Ministers take broad powers in pollution control Bill

A new environment Bill whose main purpose is to implement the EC Directive on integrated pollution prevention and control (IPPC) was introduced in the House of Lords on 26 November. 1 The Bill is unusually broad in character, leaving details of the new regime to be set out in regulations. It contains some surprises, notably provisions enabling the introduction of emissions trading and clearing the way for regulators to rely on as yet unspecified "arrangements" as an alternative to laying down requirements in permits. Important powers creating a new mechanism for implementing EC Directives also feature in the Bill.

The Pollution Prevention and Control Bill is expected to receive its second reading in the Lords in mid-December. It needs to be on the statute book in time for regulations under it to be laid before Parliament in July, since the deadline for implementing the IPPC Directive is 30 October.

Speed is also essential because the Directive may be the first to be implemented by separate regulations made by the Welsh Assembly and Scottish Executive. The transfer of functions under the Directive to the devolved bodies cannot take place formally until the Bill is enacted.

Implementing the Directive by means of the Bill rather than through other existing mechanisms will make it possible to bring under IPPC some 200 processes currently regulated under integrated pollution control (IPC) which are not covered by the Directive, avoiding having to run two different regulatory regimes together.

The main existing legislation which will be repealed by the Bill is Part I of the Environmental Protection Act 1990, which established IPC as well as the local air pollution control (LAPC) regime. IPC will be replaced by IPPC, while the LAPC provisions are expected to be reenacted substantially unchanged, at least for the time being.

The Bill gives Ministers an unusual degree of discretion in making regulations even when set alongside the British tradition of passing broad enabling primary legislation. Its meat is in one of its four clauses, which will enable Ministers to make regulations for any of the broad "purposes" set out in one of its three schedules. And even then, Ministers will be able to make regulations for other purposes to regulate "activities" capable of causing environmental pollution or to prevent or control any pollution.

Moreover, regulations under the Bill are likely to receive little Parliamentary scrutiny because they will be subject to the negative resolution procedure.

The "purposes" for which regulations may be made under the Bill are for the most part as expected. They include the granting, transfer, surrender and revocation of permits; permit conditions and reviews; monitoring and inspection; enforcement notices and powers; charges on permit-holders; public registers; and offences and penalties.

However, there are also one or two surprises, as well as novel features required by the IPPC Directive.

  • Trading in emission quotas: Under section 3 of the 1990 Act, the Secretary of State has powers to make a plan setting limits on the total releases of any substance within the UK or any part of it, and to allocate quotas to industry for releases of that substance. Such schemes have been used to achieve a progressive reduction in acid gas emissions from power stations and other large combustion plants.

    The Bill will provide similar powers. Although these relate to "emissions" rather than "releases", the former term is used in the Directive to refer to releases to water and land as well as air.

    However, the Bill contains one additional element, enabling the Secretary of State to make regulations "authorising the making of schemes for the trading or other transfer of quotas so allocated." This power could be used to arrange a trading scheme for acid gases. But it is more likely that the Government is looking ahead and providing the means to establish a trading system for carbon dioxide - even though this is almost certainly some years away.

  • "Fit and proper" persons: Under Part II of the 1990 Act, which regulates waste management, anyone holding a waste management licence must be "fit and proper" for that purpose. This means that he must be "technically competent", provide financial security adequate to discharge his licence obligations, and be free of convictions under specified environmental legislation.

    Over 1,000 of the installations which will be regulated under IPPC are currently subject to waste licensing. In order to facilitate the continued application of the existing regime to these, the Bill will provide powers to make regulations "restricting the grant of permits to those who are fit and proper persons."

    However, the as yet unanswered question is whether the same powers might be used in respect of other installations, as advocated by the Environment Agency in response to last year's consultation on IPPC (ENDS Report 273, pp 21-24 ). The official explanatory notes on the Bill give no clue on this point, but illumination should be forthcoming when the Department of the Environment, Transport and the Regions (DETR) issues draft regulations shortly for a further round of consultation.

  • Site remediation: One feature of the IPPC Directive which is new to the UK is a requirement that measures are taken to "avoid any pollution risk and return the site of operation to a satisfactory state" once operations cease. Accordingly, the Bill provides for regulations which will enable "preventive or remedial action" to be ordered by the regulators "in connection with the surrender or revocation of permits."

  • Enforcement: The Bill provides for regulations on monitoring and inspection which may create powers for the regulators to require preventive or remedial action to be taken "at the expense of holders of permits." Similar provisions do not exist in the 1990 Act, but it is not clear what situations these powers would be intended to address.

    Regulations may also provide for regulators to serve notices requiring such "financial security" as they consider appropriate pending the taking of remedial action to correct or prevent a breach of a permit condition. Again, the Government's intentions for the use of this power are unclear.

  • General rules: As an alternative to laying down conditions in permits, the IPPC Directive allows Member States to "prescribe certain requirements for certain categories of installations in general binding rules."

    The Bill provides for such rules to be prescribed in regulations. According to the explanatory notes, the 2,600 installations which are not currently controlled under IPC but will come under IPPC are "expected to be amenable to a less manpower-intensive regulatory regime focused in many cases around general rules." The most likely candidates are intensive livestock units.

    These powers may also be used to implement other EC legislation such as the forthcoming Directive on solvents, which allows the use of general binding rules instead of permits (ENDS Report 283, pp 41-42 ).

  • Emissions register: The Bill provides for regulations to require permit-holders or other persons to compile information on emissions and provide it to the authorities.

    According to the explanatory notes, the power could be used to obtain information to comply with future legislation on an EC emissions register. The IPPC Directive requires the establishment of such a register, and technical negotiations on the detail of a scheme are well under way (see pp 41-42 ).

  • Charges for testing of substances: Ministers will be able to make a scheme requiring the payment of charges for "testing or analysis of substances", validation of such testing or analysis, or "assessing how the environment may be affected by the release into it of any substances" in cases where this is done "in anticipation of, or otherwise in connection with, the making of applications for the grant of permits" or is required by a permit condition.

    These are new provisions, but their purpose is not explained in the notes accompanying the Bill.

  • Alternatives to permit conditions: Regulations under the Bill may provide that any Government guidance on permit conditions may "include guidance sanctioning reliance by a regulator on any arrangements referred to in the guidance to operate or secure a particular result as an alternative to imposing a condition."

    Again, the Government's intentions with this clause have yet to be explained, but it is possible that it has in mind voluntary agreements or the environmental management standards EMAS and ISO14001 as alternatives to regulation.

  • Implementing EC Directives: The Bill appears to provide a new route for implementing EC legislation. It will enable the Secretary of State to "make provision" which "corresponds or is similar to" any provision which can be made under the European Communities Act 1972.

    The 1972 Act has been used to implement Directives where no suitable powers have existed in other primary legislation. One drawback of this mechanism, however, is that it is not possible to do anything more than give effect to a Directive.

    The problem is well illustrated by the IPPC Directive itself. If, as noted above, it had been implemented under the 1972 Act, Britain would have been left with a rump of processes having to be regulated under IPC, alongside IPPC and LAPC.

    The difference between the 1972 Act and the Bill is that the latter will enable the Secretary of State to "make provision" similar to the 1972 Act, but "subject to any modifications that the Secretary of State considers appropriate" - making it a more flexible instrument, as well as a significant development in the relationship between UK and EC law generally.

    The Bill provides that these powers can be used to implement "relevant Directives". The only two expressly identified in the Bill are the IPPC Directive and the 1975 framework Directive on waste. However, any other Directive may be designated by the Secretary of State for the purpose of implementation by the new mechanism.

  • Offshore application: The Bill will enable regulations to extend to installations under UK jurisdiction but beyond territorial waters. An example of the potential use of this power given in the explanatory notes is the regulation of combustion processes on oil rigs beyond territorial waters.

    As noted above, some 2,600 installations will join the 2,000 or so currently regulated under IPC in the IPPC regime. Most will be controlled by the Environment Agencies, but, as the Government announced in October, a "proportion" of those presently regulated under LAPC in England and Wales will remain with local authorities (ENDS Report 285, pp 37-38 ).

    Whether local councils will receive financial support for their new duties is unclear. The explanatory notes say that increases will be needed in the Agencies' and "perhaps" in local authority staffing. They also say that, while there are presently some 90 IPC inspectors, the extra manpower needed to regulate the additional 2,600 installations "is expected to be considerably less than a pro rata increase owing to the fact that the installations concerned are not among the most complex" and may be amenable to control in part by general rules.

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