Drainage (Amendment) (Jersey) Law 201- (P.6/2014): Lodged 'au Greffe'

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A decision made 10 January 2014:

Decision Reference: MD-T-2014-0003
Decision Summary Title :	Trade Effluent Consents – Proposed Amendment to Drainage (Jersey) Law 2005.		Date of Decision Summary:	03 January 2014
Decision Summary Author:	Assistant Director Drainage Infrastructure		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	Trade Effluent Consents – Proposed Amendment to Drainage (Jersey) Law 2005.		Date of Written Report:	03 January 2014
Written Report Author:	Assistant Director Drainage Infrastructure		Written Report : Public or Exempt?	Public
Subject: Trade Effluent Consents – Proposed Amendment to Drainage (Jersey) Law 2005
Decision(s): The Minister approved the Draft Drainage (Amendment) (Jersey) Law 201-.
Reason(s) for Decision: The amendment to the Drainage (Jersey) Law 2005 will introduce both transparency and a control mechanism on the right of the Regulator to grant an authorisation to itself, in this case TTS, and is what is currently provided for in the Water Pollution (Jersey) Law 2000.
Resource Implications: : It is anticipated that the total costs to draft this amendment will be of the order of £20,000 although some of these costs have already been paid for in previous years. There are other minor Revenue costs in converting existing trade effluent consents to certificates as well as costs to advertise proposals. Potentially in the future, there could be legal costs incurred in defending any appeal made against a decision by the Minister but these are currently indeterminate.
Action required: Chief Officer to request the Greffier of the States to arrange for the draft Law to be lodged ‘au Greffe’ for debate at an early date.
Signature:		Position:
Date Signed:		Date of Decision (If different from Date Signed):

Drainage (Amendment) (Jersey) Law 201- (P.6/2014): Lodged 'au Greffe'

TRANSPORT AND TECHNICAL SERVICES

TRADE EFFLUENT CONSENTS – PROPOSED AMENDMENT TO DRAINAGE

(JERSEY) LAW 2005

PURPOSE OF THE REPORT

To obtain Ministerial Approval for the proposed amendment to the Drainage (Jersey) Law 2005 so that it can be lodged for debate.

BACKGROUND

As a result of TTS having to tanker contaminated leachate from an open ash pit at La Collette to Bellozanne Sewage Treatment Works in November 2010, the Assistant Minister for Planning and Environment expressed disappointment that the department had not issued itself with a Trade Effluent Discharge Consent under Part 3 of the Drainage (Jersey) Law 2005, to carry out this work.

Whilst the Assistant Minister’s concerns were addressed at the time, the incident raised a wider issue of the Transport and Technical Services Department internally issuing itself Trade Effluent Discharge Consents for its various operations at its Island sites, particularly La Collette, Bellozanne and the animal cremator at Trinity.

The environmental lawyer who assisted the department with the original drafting of the Drainage Law was consulted, and he confirmed that this was never raised as an issue at the time of the original drafting.

However, now that the query had been raised, the environmental lawyer confirmed that Part 3 of the Drainage Law which deals with Trade Effluent Consents did not contemplate the issuing of ‘in-house’ consents but was drafted to address the issuing of Trade Effluent Consents to third party premises. The environmental lawyer further confirmed that the issuing of ‘in-house’ consents was generally not regarded as good practice and that TTS trade effluent operations should be covered by Trade Effluent Certificates.

The difference between Consents and Certificates is that all applications for Discharge Certificates have to be publicly advertised in the Jersey Gazette whereas Consents do not. There is no power to dispense with advertising and thus the public have a right to make representations in respect of all applications for Discharge Certificates. Furthermore, the Public can seek a “review” of the matter by the Royal Court.

In addition, the Attorney General can seek a Review by the Royal Court at any time and can also, if necessary, appeal against the decision of the Royal Court to the Court of Appeal.

This arrangement is designed to introduce both transparency and a control mechanism on the right of the Regulator to grant an authorisation to itself, in this case TTS, and is what is currently provided for in the Water Pollution (Jersey) Law 2000. It was therefore agreed that the Minister take the appropriate steps to make an amendment to the Drainage (Jersey) Law 2005 which will allow the issuing of Trade Effluent Discharge Certificates by TTS to itself.

DISCUSSION

Following a briefing on this issue to the Minister for Transport and Technical Services in April 2011, and confirmation from the Minister at that time that he wished to proceed with the Drainage Law amendment, the environmental lawyer prepared drafting instructions for the Law Draftsman who subsequently prepared a draft amendment for comment.

If enacted the Amendment Law will provide that:

i) There will be a requirement for the Minister for Transport and Technical Services to have to publicly advertise his proposals to issue or vary Trade Effluent Discharge Certificates in respect of trade effluent discharges by his Department into the public sewerage network.

ii) There will be an opportunity for members of the public etc., to object to those proposals.

iii) The Minister for Transport and Technical Services will be under a duty to consider any objections received before issuing or varying a Trade Effluent Certificate.

iv) Moreover, objectors will have the right to seek a review of the proposals by the Royal Court.

v) In any event, the Attorney General will be able at any time to seek a review by the Royal Court of the Minister’s decision to issue or vary a Trade Effluent Certificate, with a further right of appeal to the Court of Appeal.

vi) The Minister for Transport and Technical Services will be under a duty to make relevant information relating to Trade Effluent Certificates available to the public. In particular:-

Proposals for the issuing or varying of Trade Effluent Certificates
Objections or representations received following the advertising of those proposals
Results of samples taken in accordance with the Conditions of Trade Effluent Certificates

vii) Finally, it will be a criminal offence for the Minister for Transport and Technical Services to introduce trade effluent into the public sewerage network without a Trade Effluent Certificate (or to do so in breach of the Conditions thereby imposed).

There is also a provision in the Amendment Law for a 12 months ‘grace period’ to enable the Department to prepare, advertise and issue the requisite Trade Effluent Certificates. Basically, during that interim period, the existing Trade Effluent Consenting regime will remain in force.

On the advice of the Greffier of the States, the draft amendment was issued to the Council of Ministers and the Environment Scrutiny Panel for their comments on 04 October 2013. By the closing date for comments on Friday 08 November 2013 no comments had been received and therefore the Minister is asked to approve the draft amendment so that it can be lodged for debate.

A copy of the Report and Drainage (Amendment) (Jersey) Law 201- is attached in a form ready for lodging along with a copy of the Drainage (Jersey) Law 2005 as amended by the Drainage (Amendment) (Jersey) Law 201-, which is for information only. For completeness, a separate copy of the Human Rights Convention Certificate, which the Minister is required to sign, is also attached.

The environmental lawyer has confirmed that he will be available to brief the Minister on the Amendment prior to the States debate.

RECOMMENDATION

It is recommended that the Minister approve the draft amendment to the Drainage (Jersey) Law 2005 so that the amendment can be lodged for debate.

REASONS FOR DECISION

The proposed amendment to the Drainage (Jersey) Law 2005 will introduce both transparency and a control mechanism on the right of the Regulator to grant an authorisation to itself, in this case TTS, and is what is currently provided for in the Water Pollution (Jersey) Law 2000.

RESOURCE IMPLICATIONS

It is anticipated that the total costs to draft this amendment will be of the order of £20,000 although some of these costs have already been paid for in previous years. There are other minor Revenue costs in converting existing trade effluent consents to certificates as well as costs to advertise proposals. Potentially in the future, there could be legal costs incurred in defending any appeal made against a decision by the Minister but these are currently indeterminate.

ACTION REQUIRED

Chief Officer to request the Greffier of the States to arrange for the draft Law to be lodged ‘au Greffe’ for debate at an early date.

Written by:	Assistant Director, Drainage Infrastructure

Approved by:	Director, Operational Services

Attachments:	i) Draft copy of the Drainage (Amendment) (Jersey) Law 201- including Report and Human Rights Convention Certificate ii) Separate Human Rights Convention Certificate iii) Draft copy of the Drainage (Jersey) Law 2005 as amended by the Drainage (Amendment) (Jersey) Law 201-