Environmental Permitting (England and Wales) Regulations 2010

My Lords, I am privileged to live in Cornwall, between St Austell and Truro. When I walk out of the back of my garden, I look across to what are known as the Cornish Alps. They are called that because they are white. They have been even whiter than usual this winter. They are white because they are china clay waste. When people talk about Cornwall they think of the coves, the almost long-gone fishing industry and the rural areas, but they forget that it was once the heart and genesis of much of Britain’s Industrial Revolution. Trevithick invented the steam engine on rails there. We have not just an important industrial past, but a future. That is why, like many noble Lords, I am particularly concerned about one aspect of this legislation, which generally I welcome as productive and good. My concern is about the section on waste. As the noble Earl has just said, the wording of paragraph 14(2) concerns me greatly. It says that the regulator "must refuse". There are no two ways about it; there is a statutory obligation for the regulator to make a refusal if the information necessary to complete a relevant emergency plan or draw up an external plan is not there. It does not give a definition, rather it leaves the onus of deciding what information is necessary completely with the authority, the emergency planners and the Environment Agency. What is also of concern—I should declare an interest as a member of Cornwall Council, which would be an emergency planner in this process—is that all bureaucracies are inevitably conservative and cautious in what they do. If a piece of secondary legislation says that they must do something but does not make it clear, that puts the emphasis on them not crossing the line so they are tempted to make a refusal in cases where there is any doubt. The outcome of that refusal may be that an important facility has to cease operation immediately. This would be in the not-so-distant future, on 1 May 2012, if the regulations have not been complied with. This is an unreasonably onerous provision that almost tempts its own fulfilment, and a cessation of operations. As has been pointed out, there is no appeal mechanism except perhaps that of judicial review, which would be amazingly expensive and onerous for a responsible producer and employer, and would take a lot of time as well. Therefore I, too, would like an assurance from the Minister. I was going to ask for a test of reasonableness to be applied, but the regulations do not allow for that, which is why I am particularly concerned. I was interested and encouraged by the Minister’s initial remarks. He pointed out humbly that there was a mistake in the regulations that would be put right by the time that they were put to the House. Perhaps I might suggest a way out. Perhaps we have discovered a mistake in the word "must", which was not meant by the secondary legislation Bill team. Perhaps we could keep it within this room and decide that this, too, was a typographical error, and look forward to seeing a change not just in the three cubic metres or whatever it was, but also in this area when the legislation comes back to the Grand Committee. It is important because this is a safe industry. There have been no major accidents involving mineral waste tips since the tragedy of Aberfan, and there is already good environmental health and safety legislation to ensure that the standard of emergency planning, health and safety and environmental protection in this industry is very high.