Pollution Prevention and Control Bill, Northern Ireland Assembly

Pollution Prevention and Control Bill

[AS INTRODUCED]

Contents

Regulation of polluting activities

Purpose of section 2
Regulation of polluting activities

Waste management: site licences

New transitional provisions for disposal licences treated as site licences
Disposal licences which expire before commencement of waste management licensing

Supplementary

Interpretation
Amendments and repeals
Commencement
Short title

Schedules:

Schedule 1 Particular purposes for which provision may be made under section 2

Part I List of purposes

Part II Supplementary provisions

Schedule 2 Amendments

Schedule 3 Repeals

B I L L

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

Purpose of section 2

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;

Regulation of polluting activities

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

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

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.

Supplementary

Interpretation

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;

(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).

Amendments and repeals

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.

Commencement

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.

Short title

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

Part I

List of purposes

Preliminary

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

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;

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

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

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;

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;

(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

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;

(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

"(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.".

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

Short Title	Extent of repeal
The Pollution Control and Local Government (Northern Ireland) Order 1978 (NI 19).	In Article 2(2) the definition of "the Industrial Pollution Control Order". In Article 55(4)(a), the words "or a process subject to the Industrial Pollution Control Order". In Article 55(4)(b), the words "the Industrial Pollution Control Order or". In Article 56(1), the words "or the burning is part of a process subject to the Industrial Pollution Control Order or". In Article 57(4) the words "or any process subject to the Industrial Pollution Control Order". Article 58(2A).
The Clean Air (Northern Ireland) Order 1981 (NI 4).	Article 24A.
The Environmental Protection Act 1990 (c. 43).	Section 3(5) to (7). In section 164(4), the words "section 3(5) to (8)".
The Industrial Pollution Control (Northern Ireland) Order 1997 (NI 18).	The whole Order.
The Waste and Contaminated Land (Northern Ireland) Order 1997 (NI 19).	In Schedule 5, paragraph 8.
The Water (Northern Ireland) Order 1999 (NI 6).	Article 10(1)(c) and (2)(b). In Article 30(1)(n), the words from "or under Article 20" to the end. In Schedule 7, the amendments to the Industrial Pollution Control (Northern Ireland) Order 1997.
The Northern Ireland Act 1998 (c. 47)	In Schedule 3, in paragraph 39, the words from the beginning to "limits)".