Office of Public Sector Information
PART I continued
(3) Where the enforcing authority has determined that the proposed change would not involve a substantial change, but has also determined under paragraph (b) or (c) of subsection (2) above that the change would lead to or require the variation of the conditions of the authorisation, then—
(a) the enforcing authority shall (either on notifying its determination under that subsection or on a subsequent occasion) notify the holder of the authorisation of the variations which the authority is likely to consider making; and
(b) the holder may apply in the prescribed form to the enforcing authority for the variation of the conditions of the authorisation so that he may make the proposed change.
(4) Where the enforcing authority has determined that a proposed change would involve a substantial change that would lead to or require the variation of the conditions of the authorisation, then—
(a) the authority shall (either on notifying its determination under subsection (2) above or on a subsequent occasion) notify the holder of the authorisation of the variations which the authority is likely to consider making; and
(b) the holder of the authorisation shall, if he wishes to proceed with the change, apply in the prescribed form to the enforcing authority for the variation of the conditions of the authorisation.
(5) The holder of an authorisation may at any time, unless he is carrying on a prescribed process under the authorisation and wishes to make a relevant change in the process, apply to the enforcing authority in the prescribed form for the variation of the conditions of the authorisation.
(6) A person carrying on a process under an authorisation who wishes to make a relevant change in the process may, where it appears to him that the change will require the variation of the conditions of the authorisation, apply to the enforcing authority in the prescribed form for the variation of the conditions of the authorisation specified in the application.
(7) A person who makes an application for the variation of the conditions of an authorisation shall furnish the authority with such information as may be prescribed or as the authority may by notice require.
(8) On an application for variation of the conditions of an authorisation under any provision of this section—
(a) the enforcing authority may, having fulfilled the requirements of Part II of Schedule 1 to this Act in cases to which they apply, as it thinks fit either refuse the application or, subject to the requirements of section 7 above, vary the conditions or, in the case of an application under subsection (6) above, treat the application as a request for a determination under subsection (2) above; and
(b) if the enforcing authority decides to vary the conditions, it shall serve a variation notice on the holder of the authorisation.
(9) Any application to the enforcing authority under this section shall be accompanied by the applicable fee (if any) prescribed by a scheme made under section 8 above.
(10) This section applies to any provision other than a condition which is contained in an authorisation as it applies to a condition with the modification that any reference to the breach of a condition shall be read as a reference to acting outside the scope of the authorisation.
(11) For the purposes of this section a relevant change in a prescribed process is a change in the manner of carrying on the process which is capable of altering the substances released from the process or of affecting the amount or any other characteristic of any substance so released.
(1) The enforcing authority may at any time revoke an authorisation by notice in writing to the person holding the authorisation.
(2) Without prejudice to the generality of subsection (1) above, the enforcing authority may revoke an authorisation where it has reason to believe that a prescribed process for which the authorisation is in force has not been carried on or not for a period of twelve months.
(3) The revocation of an authorisation under this section shall have effect from the date specified in the notice; and the period between the date on which the notice is served and the date so specified shall not be less than twenty-eight days.
(4) The enforcing authority may, before the date on which the revocation of an authorisation takes effect, withdraw the notice or vary the date specified in it.
(5) The Secretary of State may, if he thinks fit in relation to an authorisation, give to the enforcing authority directions as to whether the authority should revoke the authorisation under this section.
(1) If the enforcing authority is of the opinion that the person carrying on a prescribed process under an authorisation is contravening any condition of the authorisation, or is likely to contravene any such condition, the authority may serve on him a notice (“an enforcement notice”).
(2) An enforcement notice shall—
(a) state that the authority is of the said opinion;
(b) specify the matters constituting the contravention or the matters making it likely that the contravention will arise, as the case may be;
(c) specify the steps that must be taken to remedy the contravention or to remedy the matters making it likely that the contravention will arise, as the case may be; and
(d) specify the period within which those steps must be taken.
(3) The Secretary of State may, if he thinks fit in relation to the carrying on by any person of a prescribed process, give to the enforcing authority directions as to whether the authority should exercise its powers under this section and as to the steps which are to be required to be taken under this section.
(1) If the enforcing authority is of the opinion, as respects the carrying on of a prescribed process under an authorisation, that the continuing to carry it on, or the continuing to carry it on in a particular manner, involves an imminent risk of serious pollution of the environment the authority shall serve a notice (a “prohibition notice”) on the person carrying on the process.
(2) A prohibition notice may be served whether or not the manner of carrying on the process in question contravenes a condition of the authorisation and may relate to any aspects of the process, whether regulated by the conditions of the authorisation or not.
(3) A prohibition notice shall—
(a) state the authority’s opinion;
(b) specify the risk involved in the process;
(c) specify the steps that must be taken to remove it and the period within which they must be taken; and
(d) direct that the authorisation shall, until the notice is withdrawn, wholly or to the extent specified in the notice cease to have effect to authorise the carrying on of the process;
and where the direction applies to part only of the process it may impose conditions to be observed in carrying on the part which is authorised to be carried on.
(4) The Secretary of State may, if he thinks fit in relation to the carrying on by any person of a prescribed process, give to the enforcing authority directions as to—
(a) whether the authority should perform its duties under this section; and
(b) the matters to be specified in any prohibition notice in pursuance of subsection (3) above which the authority is directed to issue.
(5) The enforcing authority shall, as respects any prohibition notice it has issued to any person, by notice in writing served on that person, withdraw the notice when it is satisfied that the steps required by the notice have been taken.
(1) The following persons, namely—
(a) a person who has been refused the grant of an authorisation under section 6 above;
(b) a person who is aggrieved by the conditions attached, under any provision of this Part, to his authorisation;
(c) a person who has been refused a variation of an authorisation on an application under section 11 above;
(d) a person whose authorisation has been revoked under section 12 above;
may appeal against the decision of the enforcing authority to the Secretary of State (except where the decision implements a direction of his).
(2) A person on whom a variation notice, an enforcement notice or a prohibition notice is served may appeal against the notice to the Secretary of State.
(3) Where an appeal under this section is made to the Secretary of State—
(a) the Secretary of State may refer any matter involved in the appeal to a person appointed by him for the purpose; or
(b) the Secretary of State may, instead of determining the appeal himself, direct that the appeal or any matter involved in it shall be determined by a person appointed by him for the purpose;
and a person appointed under paragraph (b) above for the purpose of an appeal shall have the same powers under subsection (5), (6) or (7) below as the Secretary of State.
(4) An appeal under this section shall, if and to the extent required by regulations under subsection (10) below, be advertised in such manner as may be prescribed by regulations under that subsection.
(5) If either party to the appeal so requests or the Secretary of State so decides, an appeal shall be or continue in the form of a hearing (which may, if the person hearing the appeal so decides, be held, or held to any extent, in private).
(6) On determining an appeal against a decision of an enforcing authority under subsection (1) above, the Secretary of State—
(a) may affirm the decision;
(b) where the decision was a refusal to grant an authorisation or a variation of an authorisation, may direct the enforcing authority to grant the authorisation or to vary the authorisation, as the case may be;
(c) where the decision was as to the conditions attached to an authorisation, may quash all or any of the conditions of the authorisation;
(d) where the decision was to revoke an authorisation, may quash the decision;
and where he exercises any of the powers in paragraphs (b), (c) or (d) above, he may give directions as to the conditions to be attached to the authorisation.
(7) On the determination of an appeal under subsection (2) above the Secretary of State may either quash or affirm the notice and, if he affirms it, may do so either in its original form or with such modifications as he may in the circumstances think fit.
(8) Where an appeal is brought under subsection (1) above against the revocation of an authorisation, the revocation shall not take effect pending the final determination or the withdrawal of the appeal.
(9) Where an appeal is brought under subsection (2) above against a notice, the bringing of the appeal shall not have the effect of suspending the operation of the notice.
(10) Provision may be made by the Secretary of State by regulations with respect to appeals under this section and in particular—
(a) as to the period within which and the manner in which appeals are to be brought; and
(b) as to the manner in which appeals are to be considered.
(1) The Secretary of State may appoint as inspectors (under whatever title he may determine) such persons having suitable qualifications as he thinks necessary for carrying this Part into effect in relation to prescribed processes designated for central control or for the time being transferred under section 4(4) above to central control, and may terminate any appointment made under this subsection.
(2) The Secretary of State may make to or in respect of any person so appointed such payments by way of remuneration, allowances or otherwise as he may with the approval of the Treasury determine.
(3) In relation to England and Wales the Secretary of State shall constitute one of the inspectors appointed under subsection (1) above to be the chief inspector for England and Wales and in relation to Scotland the Secretary of State shall constitute one of the said inspectors to be the chief inspector for Scotland.
(4) The functions conferred or imposed by or under this Part on the chief inspector as the enforcing authority may, to any extent, be delegated by him to any other inspector appointed under subsection (1) above.
(5) A river purification authority may appoint as inspectors (under whatever title the authority may determine) such persons having suitable qualifications as the authority thinks necessary for carrying this Part into effect in relation to prescribed processes designated for central control and may terminate any appointment made under this subsection.
(6) Any local authority may appoint as inspectors (under whatever title the authority may determine) such persons having suitable qualifications as the authority think necessary for carrying this Part into effect in the authority’s area in relation to prescribed processes designated for local control (and not so transferred), and may terminate any appointment made under this subsection.
(7) An inspector shall not be liable in any civil or criminal proceedings for anything done in the purported performance of his functions under section 17 or 18 below if the court is satisfied that the act was done in good faith and that there were reasonable grounds for doing it.
(8) In the following provisions of this Part “inspector” means a person appointed as an inspector under subsection (1), (5) or (6) above.
(1) An inspector may, on production (if so required) of his authority, exercise any of the powers in subsection (3) below for the purposes of the discharge of the functions of the enforcing authority.
(2) Those powers, so far as exercisable in relation to premises, are exercisable in relation—
(a) to premises on which a prescribed process is, or is believed (on reasonable grounds) to be, carried on; and
(b) to premises on which a prescribed process has been carried on (whether or not the process was a prescribed process when it was carried on) the condition of which is believed (on reasonable grounds) to be such as to give rise to a risk of serious pollution of the environment.
(3) The powers of an inspector referred to above are—
(a) at any reasonable time (or, in a situation in which in his opinion there is an immediate risk of serious pollution of the environment, at any time) to enter premises which he has reason to believe it is necessary for him to enter;
(b) on entering any premises by virtue of paragraph (a) above to take with him—
(i) any person duly authorised by the chief inspector, the river purification authority or, as the case may be, the local enforcing authority and, if the inspector has reasonable cause to apprehend any serious obstruction in the execution of his duty, a constable; and
(ii) any equipment or materials required for any purpose for which the power of entry is being exercised;
(c) to make such examination and investigation as may in any circumstances be necessary;
(d) as regards any premises which he has power to enter, to direct that those premises or any part of them, or anything in them, shall be left undisturbed (whether generally or in particular respects) for so long as is reasonably necessary for the purpose of any examination or investigation under paragraph (c) above;
(e) to take such measurements and photographs and make such recordings as he considers necessary for the purpose of any examination or investigation under paragraph (c) above;
(f) to take samples of any articles or substances found in or on any premises which he has power to enter, and of the air, water or land in, on, or in the vicinity of, the premises;
(g) in the case of any article or substance found in or on any premises which he has power to enter, being an article or substance which appears to him to have caused or to be likely to cause pollution of the environment, to cause it to be dismantled or subjected to any process or test (but not so as to damage or destroy it unless this is necessary);
(h) in the case of any such article or substance as is mentioned in paragraph (g) above, to take possession of it and detain it for so long as is necessary for all or any of the following purposes, namely—
(i) to examine it and do to it anything which he has power to do under that paragraph;
(ii) to ensure that it is not tampered with before his examination of it is completed;
(iii) to ensure that it is available for use as evidence in any proceedings for an offence under section 23 below or any other proceedings relating to a variation notice, an enforcement notice or a prohibition notice;
(i) to require any person whom he has reasonable cause to believe to be able to give any information relevant to any examination or investigation under paragraph (c) above to answer (in the absence of persons other than a person nominated to be present and any persons whom the inspector may allow to be present) such questions as the inspector thinks fit to ask and to sign a declaration of the truth of his answers;
(j) to require the production of, or where the information is recorded in computerised form, the furnishing of extracts from, any records which are required to be kept under this Part or it is necessary for him to see for the purposes of an examination or investigation under paragraph (c) above and to inspect and take copies of, or of any entry in, the records;
(k) to require any person to afford him 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 are necessary to enable the inspector to exercise any of the powers conferred on him by this section;
(l) any other power for the purpose mentioned in subsection (1) above which is conferred by regulations made by the Secretary of State;
and in so far as any of the powers specified above are applicable in relation to mobile plant an inspector shall have, in circumstances corresponding to those specified in subsection (2) above, powers corresponding to those powers.
(4) The Secretary of State may by regulations make provision as to the procedure to be followed in connection with the taking of, and the dealing with, samples under subsection (3)(f) above.
(5) Where an inspector proposes to exercise the power conferred by subsection (3)(g) above in the case of an article or substance found on any premises, he shall, if so requested by a person who at the time is present on and has responsibilities in relation to those premises, cause anything which is to be done by virtue of that power to be done in the presence of that person.
(6) Before exercising the power conferred by subsection (3)(g) above in the case of any article or substance, an inspector shall consult such persons as appear to him appropriate for the purpose of ascertaining what dangers, if any, there may be in doing anything which he proposes to do under the power.
(7) Where under the power conferred by subsection (3)(h) above an inspector takes possession of any article or substance found on any premises, he shall leave there, either with a responsible person or, if that is impracticable, fixed in a conspicuous position, a notice giving particulars of that article or substance sufficient to identify it and stating that he has taken possession of it under that power; and before taking possession of any such substance under that power an inspector shall, if it is practical for him to do so, take a sample of it and give to a responsible person at the premises a portion of the sample marked in a manner sufficient to identify it.
(8) No answer given by a person in pursuance of a requirement imposed under subsection (3)(i) above shall be admissible in evidence in England and Wales against that person in any proceedings, or in Scotland against that person in any criminal proceedings.
(9) The powers conferred by subsection (3)(a), (b)(ii), (c), (e) and (f) above shall also be exercisable (subject to subsection (4) above) by any person authorised for the purpose in writing by the Secretary of State.
(10) Nothing in this section shall be taken to compel the production by any person of a document of which he would on grounds of legal professional privilege be entitled to withhold production on an order for discovery in an action in the High Court or, in relation to Scotland, on an order for the production of documents in an action in the Court of Session.
(1) Where, in the case of any article or substance found by him on any premises which he has power to enter, an inspector has reasonable cause to believe that, in the circumstances in which he finds it, the article or substance is a cause of imminent danger of serious harm he may seize it and cause it to be rendered harmless (whether by destruction or otherwise).
(2) Before there is rendered harmless under this section—
(a) any article that forms part of a batch of similar articles; or
(b) any substance,
the inspector shall, if it is practicable for him to do so, take a sample of it and give to a responsible person at the premises where the article or substance was found by him a portion of the sample marked in a manner sufficient to identify it.
(3) As soon as may be after any article or substance has been seized and rendered harmless under this section, the inspector shall prepare and sign a written report giving particulars of the circumstances in which the article or substance was seized and so dealt with by him, and shall—
(a) give a signed copy of the report to a responsible person at the premises where the article or substance was found by him; and
(b) unless that person is the owner of the article or substance, also serve a signed copy of the report on the owner;
and if, where paragraph (b) above applies, the inspector cannot after reasonable inquiry ascertain the name or address of the owner, the copy may be served on him by giving it to the person to whom a copy was given under paragraph (a) above.
(1) For the purposes of the discharge of his functions under this Part, the Secretary of State may, by notice in writing served on an enforcing authority, require the authority to furnish such information about the discharge of its functions as an enforcing authority under this Part as he may require.
(2) For the purposes of the discharge of their respective functions under this Part, the following authorities, that is to say—
(a) the Secretary of State,
(b) a local enforcing authority,
(c) the chief inspector, and
(d) in relation to Scotland, a river purification authority,
may, by notice in writing served on any person, require that person to furnish to the authority such information which the authority reasonably considers that it needs as is specified in the notice, in such form and within such period following service of the notice as is so specified.
(3) For the purposes of this section the discharge by the Secretary of State of an obligation of the United Kingdom under the Community Treaties or any international agreement relating to environmental protection shall be treated as a function of his under this Part.
(1) It shall be the duty of each enforcing authority, as respects prescribed processes for which it is the enforcing authority, to maintain, in accordance with regulations made by the Secretary of State, a register containing prescribed particulars of or relating to—
(a) applications for authorisations made to that authority;
(b) the authorisations which have been granted by that authority or in respect of which the authority has functions under this Part;
(c) variation notices, enforcement notices and prohibition notices issued by that authority;
(d) revocations of authorisations effected by that authority;
(e) appeals under section 15 above;
(f) convictions for such offences under section 23(1) below as may be prescribed;
(g) information obtained or furnished in pursuance of the conditions of authorisations or under any provision of this Part;
(h) directions given to the authority under any provision of this Part by the Secretary of State; and
(i) such other matters relating to the carrying on of prescribed processes or any pollution of the environment caused thereby as may be prescribed;
but that duty is subject to sections 21 and 22 below.
(2) Subject to subsection (4) below, the register maintained by a local enforcing authority shall also contain prescribed particulars of such information contained in any register maintained by the chief inspector or river purification authority as relates to the carrying on in the area of the authority of prescribed processes in relation to which the chief inspector or river purification authority has functions under this Part; and the chief inspector or river purification authority shall furnish each authority with the particulars which are necessary to enable it to discharge its duty under this subsection.
(3) In Scotland, the register maintained by—
(a) the chief inspector shall also contain prescribed particulars of such information contained in any register maintained by a river purification authority as relates to the carrying on in the area of the authority of prescribed processes in relation to which the authority has functions under this Part, and each authority shall furnish the chief inspector with the particulars which are necessary to enable him to discharge his duty under this section;
(b) each river purification authority shall also contain prescribed particulars of such information contained in any register maintained by the chief inspector as relates to the carrying on in the area of the authority of prescribed processes in relation to which the chief inspector has functions under this Part, and the chief inspector shall furnish each authority with the particulars which are necessary to enable them to discharge their duty under this section.
(4) Subsection (2) above does not apply to port health authorities but each local enforcing authority whose area adjoins that of a port health authority shall include corresponding information in the register maintained by it; and the chief inspector shall furnish each such local enforcing authority with the particulars which are necessary to enable it to discharge its duty under this subsection.
(5) Where information of any description is excluded from any register by virtue of section 22 below, a statement shall be entered in the register indicating the existence of information of that description.
(6) The Secretary of State may give to enforcing authorities directions requiring the removal from any register of theirs of any specified information not prescribed for inclusion under subsection (1) or (2) above or which, by virtue of section 21 or 22 below, ought to have been excluded from the register.
(7) It shall be the duty of each enforcing authority—
(a) to secure that the registers maintained by them under this section are available, at all reasonable times, for inspection by the public free of charge; and(b) to afford to members of the public facilities for obtaining copies of entries, on payment of reasonable charges.
(8) Registers under this section may be kept in any form.
(9) For the purpose of enabling the National Rivers Authority to discharge its duty under section 117(l)(f) of the [1989 c. 15.] Water Act 1989 to keep corresponding particulars in registers under that section, the chief inspector shall furnish the Authority with the particulars contained in any register maintained by him under this section.
(10) In this section “prescribed” means prescribed in regulations under this section.
(1) No information shall be included in a register maintained under section 20 above if and so long as, in the opinion of the Secretary of State, the inclusion in the register of that information, or information of that description, would be contrary to the interests of national security.
(2) The Secretary of State may, for the purpose of securing the exclusion from registers of information to which subsection (1) above applies, give to enforcing authorities directions—
(a) specifying information, or descriptions of information, to be excluded from their registers; or
(b) specifying descriptions of information to be referred to the Secretary of State for his determination;
and no information referred to the Secretary of State in pursuance of paragraph (b) above shall be included in any such register until the Secretary of State determines that it should be so included.
(3) The enforcing authority shall notify the Secretary of State of any information it excludes from the register in pursuance of directions under subsection (2) above.
(4) A person may, as respects any information which appears to him to be information to which subsection (1) above may apply, give a notice to the Secretary of State specifying the information and indicating its apparent nature; and, if he does so—
(a) he shall notify the enforcing authority that he has done so; and
(b) no information so notified to the Secretary of State shall be included in any such register until the Secretary of State has determined that it should be so included.
(1) No information relating to the affairs of any individual or business shall be included in a register maintained under section 20 above, without the consent of that individual or the person for the time being carrying on that business, if and so long as the information—
(a) is, in relation to him, commercially confidential; and
(b) is not required to be included in the register in pursuance of directions under subsection (7) below;
but information is not commercially confidential for the purposes of this section unless it is determined under this section to be so by the enforcing authority or, on appeal, by the Secretary of State.
(2) Where information is furnished to an enforcing authority for the purpose of—
(a) an application for an authorisation or for the variation of an authorisation;
(b) complying with any condition of an authorisation; or
(c) complying with a notice under section 19(2) above;
then, if the person furnishing it applies to the authority to have the information excluded from the register on the ground that it is commercially confidential (as regards himself or another person), the authority shall determine whether the information is or is not commercially confidential.
(3) A determination under subsection (2) above must be made within the period of fourteen days beginning with the date of the application and if the enforcing authority fails to make a determination within that period it shall be treated as having determined that the information is commercially confidential.
(4) Where it appears to an enforcing authority that any information (other than information furnished in circumstances within subsection (2) above) which has been obtained by the authority under or by virtue of any provision of this Part might be commercially confidential, the authority shall—
(a) give to the person to whom or whose business it relates notice that that information is required to be included in the register unless excluded under this section; and
(b) give him a reasonable opportunity—
(i) of objecting to the inclusion of the information on the ground that it is commercially confidential; and
(ii) of making representations to the authority for the purpose of justifying any such objection;
and, if any representations are made, the enforcing authority shall, having taken the representations into account, determine whether the information is or is not commercially confidential.
(5) Where, under subsection (2) or (4) above, an authority determines that information is not commercially confidential—
(a) the information shall not be entered on the register until the end of the period of twenty-one days beginning with the date on which the determination is notified to the person concerned;
(b) that person may appeal to the Secretary of State against the decision;
and, where an appeal is brought in respect of any information, the information shall not be entered on the register pending the final determination or withdrawal of the appeal.
(6) Subsections (3), (5) and (10) of section 15 above shall apply in relation to appeals under subsection (5) above.
(7) The Secretary of State may give to the enforcing authorities directions as to specified information, or descriptions of information, which the public interest requires to be included in registers maintained under section 20 above notwithstanding that the information may be commercially confidential.
(8) Information excluded from a register shall be treated as ceasing to be commercially confidential for the purposes of this section at the expiry of the period of four years beginning with the date of the determination by virtue of which it was excluded; but the person who furnished it may apply to the authority for the information to remain excluded from the register on the ground that it is still commercially confidential and the authority shall determine whether or not that is the case.
(9) Subsections (5) and (6) above shall apply in relation to a determination under subsection (8) above as they apply in relation to a determination under subsection (2) or (4) above.
(10) The Secretary of State may, by order, substitute for the period for the time being specified in subsection (3) above such other period as he considers appropriate.
(11) Information is, for the purposes of any determination under this section, commercially confidential, in relation to any individual or person, if its being contained in the register would prejudice to an unreasonable degree the commercial interests of that individual or person.
(1) It is an offence for a person—
(a) to contravene section 6(1) above;
(b) to fail to give the notice required by section 9(2) above;
(c) to fail to comply with or contravene any requirement or prohibition imposed by an enforcement notice or a prohibition notice;
(d) without reasonable excuse, to fail to comply with any requirement imposed under section 17 above;
(e) to prevent any other person from appearing before or from answering any question to which an inspector may by virtue of section 17(3) require an answer;
(f) intentionally to obstruct an inspector in the exercise or performance of his powers or duties;
(g) to fail, without reasonable excuse, to comply with any requirement imposed by a notice under section 19(2) above;
(h) to make a statement which he knows to be false or misleading in a material particular, or recklessly to make a statement which is false or misleading in a material particular, where the statement is made—
(i) in purported compliance with a requirement to furnish any information imposed by or under any provision of this Part; or
(ii) for the purpose of obtaining the grant of an authorisation to himself or any other person or the variation of an authorisation;
(i) intentionally to make a false entry in any record required to be kept under section 7 above;
(j) with intent to deceive, to forge or use a document issued or authorised to be issued under section 7 above or required for any purpose thereunder or to make or have in his possession a document so closely resembling any such document as to be likely to deceive;
(k) falsely to pretend to be an inspector;
(l) to fail to comply with an order made by a court under section 26 below.
Environmental Protection Act 1990