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