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Explanatory Memorandum to Environment (Northern Ireland) Order 2002

Part Ii: Pollution Prevention and Control

Part II contains 6 Articles.

The purpose of Part II, and the subordinate legislation to be made under it, is to provide a statutory framework to enable transposition of the IPPC Directive and make additional provision for the prevention and control of environmental pollution.

Article 3 sets out the general purpose for which regulations may be made under Article 4 including, in particular, implementing the IPPC Directive. The new system will have to incorporate the concepts and principles used in the Directive (such as Best Available Techniques and the general principles relating to energy efficiency, the control of waste production and site restoration) in so far as the installations covered by the Directive are concerned. The Directive’s requirements will, however, be modified or disapplied, where appropriate, for the purposes of applying the new control regime to installations not covered by the Directive.

Article 4 confers on the Department power to make regulations creating a new regime of pollution control, for the purpose set out in Article 3 and to the extent provided for in Schedule 1. The main purpose of Article 4 is to provide the Department with powers to make regulations to transpose the requirements of the IPPC Directive. In addition, the Department may use these powers to make regulations in connection with other EU Directives and Northern Ireland legislation relating to environmental pollution, as set out in paragraph 20 of Schedule 1.

Paragraph (4) lists those bodies or persons which the Department must consult before making regulations. This paragraph looks to the future and will ensure, once the Order has been introduced, that the Department will consult widely before using its powers to make regulations under the Order.

However, paragraph (5) provides that consultation undertaken before the coming into operation of Article 4 will be considered as effective compliance with the requirements of paragraph (4). This provision is intended to have a strictly limited application and its main purpose is to give legitimacy to consultation which is being carried out on a set of draft regulations to be made under Part II of the Order in respect of the IPPC Directive before the Order itself comes into effect. This will enable the Order and draft regulations to be considered in parallel thereby ensuring that all the necessary legislation becomes operative as quickly as possible.

It is intended that the regulation-making powers in Article 4 will be used by the Department to transpose the requirements of other EU Directives. However, in no circumstances will the Department use these powers to rely on consultation carried out on any issue before the date of the introduction of the legislation to the Assembly.

The first set of regulations made under the Order will be subject to approval of a draft by a resolution of the Assembly. Any subsequent regulations which contain provisions creating an offence or increasing a penalty or amending or repealing any Northern Ireland legislation, will also be subject to that same procedure. For other regulations, the negative resolution procedure in the Assembly may be used.

Articles 5 and 6deal with the specific issue of waste management. Certain transitional arrangements and consequential amendments are necessary to facilitate the change over from disposal licences under the Pollution Control and Local Government (Northern Ireland) Order 1978 (the 1978 Order) to site licences under the Waste and Contaminated Land (Northern Ireland) Order 1997 (the Waste Order) and then the further progression to permitting under this Order which will be required for certain large landfill installations falling within the scope of the Directive.

The provisions of the Waste Order have not yet been brought fully into operation. However, Article 47 of that Order is intended to convert subsisting disposal licences into site licences on the date when the waste management licensing regime comes into operation. That provision sets a time limit of three years for the duration of the newly created site licence. In that event, after three years have elapsed the operator of the installation could leave the site without any continuing obligations to address environmental and health safeguards. In order to avoid that result, some amendment of Article 47 is considered necessary. The solution proposed in Article 5 of this Order is that the newly converted site licence should be of indefinite duration, as is the case with other site licences under Article 6(10) of the Waste Order, and therefore it becomes subject to requirements in relation to revocation or surrender. Equivalent provision is made as regards resolutions of district councils allowing land in their occupation to be used for waste deposit purposes, because those resolutions are similarly converted into waste management licences by Article 47.

Article 6 continues the process of transition from disposal licences to site licences and ultimately to permits under this Order.

It is possible that there are cases where disposal licences issued by district councils under the 1978 Order have been allowed to expire inadvertently although the operator has carried on with operations authorised under the expired licence. The purpose of Article 6 is to provide that, in these circumstances, such licences are deemed not to have expired and to allow them to be brought within the transitional arrangements provided for by Article 5 of this Order and Article 47 of the Waste Order. Under these arrangements existing disposal licences under the 1978 Order are deemed to be site licences under the Waste Order as from the date of the introduction of the new waste management licensing regulations (the appointed day).

However, these arrangements are not open-ended but are subject to two strict provisos provided for in Article 6.

Firstly, a licence holder will be able to benefit from the new arrangements only if the activities carried on after the expiry date are the same as those authorised under the original licence. This is provided for in paragraph (1)(b) and the definition of ‘relevant activities’ in paragraph (7). Any licence holder who continues to carry on operations not authorised by the expired licence will not be able to benefit from the new arrangements and will be open to prosecution for breach of licence conditions in the normal way.

Secondly, through the definition of the terms ‘appointed day’ and ‘relevant day’ in paragraph (8), Article 6 provides a timescale within which its provisions are to apply. The ‘relevant day’ is defined as the day falling one year before the Order is made. The ‘appointed day’ is defined as the date on which the regulations introducing the new waste management licensing controls under the Waste Order are brought into operation.

Therefore, any existing disposal licence which expires between these dates but where the operator continues to carry on operations will be deemed not to have expired provided that any activities which are carried on were authorised under the expired licence. Because such licences will be deemed still to exist at the ‘appointed day’ they will at that date, by virtue of the transitional provisions in the Waste Order, be converted to site licences under that Order and therefore subject to the new waste management licensing controls. The terms and conditions attached to the replaced licence continue to apply to its successor.

Paragraph (4) ensures that activities which were not criminal when they were carried out are not criminalised as a consequence of these provisions. By paragraph (5), however, criminal proceedings which have reached the stage where the accused has been convicted are not affected in any way.

Paragraph (6) imposes on district councils a duty to notify licence holders affected by these provisions.

Article 7 provides the Department with new powers to make grants to bodies involved in activities relating to the recovery or disposal of waste in pursuance of the objectives of the Department’s Waste Strategy, or the prevention or control of environmental pollution.

Article 8 defines some of the key words and phrases used in Part II.

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