Levelling-up and Regeneration Act 2023

170 Remediation E+W

(1) The Environmental Damage (Prevention and Remediation) (England) Regulations 2015 (S.I. 2015/810) are amended as follows.

(2) After regulation 9 insert—

“9A Nutrient significant sewage disposal works: environmental damage

(1) This regulation applies where a sewerage undertaker whose sewerage system includes a nutrient significant plant fails to secure that the plant is able to meet the related nutrient pollution standard by the upgrade date.

(2) Any excess nutrient pollution is to be treated for the purposes of these regulations as damage to the related habitats site that is environmental damage caused by an activity of the sewerage undertaker that—

(a) requires a permit under the Environmental Permitting (England and Wales) Regulations 2016, and

(b) falls within Schedule 2.

(3) In paragraph (2)—

• “excess nutrient pollution”, in relation to a nutrient significant plant and a related nutrient pollution standard, means the amount by which the total nutrient pollution discharged in treated effluent by the plant during the period—

  (a)

  beginning with the upgrade date, and

  (b)

  ending with the day the plant first meets the related nutrient pollution standard,

  exceeds the total nutrient pollution that it would have discharged in treated effluent during that period had it met the related nutrient pollution standard on and after the upgrade date;

• “total nutrient pollution” means—

  (a)

  in relation to the nitrogen nutrient pollution standard, total nitrogen, and

  (b)

  in relation to the phosphorus nutrient pollution standard, total phosphorus.

(4) Where—

(a) the nutrient significant plant referred to in paragraph (1) is a plant that discharges treated effluent into a catchment permitting area (see section 96G of the Water Industry Act 1991), and

(b) the sewerage undertaker has failed to comply with a condition in the environmental permit for the plant imposed in pursuance of subsection (3)(b) of that section,

the definition of “excess nutrient pollution” in paragraph (3) is subject to the following modifications.

(5) In a case where the condition relates to the total nutrient pollution discharged by the plant specifically, references in that definition to the “upgrade date” are to be read as the “applicable date”.

(6) In a case where the condition relates to the total nutrient pollution discharged by all plants that discharge into the associated catchment area, that definition is to be read as if—

(a) in the words before paragraph (a), after “by the plant” there were inserted “and all other plants that discharged into the associated catchment area for that plant”,

(b) in paragraph (a), for “upgrade date” there were substituted “applicable date”, and

(c) in the words after paragraph (b)—

(i) for “that it” there were substituted “that both it and those other plants”, and

(ii) for “upgrade date” there were substituted “applicable date”.

(7) For the purposes of paragraph (3) as modified by paragraph (5) or (6), the “applicable date” is to be determined in accordance with section 96G(6)(a) of the Water Industry Act 1991.

(8) It is for the Environment Agency to determine the excess nutrient pollution discharged by a plant and in doing so the Environment Agency may have regard to—

(a) the concentration of total nitrogen or concentration of total phosphorus determined for the purposes of section 96F of the Water Industry Act 1991 (see in particular subsection (5) of that section), and

(b) the volume of treated effluent discharged by the plant, as determined by the Environment Agency.

(9) Schedule 2ZA sets out modifications of these regulations that apply where this regulation applies.

(10) In this regulation—

• “related habitats site”, in relation to a nutrient significant plant, means the habitats site by reference to which the associated catchment area is designated under section 96C of the Water Industry Act 1991;

• “sewerage system”, in relation to a sewerage undertaker, has the meaning given by section 17BA(7) of the Water Industry Act 1991.

(11) For the purposes of this regulation, the following terms have the meanings given by section 96L of the Water Industry Act 1991—

• “associated catchment area”;

• “catchment permitting area”;

• “environmental permit”;

• “habitats site”;

• “nitrogen nutrient pollution standard”;

• “nutrient significant plant”;

• “phosphorus nutrient pollution standard”;

• “plant”;

• “related nutrient pollution standard”;

• “sensitive catchment area”;

• “treated effluent”;

• “upgrade date”;

and references to a nutrient significant plant meeting the related nutrient pollution standard are to be read in accordance with section 96F(1) or (2) of that Act.”

(3) After Schedule 2 insert—

Regulation 9A

“Schedule 2ZA E+W Modifications where regulation 9A applies

1 In relation to anything that is treated as environmental damage by regulation 9A, these regulations apply with the following modifications.

2 Regulation 17 does not apply.

3 Regulation 18 applies as if—

(a) the opening words of paragraph (1) provided “Where excess nutrient pollution is treated as environmental damage by regulation 9A(2), the enforcing authority must notify the responsible operator—”;

(b) for paragraph (a) there were substituted—

“(a) of the environmental damage;”.

4 Regulation 18A applies with the omission of paragraph (2).

5 Regulation 19(3) applies as if for paragraphs (a) to (e) (but not the “or” immediately following paragraph (e)) there were substituted—

“(a) the responsible operator did not fail to secure that the nutrient significant plant in question is able to meet the related nutrient pollution standard by the upgrade date;

(b) the determination by the Environment Agency of the excess nutrient pollution mentioned in regulation 9A(2) was unreasonable;”.

6 Regulation 25(2) applies as if—

(a) for paragraph (a) there were substituted—

“(a) determining the excess nutrient pollution mentioned in regulation 9A(2);”;

(b) paragraph (b) were omitted.”

Commencement Information

I1 S. 170 in force at 26.12.2023, see s. 255(6)