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House of Lords Hansard
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Environmental Permitting (England and Wales) (Amendment) Regulations 2018
22 January 2018
Volume 788

Motion to Approve

Moved by

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That the draft Regulations laid before the House on 11 December 2017 be approved.

Relevant document: 15th Report from the Secondary Legislation Scrutiny Committee

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My Lords, I am pleased to introduce these regulations. Air pollution is the biggest environmental risk to public health in the UK. Air quality overall has improved significantly in recent decades. Emissions have decreased across each of the five key air pollutants—sulphur dioxide, particulate matter, nitrogen oxides, volatile organic compounds and ammonia. We need to ensure that these improvements continue through concerted action by government and local authorities in collaboration with others.

In some parts of our country there are unacceptable levels of air pollution. The Government are committed to tackling this and improving air quality, and are working to make sure that concentrations of nitrogen dioxide come within statutory limits. We are also looking to reduce total emissions of air pollution through legally binding targets for 2020 and 2030. On a local level, authorities across the country are developing local plans to tackle air pollution. The measures they bring forward—including, potentially, clean air zones—will include encouraging the replacement of old, polluting vehicles with modern, cleaner technologies. It is also important that we look to encourage the replacement of the most polluting forms of energy production.

The regulations before your Lordships relate to medium combustion plants and generators. These are a largely unregulated, significant source of emissions of air pollutants. For example, emissions of nitrogen oxides from diesel generators are on average more than six times higher than emissions from gas engines.

These regulations will implement the medium combustion plant directive, in adherence to our membership of the EU. Emissions from small-scale, highly polluting generators have also caused concern. The Government are looking to take robust action to tackle this source of emissions by introducing further domestic measures that impose additional emission controls on these generators.

These regulations are highlighted in the 25-year environment plan, launched earlier this month. They will encourage a shift to cleaner technologies and will assist in meeting the requirements of the ambient air quality directive and the revised national emission ceilings directive. Subject to your Lordships’ consent, they will make a valuable contribution to improving air quality, thereby protecting human health and the environment.

Emissions from plants over 50 thermal megawatts are already regulated under the industrial emissions directive. These regulations bring into scope medium combustion plants, which are in the 1 to 50 thermal megawatt range and are used to generate heat for large buildings such as offices, hotels, hospitals and prisons. They are also used in industrial processes, as well as for power generation. Implementing the medium combustion plant directive, commonly referred to as the MCPD, will help to reduce air pollution by introducing emission controls for these combustion plants.

As well as transposing the requirements of the MCPD, these regulations will impose new domestic requirements on the operators of low-cost, small-scale flexible power generators. There has been a rapid growth in the use of this type of generator in this country in the last few years. The recent growth of mainly diesel generators is a cause for concern. These generators emit high levels of pollutants such as nitrogen oxides compared to other medium combustion plants, and they are not currently subject to emission controls. This growth has a negative impact on local air quality as well as on our ability to meet future emission reduction targets on a national scale.

The MCPD requirements are not sufficient in themselves to tackle emissions from the increased use of these generators. The proposed regulations will subject generators to permitting and a nitrogen oxides emission limit. As a result, the regulations will ensure that diesel generators reduce their emissions to the same level as gas generators.

These regulations will provide an estimated 43% of the sulphur dioxide emissions reduction, 9% of the reduction for particulate matter and 22% of the nitrogen oxides emissions reduction needed to meet our 2030 targets. They are supported by organisations including the British Heart Foundation, the British Lung Foundation and the Royal College of Physicians. The regulations will encourage the use of cleaner plants and generators and will require those which pollute more to have technology fitted to bring their emissions within the specified limits.

Clean air is one of the most basic requirements of a healthy environment for us all to live, work, and bring up families. Clearly there is a strong case for action and we have a clear ambition and policy agenda to achieve this. These regulations will make a real impact and are a further demonstration of our commitment to improve air quality in this country. I beg to move.

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My Lords, as ever, the Minister has made helpful and succinct introductory remarks to this statutory instrument, for which I thank him. Can he confirm that recently there have been changes at the top of the natural resources body for Wales? Is there a new director and a new chair? Are there any details he can give, either now or at a later date, about the principles of the chair and the director of that body in Wales? What is the extent of the contact and co-operation between the Environment Agency and Natural Resources Wales, bearing in mind that we now have devolved government operating in Cardiff? Can he say what his department’s experience is of dealing with our Government in Cardiff?

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My Lords, I am grateful to the Minister for his helpful and constructive introduction to these regulations. As has been said, they bring into line medium combustion generators with larger ones. However, in applying these regulations to 1 to 50 megawatt generators, it has to be said that 50 megawatts would be capable of powering up to 8,000 homes. That is not a small undertaking and is therefore, quite rightly, worthy of regulation. This size is typical of the generators used, as the noble Lord has said, for a range of purposes including electricity generation, domestic and residential heating and cooling, providing heat and steam for industrial processes and so on. Generators of this capacity are inherently diesel or gas powered, and these regulations bring diesel down to the level of gas-powered generators.

The Government are rightly attempting to reduce the level of emissions in this country. Poor air quality is the largest environmental risk to public health in the UK. However, they are presently 10 years late in meeting air quality standards. Public health is at risk and there is no time to lose if the NHS is not to be overburdened with patients with respiratory problems. Government estimates show that in 2008, the number of deaths attributable to fine particulate matter—that is, poor air quality—was 29,000. In 2016, the Royal College of Physicians estimated that the cost of the health impacts of air pollution to the UK was £20 billion.

There are approximately 143,000 medium combustion plants in the European Union, with an estimated 30,000 in the UK. The increase in the use of such generators has been identified as a source of avoidable increases in national emissions. Many generator farms have been set up solely to sell electricity back to the national grid. While this is very enterprising, it is having an effect on the nation’s health. The National Audit Office identified in 2017 that the Government will not achieve compliance with EU limits on nitrogen dioxide until 2021, some 11 years later than the deadline of 2010. In 2016, more than 85% of air quality zones in the UK, 37 out of 43, did not meet EU nitrogen dioxide limits and government estimates show that all 43 air quality zones will not be compliant with the limits until 2026. The measures being taken today are a step in the right direction, but there is still much more to do, and faster.

While I am happy with agreeing to the regulations, I would like to raise a point about flooding. In paragraphs 7.9 and 7.10 of the Explanatory Memorandum, the regulations indicate that the Environment Agency can use enforcement undertakings for a number of activities. In those areas of the country prone to continual flooding, such as the Somerset Levels, householders and businesses are often flooded to varying degrees of depth. Many have standby generators to pump water out of their premises when levels do not subside in an acceptable timescale, and often much larger generators have to be brought in to ease widespread flooding. Will the Minister give a reassurance that in such cases, enforcement action would not be taken if the generator in use did not comply with the regulations we are approving today?

I fully support the move to improve air quality as indicated in the air quality strategy and agree that tackling the most polluting generators must come into line first. However, an FOI request in October 2017 revealed that the Government had spent £370,000 in unsuccessfully challenging two court claims that their plans to tackle air pollution were “illegally poor”. Was this a wise use of money and could it not have been better spent on tackling air pollution itself? It is important to ensure that enforcement powers not only continue to remain available to tackle pollutants, but that the culture shift we are beginning to see in government from defending flawed environmental policy to enabling and adequately funding the means to safeguard air quality moves ahead at a much faster pace. These regulations are a welcome step in the right direction and I support them.

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My Lords, I thank the Minister for his introduction to the regulations before your Lordships’ House. I am also grateful to him for facilitating a meeting last week with his officials, Sejal Mahida, Andrew Baxter and Katie Doubleday, who explained many of the technical details and issues behind the regulations and the medium combustion plant directive.

Poor air quality is the biggest public health risk facing the UK. The Government’s slow and inadequate response to the situation has led to several infraction proceedings in the courts, brought by ClientEarth. As the noble Baroness, Lady Bakewell, has said, 29,000 people suffer prematurely due to problems from breathing poor-quality air. Children are also bearing the brunt of this air quality crisis, as the worst pollution hotspots often occur around schools due to the concentration of diesel fumes from vehicles discharging at idling speed at a low height, at which children are vulnerable.

The European Commission has recognised the seriousness of the situation and, from its review, published in 2013 the clean air package. It has issued various emissions directives concerning different sizes of plants. It is from the Government’s failures to meet air quality standards that ClientEarth has secured court rulings that the Government must bring forward and implement clean air strategies. It can be argued that this experience has highlighted the need to create an effective enforcement agency to assist Governments to meet their environmental responsibilities. It is to the Government’s credit that they have finally accepted this and will bring forward proposals for this new governance structure. Perhaps the Minister could say how the Government are developing their thoughts, what their proposals are and whether they will be ready by the time the UK leaves the EU.

It is to be recognised that the Government have consolidated previous amending instruments into the 2016 regulations. These regulations will continue the process of bringing these amendments into a single set of regulations. They will apply to combustion plants and generators, some of which will feed into the grid. There are 23,000 such plants and generators, which have proliferated in recent years.

Labour has been very critical of the Government for allowing polluting diesel to bid into the capacity market as this could be said to have contributed to the problem. Notwithstanding that Labour may not have allowed access to the capacity market, bearing in mind that both BEIS and National Grid are confident that there will continue to be sufficient liquidity and security of supply will be unaffected by this supply, it is nevertheless accepted that these amendment regulations fall outside the capacity market’s regulations and rules, and so are not strictly a relevant consideration and allow the capacity market the stance of technology neutrality. In allowing this diesel technology, it must comply with all the directives concerning emissions and air quality.

The important point highlighted by your Lordships’ Secondary Legislation Scrutiny Committee is that old and new combustion plants and generators must comply with the emission standards by the end of December 2018. This will avoid the unintended consequence that older diesel plants will not receive a competitive advantage from unabated emissions that new modern equipment has to adhere to. Labour supports the Government in that operators bidding for new agreements will need to meet the same emissions controls, irrespective of whether they are existing or new generators. In that sense it will be a level playing field.

I support the regulations before your Lordships’ House and welcome the early implementation of the higher standards being imposed from 2019. Indeed, from 2019 emissions will have to be reduced to the extent that emissions from diesel plants and generators will be on a par with gas. These amendment regulations will result in new agreements signing up to higher standards sooner. Existing and older plants will have to clean up sooner. It is recognised that the greater polluters—existing plants—are being tackled first to meet the standard achieved by newer plants.

While recognising that this will have an impact on several stakeholders, the explanatory documents underline the greater public benefit of air improvements, with savings to the National Health Service welcomed by several foundations including the heart and lung foundations. For this reason, we endorse the shorter timeframes coming into play and recognise that they will be significant in helping the UK meet its 2030 reduction targets.

However, I have one or two questions for the Minister and would be grateful if he addressed them. Can he set out the Government’s plans to provide more environmental information to the public, especially regarding the results of emissions monitoring, which should start to show reductions? Will further regulatory action be triggered for any failures?

Secondly, can the Minister set the regulations against the context of the Government’s clean air strategy? How far will compliance with them take the Government towards their objectives? The Explanatory Memorandum refers to another enforcement undertaking—in respect of the Environment Agency and flood risk activities. The memorandum states merely that the regulations revoke certain paragraphs of the 2016 regulations to allow the regulator to accept offers from offenders to repair damage caused, as an alternative to criminal proceedings. This seems slightly extraneous to the general run of the regulations, but in light of the flooding occurrences this weekend is nevertheless important. What issue lies behind this rather cursory couple of paragraphs? Why are they included in the regulations and what is the Government’s objective?

I note that my noble friend Lord Jones asked questions in relation to Wales. Meanwhile, I confirm approval for the regulations.

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My Lords, I am most grateful for the general endorsement of these very important regulations to ensure that we and future generations have better air quality in this country. On that basis, I take great encouragement from our unity of purpose.

The noble Lord, Lord Jones, mentioned Wales. I will need to write to him with the details on the personnel there, but in England the regulator will be the Environment Agency and in Wales it will be Natural Resources Wales. However, we have worked very closely on the development of the regulations. They have been worked on in conjunction with the Welsh Government and NRW so that this is a composite statutory instrument—indeed, the regulation will be debated in the Welsh Assembly tomorrow. It is an example of how collaboration between England and Wales is very strong in areas such as this. Scotland is already working on its measures, as is Northern Ireland. So as a United Kingdom we will be working on including these measures in legislation.

More than 23,000 new and existing plants will come within scope of these regulations by 2030. We are strongly of the view that positive environmental outcomes will come through regulation. As the noble Lord, Lord Grantchester, said, we will tackle the greater polluters first so that we gain the biggest dividend and the public health benefit is profound. I agree with your Lordships that there is more to do. These measures are in the context of the £3.5 billion of investment in air quality, investment in cleaner transport and the new clean air strategy, which we will bring forward this year. I say in direct reply to the noble Lord, Lord Grantchester, that the clean air strategy, the 25-year environment plan, the regulations which come in through the EU directive and our own domestic regulations are all designed to be co-ordinated to improve air quality and the environment, and they should be seen in that context.

In response to a very important point made by the noble Baroness, Lady Bakewell, we clearly want to advance air quality. However, we also need to ensure, in emergencies—I am well aware of what happened on the Somerset levels—the use of pumps across the country where difficulties are presented by flooding, as we saw with the use of emergency pumps over the weekend in north Devon, for instance. We do not intend that onsite emergency pumps are in the scope of these regulations. In fact, mobile generators are also not in scope, unless they are connected to an electricity transmission system or are performing a function that could be performed by a generator that is not mobile. In other words, I hope that these regulations are about common sense prevailing. In emergencies, of course we want to ensure that generators can be used. The overriding task of us all is to be using advances in cleaner technology but not, of course, stopping the use of current pumps for emergency purposes: I want to record that.

The noble Lord, Lord Grantchester, and the noble Baroness, Lady Bakewell, referred to flooding. I should perhaps put this into context. Enforcement undertakings are currently unavailable for flood risk activities. In order to ensure consistency across environmental permitting schemes, we are proposing to revoke Paragraph 1(2) of Schedule 26 of the EPRs so that enforcement undertakings will become available for offences relating to flood risk activities in England only. This was an opportunity to use that but I emphasise what the noble Baroness, Lady Bakewell, said about flooding and the use of emergency pumps: this was not the intention; it was making use of an opportunity.

The noble Lord, Lord Grantchester, mentioned the environment enforcement body in his closing remarks. We will be issuing a consultation later this year on the scope of an environmental enforcement body which, of course, the Secretary of State has already announced. There is a governance gap that we need to address and that will be the subject of consultation. We are also consulting on environmental status principles. It is very important to register that.

The noble Lord, Lord Grantchester, also mentioned the monitoring of emissions, which is very important. There are some interesting details on the considerable emissions reductions there have been since 1970—and, indeed, since 2010—but I entirely recognise that we need to do more. Air quality data is already published in UK-AIR. The regulations provide that the regulator can consult the public if there is concern regarding local air quality. On the strategy, I mentioned the reduction in the elements of air pollution that the regulations will include; that too is very important. I will write to noble Lords on any further detailed points that need addressing.

These are important regulations that will set us well on track not only through the EU directive but through our domestic arrangements. They are a force for good for the environment, and undoubtedly for the health of everyone in this country. I beg to move.

Motion agreed.