Edie Environmental Legislation Summary (August 2005)

Recent changes to legislation which will impact on the environmental sector in the UK, Europe and internationally come under the spotlight in this Semple Fraser and Edie News monthly round-up of new law and policy. The summary includes the US-led climate change pact that will rival Kyoto, the UK's 'right to roam', new subsidies for biomass, efforts to combat oil pollution from shipping, tighter regulation of GMOs in Wales and an amendment to British climate change levy regulations.

Australia, China, India, Japan, South Korea and the USA agreed in the last week of July 2005 to combat climate change through voluntary technological development programmes.

The non-binding agreement has been widely regarded as the competitor to the Kyoto protocol model of emission reduction targets.

The Asia-Pacific partnership aims to promote clean energy technologies including natural gas, methane capture, hydro and nuclear power.

The deal, initiated by the US, was the result of year-long negotiations and purports that it will build on existing bilateral agreements of technology sharing to control emissions, but will not set mandatory targets.

The countries involved state that the pact will complement the Kyoto Protocol although Europe and environmentalists have been predominantly suspicious of US motives given that the EU and Tony Blair were not informed of the plan, even though climate change was a big item on the agenda of last month's G8 meeting.

See link to the Asia-Pacific Partnership for details.

EUROPEAN LEGISLATION

UK Report to the Commission on Biofuels 2005

This report fulfils the UK's legal obligation to report to the European Commission by 01 July 2005 on the preceding year, as required by Article 4 of Directive 2003/30/EC on the promotion of the use of biofuels or other renewable fuels for transport.

The report covers:

  • The measures the UK has taken to promote the use of biofuels or other renewable fuels to replace diesel or petrol for transport purposes.
  • The national resources allocated to the production of biomass for energy uses other than transport.
  • The total UK sales of transport fuel and the share of biofuels, pure or blended, and other renewable fuels placed on the market.

    See the Europa website for details.

    Directive 2005/32/EC establishing a framework for the setting of ecodesign requirements for energy-using products and amending Directive 92/42/EEC and Directives 96/57/EC and 2000/55/EC

    This Directive establishes a framework for the setting of Community ecodesign requirements for energy using products with the aim of ensuring the free movement of those products within the internal market.

    It provides for the setting of requirements which the energy using products covered by implementing measures must fulfil in order for them to be placed on the market and/or put into service.

    It contributes to sustainable development by increasing energy efficiency and the level of protection of the environment, while at the same time increasing the security of the energy supply.

    This Directive shall not apply to means of transport for persons or goods and shall be without prejudice to EC waste management legislation and EC chemicals legislation, including EC legislation on fluorinated greenhouse gases.

    See the Europa website for details.

    EU Ministers support new batteries directive

    EU ministers formally sanctioned a common position on EU legislation that states that 45% of all batteries are to be recycled within eight years of its entry into force. Environment ministers reached a political concord on the directive last December and now the EU council of ministers has formally approved the deal. This means the European parliament can start its second reading of the proposed Directive. Agreement on the final text of the Directive is not anticipated in 2005 because the current UK presidency of the council of ministers has opted not to prioritise the new Directive. See Council of Ministers website for details.

    First-reading agreement between the European Parliament and the Council on the establishment of a European Release and Transfer Register

    A first-reading agreement between the European Parliament and the Council on the establishment of a European Release and Transfer Register (PRTR) took place on 6 July 2005.

    The register is required under the UN Protocol on Pollutant Release and Transfer Registers, which was negotiated under the auspices of the 55-member United Nations Economic Commission for Europe (UN-ECE) and signed by the EU on 21 May 2003.

    The Commission adopted on 7 October 2004 a proposal for a Regulation establishing the European PRTR - Regulation of the European Parliament and of the Council concerning the establishment of a European Release and Transfer Register and amending Council Directives 91/689/EEC and 96/61/EC.

    The European PRTR will be Internet-based and hold a variety of data on industrial pollution, providing the public with information about the quality of the environment in their neighbourhoods and elsewhere in Europe.

    It will be a more comprehensive version of the current European Pollutant Emission Register (EPER) which was launched in February 2004 and recorded more than 230,000 visits in its first year of operation.

    See Europa Press Release for details.

    UK LEGISLATION

    UK Wide

    The Climate Change Levy (Miscellaneous Amendments) Regulations 2005

    These Regulations, which came into force on 22 July 2005, amend the existing rules about administering exemptions and other reliefs from climate change levy (CCL).

    Regulations 5(g) to 5(k) enable consumers who under-estimate their entitlement to exemptions and other reliefs for a given period to enjoy the benefit of their tax credit earlier.

    This is because the tax credit no longer has to be assimilated into the consumer's estimate for the exemptions and other reliefs in the subsequent period.

    A business supplied with commodities on a non-taxable basis later determined to be taxable must register for CCL to pay the amount due.

    Regulation 5(e) makes amendments that enable HM Revenue & Customs to exempt such a business from registration on the basis of a suitable written application and payment of the CCL due.

    Regulation 2 provides for existing record-keeping requirements to apply to such a business.

    The precise amount of exemption for the fuel burned by a combined heat and power station in producing electricity may not be known until the end of a calendar year although the supplier provisionally makes the exemption available during the year.

    Regulation 5(m) makes amendments that require the station to reconcile separately the actual exemption with the amount made available.

    The reconciliation is linked to significant days in the station's assessment cycle, but otherwise operates under rules parallel to those that apply to businesses generally for other exemptions and reliefs.

    Certified electricity produced in combined heat and power stations may be supplied exempt from CCL.

    Regulation 7(2) removes the certification requirements for stations that only supply the electricity directly to the user.

    The remainder of regulation 7 makes technical changes to the manner in which certification proceeds.

    Regulations 4 and 5(b)(ii) make consequential amendments to assimilate the new CCL exemption for recycling processes within existing administrative arrangements.

    Regulation 8 only adds words of elucidation to better sign post the basket of provisions relating to eligibility of CCL tax representatives.

    See link to OPSI website for details.

    The Merchant Shipping (Prevention of Oil Pollution) (Amendment) Regulations 2005

    These Regulations, made on 7 July and coming into force on 4 August 2005, amend the Merchant Shipping (Prevention of Oil Pollution) Regulations 1996 as amended.

    The Regulations implement Regulation (EC) No.1726/2003 amending Regulation (EC) No. 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers and Commission Regulation (EC) No. 2172/2004 amending Regulation (EC) No. 417/2002 on the accelerated phasing-in of double-hull or equivalent design requirements for single-hull oil tankers.

    The provisions made by these Regulations and by the EC Regulations are also contained in IMO Resolution MEPC.111(50) of 4th December 2003, which amends regulation 13G and inserts regulation 13H of Annex I to the International Convention for the Prevention of Pollution from Ships 1973 as amended by its Protocol of 1978 ("MARPOL 73/78").

    The Regulations also amend regulation 35(2) of the 1996 Regulations in order to provide that a ship may be detained where it is suspected contravening the requirements of regulations 12, 13 or 16, which relate to pollution.

    See link to OPSI website for details.

    English & Welsh

    The Financial Assistance for Environmental Purposes Order 2005

    This Order which came into force 29 July 2005, varies section 153(1) of the Environmental Protection Act 1990. It enables the Secretary of State, with the consent of the Treasury, to give financial assistance to, or for the purposes of, the Bio-energy Infrastructure Scheme.

    It extends to England, Wales and Northern Ireland only and NOT Scotland.

    The purpose of the Scheme is to provide grant aid to farmers, foresters and businesses to help the development of the supply chain required to harvest, store, process and supply biomass to energy end-users.

    Details of the Scheme are available on the Department for Environment, Food and Rural Affairs' website.

    For more information see the OPSI website.

    The Hazardous Waste (Wales) Regulations 2005

    These Regulations, which came into force on 6 and 16 July 2005, set out the regime for the control and tracking of the movement of hazardous waste for the purpose of implementing the Hazardous Waste Directive (Directive 91/689/EC).

    The Regulations apply in relation to Wales only.

    The Waste Framework Directive (Directive 75/442/EEC) regulates, subject to certain exclusions, the management of all types of waste ("Directive waste").

    The Hazardous Waste Directive supplements the Waste Framework Directive by imposing additional requirements in relation to Directive waste which displays certain hazardous properties.

    These requirements have previously been transposed by the Special Waste Regulations 1996, through controls on "special waste".

    These Regulations repeal the Special Waste Regulations 1996 and replace the term "special waste" with "hazardous waste".

    Parts 1 to 3 of the Regulations define hazardous waste and set out how the Regulations apply to that waste.

    The definition of hazardous waste in regulation 6 refers to the list of hazardous wastes set out in the List of Wastes (Wales) Regulations 2005 which are made on the same date as these Regulations.

    There is an exclusion from these controls for domestic waste which displays hazardous properties but not if it comprises asbestos waste or is collected separately. In both cases, the regulations do not impose obligations directly on householders.

    Part 4 bans the mixing of hazardous waste unless it is permitted as part of a disposal or recovery operation in accordance with the Waste Framework Directive. It also imposes a duty to separate different categories of Hazardous Waste where technically feasible.

    Part 5 makes it an offence to remove hazardous waste from premises which have not been notified to the Environment Agency, unless they are exempt premises or the waste has been flytipped.

    All premises at which hazardous waste is produced or removed must be notified by the producer of the waste or the consignor (the person who arranges for the removal of the waste).

    Notification lasts 12 months after which the premises must be notified again. A fee is payable to the Environment Agency on notification of premises.

    Part 6 requires documents to be completed whenever hazardous waste is removed from premises (which includes removal from ships and removal by pipeline).

    The various types of form are set out in Schedules 4 to 6. This is to ensure that an accurate description of consignments of waste accompanies them whenever they move.

    This is in addition to any requirements to ensure hazardous waste is properly packaged and labelled (see in particular the Packaging (Essential Requirements) Regulations 2003).

    Producers, holders, carriers, consignors and consignees are all required to complete various parts of the forms.

    If the consignee rejects the waste, suitable alternative arrangements must be made. Schedule 7 deals with cross border transfers within the United Kingdom and Gibraltar.

    Part 7 requires producers, holders, carriers, consignors and consignees to keep records. These must be kept for a minimum of 3 years except in the case of carriers where the period is 12 months.

    Consignees are required to provide the Environment Agency with a quarterly return setting out the consignments they have received during that period.

    Consignees may be required to pay a fee to the Environment Agency but are given a right to recover from consignors who sent the waste to them.

    They are also required to send a return to producers or holders who sent waste to them. Schedule 9 sets out a transitional scheme for fees.

    Part 8 sets out the Agency's functions. In particular, the Agency is required to inspect producers of hazardous waste periodically and to keep any records sent to it pursuant to Part 7 for a minimum of 3 years.

    Part 9 imposes duties on holders of hazardous waste and the Environment Agency in the event of an emergency or grave danger which arises from hazardous waste.

    Part 10 makes it an offence for failure to comply with the requirements of these Regulations. The maximum penalty for failure to comply with a requirement imposed by or under the regulations set out in regulation 69(1) is level 5 on the standard scale (currently £5000).

    The Agency may issue fixed penalty notices of £300 instead of seeking conviction in relation to such offences. Other offences under the Regulations (including the provision of false information) are subject to a maximum fine of level 5 if tried summarily and higher fines and also imprisonment if tried on indictment.

    Schedule 11 makes consequential amendments to legislation so that references to special waste are omitted and references to hazardous waste are updated so that they are consistent with these Regulations.

    Schedule 12 makes transitional provision. It provides for notification in advance of the regulations fully coming into force.

    It also makes transitional provision for those cases where the change to hazardous waste from special waste would mean that a person would no longer be authorised to dispose or recover waste.

    See link to OPSI website.

    The List of Wastes (Wales) Regulations 2005

    These Regulations, which came into force on 16 July 2005, implement (except for Article 3) in Wales only Commission Decision 2000/532/EC ("the List of Wastes Decision", as amended by Decisions 2001/118/EC, 2001/119/EC and 2001/573/EC) which adopted the List of Wastes.

    The List of Wastes, which replaced the "European Waste Catalogue", provides for the classification of wastes and determines, subject as follows, whether they are hazardous wastes.

    Regulation 6 of the Hazardous Waste (Wales) Regulations 2005 ("the Hazardous Waste Regulations") defines hazardous waste for the purpose of implementing the Hazardous Waste Directive in Wales.

    Paragraph (a) of that regulation provides that a waste is hazardous if it is listed as a hazardous waste in these Regulations.

    The definition is also used in other Directives (for instance, Directive 1999/31/EC on the landfill of waste and Directive 1996/61/EC concerning integrated pollution prevention and control).

    Consequential amendments to incorporate this list in these Regulations in the relevant implementing legislation is included in Schedule 11 to the Hazardous Waste Regulations.

    Regulation 3(1) of these Regulations provides that the List of Wastes has effect for purposes connected with the regulation of waste and hazardous waste, and in particular for:

    (a) determining whether a material or substance is a waste or a hazardous waste (sub-paragraph (1)(a); and

    (b) the classification and coding of wastes (sub-paragraph (1)(b)). Regulation 3(3) provides that the Introduction to the List of Wastes has effect for the purposes of interpreting the list, for determining whether a waste is hazardous and in identifying the waste.

    Regulation 3(4) gives effect, for the purposes of the regulation of waste and hazardous waste, to the six digit codes and two and four digit chapter headings in the List of Wastes.

    Regulation 3(5) provides that any requirement (or condition) in any legislation that the correct six digit code is to be given is only complied with (or satisfied) if the code in the List of Wastes for the waste concerned is given.

    Regulation 3(6) provides for the asterisk in the List of Wastes to indicate that the waste concerned is hazardous, and regulation 3(7) provides that, where waste is identified as hazardous by reference to dangerous substances, it is only hazardous where the limit value in regulation 4, or Annex III of the Hazardous Waste Directive, is satisfied. Regulation 4 sets out the limit values of concentration contained in Article 2 of the List of Wastes Decision.

    The List of Wastes refers to substances being hazardous if they contain dangerous substances.

    A substance is a dangerous substance if it is a dangerous substance pursuant to the Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 which implement the Dangerous Substances Directive (67/548/EEC) in Great Britain.

    See link to OPSI website.

    The Countryside and Rights of Way Act 2000 (Commencement No. 8) Order 2005

    This Order, made on 5 July 2005 in relation to England only, brings into force on 28th August 2005 section 2 of the Countryside and Rights of Way Act 2000 (which introduces a new right of access to access land) in so far as it relates to access land which is shown as open country or registered common land on a map in conclusive form and which lies within an area covered by the map in conclusive form issued by the Countryside Agency on 9th May 2005 (such map relates to the south west area of England).

    The Order also brings into force section 2 in so far as it relates to access land which is dedicated as access land under section 16 of the Countryside and Rights of Way Act 2000, which is not shown as open country or registered common land on a map in conclusive form, but which lies within an area covered by the map in conclusive form issued on 9th May 2005.

    The day appointed for section 2 in relation to such land is 28th August 2005 or the end of a period of six months beginning with the day on which the land is dedicated under section 16, whichever is the later.

    See link to OPSI website.

    The Genetically Modified Organisms (Transboundary Movement) (Wales) Regulations 2005

    These Regulations, which came into force on 15 July 2005, make provision as respects Wales only, for the administration and enforcement of Regulation EC No 1946/2003 on transboundary movements of genetically modified organisms, which is directly applicable.

    The Council Regulation implements at Community level the procedures laid down in the Cartagena Protocol on Biosafety to the Convention on Biological Diversity (the Protocol), which was signed by the Community and its Member States in 2000.

    In accordance with the Protocol, Community exporters are required to ensure that all requirements of the Advance Informed Agreement Procedure, as set out in the Protocol, are fulfilled.

    Regulation 3 designates the National Assembly for Wales as 'Competent Authority' for the purpose of the Council Regulation as regards Wales. Article 3(19) of the Council Regulation provides that competent authorities are responsible for performing the administrative functions required by the Protocol.

    Regulation 4 provides for the enforcement of the Regulations and the specified Community provisions (the provisions of Regulation (EC) No. 1946/2003 specified in the Schedule).

    Regulation 5 makes provision for the appointment of inspectors, and transitional arrangements for inspectors already appointed under the Environmental Protection Act 1990.

    Regulation 6 provides powers of entry, including the power to carry out tests and inspections, and to take samples.

    Regulation 7 enables inspectors to require the provision of information.

    Regulation 8 makes it an offence to contravene the specified Community provisions; to obstruct inspectors in the exercise of powers under these Regulations; and to give false information; and sets out a due diligence defence in respect of contravention of the specified Community provisions.

    Regulation 9 makes provision for offences committed due to the fault of another person.

    Regulation 10 makes provision for offences committed by corporate bodies.

    Regulations 11 and 12 prescribe penalties and specify time limits for bringing prosecutions.

    Regulation 13 makes provision for the service of notices.

    See link to OPSI website.

    The Genetically Modified Organisms (Deliberate Release) (Wales) (Amendment) Regulations 2005

    These Regulations, which came into force on 15 July 2005 and apply in Wales only amend the Genetically Modified Organisms (Deliberate Release) (Wales) Regulations 2002 (the 2002 Regulations).

    The amendments to the 2002 Regulations give effect in Wales to the consequential amendments made to Council Directive 2001/18/EC on the deliberate release into the environment of genetically modified organisms (the "Deliberate Release Directive") by Council Regulation (EC) No 1830/2003 on genetically modified food and feed (the "Food and Feed Regulation").

    These amending Regulations:

    (a) update references to relevant EC legislation (regulations 2(2)(a) and 2(3)(b))

    (b) provide that, where products have been approved in accordance with legislative provisions other than those contained in the 2002 Regulations, those products are only exempt from the requirements of sections 108(1)(a) and 111(1)(a) of the Environmental Protection Act 1990 if they have been marketed in accordance with any conditions or limitations imposed upon the consent that has been issued in relation to that product (regulation 2(3)(a))

    (c) provide for the marketing of genetically modified food and feed that has been authorised under the Food and Feed Regulation without the need for a marketing consent under section 111(1)(a) of the Environmental Protection Act 1990 ("the Act"), or an additional risk assessment under section 108(1)(a) of the Act (regulation 2(3)(c))

    (d) provide that, until 18 April 2007, the placing on the market of traces of a genetically modified organism or a combination of genetically modified organisms in products intended for direct use as food or feed or for processing is exempt from the requirements of section 111(1)(a) of the Act (to obtain a marketing consent) and of section 108(1)(a) of the Act (to carry out a risk assessment) provided the conditions specified in article 47 of the Food and Feed regulation are met (regulation 2(4)).

    (e) clarify that the National Assembly for Wales must not grant or refuse to consent to release genetically modified organisms before the end of the latest date on which the representations mentioned in regulations 21(c) and (f) of the 2002 Regulations can be made (regulation 2(5)).

    See link to OPSI website.

    The Genetically Modified Organisms (Traceability and Labelling) (Wales) Regulations 2005

    These Regulations, which came into force on 15 July 2005, make provision as respects Wales only for the execution and enforcement of Regulation (EC) No 1830/2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC, which is directly applicable.

    Regulation 3 provides for the enforcement of the Regulations and the specified Community provisions.

    Regulation 4 make provision for the appointment of inspectors.

    Regulation 5 provides powers of entry, including the power to carry out tests and inspections and to take samples.

    Regulation 6 enables inspectors to require the provision of information.

    Regulation 7 provides for the service by inspectors of notices dealing with incorrectly labelled products.

    Regulation 8 makes it an offence to contravene specified Community provisions; to obstruct inspectors in the exercise of powers under these Regulations; and to give false information; and sets out a due diligence defence in respect of the contravention of specified Community provisions.

    Regulation 9 makes provision for offences committed due to the fault of another person.

    Regulation 10 makes provision for offences committed by corporate bodies.

    Regulations 11 and 12 prescribe penalties and specify time limits for bringing prosecutions.

    Regulation 13 makes provision for the service of notices.

    See link to OPSI website.

    Scottish

    There is no new Scottish legislation for July 2005.

    Northern Irish

    The Financial Assistance for Environmental Purposes Order 2005

    This Order which came into force 29 July 2005, varies section 153(1) of the Environmental Protection Act 1990. It enables the Secretary of State, with the consent of the Treasury, to give financial assistance to, or for the purposes of, the Bio-energy Infrastructure Scheme.

    It extends to England, Wales and Northern Ireland only and NOT Scotland.

    The purpose of the Scheme is to provide grant aid to farmers, foresters and businesses to help the development of the supply chain required to harvest, store, process and supply biomass to energy end-users.

    Details of the Scheme are available on the Department for Environment, Food and Rural Affairs' website.

    See link to OPSI website for more information.

    The Planning (Hazardous Substances) (Amendment) Regulations (Northern Ireland) 2005

    These Regulations, which came into force on 31 July 2005, amend Schedule 4 of the Planning (Hazardous Substances) Regulations (Northern Ireland) 1993 to reflect the amended modifications of the enforcement provisions of the Planning (Northern Ireland) Order 1991 ("the 1991 Order") introduced by the Planning (Amendment) (Northern Ireland) Order 2003.

    Parts 1 and 2 of Schedule 4 list provisions of the 1991 Order and modifications of those provisions which are applied for the purposes of hazardous substances control. Part 3 sets out those provisions as modified.

    See link to OPSI website.

    The Producer Responsibility Obligations (Packaging Waste) (Amendment) Regulations (Northern Ireland) 2005

    These Regulations, which were made on 5 July but coming into force on 8 August 2005, amend the Producer Responsibility Obligations (Packaging Waste) Regulations 1999 (the 1999 Regulations), which impose on producers obligations to recover and recycle packaging waste, and related obligations, in order to attain the targets in Article 6(1) of Directive 94/62/EC.

    Regulation 2 amends regulation 21B of the 1999 Regulations to allow reprocessors and exporters to apply for accreditation at any time throughout the year.

    Any accreditation that is granted will, if it is applied for and granted before the end of the year in respect of the subsequent year, be valid from 1st January and in all other cases from the date of the decision, and shall subsist until 31st December in that year.

    Sub-paragraph (2)(a) removes the requirement to have applied for accreditation as a reprocessor or exporter by the 30th of September in the year preceding the year in which he is applying to be accredited.

    Sub-paragraph (2)(b) removes the requirement for the Department to have notified the applicant of its decision by the 30th November, although the requirement to notify in writing remains.

    Sub-paragraph (2)(c) is amended so that where accreditation is granted in the proceeding year to that to which the application relates, from the 1st January and in all other cases, from the date of the decision. Accreditations subsist until 31st December.

    See link to OPSI website.


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