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Environmental Permitting (England and Wales) (Amendment) Regulations 2009

Volume 711: debated on Wednesday 10 June 2009

Considered in Grand Committee

Moved By

That the Grand Committee do report to the House that it has considered the Environmental Permitting (England and Wales) (Amendment) Regulations 2009

These regulations are being made in England and Wales to transpose the permitting and compliance requirements of Directive 2006/21/EC, known as the Mining Waste Directive. Its key objective is to prevent or reduce as far as possible any adverse effects on the environment and human health as a result of the management of waste from the extractive industries. This essentially means the waste from the extraction and treatment of mineral resources and the working of quarries. A series of pollution incidents, including serious incidents in Spain in 1998 and in Romania in 2000, led the European Commission to consider the need for a specific measure on the management of extractive waste. After extensive negotiations on a Commission proposal, the outcome was the adoption in May 2006 of the Mining Waste Directive.

The due date for transposition of the directive by member states was 1 May 2008 and the European Commission has recently confirmed that 17 out of 27 member states have formally notified their transposing legislation. The regulations we are debating today will enable the Government to do so in relation to England and Wales, with the agreement of the Welsh Assembly. Separate regulations will be made by the devolved Administrations in Scotland and Northern Ireland.

The Government established close and regular contact with the extractive industries during the negotiation of the directive and have maintained that contact since its adoption. It is the Government’s policy not to “gold plate” directives by going beyond their minimum requirements and to make full use of available derogations. Our aim has been to fulfil both objectives in the transposition of the Mining Waste Directive. In addition to our continuing engagement with the industries, the Government carried out a three-month public consultation on the options for transposing the directive. We consulted on three transposition options and assessed the cost of each in an impact assessment. After consideration of all the responses, the Government concluded that the most effective and cost-efficient means of fulfilling the directive’s objectives is by using the environmental permitting system with the Environment Agency as the regulatory authority.

The environmental permitting system came into force in April 2008 and already implements 12 other EU directives. It is part of a better regulation initiative by the Government to cut red tape and to reduce regulatory costs for industry, while continuing to protect the environment and human health.

As I have said, the key objective of the Mining Waste Directive is to prevent or reduce as far as possible any adverse effects on the environment and human health as a result of the management of extractive waste. Parliament has already given the Environment Agency responsibility for the management of waste from other sectors of industry in England and Wales. The Government have concluded that the Environment Agency is also best placed, and should have the responsibility, for dealing with waste from the extractive industries.

The operators of most extractive waste facilities already hold an environmental permit to meet the requirements of other EU directives. Transposition of the Mining Waste Directive by means of the environmental permitting system ensures, therefore, that the administrative and regulatory burdens arising from the directive are kept to a minimum.

The regulations before the Committee will ensure that the directive’s requirements are implemented in a proportionate, risk-based and cost-effective way. In the Government’s view, transposition of the directive by means of the environmental permitting system, with the Environment Agency as the regulatory authority, will be of benefit to the industry, the environment and human health. I beg to move.

Once again, I thank the Minister for presenting this statutory instrument and for providing the background against which it is being brought before us. I have no direct interest in mining but my political interests stem back to fighting Nottinghamshire in the European elections and Chesterfield in parliamentary elections. My first political experience outside my home patch was in Bolsover, which would have been considered the heartland of the mining industry were it not for the fact that it now has a Conservative county council. Such are the ways that communities change over time.

I have a few concerns and I hope that the Minister will accept them in an interrogative form. If he does not have the answer to hand, I understand that it may be easier for him to write to us in fuller detail. Given the importance of coal mining and the central role that it has in this area, I am not sure why the Government have chosen this particular route to comply with the directive. What consideration was given to devising a separate set of permitting regulations dealing solely with the mining industry? What were the reasons for trying to fashion a fully comprehensive single regulation?

Inevitably, the directive is concerned with the adverse effects of mining waste on water, air, soil, flora, fauna, landscape and the risk to human health. Would not the transposition into UK law have been more carefully done if mining had had its own regulations and was able to address these elements particularly?

There was some media coverage last year, for example, of the controversy about the whole issue of opencast mining and its environmental impact in the UK. Has any special assessment been made of the impact of this type of mining, and in what ways will these permitting regulations affect that? Having said that, we understand the necessity for these regulations and I am grateful to the Minister for presenting them.

I did not think that I had to declare an interest here, but, if we have to declare childhood interests of having grown up on the coalfield, I grew up on the Yorkshire coalfield, near Wakefield, for all my teenage years. I was just thinking of the slag heaps of old and existing pits, on which we used to spend our time playing games such as cowboys and Indians and then, when one got a bit older, other sorts of games on the old slag heaps, or muck stacks, as we called them locally. They certainly polluted the atmosphere in a dreadful way. They polluted the water courses, the groundwater and the landscape. I suppose that the coal industry of that sort has all gone from those areas nowadays, and we are left with the consequences.

On behalf of the Liberal Democrats, I support the regulations. I just want to make four points. First, although I would be interested to hear about the information provided to the noble Lord, Lord Taylor, as a method of transposing the regulations, it seems to us that to incorporate them into the 2007 regulations, which cover permitting generally, is very sensible. It will be interesting to hear what the Government have to say.

My second point is just a general moan, which I usually make on these occasions, about the fact that the Government seem utterly unable to meet the timescales laid down in European directives for transposing them into our national legislation. There was a deadline of 1 May 2008, two years after the regulation had been approved. Regulations do not suddenly appear out of a popgun; they have been discussed for a considerable time in Europe, in the Council of Ministers or elsewhere, so the Government knew that they were coming. It is pretty poor that we cannot pass them on time regularly. There are a lot of complaints about European legislation in this country. This is very sensible legislation. There is no reason that it could not have been passed on time. The Minister said that 17 out of 28 countries have formally notified that they have managed to do that so far. Some are more laggardly than we are, but that is no excuse.

My third point is that the Merits Committee drew to our attention that most of the objections—the consultation responses, I should say—made by industry sources suggested that decisions should be not for the Environment Agency but for the mineral planning authorities, which I take to be the county councils and the unitary authorities at local level. As someone who always instinctively says, “Do it through the local authorities”, I would like to hear why the Government think that it should be done by the Environment Agency. At the moment, they have stated that they think that that is right, but they have not explained why.

I would also like to know what reasons the consultees putting forward those views from the industry gave for believing that the mineral planning authorities would be more appropriate. I can think of three reasons that they might have put forward. They might have thought that local authorities were efficient than national quangos, because they usually are. They might have thought that local authorities would impose less onerous conditions and constraints, so that they could get away with having to do less. They may simply have thought that having planning and licensing decisions, the permitting decisions, made by the same authority was more sensible, providing a one-stop solution. Those are reasons that I have thought up that people might have put forward. Were those the reasons, or were there others? It would be interesting to hear that.

Finally, what real difference will the regulations will make to people in the industry, as opposed to the existing regulatory system? The Minister may not be able to answer all that today, but it will be interesting to have those answers in writing and placed in the Library. Having said that, we are very content to support the regulations as they stand.

The Environmental Permitting Programme is a joint better-regulation initiative by the Department for Environment, Food and Rural Affairs, the Department of Energy and Climate Change, the Welsh Assembly Government and the Environment Agency. The programme is designed to reduce or minimise the administrative burdens of regulation on operator and regulator. The Government felt that the management of extracted waste was principally a matter for environmental protection controls, for which the EPP provides the most appropriate and cost-effective regulatory regime. Twenty-eight out of 38 consultees also agreed that the EPP was the best means of transposing the MWD.

The process is not making the law more complicated; on the contrary, the transposition of the MWD through the environmental permitting regulations avoids the creation of a new set of permitting regulations, as it produces an extended system that is more streamlined and simpler than two separate permitting systems. This process is in line with the Government’s commitment to better regulation and the cutting of administrative burdens.

On the opencast mining issue, the directive is about mining waste rather than mining per se, so it controls the waste from coal extraction rather than coal mining itself. It is therefore a perfectly satisfactory process for all forms of mining, including opencast.

Why did we take so long? There are several reasons for our failure to transpose by the due date, the most important of which is the Government’s commitment to full and effective consultation with industry on the options for transposing the directive and ensuring that it is transposed without gold-plating, and taking full advantage of available derogations. Having gone through the detail, I assure noble Lords that both of those objectives have been achieved.

I take slight exception to the moan about how this Government put EU directions into law. When we get directives, we work hard to transpose them into UK law in a way that will work in the UK. Some countries perhaps take a simpler read-across and write-across approach, but this is a classic example of where we have spent time working with an industry in order to minimise a directive’s impact, using this vehicle in particular to merge the directives with systems and regulations with which the industry in question is familiar.

The key aim of the directive is to prevent environmental pollution and harm to human health and safety, which are areas that the Environment Agency is already responsible for in other industry sectors. Because of its existing statutory role for managing environmental matters, the agency has extensive experience of mining and quarrying issues. The Government therefore believe that the same approach should be taken with mining waste. That approach will also ensure that additional burdens are not placed on the planning system, in line with the Government’s broader objective of a simpler, faster and more efficient planning system. The option preferred by the minerals industry, of the EPP being delivered by mineral planning authorities, would simply have added further burdens on mineral planners by requiring them to manage land issues through the planning system and environmental controls through EPP.

On a personal note, I claimed once in a speech that over the course of my career I had probably been one of the most regulated people, having started in aviation, gone through railways and ended up looking after the waste sites of the UKAEA. I have some familiarity with the process of regulation and, frankly, you need two things from your regulator. The first is simplicity; ideally, there will be a single body to talk to, and that is exactly what this does. You do not want multiple bodies. When I was at the UKAEA, multiple bodies competed with each other and you would end up with regulations which were simply not capable of execution because the different bodies had overlapped in the demands that they put on them. You would then have to spend time negotiating with those bodies to make the regulations capable of execution.

I am pro regulation—not pro bad regulation but pro good regulation—and good regulation is proportionate; it is about applying a proportionate response to a perceived risk. My experience with the Environment Agency was that it was particularly skilled at taking a proportionate approach, including when addressing severe historic pollution problems. I believe that the regime the Environment Agency is proposing is the right regime and I fully support it. I am pleased that, in principle, both opposition parties will support the regulations.

I do not want to push the question of the timescale too far because I know that people are busy and the Government have to do many things, but it was 20 months between the adoption of the directive and the issue of the draft regulations, which seems a long time, and it was 11 months from the closure of the consultation period to us meeting here today and debating the laying of the regulations before Parliament. I merely make the point that these things could be speeded up. I do not want to push it too far because I agree that getting it right is better than necessarily meeting an arbitrary deadline. I believe that is true in everything except elections, where you have to meet the deadline; you have no choice.

I think the Minister is right about the Environment Agency—I do not disagree with him about that—but the question I asked was what were the reasons for people thinking that the mineral planning authorities would be a better option. I do not know if he has the answer to that today or whether he will write to me.

This goes back to the points I have made. If we think there are extra points to be made, we will write. I notice that we diverge at the end.

I am sorry. I am asking for something factual: the reasons they gave to the Government. I am not asking for the Government’s reasons for why they have chosen the Environment Agency—I think they are probably right—but it would be interesting to know the reasons set out by the people who responded.

Motion agreed.

Committee adjourned at 5.22 pm.