while the key term 'appointed day' is defined within Clause (4)(9), it is very much a technical interpretation and is difficult to understand. Yet, when questioned on this, the Department was able to provide a relatively straightforward definition to the Committee. In accepting the necessity for what may appear a cumbersome legal definition within the Bill, it was agreed that it would be sufficient for the EFM to be amended as follows to reflect that simpler definition, including that for the term 'relevant day'; 'Secondly, through the definition of the terms 'appointed day' and 'relevant day' in subsection (9), the Clause provides a timescale within which its provisions are to apply. The 'relevant day' is defined as the day falling one year before the Act is passed. The 'appointed day' is defined as the date on which the Regulations introducing the new waste management licensing controls under the 1997 Order are brought into operation. Therefore, any existing disposal licence which expires between these dates but where the operator continues to carry on operations will be deemed not to have expired provided that any activities which are carried on were authorised under the expired licence. Because such licences will be deemed still to exist at the 'appointed day' they will at that date, by virtue of the transitional provisions in the 1997 Order, be converted to site licences under that Order and therefore subject to the new waste management licensing controls. The terms and conditions attached to the replaced licence continue to apply to its successor.' 63. Clause 4 provides the necessary legislation for those disposal licences which expire before the commencement of waste management licencing. Both the Committee and Department identified and agreed the need for several changes. (a) Clause 4(2) - because of the subsequent deletion of Clause 4(5), there is no further need for the reference to that subsection, that is; Clauses 4(2), line 1 - delete '(subject to subsection 5)' (b) Clause 4(5) - when the application of this clause was queried by the Committee, the Department readily accepted that this was incorrectly worded and that its inclusion within the Bill was unnecessary. It would be deleted by an amendment to be brought forward by the Minister, that is; Clause 4(5) - delete entire subsection (c) Clause 4(6) - when questioned, the Department had some difficulty in explaining the definition/application of the term 'criminal proceedings which have been concluded' and the Committee anticipated difficulties if this was not addressed. After taking legal advice, the Department agreed that the Minister would bring forward an amendment with a view to clarifying when this subsection would apply, that is; Clause 4(6), line 1 - delete 'which have been concluded' and insert 'in which the accused has been convicted' 64. New Clause after Clause 4 - this was proposed by the Department as it sought a general power to provide financial assistance in the form of grants to bodies in furtherance of the objectives of the Waste Strategy or the prevention or control of environmental pollution, that is; After Clause 4 insert - 'Financial Assistance by Department (1) The Department may make Grants to any body having among its objects - (a) the furtherance of the objectives of the strategy in relation to the recovery and disposal of waste prepared by the Department under Article 19 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19); or (b) the prevention or control of environmental pollution (2) Grants under this section shall be made (a) in accordance with the arrangements approved by the Department of Finance and Personnel; and (b) subject to such conditions as the Department may determine (including conditions for repayment in specified circumstances).' 65. Clause 5, as worded, provides the legal interpretation of many of the key words and phrases within the Bill and the Committee was content with this. 66. Clause 6 provides for the numerous and requisite Amendments and Repeals as specified within Schedules 2 and 3 of the Bill. The Committee obtained clarification on the effects of these amendments and repeals and was content with the Clause. 67. Clause 7 provides for the Department to appoint, by order, the date on which Sections 4 and 6 and Schedules 2 and 3 of the Bill will come into operation and what that Order may contain. The Committee was content with this Clause. 68. Clause 8 provides for the Bill's short title. The Committee was content with this Clause. 69. Schedule 1 is a key section in that it specifies the particular and extensive purposes for which provisions may be made under Section (Clause) 2. The Committee fully appreciated the enabling role of this Bill and examined this Schedule on the basis that subsequent Regulations would provide much of the detail necessary for the transposition of the Directive - in fact, those Regulations were issued for public consultation on 29 August 2002. However, the Committee did identify several concerns/queries within the Schedule that either needed to be clarified or amended. (a) Schedule 1, Clause 15(1)(a) - the Committee questioned the use of the word 'remedial' in that it may lack the definitive meaning found with the word 'restoration' when applied to the restoration of a site after commercial operations have ceased. The Department assured the Committee that the use of the word 'remedial' was an all-embracing term that did provide for restoration, a word that did not appear within the Directive itself - Article 3(f) of the Directive uses the word 'return' in relation to post-use of commercial sites. The Committee was referred to the Regulations, currently under public consultation, especially Regulations 19 and 26 that, inter alia, cover the issue of site restoration. (b) Schedule 1, Clause 15(1)(b) - the Committee queried the application of the provision of 'financial security' and the form/process that this would entail. The Department initially accepted that the application of this subsection was unclear but, in a subsequent discussion on 12 September 2002, it was able to provide a sufficient explanation that persuaded the Committee to accept its inclusion. (c) Schedule 1, Clause 15(1)(c) - the Committee was keen that imminent risks to all environmental pollution and not just serious pollution, as within the subsection, would be addressed. The Department provided an extensive explanation to justify use of the word 'serious' within this subsection (See below) and the Committee was content to retain the present wording; 'In situations where the risk is considered to be less serious, enforcing authorities may serve an enforcement notice requiring the operator to deal with the breach without the need to cease operations. The definition of the term "pollution" in the Regulations could be taken to be the release of a pollutant in a very small quantity. Therefore, the removal of the word "serious" would have the effect of requiring enforcing authorities to issue suspension notices in a wide variety of circumstances. Not only would this cause disruption to industry but it would also be inconsistent with the purpose of the provision which is to allow for its use only in exceptional circumstances. The decision of what constitutes serious pollution will be taken by the enforcing authorities on the basis of knowledge and experience.' (d) Schedule 1, Clause 25(2)(ii) - this clause provides for offences to be tried either summarily or on indictment. On conviction, the offender would be liable to imprisonment or a fine or both. If tried summarily, the present wording provides for a maximum fine of £20,000. Having successfully persuaded the Department to increase the level of fines available within the Planning (Amendment) Bill (NIA 12/01) from £20,000 to £30,000, the Committee pressed strongly for a similar change within this Bill. At the outset, the Department opposed such an increase on the basis that the arrangements for fines set out in the Bill reflect the penalty provisions in many pieces of environmental legislation. In taking the stance that this merely reflected a weakness within other pieces of environmental legislation, the Committee held to its view that this amount must be increased. The Department, subject to the agreement of the Secretary of State, subsequently agreed to the Committee's proposal, that is; Schedule 1, Clause 25(2)(ii) - delete '£20,000' and insert '£30,000' (e) Schedule 1, Clause 25(2)(a) and (b) - the Department has included the following provision within the equivalent clauses of the Planning (Amendment) Bill (NIA 12/01); '.. in determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall, in particular, have regard to any financial benefit which has accrued or appears likely to accrue to him in consequence of the offence.' It was the Committee's view that something similar should be included within this Bill and suggested the wording may be appropriate. The Committee would point out that most of this wording reflected the Department's own statement within it's letter of 6 August 2002 on the information it normally brings before the courts to be taken into account when considering a level of fine. In that letter, the Department stated; 'Decisions on the level of fine to be imposed are, as the Committee acknowledges, a matter for the Courts, although the Department has sought in the past, through the NI Courts Service and the Resident Magistrates Association, to draw attention to the seriousness of pollution incidents. Moreover, within the limits set by the legislation, Courts do have discretion to take into account the factors proposed by the Committee and the Department, as it does currently in respect of water pollution incidents, will provide the Courts with details of the costs of prosecution and, where relevant, the environmental impact of the pollution, so that these can be taken into account in setting fines.' The Committee's suggested wording was as follows; 'In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to the seriousness of the pollution incident(s), the environmental impact of the pollution and, where relevant, details of the costs of restoration and prosecution and to any financial benefit which has accrued or appears likely to accrue to a person in consequence of the offence.' The Department gave due consideration to the Committee's recommendation and, after consultation with Legislative Counsel, presented the Committee with a number of arguments as to why the inclusion of the wording, suggested by the Committee, would not be proper. The Committee was satisified with the Department's argument for rejecting the proposal and that this would be adequately addressed within the Regulations. RELATED ISSUES CONSIDERED BY COMMITTEE 70. Throughout both the Consultation Exercise and scrutiny of this Bill, the Committee sought out what effects the implementation of the Directive would have on industry within Northern Ireland. In moving the Second Stage of the Bill in the Assembly, the Minister stated; 'I estimate that approximately 250 existing installations will be subject to the new Directive controls. Some are already regulated under the existing arrangements, but several installations will be brought under control for the first time to meet the Directive's requirements. The main additions above a certain capacity will be: installations for intensive rearing of poultry and pigs; sites for landfilling waste; slaughterhouses; installations for the treatment and processing of milk; installations for the treatment and processing of animal raw materials; and installations for the treatment and processing of vegetable raw materials.' 71. Because of the likely disproportionate effect on the agriculture industry, the Committee asked for assurance that those within this industry would not be subject to excessive new charges or bureaucracy when applying for the new permits. The Department informed the Committee as follows; 'At the beginning of this year Environment and Heritage Service (EHS) officials contacted both the Ulster Farmers'Union and the Northern Ireland Agricultural Producers Association about the implementation of the legislation. Subsequently, presentations were made to the NI Poultry Federation and the UFU Central Pigs Committee about the implications for intensive pig and poultry farms. At the presentation to the Poultry Federation. membership of a working group was agreed including farmers, processors, feed suppliers and staff from DOE and DARD. At the UFU presentation, UFU agreed to identify farmers who would be willing to take part in a working group and to notify EHS. The first meeting of the poultry working group was held on 9 May 2002 and a second meeting on 19 June 2002. The main focus of these meetings was to review the draft Standard Farming Installation Rules to be applied in Northern Ireland. The first meeting of the pig working group was held on 12 June 2002 and a second meeting has been arranged for 14 August 2002. It is hoped at that meeting to complete the review of the Standard Farming Installation Rules. The Scotland and Northern Ireland Forum for Environmental Research (SNIFFER) is funding an IPPC case study on one broiler farm in Scotland and one in Northern Ireland. This study is well underway and will be completed later this year. The case study report will include recommendations for improving the IPPC application documentation for farms'. 72. The Committee continued to press the Department for updates throughout its scrutiny of the Bill and received the following; '.the next meeting of the pig working group is scheduled for 14 August. It is hoped at that meeting to complete the initial review of the Standard Farming Installation Rules. My letter of 1 July also referred to the ongoing study funded by the Scotland and Northern Ireland Forum for Environmental Research (SNIFFER). A further meeting of the poultry working group will be arranged once this case study has been completed later this year. At the meetings held to date, industry representatives have requested that charges arising from the new controls should be minimised. Officials have already given an undertaking that charges in Northern Ireland will not be higher than those in the rest of the United Kingdom and will continue to take account of the concerns of the industry in developing charging proposals. However, these will have to be balanced against the need for the proposals to achieve full cost recovery.' 73. The Committee is satisfied with the information that it has received to date but informed the Department that it intends to closely monitor the implementation and subsequent costs. The Committee will also examine, in due course, this aspect of the PPC Regulations, issued for public consultation on 29 August 2002. 74. With such a heavy workload - the Committee is currently examining five Bills - it did not help to be constrained within such a tight timetable to complete the scrutiny of this Bill. Consequently, the Committee takes some degree of satisfaction from accomplishing as much as it has. 75. As stated earlier within this Report, the Bill is largely an enabling Bill, that is, the key clauses provide for the subsequent introduction of Regulations which will provide the detail of the new permitting regime. Therefore, the Committee's scrutiny of the Bill was at a relatively high level, that is, without the fine detail contained within the Regulations, although the Committee has agreed a number of amendments to be tabled and moved by the Minister on the Bill. Amendments to the draft Regulations, currently out for public consultation, may well arise from the Committee's consideration of them. 76. It is the Committee's opinion that this will be a better Bill in light of the queries and concerns raised by the Committee and the subsequent amendments to be tabled and moved by the Minister. At this point, the Committee sees no need to bring forward any direct amendments of its own and will support those from the Minister. 77. The Committee is content with the Bill, subject to the proposed amendments. MINUTES OF PROCEEDINGS THURSDAY, 6 SEPTEMBER 2001
REV DR WILLIAM McCREA THURSDAY, 22 NOVEMBER 2001
REV DR WILLIAM McCREA
REV DR WILLIAM McCREA
5. Pollution Prevention and Control (Northern Ireland)
Bill 2002 REV DR WILLIAM McCREA
REV DR WILLIAM McCrea
REV DR WILLIAM McCREA
REV DR WILLIAM McCREA
The meeting commenced at 10.39 a.m. 4. Pollution, Prevention and Control Bill The Committee noted recent papers and Departmental responses on the Bill. Agreed: The Committee agreed to request Departmental Officials to next week's meeting to give a structured clause--by-clause presentation on the Bill. REV DR WILLIAM McCREA
The meeting commenced at 10.31 a.m. 3. Pollution, Prevention and Control Bill Mr Norman Simmons, Ms Janis Purdy, Ms Ethne Harkness and Mr Damian Campbell, Departmental Officials, joined the meeting at 10.39am. They gave a structured clause-by-clause presentation on the Bill and answered Members' questions. Mr Poots left the meeting at 10.44am and rejoined the meeting at 10.47am Mr Poots and Ms Lewsley left the meeting at 10.58am Mr Armstrong joined the meeting at 11.06am Mr McClarty left the meeting at 11.17am Key issues discussed included the purpose for which the powers in the Bill can be used, new transitional provisions for Disposal Licences to be treated as Site Licences, Disposal Licences which expire before commencement of Waste Management Licensing and Regulation of polluting activities. Concerns were raised on aspects of the wording of a number of clauses. The Chair thanked the Officials and they left the meeting at 11.41am. Agreed: The Committee to await draft Regulations from the Department and responses to a number of issues raised. REV DR WILLIAM McCREA
The meeting commenced at 10.30 a.m. REV DR WILLIAM McCREA
The meeting commenced at 10.31am. REV DR WILLIAM McCREA THURSDAY, 12 SEPTEMBER 2002
The meeting commenced at 10.01 am. REV DR WILLIAM McCREA
The meeting commenced at 10.30am. Mr Norman Simmons, Ms Ethne Harkness and Mr David Bell,
Departmental Officials, joined the meeting at 10.37am. REV DR WILLIAM McCREA
The meeting commenced at 10.35 am. REV DR WILLIAM McCREA THURSDAY, 3 OCTOBER 2002
The meeting commenced at 10.30am. REV DR WILLIAM McCREA MINUTES OF EVIDENCE Thursday 27 June 2002 Members present: Rev Dr William McCrea (Chairperson) Witnesses: Mr N Simmons ) 1. The Chairperson: Good morning and welcome to the officials from the Department of the Environment, Mr Simmons, Ms Purdy, Ms Harkness and Mr Campbell. They will be giving us an overview of the Bill, which the Committee wants to scrutinise as much as possible within the time agreed with the Minister. 2. Mr Simmons: The Bill has two types of provisions: those necessary to implement the integrated pollution prevention and control (IPPC) Directive and non-IPPC provisions. I will talk about the non-IPPC provisions in clauses 1,3 and 4, and my colleague, Ms Harkness, will talk about the remaining clauses and schedules that deal with IPPC. I also wish to give the Committee information on two amendments that we may ask the Minister to table at Consideration Stage. I will talk about one of those in the context of clause 4, and my colleague, Mr Campbell, from the Environment and Heritage Service, will talk about the other one, which would provide a grant-making power for the waste strategy and is outside the field of IPPC. 3. Clause 1 is the core provision of the Bill and sets out the purposes
for which the powers in the Bill can be used. Subsection (a) is concerned
with IPPC. Other than in pursuance of that Directive, subsection (b)
regulates activities that can cause environmental pollution. That is
the power, which we have mentioned to the Committee previously, to implement
other measures by Regulations under this Bill. Schedule (1), paragraph
(20) on page 9, sets that out in more detail. Paragraph (20) lists several
provisions that the Department can make Regulations under for the purposes
of this Bill. Sub-paragraph (b) is most important because it states: 4. Section 2(2) of the European Communities Act 1972 enables any UK and Northern Ireland Department to make Regulations to transpose EC Directives. However, over the years, there has been a great deal of controversy over section 2(2), particularly about the extent to which it can be used. It is commonly accepted that it can be used only to implement the requirements of the Directive. In some cases, however, it cannot be used to provide the necessary back-up measures, such as enforcement et cetera, so the Bill makes provision, for the purposes of the relevant Directives, for the Department to use Regulations under it as an alternative to section 2(2). The advantage is that we will be able to use the Bill's enforcement provisions, such as the power of entry. Sub-paragraphs (2) (a), (b) and (c) list the Directives that we are talking about, IPPC, the Waste Framework Directive and the Landfill Directive. Sub-paragraph (d) gives the Department the power to stipulate by order any other Directive for the purposes of this provision. 5. This is quite an extensive power, so there are safeguards to ensure that it is exercised properly. They are set out in clause 2, subsections (7) and (8). Subsection (8) says that the first Regulations to be made under this section, ie, those to implement the IPPC Directive, must be subject to affirmative resolution and, therefore, to debate in the Assembly. Subsection (8), paragraphs (b) and (c) add further provisos by saying that any Regulations made under this that create an offence or increase a penalty for an existing offence must also be subject to affirmative resolution. Paragraph (c), which is important, states that any Regulations made under this that amend primary legislation must also be subject to affirmative resolution and, therefore, to Assembly debate. 6. Paragraph (c) is similar to (b), except that it has a specific purpose. The United Kingdom has obligations under the Large Combustion Plants Directive to set emission values for certain key pollutants, such as sulphur dioxide. The Environmental Protection Act 1990 granted the Secretary of State a UK-wide power to make a national plan allocating quotas for various industrial sectors to ensure that those emission-limited values were not exceeded. Each industrial sector was allocated a quota, and if they did not exceed them, the UK's quota was not exceeded. 7. However, there is a review of that process, and a new approach is being considered. Although the UK-wide approach will be retained, a new element of tradeability is to be introduced to allow flexibility. That means that those who stay within quota will benefit through possible allowances and so forth. We are talking about establishing a legislative framework to facilitate an emissions trading scheme, which is detailed in paragraphs 1 and 2 of schedule 1. Emissions trading is still at an embryonic stage: no decisions have been taken, and there has been no consultation and very little policy development. However, a legislative framework is necessary in case that route is taken. Such provisions are in the GB Environmental Protection Act 1990, and we felt that it would be expedient to include similar provisions in our Bill. 8. Clauses 3 and 4 deal with waste management and are designed to ensure smooth transition from the current system of disposal licences under the Pollution Control and Local Government (Northern Ireland) Order 1978 to the new system of waste management licences under the Waste and Contaminated Land (Northern Ireland) Order 1997. Councils are responsible for regulating disposal licences through the issue of licences to operators or through self-regulation under article 13 of the 1978 Order. The waste management licensing provisions will replace that in 2003. 9. Article 47 of the 1997 Order contains transitional provisions to ensure a changeover from the old regime to the new. A disposal licence that is viable when the new Regulations are introduced will be deemed a waste management licence under the new system, and it will continue to be viable for three years. The same applies to article 13 resolutions of district councils. The original intention behind that was to allow the Environment and Heritage Service time formally to convert all disposal licences to waste management licences. However, in retrospect there is a loophole in that provision that enables any operator to walk away from a site at the end of three years without any environmental or health obligations. Clause 3 amends article 47 to remove those three years. The result is that any disposal licence in existence at the date of the new regime's commencement will become a waste management licence and will continue in force until revoked, suspended or otherwise dealt with under article 6 of the 1997 Order. That provides a continuum between disposal and waste management licences and closes a possible loophole in the arrangements. 10. Clause 4 is to provide another continuum between the old and the new arrangements and to ensure that people with disposal licences have minimal administrative inconvenience. However, it is likely that some licences will have expired inadvertently - a council may not have renewed the licence and the operator continued to operate inadvertently not knowing that it had expired. If a licence expired within 12 months of the passing of this Bill and the activities carried on are still within the bounds or conditions of the original licence, this clause will permit the disposal licence to be deemed as not having expired. At the transition to the new arrangements it will be treated as any other disposable licence and be deemed to be a waste management licence. 11. It is necessary to make some consequential amendments, and they are set out in subsections (3), (4), (5) and (6). Subsection (7) places a duty on a district council to inform anyone who is affected by that provision. Councils, as the regulatory authorities, have the information on licence holders and are best placed to inform them. I mentioned subsection (5) earlier when I was talking about a possible amendment. That may cause problems as it may go against the spirit of the clause by legitimising activities that were carried out with or without a licence. That means that anyone carrying out activities, whether he complied with the original licence or not, will benefit from the provision. I do not want that to happen. 12. We are discussing that with legislative counsel, and we may move an amendment to amend that provision or remove it completely. It is there to ensure that only those who carried out authorised activities can benefit, not those who carried out any activities. It may be a drafting error that needs to be corrected. 13. That concludes my run through clauses 1, 3, and 4. I am happy to take questions. 14. The Chairperson: This Bill is complicated, and that was why we wanted to give it proper scrutiny, rather than the rushed scrutiny we were faced with. Unfortunately, we will be unable to give the Bill full, in-depth scrutiny due to the timetable, and that is not a position that any Committee wants to be in. 15. Ms Lewsley: This was a council responsibility, and that will move to the Waste Management Division. How long will the transition period be, and how many months will be allowed for the change? 16. The Chairperson: To keep the record straight we should declare our interest. 17. Mr Simmons: Article 47 of the Waste and Contaminated Land (Northern Ireland) 1997 Order says that the trigger date is the date that the new Regulations come into force. Then all existing disposal licences currently regulated by councils will become waste management licences under the new regime, and responsibility will transfer to the Environment and Heritage Service. This clause is meant to deal with the three-year transition period, and the purpose is to move the three years. 18. The Chairperson: I want to ask a question on clause 2(4) about consultation. It says that "Before making any regulations under this section, the Department shall consult - such bodies or persons appearing to it to be representative of the interests of district councils". 19. Why representatives of the interests of district councils? Why not district councils? 20. Mr Simmons: The Society of Local Authority Chief Executives (SOLACE) and perhaps other bodies, which - 21. The Chairperson: They may not necessarily be representatives of the district councils. 22. Mr Simmons: No, but it is just to cover - 23. The Chairperson: They would be representatives of chief executives. Why consult representatives of chief executives when district councils carry the responsibilities? 24. Mr Simmons: This is to cover individual councils and any organisations that may represent their views. 25. The Chairperson: Yes, but that is still not the district councils themselves. 26. Mr Simmons: No, but consultation will cover all district councils individually. 27. The Chairperson: Will it? Your immediate answer was that that meant SOLACE. If you discuss something with the chief executives of councils, would you feel that you had the views of the councils? 28. Mr Simmons: No, but the intent is that district councils should be consulted individually. 29. The Chairperson: Then why not say that? 30. Mr Simmons: We could ask the Office of the Legislative Counsel to stipulate district councils as well as other interests. We will consider that. 31. The Chairperson: Are you sure about the wording of: "industry, agriculture and small businesses as it may consider appropriate". 32. Why "small businesses"? Surely, it should be "such businesses as it may consider appropriate". 33. Mr Simmons: Again, we are happy to consider that. We are required to consider the impact of all legislation on small businesses. That is the norm, and that is what these words were designed to reflect. 34. The Chairperson: How would you define the word "small"? 35. Mr Simmons: That is very subjective. We assess the impact on small businesses with regard to costs, et cetera. 36. The Chairperson: It is not in the definitions, is it? 37. Mr Simmons: No, it is not. 38. The Chairperson: So it could mean anything? 39. Mr Simmons: It could, except that we usually carry out a cost assessment exercise for small businesses, and that is why it is included. We are happy to consider any points that you wish to make on that. 40. Mr Ford: I want to ask about clause 1(c) and the trading licences that you spoke of in the schedule in paragraph 1 ongoing. Are you satisfied that that will necessarily cover all potential for trading across the UK? Is that included simply as an enabling provision? Is it not likely to be superseded by the UK-wide legislation and Regulations made under that? I am not sure how legislation can be introduced in Northern Ireland to deal with trading on an intra-UK regional basis. 41. Mr Simmons: As I said at the outset, the 1990 Act originally made provision for a single UK-wide trading scheme. That was abandoned in favour of giving powers to individual regions. For example, a similar provision exists in the Scottish, English and Welsh and the Northern Ireland legislation. There is some debate about the difficulties of getting that into a national plan. It is far from clear how it will be done or how it will work in practice. We are simply providing the same mechanism that exists elsewhere in the UK. 42. Mr Ford: So, we must wait for Regulations and for the Department of Tansport, Local Government and the Regions or the Department of Trade and Industry to produce the - 43. Mr Simmons: We must wait for policy development and see how it will be taken forward. 44. Mr Ford: Paragraph 20(2)(d) of schedule 1 deals with the relevant Directives and their designation by Order. Would they be subject to negative or affirmative resolution? 45. Mr Simmons: To negative resolution. 46. Mr Ford: Why? 47. Mr Simmons: It would be negative unless specified otherwise. 48. Mr Ford: Is this not something of such consequence that if additional EU Directives are introduced, they ought to be properly debated in the Assembly? 49. Mr Simmons: As currently drafted, it is negative. If the Committee feels that it should be affirmative, we will look at that. 50. Mr Ford: I object to negative resolution in principle when it is to do with major matters or new legislation, and any new EU Directive is new legislation. Clause 4, subsection 6 states that "Nothing in this section affects any criminal proceedings which have been concluded before the coming into operation of this section." 51. Why "concluded" rather than "commenced"? 52. Mr Simmons: That is a moot point. Ms Harkness may wish to comment on it. 53. Ms Harkness: It is normal to use the term "concluded" rather than "commenced" to preserve the integrity of proceedings that have already started. It is easily definable in that we know when proceedings are concluded. If we used "commenced" when there are investigative processes and decisions to prosecute beforehand, we would have to decide exactly when proceedings "commenced". 54. There is also a matter of principle. Once proceedings have concluded, a court decision follows and something happens that is conclusive. One does not want to reopen that, because the complexities of saying that proceedings have commenced would be immense. If something illegitimate or unauthorised has been happening, and a process has been put in train to address that, why not continue with that process, given that what we are talking about is something that is illegitimate and something that we do not want to give protection to? 55. Mr Ford: You seem to adopting my argument. If a district council has commenced criminal proceedings and a smart barrister delays those proceedings while this legislation goes through, his client may get off on the grounds of delays in the court system rather than on the evidence presented. 56. Ms Harkness: That is a possibility. There will be hard borderline cases and people who will say that their proceedings might have concluded if things had happened more expeditiously. That is inevitable in any situation where there is a cut-off point. There will always be people just at that point. 57. Mr Ford: Yes, but why are you proposing to allow that cut-off point potentially to benefit those who have been engaging in criminal activity and have barristers smart enough to delay the proceedings? 58. Ms Harkness: It is not intended to give immunity to such people. The clause addresses a situation in which both parties, the district council and the operator, have continued to carry out relevant activities on the assumption that they were still authorised. 59. Mr Ford: Of course, there is the wider issue of whether people should be granted any exemption in that area. I know of many other areas under the Department's control where it allows people to carry on blissfully, regardless of whether they have legal authorisation or not. Where anybody has gone beyond what is legal and a prosecution is underway, there is no logic for stopping the prosecution because of this Act, if it was an appropriate prosecution before the Act was introduced. 60. Mr Simmons: Anyone acting illegally is outside the scope of this clause. It only extends to people who were carrying out authorised activities within the scope of the original licence. Anyone carrying out an unlicensed activity is outside the scope of this clause, and, therefore, does not benefit at all. 61. Mr Ford: Surely if the licence has expired, the activity is no longer lawful. 62. Mr Simmons: This clause effectively legalises the licence, but only to the extent that the activities carried out were within the scope of the original licence. It does not say that if you were carrying out any activity, whether or not it was within the scope of the original licence, you get off. 63. Mr Ford: What is the context of the criminal proceedings mentioned in subsection 6? 64. Mr Simmons: There could be criminal proceedings before this clause took effect. This clause is only effective for activities carried out within 12 months of the passing of this Act and the new arrangements coming into operation. It is not open-ended and not totally retrospective. 65. Mr Ford: This subsection is not really dealing with that, because it refers to criminal proceedings. 66. Mr Simmons: There could be criminal proceedings for an activity within the meaning of this clause before the clause came into force, so it is to stop anybody in that situation claiming that it gets him off. 67. Mr Ford: He could get off if his barrister delays the court case. 68. Mr Simmons: No, not if the case is concluded. 69. The Chairperson: The Member has said something worthy, and this part needs to be looked at again. You emphasise the phrase "not if the procedure concluded", and our legal advice is that there is a difficulty with the interpretation of the word "concluded". It is open to legal challenge, as it can be interpreted in different ways. Therefore, we need to look at this again. We will be getting legal advice on what you have said this morning. 70. Mr Simmons: Can you clarify for me exactly what the Committee wants? 71. The Chairperson: We want the word "concluded" defined. 72. Mr Ford: I would like slightly more than that. I want to know why the word "concluded" is used, rather than some other word. Does "concluded" mean that a case has gone to the House of Lords, or the European Court? 73. The Chairperson: The Member's point has to be investigated further for clarity. We must ensure that we are getting this right because of the two issues - the term "concluded", and the legal interpretation. 74. I want to draw your attention to clause 2(5), which refers to "consultation undertaken before the passing of this Act". The Department has said that that only refers to the first Regulations to be made under the Act, as specified by clause 2(8)(a). Should there not be a reference to subsection (8)(a) in clause 2(5), to identify the Regulations that this clause specifically refers to? 75. Mr Simmons: You have raised that point before. There is a difference between intent and interpretation, and the Department is happy to look at that. It should only apply in a limited set of circumstances - to those Regulations, and possibly to Regulations on the Landfill Directive, on which the Department will be consulting. I accept your point, and the Department will examine it. 76. The Chairperson: It is important that the intent be laid down clearly. If it is not, it will be another loophole for smart lawyers to drive a coach and horses through. 77. Ms Harkness: I am concerned about clause 2 of the Bill. Clause 2(1) gives the Department the Regulation-making power. The substance and detail of the new pollution control regime will be found in the Regulations that will be made under this enabling Bill. The scope of the Regulation-making power is found in clause 2(1) and clause 2(2), and the power to make Regulations is for certain specific, defined purposes. Those defined purposes are listed in schedule 1. 78. The Regulations must be in relation to the three matters that are mentioned in clause 1. That informs us of the parameters of the Regulation-making power. The remainder of clause 2 deals with consultation and procedure. 79. The list of purposes for which Regulations may be made under section 2 is in Part I of schedule 1 of the Bill. The first group of purposes is headed "Preliminary". Paragraph 1 gives the power to make Regulations and establish standards, objectives and requirements. It also refers to quota trading and transfer schemes. 80. Paragraph 2 gives the power to make Regulations. That will give functions to the Department and the Secretary of State, and it will determine what bodies or persons will act as enforcing authorities. The enforcing authorities will be the chief inspector and the district councils, and the Regulations will divide the responsibilities between those two enforcing authorities. 81. Paragraph 3 states that the Department or the Secretary of State will be given power to give directions to enforcing authorities or, less stringently, guidance which enforcing authorities must regard. The possible subjects of those directions or guidance are contained in paragraphs 3(a), (b) and (c). 82. Paragraph 3(a) provides for directions to the effect that functions exercisable by one enforcing authority are to be exercised by another, or by the Department or the Secretary of State. Paragraph 3(b) covers directions given in order to facilitate implementation of international obligations. Environmental law is increasingly a matter of international concern, and this allows for that dimension. Paragraph 3(c) refers to more specific directions relating to the exercise of any function in a particular case or class of case. 83. The next group of purposes listed in the schedule are paragraphs 4 to 10, and they come under the heading "Permits". Paragraph 4 allows the Regulations to insist or impose the obligation to have permits subject to conditions. Paragraphs 5 and 6 go together. Paragraph 5 allows restrictions or other requirements to be imposed as part of the contents of the permits, and paragraph 6 refers to the imposition of conditions. They deal with what permits can allow or disallow. 84. It may be worth mentioning the reference to the phraseology "fit and proper persons" in paragraph 5. That demonstrates the overlap with waste management licensing; that requirement is taken from that legislation, and will have to be slotted in where appropriate for these permits. 85. Paragraph 7 relates to review or variation of permits. Paragraph 8 relates to transfer and surrender of permits, and revocation of permits by enforcing authorities. Paragraphs 9 and 10 deal with charging schemes for the grant of permits, and the various procedures involved in that. Paragraph 10 relates to charging schemes that will deal with issues such as covering the cost of testing or analysis expenses. 86. The next group of purposes listed in the schedule come under the heading "Information, publicity and consultation". Under paragraph 11, there may be Regulations to enable persons to compile and provide information on emissions, energy consumption and efficiency, which is part of the wider dimension that the Directive is introducing to pollution control and waste issues. Information will have to be forthcoming under those Regulations if they are made and approved. 87. Paragraph 12 allows for publicity to be given to specified matters, and a component part of that will be the requirement to keep registers of information that will be open to public inspection, and arrangements will have to be made for that. The Regulations will have to deal with the meaning of the phrase "commercially confidential" and how it is measured, enforced or administered. Under paragraph 13, the Regulations may make provision for consultation by enforcing authorities. 88. The schedule then moves to a group of paragraphs that come under the heading "Enforcement and offences". Paragraph 14 states that Regulations may be made to deal with monitoring and inspecting activities covered by permits, including the power to take samples or arrange for preventative or remedial action, and persons may be appointed to carry out those functions. 89. Paragraph 15 states that provision may be made for appropriate notices enforceable by High Court proceedings to be served on holders of permits and sets out the types of notices envisaged. Paragraph 16 states that permits may be suspended in particular circumstances as part of a process of enforcement or, at the very least, encouragement. 90. Paragraphs 17 and 18 concern the power to create offences. Paragraph 18 states that, when someone is convicted of an offence, there may be an order for remedial action, carried out either by the offender or by another party, but with the offender covering the costs. That would be in addition to, or instead of, punishment in the classic sense. That is obviously important in achieving the objectives. Regulations may be made to confer rights to appeal and govern the processing of those appeals - how they are to be heard and so on. Mr Simmons has already dealt with paragraph 20 in the course of his presentation. 91. That leaves us with part II of schedule 1, which has supplementary provisions to fill in gaps in what has gone before. Those cover the matters set out in paragraphs 21 to 26: particular types of pollution; determination of matters by enforcing authorities; more detail regarding the imposition of conditions; charging schemes; offences; and interpretation of the terminology used in the schedule. 92. That is the list of purposes that will set the parameters within which the Department may act in making Regulations. It points the way ahead for the next step in the process, which is consideration of the Regulations. 93. The Chairperson: Thank you very much for taking us through the Bill. There do not seem to be any questions - you are very fortunate, Ms Harkness. There is a great deal to be digested, and this is the first opportunity. I have no doubt that questions will occur to members. Clause 7 states that "Sections 4 and 6 and Schedules 2 and 3 shall not come into operation until such day or days as the Department may by order appoint." 94. As you know, we have been constantly reminded of the urgency and importance of the legislation because of infraction proceedings. How does that sit with the fact that no specific date for commencement is given in the Bill? 95. Ms Harkness: It is concerned with its being part of an ongoing process. Obviously, there is urgency in relation to certain matters arising - as well as the overarching urgency of the Directive. A complicated tapestry is being put in place, and different parts of the existing system must be removed at precisely the right time to allow another part to slot in. There must be a complex structure of moving, through an ongoing process, from one to the other. The Directive must be brought in urgently, and we must be compliant. 96. Mr Simmons: Clause 4 details one of the waste management provisions. The timing of that is dependent on the activity of the waste management licensing Bill, so it is a non-IPPC provision. Likewise, clause 6, which deals with amendments and repeals must, as Ms Harkness said, be phased in, as it is a complicated mechanism. The IPPC provisions will come into operation in line with the normal provisions of a Bill. 97. Ms Harkness: Those will come into operation immediately. 98. Mr Simmons: We are talking about the non-IPPC provisions. The IPPC provisions will be effective as soon as the Bill receives Royal Assent, because it is urgent. 99. Mr Molloy: I do not want to be of a suspicious mind, but it smacks of the power that the Minister in the South took upon himself in waste management. Is power being removed from district councils, so that the Department has an overall authority? District councils will still have the powers of implementation and the collection and disposal of waste. 100. Mr Simmons: In fairness, the decisions were taken several years ago in the context of the Waste and Contaminated Land (Northern Ireland) Order 1997. The principle behind it was to split responsibility for regulation and operation. Currently, district councils are responsible for operational matters, in that they collect and dispose of waste, and they are also responsible for regulation, in a sense, and in some cases it means that they regulate themselves. 101. The idea is to separate the responsibility for regulation from operation. The framework adopted was to leave responsibility with the councils for operational matters, but take the regulatory function and put it elsewhere. 102. Mr Molloy: So my suspicions are correct - decisions will be made and councils will be told what to do. 103. Mr Simmons: That is one interpretation. As I said, the decision was taken against the background of splitting responsibility for regulation and operational matters. 104. The Chairperson: Surely councils should have more power. 105. Mr Simmons: That issue is outside the scope of the Bill, which only builds on the decisions that were taken several years ago. 106. The Chairperson: That situation is in this Bill. 107. Mr Simmons: Yes, but it simply applies the decisions that were taken several years ago. 108. The Chairperson: We do not take decisions just because they applied years ago. We are constantly told that this is a new era where a decision does not apply just because it happened years ago. It is something that ought to be looked at. 109. Mr Simmons: The Bill simply applies the current statutory provisions. If the Committee wants to examine that, then we will take that on board, although currently the Bill works within the statute book, which is all it can do. 110. It would be helpful if the Committee had a copy of the Regulations when looking at schedule 1. We hope to supply a copy of the Regulations before summer recess, and that should facilitate your consideration of schedule 1. 111. Mr Ford: For once, I have a slight degree of sympathy with the departmental officials on the clause 2/schedule 1 issue. I do not accept the Minister's assurance that the Bill is merely an enabling Bill. The fact that we have discussed some of the other aspects at length proves that the Committee was right to state that it is not an enabling Bill in its entirety. 112. I am interested in the contents of schedules 2 and 3, which are not explained in either the explanatory memorandum or any of the Department's notes to which I have referred. There are approximately a dozen amendments and a dozen repeals. I understand the reference to the Water (Northern Ireland) Order 1999 but many other areas are unclear. Therefore, perhaps it would be useful if the officials could provide the Committee with a written explanation of the amendments and repeals. 113. Mr Simmons: I am happy to arrange that. 114. Mr Armstrong: Paragraph 11 of schedule 1 refers to information, publicity and consultation. Who is charged with providing the information and publicity? Will persons other than the producers of the pollution be responsible? Will the Regulations also apply to third parties? 115. Mr Simmons: Under the Directive, there is a general requirement that information should be made publicly available. That means that everyone is responsible for the provision of information. Therefore, a system of public registers, which will contain information relating to individual applications, will be made available. The only exceptions to that are instances of commercial confidentiality or national security. 116. Mr Armstrong: Paragraph 11(a)(ii) refers to information "on energy consumption and on the efficiency with which energy is used". Who will use that information? 117. Mr Simmons: The Directive requires all integrated pollution prevention and control (IPPC) permits to assess various environmental impacts, one of which is the efficient use of energy. Therefore, in granting the permit, the enforcing authority will assess the efficient use of energy, and the information that it collates and the determination to which it comes will be made available in the public register. 118. Mr Armstrong: Perhaps as we progress, there will be more questions. 119. The Chairperson: Paragraph 23of the explanatory memorandum refers to powers of entry. Paragraph 25 states that the provisions comply with human rights requirements. Has the Human Rights Commission been consulted? 120. Mr Simmons: It has. 121. The Chairperson: The Local Air Quality Management Bill also proposed to provide powers of entry, and the Department has had to return to the Human Rights Commission with its proposals. 122. Mr Simmons: The commission was consulted on the policy proposals. It made no comment, but asked for the detail of the Regulations; therefore, we will send it a copy. 123.The Chairperson: Will the Regulations be sent to the Human Rights Commission? 124. Mr Simmons: Yes. 125. The Chairperson: The Committee was informed that the Human Rights Commission had to reconsider the Local Air Quality Management Bill. Therefore, it wants to ensure that the Pollution Prevention and Control Bill is checked. Has the Ulster Farmers' Union (UFU) made any further recommendations on the poultry and pig aspect? 126. Mr Simmons: There have been no further representations relating to the Bill. However, as the Minister said on Tuesday, our colleagues in Environment and Heritage Service are working closely with the UFU and the Department of Agriculture and Rural Development in relation to the Directive. They have created two working groups, which meet regularly, to discuss the operational matters associated with the new controls. Therefore, there is ongoing liaison, but nothing further has been recommended for the provisions of the Bill. However, we will send the Regulations on when they have been published. 127. The Chairperson: We will be interested in them, now that they are working together. I am sure that they have some idea of what has been said. Perhaps the Committee could have first-hand knowledge of what has been said in the working parties, to keep us abreast of that situation. In the past, we were promised that there were to be meetings between the Department and the Ulster Farmers' Union, and found that they did not take place until 6.00 pm on the night before the Department was to appear before the Committee. I would like to be sure that those working parties were meeting. 128. When will we receive the draft Regulations? 129. Mr Simmons: We hope to furnish the Committee with a set - 130. The Chairperson: Are these the Regulations or the draft Regulations? 131. Mr Simmons: These are the draft Regulations, which will be published for consultation. They still have to be finalised, subject to the consultation papers, but they will be 98% complete, and will provide the Committee with enough information. When we publish for consultation, we will send the Committee a copy of the draft Regulations, accompanied by the consultation paper. 132. The Chairperson: Thank you. 133. Mr Simmons: There is one other proposed amendment. 134. Mr Campbell: The proposed amendment is connected to the waste management strategy. It seeks to broaden the powers available to the Department to provide direct grant aid and funding to the various stakeholders identified in the Waste Management Strategy, the obvious example being the voluntary sector. When we examined this matter and considered the various grant aids available, we found that we had a deficiency in terms of the powers available to us. They did not allow us to pay money directly. There are other mechanisms to circumvent that, but they are clumsy and administratively difficult, and involve joining up with other Departments and transferring money. It was felt that we should have direct powers available to us in order to provide grant aid, to form memberships of various groups and to provide funding over a wide range of areas. 135. The Chairperson: It is critical that we have the wording of your proposed amendment as quickly as possible. 136. Mr Campbell: We are working on that. 137. The Chairperson: We do not want to be bounced. We must be able to consider any amendments. 138. Mr Molloy: The cross-departmental roles that have been mentioned may be of benefit. Rather than proposing an amendment, is there a way of constructing a cross-departmental structure that would mirror the joined-up government approach? 139. Mr Campbell: That is correct. Those approaches are available, and we have been using those methods to get round the difficulty of not having direct powers. The perfect example is the industry fund, which the Minister launched on 6 June. That is a joint venture between Invest Northern Ireland, representing the Department of Enterprise, Trade and Investment, and the Department of the Environment. That works well, because they have expertise in the area of grant aid to industry and businesses of all sizes that we do not possess. 140. If we decided not to do that, however, we would not have had the choice, because we did not have the power to pay grant aid to industry. The real purpose is to provide options, and there may be occasions when it is useful to do something directly and quickly if necessary. As a Department, we cannot be seen to always be dependent on other Departments, which may have other priorities and resource issues. 141. The Chairperson: We are limited in time because the Minister wants this stage completed. The Department has to come back to the Committee on quite a few points, and we ask that that information be made available for next week. If, in the intervening period, you have any papers for members' information in preparation for that discussion, we would appreciate their being sent on. The Department is setting the timescale, so must work with us to help us to fulfil our duty. MINUTES OF EVIDENCE Thursday 4 July 2002 Members present: Rev Dr William McCrea (Chairperson) Witnesses: Ms E Harkness ) 142. 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. 143. 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. 144. 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. 145. 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: "with the possible exception of a consultation paper to be issued on the landfill directive", 146. since we shall also be using powers under this Bill and may issue the consultation paper before the Bill has been passed. In other words, if we carry out any consultation using the powers under this Bill, the consultation paper will be issued in the normal way; we do not intend to use the provision to rely on any consultation already carried out. We feel that, by a clear statement of intent, we should be able to satisfy the Committee's concerns on clause 2(5). 147. Mr Ford: If we accept that point, which seems to have some merit, will you amend the explanatory and financial memorandum to include a reference to what you just said about consultation under clause 2(5)? 148. Mr Simmons: If it helps clarification, we shall certainly be happy to do so. 149. Mr Ford: That would make the matter very clear. 150. The Chairperson: It is not in law if it is only in the explanatory and financial memorandum. 151. Mr Ford: I appreciate that, but it has slightly more substance than a statement to the Committee has. 152. 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? 153. 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 - 154. 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's 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? 155. Mr Simmons: We will take the matter back to legislative counsel and keep the Committee informed. 156. The Chairperson: I should appreciate that. 157. 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". 158. 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. 159. The Chairperson: Our legal advice says that it is difficult to define "concluded". Can you define it? 160. 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. 161. The Chairperson: Doctors differ, and patients die. We do not want solicitors making money arguing over the meaning of a word. 162. Ms Harkness: Far be if 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. 163. 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. 164. 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. 165. 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. 166. 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. 167. 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 only applies 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. 168. 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 they 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. 169. 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 5 170. 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. 171. 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. 172. The Chairperson: We need that clarification, because we must look at subsection 6 in relation to what is removed. 173. Mr Molloy: The best approach is for subsection 6 to become subsection 5. 174. Ms Harkness: Yes. It will move up. 175. 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. 176. The Chairperson: Mr Ford, you were concerned about that. Our legal advice is that it may be fine. 177. Mr Ford: It seems fair enough as Mr Simmons described it. 178. The Chairperson: We got the matter clarified and were advised that it can be a way to move forward. 179. 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. 180. The Chairperson: You know your limits. You drew them up. We need the papers to do our work. 181. Mr Ford: The fact that there is a detailed list shows the Committee's need to examine it. 182. 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. 183. The Chairperson: Can you clarify that the Bill - 184. Mr Simmons: The Bill has not gone yet. It will be sent to the commission with the Regulations. 185. The Chairperson: So the Bill will be going as well? 186. Mr Simmons: Yes. 187. The Chairperson: It is important that that be clarified. 188. 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 last 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. 189. 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. 190. 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. 191. The Chairperson: How are you meeting the problems being identified? 192. Mr Bell: In several areas we have amended the rules as a result of discussions, though 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. 193. The Chairperson: Can you give us some instances of your flexibility and the changes made with UFU and NIAPA? 194. 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. 195. 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. 196. 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. 197. 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? 198. 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. 199. 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. 200. 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. 201. 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. 202. 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. 203. The Chairperson: Mr Ford, is your question on the same point because that is what we want to deal with? 204. 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? 205. 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. 206. 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. 207. 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 give 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. 208. 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. 209. 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. 210. 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. 211. The Chairperson: Clause 2, subsection 8a refers to "the first regulations to be made under this section". 212. There are no further details. How many Regulations does the Department intend to introduce before the Bill is passed? Page 5, paragraph 1, line 4 of the explanatory and financial memorandum refers to "The first set of regulations made under the Act". 213. What does that mean? 214. Mr Simmons: The Bill's main purpose is to facilitate the pollution prevention and control (PPC) Regulations. Subsection (8) (a) refers specifically to them because they will be the first Regulations made under it. They will be subject to affirmative resolution because a great deal of the material connected to pollution prevention and control is contained in them. Over and above that, as I said before, the Bill gives the power to implement other statutory requirements by way of Regulations, so some of the provisions, such as 2 (8) (b) and 2 (8) (c), will apply to any Regulations made under the Bill. We do not intend to make any Regulations before the Bill is introduced, though we may issue a consultation paper on the landfill Directive before then, which would come under subsection 5. 215. The Chairperson: What about the first set of Regulations? 216. 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 217. The Chairperson: We will send you the remaining questions on this so that every member can see the answers. 218. Can we go to schedule 1, paragraph (15)(1)(c), which says "notices requiring them to take steps to remove imminent risks of serious environmental pollution (whether or not arising from any such contraventions)." 219. What is the definition of serious? 220. Mr Bell: A similar power exists under the Industrial Pollution Control (Northern Ireland) Order 1997, which is the current legislation. That is the power to issue what is known as a suspension notice under PPC, or a prohibition notice under the current legislation, and allows an inspector to shut a site down or require other measures to be taken. That draconian power is required to stop an operation. It is not taken lightly and would only be used if there were imminent danger of serious pollution. I take the point that serious pollution is not defined. We have to rely on the judgement and experience of the inspector to determine the impact a pollution incident would have. 221. 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. 222. Mr Bell: Such action would only be taken in extremis. 223. The Chairperson: We shall send the remaining questions to you, because our time is up. Thank you. MINUTES OF EVIDENCE Thursday 5 September 2002 Members present: Rev Dr William McCrea (Chairperson) Witnesses: Mr D Bell ) 224. The Chairperson: I give a warm welcome to Mr David Bell, Ms Ethne Harkness, Mr Norman Simmons and Mr John Waterworth from the Department of the Environment. We are delighted that you have come before the Committee again. Mr Simmons will begin the presentation, and questions will follow the initial presentation. If any of the witnesses or members wishes to raise any points, feel free to do so and help us with our deliberations. 225. Mr Simmons: I shall begin by talking to the letter of 28 August 2002 that we sent the Committee. That letter covered the draft amendments plus other points relating to the drafting of the Pollution Prevention and Control Bill. I shall then move on to our letter of 6 August, which covers other points raised by the Committee during earlier presentations. We have received a couple of responses to the Committee's consultation, and we shall update you on those. Finally, I shall say a few words about the draft Regulations, which we sent the Committee on 29 August 2002. 226. The letter of 28 August deals with substantive matters relating to the Bill. At the Committee's request, we have provided a detailed breakdown of the provisions in schedules 2 and 3. We have provided the text of the current legislation, the text of the seven proposed amendments and a short note that explains the overall effect that they would have. The amendments are reasonably self-explanatory, so unless any member has a particular question I intend to proceed quickly. 227. Mr Ford: As the member who asked for that letter and who has not had time since yesterday to study it in detail, I agree that it appears to be fairly clear. However, I would reserve my right to possibly ask another awkward question next week. 228. The Chairperson: That right shall be given you. 229. Mr Simmons: The meat of the letter is in the amendments. We have drafted seven amendments and received the Minister's approval to table them at Consideration Stage. The amendments are, in the main, drafted to address points raised by the Committee at earlier meetings. 230. Amendment No 1 is a simple amendment, which inserts "( ) district councils;" into clause 2, thereby placing on the Department a specific requirement to consult district councils on all Regulations that are made under the Bill. That meets the point raised by the Committee at earlier hearings. 231. Amendment No 2 is partially consequential on amendment No 1. It removes the requirement to consult bodies or persons representative of district councils in favour of district councils and also replaces the term "small businesses" with the term "businesses", thereby placing the Department under a requirement to consult businesses, rather than just small businesses. Again, that meets the point raised by the Committee at an earlier stage. 232. The Chairperson: Although amendment No 1 appears to be logical, those representing councils - the Northern Ireland Local Government Association (NILGA) or the Northern Ireland Public Service Alliance (NIPSA) - are now excluded from that provision. 233. Mr Simmons: They are not named specifically, but we intend to consult them, as originally intended, using what is currently clause 2(4)(b), "such other bodies or persons as it may consider appropriate." 234. The Chairperson: Why would they not be named? In several other situations it was felt that they should be named, rather than just be any other "bodies or persons as it" - the Department - "may consider appropriate." 235. Mr Simmons: We would be happy to do that. If the Committee provides us with the names of the bodies in which it would be especially interested, we could name them specifically. 236. The Chairperson: I would like you to consider that, and the Committee will come back to you on it. Clause 2(4)(a) states: "persons appearing to it to be representative of the interests of district councils". 237. That would certainly mean the staff of the different bodies. 238. Mr Simmons: No, that would now be left out. Amendment No 1 would insert a specific requirement to consult district councils. To be absolutely clear, paragraph (a) now reads: "such bodies or persons appearing to it to be representative of the interests of industry, agriculture and business". 239. The Chairperson: That relates to people who represent staff. The proposed clause 2(4)(a) specifically relates to district councils. 240. Mr Ford: The new first paragraph is to read "(a) district councils;". Is it possible for that to also include "and such bodies or persons appearing to be representative of district councils and their staff;" ? 241. Mr Simmons: Do you mean reinstating the original wording? 242. Mr Ford: No, I mean is it possible to relate the wording of the current paragraph (a) to district councils as well as to "business, industry and agriculture"? 243. The Chairperson: In other words, new paragraph (a) would cover district councils, including such bodies or persons appearing to be representative of the interests of district councils and their staff and paragraph (b) - currently (a) - would concern industry, agriculture and business. 244. Mr Simmons: We shall certainly consider that and take it to the legislative counsel. 245. Amendment No 3 concerns a change to clause 2(5). It is designed to deal with the question of what is meant by a "prior consultation". Again, no difference exists between what the Committee and the Department are trying to achieve with the clause. However, as we indicated at an earlier meeting, we took it to the legislative counsel, who drafted an amendment. The legislative counsel has asked us to say that he feels that it is not an issue that cannot be dealt with in drafting terms. He supports the Department's view that the matter would be best dealt with outside of legislation, although he has provided a possible amendment. 246. Ms Harkness will go into more detail on the Department's reservations. 247. Ms Harkness: Clause 2(5) reads: "Consultation undertaken before the passing of this Act shall constitute as effective compliance with subsection (4) as if undertaken after that passing." The amendment would insert at the beginning: "Except where the regulations in question contain provisions by virtue of paragraph 20(2)(b) or (d) of Schedule 1,". 248. That means that prior consultation would not be acceptable for Regulations in connection with the Directive on waste or Regulations in connection with any other Directive designated by the Department for the purposes of subsection (5). Prior consultation would be acceptable for Regulations made under the Pollution Prevention and Control Bill or the EU Landfill Directive. 249. Legislative counsel has drafted amendment No 3 in an attempt to meet the Committee's concerns about the possible scope of clause 2(5). The Department suggested an alternative solution that would involve it giving a commitment that the provision would only be used in very limited, exceptional circumstances. In particular, under no circumstances would the Department introduce proposals for new Regulations using that provision to proceed on the basis of consultation that had already been carried out. If necessary, that undertaking could be incorporated into the explanatory and financial memorandum. 250. I discussed the matter at length with legislative counsel, and he said that that proposal would be preferable to the proposed amendment. His reasoning arises from the fact that the enabling provisions of schedule 1 must be read as a composite unit. When subordinate legislation is made, it must be within the scope of the power conferred by schedule 1. However, it is not usual to break down the enabling provisions into their component parts, or to attempt to allocate each later provision, or sub-provision, exclusively to an individual provision or sub-paragraph in the schedule. In other words, the schedule should be read as a whole, and it is drafted in that context. Legislative counsel's view is that to select certain sub-paragraphs for differential treatment threatens the integrity of the overall provision, and it may lead to legal and practical problems in drafting, interpreting or implementing subsequent legislative provisions. 251. I agree with those reasons, and the legislative counsel is reluctant to proceed with amendment No 3. He recommends exploring the alternative solution of an agreement or undertaking by the Department. 252. The Chairperson: Our legal advisers see both sides of the story, and they suggest that it might be appropriate to place the undertaking in the explanatory and financial memorandum that accompanies the Bill, with no amendment to clause 2(5). 253. Ms Harkness: That reflects my conversation with your legal adviser. 254. Mr Ford: If our legal advisers say that their legal advisers may be right, we should listen to them. If there is a clear statement in the explanatory and financial memorandum, it is something that we should consider. I presume that the Department can give us a draft of that. 255. I am not happy with the argument that this is not what is usually done. We are a new body and we should be able to do whatever we want. We must listen to the advice that the integrity of the Bill could be damaged. 256. The Chairperson: We should seriously consider the advice that has been given. The Committee would like to see the wording of the explanatory and financial memorandum. That may allow us to see it afresh and with a more open mind. I cannot give a commitment, but the view of the Committee and that of the Department may not be miles apart on the issue. 257. Mr Simmons: Amendment No 4 is a simple amendment to remove a reference to subsection (5) of clause 4 in clause 4(2). 258. Amendment No 5 removes subsection (5). The amendment was discussed at earlier meetings of the Committee. It gives effect to the clause's overall intent, which is that only people who have continued to operate within the terms of the original disposal licence will be able to benefit from the clause. Subsection (5) would have had the effect of allowing those who had continued to operate outside the terms of the disposal licence to benefit. We all thought that that was wrong, so we have removed subsection (5) in order to bring the clause into line with the original intention. 259. Amendment No 6 deals with the Committee's point about the definition of the words "which have been concluded" in clause 4(6). The legislative counsel has considered this and has provided a textual amendment, which reads: "in which the accused has been convicted". 260. His view is that that is the most effective way to deal with the matter. Ms Harkness has been in contact with the legislative counsel and can give the Committee the details of the reasons behind that. 261. The Chairperson: Our legal advisers have accepted that that is a reasonable way forward. 262. Ms Harkness: Yes. I have discussed that amendment with your legal advisers. 263. Mr Simmons: The Committee was advised of amendment No 7 to the Pollution Prevention and Control Bill at an earlier meeting. Mr Waterworth from the Environment and Heritage Service will speak about that amendment. 264. Mr Waterworth: The purpose of amendment No 7 is to insert after clause 4 a clause titled "Financial Assistance by Department". Subsection (1) of the new clause states: "The Department may make grants to any body having among its objects - (a) the furtherance of the objectives of the strategy in relation to the recovery and disposal of waste prepared by the Department under Article 19 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19); or (b) the prevention or control of environmental pollution." Subsection (2) states: "Grants under this section shall be made (a) in accordance with arrangements approved by the Department of Finance and Personnel; and (b) subject to such conditions as the Department may determine (including conditions for repayment in specified circumstances)." 265. That follows on from a key element of the Department's action plan for implementing the waste strategy for Northern Ireland. The action plan was launched in March 2002. The key action is the provision of grant aid to various stakeholders identified in the strategy. The strategy was built on stakeholder involvement and consultation. 266. Grant aid is to be made available to district councils, industry, and to the waste and resources action programme (WRAP). WRAP is a new UK-wide organisation. Among its objectives is the development of sustainable waste management. 267. The voluntary sector has also lobbied for grant aid through the Waste Management Advisory Board for Northern Ireland, which the Department established, with stakeholder involvement, to advise and direct the strategy's implementation. Unfortunately, the Department has direct powers to provide grant aid to district councils under section 5 of the Local Government Act (NI) 1972 only. That proved to be problematic when the Department tried to develop initiatives such as the industry fund. The Department had to join with Invest Northern Ireland, which is an agency of the Department of Enterprise, Trade and Investment, to make use of its statutory powers. The Department had to find a mechanism through the Budget (No. 2) Act (Northern Ireland) 2002 to provide funding for WRAP for the current year. Unfortunately, officials would have to seek that power again for future years. The Department has no powers to fund the voluntary sector. 268. The Chairperson: Members may have accepted your argument. Does anyone oppose it? 269. Mr Ford: I assume that, as part of a consultation process, the Committee can expect to hear about the criteria for grant aid from the Environment and Heritage Service. 270. The Chairperson: We have quite a bit of business to discuss and, although I do not want to interrupt your comments, if we are agreed on that issue, you should take that as a helpful sign that the Committee wants to help the Department to introduce the necessary legislation. 271. Mr Simmons: That concludes the seven amendments. 272. The remaining issue contained in the letter of 28 August concerns the Council for Nature Conservation and the Countryside's (CNCC) response. At an earlier meeting, we advised the Committee that the Department would contact CNCC for clarification of its comments. It has confirmed that the comments that it made to the Committee are identical to those made in response to the Department's original consultation. The Department responded to those comments by letter on 20 June and a copy of that letter was given to the Committee. Therefore, the CNCC's comments contain nothing new. 273. At the start of the meeting, I referred to a letter dated 6 August, in which the Department provided an update of the current state of discussions with the farming industry. Mr Bell will further brief the Committee on that. 274. Mr Bell: At a further meeting with the integrated pollution prevention control (IPPC) working group on pigs, which we referred to at the previous Committee meeting, we completed the initial review of the Standard Farming Installation Rules. Therefore, the Department has finished its study of those Rules with the working groups on pigs and poultry and must revise the Rules as agreed. We have a further - [Interruption]. 275. The Chairperson: Were certain issues agreed at those meetings? 276. Mr Bell: Yes, and the Department must revise and reissue the Rules to reflect those changes. 277. The Chairperson: Do changes to those Rules mean that the Ulster Farmers' Union and the Department are agreed on how to tackle the issue, or does the union continue to raise major issues? 278. Mr Bell: The issues that have been raised are points of clarification. I do not claim that the Ulster Farmers' Union thinks that the Standard Farming Installation Rules are great and what it has been waiting for. However, we have explored areas with potential for flexibility, and I received the impression from the meetings that there is a consensus that the Rules are a practicable way forward. 279. The Chairperson: Will you identify the farming industry's areas of concern for us? If there has been movement and agreement, when can the Committee look at those issues and consider its position? 280. Mr Bell: The Rules are detailed and consist of a set of requirements to which the farmers are prepared to sign up in order to avail themselves of lower charges. I referred to a couple of changes at the previous meeting, such as the change to diet rules. We have simplified some documents such as the water audit document. We have also identified some areas in the supplementary guidance to the Rules in which more information is required to help people. 281. Some concern was expressed about the odour control provision in the Rules. We have endeavoured to take a pragmatic approach to that, in that there would only be a requirement for applicants to address odour control issues if they had sensitive receptors, such as residences within 400 metres, or if complaints had been made. It is accepted that that is a reasonable approach. At the meeting there was some discussion among members about how the Department would deal with issues of odour complaint. That cannot be reflected in the Rules; all that I could say was that it was the Department's intention to deal with odour complaints pragmatically and that a single odour complaint would not necessarily result in additional requirements being imposed on a farm. Those practical issues have been the focus of our discussions. 282. The Chairperson: How close are you to agreement on the entire issue? 283. Mr Bell: We have identified where changes are required in the Rules. Once those changes are made, my proposal is that we would run with that version for the first applicants when the Regulations come into effect next year. It is our intention to have an ongoing dialogue with the industry, and the Rules may be changed and developed in the future. Therefore, it is not a final document. Some of the new installations will be introduced quite early; applicants must apply by 1 January 2004. We shall be running with this version of the document, although further minor changes may be made if issues arise in discussions. 284. The Scotland and Northern Ireland Forum for Environmental Research (SNIFFER) case study for a poultry farm in Scotland and Northern Ireland is going well. The dummy applications have been submitted from both the Scottish and Northern Irish farms. An initial assessment of their applications has been made and we anticipate that, in the next few months, we shall issue a report on the case study. A main outcome will be good practice examples for applications, rather than just guidance. That will benefit farmers and can be adapted and used in the preparation of applications. We express our appreciation at the effort that individual farmers have put into the scheme; it has been extremely helpful. 285. We have also identified several areas from the case study in which we can improve the application documentation, and we intend to do that. It has been a helpful exercise. 286. Mrs Nelis: When will the case study be completed? 287. Mr Bell: The recommendations should be available in about two months' time. 288. Mr Simmons: The next issue in the letter of 6 August refers to the Northern Ireland Human Rights Commission (NIHRC). We indicated on 4 July that we had sent a copy of the Bill to the NIHRC. It has confirmed that it has no comments to make on the Bill. We have also provided the NIHRC with advance copies and final copies of the draft Regulations. We shall take into account any comments the commission makes on those and share them with the Committee. 289. In its letter of 8 July, the Committee asked several further questions, and we have dealt with those in the annex to our response of 6 August. I shall go through them quickly for the benefit of the Committee. 290. We have already dealt with clause 2(5) and the prior consultation issue. As regards clause 3, the Committee asked about the arrangements for waste disposal plans and the three-year transitional period in the Waste and Contaminated Land (Northern Ireland) Order 1997. That Order contains transitional provisions to enable us to move from the system of disposal licences to the new system of waste management licences. 291. The original proposal for waste management licences was that current disposal licences could remain extant for three years. We have changed that period to an open-ended one in the Bill. The original proposal also made similar provisions for council disposal plans under the Pollution Control and Local Government (Northern Ireland) Order 1978. It provided that such plans should remain in place for three years before being replaced by new waste management plans under the Waste and Contaminated Land (Northern Ireland) Order 1997. 292. However that particular proposal was overtaken by events: there was an infraction case against the UK in respect of the Waste Framework Directive involved in the preparation of those plans. The entire procedure has been accelerated, and that is outlined in our response of 6 August. The three-year period for disposal plans is now not practical because the whole issue has been overtaken by events. Waste management plans will be in place either later this year or early next year. 293. The Chairperson: The advice given to the Committee is that no issue remains on that point. 294. Mr Simmons: The next request from the Committee was for a simple definition of the term "appointed day" as it appears in clause 4(1)(a) of the Bill. The term "appointed day", as used in the Bill, means the day on which the new system of waste management licensing will come into operation. We must provide a time frame within which the provisions of clause 4 will have effect. It cannot be an open-ended clause. At one end of the time frame is the "relevant day", which is a day 12 months before the passing of the Act. At the other end of the timeframe is the "appointed day", which is the day for waste management licensing. If the Act were to be passed in January 2003 and waste management licensing were to be introduced in November 2003 the clause would effectively apply for the period from January 2002 until November 2003. After that it would cease to have any practical effect. 295. The Chairperson: However, the letter of 6 August contained a relatively clear explanation of the term. Although it is clear in the letter, is there a reason why the meaning of the "appointed day" is not clear in the explanatory and financial memorandum? 296. Mr Simmons: We shall put it in the explanatory and financial memorandum; there is no problem with that. I thought the Committee was requesting a drafting change. 297. The Chairperson: The Committee is asking for a change, but it is trying to be as helpful as possible. 298. Mr Simmons: A definition will be included in the explanatory and financial memorandum. 299. The Chairperson: That is necessary for clarity. 300. Mr Simmons: Certainly. 301. Clause 4(5) will be removed by amendment No 5. The Committee asked why, in clause 4(7), district councils should have a duty to let those affected know about the effect of the new legislation. The simple reason is that district councils are the regulatory authority. They hold all the information on disposal licences, and they are the people best placed to inform licence holders about the new arrangements. 302. The Chairperson: The district councils are the best organisations to do the donkey work? 303. Mr Simmons: They are the regulatory authority. They issue the disposal licences and have all the information on licence holders. No one else can do it. 304. The Chairperson: We have been advised that that is not an issue. 305. I want to give members an opportunity to ask questions, so that we know that everyone is saying the same thing. 306. Mr Simmons: Paragraph 15(1)(b) to schedule 1 refers to financial security, and the Committee asked for details about what that means in practice. That provision is contained in the Bill, but it will not be reflected in the Regulations, because head (b) is designed to deal with a major pollution incident costing millions of pounds, which would require an arrangement of that type. It is not in the Regulations at present because we do not envisage an incident on that scale happening in Northern Ireland. If it were to occur, the Regulations could be changed accordingly. 307. Mrs Nelis: What do you mean by "on that scale"? 308. Mr Bell: I should say that the facility is not reflected in the Regulations under the Pollution Prevention and Control Bill or anywhere else. The Department has the power to require financial security "pending the taking of remedial action". 309. I imagine that the legislation would deal with a situation in which widespread contamination occurred. I cannot think of a situation that could occur in Northern Ireland that would require that power. I suppose, if there was soil contamination in a wide area by some sort of persistent material, it might be appropriate to require financial security before taking remedial action. 310. The Chairperson: What sort of financial security would be required? 311. Mr Simmons: I am not sure. The clause appeared in the UK legislation, but it has not been reflected in the Regulations. I imagine that it would be some sort of bond. 312. The Chairperson: The issue, and the type of financial security to be provided, requires clarification. 313. Mr Simmons: We shall provide that. 314. The Chairperson: It would be helpful if you could find out exactly what it means. The clause is included in the legislation, so must mean something in some part of the UK. We need some clarification as to whether the clause has been used in the past or what it is intended to cover. 315. Mr Simmons: I agree with that. 316. The Committee raised a concern about serious pollution, which is mentioned in paragraph 15(1)(c) to schedule 1. Mr Bell dealt with this point on 4 July, and in our letter we set out the position again as to how we envisage the power being operated. 317. The Chairperson: In light of those responses, do members have any other questions? Is it considered that the use of the word "serious" is reasonable? 318. Mr Ford: May I return to paragraph 15(1)(b)? Is that a requirement of an EU Directive or has it been added to the United Kingdom legislation? If it is a requirement of an EU Directive and we do not have the necessary Regulations in place, are we failing in our duty? 319. Mr Simmons: That is not the case; the requirement is a UK measure only. 320. The Chairperson: Can we be sure that it is in no way a requirement of an EU Directive? 321. Mr Simmons: Yes, we can. 322. The final point relates to different levels of fines detailed in paragraph 25 to schedule 1. That is a difficult and tricky problem, although there is no difference of opinion between the Department and the Committee in what we are trying to achieve. In effect, the Pollution Prevention and Control Bill is based on the "polluter pays" principle. The problem is how to put the paragraph into effect practically. Two aspects are involved, the first of which is that polluters should not escape from meeting the cost of pollution that they cause. The Regulations state clearly that a court has the power, not only impose a penalty, but to require polluters to remedy the pollution and to meet the cost. The second aspect is more difficult in that polluters should not be able to gain financially from their activities. 323. The Chairperson: I was checking with the Clerk to the Committee whether you had sight of a new provision to cover the issue? 324. Mr Simmons: Yes, we have. That covers the second aspect where we see practical difficulties arising. Having considered the relevant provision in the Planning (Amendment) Bill, it would be reasonably easy, in legal terms, to provide something in the Bill along those lines. However, the practical outworkings might be more problematic as it is more difficult to quantify pollution incidents than it would be, for example, to quantify land development or land values. It would be difficult to draw a direct parallel between what we put in the Planning (Amendment) Bill and what would be in the Pollution Prevention and Control Bill. 325. Mr Bell may wish to elaborate on the operational side. 326. Mr Bell: To reiterate, there are two sides to the problem, one of which is to cover polluters who potentially could escape the cost of putting right any damage. That seems to be covered in regulation 26(2), which allows enforcing authorities to take steps to remedy pollution and recover the costs, as well as regulation 36, which allows courts to order offenders to remedy any matters. 327. The other issue is where there is a financial incentive or benefit in breaking the law. To use the analogy of the planning situation, if someone knocked down a listed building and built a block of apartments on the site, there would be a clear financial benefit. There is not a direct parallel with integrated pollution prevention control (IPPC) installations - a situation in which people would accrue a financial benefit from polluting deliberately. An example was given of the illegal dumping of toxic waste. That is not related directly to pollution prevention control (PPC) installations where it is the installation that is being permitted. 328. Arguably, were there a difference in the standards applied to similar installations, one might have lower costs if the standards were less stringent. However, that is more about consistency of permitting than someone gaining financially from breaking the law deliberately. There is not a direct parallel with regard to financial benefit from breaking the law. To ensure that people are accountable for putting right any damage that they cause is a valid point, but that aspect is addressed effectively in the Regulations. 329. Mr Ford: I accept that paragraph 18 to schedule 1 refers to the issues of remedial action and cost. Given the difficulties that we sometimes have with the judiciary, at all levels, in getting realistic recognition of penalties, does a case not exist for saying that paragraph 25 to schedule 1, which deals with offences, should include the issue of costs alongside fines? Mr Simmons referred to the Department getting back its costs, but fines do not benefit the Environment and Heritage Service or any part of the Department of the Environment. They are lost in the Treasury. It may or may not have been the case up to now, but by failing to tie the issue of compensation and costs into the issue of penalties, an opportunity has been lost to flag that up. 330. Mr Bell: Compensation and costs are addressed, but in addition to the penalty. The penalty would be the punitive aspect. The remedial costs could greatly exceed the fine, and the offender would also have to pay those costs. 331. Mr Ford: The opportunity to add on those costs while a criminal prosecution is ongoing, rather than the Department having to take a further civil case for the recovery of costs, would have time benefits for your staff if nothing else. 332. Mr Simmons: Provision is made in the Regulations for the court to do that. The Regulations state specifically that in imposing a penalty "the court may, in addition to or instead of imposing any punishment", require the offender to do the remedial works and to pay all the costs. That is an additional power. 333. Mr Ford: That is part of the criminal prosecution? 334. Mr Simmons: Yes. 335. Ms Harkness: That is regulation 36. 336. Mrs Nelis: The operative word here is "may". It states: "the court may"; should it not state "the court will"? 337. Mr Simmons: There is a limit to how far you can go in determining what the judiciary is or is not going to do, and "may" would be a standard word in such a case. It would be difficult to impose a mandatory requirement on a court in such circumstances. 338. Mrs Nelis: It is a serious weakness. We all know that polluters do not pay. As officials, are you convinced that the Regulations will ensure that polluters will pay? For example, if a manufacturer sets up a dying installation that pollutes the water, will he be made to pay for doing so? Are the Regulations strong enough? 339. Mr Bell: The power exists, but it is a matter of ensuring that the costs of remedial action are met. 340. The Chairperson: That is the problem. The power is there, but the courts must be made to exercise that power; that will not happen with the inclusion of the word "may". Clause 2(4) of the Bill stated that the Department "shall" consult district councils. That gave the district councils responsibility, and it should be the same for courts. That has grieved many people in the past because they felt that the polluter was leaving society to pay for his actions. There is a price to pay. 341. Mr Simmons: Those are legal issues, but departmental officials will discuss them with the legislative counsel. 342. The Chairperson: Our office suggested the inclusion in the Bill of the following provision: "In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to the seriousness of the pollution incident(s), the environmental impact of the pollution and, where relevant, details of the costs of restoration and prosecution and to any financial benefit which has accrued or appears likely to accrue to a person in consequence of the offence." 343. Mr Simmons: I shall take that draft to the legislative counsel. 344. Ms Harkness: There are difficulties involved in mandatory sentencing provisions of that type, which can cause difficulties regarding human rights and the lack of flexibility for the sentencing authorities. Although it may be appropriate to encourage more stringent actions, there may be other ways to do that. Use of the word "shall" imposes obligations and will cause difficulty. 345. The Chairperson: The use of clear legislation was appropriate in the Planning (Amendment) Bill. Where possible, the same should apply in the Pollution Prevention and Control Bill because of the human rights issues involved. As Mr Simmons said, it is difficult to see from where the finances will come, but decisions must be made. Why can the court not make a decision where appropriate just as it will under the Planning (Amendment) Bill? That matter should be looked at again. 346. Mr Simmons: As I have said, if the Committee provides us with the draft I shall discuss it with the legislative counsel. 347. The Chairperson: The Committee raised its concerns about the levels of fines under the Pollution Prevention and Control Bill and suggested that the maximum should be increased from £20,000 to £30,000, in line with the proposals under the Planning (Amendment) Bill. 348. Mr Simmons: The figure of £20,000 is the standard maximum fine in Northern Ireland environmental legislation. That is not to say that it cannot be changed. 349. The Chairperson: It has been changed in the Planning (Amendment) Bill. 350. Mr Simmons: That the levels of fines are a reserved matter also presents a difficulty. 351. The Chairperson: That is also the case for the Planning (Amendment) Bill, but the Minister of the Environment will make representation to the Secretary of State. I request that, on the same day, the Minister mentions this Bill. 352. Mr Simmons: The Secretary of State, in giving his approval to the Bill, made it clear that it was on the understanding that the level of fines were identical to those in Great Britain. 353. The Chairperson: He has made those determinations before and has seen the wisdom of other people's opinion. With the same vigour and vitality with which I ask you, I ask you to ask the Minister to present the case to the Secretary of State. If it is presented half-heartedly there is no chance of getting anywhere. 354. Mr Simmons: We can certainly do that, but the matter is outside our direct control. 355. As regards the letter of 6 August, the item outstanding is that headed "Consultation Responses", which deals with the comments from the Council for Nature Conservation and the Countryside (CNCC). 356. The Chairperson: Unfortunately, two other groups from the Department are outside waiting to meet the Committee. I apologise, but we shall have to deal with those matters next week. 357. Mr Simmons: We have no further issues to raise on the CNCC. The matter has been dealt with, unless the Committee has more questions. 358. Mrs Carson: It is a valid point that there seems to be no detail on the procedures of transboundary consultation for the councils concerned. Have you considered including powers in the Bill to cover that? 359. Mr Simmons: Those procedures on transboundary consultations are set out in the Regulations. The procedures are required under the Directive and that is reflected in the Regulations. 360. Mrs Carson: In my constituency, we are concerned about the headwaters of the River Erne that go into Fermanagh and South Tyrone. 361. Mr Simmons: The only other matters left to deal with are the responses that the Committee received from the Northern Ireland Meat Exporters' Association (NIMEA) and the Northern Ireland Chief Environmental Health Officers' Group (CEHOG). CEHOG's response says little other than it is looking forward to reading the Regulations, of which they now have a draft copy. 362. NIMEA expressed concern about the 26 district councils' interpretations. For all practical purposes, slaughterhouses are dealt with through part A and IPPC processes. Therefore, they are subject to control by the chief inspector, and uniform procedure. At the moment, slaughterhouses that are not covered by legislation are exempt from control altogether. In all likelihood, all slaughterhouses will eventually fall within part A and will be permitted by the chief inspector. We are content that we can deal with that matter easily enough. 363. The Chairperson: There were concerns that, as there are 26 councils, there would be 26 interpretations of the same piece of legislation. 364. Mr Simmons: It is unlikely that all the slaughterhouses will be covered by the councils. They will be dealt with by the chief inspector, so the issue does not arise. 365. We do not believe that the legislation is simply gold plating. It reflects the requirements of the Directive. NIMEA also requested copies of the draft Regulations, which have been forwarded for consultation. 366. The Chairperson: Have you contacted NIMEA to answer its concerns and queries? 367. Mr Simmons: We can write to NIMEA directly or perhaps respond through the Committee. We can provide the Committee with a response to send on to NIMEA. 368. The Chairperson: We have made significant progress on the Bill today. Time is running out, but we still have issues that must be addressed. Thank you. MINUTES OF EVIDENCE Thursday 12 September 2002 Members present: Rev Dr William McCrea (Chairperson) Witnesses: Mr D Bell ) Department of the Environment 369. The Chairperson: We welcome Mr David Bell, Mrs Ethne Harkness and Mr Norman Simmons back to the Committee. 370. Mr Simmons: I shall run through the letter written to the Committee on 9 September. That dealt with the issues which followed last week's meeting of the Committee. 371. The first item concerns amendments to the explanatory and financial memorandum. As requested, we have provided two amendments. One of those relates to clause 2(5), and attempts to set down more clearly the purpose of the clause and the Department's intentions as to its use. The second amendment is to the text in clause 4, which clarifies the meaning of "appointed day" and "relevant day", as used in the clause. 372. The Chairperson: The proposed amendment refers to Clause 4(5), which should have been deleted, as agreed last week. 373. Mr Simmons: Sorry. We have made the amendments to reflect the Committee's views of last week. The other, incidental, amendments will be made when we rewrite the explanatory and financial memorandum after Consideration Stage. 374. We have provided two draft amendments. The first is the amendment requested by the Committee last week, and it inserts the requirement in clause 2 to consult bodies or persons appearing to be representative of district councils. That subsection will now read: "Before making any regulations under this section, the Department shall consult - ( ) district councils and such bodies or persons appearing to it to be representative of district councils as it may consider appropriate;". 375. Mr Ford: My scribbles last week are perhaps not as coherent as other people's notes, but they refer to the issue of representatives of council staff. I thought we had discussed that. 376. Mr Simmons: I am sorry; that was not in the Committee's letter to us. 377. Mr Ford: I appreciate that and I do not point the finger; I only raise the question. 378. The Chairperson: I am not so sure that the proposed wording provides for what we want. It says: "appearing to it to be representative of district councils". There is no reference to staff. You have the representatives of district councils, but not of the staff. 379. Mrs Harkness: On what basis would there be an interest in staff? Why would that be? What is the objective of including an express reference to staff? You would normally expect that when a Bill was going to involve contracts of employment, terms and conditions of appointment or something like that, but presumably that is not what the Committee is interested in here. I am not sure where this could be directed. 380. The Chairperson: Whenever we have been talking about district councils in the past, we have been anxious to include the staff, who have representatives as well, in any consultations. We have been trying to protect that in the past. 381. Mrs Harkness: But the decision-making responsibility and so on would be in the hands of the district councils. Their staff would just be in a role of advising, and then handing over. The decision-making role would be for the councils as such. 382. Mr Ford: In my experience as a district councillor, I have sometimes felt that the advice of officers can be very valuable. I would have thought that there would be a strong argument for saying that the involvement of council staff at the consultation stage would help to smooth matters. Sometimes the Department does benefit from the advice that it receives from other people, especially experts closely related to the work that is involved. 383. Mrs Harkness: Absolutely, but there are other bodies that are named consultees, through which the views of experts - environmental health officers or whoever - can come. This is not something that has been referred to legislative counsel, because it was not in the letter, but I imagine that there would be a difficulty in deciding what mechanism you should use to consult staff on an issue such as this. When you are talking about terms and conditions of employment you can see a clear trade union role, but how do you do it in a situation like this? 384. Mr Ford: How does the Department consult the interests of small businesses? If it goes to bodies that apparently represent the interests of small businesses, I do not see how consulting council staff is any more difficult than liaising with the other list of consultees. 385. Mrs Harkness: For small businesses there are representative bodies, such as chambers of commerce and so on, and there would also be, through advertisement, scope for individuals to come forward and describe their position and the locus standi that they have for putting forward their views. It is more difficult in terms of individual staff, who can only speak in this matter as individuals. It is harder to see how the consultation would operate. 386. Mr Molloy: I do not want to break rank with the Committee on this, but I am inclined to agree that council staff are representative of the council if they are appointed to be so. There is a danger here. The primacy of the elected representatives within district councils is an important aspect. When expert advice is required, that comes through a certain structure. It is important at that level that we do not get personal opinions overruling the district council's opinion. A representative of the district council could be an officer or a councillor, but it is not necessary for that to be defined. 387. The Chairperson: Before we have any further discussion, because we are talking about councils, could we have a declaration of interest please? Various members declared an interest. 388. The Chairperson: I would prefer to go back to the first wording - "representative of the interests of district councils" - because it was more open. That would take in Mr Ford's point. The interests of district councils could include staff. When you say "representative of district councils", that can tie it very much to an elite body, rather than the unions that represent staff. I have always found that it is much better to bring staff with you, rather than to say that their opinions do not count and that they are simply tied on to it. 389. Mr Simmons: We could reinsert the words "the interests of" - "representative of the interests of district councils" 390. - if that was the Committee's wish. I do not think that that would cause any problems. 391. Mrs Nelis: Would the word "both" not qualify it? - "both district councils and such bodies or persons . representative"? 392. To me, that would be staff. 393. Mrs Harkness: This is really looking at what will be paragraph (a) of a series of things. We are really looking at one paragraph in isolation. There is, in effect, a list. It would not be necessary to say "both", because we are saying "district councils and such bodies or persons appearing to [the Department] to be representative of the interests of district councils . as it may consider appropriate". 394. In drafting terms, subject to advice from legislative counsel, I do not see any difficulty in doing that. If you were to say "both", there might be a difficulty about just how many you would want to consult. You might be limiting it. 395. Mr Armstrong: I do not see much problem with the original wording. It says "the interests of district councils, industry, agriculture and small business". 396. That takes in everyone. I refer to your list of what constitutes pollution. That has to be discussed at all times, because sometimes what is deemed to be pollution is not pollution. You have to consult with everyone, and I think that everyone is marked up in the section that gives that. You really have everyone there. 397. The Chairperson: Well, there is a proposal from the officials, but we may be making a different proposal. We have done that before, and we shall continue to do so in the future if we are trying to get clarity. We want to be sure that we know exactly what this means. There is not much of a difference between our positions; it is just getting clarity on the wording. You mentioned a moment ago the wording that you were trying to include. Can you send that quickly through to us? 398. Mrs Harkness: The only change - and it would have to come from legislative counsel - would be "representative of the interests of district councils" rather than "representative of district councils". Keep that as a new paragraph (a). Paragraph (a) would then cover district councils and bodies or persons representative of the interests of district councils; paragraph (b) would refer to those representative of the interests of industry, agriculture and business; and the miscellaneous consultees would be covered in paragraph (c). 399. The Chairperson: That could be a way forward on this. 400. Mr Simmons: Yes, that is fine. 401. The Chairperson: It is a way that we can move forward on that. Let us move on to the next amendment. 402. Mr Simmons: The next amendment is the raising of the maximum fine level from £20,000 to £30,000. Our legislative counsel has drafted that for us. In line with our commitment last week, we are in the process of putting that to the Minister to seek his views on approaching the Secretary of State. 403. The Chairperson: When is that going to the Secretary of State? 404. Mr Simmons: We are holding off because there is another amendment proposed by the Committee on the same issue, and we will send the Minister a composite submission. 405. Another issue raised was the proposed amendment from the Committee that certain matters should be taken into account when deciding levels of fines. Departmental officials have been working hard this week on that proposed amendment with legislative counsel. However, he has identified some serious legal problems with some of the concepts that the Committee would like to see reflected in the clause. Ms Harkness will give the Committee a summary of the counsel's points. 406. Mrs Harkness: The points are presented in a short document that has just been circulated to Committee members. The proposal came from the Committee to introduce an amendment requiring the courts to have regard to certain factors determining the level of fines. The Committee saw that as being in line with clauses in the Planning (Amendment) Bill and provided a draft of what it had in mind. The draft clause is set out in the paper that you have just received. The view of legislative counsel is that that violates some fundamental principles of the criminal justice system and sentencing process and, consequently, could not be supported as a package. 407. Various issues arose from the proposal, and some of the points that I want to make focus on the overall thrust of the proposal, and some concern the individual factors that are listed in the handout. The first proposal concerns "seriousness", and the draft states that "the court shall in particular have regard to the seriousness" of the pollution incident. That provision is not found in the Planning (Amendment) Bill. The seriousness of the offence, its consequences, and the relevant circumstances, are already the most important factors in sentencing. The courts are obliged to do that by criminal justice provisions. 408. To provide in a Bill that the court must have "regard to seriousness" would not just be stating the obvious, but, in the words of legislative counsel, it would be "extremely dangerous". It would throw into question the whole issue of what the courts are doing in other situations. If the courts are to be told to look at the "seriousness" of one offence, then what is the role of "seriousness" elsewhere? For that reason legislative counsel's firm advice is that "seriousness" as a concept should not be a factor that is expressly mentioned in this way. 409. The second point relates to the costs of prosecution to be taken into account. Legislative counsel said that it would be "entirely improper" to take into account the cost of prosecution because it is not a matter that the accused can control. As well as that, everyone has a constitutional right to defend themselves, and to say that a punishment will be increased because the accused had the temerity to defend himself against this charge is constitutionally improper. 410. There is an existing regime to deal with the payment or recoupment of costs. There is scope for costs orders to be made in criminal cases, but that is entirely unrelated to the system of criminal law penalties. It is a separate regime that is not part of the sentence, and it is expressly designed to compensate the authority rather than to punish the offender. Therefore, the matter is dealt with through that regime. It would not be proper for that issue to be dealt with under the Bill. 411. The third issue relates to costs of restoration, which is not just restoration in the limited sense, but remediation, which, although not a very attractive word, means remedying the effects of environmental damage. There are already several provisions relating to remediation and site restoration that are not specifically in the Bill, but appear in the Regulations. The Bill contains enabling powers to allow those Regulations to be brought forward. Although I have not gone into detail, I have referred to the provisions, which Members can read to see the scope of what can be done. Does the Committee want more details on those provisions? 412. The Chairperson: Can you give a brief résumé of those? 413. Mrs Harkness: Paragraphs 6 to 8 of schedule 1 are among the paragraphs that deal with permits. Many of the Regulations address the point. In particular, paragraph 8 of schedule 1 allows for provisions to be made regulating the transfer or surrender of permits. Sub-paragraph (3) states that permits may be issued "Authorising the imposition by enforcing authorities of requirements with respect to the taking of preventative or remedial action . in connection with the surrender . of permits." 414. That covers a situation where a person is about to leave the site of an installation, and the enforcing authority will not accept a surrender of the permit without being satisfied that adequate site restoration has been carried out. It is followed through in Regulation 19 of the draft Regulations, of which members have a copy. 415. I have drawn attention to paragraphs 14 to 18. Paragraph 15(1)(a) allows the enforcing authorities to serve notices requiring permit holders to take remedial action. It is not quite the same as restoration work, but we took it that the Committee meant that overall type of work. Regulations 26 and 36 of the draft Regulations take that provision forward. My colleagues from the operational side could give more information on that. 416. The Chairperson: Therefore, there is already provision in several other parts of the legislation, be it the schedules, Regulations or whatever, for what we want to incorporate. 417. Mrs Harkness: Not only is it covered elsewhere, but duplicating such provisions would, in itself, raise a difficulty by creating the risk of a double penalty. If it is mentioned as a factor to be taken into account in sentencing, it might restrict the powers of the enforcing order to issue a remediation or restoration order, because the accused might point out that while his or her fine is being increased to take account of that, he or she is also being ordered to pay the bill for remediation. Therefore, there is the risk of a double penalty. That is dangerous territory. 418. The Chairperson: Do members want to comment on any of the issues already covered? 419. Mr Ford: I have a degree of sympathy with the view that is expressed at paragraph (a) of the Department's paper. Clearly, the Committee does not want to do anything that is outside normal criminal law. However, with regard to the arguments that have just been advanced about paragraph (c), the examples that were given were not related to restoration. Remedial action is referred to in paragraph 15(1)(a). It does not refer to restoration. Are you sure, on remedial action, that that covers not only ensuring that pollution does not continue but also includes full responsibility for restoration? I am concerned that paragraph 8(3) is merely concerned with surrender or permits; indeed, Regulation 19 refers to "application to surrender". When it gets to that stage it is not an effective power to deal with an ongoing problem. Does paragraph 15(1)(a), which refers to remedial action, specifically include full powers to get restoration work done and paid for, as opposed to merely stopping the existing pollution? "Remedial" and "restoration" do not have the same meaning in the English language, but they may have the same meaning to lawyers. 420. Mrs Harkness: Even to lawyers they do not have the same meaning. 421. Mr Ford: If that is so, where is the power of restoration? 422. Mrs Harkness: Paragraph 8 leads to that. 423. Mr Ford: I accept that, but that is only at the surrender of a licence. With regard to an ongoing problem you cited at paragraph 15, where is the provision to ensure that restoration, as opposed to mere remedial action, takes place? 424. Mr Bell: In the context of the Regulations, site restoration has a specific meaning that comes from the EC Directive. The Directive requires that on cessation of operations the site be restored to a satisfactory state. I believe that in the context of the Regulations the word "restoration" relates to cessation of operations. "Remediation" has a more general meaning. When site restoration is referred to in the context of the Regulations and the permit surrender provisions, it refers to the site of the installation, which is the footprint of the installation. The "remediation" measures could go well beyond that. Pollution could have occurred outside the boundary of the site and would need to be addressed. That is covered by Regulations 26 and 36. 425. Regulations 26 provides for enforcement authorities to issue notices requiring remediation. Regulation 36 provides for the courts to order remediation. Therefore, in that context, there is a differentiation, in that the word "restoration" is used in the context of the site and putting the site right before a cessation of operations. "Remediation" has a more general use, but it does mean putting right the effects of pollution and not just stopping the cause of pollution. 426. Mr Ford: Are you saying that Regulation 26 is covered by paragraph 15(1)(a) with regard to the word "remedial"? 427. Mr Bell: Yes. Regulation 26 gives effect to the general power in paragraph 15(1)(a). 428. Mr Ford: OK. 429. The Chairperson: It seems that once again the Department and the Committee are of the same mind with regard to wanting to ensure that the issue is covered. Officials say clearly that what we are endeavouring and desiring to do is already there and will be empowered by the legislation. 430. Mrs Harkness: We move to paragraph (d) of our paper and a difficulty raised by legislative counsel. It relates to the nature of the legislation involved. The proposal assumes that offences under the Bill will result in pollution. It contains the idea of cause and effect, but that will not necessarily be the case. The Bill is focused on concepts of permitting, and regulatory offences. There are also concerns about substantive pollution harm, and offences which cause pollution. There is not necessarily a causal link between the offences established in the Bill and the harm that can be seen on the ground. For example, with regard to the primary offence of operating without a permit, it cannot be said that harm arose next door to a site because someone was operating on the site without a permit. In the same way, it cannot be said that because someone was driving a car without a licence, there are pedestrians lying on a zebra crossing. There is no consequential link. That is the difficulty, and it is not just a pedantic, purist legal argument; it is a difficulty of substance. 431. There are some offences under the Bill. The Regulations create several offences; some could be described as regulatory, such as giving false information or not supplying information. To create that causal link would be very difficult. With some it could be argued - at least to the satisfaction of some people, if not the purists - that there is a connection. Even where it could be said that the pollution effect resulted from that infringement of the code, there would be other mechanisms for taking the scope or extent of that pollution harm into account in the sentencing process. That would be via the route of seriousness again. 432. If an offence does not technically lead to pollution, but is part of the scenario in which pollution arises, the seriousness of the offence and the elements associated with it will, in any event, be taken into account by the court. I submit that that is why, for example, there is no provision in the Planning (Amendment) Bill, which is our precedent, requiring that the dramatic or widespread effect of disregarding an enforcement notice must be taken into account. That already impinges on the seriousness, and on the overall role of the courts. 433. Our argument is, therefore, that first, in many cases, the link will not be made and that inroad will not be there. Secondly, seriousness as an overriding concept will take care of that difficulty. The draft refers not just to the seriousness of the pollution incident, but the environmental impact as well. The same argument applies to that too, and that is really what legislative counsel's objections to that point are. 434. The Chairperson: If the link cannot be established in all cases, but can be established in some, why should there not be legislation to cover the particulars of those cases in which it can be established? 435. Mrs Harkness: If it could be established, then it would be possible to draft something that isolated not just offences out of the list of possible offences, but the way in which they were carried out on the ground. There would be difficulty establishing the cause and effect. It could be done, but you would really be creating a subset of offences from the overall category of offences, where the seriousness of the whole scenario associated with the offence is already relevant. Potentially you would be dangerously impinging on the overarching concept of seriousness. It is hard to see how the court would distinguish between what it is doing under its implicit requirement to have regard to the seriousness of the offence and what it is then doing under its express requirement to have regard to the environmental impact. It would do both at the one time. If you separate them, you have arguments about whether the court is taking the same factor into account twice. It could be argued that it is unfair to the accused, who is being hit twice for essentially the same factor. 436. The Chairperson: Many of the words being used here, such as seriousness of pollution incidents, the costs of prosecution, and the environmental impact, are words used by the Department in its letter of 6 August to us. 437. Mrs Harkness: Yes, but they are used in the context of the overall sentencing regime that is familiar in criminal law. You are not requiring the courts specifically to address that. 438. Mr Armstrong: I cannot get my head around this. When is a pollution not a pollution? That is going to be the problem? A person could be deemed to be polluting, when in fact using anaerobic digesters or involved in the pasteurising process. That could be deemed to be pollution at the start of the process, but not to be pollution by the end of the process. How do you address that problem? 439. Mrs Harkness: In that situation the offence is not specifically polluting; it could be operating without a licence, breaking a condition of the permit, not supplying information required and things such as that. Those could be offences even if no pollution actually materialises - in the same way as the drunk driver is committing an offence even if he makes it safely home. He has still committed an offence, and this could be the same. With regard to the penalty, you want to punish more severely the drunk driver who actually knocks down the person, or, likewise, the operator whose wrongful operation results in a measurable impact of pollution. They are both wrongdoers. 440. Mr Poots: I do not think that the courts see it that way. A court looks at a situation where wrong was done, even if it may have been a matter of good fortune that something harmful was not done. A judge will look at both aspects and will regard them with the same gravity. 441. Mrs Harkness: The court has to take into account what arose as a result of the wrongdoing, or even the risk that wrongdoing exposed. 442. Mr Poots: Exactly. 443. The Chairperson: We saw that in connection with mobile phones recently, where someone got a two-year sentence for using a mobile phone while on an aeroplane. The plane did not crash, but the risk was there. 444. Mrs Harkness: There was a case involving someone driving on a motorway a short while ago. The driver dropped something and was fumbling to pick it up, when he lost control and crossed the central reservation with devastating results. It was a moment of carelessness, and most of us have got away with it many times, but the sentence in that case was imprisonment. We all run those risks if we drive carelessly. The same situation applies here. 445. Mr Simmons: The last factor is the question of the financial benefit, and it most closely resembles what is contained in the Planning (Amendment) Bill. We feel that it is not a direct comparison with the Planning (Amendment) Bill, and there are practical difficulties in establishing and quantifying financial benefits. However, having discussed it with legislative counsel, we are coming to the view that there may not be any overriding legal reason why a provision along those lines could not be inserted into Bill, although we would have reservations about its practical outworkings. There may well be scope to explore with legislative counsel a provision in the Bill that restricted itself to financial benefit, very much along the lines of what is in the Planning (Amendment) Bill. 446. Mrs Harkness: The practicalities of doing that are different, and there are several reasons why. The difficulties arise when you move from the question of technical competence or "draftability" to the issue of how that provision would work, operate or make a difference in practice. In this context, unlike planning, it is difficult to see a close correlation of the type that the courts would need between offences under this legislation and financial benefit accruing. 447. It is difficult to see a causal link, and it is difficult to see the scope for doing it. It is also difficult to quantify any possible financial benefit. That is unlike the planning context, where you can have evidence of differentials in the value of land. You can say that there was an enforcement notice in place forbidding a building from being knocked down. You can show that the offender calculated the cost-effectiveness, decided to infringe the enforcement notice, and made a profit as a result. You can produce evidence from the experts about the level of the profit. That is easily workable by everyone involved. 448. It would be more difficult in this context. It would not be a one-off infringement; it would probably be a pattern - a continuing operation. An enforcing authority with a continuous, proactive role would be involved. The practicalities are different, but, as Mr Simmons said, it is possible to draft such measures. It can be done, but it would be difficult to put into operation. 449. The Chairperson: We must be careful. There are examples: there was a scandal in Craigavon some time ago regarding pollution, and a connection could be made. The Assembly's legal advisers have advised the Committee that there is scope to draft provisions to cover the causal connections aspect, and thus meet the Committee's concerns. 450. Mrs Harkness: It would be possible to take account of the need to show a causal connection. However, it would be difficult to convince a court that that requirement had been satisfied in relation to the evidence that would be forthcoming. 451. The Chairperson: It may or may not be difficult. The legislation could be in force for some considerable time, and it could be a long time before we get the chance to put it right again. The Assembly's legal advisers have told the Committee that it can be drafted to take account of the causal link. 452. Mrs Harkness: I agree with that legal advice. 453. Mr Ford: In talking about the causal link, you highlighted the issue of the standards of proof. In taking an enforcement action, is it judged as in a civil case as opposed to a criminal prosecution? Are you looking at the balance of probabilities rather than being "beyond all reasonable doubt", thus making it easier to establish? 454. Mrs Harkness: No. We are talking about criminal offences and the factors that a court has to take into account when sentencing. If a court is to have regard for the financial benefit accruing as a result of the offence, it would have to be convinced that the evidence provided justified increasing the sentence. My difficulty is that I can see how, in the planning context, even anecdotal evidence of property values would show that someone had made a killing from his or her actions. It is not so easy to do the financial calculation, or to present the evidence, in this context. 455. Mr Ford: Is the enforcement action, and the potential recovery of costs by court order, easier to tie into some of these points relating to the gravity of the offence because of the question of the burden of proof that is required, or are you simply objecting to the concept of introducing this in the criminal part of activity? 456. Mrs Harkness: No. I do not have an objection to that - [Interruption]. 457. Mr Ford: Sorry. I meant to say "expressing reservations about". 458. Mrs Harkness: My reservations would be based on the workability of the provision and how the courts would use it on a day-to-day basis. It could become a provision that lies on the statute book but is never used successfully. It is not likely to earn its keep on the statute book, and it is raising issues which the courts already ought to be considering. The general rubric concerning the circumstances of the offence and the sentencing approach already include those who set out to make a profit from an infringement. That is another objection. I do not envisage the courts using this provision, or people being able to present the sort of evidence that would convince the courts to use it. However, I can imagine accused people bringing appeals based on the argument that their sentences were increased on the basis of this provision, when they should not have been. I can envisage that counterproductive element. However, I do acknowledge that, as the Planning (Amendment) Bill would show, it is possible - unlike some of the other provisions that we have discussed - to draft a provision that requires the courts to have regard to this factor. We would then see what the courts do with it. 459. Mr Molloy: I can envisage this provision being used in cases, where, for example, a contractor has disposed of waste improperly and has created a major pollution problem. The cost could be calculated on the basis of what the contractor was paid for disposing of the waste. Such improper disposal is one of the major causes of pollution. 460. Mrs Harkness: Waste disposal is one area where this provision could be used. However, some of those offences would come under waste Regulations, and not necessarily pollution prevention and control (PPC) installations. 461. Mr Bell: Some PPC installations may be handling waste, but in the situation that Mr Molloy has described it is usually the case that the waste being transported never actually reaches waste disposal installations. Such cases would not be covered by the PPC Regulations. In theory, there may be some sort of a link in a limited number of cases, but it would be difficult to quantify. The improper disposal of waste is a relevant issue, although not one so directly linked to PPC. However, it could not be ruled it out as some installations may handle waste. 462. The Chairperson: Is it not better to look at something, than to look for it? If including this provision in the legislation will not hurt anyone, is it not better to consider the matter, and have the power, than to need the power, and not have it? The provision may not earn its keep, but we do not just pass legislation on the basis that it will earn its keep. To tell you the truth, there is a pile of legislation on the statute book that has not been dusted for 100 years - but it has not been removed, because it just might be needed some day. If it can be drafted, and if it will not injure the Bill, it should be included in case it is needed. 463. Mrs Harkness: I argued not only that it would not earn its keep, but that it may be counterproductive. It may cause problems, but the Committee must evaluate that. 464. Mrs Nelis: I am inclined to take the advice of the Committee's legal advisers. I accept that the Bill is regulatory, but polluters have been finding loopholes in the Regulations for years. Some form of deterrent must be built into the Bill. 465. The Chairperson: If possible, the Committee wants that point to be covered in legislation; the Assembly legal adviser says that it can be done. I do not think that it would have an adverse impact on the Bill. The Committee is working within a time limit, and we promised the Minister that we would meet the required deadline. Because of that, the drafting on outstanding issues is urgently required so that our staff can send it out to Committee members before the clause-by-clause reading next week. 466. Mrs Harkness: I wish to be clear about what is required. Are we talking about the accrual of financial benefit or other issues such as prosecution costs? 467. The Chairperson: May I have clarification on paragraph (a), which was mentioned by Mr Ford? 468. Mr Ford: We have no other option but to accept the advice that we received on paragraph (a). 469. The Chairperson: Our legal advisers focused on paragraphs (d) and (e), which relate to the causal link. 470. Mr Ford: I am concerned about paragraph (d), although I accept that the officials are meeting us halfway on paragraph (e). 471. On a practical level, some people may cause serious pollution incidents at relatively minor financial benefit to themselves. For example, in dumping a couple of tonnes of waste in a burn as opposed to a proper landfill site, a polluter might only save a few hundred pounds in gate fees, while causing tens of thousands of pounds worth of damage. If the Committee wishes to pursue that line, paragraph (d) will be more important than paragraph (e). Officials are meeting us halfway on paragraph (e); however, I am not sure that the issue of financial benefits is as important as the issue of external costs. 472. Mrs Harkness: The difficulty with what you are saying about paragraph (d) is that it impinges on the idea that courts implicitly give the matter of seriousness consideration. It involves duality. 473. Mr Ford: I accept your concerns, but there would be more practical value in pursuing paragraph (d), because the financial benefits to operators of not using a landfill site may be relatively small compared to the costs incurred by public authorities in remedying damage. 474. Mrs Harkness: That is how this situation is different from planning. 475. Mr Ford: Mr Chairperson, I am not sure whether that means that the Committee should just roll over and accept the arguments against paragraph (d) or whether we should continue to push the matter. 476. The Chairperson: We must look seriously at paragraphs (d) and (e). Our legal adviser tells us that both paragraphs are important and that there is scope for accommodation. 477. Mrs Harkness: My view is that paragraph (e) could be drafted to meet those concerns, but I would not feel free to say that legislative counsel would be satisfied that something along the lines of paragraph (d) could be done - he has serious reservations about getting into that territory. 478. Mr Simmons: Mrs Harkness and I can speak to legislative counsel to see what he can come up with; however, regardless of whether we go for (d) and (e), or (e) alone, the approval of the Secretary of State is required. 479. In putting our case to the Minister, who may refer the matter to the Secretary of State, we must reflect legislative counsel's views, including his opinion that paragraph (d) is seriously flawed. It will then be for the Minister to decide what to do; however, I believe that the Secretary of State would give heavy consideration to legislative counsel's opinion. Primarily, it is for the Minister to decide what to do. As well as putting the Committee's case, we will be duty bound to give the views of legislative counsel. 480. The Chairperson: Legislative counsel's opinion is that the Bill as it is drafted is flawed. Our legal advisers, who are also senior counsel, tell us that there is scope for doing something on (d) as well as (e). We are in the hands of lawyers who, as you know, are wonderful people. However, the good book says: "Woe onto you also, ye lawyers!" (Luke 11:46) 481. They are like doctors - some patients die. However, we have taken advice. 482. We have a time constraint, which we are trying to fulfil. The Minister can help by giving genuine consideration and importance to the views of the Committee. You must keep in contact with Committee officials and our legal advisers to see if we can come up with wording that can satisfy some of the matters that we are asking you to review urgently. We must carry out a clause-by-clause consideration next Thursday. 483. Mr Simmons: We will speak to legislative counsel, and we will pass on to the Committee as a matter of urgency anything that we can draft. However, we cannot give unqualified approval until the matter goes to the Minister and, if need be, the Secretary of State. 484. The Chairperson: Would it be helpful if legislative counsel spoke to the Assembly's legal advisers about a possible draft? If the opinion of both advisers is that it is not possible, at least the Committee will know where it stands. 485. Mr Simmons: We have been working closely with your legal advisers for the past week, and we will continue to do so. If an amendment is agreed, we will draft that to the Committee as quickly as possible. There is, however, this other loose end: it is a qualified passing, because we cannot say unequivocally that the proposal will be included in the Bill until we have the view of the Minister, who may decide to go to the Secretary of State on the issue. 486. The Chairperson: We must ensure that the Minister approves all our amendments otherwise they will not stand. 487. Mr Simmons: That is the first step in the process. We will now discuss the other amendment relating to the £20,000 to £30,000, and take what arises out of that to the Minister to seek his views on a way forward. 488. The Chairperson: If you pass on that information to us, the Committee officials will distribute it to members as quickly as possible. 489. You were also to update us on the financial security aspect. 490. Mr Bell: I want to clarify some of the comments that we made last week. We have been looking at the issue in more detail. To refresh everyone's memory, we are referring to schedule 1, paragraph 15 (1) (b), which relates to a general power to enable enforcing authorities to issue notices requiring financial security after a contravention of a permit, and pending remedial action. 491. The provision, if implemented in the Regulations, would complement Regulation 26, which allows enforcing authorities to take remedial action after a permit contravention and to recover the costs of that action from the operator. In cases where the costs are likely to be substantial, the enforcing authorities could benefit from having greater certainty that they will be able to recover those costs from the operator before committing themselves to the expenditure. 492. Last week, I said that such provisions would be relevant only in the event of a major incident, and I stand by that view. I said that I found it difficult to think of circumstances in which it would apply in Northern Ireland, but a major incident could occur. For example, a significant oil spill would require costly remedial action. 493. The difficulty arises from the complexities of the financial arrangements. They are not like insurance, because they do not deal with a risk; they deal with an event that has happened. It is difficult to define the financial security. Possibly, it would consist of some sort of bond or secure lodgement. 494. Financial security provisions are complex, and they are still evolving in several related regimes. There is a draft Directive on environmental liability, which might contain a clause relating to permit exemption. In other words, it would limit the environmental liability of operators who operated within the conditions of their permits. Sub-paragraph 15(1)(b) of schedule 1 would allow us to introduce a provision in the Regulations that would satisfy the requirements of that environmental liability Directive. However, the arrangements for financial security are not at present sufficiently developed for that regulatory power to be drafted. The power could be used in the future to implement the requirements of the environmental liability Directive. Last week we discussed whether the sub-paragraph was needed, if it was not reflected in the Regulations. The Department would rather leave it in place, because it would allow us to satisfy the requirements of the draft environmental liability Directive by amending the Regulations. I hope that that clarifies the paragraph. 495. The Chairperson: We must tease out whether it will earn its keep on the statute book. 496. Mr Simmons: To elaborate on what Mr Bell said, the environmental liability Directive, as it stands, would require any operator - carrying out any activity - to take out protective financial security. That is a massive undertaking. The UK is among several member states that are trying to deal with that by suggesting the concept of permit exemption. However, if we choose permit exemption and no financial security, we will be left with little environmental liability. Permit exemption is in the melting pot, and that sub-paragraph is designed to reflect or deflect the possible outcomes. 497. The Chairperson: Thank you for your advice and patience in taking the Committee through the material. We will go through the Bill clause by clause next week. 498. Mr Simmons: May we take the amendment on district councils as read, by putting in "representative of the interests of"? 499. The Chairperson: Yes. MINUTES OF EVIDENCE Thursday 19 September 2002 Members present: Witnesses: Mr D Bell ) Department of the Environment 500. The Chairperson: I welcome Mr David Bell, Mr Norman Simmons and Mrs Ethne Harkness from the Department of the Environment. 501. Mr Simmons, we are told that some of our progress has been halted. We have not received the proposed amendments or the necessary approval from the Minister that would allow us to carry out the clause-by-clause reading. We promised to be as helpful as possible, and we are trying to do that. We do not want any undue delay. 502. Mr Simmons: I shall begin by clarifying the current position. You will recall that in the letters sent by the Department to the Committee on 28 August and 18 September, we indicated that the Minister had approved the tabling of six amendments at Consideration Stage. Those are the six amendments that were discussed and agreed with the Committee on previous occasions. The reason that we cannot provide a ministerial letter to the Committee at this stage is that such a letter would also have to include the two further amendments, which have been discussed over the last few weeks. 503. Following last week's meeting, we worked on the Committee's suggestions and discussed them with legal advisers. On foot of that, we have put a package of proposals to the Minister. Until he gives us his decisions on it, we are not in a position to discuss the details of those amendments any further. However, we can again clarify for the Committee the thinking behind our rationale on those amendments. We hope to have that decision shortly so that a full letter from the Minister can be sent to the Committee before next week's meeting. 504. The Chairperson: We want to make progress, and we want to assure the Department, the Minister and the Assembly that we do not wish to hinder the clause-by-clause reading of the Bill. 505. Mr Simmons: We are anxious for the Minister's letter to be comprehensive and to deal with all the issues. We hope that it will be available in advance of the Committee's meeting next week. 506. The Chairperson: What do you intend to deal with this morning then? 507. Mr Simmons: We do not have much to deal with, but we are happy to again provide the Committee with clarification on our thinking behind the two amendments, if that would be helpful. 508. The Chairperson: What do you mean by "our thinking behind the two amendments"? 509. Mr Simmons: It is our thinking behind our conclusions on the two amendments - much the same as we discussed last week with the Committee. 510. The Chairperson: Is there anything else to add to what was said last week? 511. Mr Simmons: No, there is nothing. 512. Mr Ford: I assume that the officials are not stating that they are now prepared to tell us that they have recommended to the Minister that he should accept everything said by the Committee. 513. Quite properly, officials are there to advise the Minister and not to advise the Committee. I take the point that there does not seem to be much more progress that the Committee can make, despite all the Committee's efforts to comply with the timetable that we agreed. The ball does seem to rest in the Department's court and not ours at the moment. 514. Mr Simmons: Yes, I accept that. The letter from the Minister will be comprehensive, and it will deal with all the amendments, not just the six already agreed. 515. Mrs Nelis: This seems to be a considerable waste of your time, and certainly a considerable waste of Committee time. We hoped to conclude the clause-by-clause reading today, as we had considerable discussion on these two amendments last week. We hoped that the Minister would take forward your recommendations and provide us with a letter allowing us to proceed with the clause-by-clause reading. There is a timescale to this, apart from the time wastage. I find it disappointing that the Minister has not done this. 516. Mr Simmons: It is to be hoped that the Minister will respond quickly on these matters, and we can then provide the Committee with a full letter on all the amendments. To have simply provided a letter on the six amendments would probably not have progressed matters much further either. The letter from the Minister will be comprehensive, and it will deal with all eight amendments. 517. Mr Ford: The position is quite clear. The Committee has stuck to its undertaking; we have given this Bill the maximum possible priority. It appears to me that the Minister is not giving the same priority to the Bill, which he regarded as so important and urgent, as this Committee has given. I shall refrain from making any comments about what I think are the Minister's priorities. 518. The Chairperson: We have genuinely tried to be helpful in this matter from the very beginning. The urgency was expressed to us, as was the timetable. You are saying that inside the next week we will have a definitive letter from the Minister on all the issues, including the two additional amendments. Is that right? 519. Mr Simmons: Yes. 520. The Chairperson: That will then enable us to do a clause-by-clause reading and move matters along quickly. Just to prove our good faith in this matter, we are issuing to Committee members the report that has been drawn up on the issue. Rather than waiting, we are trying to move that ahead and to quickly process the matter. The Committee has made its views clear this morning, and we are sorry that there is nothing further that we can do. Thank you. MINUTES OF EVIDENCE Thursday 26 September 2002 Members present: Rev Dr William McCrea (Chairperson) Witnesses: Mr D Bell 521. The Chairperson: I welcome Mr David Bell, Mr Damian Campbell, Mrs Ethne Harkness and Mr Norman Simmons from the Department. We are about to move to the clause-by-clause consideration of the Pollution Prevention and Control Bill, and the officials are with us should any matters requiring clarification arise. 522. I believe that it would be beneficial if I were to provide a brief summary of the Committee's scrutiny of the Bill to date. The Bill was introduced to the Assembly on 17 June 2002, and following the completion of the Second Stage Reading on 25 June 2002 the Bill was referred to the Committee. Members will recall that the Minister attended the Committee meeting on 6 June 2002 to ask for the Committee's support for accelerated passage for the Bill, but the Committee rejected that. However, in a gesture of co-operation, the Committee agreed to complete the Committee Stage of the Bill by mid-September. 523. The primary purpose of the Bill is to transpose EC Directive 96/91 into Northern Ireland legislation. That was supposed to have been done by March 1999, and the EC is currently pursuing infraction proceedings through the European Court against the UK for the delay. It is regrettable that Northern Ireland is the only region in the UK not to have transposed the Directive. 524. The Committee clearly benefited from considering and responding to the consultation paper leading to the Bill, issued by the Department in 2001, as this made members aware of many potential issues and provided an informative background. 525. To many the Bill may appear as being relatively limited in its application, in that it is currently likely to only apply to around 250 installations in Northern Ireland. However, its effects are not to be underestimated, and the Committee recognised the importance of EC Directive 96/61, as it is the central piece of European legislation regulating all of industry's environmental performance by introducing an integrated permitting procedure for existing and new installations. The Bill will replace the existing legislation - the Industrial Pollution Control (Northern Ireland) Order 1997 - with a more comprehensive procedure with the aim of preventing pollution in air, land and water. 526. During our scrutiny, the Committee wrote to six key stakeholders and received three replies. The Committee consistently places great value on the views of those who will be directly affected by potential legislation, and we are grateful to those who replied. 527. The Committee also received extensive written and oral evidence from the Department's officials, and I wish place on record the Committee's thanks for that assistance. Officials are here today to deal with any queries from members, if required. 528. The Minister wrote to the Committee on 23 September 2002 to advise that he will move a number of proposed amendments, previously discussed with the Committee, at the forthcoming Consideration Stage. That letter is before members today, and it provides the wording of each proposed amendment. 529. As members are indicating that they are content with this summary, we will move to the clause-by-clause consideration. 530. Clause 1 agreed to. Clause 2 (Regulation of polluting activities) 531. The Chairperson: The proposal is that the Committee is content with clause 2, subject to the amendments proposed by the Minister in his letter to the Committee dated 23 September 2002. 532. Question, That the Committee is content with the clause, as amended, put and agreed to. 533. Clause 3 agreed to. Clause 4 (Disposal licences which expire before commencement of waste management licensing) 534. The Chairperson: The proposal is that the Committee is content with clause 4, subject to the amendments proposed by the Minister in his letter to the Committee dated 23 September 2002. 535. Question, That the Committee is content with the clause, as amended, put and agreed to. New Clause 536. The Chairperson: The Minister, in his letter of 23 September 2002, has proposed the insertion of a new clause after the existing clause 4 to be headed "Financial Assistance by the Department". The new clause, if agreed, will allow the Department to provide financial assistance to bodies to further the objectives of the waste strategy or prevention or control of environmental pollution. 537. The proposal is that the Committee is content that a new clause be inserted after clause 4, as proposed by the Minister in his letter to the Committee dated 23 September 2002. 538. Question, That the Committee is content that a new clause be inserted, put and agreed to. 539. Clauses 5 to 8 agreed to. Schedule 1 (Particular purposes for which provision may be made under section 2) 540. The Chairperson: The proposal is that the Committee is content with schedule 1, subject to the proposed amendment from the Minister in his letter to the Committee dated 23 September 2002. 541. Question, That the Committee is content with the schedule, as amended, put and agreed to. 542. Schedules 2 and 3 agreed to. 543. The Chairperson: That concludes the Committee's consideration of the Bill. A draft of the Committee's report on the Bill was provided to members, and that will be updated to reflect today's proceedings. I thank again the officials from the Department for their assistance; I trust that the amendments which we sought are helpful and will allow the Bill to proceed through the Assembly and to receive Royal Assent. Thank you. WRITTEN EVIDENCE AND CORRESPONDENCE WRITTEN EVIDENCE AND CORRESPONDENCE Annex 1 - Letter dated 25 June 2001 from the Department of the Environment Annex 2 - Letter dated 11 September 2001 from the Committee for the Environment. Annex 3 - Letter dated 10 October 2001 from the Department of the Environment. Annex 4 - Letter dated 22 November 2001 from the Committee for the Environment. Annex 5 - Letter dated 14 December 2001 from the Department of the Environment. Annex 6 - Letter dated 3 April 2002 from the Department of the Environment including - Policy Memorandum; and Summary of Consultation Responses. Annex 7 - Speaking Notes dated 25 April 2002 from Departmental Officials Annex 8 - Letter dated 8 May 2002 from the Committee for the Environment. Annex 9 - Letter dated 21 May 2002 from the Department of the Environment including - Draft Bill; and Draft Explanatory and Financial Memorandum. Annex 10 - Letter dated 22 May 2002 from the Minister of the Environment. Annex 11 - Letter dated 28 May 2002 from the Department of the Environment. Annex 12 - Letter dated 5 June 2002 from the Committee for the Environment. Annex 13 - Letter dated 7 June 2002 from the Chairperson of the Committee for the Environment. Annex 14 - Letter dated 11 June 2002 from the Minister of the Environment. Annex 15 - Letter dated 14 June 2002 from the Chairperson of the Committee for the Environment. Annex 16 - Letter dated 14 June 2002 from the Department of the Environment. Annex 17 - Letter dated 18 June 2002 from the Committee for the Environment. Annex 18 - Hansard Report dated 25 June 2002. Annex 19 - Speaking Notes dated 27 June 2002 from Departmental Officials. Annex 20 - Letter dated 1 July 2002 from the Department of the Environment. Annex 21 - Letter dated 8 July 2002 from the Committee for the Environment including - Questions to the Department. Annex 22 - Letter dated 2 July 2002 from the Council for Nature Conservation and the Countryside to the Committee of the Environment. Annex 23 - Letter dated 6 August 2002 from the Department of the Environment Annex 24 - Letter dated 19 August 2002 from the Northern Ireland Meat Exporters Association. Annex 25 - Letter dated 23 August 2002 from the Department of the Environment. Annex 26 - Letter dated 28 August 2002 from the Department of the Environment including - Explanatory Paper and proposed amendments. Annex 27 - Letter dated 3 September 2002 from the Northern Ireland Chief Environmental Health Officers Group. Annex 28 - Letter dated 6 September 2002 from the Committee for the Environment. Annex 29 - Letter dated 9 September 2002 from the Department of the Environment. Annex 30 - Letter dated 11 September 2002 from the Department of the Environment. Annex 31 - Letter dated 18 September from the Department of the Environment. ANNEX 1 LETTER FROM: 25 June 2001 Consultation Paper on Proposals for the Transposition of EC Directive 96/61/EC on Integrated Pollution Prevention and Control (the IPPC Directive) Introduction Please find enclosed 16 copies of the above paper which the Minister has authorised the Department to publish for public consultation. It is proposed to issue the paper on Friday 29 June. The purpose of the paper is to invite comments on the Department's proposals for primary and subordinate legislation to transpose the requirements of the IPPC Directive thereby ensuring that Northern Ireland meets fully its EU obligations. Key Features The primary aim of the IPPC Directive is to introduce a more integrated approach to controlling pollution from industrial sources. It is derived in large measure from the UK system of integrated pollution control which was introduced in Northern Ireland by the Industrial Pollution Control (NI) Order 1997 (the 1997 Order). The Directive contains a number of key features which must be reflected in the transposing legislation. These are:
Application in Northern Ireland It is estimated that approximately 250 installations in Northern Ireland will fall within the scope of the IPPC Directive. These are summarised in Annex B to the consultation paper and include most of the major polluting processes currently authorised under the 1997 Order. However, IPPC covers a wider range of processes than the 1997 Order. Consequently, some installations will be brought under control for the first time. Details of these are set out in paragraph 16 of the paper, but they fall within the following main groupings;
Following introduction of the legislation, all new installations falling within the scope of the Directive will require a permit before commencing operations. Existing installations will be brought within the scope of IPPC by way of a phased call-in programme ending in 2007. The provisions of the 1997 Order will be progressively disapplied. Enforcement and Cost Recovery The paper also invites comment on some broad principles which the Department proposes to adopt in relation to enforcement and cost recovery. In this regard it should be noted that the Department will be seeking views on the detail of these issues in the context of further consultation papers on the draft regulations and the cost recovery scheme. The main issues on which the Department is seeking views are; (a) a rationalisation of the arrangements under the 1997 Order and the new IPPC regime (paragraphs 27-30), (b) enforcing authorities (paragraphs 33-35) (c) arrangements for dealing with noise (paragraphs 37-42) (d) simplified permitting (paragraphs 55-57); and (e) list of statutory consultees. Timetable for Consultation The Department is requesting comments on the consultation paper by 19 October. The Department recognises that this is a relatively short timetable, taking account of the Assembly recess. However, the IPPC Directive is one of a backlog of several EU Directives which grew up under the previous administration and in respect of which Northern Ireland is now facing the real threat of infraction for non-transposition. The timetable for consultation is therefore necessary if we are to have any real prospect of introducing a Bill in the next session. I should welcome the Committee's comments on the proposals and would be happy to arrange a presentation by officials if the Committee would find it helpful. LESLEY ROONEY ANNEX 2 LETTER FROM: 11 September 2001 EC DIRECTIVE 96/61 - INTEGRATED POLLUTION PREVENTION AND CONTROL The Committee considered the Department's recent Consultation Document on the above subject at its meeting on 6 September 2001. Some areas were identified where clarification is needed before considering a formal response to the Document. (a) Late implementation The European Commission has threatened to take the UK Government to the European Court of Justice for late implementation in Northern Ireland. Implementation is currently two years overdue. Is the European Commission pursuing its action against the UK Government for the late implementation of the IPPC in Northern Ireland? What reasons can the Department offer to explain late implementation? (b) Simplified Permitting Procedure While simplified standard conditions are not referred to in legislation, enforcing authorities have the power to introduce such schemes provided they are satisfied that the conditions for the issue of permits are satisfied. Provision for "simplified standard conditions" (paragraph 55) of the consultation document and "general binding rules" (paragraph 59) have both been driven by the need to reduce the work and cost burden on regulators and operators, according to the Department. However the Department's position that simplified standard conditions may be required to help reduce costs is not fully consistent with the Consultation document statement that such conditions may simply be allowed because the Chief Inspector has reached a conclusion that there is a "limited potential for pollution." How is the Department proposing to define "limited potential for pollution"? What mechanisms will be used to restrict arbitrary decision-making by the Chief Inspector when reaching a decision to allow "simplified standard conditions"? How will public consultation measures for "simplified standard conditions" compare with those for a full permit? Does the Department accept that such a departure from the IPPC Directive presents the potential for a significant loophole in the proposed legislation even if such arrangements are temporary i.e. used during the phase out of the Integrated Pollution Control (NI) Order? (c) Best Available Techniques In the context of 'Best Available Technique', availability implies several conditions, including efficiency and economic viability. Attaching monetary values to the external costs of pollution and the benefits of pollution mitigation is still a methodological problem. Everything depends on the methodology chosen to identify external costs in the process of defining whether a technology is truly "efficient". In applying the test for "availability" of a technology or technique, what will be the Department's preferred methodology when calculating "external costs"? What capacity-building or training will the Department put in place to ensure that applicants for IPPC permits are in a position to take account of true external costs (e.g. health, environment) when conducting their cost-benefit analyses for BAT selection? (d) Environmental Value Limits Member States must define Environmental Limit Values based on Best Available Techniques. There are concerns that a reference to "local environmental conditions" may imply a right to pollute until given quality standards are reached and subsequently breached. Ideally, good quality environments should also be protected and preserved at their existing levels of conservation. The Committee would seek assurances from the Department that consistent ELV/BAT standards will be applied regardless of the found quality of the local environment. How will the Department ensure the application of best practice/best technology across the board, based on the highest standards available across the European Union using the information exchange process (see below) set up under the IPPC Directive? Information exchange There are competing approaches to the operation of the information exchange and the dissemination of good practice i.e. BAT Reference documents. Also, the absence of harmonisation of the implementation of BAT, in favour of decentralisation, will impact negatively on some European economies if low standards are used to attract inward investment. Will the Department use its BAT-Reference documents to reflect a commitment to the adoption of innovative techniques and operational standards/procedures, with selection based on qualitative criteria rather than exclusively on ELVs. Will the Department actively support the development of a harmonised process throughout the UK and press for a European harmonisation of improved standards i.e. levelling up? Public Access & Participation The IPPC represents a significant shift in responsibility to Member States and regions and provides considerable scope to determine how they will comply with the requirement to compile national inventories of permits and monitoring results. The Directive also sees the active participation of civil society, eg NGOs, in monitoring the process as a necessary element in the process. Will the Department support a UK-wide harmonisation of inventories and actively press for harmonisation of national inventories across the Community to ensure ease of comparison and transparency? Does the Department intend to initiate a process of advising public interest organisations on how to make the best use of the new information to be made available via the IPPC Directive implementation? How does the Department's plan to support capacity-building, eg among environmental NGOs, to ensure that the public interest is served by strong and capable NGOs fully engaged in monitoring the IPPC process in Northern Ireland? Environmental Management Systems There has been a difference in emphasis between the Scottish and Welsh/English approaches to implementing legislation with the Welsh/English legislation placing much more store by Environmental Management Systems (EMS). What are the Department's views on the role of EMS in raising environmental standards in the context of the IPPC in Northern Ireland? Agriculture Farmers are set to benefit from the application of "general binding rules" for certain sectors, to ensure that reduced levels of fees can be applied - intensive pig and poultry operations represent a significant proportion of the installations to be covered by the IPPC in Northern Ireland. The National Farmers Union has pointed out that Scotland's fees are half the level set for England and Wales. Does the Department intend that fees in Northern Ireland should follow the trend set in Scotland? If not, why not? An early reply would be appreciated. JIM BEATTY ANNEX 3 LETTER FROM: 10 October 2001 EU DIRECTIVE 96/61 - INTEGRATED POLLUTION PREVENTION AND CONTROL (IPPC) Thank you for your letter of 11 September 2000 seeking clarification of some points arising from the Committee's consideration of the Department's consultation paper on the implementation of the EU Directive on Integrated Pollution Prevention and Control (the Directive). I shall address these under the headings in your letter. Late implementation The effective date for transposition of the Directive in all Member States was 31 October 1999. Unfortunately, due to a lack of adequate funding under Direct Rule, this was one of a number of Directives in respect of which resources were not made available to carry out necessary work on transposition. As a result, the United Kingdom has been referred to the European Court of Justice for non-transposition of the Directive in Northern Ireland. Since devolution, matters have improved considerably. The Department received significant additional resources in last year's Budget to deal with the backlog in EU Directives of which this is one. This enabled publication of a consultation paper in June this year. Following consideration of the responses to the paper, policy proposals will be finalised for consideration by the Minister and the Executive Committee. Subject to this, the next step will be to prepare and introduce a Bill into the Assembly. Shortly thereafter, a set of draft regulations setting out the regulatory arrangements will be published for consultation. Depending on progress with the legislative processes, the Department has set a target of autumn 2003 at the latest for all the legislation to become operational. The Minister believes that in this regard the devolved administration can take credit for what it has done and that responsibility for any consequences of non-transposition falls to the previous direct rule administration. Nevertheless, the financial risks from successful infraction proceedings are significant and Northern Ireland's interests will best be protected by the earliest practicable transposition of this and other outstanding Directives. Simplified Permitting Procedure The detail of the operational arrangements for IPPC will be set out fully in regulations which, as indicated above, will be subject to full consultation. In carrying out their functions under the regulations, the Department will expect enforcing authorities, i.e. the Chief Inspector and district councils, to ensure that the regulatory effort needed to determine an application and any permit conditions should be appropriate for the complexity of an installation and its environmental effects. However, in those process sectors where there is a large degree of uniformity, there may be merit in developing standard permit conditions or general binding rules. Such arrangements are, in fact, permissible under the terms of the Directive and there is no reason to believe that they will result in a reduction in environmental standards. Under the current industrial pollution control regime established by the Industrial Pollution Control (NI) Order1997, certain processes are exempt from authorisation on the basis that their operation is unlikely to result in the release into the environment of any prescribed substance except in a quantity which is so trivial that it is incapable of causing harm or its capacity to cause harm is insignificant. The IPPC Directive makes no provision for the exemption of these so called "triviality"cases but it may be appropriate for an enforcing authority to employ simplified permitting conditions provided that it is content that all the conditions for permitting are satisfied. These conditions will be set down in the regulations and will be required to be taken into account by enforcing authorities. Operators of such installations would be required to make an application for a permit and the application would be subject to the full public consultation process including the recording of particulars of the application in a public register as well as particulars of any permit issued by the enforcing authority. Best Available Techniques (BAT) and Information exchange The Department acknowledges that assigning monetary values to the external costs of pollution is extremely difficult and has proved controversial in the past. This means that the role of such valuation in BAT determination is necessarily limited at present. In an attempt to harmonise the arrangements and ensure uniformity across all Member States, the European IPPC Bureau in Seville is producing sectoral BAT Reference (BREF) notes which identify the best techniques for prevention and minimisation of pollution taking sector affordability into account. These notes identify a range of operational techniques in addition to achievable release levels and are then used to inform national technical guidance. In the UK, relevant agencies and industry sectors are involved in the review of technical guidance, which will be adopted across all regions ensuring a consistent approach. The national guidance will in turn inform the decision-making process for individual permits which will include emission limit values when appropriate. Environmental Limit Values A key principle of the Directive is that BAT should be used to prevent pollution and to minimise the impact of emissions. This will be reflected in the inclusion of emission limit values and/or other requirements in permits. Use of BAT is designed to maximise protection of the environment rather than 'working up to' a given environmental quality standard. However, in cases where an environmental quality standard is threatened, Article 10 of the Directive requires additional measures to be taken, which, in other circumstances, might be considered excessively costly. Information Exchange and Public Access and Participation As indicated above, work is ongoing to ensure the consistent and uniform application of BAT across all Member States. This should help to avoid any economic difficulties as outlined in your letter. Under the current pollution control regime, the Chief Inspector requires all processes subject to integrated pollution control to report against the same list of substances as similar processes in England and Wales. The proposed European Pollutant Emissions Register (EPER) will contain a standard list of substances which is much smaller but which will, nonetheless, provide a mechanism for monitoring and harmonisation across all Member States. In addition, the Department will consider the most effective way to ensure that reporting of releases is carried out in a transparent manner within resource constraints and will be discussing the matter with other UK regions to explore issues of consistency. In line with the requirements of the Directive, the Department will make arrangements to ensure that information on the implementation of IPPC will be readily available to the public. However, it will be up to individual organisations to determine how to make use of the information. Environmental Management Systems It will be necessary for process operators to have some sort of management system in order to deliver the requirements of an IPPC permit. For example, they will need to demonstrate that environmental risks have been assessed, that staff have been properly trained, that systems are in place to ensure adequate maintenance and that there are systems for dealing with complaints etc. Although it will not be mandatory for management systems to be certified for a permit to be granted, having a certified system could provide a demonstration that there is a degree of discipline in managing the system. The requirements for management systems are set out in technical guidance, which will be common across all UK regions. Agriculture The relevant Agencies in Great Britain have made interim charging schemes, which specify fees and charges for the permitting of installations under the IPPC regime. However, scrutiny of these schemes would not support the assertion by the National Farmers Union that the level of fees for the agricultural sector in Scotland is half the level of that in England and Wales. Indeed, the charges are very similar. As indicated in paragraph 76 of the consultation paper, a proposed level of fees and charges to be applied in Northern Ireland will be addressed in a separate consultation paper to be published along with, or shortly after, the regulations. The charges will be based on full cost recovery in line with the "polluter pays" principle. JENNIFER McCAY ANNEX 4 LETTER FROM: 22 November 2001 EC DIRECTIVE 96/61 ON INTEGRATED POLLUTION PREVENTION AND CONTROL - TRANSPOSITION IN NORTHERN IRELAND The Committee discussed the Department's Consultation Paper on the above at its meeting on 22 November 2001. The following comments were agreed:- (a) The Committee has serious concerns about the Department's proposed provision for a "simplified permitting procedure" where it is deemed that installations are likely to give rise to trivial environmental impacts. The Members note that Annex I of the Directive provides an exhaustive list of "Categories of industrial activities referred to in Article 1." The purpose of this Directive is to achieve integrated prevention and control of pollution arising from the activities listed in Annex I without exception and the Directive does not appear to provide appropriate flexibility for a simplified procedure, using standard permit conditions. Therefore, the Committee is concerned that the transposition proposal for a simplified permitting procedure is not strictly in line with the text or the intention of the Directive. Accordingly, The Department, as part of its presentation to the Committee today, has agreed to confirm for the Committee that the European Commission has given final clearance to England and Wales (and, by inference, Northern Ireland) for their proposal to include a "simplified permitting procedure" in its transposition of the IPPC Directive. (b) It would be helpful if the Department provided some examples of industries or processes that might avail of a "simplified permitting procedure". (c) Should the Department not give an absolute assurance that a Permit, issued under the "simplified permitting procedure", would be in full compliance with Article 6 and Article 9 requirements? (d) The preceding points would suggest that an assurance is needed that, in the event of legislation enshrining the simplified permitting procedure, the Department will not be exposed to successful legal challenges (from industry or individuals) for non-implementation of any part of Article 6 and/or Article 9. (e) The Environment Committee is concerned about the Department's interpretation of the IPPC Directive Article 3, on the return of operation sites to a "satisfactory state" and the Department's interpretation of "satisfactory state". The Committee would insist that the Department must clarify as to whether this is:-
It is hoped that these comments are considered constructive. The Committee would like to know the outcome of the Consultation exercise, in general terms, and the Department's proposals for the way forward. JIM BEATTY ANNEX 5 LETTER FROM: 14 December 2001 EC DIRECTIVE 96/61 ON INTEGRATED POLLUTION PREVENTION AND CONTROL - TRANSPOSITION IN NORTHERN IRELAND Thank you for your letter of 22 November 2001 highlighting the Committee's comments following its further consideration of the Department's consultation paper on the arrangements for the transposition of the EU Directive on Integrated Pollution Prevention and Control. The Committee expressed concerns on 2 issues; the concept of "simplified permitting" and the Department's interpretation of Article 3 of the Directive which requires measures to be taken to restore operation sites to a satisfactory state. The Committee also asked for an assurance that the Department's proposals for "simplified permitting" would be acceptable to the Commission. Following their attendance at the Committee on 22 November, officials have been in contact with their counterparts in the UK Government and have been assured that there has been no expression of concern from the Commission about the provisions of the GB Regulations. which were notified to it some time ago. The principles and procedures to be adopted in the NI Regulations will follow closely those in the GB legislation and any operational systems which the Department may adopt will, of course, comply fully with the requirements of the Regulations and therefore the Directive. Simplified Permitting This concept is set out in paragraphs 55-57 of the Department's consultation paper and has two aspects. Annex 1 to the Directive sets out a comprehensive list of industrial activities which will be subject to its requirements. All such activities, without exception, will be required to be permitted and to meet the permit conditions set out in Article 9. However, Article 9(8) allows Member States to "prescribe certain requirements for certain categories of installations in general binding rules instead of including them in individual permit conditions, provided that an integrated approach and an equivalent high level of environmental protection as a whole are ensured". This concept of general binding rules will be provided for in the Regulations and is totally in line with all the requirements of the Directive. In GB consideration is being given as to how this concept might be applied through the establishment of sector-based "standard rules". Such an approach would of course have to be consistent with the requirements of the Regulations and hence the Directive. This approach would mean that if an applicant for a permit in a sector covered by such rules could show that the nature and operation of the installation conforms to those rules, the administrative process associated with the permitting process could be reduced while ensuring that the environmental standards remained in line with the requirements of the Directive. To date the only example of an industry sector in Great Britain which might be considered for a "standard rules" approach is that relating to intensive livestock although the approach may be extended to other sectors in due course. The second aspect of "simplified permitting" is set out in paragraph 55 of the Department's consultation paper. This would apply in cases where emissions from an installation are so trivial that the capacity to cause harm is insignificant. Such cases would, of course, still come within the scope of the Directive and would therefore be subject to all its requirements in terms of conditions to be included in permits. In practice this would mean that consideration of any conditions to be included under the Regulations in a permit issued for any case in this category would be on the same basis as any application. However, because the capacity of the installations in this category to cause pollution would be less it is likely that the conditions to be included in permits would not be as numerous or as complex as in other cases. This should result in a lessening of the regulatory effort required. This reduced requirement is likely to be reflected in the charging scheme as is already the case in Great Britain. Site Restoration The Committee also expressed concern about the Department's interpretation of the concept of "satisfactory state" referred to in Article 3 of the Directive. Article 3 deals with the obligations of site operators and requires, inter alia, that " the necessary measures are taken upon definitive cessation of activities to avoid any pollution risk and return the site of operation to a satisfactory state." The term is not defined. In paragraph 45 of its consultation paper the Department indicated that it would interpret this to mean that a site should be restored to the condition it was in prior to the grant of a permit for the authorisation. This approach is consistent with the "polluter pays" principle and will mean that a site operator will be responsible only for the pollution caused as a result of the operation of the installation which is the subject of the permit. This is the same position as already reflected in the Great Britain Regulations. Nonetheless, the Department has noted the Committee's concerns on this point and will take these into account when considering the responses to the consultation paper. Once it has completed its consideration of the responses to the consultation paper, the Department will inform the Committee of the outcome and its proposals for the way forward. EILEEN DOWD ANNEX 6 LETTER FROM: 3 April 2002 POLLUTION PREVENTION AND CONTROL BILL Mr Nesbitt wrote to the Chairman of the Committee on 20 March on the subject of Departmental legislation required to comply with EU Directives. In that letter he suggested some practical suggestions, in relation to the forthcoming IPPC, Air Quality and ASSI Bills, for co-operation between the Department and the Committee. These were designed to process the legislation as quickly as possible thereby reducing the risk of infraction fines. These suggestions were developed further during Mr Nebitt's presentation to the Committee on 21 March when it was agreed that the Committee would be provided with the Policy Memorandum and schedule of consultation responses in parallel with formal submission to the Executive for approval. Mr Nesbitt has now written to the Executive seeking approval by written procedure to proceeding with the IPPC Bill. I enclose a copy of the Memorandum for the information of the Committee. This includes, as Annex B, a schedule of the Department's responses to the issues raised during consultation Subject to approval of the Memorandum by the Executive, officials will now proceed with work leading towards introduction of the Bill. In the meantime, if there are any points arising from the Memorandum or schedule of responses which the Committee would like clarified or would like to discuss further, officials would be happy to do so. JENNIFER McCAY
POLICY MEMORANDUM INTRODUCTION 1. This Policy Memorandum outlines the background to the need for the Bill and the policy objectives that it aims to address. It discusses the consultative process undertaken, the cost implications and its impact on equality of opportunity and human rights issues. It also addresses North/South, East/West relations and EU issues. BACKGROUND 2. The European Council Directive 96/61/EC concerning Integrated Pollution Prevention and Control (the IPPC Directive) was adopted in September 1996 and Member States were required to transpose its requirements into national law by 31 October 1999. Its purpose is to provide a framework to achieve a high level of protection of the environment through the prevention or reduction of emissions to air, water and land. 3. The transposing legislation to meet this requirement has been enacted in England, Scotland and Wales. However, due to a lack of resources under Direct Rule, there has been a delay in enacting the equivalent legislation in Northern Ireland. As a result the United Kingdom has been referred to the European Court of Justice. 4. Transposition of the Directive's requirements will require both primary and subordinate legislation. The aim is to have a Bill ready for introduction to the Assembly shortly after the Easter recess with consultation on the subordinate legislation following shortly thereafter. Subject to timing and approval by the Assembly, it is anticipated that the legislation will become fully operative by summer 2003. CURRENT POSITION 5. At present, industrial pollution control in Northern Ireland is governed by the Industrial Pollution Control (Northern Ireland) Order 1997 (the 1997 Order) which provides for a 3-tier approach. Processes with the greatest potential to cause pollution (Part A processes) are subject to a system of integrated pollution control by a Chief Inspector (a separate statutory appointment located within the Department's Environment and Heritage Service). An integrated approach means that the capacity of a process to pollute air, water and land is taken into account. Processes with less pollution potential (Part B and Part C processes) are subject to a system of air pollution control only. Part B processes are regulated by the Chief Inspector and Part C processes by district councils. KEY FEATURES 6. A summary of the main provisions of the Bill is attached at Annex A. The Bill will share a number of features with the current arrangements on industrial pollution control set out in the 1997 Order. In particular, it will retain the regulatory structures of that Order with the Chief Inspector assuming responsibility for regulation as Part A activities of those installations listed in Annex 1 to the IPPC Directive However, there will also be a number of new features to reflect the specific requirements of the IPPC Directive; viz.,
7. In addition to providing the enabling powers to regulate the installations covered by the IPPC Directive, the Bill will go further and provide for the repeal and re-enactment of the air pollution control provisions of the 1997 Order thereby avoiding the need for two separate pieces of legislation on industrial pollution control. CONSULTATION PROCESS 8. The Department issued an initial consultation paper on its proposals in June 2001. There was also full consultation with the Environment Committee. A summary of the responses is attached at Annex B. A total of 30 responses were received. Of these, the majority welcomed the proposals and only 16 responses made significant comments. Of these, I am proposing to meet 1 response through a change to the legislation. Of the remaining 15 responses, 7 can be met by clarification of the proposals without the need for any change and I am proposing to reject the remaining 8. Of these, 3 are outside the scope of the legislation, 1 would be clear breach of the Directive and 4 are to be rejected on policy grounds. FURTHER CONSULTATION 9. The Department will be issuing later this year further consultation papers on the detail of the proposed regulations and the charging schemes. FINANCIAL EFFECTS OF THE BILL 10. The regulatory structures already in place under the 1997 Order will also be used to implement the new arrangements. However, there will be some financial implications arising, in the main, from an extension of the installations to be regulated by the Chief Inspector. 11. In line with the "polluter pays" principle the Bill will provide the enabling powers for the regulatory costs of enforcing authorities to be met through charging schemes designed to ensure full cost recovery. REGULATORY IMPACT ASSESSMENT 12. The legislation will have an impact upon industry. The Department is currently preparing a Regulatory Impact Assessment for publication later this year along with the consultation paper on the proposed regulations. EQUALITY OF OPPORTUNITY 13. The Department has carried out an initial screening process which has confirmed that the proposals do not have any impact on equality of opportunity. It will not be necessary, therefore, to carry out a full Equality Impact Assessment. HUMAN RIGHTS 14. The legislation will impact upon human rights in a number of ways i.e.:- (a) by providing enforcing authorities with powers to determine the systems by which operators will carry out their operations; (b) by setting standards for the control of emissions from installations; (c) by providing for powers of entry and inspection; (d) by providing enforcing authorities with powers to stop operators carrying out their operations if found to be in breach of the proposed legislation. 15. The Department has concluded, however, that the inclusion of such provisions does not infringe the Convention on Human Rights because the fundamental objective of the legislation is to protect the environment as a whole for the benefit of all the citizens of Northern Ireland. 16. The offences, penalties and appeal mechanisms to be created under the legislation will comply with human rights requirements of fairness and appropriateness. The provisions relating to the powers of entry are also considered proportionate. 17. The Department consulted the Commissions for Equality and Human Rights about the proposals but no comments were received. EU IMPLICATIONS 18. The legislation will be consistent with and help to meet the UK's EU obligations in relation to the protection of the environment as a whole and to its specific obligation to transpose EC Directive 96/61/EC concerning Integrated Pollution Prevention and Control. IMPACT ON TARGETING SOCIAL NEED 19. There will be no impact in terms of targeting social need. IMPACT ON RELATIONS, CO-OPERATION OR COMMON ACTION ON A NORTH/SOUTH OR EAST/WEST BASIS 20. The Republic of Ireland (ROI) has in place similar legislation. Under the terms of the Directive, both ROI and Northern Ireland are required to consult where an application in either country may have a transboundary effect on the other. The relevant provisions will be contained in the proposed regulations to be published for consultation later this year. 21. From an East / West perspective this proposed legislation will bring Northern Ireland into step with the rest of the UK and will therefore enhance the overall protection of the environment. CREATION OF OFFENCES 22. The Bill will make provision for new offences, the creation of which is a reserved matter. The consent of the Secretary of State under section 10(3) (b) of the Northern Ireland Act 1998 will be required. 23. The contents of this Memorandum have been seen and agreed by all members of the Executive. ANNEX A PROPOSED POLLUTION PREVENTION AND CONTROL BILL Summary of Provisions The proposed Bill and regulations to be made under it would:
ANNEX B PROPOSED POLLUTION PREVENTION AND CONTROL BILL
ANNEX 7 SPEAKING NOTES FROM: INTRODUCTION
BACKGROUND
POLICY MEMORANDUM
THE BILL
CONSULTATION
RESPONSES ACCEPTED
RESPONSES REJECTED
1. That District Councils should assume responsibility for regulation of all installations subject to air pollution control only
2. That lower thresholds should be set for agricultural installations
3. That the Council for Nature Conservation and the Countryside (CNCC) should be appointed as a statutory consultee
Officials will, however, agree a set of administrative guidelines with CNCC to ensure that it is consulted about relevant applications. 4. That the Department of Enterprise, Trade and Investment should be appointed as a statutory consultee
ANNEX 8 LETTER FROM: 8 May 2002 Officials from the Department gave an informative presentation on the proposed Bill to the Committee on 25 April 2002 and they subsequently answered questions from the Members. At the end of the session, it was agreed that outstanding questions and concerns would be forwarded for a written response. Officials also undertook to respond to the Committee on some of the issues raised during the meeting, for example, exceptional circumstances for financial support for the farming industry. The Committee would be interested to know what targets/indicators the Department proposes to use to measure the broad impact of the transposition of the Directive within this Bill, for example, pollution prevention, waste recovery and reduction and energy efficiency. There is some concern that the Directive's reference to 'local environmental conditions' may be viewed as an opportunity to link the choice of pollution prevention technologies to the existing capacity of local environments to absorb pollutants, that is, to pollute until given Quality Values are breached. What assurances can the Department offer that this will not be the case in NI? Article 9(8) of the Directive allows Member States some discretion in the setting of emission limit values. What criteria will the Department use in setting these levels? The Committee would like a brief overview of the roles of the Chief Inspector and Local Councils within the new regime. In particular, who will be responsible for the selection of 'Best Available Techniques'? The Committee has noted that the English/Welsh legislation places much more emphasis on Environmental Management Systems. What are the Department's views on the role of these within NI? Finally, while the Committee certainly welcomed early sight of the papers to date, it would appreciate a draft text of the proposed Bill as soon as possible. When will this be available and what is the Department's proposed timetable for this Bill, for example, when will it be introduced to the Assembly? JIM BEATTY ANNEX 9 LETTER FROM: 21 May 2002 Following a presentation by officials on the Policy Memorandum on 25 April, the Committee has requested clarification on a number of points. A reply to these will issue shortly. The purpose of this letter is to let you know that Mr Nesbitt wrote to the Executive on 16 May seeking agreement to proceed with introduction of the Pollution Prevention and Control Bill. Subject to the Executive's agreement, the Bill is scheduled for introduction on 10 June with second reading on 18 June. These dates may, however, be subject to change. In line with the agreement reached between the Minister and the Committee at their meeting on 21 March, I enclose for the information of the Committee a copy of the draft Bill together with the Explanatory and Financial Memorandum. The proposed Bill has three main purposes. Firstly, it will provide a broad statutory framework to enable transposition of EC Directive 96/61 on Integrated Pollution Prevention and Control (IPPC). Secondly, it will allow for the progressive replacement of the current air pollution control regime provided for in the Industrial Pollution Control (NI) Order 1997 thereby ensuring that both IPPC and air pollution control are regulated under a single piece of legislation. Thirdly, it will provide the Department with enabling powers to transpose by regulations other relevant Directives on pollution control. The detail of the new regulatory controls on IPPC will be set out in a set of draft regulations. The Department hopes to publish these for consultation at the end of June. Many of the Committee's comments to date on the proposals have been concerned with matters more likely to be covered in the regulations so it is hoped that publication of the draft regulations will also facilitate consideration of the provisions of the Bill. The Committee will, of course, be consulted fully on the draft regulations. I trust that this information will be of help to the Committee. JENNIFER McCAY Pollution Prevention and Control Bill [12/04/02 16:54:19] CONTENTS
Regulation of polluting activities 1. Purpose of section 2 [j1] 2. Regulation of polluting activities [j2] Waste management: site licences 3. New transitional provisions for disposal licences treated as site licences [j4a] 4. Disposal licences which expire before commencement of waste management licensing [j4] Supplementary 5. Interpretation [j5] 6. Amendments and repeals [j6] 7. Commencement [j8] 8. Short title [j7] SCHEDULES:
A B I L L TO Make provision for implementing Council Directive 96/61/EC and for otherwise preventing and controlling pollution; to amend the transitional provisions in relation to waste management licences in Article 47 of the Waste and Contaminated Land (Northern Ireland) Order 1997; to make provision about certain expiring disposal licences; and for connected purposes BE IT ENACTED by being passed by the Northern Ireland Assembly and assented to by Her Majesty as follows: Regulation of polluting activities 1. The purpose of section 2 is to enable provision to be made for or in connection with¾ (a) implementing Council Directive 96/61/EC concerning integrated pollution prevention and control; (b) regulating, otherwise than in pursuance of that Directive, activities which are capable of causing any environmental pollution; (c) otherwise preventing or controlling emissions capable of causing any such pollution. Regulation of polluting activities [j2] 2.¾ (1) The Department may by regulations make provision for any of the purposes listed in Part I of Schedule 1; and Part II of that Schedule has effect for supplementing Part I. (2) In accordance with section 1, the provision which may be made by regulations under this section is provision for or in connection with any of the matters mentioned in paragraphs (a) to (c) of that section. (3) Regulations under this section may contain such consequential, incidental, supplementary, transitional or saving provisions (including provisions amending, repealing or revoking statutory provisions) as the Department considers appropriate. (4) Before making any regulations under this section, the Department shall consult¾ (a) such bodies or persons appearing to it to be representative of the interests of district councils, industry, agriculture and small businesses as it may consider appropriate; and (b) such other bodies or persons as it may consider appropriate. (5) Consultation undertaken before the passing of this Act shall constitute as effective compliance with subsection (4) as if undertaken after that passing. (6) Regulations under this section, if made without a draft having been laid before and approved by a resolution of, the Assembly, shall be subject to negative resolution. (7) No regulations to which this subsection applies shall be made unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly. (8) Subsection (7) applies to¾ (a) the first regulations to be made under this section; (b) regulations under this section containing any provision which creates an offence or increases a penalty for an existing offence; (c) regulations under this section containing any provision which amends or repeals any Northern Ireland legislation (within the meaning of section 24(5) of the Interpretation Act 1978 (c.33)). Waste management: site licences New transitional provisions for disposal licences treated as site licences [j4a] 3.¾ (1) Article 47 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19) (transitional provisions in connection with the commencement of Part II of that Order) shall be amended as follows. (2) In paragraph (2) for the words "for a period of 3 years from the relevant appointed day for licences" there shall be substituted the words "in accordance with Article 6(10)". (3) In paragraph (3) for the words "for a period of 3 years from the relevant appointed day for resolutions" there shall be substituted the words "in accordance with Article 6(10)". Disposal licences which expire before commencement of waste management licensing [j4] 4.¾ (1) This section applies where¾ (a) a disposal licence under Article 7 of the 1978 Order expires at a time ("the time of expiry") falling after the relevant day but before the appointed day (so that it is not converted into a site licence by Article 47 of the 1997 Order); and (b) relevant activities have taken place at a time falling after the time of expiry (whether before or after the passing of this Act). (2) The licence shall (subject to subsection (5)) for all purposes be deemed¾ (a) not to have expired; and (b) to have been subsisting on the appointed day and (accordingly) to have become on that day a site licence by virtue of Article 47(2) of the 1997 Order. (3) The terms and conditions of the licence as continued in force by subsection (2) shall, except so far as providing for the expiry of the licence and subject to subsection (4)(b) and (c), be such as were in force immediately before the time of expiry (unless and until varied under Part II of the 1997 Order). (4) Without prejudice to the generality of subsection) (2)¾ (a) activities carried out during the interim period which (by virtue of subsection (2)) become authorised by the licence shall be treated as authorised at the time they were carried out (even though at that time their being carried out amounted to a contravention of Article 5(1) of the 1978 Order); (b) anything done in relation to the licence before the time of expiry but purporting to take effect after that time (such as the serving of a notice under Article 9 of the 1978 Order, specifying a time falling during or after the interim period) shall be treated as having had (or having) effect as if the licence had not in fact expired; (c) anything which during the interim period purported to be done in relation to the licence (such as a modification, revocation, transfer or cancellation of the licence, the exercise of functions under Article 11 of the 1978 Order or the bringing or determination of an appeal) shall be treated as having had effect as if the licence had then been in force; (d) any fees which (by virtue of subsection (2)) are treated as having become payable before the appointed day shall be taken to have become payable at the time they would have become payable had the licence not in fact expired; and (e) the holder of the licence shall be treated as having been an authorised person for the purposes of Article 5(1)(c) of the 1997 Order during the interim period (or so much thereof as falls after the commencement of Article 5(1)(c)). (5) A person shall not be guilty of an offence under Article 5(2) or 8(3) of the 1978 Order as a result of anything done or omitted to be done during the interim period becoming (by virtue of subsection (3)) a contravention of any condition of the licence. (6) Nothing in this section affects any criminal proceedings which have been concluded before the coming into operation of this section. (7) The district council by which a licence affected by this section was issued shall notify the holder of the licence¾ (a) of the fact that the licence is so affected; and (b) of how it is so affected. (8) For the purposes of this section "relevant activities", in relation to a licence, are¾ (a) any activities authorised by the licence or, in the case of an expired licence, any which would have been authorised by it had it not expired, and (b) any precautions or works required by the licence to be taken or carried out in connection with or in consequence of those activities or, in the case of an expired licence, any which would have been so required had the licence not expired. (9) In this section¾ "the 1978 Order" means the Pollution Control and Local Government (Northern Ireland) Order 1978 (NI 19); "the 1997 Order" means the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19); "the appointed day", in relation to a licence, means the day which in relation to that licence is (or would have been if the licence had not previously expired) the relevant appointed day for licences (within the meaning of Article 47 of the 1997 Order); "the interim period", in connection with a licence in relation to which this section applies, means the period beginning with the time of expiry and ending immediately before the appointed day; "the relevant day" means the day falling one year before the day on which this Act is passed; "site licence" has the same meaning as in the 1997 Order. 5.¾ (1) In this Act¾ "activities" means activities of any nature, whether¾ (a) industrial or commercial or other activities, or (b) carried on on particular premises or otherwise, and includes (with or without other activities) the depositing, keeping or disposal of any substance; "environmental pollution" means pollution of the air, water or land which may give rise to any harm; and for the purposes of this definition (but without prejudice to its generality)¾ (a) "pollution" includes pollution caused by noise, heat or vibrations or any other kind of release of energy, and (b) "air" includes air within buildings and air within other natural or man-made structures above or below ground. (2) In the definition of "environmental pollution" in subsection (1), "harm" means¾ (a) harm to the health of human beings or other living organisms; (b) harm to the quality of the environment, including¾ (i) harm to the quality of the environment taken as a whole, (ii) harm to the quality of the air, water or land, and (iii) other impairment of, or interference with, the ecological systems of which any living organisms form part; (c) offence to the senses of human beings; (d) damage to property; or (e) impairment of, or interference with, amenities or other legitimate uses of the environment (expressions used in this paragraph having the same meaning as in Council Directive 96/61/EC). (3) In this Act¾ "the Department" means the Department of the Environment; "modifications" includes additions, alterations and omissions; "statutory provision" has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954 (c.33). 6.¾ (1) The consequential and minor amendments specified in Schedule 2 shall have effect. (2) The statutory provisions specified in Schedule 3 are repealed to the extent specified in the second column of that Schedule. 7.¾ (1) Sections 4 and 6 and Schedules 2 and 3 shall not come into operation until such day or days as the Department may by order appoint. (2) An order under subsection (1) may contain such consequential, incidental, supplementary, transitional or saving provisions (including provisions modifying statutory provisions) as the Department considers appropriate. 8. This Act may be cited as the Pollution Prevention and Control Act (Northern Ireland) 2002. SCHEDULES SCHEDULE 1 Particular purposes for which provision may be made under section 2 [S1] Part I LIST OF PURPOSES Preliminary Section 2 1.¾ (1) Establishing standards, objectives or requirements in relation to emissions within the meaning of the regulations. (2) Authorising the making of plans for¾ (a) the setting of overall limits, (b) the allocation of quotas, or (c) the progressive improvement of standards or objectives, relating to such emissions. (3) Authorising the making of schemes for the trading or other transfer of quotas so allocated. 2.¾ (1) Conferring functions on the Department or the Secretary of State and determining the other bodies or persons (in this Schedule referred to as "enforcing authorities") by which functions conferred by the regulations¾ (a) in relation to permits under the regulations, or (b) otherwise for or in connection with the prevention or control of environmental pollution, are to be exercisable. (2) Specifying any purposes for which any such functions are to be exercisable by enforcing authorities. 3. Enabling the Department or the Secretary of State to give directions which enforcing authorities are to comply with, or guidance which enforcing authorities are to have regard to, in exercising functions under the regulations, including¾ (a) directions providing for any functions exercisable by one enforcing authority to be instead exercisable by another, or by the Department or Secretary of State; (b) directions given for the purposes of the implementation of any obligations of the United Kingdom under the Community Treaties or under any international agreement to which the United Kingdom is a party; (c) directions relating to the exercise of any function in a particular case or class of case. Permits 4. Prohibiting persons from operating any installation or plant of any specified description, or otherwise carrying on any activities of any specified description, except¾ (a) under a permit in force under the regulations, and (b) in accordance with any conditions to which the permit is subject. 5. Specifying restrictions or other requirements in connection with the grant of permits (including provisions for restricting the grant of permits to those who are fit and proper persons within the meaning of the regulations); and otherwise regulating the procedure to be followed in connection with the grant of permits. 6.¾ (1) Prescribing the contents of permits. (2) Authorising permits to be granted subject to conditions imposed by enforcing authorities. (3) Securing that permits have effect subject to¾ (a) conditions specified in the regulations; or (b) rules of general application specified in or made under the regulations. 7.¾ (1) Requiring permits or the conditions to which permits are subject to be reviewed by enforcing authorities (whether periodically or in any specified circumstances). (2) Authorising or requiring the variation of permits or such conditions by enforcing authorities (whether on applications made by holders of permits or otherwise). (3) Regulating the making of changes¾ (a) in the operation of the installations or plant to which permits relate, or (b) in the case of permits for the carrying on of activities otherwise than in the course of operating any installation or plant, in the carrying on of the activities. 8.¾ (1) Regulating the transfer or surrender of permits. (2) Authorising the revocation of permits by enforcing authorities. (3) Authorising the imposition by enforcing authorities of requirements with respect to the taking of preventive or remedial action (by holders of permits or other persons) in connection with the surrender or revocation of permits. 9. Authorising the Department to make schemes for the charging by enforcing authorities of fees or other charges in respect of, or in respect of an application for¾ (a) the grant of a permit, (b) the variation of a permit or the conditions to which it is subject, or (c) the transfer or surrender of a permit, or in respect of the subsistence of a permit. 10. Authorising, or authorising the Department to make schemes for, the charging by the Department or public bodies of fees or other charges in respect of¾ (a) the testing or analysis of substances, (b) the validating of, or of the results of, any testing or analysis of substances, or (c) assessing how the environment might be affected by the release into it of any substances, in cases where the testing, analysis, validating or assessing is in any way in anticipation of, or otherwise in connection with, the making of applications for the grant of permits or is carried out in pursuance of conditions to which any permit is subject. Information, publicity and consultation 11. Enabling persons of any specified description (whether or not they are holders of permits) to be required¾ (a) to compile information¾ (i) on emissions within the meaning of the regulations; (ii) on energy consumption and on the efficiency with which energy is used; (iii) on waste within the meaning of the regulations and on the destinations of such waste; (b) to provide such information in such manner as is specified in the regulations. 12. Securing¾ (a) that publicity is given to specified matters; (b) that enforcing authorities maintain registers of specified matters (but excepting information which under the regulations is, or is determined to be, commercially confidential and subject to any other exceptions specified in the regulations) which are open to public inspection; (c) that copies of entries in such registers, or of specified documents, may be obtained by members of the public. 13. Requiring or authorising enforcing authorities to carry out consultation in connection with the exercise of any of their functions; and providing for them to take into account representations made to them on consultation. Enforcement and offences 14.¾ (1) Conferring on enforcing authorities functions with respect to the monitoring and inspection of the carrying on of activities to which permits relate, including¾ (a) power to take samples or to make copies of information; (b) power to arrange for preventive or remedial action to be taken at the expense of holders of permits. (2) Authorising the appointment of suitable persons to exercise any such functions and conferring powers (such as those specified in Article 17(3) of the Industrial Pollution Control (Northern Ireland) Order 1997 (NI 18)) on persons so appointed. 15.¾ (1) Authorising enforcing authorities to serve on holders of permits¾ (a) notices requiring them to take remedial action in respect of contraventions, actual or potential, of conditions to which their permits are subject; (b) notices requiring them to provide such financial security as the enforcing authorities serving the notices consider appropriate pending the taking of remedial action in respect of any such contraventions; (c) notices requiring them to take steps to remove imminent risks of serious environmental pollution (whether or not arising from any such contraventions). (2) Providing for the enforcement of such notices by proceedings in the High Court. 16. Authorising enforcing authorities to suspend the operation of permits so far as having effect to authorise the carrying on of activities to which they relate. 17. The creation of offences and dealing with matters relating to such offences, including¾ (a) the provision of defences; and (b) evidentiary matters. 18. Enabling, where a person has been convicted of an offence under the regulations¾ (a) a court dealing with that person for the offence to order the taking of remedial action (in addition to or instead of imposing any punishment); or (b) an enforcing authority to arrange for such action to be taken at that person's expense. Appeals 19. Conferring rights of appeal in respect of decisions made, notices served or other things done (or omitted to be done) under the regulations; and making provision for (or for the determination of) matters relating to the making, considering and determination of such appeals (including provision for or in connection with the holding of inquiries or hearings). General 20.¾ (1) Making provision which, subject to any modifications that the Department considers appropriate, corresponds or is similar to¾ (a) any provision made by or under, or capable of being made under¾ (i) the Industrial Pollution Control (Northern Ireland) Order 1997; or (ii) Part II of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19); or (b) any provision made, or capable of being made, under section 2(2) of the European Communities Act 1972 (c.68) in connection with one of the relevant directives. (2) In sub-paragraph (1) "the relevant directives" means¾ (a) Council Directive 96/61/EC concerning integrated pollution prevention and control; (b) Council Directive 75/442/EEC on waste, as amended; (c) Council Directive 99/31/EC on the landfill of waste; and (d) any other directive of the Council of the European Communities designated by the Department by order for the purposes of this paragraph. (3) Making provision about the application of the regulations to the Crown. PART II SUPPLEMENTARY PROVISIONS Particular types of pollution 21. The regulations may provide for specified provisions of the regulations to have effect in relation only to such environmental pollution as is specified. Determination of matters by enforcing authorities 22. The regulations may make provision for anything which, by virtue of paragraphs 5 to 8, could be provided for by the regulations to be determined under the regulations by enforcing authorities. Imposition of conditions 23. In connection with the determination of conditions as mentioned in paragraph 6(3)(a) the regulations may in particular provide¾ (a) for such conditions to be determined in the light of any specified general principles and any directions or guidance given under the regulations; (b) for such guidance to include guidance sanctioning reliance by an enforcing authority on any arrangements referred to in the guidance to operate to secure a particular result as an alternative to imposing a condition. Charging schemes 24. The regulations may require any such scheme as is mentioned in paragraph 9 or 10 to be so framed that the fees and charges payable under the scheme are sufficient, taking one year with another, to cover such expenditure (whether or not incurred by the enforcing authority or other person to whom they are so payable) as is specified. Offences 25.¾ (1) The regulations may provide for any such offence as is mentioned in paragraph 17 to be triable¾ (a) only summarily; or (b) either summarily or on indictment. (2) The regulations may provide for such an offence to be punishable¾ (a) on summary conviction by¾ (i) imprisonment for a term not exceeding such period as is specified (which may not exceed six months), or (ii) a fine not exceeding such amount as is specified (which may not exceed £20,000), or both; or (b) on conviction on indictment by¾ (i) imprisonment for a term not exceeding such period as is specified (which may not exceed five years), or (ii) a fine, or both. Interpretation 26. In this Schedule¾ "public body" means a body established or constituted by or under a statutory provision; "the regulations" means regulations under section 2; "specified" means specified in regulations under
that section. SCHEDULE 2 AMENDMENTS [S2] The Public Health (Ireland) Act 1878 (c.52) 1. In section 108 for the words from"; but a district council shall not" to the end there shall be substituted "; but a district council shall not, without the consent of the Department of the Environment, institute proceedings under this Part in respect of a nuisance to which section 107 applies by virtue of paragraph (4) or (7) of that section or Article 23 of the Clean Air (Northern Ireland) Order 1981, if proceedings in respect thereof might be instituted under¾ (a) regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002; or (b) the Industrial Pollution Control (Northern Ireland) Order 1997". The Land Development Values (Compensation) Act (Northern Ireland) 1965 (c.23) 2. In Part II of Schedule 2, after paragraph 5(2) add¾ "(3) Use for any of the following processes (except a process ancillary to the getting, dressing or treatment of minerals, carried on in or adjacent to a quarry or mine)¾ (a) converting, re-heating, annealing, hardening, melting, carburising, forging or casting of iron or other metals or alloys; (b) recovering of metal from scrap or drosses or ashes; (c) galvanising; (d) pickling or treatment of metal in acid; or (e) chromium plating.". The Pollution Control and Local Government (Northern Ireland) Order 1978 (NI 19) 3.¾ (1) In Article 55(4)(a) after "part of" insert "an installation or plant subject to regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or". (2) In Article 55(4) for sub-paragraph (b) substitute¾ "(b) of the inspectors appointed under the Industrial Pollution Control Order or the regulations mentioned in sub-paragraph (a) to enforce those provisions in relation to such furnaces". (3) In Article 56(1) after "unless the" insert "burning is part of an activity subject to regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or the". (4) For Article 56(2) substitute¾ "(2) A person guilty of an offence under this Article shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.". (5) In Article 57(4) after "emissions from any" insert "activity subject to regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or any" (6) In Article 58 after subsection (2) insert ¾ The Merchant Shipping Act 1995 (c.21) 4. In section 136A at the end add "or an authorisation or permit granted under any corresponding provisions of the law of Northern Ireland". The Finance Act 1996 (c.28) 5. In section 66 (ba) after "1999" insert "or under regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002" The Water (Northern Ireland) Order 1999 (NI 6) 6.¾ (1) In Article 10(1) after sub-paragraph (b) insert ¾ "(bb) regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002;". (2) In Article 10(2) after sub-paragraph (c) insert ¾ "(d) a permit granted under regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002;". (3) In Article 30(1)(n) after "register" insert "under regulations made under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or;" SCHEDULE 3 REPEALS [S3]
POLLUTION PREVENTION AND CONTROL BILL ________________ EXPLANATORY AND FINANCIAL MEMORANDUM INTRODUCTION 1. This Explanatory and Financial Memorandum relates to the Pollution Prevention and Control Bill. It has been prepared by the Department of the Environment ("the Department") in order to assist the reader in understanding the Bill and to help inform debate on it. It does not form part of the Bill and has not been endorsed by the Assembly. 2. The memorandum needs to be read in conjunction with the Bill. It is not, and is 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 or comment, none is given. PURPOSE 3. The purpose of this Bill, along with the subordinate legislation which will be made under it, is to provide a statutory framework to enable transposition of the requirements of EC Directive 96/61 on integrated pollution prevention and control ("the IPPC Directive") and other associated matters. BACKGROUND AND POLICY OBJECTIVES 4. The aim of the IPPC Directive is to provide a regulatory framework for a high level of protection of the environment through the prevention or reduction of emissions to air, water and land as a result of industrial activities. 5. The European Council adopted the IPPC Directive in September 1996. It is derived in large measure from the UK system of integrated pollution control (although there are some important differences) which was introduced in Northern Ireland in the Industrial Pollution Control (Northern Ireland) Order 1997 ("the 1997 Order") and the legislation now proposed will, to a large extent, follow the procedures already established by the 1997 Order. 6. Once implemented, the new arrangements will progressively replace the current controls on industrial pollution provided for in the 1997 Order. Current Position 7. The 1997 Order provides for a 3-tier system for the control of pollution from certain prescribed industrial processes, as follows: - those processes with the greatest potential for pollution (Part A processes) are subject to a system of integrated pollution control. This means that a single authorisation covers releases to air, water and land as well as addressing waste minimisation and handling of wastes on site. The enforcing authority for Part A processes is a Chief Inspector appointed under the Order by the Department; a range of processes with lesser pollution potential (Part B processes) are subject to a system of air pollution control only. The enforcing authority for this category is also the Chief Inspector; a further range of processes (Part C processes) are also subject to a system of air pollution control only with the relevant district council as the enforcing authority. 8. Authorisations under the 1997 Order must contain conditions based, primarily, on the use of the "best available techniques not entailing excessive cost" for preventing or minimising polluting emissions. Part A processes must also have regard to the "best practical environmental option". Key Features 9. The Bill will share a number of features with the current arrangements under the 1997 Order. In particular, it will retain the regulatory structures of that Order with a Chief Inspector assuming responsibility for regulation as Part A activities those installations listed in Annex 1 to the IPPC Directive. This means that all such installations will be assessed against their capacity to cause significant pollution to air, water and land. 10. In addition, the provisions of the 1997 Order relating to Part B and Part C processes (air pollution control only) will be repealed and re-enacted in the new legislation. 11. However, to reflect the specific requirements of the IPPC Directive, the Bill will provide for the subordinate legislation to apply a number of new features to Part A installations. These may be summarised as follows:
(a) agricultural installations for the intensive rearing of poultry and pigs; (b) landfill sites; (c) slaughterhouses; (d) installations for the treatment and processing of animal raw materials; and (e) installations for the treatment and processing of vegetable raw materials.
12. The IPPC Directive's requirements applied to new installations immediately upon its coming into effect and to parts of existing installations which undergo a "substantial change" immediately such a change occurred. Existing installations in so far as they are not substantially changed, were afforded a period of grace of up to eight years after the Directive was brought into effect, during which they would need to be upgraded to meet the Directive's requirements. All installations therefore must be permitted by 31 October 2007. Once issued, a permit must be reviewed periodically, and must be updated if there are significant technological or other developments. 13. A phased call-in of installations by sector will be provided for in the subordinate legislation. Special provision will also be made for dealing immediately with those installations which required permitting in the period between the operational date of the Directive and the effective date of the legislation. CONSULTATION 14. The Department issued an initial consultation paper on its proposals in June 2001. There was also full consultation with the Assembly's Environment Committee. Some 500 bodies and individuals representative of the interests of local government, industry, agriculture and small businesses were consulted and 30 responses were received. The majority were in favour of the proposals and only 16 made significant comments. Of these, the Department accepted 8 and rejected 8. Of those rejected, 4 were rejected on policy grounds, 3 on the basis that what was being proposed would be outside the scope of the legislation and 1 on the grounds that the proposal would be a breach of the Directive. OPTIONS CONSIDERED 15. Initially, three options were considered for transposing the requirements of the IPPC Directive in Northern Ireland. The first was a "do nothing" option. However this was discounted on the grounds that transposition of Directives into law by Member States is mandatory. 16. The second option considered was to transpose by regulations made under the European Communities Act 1972. While this would be possible in legislative terms, it would not be possible, without primary legislation, to re-align the whole of the 1997 Order with the new pollution control scheme to implement the requirements of the IPPC Directive. Choosing this option would involve running a new integrated pollution prevention and control scheme running alongside the regime already established under the 1997 Order for those installations not covered by the Directive. This would be confusing for both installation operators and enforcing authorities. 17. The third option considered was to transpose through a combination of primary and subordinate legislation. This would parallel the transposition arrangements in England, Scotland and Wales. 18. In addition to the advantage of a single pollution control regime outlined above, this option had the added advantage of enabling the primary legislation to provide powers for other relevant Directives to be transposed by way of regulations without the need for further primary legislation. 19. In view of these advantages, the Department proposes to proceed with the third option. OVERVIEW 20. The Bill has 8 Clauses and 3 Schedules. COMMENTARY ON CLAUSES Clause 1: Purpose of section 2 This section sets out the general purpose for which regulations may be made under section 2, including, in particular, implementing the IPPC Directive. The new system will have to incorporate the concepts and principles used in the Directive (such as Best Available Techniques and the general principles relating to 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, be modified of disapplied, where appropriate, for the purposes of applying the new control regime to installations not covered by the Directive. Clause 2 and Schedule 1: Regulation of polluting activities Section 2 confers on the Department power to make regulations creating a new regime of pollution control, for the purpose set out in section 1 and to the extent provided for in Schedule 1. The section requires prior consultation with appropriate bodies or persons. The first set of regulations made under the Act will be subject to approval of a draft by a resolution of the Assembly. Any subsequent regulations which contain provisions creating an offence or increasing a penalty or amending or repealing any Northern Ireland legislation, will also be subject to that same procedure. For other regulations, the negative resolution procedure in the Assembly may be used. Part 1 of Schedule 1 lists the specific purposes for which the power in section 2 may be used, and Part II has supplementary provisions. In general terms, the power will allow a new pollution control system to be introduced, with procedures following broadly the pattern of the existing system under the Industrial Pollution Control (Northern Ireland) Order 1997. The provisions allow standards, objectives and requirements in relation to emissions to be established and plans to be made in relation to emission limits and quotas. It is specifically provided (in paragraph 1 of Schedule 1) that quota trading or transfer schemes may be made. By paragraph 2 of Schedule 1 the regulations may confer functions on the Department and the Secretary of State and determine the enforcing authorities that will exercise the permitting and other pollution prevention and control functions. It is intended that the role of granting and updating permits, taking enforcement action etc. will be the responsibility of a Chief Inspector to be appointed by the Department as regards installations subject to full integrated pollution prevention and control (those are designated Part A installations). For installations with lesser pollution potential which will be subject to air pollution control only, the enforcing authority will be the Chief Inspector (Part B installations) and the relevant district council (Part C installations). Under paragraph 3 of the Schedule the Department and the Secretary of State will have power to give directions or guidance to enforcing authorities including the power to direct the transfer of functions from one enforcing authority to another or to take over functions. Paragraphs 4 to 10 enable the regulations to require persons operating specified installations or plant or carrying out certain activities to hold appropriate permits. Provision may be made to regulate the grant of permits, including restricting the grant of permits to those who are considered fit and proper persons, a test derived from the Waste and Contaminated Land (Northern Ireland) Order 1997. That latter requirement is necessary so that the "fit and proper persons" provisions can be applied to those waste management installations covered by the Directive whose regulation will be transferred from the Waste Order to this Act. The content of permits issued under the new regime and conditions attached to them may be prescribed in the regulations. There may also be provisions for the review of permits by enforcing authorities and provisions dealing with variation, transfer, revocation and surrender of permits. The Department is empowered to make charging schemes governing fees payable in respect of permits and applications and fees may also be charged for prior testing, analysis and environmental assessment of substances and their effects. It is provided in paragraphs 11 to 13 that regulations may require that information on emissions, energy and waste is supplied and that publicity is given to specified matters. To this end, registers may be maintained and certain information made available to members of the public, apart from commercially confidential details and other excepted material. Enforcing authorities may be required to carry out consultation in connection with their functions and take into account any representations made to them. Paragraphs 14 to 18 of the Schedule deal with enforcement and offences. Enforcing authorities may be given functions with respect to the monitoring and inspection of activities, including power to take samples and power to arrange for preventative or remedial action to be taken at the expense of holders of permits. Notices may be served on holders of permits requiring them to take remedial action, provide appropriate financial security or remove imminent risks of serious environmental pollution. These notices may be enforced by proceedings in the High Court. Permits may be suspended. The creation of offences and the regulation of associated matters are authorised by paragraphs 17 and 18. Paragraph 19 relates to rights of appeal. It is envisaged that the regulations will contain detailed provisions about making, considering and determining appeals. Lastly in Part 1 of Schedule 1, paragraph 20 has provision for the regulations to deal with appropriate or corresponding issues arising under other pollution control legislation or relevant Directives, and the application of the regulations to the Crown. Part II of Schedule 1 has supplementary provisions to enhance the effectiveness of the regulation making power. Clause 3: New transitional provisions for disposal licences treated as site licences Sections 3 and 4 deal with the specific issue of waste management. Certain transitional arrangements and consequential amendments are necessary to facilitate the change over from disposal licences under the Pollution Control and Local Government (Northern Ireland) Order 1978 to site licences under the Waste and Contaminated Land (Northern Ireland) Order 1997, and then the further progression to permitting under this Act which will be required for certain large landfill installations falling within the scope of the Directive. These provisions are contained in sections 3 and 4. The 1997 Order has not yet been brought into operation. It contains a provision (Article 47) intended to convert subsisting disposal licences into site licences on the date when the waste management licensing regime comes into operation. That provision sets a time limit of three years for the duration of the newly created site licence. In that event, after three years have elapsed the operator of the installation could leave the site without any continuing obligations to address environmental and health safeguards. In order to avoid that result, some amendment of Article 47 is considered necessary. The solution proposed in section 3 is that the newly converted site licence should be of indefinite duration, as is the case with other site licences under Article 6(10), and therefore it becomes subject to requirements in relation to revocation or surrender. Equivalent provision is made as regards resolutions of district councils allowing land in their occupation to be used for waste deposit purposes, because those resolutions are similarly converted into waste management licences by Article 47. Clause 4: Disposal licences which expire before the commencement of waste management licensing Section 4 continues the process of transition from disposal licences to site licences and ultimately to permits under section 2 of this Bill. This section applies in the situation where a disposal licence expires during the period of one year before the passing of this Bill but before it is converted into a site licence by Article 47 as outlined above. There is also a requirement that relevant activities must have taken place after the time of expiry. In that situation then the licence is deemed not to have expired but to have continued in existence up until the introduction of waste management licensing, at which point it becomes a site licence by virtue of Article 47. The terms and conditions attached to the replaced licence continue to apply to its successor. Where expired licences are revived in this way, section 4 goes on to validate retrospectively things done in reliance upon the licence in the period between its expiry and revival. These matters are set out in section 4(4). This means firstly that the licence holder will not be subject to criminal prosecution for carrying out activities during this period without an actual extant licence. Secondly, anything done in relation to the licence before the expiry but purporting to take effect after that time - for example, a notice modifying conditions attached to the licence - will be viewed as if the licence had not in fact expired. The section also validates variation, modification, revocation, suspension or transfer of a licence or acceptance of its surrender when it was not in force and receipt of any fees paid under the licence. It takes account of the introduction of the duty of care under Article 5(1)(c) of the Waste and Contaminated Land (Northern Ireland) Order 1997 by providing that the holder of the licence is to be treated as an authorised person for those purposes, thereby giving protection to third parties who transferred waste to him in the belief that the licence was still in force. Section 4(5) ensures that activities which were not criminal when they were carried out are not criminalised as a consequence of these provisions. By section 4(6), however, criminal proceedings that have been concluded are not affected in any way. Section 4 (7) imposes on district councils a duty to notify licence holders affected by these provisions. Clause 5: Interpretation This section defines some of the key words and phrases used in the Bill. Clause 6 and Schedules 2 and 3: Amendments and repeals This section gives effect to the consequential and minor amendments and repeals of current legislation contained in Schedules 2 and 3. In due course the Industrial Pollution Control (Northern Ireland) Order 1997 which is the basis for integrated pollution control at present will be repealed as it is superseded by the new regime set up under this Act. Clause 7: Commencement It is provided that the Department will set a date or dates for the new pollution prevention and control arrangements to come into operation. Clause 8: Short title When passed this Bill will be known as the Pollution Prevention and Control Act (Northern Ireland) 2002. FINANCIAL EFFECTS OF THE BILL 21. There will be financial and resource implications for enforcing authorities (a Chief Inspector to be appointed by the Department for Part A (IPPC) installations and the Chief Inspector and district councils for Part B and Part C (air pollution control) installations). In accordance with the "polluter pays" principle the Act will provide the powers for enforcing authorities to recoup the full costs of their regulatory activities through charging schemes. EFFECTS ON EQUAL OPPORTUNITY 22. The Department is of the opinion that the Bill will not unlawfully, unfairly, or unjustifiably discriminate, directly or indirectly, against specified sections of the community. HUMAN RIGHTS ISSUES 23. The Bill will impact upon human rights in certain areas: - by providing powers to refuse or revoke permits; by providing powers of entry and inspection of property; and by creating new offences and related penalties. 24. The provisions of the Bill are considered to be compatible with obligations in relation to human rights. 25. As part of the consultation process, the proposals have been submitted to the Northern Ireland Human Rights Commission. EQUALITY IMPACT ASSESSMENT 26. The Department will publish its Equality of Opportunity Screening Analysis as part of its consultation paper on the subordinate legislation (the draft Pollution Prevention and Control Regulations) to be published for consultation close to the date of the second reading stage of the Bill. SUMMARY OF THE REGULATORY APPRAISAL 27. The Department will publish a partial Regulatory Impact Assessment as part of its consultation on the draft Pollution Prevention and Control Regulations. SECRETARY OF STATE'S CONSENT 28. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill. LEGISLATIVE COMPETENCE 29. The Minister of the Environment has made the following statement under section 9 of the Northern Ireland Act 1998: "In my view the Pollution Prevention and Control Bill would be within the legislative competence of the Northern Ireland Assembly." ANNEX 10 LETTER FROM: 22 May 2002 In line with the agreement reached at my meeting with the Committee on 21 March 2002, my officials wrote to the Committee Clerk on 16 May indicating that I had written to the Executive seeking agreement to introduce the Pollution Prevention and Control Bill to the Assembly and enclosing for information a copy of the draft Bill and the Explanatory and Financial Memorandum. I anticipate that the Bill will receive its first reading on 10 June with the second reading scheduled for 18 June. The Committee is already aware of the serious infraction situation surrounding the non-transposition of the IPPC Directive in Northern Ireland and that the swift passage of this Bill will be necessary in order to avoid any further action by the Commission. In my view, the best way to ensure this would be to agree accelerated passage for the Bill. The purpose of this letter is to seek the agreement of the Committee to this line. The European Court of Justice delivered its judgement on 7 March. Unless we can demonstrate to the Commission that all the necessary legislation has been enacted, subordinate as well as primary, the next step will be for the Commission to go back to the Court seeking the imposition of financial penalties. This could happen before the end of 2002 with the imposition of fines becoming a reality in mid to late 2003. Our current timetable for the legislation is that the Bill will complete its passage through the Assembly and receive Royal Assent by March 2003. In parallel with this, we hope to publish draft regulations for consultation by the end of June. However, these regulations will be subject to an affirmative resolution debate in the Assembly and, on the current timetable for the Bill, it would not be possible to have this until the Assembly returns after the 2003 elections. This would mean that we would not have all the legislation fully operational until July/August 2003. This timetable does not sit easily alongside the anticipated pace of progress on the infraction case. Therefore, anything that can be done to expedite the passage of the Bill and therefore reduce the infraction case. Therefore, anything that can be done to expedite the passage of the Bill and therefore reduce the infraction risk must, in my view, be explored fully. Agreement to accelerated passage for the Bill would almost certainly mean that the Bill could complete its Assembly passage and receive Royal Assent by January/February 2003. This, in turn, could enable the Regulation to be debated before dissolution in March. This would constitute a significant saving on time and would enable us to have all the legislation fully operational before the Court is asked to consider the imposition of fines. Moreover, accelerated passage for this Bill would not, in my view, erode significantly the scrutiny powers of the Committee. The Bill contains, for the most part, a set of broad enabling powers with the detail of the proposals being contained in a set of draft regulations. It is my intention to publish these for consultation at the end of June and there will, of course, be full consultation with the Committee on these. I think it is fair to say that most of the points raised by the Committee to date have concerned matters associated with the Regulations and I am confident therefore that the Committee's scrutiny role in this case can be properly carried out in the context of the regulations. If it would be helpful to the Committee's consideration of this request, I would be happy to attend a meeting of the Committee to discuss the matter further. Officials would also be happy to facilitate the Committee in any way possible. DERMOT NESBITT MLA ANNEX 11 LETTER FROM: 28 May 2002 Thank you for your letter of 8 May 2002 listing a number of questions arising from the presentation to the Committee by officials on 25 April 2002. I shall deal with the points as they arise in your letter. Farming The Committee sought clarification of the degree of financial or other support which has been made available to the intensive farming industry in Great Britain. A number of steps have been taken in this regard. Following representations from the industry, the call-in date for existing intensive agricultural installations was deferred until November 2006 - January 2007; i.e. to the latest possible date to allow sufficient time for agricultural installations to be permitted in line with the timescales set down in the Directive. I can confirm that similar provisions will be included in the Northern Ireland regulations. However, the Directive also requires that new installations coming into operation and existing installations undergoing a substantial change at any time after the effective date of the Directive (31 October 1999) must be permitted immediately. This will mean that some intensive agricultural installations in Northern Ireland will require to be permitted immediately and will not benefit from the extended call-in period which will be allowed to other installations. In relation to charges, the proposed charges in Great Britain were also reduced from the Environment Agency's original estimates to the charges which are now in place. A similar approach will be reflected in the Northern Ireland charging scheme. Limited funding was also made available to provide a small amount of consultancy support to a sample of the first few applicants with a view to developing good practice example applications for farms. In Northern Ireland, the Department's Environment and Heritage Service is currently involved a case study project, funded by the Scotland and Northern Ireland Forum for Environmental Research (Sniffer), to develop an IPPC application for a poultry farm in Northern Ireland and one in Scotland. This exercise will help in the development of example permit applications. Targets and Indicators The Committee asked what targets and indicators the Department proposes to use to measure the broad impact of the IPPC Directive. The purpose of the new IPPC regime is to control emissions from industrial installations. As such, it builds on the system of integrated pollution control currently in operation under the Industrial Pollution Control (Northern Ireland) Order 1997 (the 1997 Order). It also forms part of a much wider range of pollution control measures which have been put in place in order to limit or control the pollution of air water and land and will contribute to the achievement of wider objectives and targets in these areas. At present, operators of processes subject to integrated pollution control under the 1997 Order are required to submit detailed information on releases. This will continue as the range of installations subject to regulation increases under the IPPC regime. This will provide data on the quantities of key pollutants released from installations annually and also on changes in releases for individual installations and across all installations. In addition, the IPPC Directive formally requires Member States to submit reports on the releases of pollutants from installations covered by the Directive, as defined in the European Pollutant Emissions Register (EPER), which will be derived from the information referred to above Performance against emission limits and other permit conditions will also be assessed in detail on a site by site basis by enforcing authorities. Taken together, these measures should provide a basis for measuring the impact of the new IPPC controls. However, it must also be recognised that in some cases releases will be influenced by increases in production capacity or other factors which can make interpretation of the information difficult. Local Environmental Conditions The Committee expressed concern that the reference in the Directive to "local environmental conditions" might provide an opportunity to link the choice of pollution prevention technologies to the existing capacity of local environmental conditions to absorb pollutants. A key principle of the Directive is that "Best Available Techniques" (BAT) should be used to prevent pollution and to minimise the impact of emissions. Where appropriate, this will be reflected in the inclusion of emission limit values and other requirements in permits. The use of BAT is designed therefore to maximise protection of the environment rather than 'working up to' an environmental quality standard. However, in cases where an environmental quality standard is threatened, Article 10 of the Directive allows for the application of additional measures which, in other circumstances might be considered excessively costly. Emission Limit Values The Committee asked what criteria the Department would use in setting emission limit values. The European IPPC Bureau in Seville is producing sectoral BAT Reference (BREF) Notes which will identify the best techniques for prevention and minimisation of pollution taking sector affordability into account. These notes are used to inform national technical guidance. In the UK, technical guidance is adopted across all regions ensuring a consistent approach. Individual permits, including, where relevant, emission limit values, will be produced based on the information in the technical guidance. Enforcing Authorities and BAT The Committee asked for an overview of the roles of the Chief Inspector and district councils and, in particular, who will be responsible for the selection of BAT. The Chief Inspector will have responsibility for regulation of all the installations listed in Annex 1 to the Directive (Part A installations). All such installations will be assessed against their capacity to pollute air, water and land (through the creation and disposal of waste). In addition, the Chief Inspector will also have responsibility for regulation of a category of non-IPPC installations subject to air pollution control only (Part B installations). District councils will have responsibility for regulation of all other installations subject to air pollution control only (Part C installations). These arrangements reflect the current structures in place under the Industrial Pollution Control (NI) Order 1997. In relation to responsibility for BAT, the Chief Inspector will be responsible for its application to those installations for which he will have responsibility. The Department will, as at present, provide guidance for district Councils in relation to the application of BAT to Part C installations for which they will have responsibility. Environmental Management Systems The Committee also asked for the Department's views on the role of Environmental Management Systems within Northern Ireland. All operators of installations will need to have some sort of management system in order to deliver the requirements of an IPPC permit. For example, they will need to demonstrate that environmental risks have been assessed, that staff have been properly trained, that systems are in place to ensure adequate maintenance and that there are systems for dealing with complaints. Although it will not be mandatory for a management systems to be certified for an IPPC permit to be granted, the existence of such a system could provide a demonstration that there is a degree of discipline in managing the system. The requirements for environmental management systems are set out in technical guidance which will be common across all UK regions. The requirements of the legislation in Scotland are no different from the requirements in England and Wales. However, the relevant agencies have slightly different views on the amount of information which would be required in a permit application. In England/Wales the Environment Agency is also exploring whether having an accredited system which it considers to be of a high standard might allow 'lighter touch' regulation. The Department will keep an open mind but considers that firm regulation will always be an essential component of ensuring satisfactory environmental control regardless of how effective an environmental management system might be. Finally, the Committee asked for sight of the draft Bill and the timetable for its introduction to the Assembly. This information was provided in my letter of 21 May to John Simmons. PAMELA BAXTER ANNEX 12 LETTER FROM: 5 June 2002 At its meeting 30 May 2002, the Committee received a presentation from Departmental Officials on the proposed Bill. The Committee wish to thank Officials for this presentation, however Members raised a specific point on fee levels. Officials stated that they would come back to Members to clarify the amount of fees to be paid, especially in relation to the agriculture industry. I would be grateful for a response on this as soon as possible. Officials also spoke about a visit to Northern Ireland by DG11 senior officials; the Committee would welcome the opportunity to meet with European Commission officials when they visit Northern Ireland. CLAIRITA FLYNN ANNEX 13 LETTER FROM: 7 June 2002 Thank you for your letter of 22 May 2002 and for your attendance at Committee yesterday morning. The Committee, having received a Bill timetable for 'accelerated passage' and 'normal procedure', considered the issues discussed with you. The Committee could not agree to support your proposal for accelerated passage. Eight Members were present and the vote to support your proposal resulted in a tie - under Standing Order 26(6) the motion falls. Should it be decided to take this Bill though normal procedure, I can assure you that the Committee would be mindful of the issues you have raised regarding the need for the Bill to receive Royal Assent and the key Regulations to be operational before dissolution in March 2003. JOHN SIMMONS pp DR WILLIAM McCREA MLA ANNEX 14 LETTER FROM: 11 June 2002 Thank you for your letter of 7 June 2002. In your letter you gave an assurance that if the Bill were to proceed by normal procedure, the Committee would be mindful of the issues raised regarding the need for both the Bill and the Regulations to be operational before dissolution. As a follow-up to this, we spoke by telephone over the weekend and again yesterday. I made a proposal that if the Committee could undertake to complete Committee Stage scrutiny and its Report on the Bill by mid-September 2002, I would not proceed with the Motion for accelerated passage. The Bill would then go to Consideration Stage in late September. In this way, the Bill would go through by normal procedure, while at the same time ensuring as far as possible that there will be sufficient time to enable both the primary and subordinate legislation to be in place before dissolution. I appreciate that we are all working towards the same objective, good law carried through in a timely fashion - and in this particular case, avoidance of the financial penalties resulting from Northern Ireland's failure to comply with its legal obligations. I understand that you intend to put this proposal to your Committee on 13 June. I look forward to hearing the outcome of your discussions as soon as possible thereafter. In the meantime I will proceed, on a contingency basis, to seek the agreement of the Executive Committee to the Motion for accelerated passage. EVELYN HOY DERMOT NESBITT MLA ANNEX 15 LETTER FROM: 14 June 2002 Thank you for your letter 11 June 2002. The Committee considered your proposal at its meeting yesterday and unanimously agreed to undertake a Committee Stage scrutiny with the objective of completing the Committee's Report on the Bill by mid-September 2002. The Committee recognises that such a deadline will restrict its scrutiny of the Bill. Therefore, should the Committee consider that it would require an additional week to complete its Report, I will write to you immediately this is known. The Committee's overriding objective remains to ensure the making of good law. JOHN SIMMONS pp DR WILLIAM McCREA MLA ANNEX 16 LETTER FROM: 14 June 2002 Thank you for your letter of 5 June concerning two points which arose during the presentation by officials on 30 May. At the presentation officials agreed to confirm their understanding, previously conveyed to the Committee in the Department's letter of 10 October 2001, that the level of fees for agricultural installations in England and Wales is similar to that in Scotland. I can confirm that this is the case. Some indicative estimates of costs associated with implementation of the new IPPC controls will be included in a partial Regulatory Impact Assessment which will be published for consultation along with the draft Regulations within the next few weeks. Detailed proposals on the proposed charges for activities across all sectors affected by the new arrangements will be included in a separate Charging Scheme which will also be published for consultation later this year. As indicated in its letter of 28 May, the Department also intends to mirror a number of steps which have been taken in Great Britain to offset the impact of the new controls on the agriculture sector including action in relation to the level of charges. The Department will keep the Committee fully informed about the arrangements for any visit to Northern Ireland by senior officials from the European Commission and will ensure that the Committee is given the opportunity for a meeting. JENNIFER McCAY ANNEX 17 LETTER FROM: 18 June 2002 Ulster Farmers' Union HQ Council for Nature Conservation & the Countryside Meat Exporter's Association NI Chief Environmental Health Officers Group Environmental Policy Division Department for Culture, Arts and Leisure Central Management Branch Department for Agriculture & Rural Development The Pollution, Prevention and Control Bill was formally introduced to the Northern Ireland Assembly on 17 June 2002. I enclose a copy of the Bill and the associated Explanatory and Financial Memorandum. If you need further copies, these are available on the Assembly website http://archive.niassembly.gov.uk/legislation/primary/assleg01.htm. - Please note that the Bill will not be available on this site until Friday 21 June 2002. The Committee for the Environment is responsible for the formal scrutiny of the Bill and aims to provide its report on the Bill to the Assembly by mid-September 2002. The Committee Members discussed the way forward on its scrutiny of the Bill at their Committee Meeting on Thursday 13 June 2002. The Committee agreed that it would be useful to copy the Bill to certain consultees to seek comments and, in particular, any concerns on the specific terms of the Bill. It would be most helpful if you could structure your response to the specific clauses of the Bill and, if appropriate, could you suggest alternative or additional wording to clauses, which may assist the Committee's consideration of the need for any amendments to the Bill. The Committee is scheduled to consider the Bill at its meeting of 4 July 2002 its final meeting before the Summer Recess and would therefore be grateful for your response (or interim response) to reach me at the latest by close Monday 1 July 2002. If you have any queries on this letter, please ring me on 028 9052 1271 or Jim Beatty on 028 9052 1240 .My e-mail address and fax number are shown above. Thank you. JOHN SIMMONS
ANNEX 18 HANSARD REPORT OF 25 JUNE 2002 POLLUTION PREVENTION AND CONTROL BILL: SECOND STAGE The Minister of the Environment (Mr Nesbitt): I beg to move That the Second Stage of the Pollution and Control Bill (NIA 19/01) be agreed. The Bill is necessary to enable Northern Ireland to meet its European commitments in a key environmental area. It is also necessary to ensure that the people of Northern Ireland enjoy the same standard of environmental protection as elsewhere in the United Kingdom. This legislation should have been in place in 1999, and the reasons behind the delay are, no doubt, well known to the Assembly. However, its continued absence is already subject to infraction proceedings from Europe. It is vital, therefore, that it be brought into operation as quickly as possible, if we are to avoid the real possibility of financial penalties for non-compliance. The main purpose of the Bill, and the subordinate legislation to be made under it, is to provide a statutory framework to enable transposition of EC Directive 96/61 on integrated pollution prevention and control. That Directive is designed to control pollution from industrial sources. Its aim is to provide for a high level of protection for the environment through the establishment of a regulatory framework to prevent or reduce emissions to air, water and land as a result of industrial activities. The Directive's key feature is that it provides for an integrated approach to dealing with pollution from major industrial installations. That is designed to avoid potential problems that may arise if separate approaches are taken to controlling releases to air, water and land. That integrated approach is similar to the current arrangements under the Industrial Pollution Control (Northern Ireland) Order 1997. The Bill shares many features with the current arrangements under the 1997 Order. Most importantly, it will provide for the retention of the regulatory structures of that Order, with a chief inspector assuming responsibility for regulating those installations listed in annex 1 of the Directive. That means that all such installations will be assessed against their capacity to cause significant pollution to air, water and land. Moreover, the provisions and regulatory structures of the 1997 Order will be repealed and re-enacted in the new legislation. That will remove the need for pollution from industrial installations to be regulated under two separate pieces of legislation, and it will minimise the disruption to industry caused by the new arrangements. I estimate that approximately 250 existing installations will be subject to the new Directive controls. Some are already regulated under the existing arrangements, but several installations will be brought under control for the first time to meet the Directive's requirements. The main additions above a certain capacity will be: installations for intensive rearing of poultry and pigs; sites for landfilling waste; slaughterhouses; installations for the treatment and processing of milk; installations for the treatment and processing of animal raw materials; and installations for the treatment and processing of vegetable raw materials. Top Several other changes will be made to the current controls. Permits will be granted for installations rather than processes, which will enable a more broad-based and comprehensive approach. The range of environmental impacts to be covered when determining applications will be much wider and will include noise, site restoration, accident prevention, energy efficiency, and the selection and use of raw materials. No integrated pollution prevention and control (IPPC) installation will be exempted from control because of the triviality of its emissions. In the main this is an enabling Bill. The detail of the new regulatory controls will be set out in draft regulations, which will be published for consultation in the next few weeks. In addition to providing an opportunity for full and open scrutiny of the proposals, publication of the draft regulations will help to inform consideration of the Bill as it goes through its various stages. The parallel processing of the Bill and the regulations will also ensure that all the legislation is enacted with the minimum of delay, thereby reducing the serious risks associated with the infraction proceedings, as I mentioned earlier. In addition to providing the statutory framework for transposing of Directive, the Bill has two other main purposes. First, it will provide a general power for EU measures to be transposed by way of regulations, thereby avoiding the need for primary legislation. Any measure intended to be implemented in that way will be required to be designated by Order, and any regulations made under that provision will be subject to full scrutiny and consultation in the normal way. Secondly, the Bill provides new transitional provisions for waste disposal licences under the Pollution Control and Local Government (Northern Ireland) Order 1978. That will facilitate the transition to the new waste management licensing system that is due to be introduced in 2003 and ensure that no one is penalised unfairly because a waste disposal licence has lapsed inadvertently. My Department set out its policy proposals in a consultation paper that was published in June 2001. The paper was issued to 500 organisation, groups and individuals. Some 30 responses were received, the majority of which welcomed the proposals. Only 16 respondents made substantive comments. Of those, eight were accepted; only one response required a change in legislation, and the other seven can be met through clarification of the proposals. The remaining eight comments were rejected; three were outside the scope of the legislation, one was a clear breach of the Directive, and four were rejected on policy grounds. 2.15 pm The Bill is necessary to enable us to meet our European commitments and to provide a high quality environment for the people of Northern Ireland. For those reasons, I commend the Bill to the Assembly. The Chairperson of the Committee for the Environment (Rev Dr William McCrea): In September 2001, the Committee for the Environment considered and responded to a consultation document issued by the Department of the Environment on its proposals for transposing EC Directive 96/61 on integrated pollution prevention and control. The Committee subsequently raised several concerns. I appreciate the need for Northern Ireland meet its European commitment, and the Minister and the Department's desire for a high quality environment. The debate is not riveting for many people, but the Pollution Prevention and Control Bill is important, and it has implications for the community. When departmental officials appeared before the Committee and realised that members had concerns, it strove to deal with those and other concerns. That is appreciated. Officials have appeared before the Committee readily in order to clarify outstanding issues. They will make a presentation this Thursday morning as deliberations continue on the Bill. The concerns include the potential impact on the poultry industry in particular, the farming industry in general, and the proposed level of fees across all sectors. The Committee will keep a close eye on how those concerns, and others that have been identified in our consultation exercise with key interest groups, have been addressed in the Bill or in the draft Regulations that will result from the Bill. The Minister emphasised the value and importance of the Regulations, and draft Regulations will be available to the Committee in early July. I must advise the House of the discussions that the Committee has had with the Minister about his proposal to use the accelerated passage procedure to progress the Bill. The Minister wrote to me on 22 May 2002 to explain why he believed that it was necessary to use the accelerated passage procedure, thus removing any Committee Stage scrutiny of the Bill. He drew to the Committee's attention the fact that infraction proceedings are lurking in the background and overshadowing much of the discussions. Although the Committee appreciates fully the potential cost of infraction proceedings by the EC, there was nothing to convince members that EC proceedings were so far advanced that there would not be time for the Committee to complete some form of scrutiny of the Bill. The Committee discussed the issue, and I informed the Minister, clearly and scrupulously, of the decision that the Committee had reached. There was an equally balanced decision regarding a particular stance, and an impasse ensued. Consequently, the Committee suggested an alternative way forward to the Minister as a follow-up to his discussions with us on 2 June 2002. The outcome was a proposal from the Minister to complete the Committee Stage by mid-September. The Committee agreed with the proposal and I assure the Minister that it is still the Committee's intent. We have no desire to delay the Bill, but we want appropriate and proper scrutiny to ensure that we take on board the considerations of everyone who has an interest. This is the Second Stage of the Bill. The Committee has been put in a position in which, if it wants to scrutinise the Bill, it must do so and report by mid-September. Some people may say that the Committee was wrong to oppose the Bill's accelerated passage. They may ask why the Committee should put extra pressure on itself when it already has three Bills at Committee Stage, with another due in early September. The reason is simple. One of the most important roles that any Statutory Committee has is the scrutiny of legislation. The Committee believes that it would be wrong to forgo such scrutiny except in exceptional circumstances. I assure the Minister that, despite the severe time limitations imposed on us in the circumstances, we shall be, as usual, diligent and thorough in examining the details of the Bill, and we shall return with amendments at Consideration Stage if necessary. The Committee has reached out to the Minister, and the Minister and his Department have reacted to the Committee's concerns. That is a healthy exchange, and it is in the interest of having proper and appropriate legislation, which the community can feel has been scrutinised by those with that authority. Mr Savage: I am concerned about the Bill, because I have heard it mentioned in several Departments over the past week. I have listened carefully to the Minister, and one of my greatest concerns is, as is stated in paragraph 11 of the accompanying explanatory and financial memorandum: "There is no provision for any installations to be exempted from control, for example, because of the 'triviality' of its emissions." Will the Minister explain what that means? Furthermore, paragraph 12 states: "Existing installations in so far as they are not substantially changed, were afforded a period of grace of up to eight years after the Directive was brought into effect, during which they would need to be upgraded to meet the Directive's requirements. All installations therefore must be permitted by 31 October 2007." That is all very well, and I do not wish to encourage pollution. However, the Minister spoke this week about pollution in Lough Neagh, for which the farmers are always being blamed. If the Minister or any other Member thinks that farmers are going to be a soft touch and will accept that blame, they will are in for a surprise. What about organisations that receive the Crown immunity? There are far greater polluters in other sectors. Those matters must be taken into consideration. I have every sympathy for the Minister; he has a difficult job. However, we must have a level playing field. I do not want to see people blamed for pollution for which they are not responsible. I am standing behind the Minister now, but I would ask him the same question were I in front of him. Can he prove that the agriculture industry is the main polluter? That is the big factor. Many matters, including fraud, were talked about over the past six months in various Departments. However, when the cards are on the table, all accusations must be proven, and that is what the Minister must do. I do not wish to be awkward, but I must defend the agriculture industry. Other sectors are given time to get their act together - it should be the same for everybody. Farmers do not want to cause pollution. They are conscious of the effects, and they are proud of the environment. Other people are more responsible for pollution, but they get away scot-free. There must be a level playing field. The Deputy Chairperson of the Environment Committee (Ms Lewsley): As the Minister said, the Pollution Prevention and Control Bill is designed to protect the environment by the reduction and prevention of emissions to air, water and land through industrial activities, and to comply with the IPPC Directive. Issues such as waster minimisation and the handling of waste on site are vital to reduce the amount of environmental pollution and to place the responsibility on those who produce the pollutants. The Bill addresses the wider range of installations, such as the intensive rearing of pigs and poultry, landfill sites, slaughterhouses, and the treatment and processing of animal and raw materials. Those are some of the areas affected by the new legislation - it is not only farmers who pollute the environment. Permits will be granted, and issues mentioned by the Minister, such as noise, site restoration, accident prevention, energy efficiency, and raw material selection and use, will be taken into consideration. Installations will also have to show that an assessment has been conducted of the environmental risks and that adequate staff training and provision for appropriate maintenance of the system exists. The permits will be reviewed periodically and will take into account technology and other changes. The standards, objectives and requirements will be regulated. I welcome the fact that the Department will make information accessible to the public on industrial pollution and waste. The issue of enforcement will be addressed through regular inspections, and the inspectors will have the power to take samples and to arrange preventative or remedial action at the expense of the permit holders. The Pollution Prevention and Control Bill in another Bill that has been forced on the Assembly by an EU Directive that the Assembly must implement. It is the latest in a long line of EU Directives that direct rule Ministers neglected to put in place. The consequence of not complying with the Directive could mean a heavy financial penalty for many ratepayers in Northern Ireland. I support the Bill. Mr M Murphy: Go raibh maith agat a LeasCheann Comhairle. The introduction of the Pollution Prevention and Control Bill is in response to the IPPC Directive in Northern Ireland. The European Court of Justice delivered its judgement on 7 March 2002, so new legislation is required in order to avoid financial penalties. That could happen before the end of 2002 and will become a reality in 2003. That is why I support the Minister in getting through quickly. There is great concern in the farming community, and the farming industry is under financial pressures. An incentive scheme to improve facilities should be offered, and I urge the Department of the Environment to take the farmers' concerns into account when drawing up the final Regulations. There is a need for significant improvements in agriculture practices. I advocate a minimum six-month storage requirement for organic waste on all farms and a complete ban on slurry spreading from October to the end of March. However, considering the weather that we have had recently, that would not work. I am putting this forward because it would improve water quality. Why do I come to that conclusion? The reason is that slurry spreading on waterlogged or frozen ground creates a high risk of water pollution. There is a case for a straightforward prohibition of overloading land with excessive nitrates from slurry or fertilizers. 2.30 pm General provisions in the water pollution acts and waste management Acts make it an offence to cause, or to permit, polluting matter to enter waters, or to store, recover or dispose of waste in a manner that causes, or is likely to cause, environmental problems. However, in most cases the odds of securing a prosecution are stacked too high against public authorities, because they do not have the resources for the monitoring and investigations needed for widespread, effective enforcement. Too heavy an onus of proof is required in order to demonstrate that pollution occurs through careless malpractice. I am also concerned that those who cause the biggest pollution problems have Crown immunity. Organisations that cause a fish kill should be brought to book, but unfortunately, they are immune from prosecution. Farmers have to work through bad weather conditions, financial problems, et cetera. I encourage the Minister to do his utmost to help them. Go raibh míle agat. Mr Armstrong: The Bill provides a framework to control industrial pollution in Northern Ireland. It offers a holistic approach to land, water and air pollution, in line with EC Directive 96/61, and it aims to address industrial pollution setting out the framework whereby that can be achieved. However, it must be stressed that the Bill is only a framework. The Bill will affect many businesses as well as those in the poultry and pig farming sectors. Preventing pollution is beneficial to the environment. The role that farmers have played as stewards of the land must be recognised and credited. The Bill seeks to impose penalties for failure to comply with environmental standards. However, it does not set out adequately the best available techniques to be adopted as the yardstick to assess whether a business complies. It is vital that Departments concerned with the Bill co-operate by assisting the industries that will be directly affected. Departments concerned with the Bill co-operate by assisting the industries that will be directly affected. Departments must offer an incentive to comply with more stringent environmental controls. There is no point in forcing farmers to comply with tighter controls if it is simply not possible for them to do so. With those considerations in mind, further environmental legislation must not only push industry into complying; it must lead industry through supporting schemes such as waster management. I fear that those whom the Bill will affect must be all too aware of the consequences of incorporating the EC Directive into our law. Current law - the Industrial Pollution Control (Northern Ireland) Order 1997 - weighs environmental concerns against the costs associated with undertaking practice differently. However, if the Bill were fully implemented, only best available techniques would be considered; financial considerations would be excluded. I am conscious that this new approach may be less favourable to industry than is the case at present. We are told that general binding rules may offset some of the extra financial burdens associated with the legislation, but we wonder how that can be so. The Bill is a framework for introducing an EU Directive to our law. I understand that we must avoid penalties from Europe, which would be imposed if the legislation were not introduced. However, I urge the Minister to consider the affected industries when determining the rigour that will be used to implement the Directive. Also, can he assure the House that the legislation is being adopted consistently throughout European member states? Can the Minister clarify whether additional support will be given to projects such as anaerobic digesters for waste, in the light of the legislation? I fear that farmers could face fines if no realistic alternative course of action exists. Legislation must be fair, reasonable and lead industry to implement more environmentally sensitive measures, which could bring great benefits. Mr Foster: I wish to complement the Mount Charles caterers. We were rushed out of the Building, so many people arrived back for lunch at the same time, and staff catered very well for everyone. Having been in Dermot Nesbitt's position, I do not want to say too much other than that this is a worthwhile, important and necessary Bill. Less pollution, urgent measures for its prevention and greater control will benefit society. Less pollution would mean better health, and with healthier people, there would be less medical need. The Bill is also environmentally friendly. Failure to transpose the Directive into Northern Ireland legislation will result in infraction proceedings against the United Kingdom, and, although the Bill is at an advanced stage, the risk of heavy fines is very real. To avoid those fines, the Bill must be granted Royal Assent before the Assembly is dissolved for the May 2003 elections. The European Court of Justice delivered its judgement against the United Kingdom on 7 March 2002, ruling that the Directive had not been implemented. Unless the Northern Ireland Executive can demonstrate to the European Commission that the necessary legislation has been enacted, the Commission will go back to the European Court of Justice to have financial penalties imposed. That could happen before the end of 2002, with fines imposed in mid-to-late-2003. As the Minister has said, the Bill is largely enabling, and the Environment Committee will be able to consider fully its substance. I support the need to implement the Bill - it is more important than most people realise. Mr Nesbitt: I thank Members for their comments. I will address each in the order in which they were made. I thank the Chairperson of the Environment Committee, Dr McCrea, for his comments and for appreciating the need for speedy implementation. That is important. He referred to accelerated passage, and the fact than need and efficient delivery have equal priority. I appreciate that he must do something by September but I have not put him in that position. I think that it was a necessity: it put us all in that position. Therefore, I thank him for his clear intention to have that completed by September 2002. He mentioned agriculture, as did other Members. I am conscious that more Members seem to raise issues at the Second Stages of environmental Bills than in relation to other Bills at that Stage. He referred to the potential impact of the Bill on poultry farming and the farming industry in general. The extension applies to poultry and pigs only at a certain level - whether it may be 4,000 poultry, 750 sows or 2,000 pigs. The Bill applies only to establishments with that number of animals and birds. No installation will be exempt from the new controls. No one is excluded. The Department can do nothing about that. That has been made clear. The Department has no option but to bring such poultry and pig installations under the new controls. Failure to do so would be a clear breach of the EU Directive, and would expose the Department to the risk of further infraction proceedings. The thresholds that I referred to are set out in the Directive, and must be applied. I am conscious of the need to alleviate costs to the farming sector. Mr Savage said that farmers are being blamed for pollution. I come from a farming background and an agricultural constituency, and I put it on the record that I do not blame farmers. I want the polluter - whoever that may be - to pay. The principle that applies in waste management should do so in this context also. The principle of proximity is also similar: he who creates the problem should deal with the problem. I want to make that clinically clear. However, the Department want to assist where possible. For example, the Directive says that the installations that I have referred to do not have to be phased in until October 2007. In that case, I propose to defer the call-up for existing agricultural installations until November 2006 to January 2007. The Department will put that off for as long as possible in an effort to accommodate the agriculture industry. However, new installations, and those that have undergone changes, must be brought into line with the Directive immediately. The Department has also tried to accommodate the agriculture industry with regard to the charges that will be applied. I stress that those matters will be subject to regulation and consultation. They are not part of the enabling power but will go through full consultation. The charges will be in line with those in Great Britain, which have been reduced from the original estimates in order to lessen the impact on the agriculture sector. Those are two examples of how the Department is trying to accommodate that sector. I want to address the comments made by my party Colleague Mr Savage, who asked why there is no provision for the exemption of triviality. It is quite simple; there are two relevant issues that I want to explain. Under the 1997 legislation, trivial pollution could be dismissed; there is no such exception in this Bill. However, in trivial cases, the level of charges will reflect the extent of the seriousness. Although there is no exclusion, allowances are made. Therefore, a balance is struck. 2.45 pm I referred to the fact that farmers are being blamed all the time. Farmers are not soft touches. I have never thought that for one minute. As the saying goes, they know which side their bread is buttered on. I have every sympathy with the farming community. My officials have closely liaised with the Department of Agriculture and Rural Development, and with the farming industry, on the issues associated with the introduction of the new controls. Earlier this year, officials made a presentation to the Northern Ireland Poultry Federation and the central pigs committee of the Ulster Farmers' Union on the implications of this Directive for intensive pig and poultry farms. Since then, two working groups, involving my officials from the Department of Agriculture and Rural Development and industry representatives, have met to discuss the detailed requirements of the Directives and how they can be applied to the farming industry. The groups will continue to meet as necessary in the lead-up to the introduction of the legislation. I am very conscious of the farming sector, I meet with its representatives and will continue to do so. The agrisector is about more than farming, and I am conscious of the contribution that it makes to the gross domestic product of Northern Ireland. I am also conscious of the smallness of farms and the difficulties faced by the agriculture sector in Northern Ireland. As an elected body in Northern Ireland, the Assembly should be conscious of, and take cognisance of, those factors. I have tried to mention aspects where we have done that. I thank the Deputy Chairperson of the Environment Committee for her support for the Bill. I also thank Mick Murphy for his comments about recognising the farming community's concerns. I hope that I addressed that. We will continue to address those concerns. Mr Murphy also raised the issue of Crown immunity - that issue has not gone away. It remains a live issue that must be dealt with. Mr Armstrong mentioned best available techniques (BAT) and how to deal with them. Best available techniques are prepared on an EU-wide basis to identify the best techniques for the prevention or minimisation of pollution, taking sectoral affordability into account. That will inform the national technique guidance, which is uniformly applied across the United Kingdom. That aspect was also raised by Mr Armstrong. A further purpose of best available techniques is to inform the decision-making process for individual permits. Whether it be the chief inspector or the district councils making the decisions, the Department will still have a role to play in ensuring consistency. Mr Armstrong mentioned anaerobic digesters. Mr officials will carefully take note of Hansard and reply directly to him about that. The matter of whether general binding rules could apply, as opposed to issuing permits to individuals, was raised. I hope that they can apply, avoiding the need for individually tailored permits and thus reducing the costs involved. That is a further element of the attempt to reduce costs, which is required for the benefit of Northern Ireland. I thank my predecessor, Mr Foster, for his supportive comments, which were mindful of the benefit to Northern Ireland and of the costs involved, as well as of the sensitivity of the matter. I thank those who made constructive comments, and I acknowledge again the positive contribution made by the Rev Dr William McCrea and the Committee for the Environment to this sensitive issue. I commend the Bill to the Assembly. Question put and agreed to. Resolved: That the Second Stage of the Pollution Prevention and Control Bill (NIA 19/01) to be agreed. Madam Deputy Speaker: The Bill now stands referred to the Committee for the Environment. ANNEX 19 SPEAKING NOTES FROM: CLAUSE 1: PURPOSE OF SECTION 2
Sub-paragraph (a)
CLAUSE 2: REGULATION OF POLLUTING ACTIVITIES Clause 2(1) gives the Department regulation making power - and that is where the substance and detail of the new pollution control regime will be found - in the regulations to be made in due course under this enabling Bill. As regards the scope of the regulation making power - that is found in clause 2(1) and (2): Firstly, the power to make regulations is for certain specific defined purposes. These are listed in Part I of Schedule 1 (supplemented by Part II). We return to that in just a moment. Secondly, the regulations must be in relation to the three matters mentioned in clause 1 (that has already been covered). Before making any such regulations, there has to be consultation by the Department (required by clause 2(4). That may be prior consultation before the Bill is passed or it may take place later (clause 2(5)). As regards procedure - clause 2(6) to (8): Regulations will be subject to negative resolution but (7) and (8) provide for the procedure of having a draft laid before Assembly for approval by affirmative resolution - that is to apply in 3 situations - the first regulations to be made, any regulations creating an offence or increasing a penalty and any regulations amending or repealing any NI legislation. Turning then to purposes for which regulations may be made - that brings us to Schedule 1, Part I - List of Purposes is set out there. The forthcoming regulations made under these powers will constitute the new pollution control regime to meet the demands of the Directive. SCHEDULE 1 - PARTICULAR PURPOSES FOR WHICH PROVISION MAY BE MADE UNDER SECTION 2 PART I - LIST OF PURPOSES First group of purposes is headed Preliminary: 1. Standards, objectives and requirements in relation to emissions may be established and plans may be made in relation to emission limits and quotas. Quota trading or transfer schemes may be made. 2. Functions may be given to Department and Secretary of State and the persons or bodies which will act as enforcing authorities may be determined (that is, chief inspector and district councils). 3. Department or Secretary of State may have power to give directions and guidance to enforcing authorities. Next group of purposes listed in the Schedule is Permits: 4. Operators may be required to have permits, subject to conditions. 5. Restrictions may be imposed on grant of permits and the procedure may be regulated. 6. The contents of permits may be prescribed, including imposition of conditions. 7. There may be review or variation of permits. 8. There may be regulation of transfer, surrender and revocation of permits. 9. Regulations may be made in relation to charging schemes for permits. 10. There may also be charging schemes to cover items such as testing or analysis costs. The third set of purposes for which regulations may be made under the Bill is headed Information, publicity and consultation: 11. There may be regulations to enable persons to compile and provide information on emissions, energy consumption and efficiency and waste. 12. Then regulations may secure that publicity is given to specified matters and that registers are kept, open to public inspection but excluding specified information such as material that is commercially confidential. 13. Provision may be made for consultation by enforcing authorities. The Schedule moves then to Enforcement and offences: 14. Regulations may be made to deal with monitoring or inspecting activities covered by permits, including power to take samples or arrange for preventive or remedial action. Persons may be appointed to carry out these functions. 15. Provision may be made for appropriate notices to be served on holders of permits - enforceable in the High Court. 16. Permits may be suspended. 17. Offences may be created. 18. On conviction, there may be an order for remedial action as well as or instead of punishment. Next, to Appeals: 19. Regulations may be made to confer rights of appeal and then to govern the processing of appeals. Lastly, under the heading of General: 20. There is power to make provision similar to that made in the Industrial Pollution Control (NI) Order 1997, Part II of the Waste and Contaminated Land (NI) Order 1997 and implementation of certain other directives through the procedure provided in section 2(2) ECA 1972. Part II -SUPPLEMENTARY PROVISIONS Paragraphs 21 to 26 deal with Supplementary Provisions. These cover the following matters: 21. Particular types of pollution. 22. Determination of matters by enforcing authorities. 23. Imposition of conditions. 24. Charging schemes. 25. Offences. 26. Interpretation. CLAUSE 3 - NEW TRANSITIONAL PROVISIONS FOR DISPOSAL LICENCES Background 1. Clause 3 is one of two provisions in the Bill designed to ensure a smooth transition from the current system of waste disposal licences under the Pollution Control and Local Government (NI) Order 1978 (the 1978 Order) to the new system of waste management licences to be introduced in 2003 under the Waste and Contaminated Land Order 1997 (the 1997 Order). 2. Article 47 of the 1997 Order deals with transitional arrangements. Paragraphs (2) and (3) deal with transitional arrangements where an existing disposal licence or district council resolution is in force at the time the relevant provisions of the 1978 Order are repealed and replaced by the waste licensing provisions of the 1997 Order. 3. All such disposal licences and district council resolutions are deemed to be site licences under the 1997 Order for a period of 3 years. 4. The original purpose of this provision was to allow the Department's Environment and Heritage Service, as the new regulator, sufficient time to call in and convert all disposal licences and resolutions to new waste management licences. 5. In retrospect, however, it is considered that this provision could present a loophole by allowing operators to leave a site at the end of the 3-year period without any continuing obligation to address environmental and health safeguards. 6. It is this loophole that Clause 3 is designed to close. Subsection (1) provides for the amendments to Article 47 of the 1997 Order. Subsection (2) deals with disposal licences and replaces the words "for a period of 3 years from the relevant appointed day for licences" in paragraph (2) with the words "in accordance with Article 6(10)". Subsection (3) makes an identical amendment to paragraph 3 to deal with district council resolutions. Article 6(10) of the 1997 Order provides that a licence shall remain in force until it is revoked entirely by the Department under Article 12 or it is surrendered or its surrender is accepted under Article 13. CLAUSE 4 - DISPOSAL LICENCES WHICH EXPIRE BEFORE COMMENCEMENT OF WASTE MANAGEMENT LICENSING Background 1. Clause 4 is one of two provisions in the Bill designed to ensure a smooth transition from the current system of waste disposal licences under the Pollution Control and Local Government (NI) Order 1978 (the 1978 Order) to the new system of waste management licences to be introduced in 2003 under the Waste and Contaminated Land (NI) Order 1997 (the 1997 Order). 2. It is estimated that there may be a number of disposal licences which may have expired inadvertently without the knowledge of the district council or the operator who may still be carrying on operations authorised by the licence. 3. To deal with this situation Clause 4 provides that, where a disposal licence has expired and relevant activities (as defined) have been carried out within one year of the passing of this Act but before the introduction of the new waste management licensing system, the licence is deemed not to have expired and continues in force. 4. The Clause also contains provisions to authorise retrospectively actions carried out under the expired licence. It also requires district councils to notify licence holders about the new arrangements. Subsection (1) sets out the circumstances in which the provisions of the Clause 1 will apply. These are: (a) where a disposal licence issued under the 1978 Order expires on a date within one year before the passing of this Act (the relevant day) but before the date on which the new waste management licensing provisions of the 1997 Order, are introduced (the appointed day); and (b) relevant activities (as defined) have taken place after the time of expiry. It does not matter whether these activities have been carried out before or after the passing of this Act. Subsection (2) provides that the terms and conditions of licences continued in force under subsection (2) shall, subject to certain provisos, be the same as those in force immediately before the licence expired. These shall continue in force until varied under Part II of the 1997 Order. Subsection (4) provides retrospective approval to various activities which may have been carried out during the period when the licence had expired. Paragraph (a) disapplies the provisions of Article 5(1) of the 1978 Order to activities carried out during the interim period (as defined) treating such activities as authorised under the licence although expired. Paragraph (b) provides that any action, such as the serving of notices, undertaken before the expiry of the licence and due to take effect at any time during or after the interim period shall continue in force as if the licence had not expired. Paragraph (c) provides that any action taken during the interim period in relation to the licence shall also be treated as if the licence had been in force at the time. Paragraph (d) makes similar provision in relation to fees. Paragraph (e) provides that the licence holder is not penalised under the Duty of Care provisions for the 1997 Order by virtue of the fact that a disposal licence had expired. Subsection (6) provides that the provisions of Clause 4 do not affect any criminal proceedings which have been concluded before its coming into operation. This will prevent the possibility of anyone using these provisions to overturn or reopen any proceedings. Subsection (7) requires district councils to notify licence holders affected by the provisions of this Clause. Subsection (8) and (9) provide for the definition of the terms "relevant activities", "the appointed day", "the interim period", "the relevant day" and "site licence" as used in Clause 4. NOTE Clause 4(5) is a rogue provision which was inserted inadvertently. Its effect would be to give retrospective approval to any action carried under the expired licence whether or not it was in compliance with the terms of the original licence. The Minister will move an amendment at Consideration Stage to remove this subsection. ANNEX 20 LETTER FROM: 1 July 2002 In the course of the Committee hearing on the Bill on 27 June, members asked for information and clarification on a number of points. In order to facilitate further discussion at the meeting on 4 July, the Department is providing an initial response to these points. The points have been referred to Legislative Counsel for comments and the Department's final response will need to take these into account. It will also be necessary to seek the Minister's agreement to any proposed amendments. CLAUSE 2(4) In sub-paragraph (a) the Committee asked for the insertion of a specific requirement to consult district councils. Subject to the views of Legislative Counsel and the approval of the Minister, the Department is happy to accept this suggestion. The Committee also suggested substitution of the words "small businesses" with the words "any such businesses". The Department points out that in preparation of all legislation it is required specifically to consult and consider the implications for small businesses. While accepting the Committee's suggestion, the Department, subject to the provisos outlined above, would suggest that there should be a requirement to consult any such businesses with particular reference to small businesses. CLAUSE 2(5) The Committee expressed some concern about the interpretation of the prior consultation provision set out in this sub-section. The Department accepts the Committee's concern but feels that this can be met through a statement of intent thereby avoiding the need for a specific amendment. The purposes for which regulations are likely to be made under section 2 are set out in paragraph 20 of Schedule 1. In practical terms, the only regulations which will definitely attract the prior consultation provision in Clause 2(5) will be those to be made under the PPC Bill where the Department will be consulting on the draft regulations before the passing of the Act. There is also the possibility that a consultation paper on the regulatory aspects of the Landfill Directive may be issued before the Act is passed. Apart from these two examples no consultation for the purpose of any of the statutory provisions listed in paragraph 20 of Schedule 1 will be carried out before the passing of the Act. In addition, the Department does not intend to use Clause 2(5) to allow consultation already carried out in order to avoid the need for separate consultation on any matter falling within the scope of paragraph 20 of Schedule1. CLAUSE 4(6) The Department has sought the views of Legislative Counsel on the definition of the word "concluded". The Committee also asked why the requirements of Clause 4(6) should not be applied to criminal proceedings "commenced" rather than "concluded" before the coming into operation of the Clause. Again, advice has been sought from Legislative Counsel. However, having considered the point, officials remain of the view that to make the change suggested would change the effect of the Clause and could, in certain circumstances, create an inequality between those affected by the provisions. Officials will be happy to discuss this further at the meeting on 4 July. SCHEDULE 1 PARAGRAPH 20(2)(D) The Department has sought the views of Legislative Counsel on the suggestion that any order made under sub-paragraph (d) should be subject to affirmative resolution. However, in policy terms the Department is of the view that it would be most unusual to treat such orders in this way. The sole purpose of such orders would be to designate relevant Directives for the purpose of attracting the regulation-making powers in the Bill. The order itself would not be used to implement any requirements of the Directives. These would be set out in the subsequent regulations to be made under the Bill. Such regulations would be subject to consultation and scrutiny in the normal way and would also be covered by the safeguards in section 2(8)(b) and (c). SCHEDULES 2 AND 3 The Department will let the Committee have as soon as possible the detail of the amendments and repeals set out in Schedules 2 and 3. Agriculture The Committee asked for an update on discussions with the farming industry on the implementation arrangements for the legislation. At the beginning of this year Environment and Heritage Service (EHS) officials contacted both the Ulster Farmers' Union and the Northern Ireland Agricultural Producers Association about the implementation of the legislation. Subsequently, presentations were made to the NI Poultry Federation and the UFU Central Pigs Committee about the implications for intensive pig and poultry farms. At the presentation to the Poultry Federation membership of a working group was agreed including farmers, processors, feed suppliers and staff from DOE and DARD. At the UFU presentation, UFU agreed to identify farmers who would be willing to take part in a working group and to notify EHS. The first meeting of the poultry working group was held on 9 May 2002 and a second meeting on 19 June. The main focus of these meetings was to review the draft Standard Farming Installation Rules to be applied in Northern Ireland. The first meeting of the pig working group was held on 12 June 2002 and a second meeting has been arranged for 14 August 2002. It is hoped at that meeting to complete the review of the Standard Farming Installation Rules. The Scotland and Northern Ireland Forum for Environmental Research (SNIFFER) is funding an IPPC case study on one broiler farm in Scotland and one in Northern Ireland. This study is well underway and will be completed later this year. The case study report will include recommendations for improving the IPPC application documentation for farms. HUMAN RIGHTS COMMISSION The Department has already provided the Committee with copies of correspondence with the Human Rights Commission. This includes a commitment to consult the Commission on the draft regulations which will contain the detail of the powers of entry, etc. I trust that this information is helpful to the Committee. Officials will be happy to discuss further at the meeting on 4 July. EILEEN DOWD ANNEX 21 LETTER FROM: 8 July 2002 As you know, Department Officials gave a short and informative presentation to the Committee at the meeting on 4 July 2002 and answered questions from Members. Some issues have arisen as a result of the presentation and other contacts/correspondence. The Committee found the Department's letter of 1 July 2002 very helpful. However, a few outstanding issues remain and the Committee would find it useful to have a further update on discussions with the farming industry - particularly on concerns over potential costs to the industry. At last week's meeting, the Officials referred to a further consultation with the Human Rights Commission on the Bill and subsequent Regulations - the Committee would be particularly interested in the outcome of this consultation. FURTHER QUESTIONS It was not possible to deal with all of the issues within the time available at last week's meeting and it was agreed that outstanding questions would be sent to the Department for written answer. These questions are now attached. CONSULTATION RESPONSES I have also enclosed, without prejudice, a copy of a response that the Committee has received as part of its consultation exercise with some key consultees. The Committee would invite comments from the Department on the issues within this response. Further responses will be forwarded, as they are received in this office, for urgent consideration and reply by the Department. THE WAY FORWARD As the Chairperson emphasised at last week's meeting, the Committee has agreed to complete the Committee Stage of this Bill by mid-September and consequently, it is of the utmost importance that the Department should deal with all queries and correspondence with the minimum delay. The Committee is genuinely striving to meet its agreement on early completion of the Committee Stage of this Bill. However, this can only be achieved with the full co-operation of the Department. It is important that everything is done to move the Committee's scrutiny forward as quickly as possible and that everyone is prepared to do what is required to facilitate this. To this end, I would ask for the Department's response on questions already raised, to all further questions (attached) and to all consultation responses forwarded, by close 2 August 2002. This will allow the Committee's Support Services to fully examine the Department's responses and to clarify any issues, if appropriate, so that timely information can be provided to the Committee in advance of the meeting on 5 September 2002. MEETING OF 5 SEPTEMBER 2002 Department Officials are asked to attend the meeting on 5 September 2002 at 10.45am to give a brief overview of the Department's responses to all of the items outlined above. Officials should also include within this presentation an overview of the finalised draft PPC Regulations and associated consultation paper, in the context of the Bill, and be prepared to answer Members' questions on all of these issues. If you have any queries about any aspect of this letter, please do not hesitate to contact John Simmons or me. JIM BEATTY FURTHER QUESTIONS CLAUSE 2(5) - the Department has rejected the Committee's suggestion that this needs to be amended to reflect the limited application for this 'prior consultation' clause, that is, that it only applies to the first Regulations (and possibly the regulatory aspects of the Landfill Directive) arising from the Bill. Instead, the Department has suggested that a 'statement of intent' will suffice. What exactly would this 'statement of intent' say? Has this process ever been used before? Where/when would this statement be published? If such an effort is needed to clarify the position, would it not be better and clearer to simply amend the clause, as suggested by the Committee? CLAUSE 3 - amends Article 47, paras 2 and 3 of the 1997 Order so that licences will not expire after three years. However, para 4 of Article 47 refers to disposal plans of District Councils that are also in force for three years. Does para 4 of Article 47 of the 1997 Order need to be amended or will District Council disposal plans continue to remain in force for three years? CLAUSE 4(1)(a) - this subsection, and others, refers to the 'appointed day'. In subsection 4 (9) this phrase is defined as 'in relation to a licence, means the day which in relation to that licence is (or would have been if the licence had not previously expired) the relevant appointed day for licences (within the meaning of Article 47 of the 1997 Order)' However, Article 47 of the 1997 Order further refers to disposal licences under the Pollution Control and Local Government (NI) Order 1978. In simple terms, what/when is 'the appointed day'? Is it possible to have a clearer definition within the Bill so that 4(1)(a) is more clearly understood? CLAUSE 4(5) - Can the Department confirm that this subsection is to be deleted in its entirety? Are there any consequential amendments to other parts of the Bill? If so, these should be provided. CLAUSE 4(7) - specifically requires District Councils to notify current licence holders of how their licences have been affected. If the Department is taking on the major controlling role through the Chief Inspector, why should the onus to notify the licence holders, fall to the Councils rather than the Department? SCHEDULE 1, PARA 15(1)(b) - requires the licence holder 'to provide such financial security' as appropriate pending the taking of remedial action in respect of contraventions. What is meant by 'such financial security'? Is it intended for this 'financial security' be held by the enforcing authority? If so, in what form must this be provided? SCHEDULE 1, PARA 15(1)(c) - allows the issuing of notices to require licence holders 'to take steps to remove imminent risks of serious environmental pollution' The Officials did attempt to explain the reasoning for use of the word 'serious' but the Committee is concerned at the likelihood of a subjective judgment to assess the level of environmental pollution and is not convinced that this word is needed. Is the definition of 'serious', as given to the Committee, not open to challenge? What recourse does a licence holder have if he does not accept the Department's assessment? Would it not be better to remove the word' serious' to remove any ambiguity? SCHEDULE 1, PARA 25 - provides for those guilty of offences to be fined - £20,000 on summary conviction and unspecified for conviction on indictment. However, some may consider that the Courts have, on occasions, failed to impose fines that would sufficiently deter other potential offenders and there is little within this legislation that would encourage the Courts to impose appropriate and effective penalties/fines. In the proposals within the Planning (Amendment) Bill, those guilty of offences will be similarly fined but that Bill provides for the court to take account of the financial benefits accrued, or likely to accrue, as a result of the offence. Why is a similar provision not within this Bill so that, for example, those guilty of illegal dumping of toxic waste, are fined accordingly? Why is the level of fine imposed not directly related to the degree of environmental pollution arising from the offence, for example, river pollution causing a major fishkill? ANNEX 22 LETTER FROM: 2 July 2002 Thank you for the opportunity to provide further comment to the Pollution, Prevention and Control Bill. The Council for Nature Conservation and the Countryside wishes to make the following comments: - A. 11. Enabling persons of any specified description (whether or not they are holders of permits) to be required - (a) to compile information - (ii) on energy consumption and on the efficiency with which energy is used; Council assumes that this covers all agreements. B. 15. (1) Authorising enforcing authorities to serve on holders of permits - (a) notices requiring them to take remedial action in respect of contraventions, action or potential, of conditions of which their permits are subjected; Council accepts the application of notices for remedial action, but would have concerns whether this would cover the restoration of sites 'post reasonable commercial operation'. Council is concerned that there seems to be no detail in the Bill on the procedures of Transboundary Consultation. DR LUCINDA BLAKISTON HOUSTON ANNEX 23 LETTER FROM: 6 August 2002 Thank you for your letter of 8 July raising a number of issues following on from the presentation by officials at the Committee hearing on the Bill on 4 July. I would like to begin by apologising for the slight delay in meeting your request for a reply by 2 August. The Department appreciates fully the support of the Committee in progressing this Bill and the delay in this case was due to the absence of key officials on holiday. AGRICULTURE The Committee asked for a further update on discussions with the farming industry. As indicated in my letter of 1 July, the next meeting of the pig working group is scheduled for 14 August. It is hoped at that meeting to complete the initial review of the Standard Farming Installation Rules. My letter of 1 July also referred to the ongoing study funded by the Scotland and Northern Ireland Forum for Environmental Research (SNIFFER). A further meeting of the poultry working group will be arranged once this case study has been completed later this year. At the meetings held to date, industry representatives have requested that charges arising from the new controls should be minimised. Officials have already given an undertaking that charges in Northern Ireland will not be higher than those in the rest of the United Kingdom and will continue to take account of the concerns of the industry in developing charging proposals. However, these will have to be balanced against the need for the proposals to achieve full cost recovery. Officials will be happy to provide an update on any further developments at the Committee hearing on 5 September. HUMAN RIGHTS COMMISSION In line with the undertaking given to the Committee on 4 July, officials provided the Human Rights Commission with a further copy of the Bill along with an advance copy of the draft Regulations. The Commission has indicated that it has no comment on the Bill. However, it has highlighted a few points in the draft Regulations which it feels may raise concerns from a human rights perspective. Officials will consider these in the context of the consultation exercise on the draft Regulations and will provide the Committee with details of the Commission's points and the Department's response as part of its ongoing liaison with the Committee on the draft Regulations. FURTHER QUESTIONS The Committee has raised a number of further questions on the provisions of the Bill. A detailed response to these is set out in the Annex. CONSULTATION RESPONSES You enclosed with your letter a response from the Council for Nature Conservation and the Countryside (CNCC) to the consultation exercise carried out by the Committee with key consultees. The issues raised are similar to those which it raised in response to the initial consultation carried out by the Department in June 2001. Firstly, the Council is seeking confirmation that the requirement in paragraph 11(a)(ii) of Schedule 1 for persons to be required to compile information " on energy consumption and on the efficiency with which energy is used" covers all agreements. Officials are seeking clarification from CNCC on this point, particularly what is meant by the reference to "all agreements". Once this has been obtained, officials will provide a detailed response to the CNCC point. Secondly, in relation to the requirement in paragraph 15(1)(a) of Schedule 1 requiring remedial action to deal with permit contraventions, the Council is concerned as to whether this would involve the restoration of sites "post reasonable commercial operation" The purpose of this provision is to enable remedial action to be taken to deal with the contravention of the conditions of a permit. This is distinct from the requirement of the Directive (to be reflected in the draft Regulations) that a site should be returned to a satisfactory state after cessation of activities authorised by the permit. It is possible that the Council may be repeating its consultation comment that operators should not be able to use insolvency or bankruptcy as a means to avoid the requirements of the legislation in relation to site restoration. This point was considered carefully by the Department but was not taken up, on the grounds that it would not be possible to make special provision in this case and that the current legislation relating to insolvency and bankruptcy must apply to activities under this legislation. Officials will seek clarification from the Council on this point and will provide an update for the Committee at the hearing on 5 September. Thirdly, the Council is concerned that the Bill contains no detail on the procedures for transboundary consultation. These procedures will be set out in the draft Regulations which will be sent to CNCC for comment. I hope that these comments are helpful to the Committee. As requested, officials will be happy to attend the hearing on 5 September and to talk to the points covered in this letter. We have also asked Legislative Counsel to draft a number of amendments arising from the Committee's consideration of the Bill. It is hoped that these will be drafted and approved by the Minister for submission to the Committee in advance of the meeting on 5 September. CORAL RITCHIE FURTHER QUESTIONS Clause 2(5) In view of the Committee's continuing concern about the scope of consultation arrangements provided for by this provision, Legislative Counsel has been asked to for advice on the possibility of drafting an amendment which will meet the Committee's point. Clause 3 Article 23 of the Waste and Contaminated Land (NI) Order 1997 (the 1997 Order) provides for a new system of district council waste management plans designed to replace the current system of waste disposal plans under the Pollution Control and Local Government (NI) Order 1978. The new plans are a requirement of the Waste Framework Directive. As with the new licensing arrangements, it was originally intended that the new waste management plans would be introduced on a phased basis, hence the 3-year transitional period. However, in order to deal with an EU infraction case, it has been necessary to accelerate the introduction of the new waste management plans. Draft WMPs were submitted to the Department by the three Council Partnership Groups on 28 June and are currently the subject of legal, economic and environmental appraisal. It is expected that the WMPs will be finalised in the Autumn. These new arrangements mean that the 3-year period provided for in Article 47(4) of the 1997 Order is of no practical effect. Clause 4(1)(a) The Committee asked for an explanation, in simple terms, of the term "appointed day" used in Clause 4(1)(a). The term is defined in Clause 4(9) and means the date on which the regulations introducing the new waste management licensing controls under the Waste and Contaminated Land (NI) Order are introduced. On that date Articles 5 to 12 of the Pollution Control and Local Government (NI) Order 1978 ( which deal with the system of disposal licences under that Order) will be repealed. Any existing disposal licences will, by virtue of Article 47(2) of the Waste and Contaminated Land (NI) Order 1997 (as amended by Clause 3 of the Bill), be converted into site licences and be subject to the new controls in the 1997 Order relating to transfer, surrender etc. This is essentially a drafting matter, to ensure that the Clause achieves the intended outcome. The Department has, however, drawn the Committee's comments to the attention of Legislative Counsel. Clause 4(5) I can confirm that Legislative Counsel has been asked to draft an amendment to remove this provision in its entirety. This will not necessitate any consequential amendments to other provisions of the Bill. Clause 4(7) Clause 4 makes provision for certain disposal licences which have expired inadvertently. Responsibility for the issue and enforcement of waste disposal licences under the 1978 Order rests with district councils. District councils hold all relevant information in relation to such licences and are therefore best placed to notify licence holders about the effect of the new provisions. Schedule 1 paragraph 15(1)(b) Officials are giving consideration to the points raised by the Committee in relation to this provision and should be in a position to provide an update for the Committee at the hearing on 5 September. Schedule 1 paragraph 15(1)(c) The Committee remains concerned about the use of the word "serious" in this provision The wording of this provision is identical to that contained in the current Northern Ireland legislation on industrial pollution control and in the parallel GB legislation on IPPC. To date it has not presented any difficulties. The reference to "serious environmental pollution" in this provision relates to the power to issue suspension notices which will be given effect by regulation 25 of the draft regulations. A similar definition appears in regulation 26 which deals with the power of enforcing authorities to prevent or remedy pollution. Regulation 25 places an obligation on an enforcing authority to issue a suspension notice where there is an imminent risk of serious pollution. A suspension notice will specify the steps to be taken to remove the pollution risk and will cease to authorise the carrying on of activities in the installation, either in whole or in part. In effect this will require enforcing authorities to shut down such installation completely or partially. In situations where the risk is considered to be less serious, enforcing authorities may serve an enforcement notice requiring the operator to deal with the breach without the need to cease operations. The definition of the term "pollution" in the regulations could be taken to be the release of a pollutant in a very small quantity. Therefore, the removal of the word "serious" would have the effect of requiring enforcing authorities to issue suspension notices in a wide variety of circumstances. Not only would this cause disruption to industry but it would also be inconsistent with the purpose of the provision which is to allow for its use only in exceptional circumstances. The decision on what constitutes serious pollution will be taken by enforcing authorities on the basis of knowledge and experience. In the Department's view, this is the only practical way to operate the provision; to try to define the term in legislation in a way that would cover all relevant circumstances is likely to prove impossible and could well result in enforcing authorities being unable to take urgent action in particular circumstances where there is a need to do so. The draft Regulations (Regulation 28) provide a right of appeal to the Planning Appeals Commission to any operator aggrieved by the issue of a suspension notice. Schedule 1 paragraph 25 The Committee expressed concerns about the level of fines provided for by this provision and suggested that they should be linked to directly to the seriousness of the offence. The setting of a maximum fine level at £20,000 relates only to summary conviction. There is provision for an unlimited fine on conviction on indictment. The arrangements for fines set out in the Bill reflect the penalty provisions in many pieces of environmental legislation. Decisions on the level of fine to be imposed are, as the Committee acknowledges, a matter for the Courts, although the Department has sought in the past, through the NI Courts Service and the Resident Magistrates Association, to draw attention to the seriousness of pollution incidents. Moreover, within the limits set by the legislation, Courts do have discretion to take into account the factors proposed by the Committee and the Department, as it does currently in respect of water pollution incidents, will provide the Courts with details of the costs of prosecution and, where relevant, the environmental impact of the pollution, so that these can be taken into account in setting fines. ANNEX 24 LETTER FROM: 19 August 2002 NIMEA offers the following comments on the proposed clauses to the Bill. 1. NIMEA is aware of the impending IPPC legislation and recognises that domestic legislation has to be introduced to administer Council Directive 96/61 EC. 2. I note from the fax sent to us the 15 August addresses 24 Ballygowan Road, Banbridge, this may explain the reason we never received the consultation papers as our address is 24 Ballydown Road, Banbridge. NIMEA is disappointed that we did not get the opportunity to have a longer period of time similar to there consultees. Under the draft regulation at Section 2 Paragraph 4 NIMEA would consider itself as one of the interested stakeholder groups as it represents the majority of all slaughterhouses operating in Northern Ireland. 3. At paragraph 21 FINANCIAL EFFETS OF THE BILL, it states that there will be a Chief inspector appointed for part A and the District Councils involved at part C. NIMEA is concerned that there will not be a single enforcing agency in Northern Ireland. Experience has shown with the 26 District Councils that there can be 26 interpretations of the same piece of legislation. This is totally unacceptable in a place the size of Northern Ireland. 4. NIMEA is also very anxious to ensure that the Bill accurately reflects the content of the EU IPPC legislation. It is envisaged that this Bill will add considerable costs to the small business sector Northern Ireland to the extent that we fear it will render some of these small businesses as unviable. History has shown that the UK has a tendency to overreact and impose controls beyond what is specified in the EU legislation. NIMEA would therefore request the Committee to ensure the Northern Ireland legislation does therefore not extend in greater detail that the EU legislation. 5. NIMEA finds it difficult to offer any detailed comment given that the detail of the bill and how it will affect individual companies is still very unclear. Indeed the information contained in the Assembly Committee's Financial and Explanatory Memorandum is till in general terms and it is difficult how this will affect individual companies. NIMEA would request that both the Department and the Assembly Committee consult it at every stage and that the consultation documents are sent to the correct address. CECIL MATHERS ANNEX 25 LETTER FROM: 23 August 2002 The Department is proposing to publish the above draft Regulations for consultation on Thursday 29 August. I enclose 17 advance copies for the information of the Committee. The closing date for comments is 29 November. The Committee is already familiar with the background to the need for the draft Regulations which, along with the Pollution Prevention and Control Bill, are necessary to transpose the EU Directive on Integrated Pollution Prevention and Control. The draft Regulations contain the details of the new controls provided for in the Bill which is currently under consideration by the Committee. To facilitate this, the Department provided the Committee with an advance copy of the draft Regulations in early July. Formal publication of the draft Regulations at this stage, along with a consultation paper and partial Regulatory Impact Assessment should further assist that process. It will allow also for a normal 12-week consultation period while maintaining the Department's objective of ensuring that both the Bill and Regulations can be brought into operation by March 2003. Officials will be attending the Committee hearing on the Bill on 5 September and will be happy to provide clarification of any points at that or subsequent meetings. They will also liaise closely with the Committee on the outcome of the consultation process. If you need anything further please let me know. CORAL RITCHIE ANNEX 26 LETTER FROM: 28 August 2002 Introduction 1. Further to my letter of 8 August, I am now in a position to provide you with more information to assist the Committee's consideration of the Bill. Schedules 2 and 3 2. At the Committee hearings before the summer recess, officials undertook to provide the Committee with details of the consequential amendments and repeals provided for in Schedules 2 and 3 to the Bill. An explanatory paper is enclosed. Officials will be happy to provide any further clarification on 5 September. Amendments 3. I also enclose seven proposed amendments to the Bill which have been drafted by Legislative Counsel. Six of these reflect the outcome of ongoing discussions between officials and the Committee on the provisions of the Bill and will hopefully meet all the drafting points raised by the Committee to date. The seventh provides a power for the Department to make grants to further the objectives of its Waste Strategy. Officials outlined the background to and need for this amendment at the meeting with the Committee on 27 June. I should emphasise that the amendments are being sent to the Committee at this stage to facilitate the Committee's deliberations on the Bill. Although the Minister has seen and agreed in principle to the amendments, it will be necessary, once any further consideration has been completed, to seek his formal agreement and that of the Executive to table the amendments at Consideration Stage. Other Issues 4. In my letter of 8 August I indicated that officials were seeking clarification from the Council for Nature Conservation and the Countryside on the points made in its response to the Committee on the Bill. The Committee has now confirmed that the points are the same as those made to the Department in response to its initial consultation. Copies of the Department's responses to CNCC and other consultees were sent to the Committee on 20 June. I trust that this further information will be of assistance to the Committee. CORAL RITCHIE Amendments 1. Public Health (Ireland) Act 1878 (c.52), section 108 2. Land Development Values (Compensation) Act (N.I.) 1965 (c.23), Part II, Schedule 2, paragraph 5(2) 3. Pollution Control and Local Govt. (NI) Order 1978 (NI 19), Article 55(4)(a) Article 55(4)(b) Article 56(1) Article 56(2) Article 57(4) Article 58(2) 4. Merchant Shipping Act 1995 (c.21), section 136A 5. Finance Act 1996 (c.8), section 66(ba) 6. Water (Northern Ireland) Order 1999 (NI 6), Article 10(1) Article 10(2) Article 30(1)(n) Repeals 1. Pollution Control and Local Govt. (NI) Order 1978 (NI 19), Articles 2(2), 55(4)(a), 55(4)(b), 56(1), 57(4), 58(2A) 2. Clean Air (Northern Ireland) Order 1981 (NI 4), Article 24A 3. Environmental Protection Act 1990 (c. 43), Sections 3(5) to (7) and 164(4) 4. Industrial Pollution Control (Northern Ireland) Order 1997 (NI 18) 5. Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19), Schedule 5, paragraph 8 6. Water (Northern Ireland) Order 1999 (NI 6), Articles 10(1)(c), 10(2)(b), Schedule 7 7. Northern Ireland Act 1998 (c.47), Schedule 3, paragraph 39 Introduction The following pages outline the amendments (Schedule 2) and repeals (Schedule 3) proposed under the Pollution Prevention and Control Bill. They give details of existing legislation, the proposed changes and an explanation. The amendments and repeals are dealt with in the order in which they appear in the Bill and are listed on the previous page. The Industrial Pollution Control (Northern Ireland) Order 1997 (NI 18) As part of the proposed Bill, the Industrial Pollution and Control (Northern Ireland) Order 1997 (NI 18) (the 1997 Order) is to be repealed in full. However, this repeal will not take effect until all eligible installations are brought within new controls provided for in the Bill. This being the case, it is necessary to make consequential amendments to legislation which refers to the Industrial Pollution and Control Order. The majority of the amendments and repeals under this proposed Bill are for this reason alone. SCHEDULE 2 - PARAGRAPH 1 The Public Health (Ireland) Act 1878 (c.52) Section 108 Existing Text 108. . but a district council shall not, without the consent of the Department of the Environment, institute proceedings under this Part in respect of a nuisance to which section 107 applies by virtue of paragraph (4) or (7) of that section or Article 23 of the Clean Air (Northern Ireland) Order 1981, if proceedings in respect thereof might be instituted under the Alkali, &c. Works Regulations Act 1906 or the Industrial Pollution Control (Northern Ireland) Order 1997. Changes under Bill Substitute from "; but a district council shall not" to the end with "; but a district council shall not, without the consent of the Department of the Environment, institute proceedings under this Part in respect of a nuisance to which section 107 applies by virtue of paragraph (4) or (7) of that section or Article 23 of the Clean Air (Northern Ireland) Order 1981, if proceedings in respect thereof might be instituted under- regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002; or the Industrial Pollution Control (Northern Ireland) Order 1997". Explanation To take account of the new legislation this amendment adds a reference to regulations to be made under the Bill. It also removes reference to the provisions of the Alkali Act 1906 the provisions of which are no longer extant. SCHEDULE 2 - PARAGRAPH 2 The Land Development Values (Compensation) Act (Northern Ireland) 1965 (c. 23) Part II of Schedule 2, paragraph 5(2) Existing Text Deals with Use Classes for the purposes of the legislation. Paragraphs 5(1) and 5(2) were repealed under Industrial Pollution Control (Northern Ireland) Order 1997, and paragraph 5(3) as below was inserted by that Order. Changes under Bill Reinstatement of same wording Explanation An identical amendment was inserted by paragraph 10(2) of Schedule 4 to the 1997 Order. The purpose of this amendment is to ensure that the provision remains extant for the purposes of the Bill once the 1997 Order has been repealed. SCHEDULE 2 - PARAGRAPH 3(1) The Pollution Control and Local Government (Northern Ireland) Order 1978 (NI19) Article 55(4)(a) (Regulations about sulphur content of oil fuel for furnaces or engines) - amendment Existing Text [duty] of every district council to enforce the provisions of regulations under this Article within its district, except in relation to a furnace which is part of a process subject to the Industrial Pollution Control Order; and Changes under Bill After "part of" insert "an installation or plant subject to regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or" Explanation To take account of the new legislation this amendment adds a reference to regulations to be made under the Bill. SCHEDULE 2 - PARAGRAPH 3(2) Article 55(4)(b) - amendment Existing Text [duty] of the inspectors appointed under the Industrial Pollution Control Order, to enforce those provisions in relation to such furnaces. Changes under Bill For sub-paragraph (b) substitute "(b) of the inspectors appointed under the Industrial Pollution Control Order or the regulations mentioned in sub-paragraph (a) to enforce those provisions in relation to such furnaces" Explanation To take account of the new legislation this amendment adds a reference to inspectors to be appointed under regulations to be made under the Bill. SCHEDULE 2 - PARAGRAPH 3(3) Article 56(1) (Cable burning) - amendment Existing Text A person who burns insulation from a cable with a view to recovering metal from the cable shall be guilty of an offence unless the burning is part of a process subject to the Industrial Pollution Control Order. Changes under Bill After "unless the" insert "burning is part of an activity subject to regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or the" Explanation To take account of the new legislation, this amendment adds a reference to regulations to be made under the Bill. SCHEDULE 2 - PARAGRAPH 3(4) Article 56(2) - amendment Existing Text A person guilty of an offence under this Article shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale." Changes under Bill Reinstatement of same wording Explanation An identical amendment was inserted by paragraph 10(2) of Schedule 4 to the 1997 Order. The purpose of this amendment is to ensure that the provision remains extant for the purposes of the Bill once the 1997 Order has been repealed. SCHEDULE 2 - PARAGRAPH 3(5) Article 57(4) (Research and publicity) - amendment Existing Text (4) Nothing in this Article shall authorise a district council to investigate emissions from any process subject to the Industrial Pollution Order otherwise than by issuing notices under Article 58, or by exercising the powers conferred on the council by paragraph (1)(a) of this Article without entering the work. Changes under Bill After "emissions from any" insert "activity subject to regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or any" Explanation To take account of the new legislation, this amendment adds a reference to regulations to be made under the Bill. SCHEDULE 2 - PARAGRAPH 3(6) Article 58(2) (Notices requiring information about air pollution) - amendment Existing Text (2A) If the notice relates to a process subject to the Industrial Pollution Control Order, the person on whom the notice is served shall not be obliged to supply any information which, as certified by an inspector appointed under that Order, is not of a kind which is being supplied to the inspector for the purposes of that Order. Changes under Bill After subsection (2) insert "(2AA) If the notice relates to an installation or plant subject to regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002, the person on whom the notice is served shall not be obliged to supply any information which, as certified by an inspector appointed under those regulations, is not of a kind which is being supplied to the inspector for the purposes of those regulations." Explanation To take account of the new legislation, this amendment adds a reference to regulations to be made under the Bill SCHEDULE 2 - PARAGRAPH 4 The Merchant Shipping Act 1995 (c.21) Section 136A - amendment Existing Text The provisions of sections 131(1) and 136(1) shall not apply to any discharge which is made under, and the provisions of section 136(1) shall not apply to any escape which is authorised by, an authorisation granted under Part 1 of the Environmental Protection Act 1990 or a permit granted under regulations under section 2 of the Pollution Prevention and Control Act 1999. Changes under Bill At the end add "or an authorisation or permit granted under any corresponding provisions of the law of Northern Ireland" Explanation The purpose of this amendment is to ensure that the relevant provisions of the Merchant Shipping Act 1995 apply equally to activities under corresponding NI legislation, i.e an authorisation under the 1997 Order or a permit under the Bill. SCHEDULE 2 - PARAGRAPH 5 The Finance Act 1996 (c. 8) Section 66(ba) - amendment Existing Text Landfill sites. 66. Land is a landfill site at a given time if at that time- a licence which is a site licence for the purposes of Part II of the Environmental Protection Act 1990 (waste on land) is in force in relation to the land and authorises disposals in or on the land, a resolution under section 54 of that Act (land occupied by waste disposal authorities in Scotland) is in force in relation to the land and authorises deposits or disposals in or on the land, (ba) a permit under regulations under section 2 of the Pollution Prevention and Control Act 1999 is in force in relation to the land and authorises deposits or disposals in or on the land, (c) a disposal licence issued under Part II of the Pollution Control and Local Government (Northern Ireland) Order 1978 (waste on land) is in force in relation to the land and authorises deposits on the land, (d) a resolution passed under Article 13 of that Order (land occupied by district councils in Northern Ireland) is in force in relation to the land and relates to deposits on the land, or (e)a licence under any provision for the time being having effect in Northern Ireland and corresponding to section 35 of the Environmental Protection Act 1990 (waste management licences) is in force in relation to the land and authorises disposals in or on the land. Changes under Bill In section 66(ba) after "1999" insert "or under regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002" Explanation To take account of the new legislation, this amendment adds a reference to regulations to be made under the Bill SCHEDULE 2 - PARAGRAPH 6(1) The Water (Northern Ireland) Order 1999 (NI 6) Article 10(1) - amendment Existing Text Relationship with other statutory provisions controlling pollution 10. - (1) The discharge or deposit of any effluent or matter made under and in accordance with, or as a result of any act or omission under and in accordance with, a discharge consent shall not constitute an offence under or a contravention of- (a) any regulations under section 13 of the Foyle Fisheries Act (Northern Ireland) 1952; (b) section 47 of the Fisheries Act (Northern Ireland) 1966 or any byelaws under section 26 of that Act; (c) Article 23 of the Industrial Pollution Control (Northern Ireland) Order 1997; or (d) Article 7(1). Changes under Bill After sub-paragraph (b) insert "(bb) regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002;" Explanation To take account of the new legislation, this amendment adds a reference to regulations to be made under the Bill. SCHEDULE 2 - PARAGRAPH 6(2) Article 10(2) - amendment Existing Text (2) A person shall not be guilty of an offence under Article 7(1) or 9 in respect of the discharge or deposit of any matter if the discharge or deposit is made under and in accordance with, or as a result of any act or omission under and in accordance with- (a) a licence granted under Part II of the Food and Environment Protection Act 1985; (b) an authorisation granted under the Industrial Pollution Control (Northern Ireland) Order 1997; (c) a waste management licence granted under the Waste and Contaminated Land (Northern Ireland) Order 1997. Changes under Bill After sub-paragraph (c) insert "(d) a permit granted under regulations under section 2 of the Pollution Prevention and Control Act (Northern Ireland 2002)" Explanation To take account of the new legislation, this amendment adds a reference to regulations to be made under the Bill SCHEDULE 2 - PARAGRAPH 6(3) Article 30(1)(n) - amendment .... Existing Text (n) any matter about which particulars are required to be kept in any register under Article 20 of the Industrial Pollution Control (Northern Ireland) Order 1997 (particulars about authorisations for prescribed processes, etc.) by the chief inspector appointed under that Order; .... Changes under Bill After "register" insert "under regulations made under section 2 of the Pollution Prevention and Control Act (Northern Ireland) 2002 or;" Explanation To take account of the new legislation, this amendment adds a reference to regulations to be made under the Bill. SCHEDULE 3 - REPEAL The Pollution Control and Local Government (NI) Order 1978 (NI 19) This provision provides for the repeal of a number of references to the 1997 Order. These will become superfluous once the 1997 Order has been repealed and will be enacted by Commencement Order at the appropriate time. SCHEDULE 3 - REPEAL The Clean Air (Northern Ireland) Order 1981 (NI 4) Article 24A - repeal Existing Text Relation to Industrial Pollution Control (Northern Ireland) Order 1997 24A. - (1) Articles 3 to 24 shall not apply to any process which is a prescribed process as from the date which is the determination date for that process. (2) The "determination date" for a prescribed process is- (a) in the case of a process for which an authorisation is granted, the date on which the enforcing authority grants it, whether in pursuance of the application or, on an appeal, of a direction to grant it; (b) in the case of a process for which an authorisation is refused, the date of the refusal or, on an appeal, of the affirmation of the refusal. In this Article "authorisation", "enforcing authority" and "prescribed process" have the meaning given in Article 2 of the Industrial Pollution Control (Northern Ireland) Order 1997 and the reference to an appeal is a reference to an appeal under Article 15 of that Order. Changes under Bill Repeal of Article 24A Explanation This provision, inserted by paragraph 14 of Schedule 4 to the 1997 Order, disapplies the controls of the 1981 Order to processes subject to control under the 1997 Order. This provision will be superfluous on repeal of the 1997 Order and the repeal provided for by this provision will be enacted at that time. SCHEDULE 3 - REPEAL The Environmental Protection Act 1990 (c.43) Section 3(5) to (7) and Section 164(4) - repeal Existing Text (5) The Secretary of State may make plans for- (a) establishing limits for the total amount, or the total amount in any period, of any substance which may be released into the environment in, or in any area within, the United Kingdom; (b) allocating quotas as respects the release of substances to persons carrying on processes in respect of which any such limit is established; (c) establishing limits of the descriptions specified in subsection (2)(a) above so as progressively to reduce pollution of the environment; (d) the progressive improvement in the quality objectives and quality standards established by regulations under subsection (4) above; and the Secretary of State may, from time to time, revise any plan so made. (6) Regulations or plans under this section may be made for any purposes of this Part or for other purposes. (7) The Secretary of State shall give notice in the London, Edinburgh and Belfast Gazettes of the making and the revision of any plan under subsection (5) above and shall make the documents containing the plan, or the plan as so revised, available for inspection by members of the public at the places specified in the notice. Changes under Bill Repeal of sections 3(5) to (7) and the consequential repeal of 164(4) which makes reference to those sections. Explanation Sections 3(5) to (7) enabled the Secretary of State to make plans on a UK wide-basis, setting limits on the release of substances and allocating quotas on releases. With the advent of IPPC this UK-wide approach was superseded by providing the facility to each devolved administration. This was provided for in the GB legislation Pending equivalent legislation in Northern Ireland, the relevant provisions of the 1990 Act had to remain extant. The facility is included in the Bill (Schedule 1, paragraph 1) and will also be covered in the draft regulations. In these circumstances this provision provides for the repeal of the 1990 Act provisions which are no longer necessary. SCHEDULE 3 - REPEAL The Industrial Pollution Control (NI) Order 1997(N I 18) This provision provides for the repeal of the whole of the 1997 Order the provisions of which will not be necessary once all eligible installations have been brought within the controls provided for in the Bill The repeal will be enacted by a Commencement Order at the appropriate time. SCHEDULE 3 - REPEAL The Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19) SCHEDULE 5, PARAGRAPH 8 - REPEAL Existing Text Industrial Pollution Control (Northern Ireland) Order 1997 (NI 18) 8. In Article 28(1) (authorisation and other statutory controls) - for "Pollution Control and Local Government (Northern Ireland)
Order 1978" substitute "Waste and Contaminated Land (Northern Ireland)
Order 1997"; Changes under Bill Repeal of whole paragraph which was an amendment to the 1997 Order. Explanation This provision will be superfluous once the 1997 Order has been repealed and the repeal will be enacted by Commencement Order at the appropriate time.is consequential upon the repeal of the 1997 Order. SCHEDULE 3 - REPEAL The Water (NI) Order 1999 (NI6) Article 10(1)(c) and (2)(b) and Schedule 7 This provision provides for the repeal of three references to the provisions of the 1997 Order, which will become superfluous on repeal of that Order. SCHEDULE 3 - REPEAL (ASSOCIATED WITH REPEAL OF SECTIONS 3(5) TO (7) OF THE ENVIRONMENTAL PROTECTION ACT 1990) The Northern Ireland Act 1998 (c.47) Schedule 3, paragraph 39 - repeal Existing Text 39. The subject-matter of section 3(5) to (7) of the Environmental Protection Act 1990 (emission limits); the environmental protection technology scheme for research and development in the United Kingdom. Changes under Bill The Bill will repeal the provisions of the 1990 Act in so far as they refer to the setting of limits and quotas for releases. Explanation The subject matter of sections 3(5) to (7) was reserved to the Secretary of State under the Northern Ireland Act 1998. Because these matters are now dealt with at a devolved level and will be provided for in the PPC Bill and Regulations, their retention is no longer necessary. POLLUTION PREVENTION AND CONTROL BILL Amendment 1 Clause 2, page 2, line 4, at end insert '( ) district councils;' Note This amendment will place the Department under a specific requirement to consult district councils before making any regulations under this Clause. AMENDMENT 2 Clause 2, page 2, line 6, leave out from 'district councils' to 'businesses' and insert 'industry, agriculture and business' Note This amendment is partially consequential on 1. It removes the requirement to consult bodies or persons representative of district councils. It also places the Department under an obligation to consult 'businesses' rather than simply 'small businesses' AMENDMENT 3 Clause 2, page 2, line 9, at the beginning insert 'Except where the regulations in question contain provisions by virtue of paragraph 20(2)(b) or (d) of Schedule 1,' Note This amendment has been drafted by Legislative Counsel in an attempt to meet the Committee's point in relation to Clause 2(5). However, he has expressed strong reservations about the desirability for such an amendment. These reservations stem from the fact that the provisions of Schedule 1 to the Bill must, in legal terms, be read as a composite and interrelated set of provisions. Adopting a separate approach to individual sub-paragraphs would be inappropriate in drafting terms and could cause practical difficulties in the future implementation and interpretation of the provisions. For these reasons his preferred route would be to leave Clause 2(5) as drafted. He has also expressed strong support for the Department's view that the Committee's point in this case could best be met by an administrative undertaking along the lines previously suggested. AMENDMENT 4 Clause 4, page 3, line 3, leave out '(subject to subsection (5)' Note This is a minor amendment to remove a reference to subsection (5) of this Clause which will be deleted by Amendment 5. Amendment 5 Clause 4, page 3, line 36, leave out subsection (5) Note The effect of this amendment will be to ensure that only licence holders who have continued to operate within the terms of the (expired) disposal licence will be able to benefit from this Clause. AMENDMENT 6 Clause 4, page 3, line 40, leave out 'which have been concluded' and insert 'in which the accused has been convicted' Note The purpose of this amendment is to define more clearly the point at which criminal proceedings are deemed to be concluded for the purposes of this Clause and therefore not subject to the new provision. AMENDMENT 7 After Clause 4 insert- 'Financial Assistance by Department Financial assistance by Department (1) The Department may make grants to any body having
among its objects- (2) Grants under this section shall be made (b) subject to such conditions as the Department
may determine Note This amendment will provide the Department with a general power to provide financial assistance in the form of grants to bodies in furtherance of the objectives of the Waste Strategy or the prevention or control of environmental pollution. ANNEX 27 LETTER FROM: NORTHERN IRELAND 3 September 2002 On behalf of the Chief Environmental Health Officers Group for Northern Ireland I would comment as follows. The proposed Bill will bring Northern Ireland into line with the main land. As local authorities, we will only be involved in the enforcement which relates to block C processes and therefore if anything, there may well be a slight reduction in the number of processes we will be dealing with. In general there is support for the content of the Bill. It is anticipated however that we will have further comment to make in respect of the draft pollution prevention and control regulations which were issued for consultation on 29 August. HEATHER MOORE ANNEX 28 LETTER FROM: 6 September 2002 Department Officials attended yesterday's Committee meeting and had an informative discussion with the Committee on proposed amendments and continuing concerns. At the end of the meeting it was agreed that I would write with a brief summary of the discussions, including those issues that the Officials were to consider further. The following relates to the 7 amendments proposed by the Department in its letter of 28 August 2002:-
'Appointed Day' - The Committee would be satisfied with suitable wording within the EFM. A form of words is required. 'Financial Security' - The Committee was unclear about the application of this Clause, in fact, there were questions as to the need for this provision at all. The Officials agreed to investigate the origins of and potential application for this. 'Level of Fines' - The Officials agreed to consider the issue of raising the level from £20k to £30k and, if appropriate, refer this to the Minister for consideration of inclusion with the submission already being prepared for the Secretary of State in relation to the Planning (Amendment) Bill. 'Fines Imposed' - In line with the approach adopted by the Department within the Planning (Amendment) Bill, the Officials agreed to consider an amendment to include a new provision to Schedule 1, Clause 25, eg,- 'In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to the seriousness of the pollution incident(s), the environmental impact of the pollution and, where relevant, details of the costs of restoration and prosecution and to any financial benefit which has accrued or appears likely to accrue to a person in consequence of the offence.' In light of the very tight timetable in which this Bill is to be progressed, it would be extremely desirable that a reply to these queries should be received no later than 3.00pm on Monday 9 September 2002. JIM BEATTY ANNEX 29 LETTER FROM: 9 September 2002 Thank you for your letter of 6 September 2002 summarising the action points arising from the presentation by officials on 5 September 2002. Amendments to Explanatory and Financial Memorandum I attach a text in respect of two amendments. These are designed to clarify the prior consultation arrangements provided for in Clause 2(5) and the meaning of the terms 'appointed day' and 'relevant day' in Clause 4. Drafting Amendments I attach 2 amendments. The first is an amendment to Clause 2 which will require the Department to consult both district councils and persons or bodies representative of district councils. This will meet the Committee's request. The second is an amendment to Schedule 1 to raise the maximum fine for offences on summary conviction from £20,000 to £30,000. Both amendments are, of course, subject to approval by the Minister and the Executive and the amendment to raise the maximum fine level will also be subject to approval by the Secretary of State. Officials also referred to Legislative Counsel the amendment proposed by the Committee in relation to matters to be taken into account by a court in determining the amount of fine to be imposed. He has, however, expressed very strong reservations about this. Officials are in the process of considering the comments and will be in a position to give a verbal update on Thursday. Financial Security Officials will also provide an update on this provision at the meeting of the Committee on Thursday 12 September. I trust that this information is helpful. CORAL RITCHIE EXPLANATORY AND FINANCIAL MEMORANDUM Suggested Revised Wording: Changes shown in bold italics. Note: The purpose of these changes is to set down clearly the purpose of Clause 2 (5) and the Department's intentions as to its use. Clause 2 and Schedule 1: Regulation of polluting activities Clause 2 of the Bill confers on the Department power to make regulations creating a new regime of pollution control, for the purpose set out in clause 1 and to the extent provided for in Schedule 1. The main purpose of the Clause is to provide the Department with powers to make regulations to transpose the requirements of the IPPC Directive. In addition, the Department may use these powers to make regulations in connection with other EU Directives and Northern Ireland legislation relating to environmental pollution, as set out in paragraph 20 of Schedule 1. Subsection (4) lists those bodies or persons which the Department must consult before making regulations. This subsection looks to the future and will ensure, once the Act has been introduced, that the Department will consult with the specified bodies or persons before using its powers to make regulations under the Act. However, subsection (5) provides that consultation undertaken before the passing of the Act shall be considered as effective compliance with the requirements of subsection (4). This provision is intended to have a strictly limited application and its main purpose will be to enable the Department to publish for consultation the draft regulations to be made under the Bill before the latter has been passed by the Assembly. This will enable the Bill and draft regulations to be considered in parallel thereby ensuring that all the legislation necessary to deal with the ongoing infraction case can be enacted as quickly as possible. It is intended that the regulation-making powers in Clause 2 will be used by the Department to transpose the requirements of other EU Directives and it is possible that the Department may wish to use subsection (5) to facilitate the carrying out of consultation on some of these before the passing of the Act. However, in no circumstances will the Department use this power to rely on consultation carried out on any issue before the date of the introduction of the Bill to the Assembly. The first set of regulations made under the Act will be subject to approval of a draft by a resolution of the Assembly. Any subsequent regulations which contain provisions creating an offence or increasing a penalty or amending or repealing any Northern Ireland legislation, will also be subject to that same procedure. For other regulations, the negative resolution procedure in the Assembly may be used. Part 1 of Schedule 1 lists the specific purposes for which the power in clause 2 may be used, and Part II has supplementary provisions. In general terms, the power will allow a new pollution control system to be introduced, with procedures following broadly the pattern of the existing system under the Industrial Pollution Control (Northern Ireland) Order 1997. The provisions allow standards, objectives and requirements in relation to emissions to be established and plans to be made in relation to emission limits and quotas. It is specifically provided (in paragraph 1 of Schedule 1) that quota trading or transfer schemes may be made. By paragraph 2 of Schedule 1 the regulations may confer functions on the Department and the Secretary of State and determine the enforcing authorities that will exercise the permitting and other pollution prevention and control functions. It is intended that the role of granting and updating permits, taking enforcement action etc. will be the responsibility of a Chief Inspector to be appointed by the Department as regards installations subject to full integrated pollution prevention and control (those are designated Part A installations). For installations with lesser pollution potential which will be subject to air pollution control only, the enforcing authority will be the Chief Inspector (Part B installations) and the relevant district council (Part C installations). Under paragraph 3 of the Schedule the Department and the Secretary of State will have power to give directions or guidance to enforcing authorities including the power to direct the transfer of functions from one enforcing to another or to take over functions. Paragraphs 4 to 10 enable the regulations to require persons operating specified installations or plant or carrying out certain activities to hold appropriate permits. Provision may be made to regulate the grant of permits, including restricting the grant of permits to those who are considered fit and proper persons, a test derived from the Waste and Contaminated Land (Northern Ireland) Order 1997. That latter requirement is necessary so that the "fit and proper persons" provisions can be applied to those waste management installations covered by the Directive whose regulation will be transferred from the Waste Order to this Act. The content of permits issued under the new regime and conditions attached to them may be prescribed in the regulations. There may also be provisions for the review of permits by enforcing authorities and provisions dealing with variation, transfer, revocation and surrender of permits. The Department is empowered to make charging schemes governing fees payable in respect of permits and applications and fees may also be charged for prior testing, analysis and environmental assessment of substances and their effects. It is provided in paragraphs 11 to 13 that regulations may require that information on emissions, energy and waste is supplied and that publicity is given to specified matters. To this end, registers may be maintained and certain information made available to members of the public, apart from commercially confidential details and other excepted material. Enforcing authorities may be required to carry out consultation in connection with their functions and take into account any representations made to them. Paragraphs 14 to 18 of the Schedule deal with enforcement and offences. Enforcing authorities may be given functions with respect to the monitoring and inspection of activities, including power to take samples and power to arrange for preventative or remedial action to be taken at the expense of holders of permits. Notices may be served on holders of permits requiring them to take remedial action, provide appropriate financial security or remove imminent risks of serious environmental pollution. These notices may be enforced by proceedings in the High Court. Permits may be suspended. The creation of offences and the regulation of associated mattes are authorised by paragraphs 17 and 18. Paragraph 19 relates to rights of appeal. It is envisaged that the regulations will contain detailed provisions about making, considering and determining appeals. Lastly in Part 1 of Schedule 1, paragraph 20 has provision for the regulations to deal with appropriate or corresponding issues arising under other pollution control legislation or relevant Directives, and the application of the regulations to the Crown. Part II of Schedule 1 has supplementary provisions to enhance the effectiveness of the regulation making power. Clause 4: Disposal licences which expire before the commencement of waste management licensing Clause 4 continues the process of transition from disposal licences to site licences and ultimately to permits under clause 2 of this Bill. It is possible that there are cases where disposal licences issued by district councils under the Pollution Control and Local Government (Northern Ireland) Order 1978 (the 1978 Order) have been allowed to expire inadvertently although the operator has carried on with operations authorised under the expired licence. The purpose of Clause 4 is to provide that, in these circumstances, such licences are deemed not to have expired and to allow them to be brought within the transitional arrangements provided for by Clause 3 and Article 47 of the Waste and Contaminated Land (NI) Order 1997 (the 1997 Order). Under these arrangements existing disposal licences under the 1978 Order are deemed to be site licences under the 1997 Order as from the date of the introduction of the new regulations (the appointed day). However, these arrangements are not open-ended but are subject to two strict provisos provided for in the Clause. Firstly, a licence holder will be able to benefit from the new arrangements only if the activities carried on after the expiry date are the same as those authorised under the original licence. This is provided for in subsection (1)(b) and the definition of 'relevant activities' in subsection (8). Any licence holder who continues to carry on operations not authorised by the expired licence will not be able to benefit from the new arrangements and will be open to prosecution for breach of licence conditions in the normal way. Secondly, through the definition of the terms 'appointed day' and 'relevant day' in subsection (9), the Clause provides a timescale within which its provisions are to apply. The 'relevant day' is defined as the day falling one year before the Act is passed. The 'appointed day' is defined as the date on which the regulations introducing the new waste management licensing controls under the 1997 Order are brought into operation. Therefore, any existing disposal licence which expires between these dates but where the operator continues to carry on operations will be deemed not to have expired provided that any activities which are carried on were authorised under the expired licence. Because such licences will be deemed still to exist at the 'appointed day' they will at that date, by virtue of the transitional provisions in the 1997 Order, be converted to site licences under that Order and therefore subject to the new waste management licensing controls. The terms and conditions attached to the replaced licence continue to apply to its successor. Clause 4(5) ensures that activities which were not criminal when they were carried out are not criminalised as a consequence of these provisions. By clause 4(6), however, criminal proceedings which have reached the stage where the accused has been convicted are not affected in any way. Clause 4(7) imposes on district councils a duty to notify licence holders affected by these provisions. AMENDMENTS TO BE MOVED AT CONSIDERATION STAGE OF THE MINISTER OF THE ENVIRONMENT Amendment 1 Clause 2, page 2, line 4, at end insert - '( ) district councils and such bodies or persons appearing to it to be representative of district councils as it may consider appropriate;' Note: This amendment will place the Department under a specific requirement to consult both district councils and representative persons or bodies before making regulations under this Clause Amendment 7 Schedule 1, page 11, line 4, leave out '£20,000' and insert '£30,000' Note: The effect of this amendment will be to raise from £20k to £30k the maximum fine for offences on summary conviction. ANNEX 30 FROM DEPARTMENT OF THE ENVIRONMENT: 11 September 2002 AMENDMENT PROPOSED BY COMMITTEE - OFFENCES/PENALTIES Factors to be taken into account in sentencing The proposal from the Committee is to introduce an amendment requiring the courts to have regard to certain factors in determining the level of fines. The Committee viewed this as being in line with the approach in the Planning Bill. The Committee provided a draft of what they had in mind, reading as follows: "In determining the amount of any fine to be imposed on a person convicted of an offence under this Article, the court shall in particular have regard to the seriousness of the pollution incident(s), the environmental impact of the pollution and, where relevant, details of the costs of restoration and prosecution and to any financial benefit which has accrued or appears likely to accrue to a person in consequence of the offence." This proposal has been discussed with Legislative Counsel and his view is that it violates some fundamental principles of the criminal justice system and could not be supported. There are a number of issues arising from the proposal: The Planning Bill does not refer to the issue of "seriousness". The seriousness of the offence and its consequences is already the single most important factor in sentencing. To provide in this Bill that the court must have regard to seriousness would be extremely dangerous (Legislative Counsel's words) because it would cast doubt on sentencing procedures for all other offences where seriousness is not mentioned. It would be entirely improper to take into account in sentencing details of the costs of prosecution as this is not a matter which the accused can control. In any event a system of requiring the payment of costs in criminal cases already exists but is unrelated to the system of criminal law penalties. Within the regulatory system provided for by this Bill, there are already a number of provisions relating to remediation of pollution and site restoration. The enabling powers are in Schedule 1, paragraphs 6 to 8 ( Permits) and 14 to 18 (Enforcement and offences). The proposal assumes that offences under the Bill will result in pollution. However, this is not necessarily the case. The assumption arises from a leap in context, moving from the limited confines of permitting and regulatory offences to substantive pollution consequences and offences. It should be reiterated, however, that this Bill is regulatory in nature, in essence establishing a permitting system. The offences created under this Bill, including the primary offence of operating without a permit, do not necessarily involve pollution. In some cases there may be pollution consequences but in others there is no logical connection between commission of the offence and pollution. Where it does arise, the pollution has to be dealt with by prosecution under these provisions or other legislative codes. In either case, the fundamental requirement to have regard to the seriousness of the offence will involve consideration of consequences. The same argument applies in relation to the question of environmental impact as referred to in the draft amendment. The last factor mentioned in the draft amendment is any financial benefit which has accrued or appears likely to accrue to a person in consequence of the offence. This is the part of the provision that most closely reflects the clause in the Planning Bill but the planning context is different. Officials are of the view that implementation of this proposal in the present Bill would present practical difficulties. It is difficult to see a close correlation between offences under the Bill and financial benefit and it would be difficult to establish a causal connection. It would also be difficult to quantify any possible financial benefit, unlike the planning situation where evidence of differentials in property values is available to the court. The particular problem of preventing an operator benefitting from reduced costs through disregard of the PPC regime is better resolved through consistency and rigour in permitting rather than ex post facto attempts to claw back profits. CORAL RITCHIE ANNEX 31 LETTER FROM: 18 September 2002 I am writing to confirm that the Minister has agreed to table at Consideration Stage the 6 amendments to the Bill shown in the attached schedule. These have all been previously discussed and agreed with the Committee. It will, of course, be necessary for the Minister to seek the agreement of the Executive to the amendments. The Minister is also considering the case for the two further amendments suggested by the Committee in relation to fines and penalties. Once he has come to a decision on these I shall arrange for a letter from the Minister to the Committee formally setting out the position in relation to all the matters covered in this letter. CORAL RITCHIE POLLUTION PREVENTION AND CONTROL BILL Clause 2, page 2, line 4, at end insert- '( ) district councils and such bodies or persons appearing to it to be representative of the interests of district councils as it may consider appropriate;' Clause 2, page 2, line 6, leave out from 'district councils' to 'businesses' and insert 'industry, agriculture and business' Clause 4, page 3, line 3, leave out '(subject to subsection (5)' Clause 4, page 3, line 36, leave out subsection (5) Clause 4, page 3, line 40, leave out 'which have been concluded' and insert 'in which the accused has been convicted' After clause 4 insert- 'Financial assistance by Department Financial assistance by Department *.-(1) The Department may make grants to any body having among its objects- (a) (a) the furtherance of the objectives of the strategy in relation to the recovery and disposal of waste prepared by the Department under Article 19 of the Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19); or (b) the prevention or control of environmental pollution. (2) Grants under this section shall be made- (a) in accordance with arrangements approved by the Department of Finance and Personnel; and (b) subject to such conditions as the Department may determine (including conditions for repayment in specified circumstances).' |
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