Memorandum submitted by Environment Agency Wales (E3)

SUMMARY

We are pleased to be able to submit our views on the proposed Environmental Protection and Waste Management Legislative Competence Order (the "Order"). Environment Agency Wales, as a part of the Environment Agency, welcomes measures that facilitate sustainable waste management and improve environmental protection in Wales.

As we operate in Wales and England any proposals need to take account of our cross-border regulatory responsibilities. Similarly many of those we regulate operate in Wales and England and they need clarity and certainty in both what the legislation and any policy objectives requires from them in each country.

We have specific regulatory roles in relation to the proposed Matters but outside of our direct areas of responsibility there are other opportunities to improve environmental outcomes.

We believe that the proposed Order, as drafted, would better enable the implementation of the Welsh Assembly Government's environmental policy agenda. However, the Order may not enable the National Assembly for Wales to implement appropriate legislation with regard to greenhouse gas emissions and sustainable development in Wales.

1 INTRODUCTION

1.1 Environment Agency Wales' role is to protect and improve the environment and to make Wales a better place. Our roles in waste management and environment protection includes being:

§ a regulator of pollution from major industry, waste management activities, environmental crime, and the management of pollution incidents and emergencies so as to protect the environment and public health. We use a risk-based approach so that our resources are applied where they will be most effective;

§ a supporter and promoter who informs and supports Local Authorities in delivering the Wales Waste Strategy and Local Air Quality Management plans by being a reliable source of technical expertise and information, and by providing guidance and data to industry, the public and Government. An important role is to provide the best data, modelling and interpretation to those who decide the location and scale of waste facilities, or are responsible for the procurement, provision or operation of such facilities; and

§ an Advisor to the Welsh Assembly and UK Governments on waste and pollution matters.

2 GENERAL COMMENTS ON THE PROPOSED ORDER

2.1 This Order should enable the management of waste and the protection of the environment to be more specific and tailored to the needs of Wales. The proposed Matters would support the "Pride in Our Communities" initiative by developing Measures that tackle local environment quality issues, such as restricting access to fly-tipping hot spots. The proposed Matters would also enable the Welsh Assembly Government to introduce statutory and material-specific recycling targets that are more appropriate to Welsh waste streams while still recognising that some wastes will continue to move across the UK for treatment and/or disposal.

2.2 Regulations need to be as clear as possible for those we regulate and our staff. It is important that Wales and England have the same overarching waste and environmental protection principles, such as the hazardous waste consignment procedures and best available techniques under Integrated Pollution Prevention and Control. The Environmental Permitting Regulations (EPR), where we worked with the Welsh Assembly Government and Defra to produce a standardised permitting regime, is an example of this.

3 ANSWERS TO SPECIFIC QUESTIONS

Q1 Is the LCO request in the spirit and scope of the devolution settlement?

We believe that it is.

Q2 Is the use of the LCO mechanism in accordance with the Government of Wales Act 2006?

Q3 Is the use of an LCO more appropriate than, for example, the use of framework powers in a Westminster bill?

We have nothing to submit on these two questions.

Q4. The extent to which there is a demand for legislation on the matters in question?

'Matter 6.1 Preventing, reducing, collecting, managing, treating or disposal of waste'

This matter should enable the Welsh Assembly Government to deliver its waste policy agenda more effectively, particularly where it relates to the quality of the local environment and to developing a co‑ordinated approach to the management and disposal of waste.

The Wales Waste Strategy states that the priority is to reduce the amount of waste produced, particularly hazardous waste. The revised waste strategy also focuses on waste reduction. Reducing the amount of waste produced encourages the efficient use of raw materials, energy and water. However, recycling is not waste reduction. It is better not to produce the waste in the first instance than it is to create waste and then to recycle it.

'Matter 6.2 Protecting or improving the environment in relation to pollution

We see environmental protection as reducing the risk of pollution and environmental improvement as sustainable development.

This Matter does not consider greenhouse gas reduction under the heading of 'pollution'. While the Climate Change Act greatly enables the reduction of greenhouse gas emissions, we think that this Order could also be an opportunity for these issues to be targeted in a specific Welsh context.

The Welsh Assembly Government could use Matters 6.1 and 6.2 for the development of sustainable communities. Under s.79 of the Government of Wales Act 2006, the Welsh Assembly Government has an obligation to achieve sustainable development. This Matter could help to deliver this in Wales by measures to mitigate adverse environmental impacts arising from new development. In some cases, the development of new infrastructure such as drainage systems would benefit the environment. For example, wastewater could be a beneficial resource i.e. flood storage water for irrigation, and schemes such as Sustainable Drainage Systems can improve bio-diversity and recreation opportunities.

We have nothing to submit on Matter 6.3 as nuisance is not within our remit.

Q5. To what extent might the transfer of functions proposed have implications for the UK budget?

We have nothing to submit on this question.

Q6. To what extent might the transfer of functions impact on reserved functions?

For those areas where we are competent the exclusions in the draft Order should prevent any significant impact on the reserved functions.

Q7. Are there any cross-border issues relating to the LCO? (would legislation subsequently be required in England?)

This Order should enable the management of waste and the protection of the environment to be more specific and tailored to the needs of Wales. However, activities in Wales and England are so deeply integrated that any policy or regulation in one country cannot avoid having some impact on the other. For example, it is conceivable that along the Welsh Marches any measure in Wales that inhibits fly-tipping might increase fly-tipping on the English side.

Any subsequent Regulations need to provide certainty and be as clear as possible for those we regulate and for our officers. It is important to have the same overarching waste and environmental protection principles in Wales and England, e.g. the hazardous waste consignment procedures and best available techniques under Integrated Pollution Prevention and Control. The Environmental Permitting Regulations (EPR), where we worked with the Welsh Assembly Government and Defra to produce a standardised permitting regime, is an example of this. It is intended that in the future EPR will be the platform for wider permitting requirements, so as to provide the consistent approach, efficiency savings and the regulatory certainty that business and the environment needs.

4 CONCLUSIONS AND RECOMMENDATIONS

4.1 Environment Agency Wales believes that the proposed Order, as drafted, would better enable the implementation of the Welsh Assembly Government's environmental policy agenda.

May 2009