PART IGENERAL

Citation, commencement and extent

1.-(1) These Regulations may be cited as the Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) Regulations 2000 and shall come into force on 4th May 2000.

(2) These Regulations extend to England and Wales only.

Interpretation and notices

2.-(1) In these Regulations, unless the context otherwise requires-

"the 1995 Act" means the Environment Act 1995(3);

"the Agency" means the Environment Agency established by section 1 of the 1995 Act;

"applicant" means a person who applies for registration under regulation 6;

"contaminated equipment" means any equipment (including any transformer, capacitor or receptacle containing residual stocks) which-

other than one which contains a total volume of PCBs not exceeding 5dm3; and for the purposes of this definition-

"decontamination" means all operations which enable equipment, objects, materials or fluids contaminated by PCBs to be reused, recycled or disposed of under safe conditions, and which may include replacement, meaning all operations in which PCBs are replaced by suitable fluids not containing PCBs;

"the Directive" means Council Directive 96/59/EC on the disposal of polychlorinated biphenyls and polychlorinated terphenyls (PCB/PCT)(4);

"disposal" means any of the operations D8, D9, D10, D12 (only in safe, deep, underground storage in dry rock formations and only for equipment containing PCBs or used PCBs which cannot be decontaminated) and D15 provided for in Annex IIA of Directive 75/442/EEC, as amended(5), and set out in Schedule 1 to these Regulations;

"holder" means the person who is in possession of PCBs, including any used PCBs, or of any equipment;

"PCBs" means any of the following substances-

• polychlorinated biphenyls,

• polychlorinated terphenyls,

• monomethyl-dibromo-diphenyl methane,

• monomethyl-dichloro-diphenyl methane,

• monomethyl-tetrachlorodiphenyl methane,

and, except in regulations 4(3) and (4), 5(3), 6(2) and 9(3), includes any mixture containing any of those substances in a total of more than 0.005% by weight;

"registered holder" means a person registered with the Agency in accordance with regulation 6, and a registered holder is a registered holder in relation to particular equipment if a description of that equipment, including its location, has been furnished to the Agency;

"transformer" includes ancillary equipment, that is to say, equipment that is an integral part of the site of which the transformer is part, including radiators, bushings, through-wall bushings, and capacitors on air blast circuit breakers;

"used PCBs" means any PCBs which are waste within the meaning of Directive 75/442/EEC(6);

"Welsh Assembly" means the National Assembly for Wales(7).

(2) Other expressions used in these Regulations and in the Directive shall have the same meaning in these Regulations as they have in the Directive.

(3) Section 123 (service of documents) of the 1995 Act shall apply to any notice required or authorised by these Regulations to be served as it applies to notices required or authorised to be served by that Act.

PART IIHOLDING, LABELLING, DECONTAMINATION AND DISPOSAL

Prohibition on holding without registration

3.-(1) Subject to paragraphs (2) to (4), no person shall hold any contaminated equipment after 31st July 2000 unless he is a registered holder of that equipment.

(2) A person may hold contaminated equipment, notwithstanding that he is not a registered holder, for the purposes of, or in the course of, any business, manufacturing process or trade concerned with the decontamination or disposal of such equipment.

(3) A person who applies for registration, in accordance with regulations 6(1) and (2) and 12, no later than 28 days after the coming into force of these Regulations but whose application has not been finally determined by 31st July 2000 shall be treated as being a registered holder until 14 days after his application is finally determined.

(4) A person who first holds contaminated equipment on or after the date on which these Regulations come into force shall be treated as being a registered holder from the date on which he first holds such equipment until 14 days after his application for registration is finally determined, if he applies for registration, in accordance with regulations 6(1) and (2) and 12, no later than 28 days after the date on which he becomes the holder of contaminated equipment.

(5) For the purposes of this regulation an application is finally determined-

(a)where it is granted under regulation 6(3), on the date on which it is granted;

(b)where it is refused under regulation 6(3), on the date on which the Agency gives notice under regulation 6(5);

(c)where it is deemed by regulation 6(6) to be refused-

(i)where the period allowed for appealing against that refusal expires without an appeal being brought, on the expiry of that period,

(ii)where an appeal is brought within that period, on the expiry of the period of 14 days beginning with the date of the determination or earlier withdrawal of the appeal.

Prohibition on holding irrespective of registration

4.-(1) Subject to paragraphs (2), (3), (5) and (9), no person shall, after 31st December 2000, hold-

(a)any PCBs, including any used PCBs; or

(b)any equipment (whether or not that equipment is contaminated equipment)-

(i)which contains PCBs, or

(ii)which, having contained PCBs, has not been decontaminated.

(2) A person may hold-

(a)PCBs, including any used PCBs, or equipment for the purposes of, or in the course of any business, manufacturing process or trade concerned with the decontamination or disposal of PCBs or such equipment;

(b)PCBs, including any used PCBs, which are manufactured, supplied or used solely for the purposes of analysis, or of research connected with the properties and effects of PCBs, and any equipment used as a receptacle for those PCBs, provided that any such PCBs and equipment are disposed of as soon as possible after the PCBs are no longer required for those purposes.

(3) A transformer in respect of which it is reasonable to assume that the fluids contain 0.05% by weight, or less, of PCBs-

(a)may be held until the end of its useful life; and

(b)shall then, unless decontaminated in accordance with paragraph (4)(b) to (d), be disposed of as soon as possible.

(4) A transformer in respect of which it is reasonable to assume that the fluids contain more than 0.05% by weight of PCBs shall be decontaminated under the following conditions-

(a)the objective of the decontamination must be to reduce the content of PCBs in the fluid to less than 0.05% by weight and, if possible, to no more than 0.005% by weight;

(b)the replacement fluid not containing PCBs must entail markedly lesser risks;

(c)the replacement of the fluid must not compromise the subsequent disposal of the PCBs; and

(d)the labelling of the transformer after its decontamination must be replaced by the labelling specified in Schedule 2 to these Regulations.

(5) The Agency may, on an application in writing made by a holder and if it is satisfied as to the matters specified in paragraph (7), by a direction in writing given to the holder before 31st December 2000, provide that paragraph (1) shall not apply in relation to such equipment as is specified in the direction until such date, being after 31st December 2000 but before 1st January 2008 as shall be specified in the direction; but no such direction shall have effect-

(a)as respects equipment at a location in England, unless it is confirmed by the Secretary of State;

(b)as respects equipment at a location in Wales, unless it is confirmed by the Welsh Assembly.

(6) A direction under paragraph (5) may be confirmed with or without modifications.

(7) The matters referred to in paragraph (5) are-

(a)that the equipment will be replaced as part of a major programme for the replacement of an installation or plant of which the equipment is part ("the programme");

(b)that the programme was approved by the owners or other persons in control of the operation of the installation or plant before the date on which these Regulations are made;

(c)that the equipment will be disposed of by the date to be specified in the direction;

(d)that to require the disposal of the equipment before that date would disrupt the programme to a significant extent; and

(e)that all reasonable precautions have been taken to secure that PCBs cannot escape from the equipment pending its disposal.

(8) Equipment in respect of which a direction is given under paragraph (5) shall, unless decontaminated or disposed of before the date specified in the direction, be disposed of on that date.

(9) Any equipment containing PCBs-

(a)which is equipment to which none of paragraphs (2), (3) and (5) applies;

(b)which is not contaminated equipment; and

(c)which is part of another piece of equipment which is also not contaminated equipment,

may be held until that other piece of equipment is taken out of use, recycled or disposed of; and shall then, where reasonably practicable, be removed and collected separately from that other equipment.

Labelling of contaminated equipment

5.-(1) The registered holder of any contaminated equipment in respect of which an inventory is to be, or has been, made under regulation 9 shall affix to that equipment and to the doors of premises where such equipment is located, an indelible sign and, subject to regulation 4(4)(d), shall take reasonable steps to secure that the sign remains so affixed while that equipment remains at that location.

(2) Subject to paragraph (3), the sign shall record that the equipment is, or the premises contain equipment that is, contaminated by PCBs.

(3) Equipment in respect of which it is reasonable to assume that the content of PCBs in the fluid is between 0.05% and 0.005% by weight may be labelled as "PCBs contaminated <0.05%".

PART IIIREGISTRATION OF HOLDERS OF CONTAMINATED EQUIPMENT

Registration

6.-(1) Subject to paragraph (2), an application for registration-

(a)shall be made in writing on a form provided by the Agency; and

(b)shall contain the following particulars-

(i)the name and address of the applicant,

(ii)a description of the contaminated equipment, identifying its location or intended location,

(iii)a description of the PCBs which are or were contained in the equipment, so far as can reasonably be identified without excessive cost,

(iv)so far as can reasonably be ascertained without excessive cost, the quantity of such of those PCBs as have been identified, and

(v)every date on which treatment or replacement was carried out or is envisaged, specifying in each case the nature of the treatment or replacement.

(2) Information of the descriptions-

(a)in paragraph (1)(b)(ii) to (v) may be provided in an electronic form acceptable to the Agency;

(b)in paragraph (1)(b)(iii) to (v) need not be provided as regards any equipment in respect of which it is reasonable to assume that the fluids contain between 0.05% and 0.005%, by weight, of PCBs.

(3) An application for registration shall be granted where the applicant has complied with paragraph (1) and regulation 12 and shall otherwise be refused.

(4) Where an application for registration is granted, the Agency shall register the applicant and, in respect of the applicant, the other particulars furnished under paragraph (1)(b) and shall, within 28 days of it being granted, confirm in writing that the applicant is registered with it.

(5) Where an application for registration is refused, the Agency shall give notice in writing of the refusal to the applicant within 28 days of the refusal; and the notice shall be accompanied by a statement of the reasons for the decision and as to the circumstances in which an offence under regulation 13(1) may be committed.

(6) Where the Agency fails to determine an application within 56 days of the date on which the application is made, the application shall be deemed to have been refused on the expiry of that period.

Cancellation of registration or particulars

7.-(1) The Agency may cancel the registration with it of a holder where it appears to the Agency that the applicant supplied false information in connection with his application for registration or has failed to comply with regulation 10(1) or (2) or a notice under regulation 10(4) (whether or not proceedings are instituted).

(2) The Agency shall cancel the registered particulars in respect of a particular location if it appears to the Agency that the registered holder does not hold contaminated equipment there.

(3) Before any cancellation under paragraph (1) or (2) takes effect, the Agency shall, subject to paragraph (4), serve on the registered holder written notice of-

(a)its decision to cancel;

(b)the reasons for the decision;

(c)the date when the cancellation will take effect, not being earlier than 28 days from the date of service of the notice.

(4) Nothing in paragraph (3) shall require the Agency to give notice of a cancellation which gives effect to information supplied by a registered holder pursuant to regulation 10(1) and (2) or a notice under regulation 10(4).

Appeals

8.-(1) A person may, by notice in writing given to the relevant appellate authority, appeal to the relevant appellate authority against-

(a)the deemed refusal under regulation 6(6) of an application for registration; or

(b)the cancellation of a registration under regulation 7.

(2) An appeal-

(a)under paragraph (1)(a) shall be brought within the period of 28 days beginning with the date on which the application is deemed to be refused;

(b)under paragraph (1)(b) shall be brought before the date on which the cancellation takes effect.

(3) The provisions set out in section 114(1), (3)(a) and (4) of, and Schedule 20 to, the 1995 Act (concerning the delegation of functions of determining, and the reference of matters involved in, appeals) shall apply in relation to appeals under this regulation, and matters involved in them, as they apply to appeals under the provisions specified in section 114(2)(a) of that Act and matters involved in those appeals, but as though references to the Secretary of State were to the relevant appellate authority.

(4) If a party to the appeal so requests, or the relevant appellate authority so decides, an appeal under this regulation 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).

(5) Where, on appeal in a case falling within paragraph (1)(b), the person determining the appeal determines that the decision of the Agency shall be altered it shall be the duty of the Agency to give effect to the determination.

(6) While an appeal is pending in a case falling within paragraph (1)(b), the decision in question shall be ineffective as respects any equipment which is the subject matter of the appeal; and if the appeal is dismissed or withdrawn the decision shall become effective from the end of the day on which the appeal is dismissed or withdrawn.

(7) In this regulation "relevant appellate authority" as respects a refusal or cancellation which relates to equipment held or to be held-

(a)only at locations in England, means the Secretary of State;

(b)only at locations in Wales, means the Welsh Assembly;

(c)at locations in both England and Wales means-

(i)the Secretary of State so far as refusal or cancellation relates to equipment at locations in England,

(ii)the Welsh Assembly so far as the refusal or cancellation relates to equipment at locations in Wales.

PART IVINVENTORIES OF CONTAMINATED EQUIPMENT

Inventories of contaminated equipment

9.-(1) The Agency shall, on or before 30th September 2000, compile an inventory of the contaminated equipment held at every location in respect of which there is a registered holder.

(2) Subject to paragraph (3), an inventory compiled in accordance with paragraph (1) shall record-

(a)the name and address of the registered holder of the contaminated equipment;

(b)the location and description of the equipment;

(c)the quantity of PCBs contained in the equipment, in each case specifying (so far as reasonably practicable) the particular substance or mixture concerned;

(d)the dates and types of treatment or replacement carried out or envisaged; and

(e)the dates of declaration.

(3) An inventory need not record information of the descriptions in paragraph (2)(c) and (d) as regards any equipment in respect of which it is reasonable to assume that the content of PCBs in the fluids is between 0.05% and 0.005%, by weight.

(4) The Agency shall, on or before 30th September 2000, send to the Secretary of State and the Welsh Assembly a summary of the inventory which it has complied in accordance with paragraph (1); and the summary shall include a statement as to-

(a)the number of registered holders; and

(b)the number of items of equipment of which particulars are registered.

(5) The Agency shall-

(a)on or before 30th September in each year after 2000, review the inventory which it has compiled in accordance with paragraph (1) or, as the case may be, the most recent revision of that inventory; and

(b)on or before 30th September in each year after 2000 provide the Secretary of State and the Welsh Assembly with a summary which shall include the total for the time being of-

(i)the number of registered holders; and

(ii)the number of items of equipment of which particulars are registered.

(6) Paragraph (3) shall apply in respect of a review under paragraph (5)(a) as it applies to the compilation of the inventory.

Information for inventories

10.-(1) A registered holder who (because any of paragraphs (2), (3) or (5) of regulation 4 applies) intends to continue to hold contaminated equipment on or after 31st July in the year 2001 or in any subsequent year shall apply in writing in the relevant year, but before 31st July, for the registration to continue.

(2) In applying, the registered holder shall, in respect of each of his items of contaminated equipment which have been, or are to be, included in an inventory made in accordance with regulation 9(1), notify the Agency of the locations and descriptions and, subject to regulation 9(3), the quantities and dates and types of treatment, referred to in regulation 9(2).

(3) The Agency shall monitor the quantities of which they are notified under paragraph (2), and shall consider what, if any, changes to a holder's registered particulars are required as a result of the notification.

(4) For the purpose of enabling the Agency to discharge the function referred to in paragraph (3), the Agency may by notice in writing served on the registered holder of any equipment in respect of which a quantity has been notified in accordance with paragraph (2) require him to provide, within such reasonable period as the Agency may specify in the notice, such information as the Agency may reasonably require.

PART VMISCELLANEOUS

Information for the public

11.-(1) Subject to paragraphs (5) and (6), the Agency shall make available for public inspection, without charge, and at all reasonable hours, a copy of every inventory and revised inventory which it has compiled.

(2) The copy may be kept in any form but shall be indexed and arranged so that members of the public can readily trace information recorded in it.

(3) Subject to paragraphs (5) and (7), the Agency shall keep a register specifying the quantity, origin, nature and PCB content of used PCBs in respect of which copies of consignment notes specifying that information are furnished to it under regulations 5(4), 8(7) or 9(3) of the Special Waste Regulations 1996(8) by a person in the course of a business concerned with the disposal of PCBs.

(4) The register may be kept in any form and may, in particular, comprise copies, or extracts of copies, of consignment notes; but it shall-

(a)be indexed and arranged so that members of the public can readily trace information recorded in it; and

(b)be made available for public inspection, without charge, at all reasonable hours.

(5) Nothing in paragraph (1) or (3) shall require the Agency to make available information which-

(a)is capable of being, or must be, treated as confidential for the purposes of regulation 4 of the Environmental Information Regulations 1992(9); or

(b)would be capable of being, or would have to be, treated as confidential for those purposes if it were information to which those Regulations applied.

(6) Nothing in paragraph (1) shall require the Agency to retain an inventory or revised inventory, as the case may be, which has been superseded by a revised inventory once 4 years have elapsed from the date on which the revised inventory or the most recent revised inventory, as the case may be, was compiled.

(7) The register mentioned in paragraphs (3) and (4) shall be kept until 31st December 2010.

Payment of charges

12. Where the Agency has fixed a charge under section 43 of the 1995 Act for a service or facility provided in the course of carrying out its functions in connection with these Regulations, the charge shall be paid-

(a)where the service or facility is provided in connection with an application, at the time when the application is made;

(b)in any other case, no later than the time when the service or facility is provided.

Offences and penalties

13.-(1) A person who holds any contaminated equipment in contravention of regulation 3 is guilty of an offence.

(2) A person-

(a)who holds PCBs or equipment in contravention of paragraph (1) of regulation 4;

(b)who, being the holder of PCBs or equipment to which sub-paragraph (b) of paragraph (2) of regulation 4 applies, fails to dispose of them in accordance with that sub-paragraph; or

(c)who, being the holder of equipment, fails to decontaminate or dispose of that equipment-

(i)in a case to which paragraph (3) of regulation 4 applies, as soon as possible after the end of its useful life;

(ii)in a case to which paragraph (5) of regulation 4 applies, in accordance with paragraph (8) of that regulation;

(iii)in a case to which paragraph (9) of regulation 4 applies, as soon as possible after the end of the useful life of the other piece of equipment of which it is part,

is guilty of an offence.

(3) A holder of equipment who fails to comply with regulation 4(4)(d) or regulation 5 is guilty of an offence.

(4) A person who-

(a)supplies information for the purposes of regulation 6(1) knowing it to be false or misleading in a material particular or recklessly supplies information which is false or misleading in a material particular;

(b)fails without reasonable excuse to supply information in accordance with regulation 10(2) or a notice under regulation 10(4); or

(c)supplies such information knowing it to be false or misleading in a material particular or recklessly supplies information which is false or misleading in a material particular,

is guilty of an offence.

(5) A person guilty of an offence under paragraph (1) or (2) shall be liable-

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on indictment, to a fine or a term of imprisonment not exceeding two years, or both.

(6) A person guilty of an offence under paragraph (3) or (4) shall be liable-

(a)on summary conviction, to a fine not exceeding the statutory maximum;

(b)on indictment, to a fine.

(7) Where an offence under any paragraph of this regulation committed by a body corporate is proved to have been committed with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate or a person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(8) Where the affairs of a body corporate are managed by its members, paragraph (7) shall apply in relation to the acts or defaults of a member in connection with his functions of management as if he were a director of the body corporate.

Revocation of Regulations

14.-(1) The Control of Pollution (Supply and Use of Injurious Substances) Regulations 1986(10), as they apply to England and Wales, are revoked with effect from 1st January 2001.

(2) Regulation 2 (PCBs and PCTs) of the Environmental Protection (Controls on Injurious Substances) Regulations 1992(11), as it applies to England and Wales, is revoked with effect from 1st January 2001.

Regulation 2

SCHEDULE 1DISPOSAL OPERATIONS D8, D9, D10, D12 AND D15 AS SET OUT IN ANNEX IIA OF DIRECTIVE 75/442/EEC ON WASTE, AS AMENDED B(12)

"D8 Biological treatment not specified elsewhere in this Annex which results in final compounds or mixtures which are discarded by means of any of the operations numbered D1 to D12.

D9 Physico-chemical treatment not specified elsewhere in this Annex which results in final compounds or mixtures which are discarded by means of any of the operations numbered D1 to D12 (eg evaporation, drying, calcination, etc.).

D10 Incineration on land.

D12 Permanent storage (eg emplacement of containers in a mine, etc.).

D15 Storage pending any of the operations numbered D1 to D14 (excluding temporary storage, pending collection, on the site where it is produced)."

Regulation 4(4)(d)

SCHEDULE 2LABELLING OF DECONTAMINATED EQUIPMENT

Each item of decontaminated equipment must be clearly marked with an indelible and embossed or engraved sign which must include the following information-

Explanatory Note

(This note is not part of the Regulations)

These Regulations relate to Council Directive 96/59/EC ("the Directive") on the disposal of polychlorinated biphenyls and polychlorinated terphenyls ("PCBs"). They are for the purpose of implementing the provisions of the Directive which require decontamination or disposal of PCBs and equipment containing them and the associated provisions for inventories, labelling and monitoring. They are additional to the existing relevant requirements of the waste management licensing regime under the Environmental Protection Act 1990.

Subject to exceptions, in particular for businesses concerned with decontamination and disposal of PCBs, regulation 3 prohibits the holding of certain equipment contaminated by PCBs ("contaminated equipment") by anyone other than a person registered with the Environment Agency ("the Agency") under these Regulations. This prohibition applies after 31st July 2000.

Subject to exceptions, in particular for businesses concerned with decontamination and disposal of PCBs, for transformers and for certain other equipment being replaced under major replacement programmes, regulation 4(1) prohibits the holding of PCBs and equipment containing them (whether or not within the definition of "contaminated equipment" in regulation 2). This provision applies even though a person is registered with the Agency, but applies only after 31st December 2000.

Contaminated equipment is to be labelled as such (regulation 5) and, when decontaminated, within specified limits, is to be re-labelled in the form set out in Schedule 2 to the Regulations (regulation 4(4)(d)).

Regulation 6 provides for the procedure for registration. Applicants for registration are required to specify, amongst other things, the date by which they expect to have decontaminated or disposed of the equipment concerned. Regulation 7 provides for cancellation of the registration and regulation 8 for appeals against the non-determination of an application for registration or the cancellation of a registration.

Registered holders are required to provide information to the Agency on a regular basis (regulation 10).

Regulations 9, 10(3) and 11 set out the duties of the Agency to monitor the information supplied, to prepare an inventory and to review it at regular intervals, to provide an annual statement of the number of registered holders and items of equipment of which particulars are registered, and in relation to public registers. The preparation of inventories by the Agency and the provision of summaries is to facilitate the discharge of the obligation imposed by Article 4.1 of the Directive to send to the Commission a summary of the inventories of equipment with PCB volumes of more than 5dm3. The Agency also obtains other relevant information through the system of consignment notes under the Special Waste Regulations 1996.

Regulation 12 concerns charges payable to the Agency under the Environment Act 1995.

Regulation 13 creates criminal offences.

Regulation 14 revokes the Control of Pollution (Supply and Use of Injurious Substances) Regulations 1986 ("the 1986 Regulations") and regulation 2 of the Environmental Protection (Controls on Injurious Substances) Regulations 1992 (which amends the 1986 Regulations) as they apply in England and Wales. These are superseded, in particular, by regulation 4 of these Regulations.

Schedule 1 to the Regulations records the disposal operations D8 to D10, D12 and D15 set out in Annex IIA of Directive 75/442/EEC on waste, as replaced by Council Decision 96/350. These are the only permitted methods of disposal of PCBs and equipment contaminated by PCBs under the Directive.

Schedule 2 sets out the Directive's requirements for the labelling of decontaminated equipment.

An assessment which indicates the cost of compliance to businesses (a "regulatory impact assessment") in respect of these Regulations may be obtained from the Department of the Environment, Transport and the Regions, zone 3/B8, Ashdown House, 123 Victoria Street, London SW1E 6DE. A copy has been placed in the library of each of the Houses of Parliament.