Explanatory Memorandum: The Environment (Northern Ireland) Order 2002

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This Explanatory Memorandum refers to the Environment (Northern Ireland) Order 2002 (N.I. 7)

THE ENVIRONMENT (NORTHERN IRELAND) ORDER 2002

1. This Environment (Northern Ireland) Order 2002 (the Order) was made on 17 December 2002.

3. It will provide in Northern Ireland legislation broadly similar to that already in operation in Great Britain in the Environment Act 1995 (Part IV), the Pollution Prevention and Control Act 1999 and the Countryside and Rights of Way Act 2000.

4. The first part of the Order has 2 Articles relating to the Order as a whole. Article 1 provides for the title and commencement provisions. Article 2 deals with interpretation and defines a number of general terms used throughout the Order. It also applies the Interpretation Act (Northern Ireland) 1954 which lays down rules for the construction of legislation in Northern Ireland.

5. The aim of the IPPC Directive is to provide a regulatory framework for a high level of protection of the environment through the prevention or reduction of emissions to air, water and land as a result of industrial activities.

6. The European Council adopted the IPPC Directive in September 1996. It is derived in large measure from the UK system of integrated pollution control (although there are some important differences) which was introduced in Northern Ireland in the Industrial Pollution Control (Northern Ireland) Order 1997 (the 1997 Order) and the legislation now proposed will, to a large extent, follow the procedures already established by the 1997 Order.

7. Once implemented, the new arrangements will progressively replace the current controls on industrial pollution provided for in the 1997 Order.

8. The 1997 Order provides for a 3-tier system for the control of pollution from certain prescribed industrial processes, as follows: -

9. Authorisations under the 1997 Order must contain conditions based, primarily, on the use of the "best available techniques not entailing excessive cost" for preventing or minimising polluting emissions. Part A processes must also have regard to the "best practical environmental option".

10. The provisions of Part II will share a number of features with the current arrangements under the 1997 Order. In particular, they will retain the regulatory structures of that Order with a Chief Inspector assuming responsibility for regulation as Part A activities of those installations listed in Annex 1 to the IPPC Directive. This means that all such installations will be assessed against their capacity to cause significant pollution to air, water and land.

11. In addition, the provisions of the 1997 Order relating to Part B and Part C processes will be repealed and re-enacted in the new legislation.

12. However, to reflect the specific requirements of the IPPC Directive, Part II will provide for the subordinate legislation to apply a number of new features to Part A installations. These may be summarised as follows:

13. The IPPC Directive's requirements applied to new installations immediately upon its coming into effect and to parts of existing installations which undergo a "substantial change" immediately such a change occurred. Existing installations in so far as they are not substantially changed, were afforded a period of grace of up to eight years after the Directive was brought into effect, during which they would need to be upgraded to meet the Directive's requirements. All installations therefore must be permitted by 31 October 2007. Once issued, a permit must be reviewed periodically, and must be updated if there are significant technological or other developments.

14. A phased call-in of installations by sector will be provided for in the subordinate legislation. Special provision will also be made for dealing immediately with those installations which required permitting in the period between the operational date of the Directive and the effective date of the legislation.

15. The Department issued an initial consultation paper on its proposals in June 2001. Some 500 bodies and individuals representative of the interests of local government, industry, agriculture and small businesses were consulted and 30 responses were received. The majority was in favour of the proposals and only 16 made significant comments. Of these, the Department accepted 8 and rejected 8. Of those rejected, 4 were rejected on policy grounds, 3 on the basis that what was being proposed would be outside the scope of the legislation and 1 on the ground that the proposal would be a breach of the Directive.

16. Initially, three options were considered for transposing the requirements of the IPPC Directive in Northern Ireland. The first was a "do nothing" option. However this was discounted on the grounds that transposition of Directives into law by Member States is mandatory.

17. The second option considered was to transpose by regulations made under the European Communities Act 1972. While this would be possible in legislative terms, it would not be possible, without primary legislation, to re-align the whole of the 1997 Order with the new pollution control scheme to implement the requirements of the IPPC Directive. The result would be a new integrated pollution prevention and control scheme running alongside the regime already established under the 1997 Order for those installations not covered by the Directive. This would be confusing for both installation operators and enforcing authorities.

18. The third option considered was to transpose through a combination of primary and subordinate legislation. This would parallel the transposition arrangements in England, Scotland and Wales.

19. In addition to the advantage of a single pollution control regime outlined above, this option had the added advantage of enabling the primary legislation to provide powers for other relevant Directives to be transposed by way of regulations without the need for further primary legislation.

20. In view of these advantages, the Department proceeded by way of the third option.

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 6 deal 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.

21. Part III of the Order will make provision for implementing Council Directive 96/62 EC on Ambient Air Quality Assessment and Management. It will also satisfy the Northern Ireland Executive's Programme for Government (PfG) commitment to have in place, by May 2003, a policy and legislative framework to deliver Northern Ireland's contribution to the targets in the UK Air Quality Strategy for England, Scotland, Wales and Northern Ireland.

22. Effective transposition of the Directive requires the establishment of a statutory scheme affecting the relevant parties. Part III, therefore, places a range of statutory requirements on relevant authorities (to be prescribed by regulations). These statutory requirements are dictated by the responsibilities within the various agencies' control and what is required to satisfy the Directive.

23. The provisions of Part III seek to establish an effective local air quality management system for Northern Ireland. This aim will be achieved by:

24. Subsequent Regulations to be made under Part III will place in statute the objectives and targets contained in the Air Quality Strategy which will reflect established EC limit values (objectives) and targets.

25. The proposals in Part III are mainly based on those contained in Part IV of the Environment Act 1995 which covers England, Scotland and Wales. In addition, Part III provides the Department with the power to fund air quality work and to recoup the cost of carrying out any air quality function on behalf of a District Council. It also ensures the public are kept informed of air quality issues such as the designation of air quality management areas.

26. In October 2001 the Department carried out a public consultation on the proposal to provide legislation for the management of air quality in Northern Ireland.

27. As a result of the consultation exercise a total of 36 responses were received, all of which welcomed the proposals. The majority of the responses have been met by clarification of the proposals without the need for any change to the proposals. Of the remaining 5 issues raised, 4 were rejected on the grounds that they were not a matter for the legislation and one was accepted.

28. Initially, three options were considered for transposing the requirements of the ambient air quality assessment and management Directive in Northern Ireland. The first was a "do nothing" option. However this was discounted on the grounds that transposition of Directives into law by Member States is mandatory.

29. The second option considered was to transpose by regulations made under the European Communities Act 1972. While this would be possible solely in respect of transposing the Directive on ambient air quality assessment and management it would not provide a legislative framework to deliver Northern Ireland's contribution to the targets in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland.

30. The third option considered was to transpose through a combination of primary and subordinate legislation.

31. This option had the advantage of providing for a combined transposition of the EC Directive and the creation of a legislative framework to deliver Northern Ireland's contribution to the targets in the Air Quality Strategy for England, Scotland, Wales and Northern Ireland. In addition this option had the advantage of enabling the primary legislation to provide powers for other relevant Directives to be transposed by way of regulations without the need for further primary legislation.

32. In view of these advantages, the Department proceeded with the third option.

Article 9 provides that Part III contains provisions for implementing the Council Directive 96/62 EC on ambient air quality assessment and management in Northern Ireland.

Article 10 imposes on the Department the obligation to prepare and publish a statement or strategy document setting out the air quality strategy for Northern Ireland. The strategy should contain policies for the assessment and management of air quality, which have been formulated to prevent or mitigate the effects of pollution. The strategy should also set out the European framework within which the strategy must work and include standards and objectives for specific pollutants and a timetable for their achievements. It should also set out the steps/measures, which the Government is proposing to take. The Strategy may be a joint strategy with other Administrations or a Northern Ireland regional one.

Article 11 places a responsibility on each District Council to carry out a review of the air quality, and the likely future quality of air, within its area. Where a review has been carried out, an assessment should be made, within a specified period, of whether the air quality standards and objectives are being achieved. The District Council will then be required to identify particular parts, within its area, where the standards are not likely to be achieved.

Article 12 provides that where a District Council carries out a review of its air quality, and finds that in a certain part of its area air quality standards and objectives are not being met, or are unlikely to be met within the time period, it must make an order designating that part of its area as an air quality management area. The District Council is required to publish the order. An order may also be varied or revoked by a further order.

Article 13 sets out the steps a District Council must take after it has made a designation order. Within a specified period of making the designation order, it must supplement the information it has on the designated area by carrying out an assessment. The assessment of the air quality should cover the present and likely future air quality standards or objectives and whether they are being or are not likely to be achieved. The District Council will then prepare a report of the findings of the assessment.

Article 14 confers on the Department the power to exercise any of the air quality functions, which should be undertaken by a District Council. It also gives the power to the Department to recoup the costs of any such exercise undertaken on a District Council's behalf. The Department has also a power to give direction to a District Council requiring it to carry out a specific action in relation to air quality. This Article also provides a power for the Department to give direction to a District Council in order to implement aspects of Community Treaties, or any international agreement relating to the quality of air. There is also a requirement placed on the Department to publish any directions given and to make copies available to the public. A District Council must comply with any such direction given to it.

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Northern Ireland Orders in Council

THE ENVIRONMENT (NORTHERN IRELAND) ORDER 2002