The Transfrontier Shipment of Waste (Amendment) Regulations 2014

Citation and commencement

1.  These Regulations may be cited as the Transfrontier Shipment of Waste (Amendment) Regulations 2014 and come into force on 1st May 2014.

Amendment of the Transfrontier Shipment of Waste Regulations 2007

2.  The Transfrontier Shipment of Waste Regulations 2007(1) are amended in accordance with regulations 3 to 21 of these Regulations.

Regulation 2

3.  Regulation 2 (application) is revoked.

Regulation 4

4.—(1) Regulation 4 (interpretation) is amended as follows.

(2) In paragraph (1)—

(a)in the definition of “authorised person”, for “50(2)” substitute “50A(1)”;

(b)after the definition of “the Community Regulation” insert—

“competent authority” means a competent authority within the meaning of regulation 6 or 7;

“the English area” means that part of the marine area which is not the Northern Irish area, the Scottish area or the Welsh area;”;

(c)for the definition of “the marine area” substitute—

““the marine area” means—

(d)after the definition of “the marine area” insert—

““the Northern Irish area” means such of the marine area adjacent to Northern Ireland which lies to the west of the Northern Irish border;”;

(e)after the definition of “notifiable waste” insert—

““the Scottish area” means such of the marine area adjacent to Scotland which lies to the north of the Scottish border and east of the Northern Irish border;”; and

(f)after the definition of “waste vessel” insert—

““the Welsh area” means such of the marine area adjacent to Wales which lies within the Welsh border;

“working day” means any day except a Saturday, a Sunday, Christmas Day, Good Friday or a day which is a bank holiday under the Banking and Financial Dealings Act 1971(4) in any part of the United Kingdom.”.

(3) After paragraph (1) insert—

“(1A) In these Regulations—

(a)any reference to England, Wales, Scotland or Northern Ireland excludes any part of the marine area; and

(b)except in the case of any reference to the territorial sea adjacent to the United Kingdom and in the definition of “Dividing Line” in regulation 4A(4), any reference to the United Kingdom includes the marine area.”.

Regulations 4A and 4B

5.  After regulation 4 insert—

“The Northern Irish border, the Scottish border and the Welsh border

4A.—(1) In these Regulations, “the Northern Irish border” means a line joining the co-ordinates numbered 1 to 12 in Part 1 of Schedule A1.

(2) In these Regulations, “the Scottish border” means—

(a)in the North Sea, a line—

(i)joining the co-ordinates numbered 1 to 7 in Part 2 of Schedule A1,

(ii)then following, in a south easterly direction, the seaward limits of the territorial sea adjacent to the United Kingdom until the co-ordinate 55º 50ʹ 00ʺ N; 1º 27ʹ 31ʺ W, and

(iii)then following, in an easterly direction, the parallel of latitude 55º 50ʹ 00ʺ N until its intersection with the Dividing Line; and

(b)in the Irish Sea, a line—

(i)joining the co-ordinates numbered 1 to 8 in Table 1 of Part 3 of Schedule A1,

(ii)then following the seaward limits of the territorial sea adjacent to the United Kingdom until the co-ordinate numbered 1 in Table 2 of Part 3 of Schedule A1, and

(iii)then joining the co-ordinates numbered 1 to 3 in Table 2 of Part 3 of Schedule A1.

(3) In these Regulations, “the Welsh border” means a line—

(a)joining the co-ordinates numbered 1 to 8 in Table 1 of Part 4 of Schedule A1,

(b)then following the seaward limits of the territorial sea adjacent to Wales until the co-ordinate numbered 15 in Table 2 of Part 4 of Schedule A1, and

(c)then joining the co-ordinates numbered 15 to 1 in Table 2 of Part 4 of Schedule A1.

(4) In this regulation—

“co-ordinate” means a co-ordinate of latitude and longitude on the World Geodetic System 1984;

“Dividing Line” means the dividing line as defined in Article 1 of the Agreement between the United Kingdom and the Federal Republic of Germany relating to the Delimitation of the Continental Shelf under the North Sea between the two countries, signed in London on 25th November 1971(5);

“line” means a loxodromic line.

Offshore installations

4B.—(1) In these Regulations, “offshore installation” means an installation or structure, other than a ship, situated in the waters of, or on or under the seabed in, the marine area and used for carrying on any of the following activities—

(a)the exploitation, or the exploration with a view to exploitation, of mineral resources in or under the shore or bed of waters in the marine area;

(b)the exploration of a place in, under or over such waters with a view to the storage of gas;

(c)the conversion of a place under the shore or bed of such waters for the purpose of storing gas;

(d)the storage of gas in, under or over such waters or the recovery of gas so stored;

(e)the unloading of gas at a place in, under or over such waters;

(f)the conveyance of things by means of a pipe, or system of pipes, constructed or placed on, in or under the shore or bed of such waters;

(g)the provision of accommodation for persons who work on or from an installation which is or has been maintained, or is intended to be established, for the carrying on of an activity in this paragraph.

(2) In paragraph (1)—

(a)“gas” means—

(i)gas as defined in section 2(4) of the Energy Act 2008(6), or

(ii)carbon dioxide;

(b)“installation” includes an installation as defined in section 16 of the Energy Act 2008;

(c)“ship” includes a hovercraft, submersible craft and any other floating craft but not a vessel which—

(i)permanently rests on or is permanently attached to the seabed, or

(ii)is an installation as defined in section 16 of the Energy Act 2008;

(d)references to storing gas include storing gas with a view to its permanent disposal. ”.

Regulation 6

6.  For regulation 6 (competent authorities of destination and dispatch) substitute—

“Competent authorities of destination and dispatch

6.  The competent authorities of destination and dispatch for the purposes of the Community Regulation are—

(a)in England and the English area, the Environment Agency;

(b)in Wales and the Welsh area, the Natural Resources Body for Wales;

(c)in Scotland and the Scottish area, the Scottish Environment Protection Agency;

(d)in Northern Ireland and the Northern Irish area, the Department of the Environment in Northern Ireland.”.

Regulation 7

7.  For regulation 7 (competent authority of transit) substitute—

“Competent authority of transit

7.—(1) The Environment Agency is the competent authority of transit for the United Kingdom for the purposes of the Community Regulation.

(2) The Natural Resources Body for Wales, the Scottish Environment Protection Agency and the Department of the Environment in Northern Ireland must supply the Environment Agency with any information which the Environment Agency may require in connection with its functions as the competent authority of transit.”.

Regulation 10

8.  In regulation 10 (transitional provisions) omit “Latvia, Poland, Slovakia,”.

Regulation 14

9.  In regulation 14 (provision of the plan to competent authorities) after paragraph (a) insert—

“(aa)the Natural Resources Body for Wales;”.

Regulation 46

10.  In regulation 46 (fees) omit paragraph (2)(a).

Regulation 49A

11.  After regulation 49 insert—

“Power to share information

49A.—(1) Officers of Revenue and Customs may disclose any information in their possession to the following for the purposes of the enforcement of the Community Regulation or these Regulations—

(a)the Environment Agency;

(b)the Natural Resources Body for Wales;

(c)the Scottish Environment Protection Agency; and

(d)the Department of the Environment in Northern Ireland.

(2) Paragraph (1) is without prejudice to any other power of officers of Revenue and Customs to disclose information.

(3) Nothing in paragraph (1) authorises the making of a disclosure which contravenes the Data Protection Act 1998(7).

(4) Paragraph (5) applies to information—

(a)which was obtained by means of a disclosure authorised by paragraph (1); and

(b)which relates to a person whose identity is specified in the disclosure or can be deduced from it.

(5) No person, including a servant of the Crown, may disclose any information to which this paragraph applies unless—

(a)the disclosure is for a purpose specified in paragraph (1); and

(b)the Commissioners for Her Majesty’s Revenue and Customs have given their consent to the disclosure.

(6) Consent for the purposes of paragraph (5)(b) may be given in relation to a particular disclosure or in relation to disclosures made in such circumstances as may be specified or described in the consent.

(7) A person who breaches paragraph (5) is guilty of an offence.

(8) It is a defence for a person charged with an offence under paragraph (7) to prove a reasonable belief—

(a)that the disclosure was lawful; or

(b)that the information had previously been made available to the public lawfully.”.

Regulation 50

12.  For regulation 50 (enforcement bodies) substitute—

“Enforcement

50.—(1) The Community Regulation and these Regulations are enforced by—

(a)in relation to England and the English area, the Environment Agency;

(b)in relation to Wales and the Welsh area, the Natural Resources Body for Wales;

(c)in relation to Scotland and the Scottish area, the Scottish Environment Protection Agency;

(d)in relation to Northern Ireland and the Northern Irish area, the Department of the Environment in Northern Ireland.

(2) Nothing in this regulation authorises a competent authority to bring proceedings in Scotland for an offence.

Authorised persons

50A.—(1) A competent authority may authorise persons in writing for the purposes of enforcing the Community Regulation and these Regulations.

(2) An authorisation under either of the following is an authorisation for the purposes of paragraph (1), unless the body which issued the authorisation specifies to the contrary—

(a)section 108 of the Environment Act 1995(8);

(b)Article 72 of the Waste and Contaminated Land (Northern Ireland) Order 1997(9).

Assistance by the Secretary of State in relation to offshore installations

50B.—(1) The Secretary of State may assist a competent authority in its enforcement of the Community Regulation and these Regulations on or in relation to offshore installations, in particular by inspecting such installations and providing a competent authority with information to facilitate the effective enforcement of the Community Regulation and these Regulations.

(2) The Secretary of State may authorise persons in writing for the purposes of exercising the function described in paragraph (1).

(3) An authorisation under either of the following is an authorisation for the purposes of paragraph (2), unless the Secretary of State specifies to the contrary—

(a)regulation 16 of the Offshore Chemicals Regulations 2002(10);

(b)regulation 12 of the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005(11).”.

Regulation 59

13.  In regulation 59 (fixed penalties)—

(a)in paragraph (1), after “Regulations” insert “(except an offence under regulation 49A(7))”;

(b)for paragraph (6) substitute—

“(6) The amount of fixed penalty payable in pursuance of a notice under this regulation is £300 which is to be paid in the case of a notice served by an authorised person from—

(a)the Environment Agency or the Scottish Environment Protection Agency, to the Secretary of State;

(b)the Natural Resources Body for Wales, to the Welsh Ministers;

(c)the Department of the Environment in Northern Ireland, to that Department.”; and

(c)in paragraph (7)(a) after “officer” insert “in England and Scotland, in Wales the principal accounting officer”.

Regulation 59A

14.  In regulation 59A(12)—

(1) in the heading, after “Civil sanctions” insert “, England”;

(2) in paragraph (4), for “marine area adjacent to England” substitute “English area”.

Regulations 59B and 59C

15.  After regulation 59A insert—

“Civil sanctions, Wales

59B.—(1) The Natural Resources Body for Wales may impose a variable monetary penalty, or accept an enforcement undertaking, in relation to an offence specified in the following Table of civil sanctions, as indicated in that Table, as if it were an offence under a provision specified in relation to that sanction in Schedule 5 to the Environmental Civil Sanctions (Wales) Order 2010(13).

(2) The terms used in this regulation have the same meaning as in that Order.

(3) The provisions of that Order in relation to those sanctions apply as if they were provisions of these Regulations.

(4) This regulation applies only in Wales and the Welsh area.

Review

59C.—(1) The Secretary of State must from time to time—

(a)carry out a review of these Regulations;

(b)set out the conclusions of the review in a report; and

(c)publish the report.

(2) The report must in particular—

(a)set out the objectives intended to be achieved by these Regulations;

(b)assess the extent to which those objectives are achieved; and

(c)assess whether those objectives remain appropriate and, if so, the extent to which they could be achieved in a less burdensome way.

(3) The first report under this regulation must be published before the end of the period of five years beginning with 1st May 2014.

(4) Reports under this regulation are afterwards to be published at intervals not exceeding five years.”.

Schedule A1

16.  Before Schedule 1 insert the Schedule set out in the Schedule to these Regulations.

Schedule 1

17.  In Schedule 1 (transitional provisions for shipments to Latvia, Poland, Slovakia, Bulgaria or Romania)—

(a)in the heading, omit “Latvia, Poland, Slovakia,”; and

(b)omit paragraphs 1 to 3.

Schedule 2

18.  Schedule 2 (transitional fees in Great Britain) is omitted.

Schedule 3

19.  In Schedule 3 (fees in Northern Ireland), for paragraphs 2 and 3 substitute the following Table—

Schedule 4

20.  In Schedule 4 (application for approval of a financial guarantee), omit paragraph 1.

Schedule 5

21.—(1) Schedule 5 (enforcement powers) is amended as follows.

(2) In Part 1—

(a)for paragraph 1 substitute—

“Powers under the Environment Act 1995

1.  For the purposes of enforcing the Community Regulation and these Regulations, a person on whom the powers in section 108 of the Environment Act 1995 are conferred may exercise those powers in the English area, the Welsh area and the Scottish area.

Powers under the Waste and Contaminated Land (Northern Ireland) Order 1997

1A.  For the purposes of enforcing the Community Regulation and these Regulations, a person on whom the powers in Article 72 of the Waste and Contaminated Land (Northern Ireland) Order 1997 are conferred may exercise those powers in the Northern Irish area.”;

(b)for paragraph 5(2) substitute—

“(2) An authorised person—

(a)may take any or all of the actions specified in sub-paragraph (2A), (2B) or (2C) in relation to that waste;

(b)where the action specified in sub-paragraph (2C) is taken, may take either or both of the actions specified in sub-paragraph (2D).

(2A) The authorised person may seize the waste.

(2B) The authorised person may serve a notice on any person appearing to be in control of the waste prohibiting or restricting the movement of the waste.

(2C) The authorised person may serve a notice on any person appearing to be in control of the waste requiring that person to send the waste to a place specified in the notice (referred to in sub-paragraph (2D) as “the specified place”).

(2D) The authorised person may serve a notice on any person appearing to be in control of the specified place and involved in the shipment of the waste—

(a)requiring that person to accept the waste at that place;

(b)prohibiting or restricting the movement of the waste from that place.”; and

(c)in paragraph 6(4)(b), for “23” substitute “24”.

(3) For Part 2 substitute—

“PART 2Powers of general customs officials

Powers of general customs officials

8.—(1) A general customs official may seize and detain any waste that has been brought into the United Kingdom or is to be dispatched from the United Kingdom—

(a)if requested to do so by a competent authority in the United Kingdom; or

(b)if that official suspects that, in respect of that waste, there is or is likely to be a breach of any provision of the Community Regulation or of these Regulations.

(2) A general customs official who seizes and detains any waste under sub-paragraph (1)(b) must inform the competent authority as soon as possible.

(3) Waste seized and detained under this paragraph may be detained for no more than 5 working days and must be dealt with during the period of its detention in such manner as the Secretary of State may direct under section 5 of the Borders, Citizenship and Immigration Act 2009(14).

(4) In this paragraph—

(a)“general customs official” means a general customs official designated under section 3(1) of the Borders, Citizenship and Immigration Act 2009; and

(b)“waste” includes—

(i)any thing that the competent authority or general customs official has reasonable grounds to suspect is waste, and

(ii)the container in which the waste or thing is carried.”.

(4) After Part 2 insert—

“PART 2APowers of persons authorised by the Secretary of State

Powers of entry etc.

8A.—(1) A person authorised by the Secretary of State under regulation 50B(2) (“P”) may, for the purposes of assisting a competent authority in its enforcement of the Community Regulation and these Regulations—

(a)at any reasonable time board an offshore installation;

(b)be accompanied by an authorised person and take any equipment or materials that P thinks may be required;

(c)make such examination or investigation as P considers necessary (“a necessary examination or investigation”);

(d)give a direction requiring that any part of the offshore installation be left undisturbed (whether generally or in particular respects) for so long as reasonably necessary for the purposes of a necessary examination or investigation;

(e)take such measurements and photographs and make such recordings as P considers necessary for the purpose of a necessary examination or investigation;

(f)take samples of any thing found on the offshore installation or in the atmosphere or any land, seabed (including its subsoil) or water in the vicinity of the offshore installation;

(g)require any person who P has reasonable cause to believe is able to give any information relevant to a necessary examination or investigation—

(i)to attend at a place and time specified by P,

(ii)to answer (in the absence of any person other than persons whom P may allow to be present and a person nominated to be present by the person on whom the requirement is imposed) such questions as P thinks fit to ask, and

(iii)to sign a declaration of truth of that person’s answers;

(h)require the production of, and inspect and take copies of or of any entry in, any records which P considers it necessary to see for the purposes of a necessary examination or investigation;

(i)require any person to afford P such facilities and assistance with respect to any matters or things within that person’s control or in relation to which that person has responsibilities as P considers are necessary to enable P to exercise any of the powers conferred on P by this Part.

(2) P must, if requested to do so, produce a duly authenticated authorisation document.

Supplementary

8B.—(1) An answer given by a person in compliance with a requirement imposed under paragraph 8A(1)(g) is admissible in evidence in England and Wales or Northern Ireland against that person in any proceedings or, in Scotland, against that person in criminal proceedings.

(2) In criminal proceedings in which a person mentioned in sub-paragraph (1) is charged with an offence to which this sub-paragraph applies, no evidence relating to that person’s answer may be adduced and no question relating to it may be asked by or on behalf of the prosecution unless evidence relating to it is adduced by or on behalf of that person.

(3) Sub-paragraph (2) applies to any offence other than one under—

(a)section 5 of the Perjury Act 1911(15) (false statutory declarations and other false statements without oath);

(b)section 44(2) of the Criminal Law (Consolidation) (Scotland) Act 1995(16) (false statements and declarations not on oath); or

(c)Article 10 of the Perjury (Northern Ireland) Order 1979(17) (false statutory declarations and other false unsworn statements).

(4) Nothing in this Part compels the production by a person of a document which—

(a)except in relation to Scotland, that person would on grounds of legal professional privilege be entitled to withhold on an order for discovery in an action in the County Court or High Court; or

(b)in relation to Scotland, contains confidential information made by or to an advocate or solicitor in that capacity and which that person would be entitled to withhold on an order for the production of documents in an action in the Court of Session.”.

Amendment of section 41 of the Environment Act 1995

22.  In section 41 of the Environment Act 1995(18) (power to make schemes imposing charges), in subsection (1)(d), for “each of the new Agencies” substitute “the Agency, the Natural Resources Body for Wales or SEPA”.

Transitional provisions

23.—(1) Anything which on the commencement date is in the process of being done by or in relation to the Environment Agency in exercise of its functions under the Transfrontier Shipment of Waste Regulations 2007 or under section 41(1)(d) of the Environment Act 1995 may, so far as it relates to Wales or the Welsh area, be continued by or in relation to the Natural Resources Body for Wales.

(2) Anything which on the commencement date is in the process of being done by or in relation to the Secretary of State in exercise of the Secretary of State’s functions as competent authority of destination and dispatch under the Transfrontier Shipment of Waste Regulations 2007 may—

(a)so far as it relates to the English area, be continued by or in relation to the Environment Agency;

(b)so far as it relates to the Welsh area, be continued by or in relation to the Natural Resources Body for Wales;

(c)so far as it relates to the Scottish area, be continued by or in relation to the Scottish Environment Protection Agency;

(d)so far as it relates to the Northern Irish area, be continued by or in relation to the Department of the Environment in Northern Ireland.

(3) Anything done by or in relation to the Environment Agency before the commencement date in exercise of its functions under the Transfrontier Shipment of Waste Regulations 2007 or under section 41(1)(d) of the Environment Act 1995 is, so far as it relates to Wales or the Welsh area and is required for continuing its effect on and after that date, to have effect as if done by or in relation to the Natural Resources Body for Wales.

(4) Anything done by or in relation to the Secretary of State before the commencement date in exercise of the Secretary of State’s functions as competent authority of destination and dispatch under the Transfrontier Shipment of Waste Regulations 2007 is—

(a)so far as it relates to the English area and is required for continuing its effect on and after that date, to have effect as if done by or in relation to the Environment Agency;

(b)so far as it relates to the Welsh area and is required for continuing its effect on and after that date, to have effect as if done by or in relation to the Natural Resources Body for Wales;

(c)so far as it relates to the Scottish area and is required for continuing its effect on and after that date, to have effect as if done by or in relation to the Scottish Environment Protection Agency;

(d)so far as it relates to the Northern Irish area and is required for continuing its effect on and after that date, to have effect as if done by or in relation to the Department of the Environment in Northern Ireland.

(5) Any reference to the Environment Agency in any document relating to anything to which paragraph (1) or (3) applies is, so far as is required for giving effect to either of those paragraphs, to be treated as a reference to the Natural Resources Body for Wales.

(6) Any reference to the Secretary of State in any document relating to anything to which paragraph (2) or (4) applies is—

(a)so far as is required for giving effect to paragraph (2)(a) or (4)(a), to be treated as a reference to the Environment Agency;

(b)so far as is required for giving effect to paragraph (2)(b) or (4)(b) , to be treated as a reference to the Natural Resources Body for Wales.

(c)so far as is required for giving effect to paragraph (2)(c) or (4)(c), to be treated as a reference to the Scottish Environment Protection Agency.

(d)so far as is required for giving effect to paragraph (2)(d) or (4)(d), to be treated as a reference to the Department of the Environment in Northern Ireland.

(7) A direction given to the Environment Agency before the commencement date under section 40 of the Environment Act 1995(19) is, to the extent that it applies to the exercise of functions under the Transfrontier Shipment of Waste Regulations 2007 in relation to Wales or the Welsh area, to be treated on and after that date as a direction given to the Natural Resources Body for Wales under article 11(1) of the Natural Resources Body for Wales (Establishment) Order 2012(20).

(8) In this regulation—

“the commencement date” means 1st May 2014;

“the English area”, “the Northern Irish area”, “the Scottish area” and the “Welsh area” have the meanings given in regulation 4(1) of the Transfrontier Shipment of Waste Regulations 2007(21).