Variation of Authorisations by Enforcing Authority

Orders of the Day — Environmental Protection Bill – in the House of Commons at 6:45 pm on 30th April 1990.

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'(1) The enforcing authority may at any time, subject to the requirements of section 7 above, vary an authorisation and shall do so if it appears to the authority at that time that that section requires conditions to be included which are different from the subsisting conditions.

(2) Where the enforcing authority has decided to vary an authorisation under subsection (1) above the authority shall notify the holder of the authorisation and serve a variation notice on him.

(3) In this Part a "variation notice" is a notice served by the enforcing authority on the holder of an authorization—

  1. (a) specifying variations of the authorisation which the enforcing authority has decided to make; and
  2. (b) specifying the date or dates on which the variations are to take effect;
and, unless the notice is withdrawn, the variations specified in a variation notice shall take effect on the date or dates so specified.

(4) A variation notice served under subsection (2) above shall also—

  1. (a) require the holder of the authorisation, within such period as may be specified in the notice, to notify the authority what action (if any) he proposes to take to ensure that the process is carried on in accordance with the authorisation as varied by the notice; and
  2. (b) require the holder to pay the fee (if any) prescribed by a scheme under section 8 above within such period as may be specified in the notice.

(5) Where in the opinion of the enforcing authority any action to be taken by the holder of an authorisation in consequence of a variation notice served under subsection (2) above will involve a substantial change in the manner in which the process is being carried on—

  1. (a) the enforcing authority shall notify the holder of its opinion; and
  2. (b) the holder shall, within the prescribed period, advertise the change in the prescribed manner.

(6) The Secretary of State may, if he thinks fit in relation to authorisations of any description or particular authorisations, direct the enforcing authorities—

  1. (a) to exercise their powers under this section, or to do so in such circumstances as may be specified in the directions, in such manner as may be so specified; or
  2. (b) not to exercise those powers, or not to do so in such circumstances or such manner as may be so specified;
and the Secretary of State shall have the corresponding power of direction in respect of the powers of the enforcing authorities to vary authorisations under section (variation of conditions etc: applications by holders of authorizations) below.

(7) In this section and section (variation of conditions etc: applications by holders of authorizations) below a "substantial change", in relation to a prescribed process being carried on under an authorisation, means a substantial change in the substances released from the process or in the amount or any other characteristic of any substance so released; and the Secretary of State may give directions to the enforcing authorities as to what does or does not constitute a substantial change in relation to processes generally, any description of process or any particular process.

(8) In this section and section (variation of conditions etc: applications by holders of authorizations) below— prescribed" means prescribed in regulations made by the Secretary of State;vary", in relation to the subsisting conditions or other provisions of an authorisation, means adding to them or varying or rescinding any of them;and "variation" shall be construed accordingly.'.—[Mr. Heathcoat-Amory.]

Brought up, and read the First time.

Photo of David Heathcoat-Amory David Heathcoat-Amory , Wells

I beg to move, That the clause be read a Second time.

Photo of Mr Paul Dean Mr Paul Dean , Woodspring

With this we may take Government new clauses 32 and 14, and Government amendments Nos. 38, 40, 103, 152, 153, 41, 154 to 158, 55, 159 to 162, 239 and 57.

Photo of David Heathcoat-Amory David Heathcoat-Amory , Wells

In our previous debate on public access, my hon. Friend the Minister for the Environment and Countryside explained that he thought it appropriate for more detail on public registers to be included in the Bill. We have also decided that more detail on the transfer and variation of authorisations should be included. When the Committee considered what has become clause 9 in the Report print of the Bill, I commented that I was not satisfied with parts of the clause and would return to the issue on Report.

One of the main concerns expressed in Committee was that raised by my hon. Friend the Member for Norfolk, North-West (Mr. Bellingham), who complained about the potential for delay in settling transfers. We consider that there is advantage in separating the procedure for transfer of an authorisation from the more complex procedures for varying an authorisation. Accordingly, new clause 14 sets out the relatively simple procedure for transfer, which provides merely for notification by the new operator within three weeks. Failure to do so will attract penalties, which are the subject of amendments Nos. 55 and 57.

New clauses 31 and 32 set out in more detail the procedures that must be followed when authorisations are to be varied. New clause 31 details the action to be taken by the enforcing authority, whether the proposal to vary was initiated by it or by the operator. It is intended to keep the public informed of the proposals for substantial change, and allows them to make representations about such proposals.

New clause 32 sets out the procedure to be followed by the operator, whether he has himself initiated the request for change or has been served with a variation notice by the enforcing authority.

Once an authorisation has been granted, not only will the regulatory authority be able to vary the authorisation from time to time, but the conditions of every authorisation will be reviewed from time to time as a matter of course. We believe that four years, for which amendment No. 38 provides, is an appropriate timetable by which to work as it allows enough time for new technology to develop in the relevant industrial sector.

Amendments Nos. 40 and 41 clarify which matters enforcing authorities must take into account when issuing authorisations for IPC and local authority air pollution control.

Amendment No. 40 makes clear on the face of the Bill the dividing line between the Bill and what more properly falls under the responsibility of the Health and Safety Executive. Amendment No. 41 requires enforcing authorities to have due regard to any guidance that may be issued by my right hon. Friend the Secretary of State on the best available techniques and environmental options to be required of operators generally or for a specific process or category of process.

7 pm

I notice that the right hon. Member for Halton (Mr. Oakes) has tabled amendment No. 103. I will not comment on it now, but if he speaks to it I will endeavour to answer the points that he makes.

Photo of David Heathcoat-Amory David Heathcoat-Amory , Wells

The new clauses are relatively uncontroversial and lie at the heart of our proposals to make effective improvements in industrial environmental protection.

Photo of Simon Hughes Simon Hughes Opposition Deputy Chief Whip (Commons), Shadow Spokesperson (Education)

May I put two questions to the Minister? First, are there any safeguards to prevent the transfer of an authorisation to an undesirable person—for example, someone who is known to have committed offences under pollution legislation?

My second question is more important and is on the guidance on the duties to which enforcing authorities must have regard. May I put a hypothetical case to ascertain whether a duty would be included? Would authorities have to take account of directions on Government policy, for example, on flue gas desulphurisation? The Government have said that there must be a 20 per cent. reduction in emissions by 1993. If authorities set their targets accordingly but the nature of the industry is changed substantially by imported coal, and if as a result by 1993 only one power station is fitted with flue gas desulpherisation equipment, as appears likely, will the Secretary of State be able to use his power of direction as a consequence of that? "Taking regard" can mean something or nothing. It can mean, "Yes, we hear what the Secretary of State says, but we do not have to do anything about it", or "Yes, we must do what the Secretary of State wants."

To what extent will amendment No. 41 allow the Secretary of State to influence the actions and practices of enforcement agencies? Concern has been expressed that if the Government seek to go back on international commitments—we are concerned that they are doing so—it could weaken the powers of the enforcement agencies, which would be a severe problem.

Photo of Mrs Elaine Kellett Mrs Elaine Kellett , Lancaster

I wish merely to ask my hon. Friend the Minister whether his observations of the best available techniques include the best available and most up-to-date modes of transport, for example, for transporting stuff to and from a waste disposal factory. Is transport included in his observations?

Photo of Mr Gordon Oakes Mr Gordon Oakes , Halton

I cannot understand why the Minister is giving directions when in almost every other clause he is making regulations. It seems to me, and particularly to the chemicals industry, that regulations would be far better than directions because it is essential that the people dealing with and controlling the processes have a clear understanding of the requirements from the outset.

Directions tend to be somewhat airy-fairy, but regulations made before the system comes into operation—that is the purpose of amendment No. 103—would be clear, precise and definite, and those operating the important system of integrated pollution control would know where they stood.

The Minister mentioned amendment No. 103, but I seek a reply merely to that point.

Photo of David Heathcoat-Amory David Heathcoat-Amory , Wells

The hon. Member for Southwark and Bermondsey (Mr. Hughes) seemed to suggest that the risk of a transfer to an unsuitable person or operator should be blocked in advance. That would be extremely difficult to operate in practice and I would rather, as the Bill does, lay reliance on the fact that any operator will have to meet the conditions of the licence. If he does not do so, prosecution or enforcement notices can follow and are available in the Bill. If such an operator must be set new conditions appropriate to evolving technology or changing circumstances, the enforcing authorities have the power to compel him to do so. That is a better, more certain and more reliable safeguard than a subjective assessment of the suitability of the operator.

Photo of Simon Hughes Simon Hughes Opposition Deputy Chief Whip (Commons), Shadow Spokesperson (Education)

I hear what the Minister says, but will he reconsider whether a person who has breached a duty under pollution legislation should automatically be the recipient of a transfer? Those shown to have failed a responsibility should be exempted.

Photo of David Heathcoat-Amory David Heathcoat-Amory , Wells

Under part II on the suitability of licensed operators for waste disposal, one of the criteria that can be taken into account is whether the operator has breached prior conditions. I hope that that meets the hon. Gentleman's point.

As to the hon. Gentleman's second point about guidance for the Secretary of State, draft guidance has been placed in the Library on the meaning of BATNEEC—best available techniques not entailing excessive cost—which interprets what is meant by "available" and tries to determine what costs should be judged as excessive. That has nothing to do with Government policy, but in addition to the guidance issued the enforcing authorities must have regard to any directions issued by the Secretary of State. It would be perfectly in order for him to issue directions on whether a country or industry should fall within the provisions of EC targets or directives. I hope that that meets the hon. Gentleman's second point.

I must apologise to my hon. Friend the Member for Lancaster (Dame E. Kellett-Bowman), but I genuinely did not hear her trying to intervene. I did not wish to prevent her from asking her question. She may appreciate that part I deals with prescribed processes from factories, but part II deals with waste disposal where transport over a considerable distance may be a material consideration. In setting the tenders for waste disposal and collection, the distance that the waste travels must be taken into account. In considering BATNEEC, we are dealing with static industrial plants or factories where transport costs are not relevant.

Photo of Mrs Elaine Kellett Mrs Elaine Kellett , Lancaster

I meant not just the distance but the standard of lorries to ensure that goods do not spill out. The best, up-to-date lorries should be included in the regulations.

Photo of David Heathcoat-Amory David Heathcoat-Amory , Wells

We are dealing in this part of the Bill with the need for industrial processes to comply with emission controls and standards. That is where the concept of BATNEEC is relevant. Therefore, transport costs, either to or from a factory, are not a material consideration.

Photo of Mrs Elaine Kellett Mrs Elaine Kellett , Lancaster

The point is that the better the techniques and the quicker the lorries, the easier it is to refine the goods. If the goods were carried haphazardly, they would arrive in a less easily processable state than if they were carried in the best possible lorries. The process is very much better if the goods have been transported efficiently because the stuff gets to the waste processing factory in a better condition.

Photo of David Heathcoat-Amory David Heathcoat-Amory , Wells

That consideration will obviously be taken into account by the owners, managers or operators of the plant in question. It will not be enforced under this part of the Bill. That being so, I am sorry to disappoint my hon. Friend the Member for Lancaster.

The right hon.Member for Halton (Mr. Oakes) was worried about the powers of the Secretary of State and would prefer provisions to be laid out, where possible, in regulations. I am afraid that I cannot accept the right hon. Gentleman's amendment. The vast majority of cases will remain the responsibility of the issuing authorities and therefore will have nothing to do with either the Secretary of State or any regulations. I agree that in certain circumstances there may be a need in the national interest to take account of factors beyond the objectives set out in clause 7. In such cases, it is right that a higher authority should be able to require the inclusion of specific conditions.

Often such action will need to be taken quickly. In those circumstances, it is an advantage that there should be a direction from the Secretary of State rather than a more cumbersome requirement for the provisions to be set out in regulations. We have been under pressure, correctly, to ensure that the Bill's provisions are not unnecessarily unwieldy and unduly burdensome to business and industry. This is not—I think that I can give the right hon. Member for Halton an assurance—at the expense of reducing in any way the accountability of the process or the rights of the public or industries affected to understand and scrutinise what happens.

There is no question that directions from my right hon. Friend the Secretary of State will in any sense be less viable than the regulations that are subject to parliamentary scrutiny. New clause 11, which has been discussed, repeats the undertaking in old clause 19 that prescribed particulars or directions made by the Secretary of State in relation to an authorisation will be placed on public registers.

In framing the provisions, we have emphasised the need for speedy, flexible arrangements without in any way compromising our commitment to accountability and to public and business access to information.

Question put and agreed to.

Clause read a Second time, and added to the Bill.