Edie Environmental Legislation Summary (December 06)

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 developments this month we see changes to international rules on the storage of carbon under the seabed, a new EU directive on radioactive waste shipping come into force, while Scotland sees new regulations on home energy efficiency that will provide grants for insulation and energy efficiency works.

INTERNATIONAL LEGISLATION

Carbon Capture and Sequestration

The 1996 Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter 1972 (The London Convention) has been amended in order to regulate CO2 sequestration from capture processes. It was agreed between the contracting parties to the Convention that guidance on the manner in which sub-seabed geological sequestration of CO2 may be carried out will be developed as soon as possible, and it is hoped that it will be ready to be adopted at the next meeting of the parties in November 2007. The amendments will enter force on 10th February 2007.

'CO2 streams from CO2 capture processes' has been added to the list of substances that are exempt from the general prohibition on dumping wastes at sea. However, CO2 streams will only be considered for deposit in this manner if disposal is in a sub-seabed geological formation, the stream consists overwhelmingly of CO2, and no wastes or other matter are added for the purpose of disposing of them.

EUROPEAN LEGISLATION

Radioactive Waste

A new EU Directive on shipments of radioactive waste and spent nuclear fuel enters into force on 25 December 2006, updating and simplifying the existing regime. The Directive provides for a system whereby consent must be sought from the authorities in the country of destination or transit prior to the shipment being made, including where the country of destination or transit is a non-EU country. The existing regime is extended to cover shipments of spent nuclear fuel, including where such export is for reprocessing, and it has been made clear that the Directive will not affect the right of governments of Member States to export spent nuclear fuel for this purpose. Countries of destination or transit must acknowledge that they have received an application, and this acknowledgement acts as a trigger for the timeframe within which they must consent or refuse the application.

Member States must transpose the Directive by 25 December 2008, when the current 1992 Directive will be repealed.

The Directive is available at this link.

SCOTTISH LEGISLATION

Waste Management

The Waste Management Licensing Amendment (Scotland) Regulations 2006 enter into force on 1st December, re-enacting and amending provisions of the Waste Management Licensing Regulations 1994 relating to exemptions from waste management licensing.

Amendments are made to regulation 17A of the 1994 Regulations, in order that deemed authorisation, in terms of regulation 5 of Controlled Activities Regulations (CAR), of an exempt activity that is also a controlled activity does not apply to exempt activities which involve the construction, alteration or operation of impounding works in surface water; building, engineering or other works in, or in the vicinity of, inland surface water; nor those activities associated with such activities.

New definitions are inserted in the Regulations, for "co-incineration", "co-incineration plant", "incineration", "incineration plant", and "WEEE". Provision is also made for the registration requirements for new exempt activities.

There is a Schedule to the Regulations which outlines activities exempt from waste management licensing requirements. Innovations upon the 1994 Schedule 3 have resulted in a number of activities no longer being exempt from waste management licensing requirements. These include the operation of a scrap metal furnace under an authorisation under Part I of the Environmental Protection Act 1990; activities authorised under a licence under Articles 7 or 8 of the Diseases of Animals (Waste Food) Order 1973; storage of returned goods, activities involving scrap metal or waste motor vehicles authorised under Part I of the Control of Pollution Act 1974; and activities not requiring a disposal licence under the Control of Pollution Act 1974.

Certain other activities have been included on the list of exempt activities. They are: the recovery of fuel from waste vegetable oils for use in certain engines; repair and refurbishment of waste goods; the use of compacted or securely baled tyres in engineering works; the use of autoclaves to sterilise waste; the disposal of pesticide solution or washings into a lined biobed and the recovery and reuse of liquid and material from a biobed; the crushing of waste discharge lamps for the purposes of volume reduction prior to collection; and the repair, refurbishment and storage of waste electronic and electrical equipment.

Another Schedule to the Regulations outlines the plans and documents that are required for the registration of certain exempt activities, as well as describing how the benefit to agriculture or ecological improvement is to be assessed.

The Regulations can be accessed at this link.

Water

The Water Environment (Relevant Enactments) Order 2006 enters into force on the 14th December 2006. The Order requires the Scottish Ministers and SEPA to secure compliance with the Water Framework Directive 2000/60/EC when they exercise their functions under the Water Environment (Controlled Activities) (Scotland) Regulations 2005. It also requires them to act in accordance with the requirements of s2(4) of the Water Environment and Water Services (Scotland) Act 2003. This section requires them to have regard to the social and economic impact of the exercise of their functions, to promote sustainable flood management, to act in such a way as to contribute to the achievement of sustainable development, and to adopt an integrated approach by co-operating with one another.

The Order is available at this link.

The Water Environment etc (Controlled Activities) (Third Party Representations etc) (Scotland) Regulations 2006 enter into force on the 14th December 2006, amending the Water Environment (Controlled Activities) (Scotland) Regulations 2005. The amendments made require SEPA to notify third parties who have made representations in respect of applications of its proposed decision in this respect. Third parties are then able to notify their objection to the Scottish Ministers, who may direct SEPA to refer applications to them for determination.

The Regulations also make provision for a right of appeal to the Scottish Ministers against a partial refusal of a request for variation of an authorisation, and against the conditions imposed in such a variation. They also provide for cessation of an authorised activity to be noted in SEPA's Register.

The Regulations are available at this link.

Energy Efficiency

The Home Energy Efficiency Scheme (Scotland) Regulations 2006 enter into force on 1st January 2007, replacing the 1997 Regulations. The Regulations provide for grants to be made for insulation and energy efficiency works, as well as for works to install, repair or replace central heating systems. They also provide for the bodies that are to make such grants. The new Regulations extend the scheme to allow for the upgrading of partial or inefficient central heating systems to be available for those who are entitled to claim the guarantee element of pension credit. The programme in relation to insulation and energy efficiency measures is extended to families with disabled children.

The Regulations are available at this link.

ENGLISH AND WELSH LEGISLATION

Environmental Impact Assessment

The Water Resources (Environmental Impact Assessment) (England and Wales) (Amendment) Regulations 2006 enter into force on the 31st December 2006, amending the Water Resources (Environmental Impact Assessment) (England and Wales) Regulations 2003. There is an amendment to the effect that projects involving abstraction of water will only fall within the scope of the regulations where the abstraction requires a licence under the Water Resources Act 1991, meaning that the amount abstracted in any 24 hours in aggregate is in excess of 20m3. The Environment Agency is no longer obliged to publish notices publicising environmental statements and further information in the London Gazette, but must publish the information on its website instead. There is also a duty on the Environment Agency to make available to the public information that only becomes available to it after it has published the notice. When it publishes a notice on its decision in relation to an application, the Environment Agency must also publish information on the public participation process that has taken place and details of any right to challenge the decision along with the procedures for doing so.

The Regulations are available at this link.

The Environmental Impact Assessment (Forestry) (England and Wales) (Amendment) Regulations 2006 enter into force on the 31st December 2006, amending the Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999. The definition of "countryside bodies" has been amended to include any body that is designated by statute as having specific environmental responsibilities. The Forestry Commission is required to consider whether a different type of assessment would be appropriate when considering whether a particular project is exempt from EIA requirements, and must provide information obtained under any alternative assessment to the public.

The Regulations are available at this link.

WELSH LEGISLATION

Contaminated Land

The Radioactive Contaminated Land (Modification of Enactments) (Wales) Regulations 2006 enter into force towards the end of the year. The Environmental Protection Act 1990 provides that the National Assembly for Wales can apply Part 2A of the Act, relating to the contaminated land regime, in relation to harm or pollution of controlled waters in so far as such is attributable to radioactivity.

The Regulations provide for Part 2A to have effect subject to modifications for the purpose of identifying and remediating radioactive contaminated land. They also transpose Articles 48 and 53 of Directive 1996/29/Euratom, which lays down basic safety standards for the protection of the health of workers and the general public against the dangers of ionising radiation. The Regulations give effect to s78B of the Environmental Protection Act 1990, modified such that the local authority's duty of inspection is only applicable in relation to land that it has reasonable grounds for believing may be contaminated. They also require the enforcement authority, in exercising its discretion under s78E(4) of the 1990 Act, to weigh up the benefits of any intervention against the health detriment and costs arising from such intervention, and to maximise the benefits of such intervention. S78N of the Act is also modified in order to require the enforcing authority to carry out remediation itself in certain circumstances.

The Regulations are available at this link.

Contaminated Land

The Contaminated Land (Wales) Regulations 2006 enter into force on the 10th December 2006, replacing the Contaminated Land (Wales) Regulations 2001. The Regulations make further provisions for the identification and remediation of contaminated land. They provide for there to be an additional description of contaminated land that must be designated as a special site for reasons of being contaminated with radioactive substances. Provision is also made for compensation for those who grant rights of entry required for a person to comply with a remediation notice.

The Regulations are available at this link.

NORTHERN IRISH LEGISLATION

Agriculture Industry

The Nitrates Action Programme Regulations (Northern Ireland) 2006 enter into force on 1st January 2007, and apply to all farmers across Northern Ireland. They impose an obligation on the controller of a holding to prevent water pollution and to comply with the Regulations and associated guidance.

The Regulations provide for closed periods for the land application of chemical fertiliser to grassland and non-grassland crops, as well as for organic manure, excluding farmyard manure and dirty water. They also regulate the manner of application and spreading of nitrogen fertiliser, including dirty water, providing for minimum distances from waterways, the weight and volume of solid organic manure and slurry that can be applied, and the period of time that must be left between applications.

The Regulations are available at this link.

Water

The Water Abstraction and Impoundment (Licensing) Regulations (Northern Ireland) 2006 enter into force on 1st February 2007. They provide a regime for the regulation of abstraction of groundwater and water from waterways, as well as for the construction, alteration and operation of impounding works. These are defined as controlled activities, and authorisation under the Regulations is needed in order for these activities to be carried out. There are different levels of authorisation that may be required. The least onerous is activities falling into the category of permitted controlled activities, set out in Schedule 1, and authorised as long as carried on in accordance with the specified conditions. All other activities require a licence, except those which are exempt under regulation 3.

The Regulations provide that advertisement must take place where the controlled activity proposed is likely to have a significant adverse effect on the environment. Where a controlled activity is proposed in a site that is protected under the Conservation (Natural Habitats etc.) Regulations (Northern Ireland) 1995 there must be a consideration of the impact it will have.

The Regulations, in providing for offences, make provision for a court to be able to order that the convicted person carry out steps to mitigate or remedy the adverse impact on the water environment resulting from the commission of the offence instead of or in addition to imposing punishment upon the convicted person.

The Regulations are available at this href="http://www.opsi.gov.uk/sr/sr2006/20060482.htm" target="_new">link.

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