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Annex A
Scottish Statutory Instruments
2009 No.
ENVIRONMENTAL PROTECTION
WATER
The Water Environment (Groundwater and Priority Substances) (Scotland) Regulations 2009
Made - - - - 2009
Coming into force - - [date] 2009
The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 20 and 25 of the Water Environment and Water Services (Scotland) Act 2003( 4) and all other powers enabling them to do so.
In accordance with sections 36(5) and 36(6) of that Act, a draft of this instrument has been laid before and approved by resolution of the Scottish Parliament.
Citation and commencement
1. These Regulations may be cited as the Water Environment (Groundwater and Priority Substances) (Scotland) Regulations 2009, and shall come into force on [date].
Interpretation
2. In these Regulations-
"the Act" means the Water Environment and Water Services (Scotland) Act 2003;
"the Groundwater Directive" means Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration( 5); and
"the Priority Substances Directive" means Directive 2008/105/EC of the European Parliament and of the Council on environmental quality standards in the field of water policy( 6)".
Provisions of the Act which have effect for the purpose of giving effect to the Groundwater Directive and the Priority Substances Directive
3. For the purpose of giving effect to the Groundwater Directive and the Priority Substances Directive the provisions of Part 1 of the Act have effect with the following modifications:-
(a)in subsections (1) and (2) of section 2 (the general duties) after the words "the Directive" where they occur, insert ", the Groundwater Directive and the Priority Substances Directive";
(b) in section 28 (interpretation of Part 1)-
(i) in subsection (1) after the definition of "groundwater" insert-
""the Groundwater Directive" means Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration.".
(ii) in subsection (1) after the definition of "loch" insert-
""the Priority Substances Directive" means Directive 2008/105/EC of the European Parliament and of the Council on environmental quality standards in the field of water policy.".
(iii) after subsection (3) insert-
"(4) Any word or expression used in both this Part and the Groundwater Directive and not otherwise defined in this Part has the same meaning for the purposes of this Part as it has for the purposes of the Groundwater Directive;
(5) Any word or expression used in both this Part and the Priority Substances Directive and not otherwise defined in this Part, has the same meaning for the purposes of this Part as it has for the Priority Substances Directive.".
Amendment of the Water Environment (Controlled Activities) (Scotland) Regulations 2005
4.-(1) The Water Environment (Controlled Activities) (Scotland) Regulations 2005( 7) are amended as follows.
(2) In regulation 2(1) (interpretation)-
(a) immediately before the definition of "the Groundwater Directive", insert-
""the Groundwater Directive 2006" means Directive 2006/118/EC of the European Parliament and of the Council on the protection of groundwater against pollution and deterioration;".
(b) for the phrase ""the Groundwater Directive" means Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances;" substitute-
""the Groundwater Directive 1980" means Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances;";
(c) immediately after the definition of "general binding rules", insert-
""hazardous substance" means a substance identified in accordance with Schedule 2;"; and
(d) immediately after the definition of "premises" insert-
""the Priority Substances Directive" means Directive 2008/105/EC of the European Parliament and of the Council on environmental quality standards in the field of water policy;".
(3) In regulation 4 (application of the regulations) in subparagraph (b) of paragraph (1) for "the substances listed in Schedule 2" substitute "any hazardous substance, or any other pollutant."
(4) In regulation 10 (Groundwater Directive)-
(a) amend the heading by substituting "Directives 1980 and 2006" for the word "Directive";
(b) immediately before paragraph (1) insert-
"(A1) When considering an application which is made between [date] 2009 and 22nd December 2013 and which falls within the provisions of the Groundwater Directive 1980, SEPA shall impose such conditions as it considers necessary to ensure compliance with that Directive as read with the Groundwater Directive 2006.";
(c) at the beginning of paragraph (1) add "Subject to paragraph (A1)"and add "2006" after "Groundwater Directive" for both references in that paragraph;
(d) at the end of paragraph (2) add "1980 and Article 6 of the Groundwater Directive 2006".
(5) In regulation 28(1)(b)(iii) (enforcement notices) for "any of the substances listed in Schedule 2" substitute "any hazardous substance, or any other pollutant".
(6) For Schedule 2 (Substances referred to in regulations 4(1)(b) and 28(1)(b)(iii)), substitute the new Schedule 2 in Schedule 1 to these regulations.
(7) For Schedule 4 (legislation to be applied by SEPA before determining an application) substitute the new Schedule 4 in Schedule 2 to these regulations.
Revocation of Dangerous Substances Regulations
5. The following Regulations are revoked:-
(a)the Surface Waters (Dangerous Substances) (Classification) (Scotland) Regulations 1990( 8);
(b) the Surface Waters (Dangerous Substances) (Classification) (Scotland) Regulations 1992( 9);
(c) the Surface Waters (Dangerous Substances) (Classification) (Scotland) Regulations 1998( 11); and
(d) the Surface Waters (Dangerous Substances) (Classification) (Scotland) (No. 2) Regulations 1998( 11).
Authorised to sign by the Scottish Ministers
St Andrew's House,
Edinburgh
2009
SCHEDULE 1 Regulation 4(6)
New Schedule 2 to The Water Environment (Controlled Activities) (Scotland) Regulations 2005
"SCHEDULE 2 Regulation 2(1)
Hazardous Substances
1. SEPA shall identify substances or groups of substances which are:
(a) toxic, persistent and liable to bio-accumulate, and other substances or groups of substances which give rise to an equivalent level of concern: and
(b) entering, or liable to enter groundwater.
2. In identifying the substances referred to in paragraph 1 of this Schedule, SEPA shall take particular account of hazardous substances belonging to the families or groups of pollutants referred to in points 1 to 6 of Schedule 1 as well as substances belonging to the families or groups of pollutants referred to in points 7 to 9 of that Schedule, where those are considered to be hazardous.
3. SEPA shall publish and maintain a list of the substances identified in accordance with paragraph 1. The list shall be published in a manner SEPA considers appropriate to bring it to the notice of persons affected by, likely to be affected by, or interested in the identified substances and shall make copies of the list and a consolidated list available to the public free of charge."
SCHEDULE 2
New Schedule 4 to The Water Environment (Controlled Activities) (Scotland) Regulations 2005
"SCHEDULE 4 Regulation 15(1)
PART 1
The Groundwater Directive 1980
The Directive
The Groundwater Directive 2006
The Priority Substances Directive
The Act
The Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003 (S.I. 2003/3245)
The Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 (S.I. 2004/99)
These Regulations
PART 2
Part 2 of the Nature Conservation (Scotland) Act 2004 (2004 asp 6)
The Conservation (Natural Habitats &c) Regulations 1994 (S.I. 1994/2716)
The Urban Waste Water Treatment (Scotland) Regulations 1994 (S.I. 1994/2842)
The Surface Waters (Shellfish) (Classification) (Scotland) Regulations 1997 (S.I. 1997/2470)
The Surface Waters (Fishlife) (Classification) (Scotland) Regulations 1997 (S.I. 1997/2471)
The Designation of Nitrate Vulnerable Zones (Scotland) Regulations 2002 (S.S.I.2002/276)
The Designation of Nitrate Vulnerable Zones (Scotland) (No. 2) Regulations 2002 (S.S.I. 2002/546)
The Control of Pollution (Silage Slurry and Agricultural Fuel Oil) (Scotland) Regulations 2003 (S.S.I. 2003/531)
The Bathing Waters (Scotland) Regulations 2008 (S.S.I. 2008/170)
The Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2008 (S.S.I.2008/298)"
EXPLANATORY NOTE
(This note is not part of the Regulations)
These Regulations ("the Regulations") are made under sections 20 and 25 of the Water Environment and Water Services (Scotland) Act 2003 ("the Act"). The provisions of Part 1 of the Act are now applied by section 25 to meet the requirements of the Groundwater Directive 2006 (the Groundwater Directive) and the Priority Substances Directive. The Regulations modify the applied provisions as follows:
- section 2(1) of the Act is modified so that it provides that the functions contained in the relevant enactments (which are Part 1 of the Act and those enactments identified as relevant enactments in terms of S.S.I. 2008/263) must be exercised to secure compliance with the Water Framework Directive, the Groundwater Directive and the Priority Substances Directive.
- section 2(2) of the Act is modified to ensure that the "responsible authorities" exercise their "designated functions" (both as identified in S.S.I. 2008/263) to secure compliance with the Water Framework Directive, the Groundwater Directive and the Priority Substances Directive.
- section 28 of the Act is modified to ensure that the Groundwater Directive and the Priority Substances Directive, as referred to in section 2, are properly defined. Further, new subsection (4) is added to ensure that when the Scottish Ministers and SEPA apply the provisions of Part 1 of the Act in compliance with section 2, the definitions contained in the Groundwater Directive have the same meaning as they do in that Directive unless they have been otherwise defined in the Act. Similarly, new subsection (5) makes equivalent provisions for the Priority Substances Directive.
The Water Environment (Controlled Activities)(Scotland) Regulations 2005 ( CAR) are amended under section 20 of the Act to meet the requirements of Article 6 of the Groundwater Directive that relate to the reduction or prevention of the input of pollutants into groundwater. The Regulations amend CAR as follows:
- regulation 2(1) of CAR is amended to introduce the definition required to identify the Groundwater Directive and to amend the existing definition of Council Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances ("the Groundwater Directive 1980") in order to differentiate it from the Groundwater Directive, and to introduce a definition of hazardous substances.
- regulation 4 is amended to apply CAR to hazardous substances, which are introduced by a replacement Schedule 2, and to other pollutants.
- regulation 10 is amended to oblige SEPA to take into account the Groundwater Directive 1980 as it is now affected by the Groundwater Directive when considering an application, until December 2013.
- regulation 28 is amended in consequence of the amendment to regulation 4.
- Schedule 2 is substituted with a new Schedule setting out the identifying of hazardous substances by SEPA.
- Schedule 4 is substituted with a new Schedule. Part 1 is amended by adding the Groundwater Directive to the list of legislation that requires to be applied by SEPA in its decision making process under regulation 15. The list in Part 2 is replaced by an updated list to take into account legislative changes since CAR was made.
The Regulations further amend CAR, under section 20 of the Act, to meet the requirements of the Priority Substances Directive to ensure that SEPA must take that Directive into account when determining controlled activities applications, as follows:
- regulation 2(1) of CAR is amended to introduce the definition required to identify the Priority Substances Directive.
- Schedule 4 is substituted with a new Schedule. Part 1 is amended by adding the Priority Substances Directive to the list of legislation that requires to be applied by SEPA in its decision making process under regulation 15. The list in Part 2 is replaced by an updated list taking into account legislative changes since CAR was made.
Regulation 5 of the Regulations provides for the revocation of 4 sets of Regulations relating to the original transposition of the Dangerous Substances Directive 2006/11/EC. These 4 sets are now revoked as all of the relevant provisions in them are now either dealt with in Directions by the Scottish Ministers to SEPA or have otherwise been revoked.
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