That the Grand Committee do report to the House that it has considered the Environmental Permitting (England and Wales) Regulations 2010.

Relevant Document: 7th Report from the Joint Committee on Statutory Instruments.

My Lords, the regulations are being made to streamline and simplify our environmental permitting arrangements while—this is important—continuing to safeguard the environment and human health. Noble Lords will know that many potentially polluting activities, such as incinerators, sewage treatment plants and radioactive waste discharges from nuclear power stations, need a permit. When the Environment Agency or the local authority grant an environment permit, they are permitting an activity, subject to conditions to control pollution. The regulations cut red tape and provide an easier and more flexible way of doing that. They are consistent with the Government’s policy on better regulation, allowing us to focus on protecting the environment at a lower cost. That is vital at a time when we must be mindful of the impacts of climate change, and must not be deflected by unnecessary bureaucratic processes.

Back in 2005, the Better Regulation Task Force challenged my department, Defra, to improve our permitting regulations, saying that,

“various licensing requirements are set out in different pieces of legislation and may impose different administrative requirements on industry ... yet their objective, to protect the environment, is the same”.

We responded with the environmental permitting regulations 2007, which came into force in April 2008. They, with guidance, were the key product from the first phase of a productive partnership between Defra, the Environment Agency, the Welsh Assembly Government and other stakeholders—a partnership now expanded to include the Department of Energy and Climate Change. The regulations we are debating today build on the sound base of the 2007 regulations, integrating the permitting systems for radioactive substance regulation, discharges into groundwater and water discharge concerns.

Furthermore, we are taking this opportunity to consolidate into the regulations the permitting parts of the mining waste directive and the batteries directive, along with the outcome of the waste exemptions review. These have already been subject to parliamentary scrutiny. We estimate that these regulations will save £45 million, which when added to the savings of the first phase of the programme will mean a total saving of £121 million for business, regulators and others over the next 10 years. While we are still in the early days of implementation of the programme, savings from standard permits have already allowed the Environment Agency to lower its fees. I am sure that it will bring solace to the Committee when I say that the regulations are more than 170 pages shorter than previous law. They repeal and re-enact much of the Radioactive Substances Act which is basically 1950s legislation, part of the Water Resources Act 1991, the Groundwater Regulations 2009 and the 2007 regulations. They also replace a number of other statutory instruments that are now redundant.

As I have already said, but which bears repeating because it is key, the regulations still deliver the environmental and human health protection we care about. For example, in the new EP regulations offence for water discharge and groundwater activities, the terms “cause” and “knowingly permit” have the same meaning as in previous legislation. The majority of businesses that are low-risk will face fewer forms, fewer inspections and simpler guidance. Speaking in the debate on the 2007 regulations, the Minister, my right honourable friend Joan Ruddock, the Member for Lewisham Deptford, said that,

“businesses will no longer be burning the midnight oil dealing with overly complex systems”.—[Official Report, Commons, First Delegated Legislation Committee, 26/11/07; col. 9.]

That may add to an improvement in the environment as burning the midnight oil is not the most attractive of ministerial activities. Under these regulations and subject to national security considerations relating to radioactive substances, an operator requires only a single environmental permit for activities on the same site, thus making it cheaper, quicker and easier to apply for permits while continuing to protect the environment.

Before I close, I must draw noble Lords’ attention to an error in the regulations, which was unfortunately spotted after they were laid and for which I apologise. It relates to the storage limits for waste oils that are allowed under a waste exemption. Where the current limit says 400 cubic metres, it should say three cubic metres. An amendment will be made to correct the error before the regulations come into force.

In future, we intend to implement the results of the radioactive substances exemption orders review through the environmental permitting regulations. We will continue to look for other suitable regimes that could be integrated into the new permitting system, if the costs and benefits add up. For now, this new permitting system will make it easier for regulators to do their job of safeguarding the environment and easier for business to comply. This can only be a good thing, when we must focus our energies on combating the threat of climate change. These regulations have been widely supported and accordingly I commend them to the Committee.

My Lords, I thank the Minister for his presentation and introduction of the regulations. They are indeed a blockbuster, by any standards, of mind-boggling detail. I suppose that I should not grumble, because I remember that when we were discussing the previous lot of permitting regulations, among other considerations we had the whole question of lion faeces, only to discover that the noble Baroness, Lady Barker, knew of spontaneous combustion of lion faeces. The reason that they were limited to five tonnes was obvious to us all as a result. It shows the virtues of our debates that we find out so much about the background. I accept what the Minister said: it is extremely useful to have so much of the environmental legislation in one volume to try to ease the burden on those who have to seek permits.

The regulations are empowered under the Pollution Prevention and Control Act 1999, and bring under one roof, as it were, 18 directives. The Explanatory Memorandum summarises the European scrutiny history for six of those 18 directives, but does not contain scrutiny details for the rest. I wonder why not. It seems to be an anomaly that the background to those directives is not available to us.

This has obviously been a magnum opus. It was passed to Committee on 24 February and brought to us exactly one week later. Frankly, it is difficult for noble Lords to get their minds around such detail in that short a time, so I may have missed some things. I seek clarification on specific points covered in the regulations, but first I ask why a document of this size and such detail does not carry on each page an indication of its subject matter. I know that legislation is different from an ordinary working document, and I understand why, but even an index would be helpful. It is a huge working document, and I wonder whether we are allowing previous form to dominate how we put such documents together. If it were properly annotated or indexed, it would be much easier for people to use it; it would make it much more user-friendly. Headings on the top of pages, supplementing the index at the beginning of the document, might help enormously, and a detailed contents list of subjects might also be useful.

How many local authority recycling schemes will exceed the quantities specified in Chapter 3 of Part 1 of Schedule 3? That will clearly be important for existing recycling plants. Am I correct in supposing that, were the volume of waste to expand beyond the quantities specified, it would be sufficient to remove a certain proportion of it to another site? Could people avoid falling foul of the regulations by just setting up another site? Is that really in the public interest?

Fluorescent tubes have a paragraph to themselves in Schedule 3 at page 113, with reference made to mercury concentration. I have not been able to find a specific reference to eco-friendly light bulbs, although I understand that environmental specialists are increasingly concerned that they are likely to pose a threat to the environment on disposal. What plans are in preparation for the treatment of such bulbs?

Chapter 4 of Schedule 3 deals with the disposal of waste and, on page 122, the conditions for exempting disposal by incineration. Will those considerations result in the exemption of 600 or so farm incinerators that were caught by the original transposition of the EU waste directive, or will they be covered by Section 6.8 on page 78?

I now turn to page 128, in Part 2, paragraph 2(e) and, on page 129, Part 3, paragraph (2)(f). They specify that all maintenance on small sewage treatment works is to be recorded and the records kept for at least five years after the work is done. Can the Minister confirm that those requirements will apply only to work carried out after 5 April this year? Regulation 62, on page 35, allows the Secretary of State or the Welsh Ministers to reserve for themselves the decisions on permits for a particular application or class of application. Will the Minister please give an example of each?

My Lords, I, too, thank the Minister for his explanation of the regulations. I have a few questions about mineral extraction. He will be aware that the UK minerals industry and the china clay industry in particular are very concerned about aspects of the regulations. They argue that the regulations could have a severe impact on their operations, without providing the additional protection for health or the environment that would justify them.

First, is the Minister satisfied that the balance between imposing further regulatory burden and safeguarding public health and the environment is correct in the regulations? Secondly, and perhaps more specifically, are we imposing a higher degree of regulation here than other European Union countries are imposing? I understand that Germany and Sweden have decided that their existing regulations are sufficient. They see no need to change their regulatory systems in the light of the mining waste directive, so is it necessary to place additional burdens, with which their European competitors will not have to comply, on UK-based firms? Finally, I note from the Minister’s opening remarks that the draft regulations were subject to significant consultation. Does he now feel that the regulations broadly satisfy the concerns of those who responded to the consultation?

I declare an interest as a member of the all-party minerals group. I agree with every word that the noble Lord, Lord Rennard, said; he has obviously been approached in the same way that I was about this matter. I also attended the meeting of the all-party group where the issue was discussed by people directly involved in mineral recovery and operations. The china clay industry, in particular, was mentioned and it is the most adversely affected.

As a parliamentary candidate more than 30 years ago, I visited the china clay industry in Cornwall. At that time china clay was for producing ceramics—that is, fine china. That has changed dramatically over the years and the china clay industry now plays an important role in the manufacturing of paint; the processing of paper—it is one of the biggest fillers in paper; the processing and manufacturing of rubber and plastics for the automobile industry; ceramics, which are still produced; and pharmaceuticals. Some of these are very important to our economy. To damage anything which is producing, for example, parts in the form of plastics for the automobile industry, is absolutely short-sighted. Why should we throw away an industry that we are happy with and is producing good money for this country, to force its products to be made in some other country that does not comply with any of these regulations?

As the noble Lord, Lord Rennard, has mentioned, Germany and Sweden have already decided that the existing regulations are enough and they do not need them. It is very worrying. I also agree with the noble Lord that the measure would not protect the environment and health. It would have a damaging effect in many cases, in particular because there is no right of appeal. If a right of appeal was written into this directive, it would make a vast difference and would mean that the mineral industry would have a fair opportunity. At the moment its only option would be to go to judicial review, which is very costly and might not be effective. It is only just that there should be a right of appeal. I present this today and I depend on the Minister’s answer. Unless the Government can see their way to suggesting something like this, I may wait until the regulations are put before the full House and raise an objection at that time.

I make no apology for following my noble friend Lady Gardner on the same point. We all recognise that the local authority emergency planning services have a responsibility put on them by these regulations. It is perfectly fair that plans must be put in place in case of an emergency. To get those plans in place, the co-operation not only of the extractive industry is needed, but that of other third parties as well. It is this issue that lies at the heart of our concern. Paragraph 14(2) of Schedule 20, set out on page 162, is quite explicit that the Environment Agency as the regulator must refuse an application relating to a category A mining waste facility on receipt of a notice from the emergency planner, the local authority, stating that the operator has not provided the necessary information. It might not be the operator; it might be other people or third parties.

The local authorities will be unsure, when taking on these new responsibilities, whether they know precisely what they are asking for. There is only a matter of months until the permit dates so in that situation one would expect there to be collaboration with the local authorities and the extractive industries to determine just what information is needed. I am quite convinced that the china clay industry and any other extractor would wish to provide the information required. If, however, the local emergency planning services are not yet clear, their instinct will invariably be to cover themselves by putting in a precautionary note saying that they are not sure they have the information required. Therefore, under paragraph 14(2) with no ability to appeal or mediate, the regulator—the Environment Agency—simply has no option but to refuse a permit, which effectively closes a business down.

Members of the Committee will recognise that that is draconian. It is reasonable to ask the Minister to assure us that some reconsideration could be given to this in the timescale, recognising that we are not asking for the extractive industries to be exempt from emergency planning. That is not the point. It is simply that if there is uncertainty as to what is required and time runs out, it seems unreasonable for the business to be closed down. I hope the Minister can give us those assurances.

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.

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.

The reason for our concern is that the implementation of almost all secondary legislation requires a sense of fair play and co-operation between those being regulated and the regulators. Obviously, there is considerable concern that the way in which these regulations are impacting on mineral extraction, which is a major industry in this country, could put the industry under considerable pressure if the regulators were dilatory or did not play their part in the process by assisting in the proper regulation of these sites. The industry is not looking for an exemption, but for a way of handling its obligations under the law. Are the Government truly tuned in to that sensitivity?

My Lords, indeed I am—as are the Government. We recognise the issues that arise around compliance. I say to the Committee that the industry has its interests, but we also have an obligation to the country that we serve to get these things right.

I shall merely mention the disasters that have occurred in the past and are never to recur because we have the necessary controls and requirements. To take the most obvious one, Aberfan was a tragedy of the most appalling kind because we did not have sufficient control over the regulation of waste management from the extractive industries. I know it is a long time ago now, and because it is in the distant past it may be thought that it is always straightforward to guard against such an event in future, but for that to be true the safeguards need to be in place. I recognise that on all fronts we have moved on a great deal from that time and we have regulations in place; I am merely indicating to the Committee that, in seeking to fairly represent the interests of the industry, we must take the greatest care that we do not in any way dilute the overall objectives of ensuring that practices are entirely safe. The Government are bound to recognise that as their major obligation and duty.

On the issue of the china clay industry, which the noble Lord, Lord Teverson, raised, we think that we have the balance right with regard to regulation in these circumstances. This partly relates to the question that the noble Lord, Lord Rennard, also raised about our comparative position to that of other states. I do not say for a moment that because Germany and Sweden, for example, have not seen any need to change their regulations, they are upholding lower standards than we are; they may meet the European directives and requirements and meet the standards that we do because they were already operating standards at that level so did not need to change. However, we are not in the business of comparative analysis with other countries, unless they can identify that the way that they are going about things is more cost-effective as well as meeting the standards of safety both for the environment and for people, which is what we ourselves are seeking. I say to the noble Lord, Lord Rennard, on this issue and on the point that the noble Lord, Lord Teverson, raised about china clay, that we think that we have the balance right, which is why we have presented the regulations in these terms.

I appreciate the concerns that have been expressed today. I will look at the record, and where I may have been remiss in responding—some of the points were very detailed—I will ensure that proper responses are made to Members. However, I emphasise once again that these regulations meet the standards that we expect with regard to our objectives. They do so as a streamlining exercise. They help us to protect the environment and human health and they are risk-based and proportionate, but they are considerably less diverse, less bulky, less onerous and easier to follow—despite the reservations that the noble Lord, Lord Taylor, identified—and less costly. We estimate that the regulations will save business and the regulators £45 million over the next 10 years, and they may save both those in the industry and indeed parliamentarians some time in reading fewer pages than was the case with the regulations that they have replaced. They are also the product of partnership. We therefore feel that, after considerable consultation, we have the balance right.