The Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020

Made: 23rd November 2020

Coming into force in accordance with regulation

In accordance with paragraphs 1(1) and 8F(1) of Schedule 7 to that Act, a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 — Introduction

Citation

1

These Regulations may be cited as the Persistent Organic Pollutants (Amendment) (EU Exit) Regulations 2020.

Commencement

2

• (1) This Part and Part 4 come into force immediately before IP completion day.

• (2) Parts 2 and 3 come into force on IP completion day.

PART 2 — Amendments to subordinate legislation

Amendments to the Persistent Organic Pollutants Regulations 2007

3

The Persistent Organic Pollutants Regulations 2007 are amended[^f00002] in accordance with regulations 4 and 5.

Amendments to regulation 3

4

• (1) Regulation 3 is amended as follows.

• (2) In paragraph (1), for the words before sub-paragraph (a) substitute—

The competent authority for the purposes of these Regulations is

• (3) In paragraph (2), for “They are also the enforcement authorities” substitute “The competent authority is also the enforcement authority”.

Substitution of regulation 4

5

For regulation 4 substitute—

(4) All duties placed on the United Kingdom in respect of Northern Ireland in Regulation (EU) 2019/1021[^f00003] must be executed by the Department of Agriculture, Environment and Rural Affairs in Northern Ireland, other than— (a) Article 4(3) of that Regulation, where they must be executed by the Secretary of State; and (b) Article 6(3) of that Regulation, which must be complied with by any person considering an application for a permit or a significant modification to a permit under the Pollution Prevention and Control (Industrial Emissions) Regulations (Northern Ireland) 2013[^f00004].

PART 3 — Amendments to retained direct EU legislation

Amendments to Regulation (EU) 2019/1021 on persistent organic pollutants

6

Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants (recast) is amended in accordance with regulations 7 to 28.

Amendment to Article 1

7

In Article 1, omit the second paragraph.

Amendments to Article 2

8

• (1) Article 2 is amended as follows.

• (2) In point (8), at the end insert “, as read with Articles 5 and 6 of that Directive”.

• (3) At the end insert—

(14) ‘DAERA’ means the Department of Agriculture, Environment and Rural Affairs in Northern Ireland; (15) ‘NRW’ means the Natural Resources Body for Wales; (16) ‘PCB Regulations’ means— (a) in relation to England and Wales, the Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) Regulations 2000[^f00005]; (b) in relation to Scotland, the Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (Scotland) Regulations 2000[^f00006]; (17) ‘Permitting Regulations’ means— (a) in relation to England and Wales, the Environmental Permitting (England and Wales) Regulations 2016[^f00007]; (b) in relation to Scotland, the Pollution Prevention and Control (Scotland) Regulations 2012[^f00008]; (18) ‘SEPA’ means the Scottish Environment Protection Agency; (19) ‘third country’ means a country other than the United Kingdom.

New Articles 2A, 2B and 2C

9

After Article 2 insert—

For the purposes of this Regulation, “appropriate authority” means— (a) in relation to England, the Secretary of State; (b) in relation to Scotland— (i) the Scottish Ministers; or (ii) where the Scottish Ministers consent, the Secretary of State; (c) in relation to Wales— (i) the Welsh Ministers; or (ii) where the Welsh Ministers consent, the Secretary of State. For the purposes of this Regulation, “competent authority” means (except in Article 8)— (a) in relation to England, the Environment Agency; (b) in relation to Scotland, SEPA; (c) in relation to Wales, NRW. (1) For the purposes of this Regulation, “Directive 2008/98/EC” means Directive 2008/98/EC[^f00009] as last amended by Directive (EU) 2018/851[^f00010] and read in accordance with paragraphs 2 and 3. (2) Article 5 of Directive 2008/98/EC is to be read as if— (a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted; (b) after paragraph 1 there were inserted— (1A) Any decision as to whether a substance or object is a by-product must be made— (a) in accordance with any regulations setting out detailed criteria on the application of the conditions in paragraph 1 to specific substances or objects; and (b) having regard to any guidance published by the appropriate authority or the competent authority for the purposes of this Article. (c) paragraphs 2 and 3 were omitted. (3) Article 6 of Directive 2008/98/EC is to be read as if— (a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted; (b) after paragraph 1 there were inserted— (1A) Any decision as to whether a substance or object has ceased to be waste must be made— (a) in accordance with any regulations or retained direct EU legislation setting out detailed criteria on the application of the conditions in paragraph 1 to specific types of waste; and (b) having regard to any guidance published by the appropriate authority or the competent authority for the purposes of this Article. (c) in paragraph 2— (i) the first subparagraph were omitted; (ii) in the second subparagraph, for “Those detailed criteria” there were substituted “Any detailed criteria set out in guidance as referred to in paragraph 1A”; (iii) the third and fourth subparagraphs were omitted; (d) paragraph 3 were omitted; (e) in paragraph 4— (i) in the first subparagraph— (aa) in the first sentence, for the words from the beginning to “Member State”, there were substituted “Where criteria have not been set as referred to in paragraph 1A(a), the competent authority”; (bb) the second sentence were omitted; (ii) in the second subparagraph— (aa) for “Member States” there were substituted “The appropriate authority”; (bb) “by competent authorities” were omitted.

Amendments to Article 3

10

• (1) Article 3 is amended as follows.

• (2) In paragraph 3—

• (a) for “Member States and the Commission” substitute “The appropriate authority”;

• (b) for “Union legislation” substitute “retained EU law”.

• (3) Omit paragraphs 4 and 5.

Amendments to Article 4

11

• (1) Article 4 is amended as follows.

• (2) In paragraph 2, for the third and fourth subparagraphs substitute—

Immediately upon becoming aware of articles referred to in the first and second subparagraphs, the competent authority shall inform the Secretary of State and— (a) where the competent authority is SEPA, the Scottish Ministers; (b) where the competent authority is NRW, the Welsh Ministers. Whenever the Secretary of State is so informed or otherwise learns of such articles, the Secretary of State shall, where appropriate, notify the Secretariat of the Convention accordingly without further delay.

• (3) For paragraph 3 substitute—

(3) Where a substance is listed in Part A of Annex 1 or in Part A of Annex 2 and a competent authority wishes to permit, until the deadline specified in the relevant Annex, the manufacturing and use of that substance as a closed-system site-limited intermediate, that competent authority shall notify the Secretary of State, who shall in turn notify the Secretariat of the Convention. (3A) The notification by the Secretary of State to the Secretariat of the Convention may be made only if the following conditions are satisfied: (a) an annotation has, following the request of a competent authority or on the appropriate authority’s own initiative, been entered in the relevant Annex in accordance with paragraph 3C; (b) the manufacturer has demonstrated to the competent authority that the manufacturing process will transform the substance into one or more other substances that do not exhibit the characteristics of a POP, ensuring that it is rigorously contained by technical means during its whole lifecycle; (c) the manufacturer has demonstrated to the competent authority that the substance is a closed-system site-limited intermediate within the meaning of Article 2(11) and that it is not expected that either humans or the environment will be exposed to any significant quantities of the substance during its production and use; and (d) the manufacturer has informed the competent authority of the details of actual or estimated total manufacturing and use of the substance concerned and the nature of the closed-system site-limited process, specifying the amount of any non-transformed and unintentional trace contamination by any POP starting material in the final substance, mixture or article. (3B) Within one month of submission of the notification to the Secretariat of the Convention, the Secretary of State shall communicate the notification to DAERA, the Scottish Ministers and the Welsh Ministers. (3C) The appropriate authority may by regulations— (a) amend Annex 1 or 2 by entering annotations expressly to the effect that manufacturing and use, as a closed-system site-limited intermediate, of a substance listed in Part A of the relevant Annex may be permitted; and (b) amend the deadlines in such annotations in cases where, following a repeat notification by the Secretary of State to the Secretariat of the Convention, express or tacit consent is issued under the Convention for the continued manufacturing and use of the substance for another period.

Amendments to Article 5

12

• (1) Article 5 is amended as follows.

• (2) In paragraph 2—

• (a) in the first subparagraph omit “of the Member State in which the stockpile is established”;

• (b) in the second subparagraph, for the words from “laid down” to “Council” substitute “set out in the COMAH Regulations 2015” (and omit the corresponding endnote);

• (c) after the second subparagraph insert—

• In the second subparagraph, “COMAH Regulations 2015” means the Control of Major Accident Hazards Regulations 2015[^f00011].

• (3) In paragraph 3, for “Member States” substitute “The competent authority”.

Substitution of Article 6

13

For Article 6 substitute—

(1) The Secretary of State must maintain the inventory relating to the United Kingdom which was drawn up in accordance with Regulation (EC) No 850/2004[^f00012] for the substances listed in Annex 3 to this Regulation released into air, water and land in accordance with the United Kingdom’s obligations under the Convention and the Protocol. (2) The Secretary of State must review and update the United Kingdom’s action plan on measures to identify, characterise and minimise, with a view to eliminating where feasible as soon as possible, the total releases of substances listed in Annex 3, in accordance with Article 7(1)(c) of the Convention. (3) The relevant authority must, when considering proposals to construct new facilities or to significantly modify existing facilities using processes that release chemicals listed in Annex 3, give priority consideration to alternative processes, techniques or practices that have similar usefulness but which avoid the formation and release of substances listed in Annex 3. This does not limit the effect of the Permitting Regulations. (4) In paragraph 3, “relevant authority” means— (a) in relation to England and Wales, the authority responsible for discharging functions in accordance with regulation 32 of the Environmental Permitting (England and Wales) Regulations 2016; (b) in relation to Scotland, SEPA.

Amendments to Article 7

14

• (1) Article 7 is amended as follows.

• (2) In paragraph 2, in the first subparagraph, for “Council Directive 96/59/EC” substitute “the PCB Regulations” (and omit the corresponding endnote).

• (3) In paragraph 4—

• (a) in point (a), for “Union legislation” substitute “retained EU law”;

• (b) in point (b)—

• (i) in the words before point (i), for the words from “a Member State” to “that Member State” substitute “a competent authority”;

• (ii) in point (i) omit “of the Member State concerned”;

• (iii) in point (iii) for “Union legislation” substitute “retained EU law”;

• (iv) for point (iv) substitute—

(iv) the competent authority has informed the Secretary of State, the Welsh Ministers and the Scottish Ministers of its authorisation and the reasons for it.

• (4) For paragraphs 5 and 6 substitute—