The Energy Act 2008 (Consequential Modifications) (Offshore Environmental Protection) Order 2010

EXPLANATORY NOTE

(This note is not part of the Order)

Part 1 of the Energy Act 2008 (c. 32) (“the Act”) introduces two new licensing regimes, respectively for the storage and unloading of combustible gas (Chapter 2) and the permanent storage of carbon dioxide (Chapter 3). The regimes apply to activities within the offshore area comprising both the UK territorial sea, and the area extending beyond the territorial sea that has been designated as a Gas Importation and Storage Zone (“GISZ”) under section 1(5) of that Act: see the Gas Storage and Importation Zone (Designation of Area) Order 2009 (S.I. 2009/223).

This Order is consequential on the introduction of those licensing regimes and modifies provisions of secondary legislation relating to the protection of the environment offshore so that they apply in connection with activities that are required to be licensed under Part 1 of the Act. These are: gas storage or unloading activities; related exploration activities; and the establishment or maintenance of installations for such purposes (“Part 1 installations”).

Article 2 modifies the Offshore Petroleum Production and Pipe-lines (Assessment of Environmental Effects) Regulations 1999 (S.I. 1999/360). As a result, there will be a requirement to include an “environmental statement” (as defined in regulation 3(1) of those Regulations) in an application for the consent of the Secretary of State to a project which has as its main object a storage or unloading activity (as defined in article 2(9)), and in respect of related installations, or to the construction of a pipe-lines conveying combustible gas (within the meaning of section 2(4) of the Act) or carbon dioxide. The Secretary of State may direct that such a statement is unnecessary, under regulation 6 of the Regulations, only where the pipe-line is below the specified dimensions, or the installation is not a “structure” within the meaning of regulation 3(1). Article 2(8) ensures that the Regulations, as so modified, apply only in respect of the functions of the Secretary of State (and not the functions of the Scottish Ministers under Part 1, Chapter 3, of the Act).

As regards carbon dioxide storage activities, and pipe-lines conveying carbon dioxide, this modification implements the amendments to Council Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment(1) that are made by Article 31 of Directive 2009/31/EC of the European Parliament and of the Council on the geological storage of carbon dioxide(2) (“the CCS Directive”).

Article 3 modifies the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 (S.I. 2001/1754). As a result, the requirements of those Regulations also apply in relation to the Secretary of State’s functions under Part 1 of the Act. In particular, the Secretary of State must, before granting a licence under that Part, or a consent pursuant to such a licence, make an appropriate assessment of the implications for a site protected under Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora(3) (“the Habitats Directive”), or Directive 2009/147/EC of the European Parliament and of the Council on the conservation of wild birds(4) (“the Wild Birds Directive”). Article 3(6) and (7) amends the Regulations to remove a superfluous definition from regulation 2(1), and to replace the references to Council Directive 79/409/EEC and to S.I. 1994/2716 by updated references.

The modifications made by article 3 implement the Habitats and Wild Birds Directives in respect of the Secretary of State’s functions under Part 1 of the Act.

Article 4 is consequential on the modifications made by article 3: it ensures the matters now falling within the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001 do not also fall within the Offshore Marine Conservation (Natural Habitats, &c.) Regulations 2007 (S.I. 2007/1842).

Article 5 amends the Offshore Combustion Installations (Prevention and Control of Pollution) Regulations 2001 (S.I. 2001/1091). As a result, the requirement to obtain a permit under those Regulations for the operation of an offshore combustion installation also applies to installations on structures used for or in connection with gas storage or unloading activities, provided that the structure is within the “reserved area” defined by article 5(c). This implements requirements of Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (Codified version)(5), as amended by the CCS Directive.

Article 6 amends the Offshore Chemicals Regulations 2002 (S.I. 2002/1355). As a result, the controls under those Regulations on the use or discharge of chemicals offshore also apply in relation to activities within Part 1 of the Act that are carried out in the “reserved area” defined by article 6(1)(d). The Regulations implement Decision 2000/2 and Recommendations 2000/4 and 2000/5 of the OSPAR Convention (1992 Convention for the Protection of the Marine Environment of the North-East Atlantic).

Article 7 amends the Offshore Installations (Emergency Pollution Control) Regulations 2002 (S.I. 2002/1861), ensuring that the powers of the Secretary of State to prevent or reduce accidental pollution also extend to that resulting from damage to a Part 1 installation.

Article 8 amends the definition of “offshore installation” in regulation 2 of the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (S.I. 2005/925). The amendment ensures that the provisions of the Regulations applicable to “offshore installations” do not include gas storage and unloading installations within the seaward limits of the territorial sea adjacent to Wales or Scotland.

Those Regulations implement Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community(6).

Article 9 amends the Offshore Petroleum Activities (Oil Pollution Prevention and Control) Regulations 2005 (S.I. 2005/2055), which require a permit from the Secretary of State for the release of oil into relevant waters from an offshore installation. As a result, those Regulations will also apply in relation to all Part 1 installations, but in such cases relevant waters do not include the waters mentioned in article 9(3).

Article 10 amends the REACH Enforcement Regulations 2008 (S.I. 2008/2852), which provide for the enforcement of Regulation (EC) No 1907/2006 of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)(7). The amendments ensure that those Regulations apply to all Part 1 installations, and that (in relation to the latter) the duty to enforce provisions of the REACH Regulation lies, in relevant cases, with the Scottish Environmental Protection Agency where the installation is within the seaward limits of the Scottish territorial sea.

Article 11 amends the Fluorinated Greenhouse Gases Regulations 2009 (S.I. 2009/261) which provide for the enforcement of Regulation (EC) No 842/2006 of the European Parliament and of the Council on certain fluorinated greenhouse gases(8). As a result, those provisions also extend to all Part 1 installations.

An Impact Assessment has not been produced for this instrument. The amendments which are made by this Order are consequential on the introduction of the new licensing regimes by Part 1 of the Energy Act 2008.

A Transposition Note setting out how this Order transposes relevant provisions of European Union legislation is annexed to the Explanatory Memorandum that is available alongside the instrument on the OPSI website at: http://www.opsi.gov.uk/stat.htm.

Copies of the Explanatory Memorandum are also available from Ricki Kiff, Energy Development Unit, Department of Energy and Climate Change, 3 Whitehall Place, London SW1A 2AW. Tel: [phone]; email: [e-mail].

(1)

OJ No L 175, 5.7.1985, p. 40, amended by Council Directive 97/11/EC (OJ No L 73, 14.3.1997 p. 5) and Directive 2003/35/EC of the European Parliament and of the Council (OJ No L 156, 25.6.2003, p. 17) and Directive 2009/31/EC of the European Parliament and of the Council (OJ No L 140, 5.6.2009, p. 114).

(2)

OJ No L 140, 5.6.2009, p. 114.

(3)

OJ No L 206, 22.7.1992, p. 7, the relevant amending instruments are Council Directive 97/62/EC (OJ No L 305, 8.11.1997, p. 42).

(4)

OJ No L 20, 26.1.10, p. 7.

(5)

OJ No L 24, 29.1.2008, p. 8.

(6)

OJ No L 275, 25.10.2003, p. 32, last amended by Directive 2009/29/EC of the European Parliament and the Council (OJ No L 140, 5.6.2009, p. 63).

(7)

OJ No L 396, 30.12.2006, p. 1, last amended by Commission Regulation No 276/2010 (OJ No L 86, 1.4.2010, p. 7).

(8)

OJ No L 161, 14.6.2006, p. 1.