Edie Environmental Legislation Summary, August 2008

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. Among the changes this month are updates to European regulations on shipping waste, amendments to vehicle emissions legislation and developments in the way the European Emissions Trading Scheme is administered.

EUROPE

Waste

A new European Commission Regulation has set out instructions for completing notification and movement documents for those shipping waste.

Commission Regulation EC 669/2008 sets out the text of Annex IC to Regulation EC 1013/2006 on the shipment of waste.

The text of the Annex provides the instructions necessary for completing the notification and movement documents required to comply with the EC Regulation 1013/2006 on the shipment of waste.

Annex IC, as inserted by the new Regulation, states that the competent authorities of the country of dispatch are responsible for providing and issuing the notification and movement documents, which must be numbered in such a way which will allow a particular consignment of waste to be traced.

The notification document is intended to provide the competent authorities with the information they need to assess the acceptability of proposed waste shipments, prior to consenting to any proposed shipment.

The movement document must accompany a consignment of waste at all times from the instant it leaves the waste producer to its arrival at the site of disposal or recovery in another country.

Each person taking charge of a shipment is required to sign the movement document upon delivery or receipt of the waste.

The regulation states that a planned shipment, subject to the procedure of prior written notification and consent, can only take place only after the notification and movement documents have been completed. Annex IC therefore sets out the specific instructions for completing the notification and movement documents.

The type of information required includes: the registration number (where applicable), name, address and contact details of the person responsible for the shipment; the identification number of the shipment; the type of packaging; details on the producer of the waste; relevant information pertaining to the carrier of the waste; the destination of the shipment and whether it is a disposal or recovery facility.

The documents must also detail information on the waste itself including its common or commercial name, weight, physical characteristics and the relevant waste code identifying the waste.

Commission Regulation EC 669/2008 is available via the link.

Air Pollution

A new Directive 2008/74/EC, published on the 18 July 2008, amends the Euro 5 and Euro 6 EU vehicle emission standards legislation, as set out in Directive 2005/55/EC and its implementing Directive 2005/78/EC, relating to the type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles and access to vehicle repair and maintenance information.

It was necessary to amend Directive 2005/55/EC and Directive 2005/78/EC by transferring certain technical requirements, following the change in scope of Directive 2005/55/EC, as a result of the introduction of European Regulation 715/2007 on the type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information. Directive 2008/74/EC therefore introduces new requirements into the existing heavy-duty emissions legislation, including new test procedures to enable type approval of heavy-duty engines and vehicles with petrol engines.

New measures, for the implementation of Directive 2005/55/EC, are laid down in the Annexes to Directive 2008/74/EC, and apply for the purposes of the type approval of vehicles with compression-ignition engines and vehicles with spark ignition engines and for the type approval of such engines.

The Directive also introduces requirements for measuring the smoke opacity of diesel engines into Directive 2005/78/EC.

This is due to the repeal of Directive 72/306/EEC on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in vehicles as provided by Regulation (EC) No 715/2007.

Member States are required to apply the provisions of Directive 2008/74/EC from 3 January 2009.
The text of Directive 2008/74/EC is available via the following link.

UK

Emissions Allowances

New Regulations which make provision for the auctioning of allocations of Community tradeable emissions allowances came into force on 11th July. Up until now most allowances have been allocated free of charge.

However, the Community Emissions Trading Scheme (Allocation of Allowances for Payment) Regulations 2008 now provides for the allocation for payment of European Union Emissions Trading Scheme (EU ETS) allowances.

The EU ETS was introduced in order to address the threat of climate change by putting in place a system aimed at reducing the emission of carbon dioxide and other greenhouse gases. The EU ETS commenced on 1 January 2005. The first phase ran from 2005-2007 and the second phase runs from 2008 - 2012.

In phase I almost all the allowances were distributed free of charge. In Phase II, most allowances will still be distributed to installations for free but Member States may auction up to 10% of total allowances. The UK has opted to auction 7%, plus any surplus from the new entrants reserve.

The new Regulations therefore provide the legislative framework for auctioning in phase II of the EU-ETS, enabling the Treasury to impose charges by providing for Community tradeable emissions allowances to be allocated in return for payment.

Under the Regulations the Treasury may conduct the auctions themselves, or appoint another person to conduct them.

Provision is made for the payment for and transfer of emissions allowances, with the consequences of late or non-payment, transfer of excess allowances and breaches of the Regulations or of the Treasury's Scheme also being set out.

The Regulations also provide for the appointment of an independent observer to oversee the auctioning of allocations, and affords opportunity to review any decision of the Treasury, or of a person conducting an auction or other allocation, under the Regulations.

The text of the new Regulations together with an explanatory memorandum is available via the following links:
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081825_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20081825_en.pdf

On 12th August 2008 the Community Emissions Trading Scheme (Allocation of Allowances for Payment) (Amendment) Regulations 2008 amended the Community Emissions Trading Scheme (Allocation of Allowances for Payment) Regulations 2008 in order to make the wrongful disclosure of confidential information a criminal offence.

The creation of a criminal offence is intended to deter those privy to confidential bid information from disclosing it unless they are permitted to do so. It is suggested that, such information, if wrongfully released could have negative impacts on carbon price, thus reducing the environmental effectiveness and credibility of the EU ETS, as well as reducing revenues from the auctioning of allowances.

The new Regulations also make a minor amendment in order to permit allowances to be allocated to an account holder after an auction as a consequence of a review of a decision made by the person conducting an auction.

The text of the new Regulations together with an explanatory memorandum is available via the following links:
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081939_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20081939_en.pdf

Energy

In order to enhance the UK's contribution to combating climate change the Climate Change and Sustainable Energy Act 2006 obliges the Secretary of State to set national microgeneration targets.

The Climate Change and Sustainable Energy Act 2006 Act defines microgeneration as the use, for the generation of electricity or the production of heat, of any plant, which relies wholly or mainly on biofuels, fuel cells, photovoltaics, water (including waves and tides), wind, solar power; geothermal sources, and, combined heat and power systems, the capacity of which, with respect to electricity generation and heat production, doesn't exceed 50 kilowatts and 45 kilowatts thermal respectively.

The Act provides that the list of energy sources and technologies, which power microgeneration plant, may be amended to include other sources of energy or technologies which would cut emissions of greenhouse gases.

Accordingly, the Climate Change and Sustainable Energy Act 2006 (Dests of Energy and Technologies) Order 2008, which comes into force on 23rd July 2008, amends the list of energy sources and technologies, set out in the Climate Change and Sustainable Energy Act 2006, by adding 'heat from air, water or the ground'.

It is envisaged that this will result in the inclusion of plant which wholly or mainly rely on 'heat form air, water or the ground' including air source heat pumps, ground source heat pumps and water source heat pumps.

Whilst it was intended to include ground source heat pumps in the definition of 'microgeneration' at the time of the passing of the Climate Change and Sustainable Energy Act 2006, these were not widely established in the UK at that time, therefore were missed out.

The Order therefore clarifies matters, by amending the definition of microgeneration in order to ensure that it also applies to the source of energy for three types of heat pump, namely the heat from air, water, or the ground.

The text of the new Regulations together with an explanatory memorandum is available via the following links:

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081767_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20081767_en.pdf

Taxation

As a result of the Capital Allowances (Energy-saving Plant and Machinery) (Amendment) Order 2008, which amends the Capital Allowances (Energy-saving Plant and Machinery) Order 2001, new definitions of "the Energy Technology Criteria List" and "the Energy Technology Product List", were introduced for the purposes of the enhanced capital allowances (ECA) scheme.

The revised lists of qualifying technologies will have statutory effect for the purposes of obtaining 100 % first year capital allowances for expenditure on energy saving plant and machinery technologies under the enhanced capital allowances scheme for energy-saving technologies.

The text of the Order and the Energy Technology Criteria and Energy Technology Product Lists may be accessed via the following links:-
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081916_en.pdf
http://www.defra.gov.uk/environment/climatechange/uk/business/pdf/ETCL2008.pdf

http://www.defra.gov.uk/environment/climatechange/uk/business/pdf/ETPL2008.pdf


Similar amendments were also made to the Capital Allowances (Environmentally Beneficial Plant and Machinery) Order 2003 as the Capital Allowances (Environmentally Beneficial Plant and Machinery) (Amendment) Order 2008, which took effect on 11th August 2008, introduces new definitions of "the Water Technology Criteria List" and "the Water Technology Product List".

As with the provisions on energy saving plant, the revised lists of qualifying technologies will have statutory effect for the purposes of obtaining 100 % first year capital allowances for expenditure on environmentally beneficial plant and machinery technologies.

The Capital Allowances (Environmentally Beneficial Plant and Machinery) (Amendment) Order 2008 also makes some changes to some of the descriptions of environmentally beneficial plant and machinery technology classes to reflect the terminology in the Water Technology Criteria List and the Water Technology Product List.

In respect to water reuse systems and the two sub-technologies, efficient membrane filtration systems for recovery and reuse and wastewater recovery and reuse systems, the Order provides that as the design of these systems will be tailored to individual business requirements, Defra will issue certificates of environmental benefit.

The Order provides that a first year allowance will not be available in the case of expenditure on wastewater recovery and reuse systems unless an appropriate certificate of environmental benefit is in force.

The text of the Order, and the Water Technology Criteria and Water Technology Product Lists may be accessed via the following links:-

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081917_en.pdf
http://www.defra.gov.uk/environment/climatechange/uk/business/pdf/WTCL2008.pdf
http://www.defra.gov.uk/environment/climatechange/uk/business/pdf/WTPL2008.pdf

New Regulations, which enter into force on 13th August 2008, amend the Stamp Duty Land Tax (Zero-Carbon Home Relief) Regulations 2007, which provide relief from stamp duty land tax (SDLT) on the first acquisition of a dwelling which is a zero-carbon home in accordance with the Finance Act 2003.

The Stamp Duty Land Tax (Zero-Carbon Homes Relief) (Amendment) Regulations 2008 make provisions for an accredited assessor to charge a reasonable fee for assessing a dwelling and producing a certificate for the purposes of the Stamp Duty Land Tax (Zero-Carbon Homes Relief) Regulations 2007.

The new Regulations also enable the retrospective provision of certificates for properties affected by the extension of SDLT relief, on the first acquisition of new zero-carbon homes, to include flats which took effect from 1 October 2007.
The text of the new Regulations is available via the link below:

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081932_en.pdf

The Finance Act 2008 has published new environmental tax and duty rates for next financial year.

Rates of vehicle excise duty will increase, although a lower rate of vehicle excise duty has been introduced for lower-emission vans.

The standard rate of landfill tax will rise from £32 per tonne to £40 per tonne.

Climate change levy rates for electricity, gas, any petroleum gas and other taxable commodity will also increase. Also, in terms of the climate change levy, coal mine methane will no longer be regarded as renewable source.

http://www.opsi.gov.uk/acts/acts2008/pdf/ukpga_20080009_en.pdf

Great Britain

Waste

The Producer Responsibility Obligations (Packaging Waste) (Amendment No. 2) Regulations 2008 Regulations came into force on the 19th July, amending the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 by revising the requirements for exporter accreditation.

The amended Regulations give the Environment Agencies greater discretion in respect of the evidence required to show that exported packaging waste will be reprocessed under conditions 'broadly equivalent' to the standards which exist within the European Community.

Under the 2007 Regulations producers are obliged to recover and recycle packaging waste in order to meet recovery and recycling targets set out in the European Directive 94/62/EC on packaging waste. However, packaging waste exported outwith the Community can only count towards these targets if there is sound evidence that the recovery and/or recycling operation took place under conditions broadly equivalent to those required within the Community.

A producer choosing to export packaging waste must issue a Packaging Waste Export Recovery Note (PERN), as evidence of export for reprocessing outwith the UK. However, before an exporter can issue a PERN, he must be accredited, by one of the Environment Agencies, in relation to the reprocessing sites identified. An application for accreditation can only be granted if the Agencies are satisfied that the reprocessing sites operate under the conditions of broad equivalence.

As exporters of packaging waste are finding it increasingly difficult to obtain evidence of broad equivalence from overseas reprocessors, the revised Regulations aim to widen the discretion held by the Environment Agencies when accrediting an exporter, allowing for consideration of alternative 'sound evidence' of broad equivalence.

It is envisaged that the amendments will cover cases where either specific evidence is not available or where the identity of the reprocessing site is not known at the time of accreditation.

However, site-specific accreditation will remain the default position, and the new option will still require to meet a number of environmental criteria, which will require consideration to be given to whether proper sorting is undertaken, whether a quality system for reprocessing exists, and the current market conditions and requires the authorities to be satisfied that there are no environmental draw-backs to reprocessing the material.

The new Regulations and an explanatory memorandum are available via the links below:-
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081941_en.pdf

http://www.opsi.gov.uk/si/si2008/em/uksiem_20081941_en.pdf

ENGLAND

Planning

The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 implement, in England and Wales, the European Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended (the EIA Directive).

On September 1st the Town and Country Planning (Environmental Impact Assessment) (Amendment) (England) Regulations 2008 will amend the 1999 Regulations so that they apply to applications for subsequent approval of matters under conditions attached to planning permissions in England.

As a result of the decision in Case C-508/03, Commission v UK, where it was held that the UK Government had failed to fully implement the provisions of the EIA Directive, since the 1999 Regulations only required an assessment of environmental impacts to be made at the stage of outline planning permission and not at the later stage of reserved matters approval, changes were required to be made to the provisions of UK law in this respect.

The 2008 Regulations therefore aim to address the gaps identified by the ECJ and the House of Lords, by amending the 1999 Regulations in respect of applications for approval of reserved matters, applications for approval of conditions attached to the grant of planning permissions and applications for approval of conditions attached to the grant of minerals permissions.

The new Regulations also amend the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997 so as to provide for planning inspectors to determine appeals against enforcement notices in cases where an environmental statement is required.

The new Regulations and an explanatory memorandum are available via the links below:
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082093_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20082093_en.pdf"

Waste

The London Waste and Recycling Board Order 2008, which came into operation on July 24th, makes provision as to the membership, constitution and procedures of the London Waste and Recycling Board established under the Greater London Authority Act 1999.

The purpose of the London Waste and Recycling Board is to promote and facilitate an increase in environmentally sustainable waste management across London. In order to achieve its objectives the Board will manage the London Waste and Recycling Fund, provide advice to the Boroughs and the Greater London Authority, and act in accordance with the Mayor's municipal waste management strategy.

Among other things, the Order sets out the number of members, how they will be appointed, their tenure and other matters relating to the Board procedures. The Order also sets out the requirements for reporting, public access to meetings and documentation, as well as the keeping of accounts and auditing.

The text of this Order and an explanatory memorandum may be accessed via the following links:-
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082038_en.pdf

http://www.opsi.gov.uk/si/si2008/em/uksiem_20082038_en.pdf


SCOTLAND

Statutory Nuisance

The Public Health etc. (Scotland) Act 2008 has introduced amendments to the Environmental Protection Act 1990 in order that local authorities may offer a person who commits a statutory nuisance the opportunity of discharging any liability to conviction for that offence by payment of a fixed penalty.

The Act provides that in the case of a nuisance relating to industrial, trade or business premises the amount of the fixed penalty is £400 and in any other case will be £150.

The Act also creates new statutory nuisances: from insects, artificial light and water covering land; and, empowers the Scottish Ministers to create further provisions regarding statutory nuisances through regulation.

The text of the new Act may be accessed for the following link:-
http://www.opsi.gov.uk/legislation/scotland/acts2008/pdf/asp_20080005_en.pdf

NORTHERN IRELAND

Energy

Under Article 5 of Directive 2001/77/EC, on the promotion of electricity produced from renewable energy sources in the internal electricity market, Member States must ensure that the origin of electricity produced from renewable energy sources can be guaranteed and issue guarantees of its origin.

The Directive also provides that Member States may designate competent bodies to supervise the issue of such guarantees of origin. In Northern Ireland, Article 5 is implemented by the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Dests) Regulations (Northern Ireland) 2003.

New Regulations, which come into force on 1st September 2008, will empower the Gas and Electricity Markets Authority to enter into arrangements on behalf of the Northern Ireland Authority for Utility Regulation with respect to their functions under the Electricity (Guarantees of Origin of Electricity Produced from Renewable Energy Dests) Regulations (Northern Ireland) 2003.

The text of these new Regulations, the Origin of Renewables Electricity (Power of Gas and Electricity Markets Authority to act for Northern Ireland Authority for Utility Regulation) Regulations 2008, together with an explanatory memorandum, is available via the links below:-

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081888_en.pdf

http://www.opsi.gov.uk/si/si2008/em/uksiem_20081888_en.pdf


The Guarantees of Origin of Electricity Produced from High-efficiency Cogeneration Regulations (Northern Ireland) 2008 will come into force on 22nd September 2008 transposing the European Cogeneration Directive 2004/8/EC, on the promotion of cogeneration based on a useful heat demand in the internal energy market, in Northern Ireland.

The Cogeneration Directive seeks to promote cogeneration by encouraging Member States to remove barriers to cogeneration and to support cogeneration schemes. Cogeneration of electricity is commonly referred to as electricity produced from combined heat and power (CHP).

The new Regulations implement Article 5 of the Cogeneration Directive providing for the issue of guarantees of origin of electricity from high-efficiency cogeneration. The Regulations designated the Department of Enterprise, Trade and Investment as the competent authority and issuer of guarantees of origin and set out the procedure that an electricity producer must follow, and the information that he must produce, in order to obtain a guarantee of origin.

The Regulations also set out the procedure for issuing a guarantee, its content, when it may be replaced, when it may be transferred and how it may be revoked.
The text of these new Regulations is available via the link below:-
http://www.opsi.gov.uk/sr/sr2008/pdf/nisr_20080287_en.pdf

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