Edie Environmental Legislation Summary (January 2007)

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 laws and policies. The publication of the REACH chemicals regulation in the EU's official journal tops this month's legislative highlights, with the commission setting out the next steps for the regulation. REACH is to apply directly to European states from 1st June 2008 and will replace over 40 chemical laws, making it the biggest piece of legislation ever produced by the Union.

Groundwater is also on Europe's legislative agenda this month, with a new directive obliging states to set safety limits on some water pollutants by December 2008.

The UK has seen new rules on the disposal of waste electronics when the WEEE directive came into force on January 2nd, while sulphur-free diesel made from biomass lost the partial tax relief it has so far enjoyed on January 12th.

Meanwhile in Northern Ireland a new water and sewerage order is to transfer responsibility for the delivery of water and sewerage services onto a government-owned company on 1st April 2007.

EUROPEAN LEGISLATION

REACH

The EU REACH Regulation on chemicals policy has been published in the official journal and will enter into force on 1st June 2007. The Regulation will have direct effect in Member States, so does not need to be transposed, and will replace over forty existing EU chemicals policy laws. The majority of the Regulation's provisions will apply from 1st June 2008, and by this date the European Commission must also adopt a regulation setting the fees to be payable by firms under different parts of REACH. By 1st December 2008 the Commission must review criteria for identifying persistent and bioaccumulative substances, and must also set criteria that will enable some firms to omit certain testing requirements. This date also represents the end of the six month window in which firms can pre-register substances. By 1st January 2009 the European chemicals agency, which is yet to be created, must publish the list of pre-registered substances, and by 1st June 2009 it must make it's first recommendations on priority substances that are to be included under the authorisation requirement. 1st December 2010 is the first substance registration deadline. Manufacturers and importers of category 1 and 2 carcinogens, mutagens and reprotoxins that are produced in volumes in excess of 1 tonne; substances classed as very toxic to aquatic organisms that are produced in volumes in excess of 100 tonnes; and all other substances produced in volumes above 1000 tonnes must register by this deadline. If they fail to do so they will be excluded from the EU chemicals market.

The authorisation procedure has been one of the most contentious elements of this long-awaited piece of legislation. In particular, the substitution principle has generated much debate, and has been included in some form in the published version of the Regulation. All firms using substances of 'very high concern', amounting to 1500 or so chemicals, must draft substitution plans for the use of safer alternative substances. Specific authorisation will have to be sought in order for firms to use or to continue to use such substances, although in practice it is intended that this requirement will be phased in on an annual basis. The substitution plans, along with substance evaluation plans, will become the basis for regulators to decide how long the dangerous chemical should continue to be authorised for use. No maximum duration is detailed in the Regulation, and decisions on this will be made on a case by case basis. Where no safer alternatives have been identified the firm using the dangerous chemicals must draw up research and development plans to identify alternative substances. The rules on substitution apply to both of the routes for authorisation detailed in the Regulation, therefore substitution plans are required to be instituted even in relation to substances of high concern whose risks can be adequately controlled through management of exposure. Where such substances cannot be adequately controlled through this means, it must be shown that a socio-economic analysis concludes the benefits to outweigh the risks. Such analysis must be undertaken in relation to all persistent and bioaccumulative substances.

Authorisations will be renewable, and if a safer alternative to the substance authorised is identified during an authorisation period the user is required to submit a substitution plan only once the authorisation period has expired. The Commission has the right to suspend authorisations if a 'serious and immediate risk' associated with a chemical emerges.

Manufacturers producing less than 10 tonnes of chemicals a year are currently to be exempted from the provisions of the Regulation, although this position will be reviewed within 7 years. Manufacturers making any chemical in volumes over 1000 tonnes or making carcinogenic, mutagenic or reprotoxic substances in volumes over 1 tonne will have 3 ½ years in which to register them. Manufacturers making chemicals in volumes of between 100 and 1000 tonnes will have 6 years in which to register them, and manufacturers making chemicals in volumes of between 1 and 100 tonnes will have 11 years in which to register them.

During the course of the debate over the legislation, the rules relating to commercial confidentiality were tightened, with firms now being allowed to keep certain test data secret for 12 years as opposed to the original 10 years. The duty of care provision that was sought by many has also been placed in the non-binding preamble to the Regulation, rather than being given proper binding effect.

The text of the Regulation can be accessed at the following link.

Groundwater

Directive 2006/118/EC on the protection of groundwater from pollution has been published in the Official Journal. The Directive requires Member State governments to establish threshold safety values for certain substances by 22 December 2008. Substances affected include mercury, ammonium and lead. The Directive details a single limit value of 50 milligrams/litre on nitrates in groundwater, which is to apply throughout the EU.

Member States are required by the Directive to take all necessary measures to prevent hazardous substances from entering groundwater. By 2009 Member State governments must identify any 'significant and sustained upward trend' in pollution in groundwater classified as at risk. They must also take measures necessary to reverse trends of this sort when the concentrations of a pollutant reach 75% of the threshold safety value set in the Directive. The Directive must be transposed into national law by 16th January 2009.

The text of the Directive can be accessed at the following link.

UK LEGISLATION

Chemicals

The Controls on Dangerous Substances and Preparations Regulations 2006 entered force on 7th January 2007. The Regulations give effect to restrictions on the marketing and use of certain dangerous substances and preparations set out in Directive 76/769/EEC.

The text of the Regulations can be accessed at the following link.

Diesel Fuel

The Hydrocarbon Oil Duties (Sulphur-free Diesel) (Hydrogenation of Biomass) (Reliefs) Regulations 2006 enter into force on 12th January 2007. They provide partial relief from tax charged on sulphur-free diesel which is partly produced from the hydrogenation of biomass. This relief will cease on 12th January 2009.

The text of the Regulations can be accessed at the following link.

Electronic and Electrical Equipment

The Waste Electronic and Electrical Equipment Regulations 2006 enter into force on 2nd January 2007, with the exception of the provisions relating to the marking of equipment with symbols and provision of information on reuse and treatment and the provisions relating to distributor's obligations, which enter into force on the later dates of 1st April and 1st July 2007 respectively. The Regulations apply across the UK, with the exception of the regulations that relate to charges, which do not apply in Northern Ireland.

The Regulations transpose the main provisions of the Waste Electronic and Electrical Equipment Directive 2002/96/EC, though are introduced over two years after the deadline for implementation. The UK received a 'reasoned opinion' last year from the European Commission in relation to it's failure to transpose the Directive on time.

Under the Regulations all producers who place electronic and electrical equipment on the market in the UK in a compliance period, the first of which will run from 1st July 2007 to 31st December 2007, will have the responsibility of financing the costs of the collection, treatment, recovery and environmentally sound disposal of waste electronic and electrical equipment from private households, where such waste is deposited at designated collection facilities, or is returned in that compliance period by a distributor in accordance with the Regulations. Producers will also be responsible for financing costs in relation to waste electronic and electrical equipment arising from users other than private households. Any producer with such an obligation must join an approved compliance scheme, whereupon he will be exempt from complying with any such obligation for the period of his membership of that compliance scheme. Where approval of such a scheme is withdrawn, the obligations set out above will fall back on the members of that scheme, and they will be notified as such by the appropriate authority. The appropriate authorities are the Environment Agency in England and Wales, SEPA in Scotland, and the Department of the Environment in Northern Ireland.

Producers must also mark electronic and electrical equipment that he places on the market with a symbol of a crossed out wheelie bin, detailed in the regulations, as well as a producer identification mark and a date mark. They must additionally provide information on reuse and environmentally sound treatment for each new type of electronic and electrical equipment placed on the market by them.

Operators of the approved compliance schemes are under an obligation to meet the financing obligations that would be incumbent on its members were they not members of the scheme. They also have obligations relating to the reuse of whole appliances and treatment and recovery for any waste electronic or electrical equipment for which they are responsible.

Distributors will be responsible for providing an in-store take back service for their customers in relation to specific waste electronic and electrical equipment unless they are a member of a distributor take back scheme. They too have an obligation to provide specified information to users of electronic and electrical equipment in private households where they are supplying new electronic and electrical equipment. Distributors will have the right to return waste electronic and electrical equipment from private households free of charge to a system set up by a compliance scheme.

Non-statutory guidance on the new Regulations is expected to be published early next year.

The Regulations are available at the following link.

ENGLISH AND WELSH LEGISLATION

Waste

The Waste Electrical and Electronic Equipment (Waste Management Licensing) (England and Wales) Regulations 2006 entered into force on 5th January 2007, transposing the permitting requirements of the WEEE Directive (Directive 2002/96/EC). The Regulations make amendments to the Waste Management Licensing Regulations 1994, providing exemptions from permit requirements for treatment of waste electrical and electronic equipment, as well as exemptions from the permit requirements of the new Waste Framework Directive (Directive 2006/12/EC) for the purposes of storing such waste. Transitional arrangements are also set out for existing licence holders, establishments and undertakings.

The text of the Regulations can be accessed at the following link.

NORTHERN IRISH LEGISLATION

Waste

The Waste Electrical and Electronic Equipment (Charges) Regulations (Northern Ireland) 2006 entered into force on 2nd January 2007, setting out charges that are to be paid to the Department of the Environment under the Waste Electrical and Electronic Equipment Regulations 2006. The Regulations set out charges to be paid for approval of compliance schemes and authorised treatment facilities as well as application charges for producers, exporters and authorised treatment facilities. The Regulations provide that where a charge has been paid in relation to approval of an authorised treatment facility or a compliance scheme, it will not be refunded if such approval is refused, withdrawn, suspended or cancelled.

The text of the Regulations can be accessed at the following link.

Water

The Water and Sewerage Services (Northern Ireland) Order 2006 has been published, with most of its provisions taking effect from 1st April 2007. It is on this date that responsibility for the delivery of water and sewerage services is to pass to a government owned company. The government intends to introduce domestic charging for water and sewerage services from this date. The Order places an extensive set of general and more specific duties an powers on the government owned company, and introduces safeguards for the interests of customers. This establishes the regulatory regime, the framework for charges and for complaints, and provisions in relation to private water supplies, for which the Department of the Environment retains regulatory responsibility.

The text of the Order can be accessed at the following link

SCOTTISH LEGISLATION

Water

The Water Services etc (Scotland) Act 2005 (Commencement No. 5) Order 2006 provides for the remaining provisions of the 2005 Act to enter into force on 8th January 2007. These provisions include those for the dissolution of the Office of the Water Industry Commissioner for Scotland, which is to be replaced by a Commission of the same name.

The text of the Order can be accessed at the following link.

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