Environmental Permitting (England and Wales) Regulations 2010

My Lords, I am grateful to all noble Lords who contributed to this relatively short debate. The noble Lord, Lord Taylor, said that this was a blockbuster of a document. It is, but, as has been widely appreciated, it brings together and simplifies what has gone before to produce a document of greater assistance to all those who need to be aware of their obligations and so must use it. It is preferable to the diverse regulations from different sources that we had in the past. I will attempt to answer the detailed questions that have been asked, but I will emphasise the broad overall position. First, the principle is clear: we want both to protect the environment and human health, and nothing in the document in any way detracts from the previous provisions with regard to those important objectives. Secondly, the regulations are 170 pages shorter than existing law, so if the noble Lord finds some of this complex, that goes to show that even when one makes every effort to improve, one is still justifiably open to criticism if not every requirement is met. I emphasise that the purpose behind the document is one that all noble Lords would subscribe to. With his microscopic analysis, the noble Lord, Lord Taylor, was bound to cause me to fall short in certain respects. I confess that I fall short in relation to the department’s material and archives. He asked why the European Union scrutiny is not available for 12 of the 18 directives and why we provided it for only six. This is because the information that we have within the files of the department covers only the six. However, that does not mean that there will be no scrutiny. If further scrutiny data are required by any Member of the Committee, I shall take steps to obtain and provide them. I am sure the noble Lord will appreciate that the resources of the department are not limitless and that we illustrated the European documents as far as we were able to within our resources. However, I shall take steps to meet any request relating to the 12 other EU scrutiny documents. The noble Lord, Lord Taylor, also asked about incinerators. The regulations covering the level of environmental protection are unchanged by this document. They are not affected by these regulations and will continue. This is because we consider that incinerators are properly controlled. I winced temporarily when the noble Lord asked why there is no mention of eco-friendly light bulbs and plans for the treatment of such bulbs. The issue is not relevant to these regulations. However, the noble Lord is right to identify that there is an issue with regard to eco-friendly light bulbs. The issue is complex enough for me to crave his indulgence and allow me to write to him on how we are tackling it. I merely state that eco-friendly light bulbs were not included in these regulations because of different provisions. I shall certainly write to him on that. He also asked how many recycling schemes there were. I shall have to do research on that question because I certainly do not have the figures in my head and, from what I can see, neither do any of my expert advisers immediately attendant upon me. I hope he will indulge me on this. I shall try to meet his request. On the question of the maintenance of small sewage works and record keeping, the requirements apply only after 6 April this year and so there is a timescale in which a response to this can be met. The noble Lord also asked about groundwater permits and whether they are spread evenly across local authorities. Noble Lords will have sympathised with me when they saw my sharp intake of breath when I heard that question. First, they will not be spread evenly across local authorities, if that was the process; and, secondly, I would not know the answer in detail anyway. I can assure the noble Lord, Lord Taylor, that this is not a question for the local authorities. These permits are granted by the regulator, the Environment Agency, so the question of differential impacts upon local authorities does not arise. The noble Lord asked me about the impact assessment and the fact that the list of operators does not include anyone from the extraction industry. The impact assessment for the mining waste directive has been used in formulating this impact assessment. We have not consulted the industry again because we were able merely to incorporate the existing impact assessment for the industry into the analysis provided. Issues were raised regarding mining waste and I am grateful to noble Lords who emphasised the importance of this industry, including specific issues on china clay, which I shall come to in a moment in respect of Cornwall. What the noble Lord, Lord Taylor, was exercised about—and I quite understand his proper anxiety—was whether the period for operators to apply for permits was long enough. The deadline is set by the mining waste directive which requires existing buildings to have a permit by May 2012. This should allow sufficient time for operators to apply for their permits. May 2012 is not just around the corner. I entirely appreciate that the work involved in complying with any regulations is onerous, but there are more than two years before compliance is required. The noble Lord also raised questions on mining waste and sanctions against third parties when they do not supply the requisite information to mining waste operators regarding off-site emergency provisions. The information requirements for mining waste operations regarding off-site emergency areas relate to the information held by the operator. An operator would not be in breach of the regulations if the information was held by a third party and not by him. I think that I can give that degree of reassurance to the noble Lord on what I recognise are justifiable anxieties about the need to comply, although he will forgive me if I emphasise again that we are making compliance more straightforward and, as I have indicated, with less cost than has been the case. He will give due credit for that. The Environment Agency applies fees that are sufficient to cover the cost of providing the service, and no additional surcharge is involved. The agency’s job is to fulfil its functions, to command the resources that enable it to do so, and no more. The noble Lord asked when the guidance would be published. Following the consultation in spring last year, the majority of government guidance will be published on 11 March this year—in nine days’ time—and will be available on the Defra web page. This includes guidance documents on EPP1 regimes which have been updated to refer to the EP regulations of this year. He also asked me another question which I found stunningly difficult to respond to, although I suppose that I should have anticipated that it might be asked, as there were one or two references to the international position. What is France doing about small sewage treatment works? I have to say that I am stumped for an answer at this point. I have quite enough problems mastering the degree of detail with regard to England and Wales without looking at the French. I have not looked at the French position and I do not have an answer. I shall provide the noble Lord with one when we have carried out the necessary research. I should emphasise the other aspect that the noble Lord raised. The noble Baroness, Lady Gardner, and the noble Earl, Lord Selborne, were also concerned about why there was no statutory right of appeal if a mining waste facility were to be refused. A statutory right of appeal, as noble Lords will readily appreciate, would mean that a category A site could continue to operate without being in breach of Regulation 12(1), which prohibits operating without a permit. This would mean that an operator could continue to operate without having to ensure that the facility complied with the waste directive. For a site of any category, let alone one that poses the greatest risk of harm to the environment, it would not be tolerable for us to build in the length of time that inevitably would be involved in any right of appeal. In the event of a permit being refused on the grounds that the operator has not provided the necessary additional information required by the emergency planning authority, the operator would have the right to apply for a judicial review of the planners’ decision to issue the notice to the Environment Agency—or they could complain to the ombudsman. I appreciate from the tenor of the noble Baroness's remarks—and she was supported by the noble Earl, Lord Selborne—that my reply will not be satisfactory. However, that is the constraint on those who are taking the decision: they could be subject to the scrutiny, while balancing this against the obvious need to protect the public from difficult and dangerous waste by not allowing an appeal mechanism that could encompass what we would regard as a dangerous and deleterious delay. I recognise that these balancing factors are judgment calls on what needs to be done. I hope the noble Baroness, the noble Lord, Lord Taylor, and the noble Earl, Lord Selborne, will give credit to the Government by acknowledging that it is neither by omission nor arbitrariness that we alight on this approach: it is because we must have in mind the key principles of health and the environment.