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Lord Harris of Greenwich: My Lords, I should say one or two words on this amendment. As the noble Viscount, Lord Ullswater, will realise, given the number of noble Lords now sitting in the House, if there were to be a Division on any of these amendments the House would be automatically adjourned. My noble friends and I have no intention of doing that—-

A Noble Lord: For the moment.

Lord Harris of Greenwich: For the moment. But I must say to the noble Viscount that there have been constant complaints about late sittings on this and other Bills. The Government so far have indicated no interest in dealing with this problem, despite the Procedure Committee Report. If the Government maintain this position and on this and on other Bills decline to listen to the views of the Procedure Committee, I tell the House quite bluntly that we shall force a Division on some occasion and the House will be adjourned. We have no desire to do that. I hope that the noble Viscount will discuss the matter with the Government Chief Whip

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to ensure that the views of the Procedure Committee are listened to seriously and that the Government take them into account in terms of timetabling their legislation.

Viscount Ullswater: My Lords, of course I take very seriously what the noble Lord, Lord Harris of Greenwich, has just said. I shall indeed bring his remarks to the attention of my noble friend the Chief Whip.

I shall now revert to the amendment. Amendment No. 269 would amend Section 35 of the Environmental Protection Act 1990 to place certain obligations on the holders of waste management licences where conditions of the licence require access and rights over adjacent land. At present, Section 35(4) of that Act gives licence holders such rights in relation to any land as would enable them to comply with the requirements of the licence. The provision of such rights is sometimes necessary in order to enable licence holders to monitor gas and leachate, and, if necessary, take remedial action to prevent pollution. Such monitoring will normally be necessary many years after the disposal of waste has ceased. Without such rights a licence holder may not be able to comply with his licence conditions.

The amendment tabled, as the noble Earl indicated, is identical to one which he tabled in Committee. I said at that time that we had received no evidence that this provision had caused difficulties. Nevertheless, I understand the noble Earl's concern, and I have given further thought to what he said on the matter in Committee.

In those circumstances I should like to take further advice. I understand that it is a matter which the Country Landowners' Association is concerned with, but there are also others who have interests, including the waste regulation authorities and the waste industry. I would like to consult all those who may have an interest in this question.

The Government will consider the need for any further action in the light of these comments and considerations. I am sorry that I am unable to offer the noble Earl any more definite assurance than that. I hope that he will recognise that this is a complex issue and that we need to give further thought to it. With that assurance, I hope that the noble Earl will feel able to withdraw his amendment.

The Earl of Lytton: My Lords, I am very grateful to the noble Viscount for that response. I shall consider his words very carefully. I am particularly glad that he feels that there may now be merit in considering this matter further. It is a crucially important issue and a matter of fundamental legal propriety is at stake. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas of Chilworth moved Amendment No.269A:


Page 208, line 44, at end insert:
("( ) In subsection (11), the words "or its surrender is accepted" shall be omitted.").

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The noble Lord said: My Lords, in moving Amendment No. 269A, which is a paving amendment, I should like to speak also to Amendments Nos. 270A and 270B.

Following the remarks of the noble Lord, Lord Harris, perhaps I may preface my speech by saying that I was minded earlier this evening to do exactly what he was suggesting because it is unfortunate that this is the third occasion on which I have attempted to move a serious amendment at this time of the night. Indeed, I gave notice to my noble friends on the Front Bench that I was so minded. In view of what the noble Lord, Lord Harris, said in reminding your Lordships of the recommendations of the Procedure Committee—the noble Lord may very well raise the matter not only through the usual channels but through the Procedure Committee—I think that I can best serve your Lordships by desisting from temptation and awaiting the further deliberations of the Procedure Committee. However, having said that, I am not going to be browbeaten by the time of night into curtailing my remarks on what I consider to be a serious matter. I apologise to your Lordships who may have to suffer the burden of my remarks.

The amendments return to a matter that I raised in Committee and relate to the new arrangements for contaminated land in Clause 54. In Committee, I sought to ensure that operators of licensed landfills who had been subject to very prescriptive and stringent control both during the operations and for decades after, and who had eventually been granted—or rather earned—a certificate of completion stating that the site was,


    "unlikely to cause further pollution or harm",

should no longer be liable for the cost of remedial works at the site if problems subsequently occurred. Indeed, that is the position that would have obtained if the Government had implemented Section 61 of the Environmental Protection Act. I shall not quote those provisions.

However, at that time my amendments were firmly rejected. My noble friend the Minister stated that there had been a change in government policy since the 1990 Act was brought into force in November 1990. He said then that Section 61 would be repealed and that in future the waste management industry would be treated no differently from any other industry or person who causes contamination. On the face of it, that seems fair and not unreasonable.

But the waste management industry has been treated very differently in this Bill from other industries and persons who may cause contamination. The new system of waste management licensing, which was introduced only in May 1994, placed a long-term responsibility for a site on the operator. That was strongly supported by the industry and by all responsible operators. However, there was another part of the package—the transfer of liability, through Section 61, to which I have referred, to the local authority once the certificate of completion had been obtained.

In view of that—and no doubt because of the potential burden on the public purse—the Government have introduced a "belt and braces" approach to regulation. That is understandable but, I believe,

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unnecessary. In simple terms, that means that the industry can expect to pay perhaps up to £100 million a year for some decades to ensure that its sites are eventually granted certificates of completion but, in addition, (by virtue of this Bill) future certificates of completion, although costly—some cost up to £5,000 notwithstanding the subsistence payments made on the way—would be quite worthless because of the enduring liability which is now imposed in Clause 54.

The twofold approach cannot be justified. I admit that the amendments that I have set down may be inadequately drafted but they would abolish certificates of completion and by virtue of that they would enable an operator to choose which belt or which pair of braces he wished to use to maintain the site as he determined necessary. It would enable him to bring into play new technologies, the fruits of scientific advancement, which may not, in the immediacy, find their way into guidelines.

If the operator chooses wrongly, he will have to pay for his mistake by virtue of the Clause 54 remediation powers that the agency would have. That would be an ongoing situation. In other words the operator pays his money and takes his choice; he has to find the money; he has to put his money where his mouth is. I do not think that that is unreasonable.

This set of amendments does not amount to any kind of deregulation of the waste industry. My noble friend the Minister will know that the industry successfully campaigned against that last year. I am arguing for a sensible level of regulation.

In conclusion, I should like to remind my noble friend that the Government in their policy statement in Circular 11/94 stated that the regulations should be goal based, should not serve as an end in themselves and should not be over prescriptive. I suggest that in this area the legislation and the policy contained in that document are very far apart.

At this time of night perhaps I cannot expect a long debate or a total acceptance of the amendment. I invite my noble friend to consider whether the argument that I have deployed has logic and sense and is practical and fair to everybody at the end of the day: that you pay once and not twice for your sins if sins are going to be committed.

I hope that my noble friend will deal with this matter sympathetically. I look forward to his answer. I beg to move.

Viscount Ullswater: Amendment No. 270A is the principal amendment in this group. It would remove the provisions in Section 39 of the Environmental Protection Act 1990 which allow a licence holder to surrender a waste management licence only if the waste regulation authority is satisfied that the condition of the land is unlikely to cause pollution of the environment or harm to human health. Amendment No. 270A would instead allow the surrender of the licence to be made at the wish of the holder provided that four years have elapsed since the cessation of disposal activities. The other amendments in the group are consequential upon this change.

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These proposals would demolish one of the principal features of the new waste management licensing system introduced by Part II of the Environmental Protection Act 1990, which has been in operation for less than a year. The purpose of this system is to ensure that licensed activities do not cause pollution of the environment or harm to human health. I can see no justification whatever for my noble friend's proposals.

The surrender provisions in Section 39 are designed to encourage licence holders to operate their sites responsibly and with due regard for the impact they may have on the environment both now and in the future. Under that system, responsibility for the consequences of depositing waste rests with the person who profited from that business. It exemplifies the principle that the polluter pays. The proposed amendments would allow the holder to avoid responsibility for pollution from the site after the licence is surrendered.

Amendment No. 270A suggests that a licence could in all cases be surrendered as early as four years after the site had ceased to operate. In the case of landfill sites, however, the release of harmful quantities of pollutants in the form of landfill gas or leachate may occur many years after a deposit of waste has taken place. Monitoring and containment measures may be needed for decades in some cases. The present system allows post-closure conditions to be attached to licences, ensuring that they are cared for after the deposit of waste until emissions of gases and leachate are no longer likely to cause pollution or harm to human health. Of course, not all sites used for licensed activities are landfill sites. In fact, the particular conditions at each site will vary, making any universal cut-off point—even for a longer period—inappropriate.

I ask your Lordships to consider who is to become responsible for preventing pollution from landfill sites after the four-year period has expired and the licence has been surrendered, and who would be responsible for cleaning up any pollution that subsequently occurs. We are already having to make provision in Clause 54 to deal with the legacy of contaminated land which has resulted from closed landfill sites from which operators were able to walk away under the old provisions of the Control of Pollution Act. The surrender provisions in Section 39 of the 1990 Act aim to prevent those problems from occurring in the future.

The surrender provisions should not affect an operator's liability under the contaminated land provisions. My noble friend has argued that closed landfills should be treated in the same way as other contaminated land, and I can see no justification for giving special treatment to closed landfills by removing liability because a certificate of completion had been granted.

In May last year we took a major step forward when we introduced the new waste management licensing system. The amendments represent a step backwards,

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and for that reason I cannot accept them. I hope that after considering those words my noble friend will feel able to withdraw the amendment.


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