Edie Environmental Legislation Summary (December 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. Among the developments this month we see a raft of new directives from the EU, the latest developments on REACH, tighter controls on batteries and in the UK new safety laws for offshore installations and more on restricting toxic chemicals in paints.

EUROPEAN LEGISLATION

New European Directives

A number of new Directives have been recently published in the Official Journal of the European Commission. These include Commission Directive 2005/78/EC of 14 November 2005, which relates to measures to be taken against the emission of gaseous and particulate pollutants from compression-ignition engines for use in vehicles and from positive ignition engines fuelled with natural gas or liquefied petroleum gas, Directive 2005/59/EC of 26 October 2005, which amends the Dangerous Substances Directive (Directive 76/769/EEC), and Directive 2005/64/EEC of 26 October 2005, on the type-approval of motor vehicles with regard to their reusability, recyclability and recoverability.

See links to the Europa website for each Directive:-
vehicle emissions
dangerous substances restrictions
vehicle reusability, recyclability and recoverability

Ministers vote on EU REACH chemicals policy

The MEPs in the European Parliament's environment committee reached their first reading position in one of its most important voting sessions ever on 17 November 2005.

The committee had to choose from over one thousand amendments tabled to the EU's REACH chemical policy reform before delivering its opinion to the plenary. The committee eventually approved the far-reaching legislation which will lead to the safety testing of thousands of chemicals used in everyday products.

The regulation still has to be approved by national governments before it can become law, and may yet return to the parliament for another vote next year.
See press link to the European Parliament's website here.

Expanded EU pollution inventory

Moves to greatly enlarge the EU's industrial pollution inventory is ready for final approval this month following a first reading agreement reached between the council of ministers and European parliament this summer and a parliamentary first reading position in July that both sides backed. Reporting under the new system will likely commence from 2009 onwards.

The so-called European pollutant release and transfer register (PRTR) Regulation will bring EU practice into line with a UN protocol agreed in 2003. It will progress the EU's existing polluting emissions register (Eper) which was launched last year.

A decision accompanying the regulation will then go on to ratify the UN protocol at EU level.

No major alterations have been introduced to the Regulation. There have however been a couple of moves to strengthen the Regulation in that (a) industry have to specify any releases resulting from accidents and (b) the threshold for reporting releases of dioxins and furans has been reduced by a factor of ten.
See link to draft Regulation here.

EU battery vote

The European parliament's environment committee voted on 22 November 2005 to strengthen controls on batteries. The committee's position now goes to the parliament's plenary for its second reading on revised batteries legislation.

The committee called for the law to require at least 40% of waste batteries to be collected by six years after entry into force, rising to a 60% collection rate by ten years.

In their first reading position, EU governments concurred on targets of 25% by six and 45% by ten years.

For batteries other than lead-acid and cadmium types, the committee voted to increase a recycling target from 50% as agreed by ministers to 55%. It agreed council targets for recycling of lead-acid and cadmium batteries.

However it voted to make the targets stricter by removing a provision that lead and cadmium in these types of batteries should be recycled as far as possible while avoiding excessive expense.

The committee voted against a council of ministers' decision to place the legislation on a dual environment-internal market legal base - ministers preferred a sole environment base. The full parliament still has to debate the legislation.

UK LEGISLATION

UK Wide

The Offshore Installations (Safety Case) Regulations 2005

These Regulations, which were made on 9 November 2005 and which will be brought into force on 6 April 2006, replace the Offshore Installations (Safety Case) Regulations 1992 ("the 1992 Regulations") to provide for the preparation of safety cases for offshore installations and for the notification of specified activities to the Health and Safety Executive ("the Executive").

A safety case is defined in the Regulations as a document containing specified information relating to the management of health and safety and the control of major accident hazards and containing the particulars specified in the Schedule referred to in the provision of the Regulations under which it is prepared (regulations 2(2) and 12).

The Regulations--
(a) require a licensee to ensure that any operator he appoints is capable of carrying out his functions and discharging his duties satisfactorily (regulation 5);

(b) require an operator to prepare and send to the Executive a design notification for a production installation which is to be established (regulation 6(1)) and a relocation notification for a production installation that is to be moved to a new location (regulation 6(2));

(c) prohibit the operation of a production installation unless a safety case has been sent to and accepted by the Executive (regulation 7 and Schedule 2);

(d) prohibit the movement of a non-production installation in relevant waters (as defined in regulation 2(1)) with a view to its being operated there unless a safety case has been sent to and accepted by the Executive (regulation 8 and Schedule 3);

(e) require a design notification to be sent to the Executive in respect of the conversion of a non-production installation to a production installation (regulation 9(1)) and prohibit the operation of a converted installation unless a safety case has been sent to and accepted by the Executive (regulation 9(5));

(f) prohibit the engagement of an installation in a combined operation with another unless a notification has been sent to the Executive (regulation 10 and Schedule 4);

(g) prohibit the dismantling of a fixed installation unless a revised safety case has been sent to and accepted by the Executive (regulation 11 and Schedule 5);

(h) require a safety case to be reviewed when directed by the Executive and at intervals of 5 years (regulation 13);

(i) require a safety case to be revised when appropriate and when directed by the Executive (regulation 14);

(j) grant to the Executive powers in respect of safety cases and related documents (regulation 15);

(k) require any procedures or arrangements in safety cases to be followed and provide for specified defences for contravention of the requirement (regulation 16);

(l) prohibit the commencement of a well operation unless a notification has been sent to the Executive (regulation 17);

(m) impose requirements with respect to the making and keeping of documents (regulation 18);

(n) impose requirements with respect to the creation, revision and continuing effect of a verification scheme in respect of an installation and provide a defence for contravention of the requirements (regulations 19 to 22);

(o) provide for the granting of exemptions from the Regulations by the Executive (regulation 23);

(p) provide for an appeal to the Secretary of State against certain decisions of the Executive (regulation 24);

(q) contain transitional provisions in respect of activities in existence or commenced within a specified time of the coming into force of the Regulations (regulation 27).

See link to OPSI website here.

The Renewable Energy Zone (Designation of Area) (Scottish Ministers) Order 2005

This Order, made on 9 November and coming into force on 9 December 2005, describes the area of that part of the UK Renewable Energy Zone, (designated by an Order in Council, made on the 13th October 2004, as an area of the sea beyond the Territorial Sea which may be exploited for energy production) in which the Scottish Ministers are to have functions. The Order of itself does not devolve any functions.

Points numbers 78 to 98 in the Schedule to this Order coincide with the England/Scotland fishing boundary off the east coast of Great Britain, from the median line to the outer boundary of the territorial sea, as set out in the Scottish Adjacent Waters Boundaries Order 1999. A map of the part of the Renewable Energy Zone where the Scottish Ministers are to have functions is available here.

Or see link to OPSI website here.

The Offshore Installations (Safety Zones) (No. 3) Order 2005

This Order, made on 23 November and coming into force on 14 December 2005, establishes (under section 22 of the Petroleum Act 1987) safety zones having a radius of 500 metres from the point around each installation specified in the Schedule and stationed in waters to which section 21(7) of the Act applies (these include territorial waters and waters in areas designated under section 1(7) of the Continental Shelf Act 1964) (article 2).

Vessels, which for this purpose include hovercraft, submersible apparatus and installations in transit, are prohibited from entering or remaining in a safety zone except with the consent of the Health and Safety Executive or in accordance with regulations made under section 23(1) of the Act (currently the Offshore Installations (Safety Zones) Regulations).

See link to OPSI website here.

The Volatile Organic Compounds in Paints, Varnishes and Vehicle Refinishing Products Regulations 2005

The Volatile Organic Compounds in Paints, Varnishes and Vehicle Refinishing Products Regulations 2005, came into force on 1 November 2005 seek to implement Directive 2004/42/EC (the VOCs in Paints Directive) on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain paints, varnishes and vehicle refinishing products, and amending the Solvents Emissions Directive (Directive 1999/13/EC).

Amongst the provisions of the new Regulations, the marketing of paints and varnishes and vehicle refinishing products, listed in Schedule 1 is limited, unless they have a VOC content which does not exceed the limit values set out in Schedule 2 by the dates set out in that Schedule.

Products in Schedule 1 are also required to carry a label concerning the maximum VOC content of that product in a ready to use condition.

Regulation 9, which applies to England and Wales only, also amends Section 7 of Part 1 of Schedule 1 to the Pollution Prevention and Control (England and Wales) Regulations 2000, in order to give effect to the implementation of the Solvent Emissions Directive by the Solvent Emissions (England and Wales) Regulations 2004. Regulation 9 deletes from the scope of the 2000 Regulations one category of "vehicle refinishing" which has been removed by Article 13 of Directive 2004/42/EC.

See link to OPSI website here.

The Energy Act 2004 (Commencement No.6) Order 2005

The Energy Act 2004 (Commencement No.6) Order 2005 was made on 17 October 2005. The Order brings into force certain provisions of the Energy Act 2004.

Amongst these are section 177 of the Energy Act 2004, which came into force on 1 November 2005, giving the Secretary of State powers to amend licence conditions enabling the Gas and Electricity Markets Authority to comply with directions issued by the Competition Commission in connection with the funding of licence modification references.

Section 179 will also be brought into force, though at the later date of 1 April 2006. This section amends the definition of "supply" in section 4 of the Electricity Act 1989 in order to include supply to premises connected directly to the transmission system. The Order also postpones until April 1, 2010 the application of section 179 to certain supplies of electricity which make good any unplanned shortfall in the availability of electricity from a generating station owned or operated by the recipient.

See link to OPSI website here.

English & Welsh

The Environmental Protection Act 1990 (Amendment of Section 57) (England and Wales) Regulations 2005

These Regulations, laid before Parliament on the 1st and which came into force on 22nd November 2005, are made under section 2(2) of the European Communities Act 1972.

They amend section 57 of the Environmental Protection Act 1990 (the EPA 1990) to extend the scope of the direction making powers under that section from waste management licences to permits under the Pollution Prevention and Control Regulations 2000 which authorise the disposal or recovery of waste.

The amendment to section 57 constitutes a further measure for the purposes of transposing the requirements of Article 4 of the Waste Framework Directive 75/442/EEC.

Section 57 of the EPA 1990 confers a power on the Secretary of State to direct the holder of any waste management licence to accept and keep, or accept and treat or dispose of, controlled waste at specified places on specified terms.

Regulation 2(2) extends the powers of direction under section 57(1) to permits under the Pollution Prevention and Control Regulations, and regulation 2(3) replaces the references to "controlled waste" by references to "waste".

Regulations 2(4) and (5) insert definitions of "waste permit" and "waste" and define "disposal or recovery" for the purposes of that definition of waste.

Waste is defined to include everything defined as waste in article 1 of the Waste Framework Directive, and also certain agricultural waste which is excluded from the scope of that Directive by its article 2(1)(b)(iii).

In relation to that waste these Regulations constitute a further measure for ensuring compliance with the requirements relating to waste contained in Regulation 1774/2002 laying down health rules concerning animal by-products not intended for human consumption.

See link to OPSI website here.

Scottish

The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005

The Water Services etc. (Scotland) Act 2005 (Consequential Provisions and Modifications) Order 2005 came into force on 11 November 2005.

The Order makes provisions and modifications in consequence of the Water Services etc. (Scotland) Act 2005.

Amongst the modifications made are modifications to enactments made as a result of the creation of the Water Industry Commission in the 2005 Act, and to reflect the functions of the Commission in considering a reference under this Order.

The Order provides for a right of reference for Scottish Water, enabling it to require the Water Industry Commission for Scotland to refer its determination of Scottish Water's charges under the Water Industry (Scotland) Act 2002 to the Competition Commission.

A right of reference to the Competition Commission is also provided for water and sewerage services providers against the conditions of their licences granted under the 2005 Act, or against any modification of those conditions.

The Order also provides for the Water Industry Commission to refer licence conditions, or the modification of such conditions, or a determination or a revised determination of Scottish Water's charges to the Competition Commission, and provides for the terms in which a reference is to be framed.

See link to OPSI website here.

The Protection of Water Against Agricultural Nitrate Pollution (Scotland) Amendment Regulations 2005
These Regulations, made on 23 November and coming into force on 20 December 2005, amend the Protection of Water Against Agricultural Nitrate Pollution (Scotland) Regulations 1996 ("the 1996 Regulations").

The 1996 Regulations gave effect to Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources.

These Regulations update the implementation of Article 5.1 (establishment of action programmes in respect of designated nitrate vulnerable zones) of the Directive.

Regulation 2 substitutes the definition of "code of good agricultural practice" in the 1996 Regulations by reference to the Code of Good Practice for the Prevention of Environmental Pollution from Agricultural Activity, issued by the Scottish Ministers on 11th March 2005.

See link to OPSI website here.

Northern Irish

The Hazardous Waste (Amendment) Regulations (Northern Ireland) 2005

These Regulations, which were made and came into force on 21 October 2005, amend Regulation 43 (offences) and Regulation 45 (penalties) to refer to the appropriate Regulation, Part and maximum fine in the Hazardous Waste Regulations (Northern Ireland) 2005.

See link to OPSI website here.

The List of Waste (Amendment) Regulations (Northern Ireland) 2005

The List of Wastes (Amendment) Regulations (Northern Ireland) 2005 were made on the 21 October 2005 and came into operation on the 14 November 2005.

The Regulations correct two minor errors in the List of Wastes Regulations (Northern Ireland) 2005 - the reference to Council Regulation (EC) No.807/2003 should be substituted by Commission Directive 2004/73/EC, and within regulation 4(b) of the 2005 Regulations (properties and characteristics of dangerous substances classified as hazardous waste) "R68 at a concentration = 1%" should be substituted for "R40 at a concentration = 1%.

See link to OPSI website here.

The Pollution Prevention and Control (Amendment) (No. 3) Regulations (Northern Ireland) 2005

The Pollution Prevention and Control (Amendment) (No. 3) Regulations (Northern Ireland) 2005 came into operation on the 1 November 2005 and will amend the Pollution Prevention and Control Regulations (Northern Ireland) 2003 in order to take account of The VOCs in Paints, Varnishes and Vehicle Refinishing Products Regulations 2005 set out above.

The Regulations delete from the scope of the 2003 Regulations one category of "vehicle refinishing" which has been removed by Article 13 of the VOCs in Paints Directive.

See link to OPSI website here.

The Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations (Northern Ireland) 2005

Meanwhile, the Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations (Northern Ireland) 2005 have been made in Northern Ireland and came into operation on 30 November 2005.

The Regulations amend the Chemicals (Hazard Information and Packaging for Supply) Regulations (Northern Ireland) 2002 and introduce a new approved supply list.

This ensures implementation in full of Directive 2004/73/EC adapting to technical progress for the 29th time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances.

A number of consequential amendments are also made within the new Regulations and drafting errors corrected.

See link to OPSI website here.


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