EXPLANATORY MEMORANDUM TO
The Environmental Permitting (England and Wales)
(Amendment)
Regulations 2012
2012 No.
[630]
This explanatory memorandum has been prepared by the
Department for Environment and Sustainable Development and is laid
before the National Assembly for Wales in conjunction with the
above statutory instrument in accordance with Standing Order
27.1
Minister’s Declaration
In my view, this Explanatory Memorandum gives a fair
and reasonable view of the expected impact of the Environmental
Permitting (England and Wales) (Amendment) Regulations
2012.
Name of Minister: J Griffiths
Date: 28 February
2012
Description
- The instrument amends the Environmental Permitting (England
and Wales) Regulations 2010 (“the 2010 Regulations”).
The amendments do the following:
- reduce regulatory requirements for those who operate certain
anaerobic digestion installations or mobile plant and for those who
burn waste-derived fuel that has ceased to be waste;
- make it easier to transfer permits in certain
situations;
- provide for the vesting of an environmental permit in the
personal representative of a deceased operator;
- make relatively minor changes to certain exempt waste
operations;
- make minor amendments relating to radioactive substances
activities;
- make minor amendments to the Environmental Damage (Prevention
and Remediation) Regulations 2009 and the Environmental Damage
(Prevention and Remediation) (Wales) Regulations 2009 to clarify
the enforcement position of the Environment Agency; and
- make consequential amendments to the 2010 Regulations and to
other legislation.
Matters of special interest to the Constitutional and
Legislative Affairs Committee
- Prior to the coming into force of the 2010 Regulations on 6
April 2010, the environmental permitting regime was set out in the
Environmental Permitting (England and Wales) Regulations 2007 (S.I
2007/3538) (“the 2007 Regulations”). The 2007
Regulations created a single regulatory framework in England and
Wales for waste management licensing and pollution, prevention and
control activities. The overall aim of the environmental permitting
regime is to streamline permitting requirements and is under
constant review with the aim of developing and expanding the
regime. This work is done on an England and Wales basis and
therefore these Regulations are made on a
composite basis to ensure consistency of application in Wales and
England.
- This composite statutory instrument applies to England and
Wales and is subject to the negative resolution procedure in the
National Assembly for Wales and in both Houses of the UK
Parliament. it is therefore not considered reasonably practicable
for this Instrument to be made bilingually.
Legislative Background
- The environmental permitting regime (EPR) was set out in the
Environmental Permitting (England and Wales) Regulations 2007.The
2007 Regulations created a single regulatory framework for England
and Wales for waste management licensing and pollution, prevention
and control activities. Those Regulations transposed the
provisions of 11 EU Directives which impose obligations required to
be delivered through permits or capable of being delivered through
permits. The 2007 Regulations were amended in 2009 to transpose the
permitting and compliance requirements of the Mining Waste
Directive (Directive 2006/21/EC) and the Batteries Directives
(Directive 2006/66/EC) and to revise the provisions relating to
exempt waste operations. The amending instruments were SI 2009/890,
2009/1799 and 2009/3381.
- On 6 April 2010, the 2007 Regulations were revoked, subject to
some savings and exceptions, and made as the 2010 Regulations with
the addition of permitting regimes covering water discharge
consenting, groundwater authorisations and radioactive substances
regulation.
Policy background
- The environmental permitting framework has rationalised
various permitting regimes that control pollution from business and
domestic activity into a common framework that is easier to
understand and use than the previous consenting regimes. For
example, it allows businesses that would otherwise require several
permits for activities falling under the regulations on a single
site to have just one permit; and it enables regulators to focus
resources on higher risk activities. It cuts administrative
red tape without affecting environmental
standards.
- The phased approach to regulation, as described in section 4
above, has led to a streamlined, flexible, risk-based
framework. It enables both an easier transposition of future
EU Directives that include permitting requirements and additional
suitable consenting regimes to be incorporated into
it.
- A
number of UK Government reports have welcomed the environmental
permitting programme and its modernisation of the application
process and permit types. This included a recommendation that
the principles applied to streamlining environmental permits should
be applied to other types of linked consenting regimes. The
instrument makes a number of amendments to the Environmental
Permitting framework. A first consultation in Wales and
England in 2010 on the instrument sought views on:
·
introducing new civil sanction enforcement powers for the
Environment Agency in the form of Fixed Monetary Penalties (FMP),
Variable Monetary Penalties (VMP), and Enforcement Undertakings
(EU) in respect of existing offences in the 2010 Regulations (the
civil sanction proposals were removed from statutory instrument
– see paragraph 14 below):
·
introducing a common approach to keeping a permit in
force if an individual who is a sole operator should
die;
·
making it easier to transfer a permit if an
individual permit holder cannot be found;
·
removing certain obligations relating to traffic
travelling to and from permitted waste sites, like landfills, from
the Environment Agency. These have been implemented via
separate Regulations transposing the revised Waste Framework
Directive which came into force on 29 March 2011;
·
reducing the burden of regulation on waste-derived
fuel where it has ceased to be waste before being burned as a
fuel;
·
changing some of the waste descriptions and codes for exempt
waste operations and amending the scope of some of the exemptions;
and
·
clarifying the interface between permitting under the EP
Regulations and licensing under the Marine and Coastal Access Act
2009 in respect of waste operations in the marine environment,
including ship dismantling.
- A
second consultation extended the scope of the instrument seeking
views on:
·
transposing two Articles in the CCS Directive that impact on
the permitting framework, one requiring the carbon capture element
to be subject to integrated pollution prevention and control (IPPC)
under the eponymous Directive; and the second excluding carbon
dioxide injection, into certain geological formations from
prohibition under the Water Framework Directive. These have
since been taken forward by DECC in Regulations that implemented
the outcome of a review of radioactive substances exemption orders
– the Environmental Permitting (England and Wales)
(Amendment) Regulation 2011 (SI 2001/2043) – that came into
force on 1 October 2011;
·
clarifying the interface between permitting under the EP
Regulations and that under the Offshore Combustion Regulations to
avoid double regulation of offshore CCS activities; and
·
removing IPPC permit requirements in the 2010 Regulations for
anaerobic digestion installations or mobile plant that do not burn
the resultant biogas on-site where they (a) treat non-waste
biodegradable materials or (b) treat biodegradable waste materials
where the installation has a waste treatment capacity not exceeding
100 tonnes per day. The treatment of waste by an anaerobic
digestion installation or plant will continue to be regulated under
the 2010 Regulations as a waste operation.
Consultation
- The instrument is made following public consultation in two
phases as described above. The first consultation ran from 30
July 2010 to 24 September 2010 and sought responses to proposals
covered by paragraph 7.5 above. The second consultation on
proposals covered by paragraph 7.6 ran from 3 September 2010 to 26
November 2010.
- The consultation documents and the summary of responses to
them can be found at http://ww2.defra.gov.uk/environment/quality/permitting/.
Overall, respondents were supportive of the proposals contained in
the two consultation documents and welcomed the additional
flexibilities contained within them. A number of points of
detail were raised; these have either been reflected by subsequent
revisions to the instrument or will be addressed through
guidance.
- Two proposals forming part of the consultation process are not
being taken forward at this stage through this instrument. Those
are the proposal to introduce civil sanction enforcement powers and
the clarification of the interface between permitting under the EP
Regulations and licensing under the Marine and Coastal Access Act
2009. It is intended that these two proposals will form part
of future legislation.
Guidance
- There is one overarching guidance document (the Core Guidance)
which provides advice on the 2010 Regulations and compliance with
them, underpinned by separate UK Government guidance on each regime
within the permitting framework. These will be amended to
reflect the changes brought about by the 2010 Regulations and will
be published before the amending Regulations come into force on 6
April 2012. Welsh Government officials are fully engaged with their
Whitehall counterparts in any amendments to this
Guidance.
Regulatory Impact Assessment
- A Regulatory Impact Assessment has not been prepared
as the Regulations will impose no significant costs on the public
or private sectors, charities, the voluntary sector and the
business sector