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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.
    3. 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.
    4. 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.

    7. 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 and water 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".
    9. 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 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:
    • The legislation will require the permitting of installations rather than the authorisation of processes.
    • The range of installations will be much wider than at present. The main additions, above a certain capacity, will be
  1. 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.
  2. 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.

    3. CONSULTATION

  3. 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 the 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.
    4. OPTIONS CONSIDERED
  4. 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.
  5. 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. The result would be 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.
  6. 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.
  7. 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.
  8. In view of these advantages, the Department proposes to proceed with the third option.
    9. OVERVIEW
  9. The Bill has 8 clauses and 3 Schedules.

    10. COMMENTARY ON CLAUSES

    Clause 1: Purpose of section 2

    Clause 1of the Bill sets out the general purpose for which regulations may be made under clause 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 or 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

    Clause 2of the Bill confers on the Department power to make regulations creating a new regime of pollution control, for the purpose set out in clause 1and to the extent provided for in Schedule 1. The clause 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 1of Schedule 1lists the specific purposes for which the power in clause 2may be used, and Part IIhas 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 paragraph1of Schedule 1) that quota trading or transfer schemes may be made. By paragraph 2of Schedule 1the 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 3of the Schedulethe 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 4to 10enable 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 11to 13that 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 14to 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 17and 18.

    Paragraph 19relates to rights of appeal. It is envisaged that the regulations will contain detailed provisions about making, considering and determining appeals.

    Lastly in Part 1of Schedule 1, paragraph 20has 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 IIof Schedule 1has supplementary provisions to enhance the effectiveness of the regulation making power.

    Clause 3: New Transitional provisions for disposal licences treated as site licences

    Clauses 3and 4deal 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 Bill which will be required for certain large landfill installations falling within the scope of the Directive. These provisions are contained in clauses 3and 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 clause 3is 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

    Clause4continues the process of transition from disposal licences to site licences and ultimately to permits under clause 2of this Bill. This clauseapplies 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, clause 4goes 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 clause 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 clause 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.

    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 that have been concluded are not affected in any way.

    Clause 4(7)imposes on district councils a duty to notify licence holders affected by these provisions.

    Clause 5: Interpretation

    This clause defines some of the key words and phrases used in the Bill.

    Clause 6 and Schedules 2 and 3: Amendments and repeals

    This clause gives effect to the consequential and minor amendments and repeals of current legislation contained in Schedules 2and 3to the Bill. 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 Bill.

    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
  10. 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 Bill will provide the powers for enforcing authorities to recoup the full costs of their regulatory activities through charging schemes.
    11. EFFECTS ON EQUAL OPPORTUNITY
  11. 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.
    12. HUMAN RIGHTS ISSUES
  12. The Bill will impact upon human rights in certain areas: -
    • by subjecting a small number of installations, which are not caught by the IPPC Directive, to full integrated pollution prevention and control;
    • by providing powers to revoke permits;
    • by providing powers of entry and inspection of property; and
    • by creating new offences and related penalties.
  13. As regards the treatment of those installations currently regulated under the 1997 Order, but to which the IPPC Directive does not apply, the Department considers that the pollution potential of these installations does not differ from that of installations to which full integrated pollution prevention and control must be applied. It is considered fair and equitable to regulate them in the same way as installations caught by the Directive.
  14. It is considered that the provisions on powers of entry and offences and penalties comply with human rights requirements of fairness and appropriateness, as do the appeal mechanisms established to deal with operators or permit holders who disagree with decisions made by enforcing authorities or conditions imposed as a condition of the granting of a permit.
  15. The provisions of the Bill are considered to be compatible with obligations on relation to human rights on the grounds that the fundamental purpose of the Bill is to reduce emissions in the air, land and water to achieve a high level of protection of the environment.
    16. EQUALITY IMPACT ASSESSMENT
  16. 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.
    17. SUMMARY OF THE REGULATORY APPRAISAL
  17. The Department will publish a partial Regulatory Impact Assessment as part of its consultation on the draft Pollution Prevention and Control Regulations.
    18. SECRETARY OF STATE'S CONSENT
  18. The Secretary of State has consented under section 10(3)(b) of the Northern Ireland Act 1998 to the Assembly considering this Bill.
    19. LEGISLATIVE COMPETENCE
  19. At Introduction the Minister for the Environment had 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."