Edie Environmental Legislation Summary, June 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 the EC consulting on waste incineration and amending its position on the import and export of hazardous chemicals. In the UK contaminated land law gets an overhaul and a raft of new regulations covering pollution from shipping are introduced. Regulations to protect watercourses from agricultural pollution are amended and local authorities in Scotland are given greater powers to ensure water supplies are up to standard.

EUROPEAN LEGISLATION

Commission Decision 2006/329/EC

Commission Decision 2006/329/EC has been published in the Official Journal of the European Union this week.

The Decision sets out the questionnaire which is to be used by Member States for reporting on the implementation of Directive 2000/76/EC on the incineration of waste (the WID Directive) in accordance with Article 15 of the Directive.

The questionnaire seeks to gather information on the implementation of the WID Directive and identify approaches taken to regulating incineration and co-incineration plants across the Member States.

The first report is to cover the three year period starting from 1 January 2006 and is to be sent to the Commission by 30 September 2009 at the latest.

The Decision can be found at the following link.

Commission Decision 2006/340/EC

Commission Decision 2006/340/EC was published in the Official Journal of the European Communities on 12 May 2006.

The Decision amends Decision 2001/171/EEC of the European Parliament and of the Council for the purpose of prolonging the validity of the conditions for a derogation for glass packaging in relation to the heavy metal concentration levels established in Directive 94/62/EC (the Packaging and Packaging Waste Directive).

The derogation laid down in Commission Decision 2001/171/EC for glass packaging in relation to the heavy metal concentration levels established in the Packaging and Packaging Waste Directive expires on 30 June 2006.

However, Article 6 of Decision 2001/171/EC is now delete in order to extend the period of this derogation.

The Decision can be found at the following link.

Commission Regulation No 777/2006

Commission Regulation No 777/2006 of 23 May 2006 amending Annex I to Regulation (EC) No 304/2003 of the European Parliament and of the Council concerning the export and import of dangerous chemicals, was published in the Official Journal of the European Union on 24 May 2006.

As a result of the introduction of a Commission Regulation and Decision, amendments made to Annex III of the Rotterdam Convention and regulatory developments which have occurred since the last updating of Annex I of the Regulation, the existing entries for certain chemicals required updating and therefore the list of chemicals contained in parts 1, 2 and 3 of Annex I to Regulation (EC) No 304/2003 required to be amended accordingly.

The amendments to Annex I of Regulation (EC) 304/2003 are therefore set out in the Annex to this new Regulation (EC) No 777/2006, which enters into force on 13 June 2006.

The full Regulation can be found at the following link.

UK LEGISLATION

UK Wide

The Merchant Shipping (Oil Pollution) (Bunkers Convention) Regulations 2006

The Merchant Shipping (Oil Pollution) (Bunkers Convention) Regulations 2006 were laid before Parliament on 4 May 2005 and are due in part to come into force on 15 July 2006.

The Regulations amend Chapter 3 of Part 6 of the Merchant Shipping Act 1995 in order to implement Council Decision 2002/762/EC authorising the Member States, in the interests of the Community, to sign, ratify or accede to the International Convention on Civil Liability for Bunker Oil Pollution Damage 2001 (the Bunkers Convention).

The main provision of the Regulations, Regulation 5, inserts section 153A within the Merchant Shipping Act 1995, which provides that where, as a result of any occurrence, any bunker oil is discharged or escapes from a ship, the owner of the ship shall be liable for any damage caused outside the ship in the territory of the United Kingdom by contamination resulting from the discharge or escape.

Provision is also made for liability for pollution in case of other ships and exceptions to the liability provisions within the new section 153A.

See link to OPSI website.

The Merchant Shipping (Prevention of Air Pollution from Ships) Order 2006

The Merchant Shipping (Prevention of Air Pollution from Ships) Order 2006 was laid before Parliament on 19 May 2006 and will come into force on 12 June 2006.

The Order enables regulations to be made to give effect to Annex VI (Regulations for the Prevention of Air Pollution from Ships) to the International Convention for the Prevention of Pollution from Ships, as amended by the Protocols of 1973 and 1997.

See link to OPSI website.

The Merchant Shipping (Oil Pollution) (Supplementary Fund Protocol) Order 2006

The Merchant Shipping (Oil Pollution) (Supplementary Fund Protocol) Order 2006 was laid before Parliament on 19 May 2006 and will come into force on the day on which the Supplementary Fund Protocol enters into force in respect of the United Kingdom.

The Order amends the Merchant Shipping Act 1995 to give legal effect in the United Kingdom to the Protocol of 2003 to the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1992 (the Supplementary Fund Protocol), thus giving effect to Council Decision 2004/246/EC, which authorises Member States to sign, ratify or accede to the Supplementary Fund Protocol.

The purpose of the Supplementary Fund Protocol is to supplement the compensation available for oil pollution damage under the 1992 Civil Liability and Fund Conventions with an additional third tier of compensation.

The total amount of compensation payable for any one incident will be 750 million Special Drawing Rights, including the amount payable under the 1992 Civil Liability and Fund Conventions.

See link to OPSI website.

England

The Planning (Listed Buildings, Conservation Areas and Hazardous Substances) (Amendment) (England) Regulations 2006

The Planning (Listed Buildings, Conservation Areas and Hazardous Substances) (Amendment) (England) Regulations 2006 were made on 10 May 2006 and are due to come into force on 7 June 2006.

As well as amending the Planning (Listed Buildings and Conservation Areas) Act 1990 in order to make provision for urgent applications for works to buildings on Crown land which are listed or which are in conservation areas, the Planning and Compulsory Purchase Act 2004 amended the Planning (Hazardous Substances) Act 1990 by inserting a new section 30B. This makes transitional provision for hazardous substances consent to be deemed to be granted in relation to hazardous substances present on Crown land before the date on which Part 7 of the 2004 Act is commenced.

Provision is also made requiring that a claim is to be made for deemed hazardous substances consent in the prescribed form and is to contain the prescribed information. Any deemed consent is also to be subject to certain conditions.

The 2006 Regulations therefore also amended the Planning (Hazardous Substances) Regulations 1992 to prescribe the form and content of the claim and the conditions to which a deemed consent will be subject.

See link to OPSI website.

The Contaminated Land (England) Regulations 2006

The Contaminated Land (England) Regulations 2006 were laid before Parliament on 23 May 2006 and come into force on 4 August 2006.

The Regulations consolidate the provisions of the Contaminated Land (England) Regulations 2000 and the Contaminated Land (England) (Amendment) Regulations 2001 with amendments. Applicable to England only, the Regulations also set out the provisions relating to the identification and remediation of contaminated land under Part IIA of the Environmental Protection Act 1990 (EPA 1990).

Regulation 2 provides for an additional description of contaminated land in order that contamination by radioactive substances is now caught within the description of contaminated land that is required to be designated as a special site.

Land which is contaminated as a result of radioactive substances in, on or under that land therefore will require to be designated as a special site. Regulations 2 and 3, and Schedule 1, also identify special sites in relation to which the Environment Agency is to be the enforcing authority, with the remaining sites to be regulated by local authorities.

The Regulations also remove provisions relating to appeals against remediation notices to a magistrates' court, as a result of amendments to section 78L of the EPA 1990 Act made by section 104 of the Clean Neighbourhoods and Environment Act 2005.

Also in respect of remediation notices, Regulations 4 and 5 provide for the content and service of copies of "remediation notices", while Regulations 7 to 12 make provisions with respect to appeals against remediation notices, including the grounds of appeal and the procedure to be followed.

Finally, provision is also made in relation to the compensation that is to be paid in accordance with section 78G(5) of the EPA 1990, to a person who grants, or joins in granting, rights of entry etc required to enable a person to comply with a remediation notice, and the particulars of matters which are required to be placed on a register maintained by local authorities or, in the case of special sites, by the Environment Agency.

See link to OPSI website.

The Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006

The Radioactive Contaminated Land (Modification of Enactments) (England) Regulations 2006 were laid before Parliament on 23 May 2006 and will come into force on 4 August 2006.

The Radioactive Contaminated Land (Enabling Powers) (England) Regulations 2005 (the Powers Regulations) applied the powers under the 1990 Act, which sets out the contaminated land regime, to make regulations and guidance in relation to radioactive substances.

The new Regulations, which apply to England only, are made pursuant to the powers under Part IIA of the 1990 Act as modified by the Powers Regulations and make provision for Part IIA to have effect with modifications for the purpose of the identification and remediation of radioactive contaminated land other than in circumstances where the operator of a nuclear installation is liable under the Nuclear Installations Act 1965, or in related circumstances.

The new Regulations also transpose Articles 48 and 53 of Council Directive 1996/29/Euratom laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation.

Included within the provisions of the new Regulations, are modifications to various definitions in section 78A of the 1990 Act.

Restrictions are also placed on the discretion of an enforcing authority to determine what is reasonable by way of remediation for the purposes of section 78E(4) of the 1990 Act, thus requiring the enforcing authority to weigh up the benefit of any intervention against the health detriment and costs arising from such intervention and maximise the benefit from such intervention.

The 1990 Act is also modified in order to require the enforcing authority to carry out remediation itself in certain circumstances.

See link to OPSI website.

England and Wales

The Protection of Water Against Agricultural Nitrate Pollution (England and Wales) (Amendment) Regulations 2006

The Protection of Water Against Agricultural Nitrate Pollution (England and Wales) (Amendment) Regulations 2006 were made on 10 May 2006 and are due to come into force on 1 June 2006.

The Regulations make provision for implementing, in part, Article 2 of Directive 2003/35/EC of the European Parliament and of the Council on public participation in respect of drawing up certain plans and programmes relating to the environment (the Public Participation Directive).

Article 2 of the Public Participation Directive applies to action programmes in relation to nitrate vulnerable zones designated under Directive 91/676/EEC, amongst other 'programmes'.

The Protection of Water Against Agricultural Nitrate Pollution (England and Wales) Regulations 1996 are therefore amended to require provision to be made for public participation in the preparation, review or revision of any action programme in England or Wales, by the Secretary of State or the National Assembly for Wales, as appropriate.

The new public participation obligations are also to apply, in respect of England only, to action programmes for the nitrate vulnerable zones in England as designated by the Nitrate Vulnerable Zones (Additional Designations) (England) (No. 2) Regulations 2002.

See link to OPSI website.

The Town and Country Planning (Application of Subordinate Legislation to the Crown) Order 2006

The Town and Country Planning (Application of Subordinate Legislation to the Crown) Order 2006, was made on 10 May 2006 and is due to come into force on 7 June 2006.

Applicable in England and Wales, the Order makes provision to apply to the Crown any subordinate legislation made under or for the purposes of the planning Acts and modifies the Planning (Listed Buildings and Conservation Areas) Regulations 1990 and the Town and Country Planning (General Development Procedure) Order 1995 to take account of the new provisions on urgent Crown development.

See link to OPSI website

Scotland

The Town and Country Planning (Application of Subordinate Legislation to the Crown) (Scotland) Order 2006

The Town and Country Planning (Application of Subordinate Legislation to the Crown) (Scotland) Order 2006 was made on 17 May and is due to come into force on 12 June 2006.

Applicable only in Scotland, the Order applies the Environmental Impact Assessment (Scotland) Regulations 1999 and the Conservation (Natural Habitats &c.) Regulations 1994 to the Crown as well as a number of planning acts and makes provision for national security, urgent Crown development, enforcement, preservation of trees and old mining permissions. Provision is also made for urgent Crown developments.

See link to OPSI website.

The Planning and Compulsory Purchase Act 2004 (Transitional Provisions) (Scotland) Order 2006

The Planning and Compulsory Purchase Act 2004 (Transitional Provisions) (Scotland) Order 2006 was made on 19 May 2006 and is due to come into force on 12 June 2006.

In light of the fact that section 90 of the Planning and Compulsory Purchase Act 2004 provides that the Scottish planning Acts bind the Crown and section 119(2) of that same Act, which enables the Scottish Ministers to make transitional provision for those proposed developments by the Crown previously dealt with by way of non-statutory arrangements, Article 3 of the 2006 Order makes transitional provisions to apply the Town and Country Planning (Scotland) Act 1997 in terms of proposals for development by the Crown in progress on the relevant date.

Article 3(4) provides for developments which have been notified by the planning authority or the Scottish Ministers as acceptable under the informal arrangements in place before 12 June 2006, to be treated as if planning permission were granted under the 1997 Act, unless the proposed development comes with Schedule I or II of the Environmental Impact Assessment (Scotland) Regulations 1999.

In those cases, article 3(6) provides that planning permission is not granted, unless the requirements of the regulations had been complied with as if an application for planning permission had been made in respect of the proposed development.

Provision is also made in respect of notices (Article 3(5)) and appeals (Article 3(7) and 3(8)).

Finally, Article 5 also inserts a new section 30D into the Planning (Hazardous Substances) (Scotland) Act 1997 to make provision for the application of the Crown for deemed hazardous substances consents during the transitional periods where such substances had been present on site at or above controlled quantities in the 12 months prior to the application to the Crown of the Planning (Hazardous Substances) (Scotland) Act 1997.

See link to OPSI website.

The Private Water Supplies (Notices) (Scotland) Regulations 2006

The Private Water Supplies (Notices) (Scotland) Regulations 2006 were made on 30 May 2006 and enter into force on 3 July 2006. The Regulations modify sections 76G and 76H of the Water (Scotland) Act 1980 in their application to private water supplies to which the Private Water Supplies (Scotland) Regulations 2006 apply.

The 2006 Regulations introduce a new scheme for the regulation of private water supplies in Scotland. Where supplies do not meet the requisite water quality standards set out in those Regulations, local authorities can serve a notice under sections 76G and 76H of the 1980 Act requiring those responsible for those supplies to take steps to remedy the failure.

New section 76HA(2), which is inserted by regulation 2 of these Regulations, modifies section 76G of the 1980 Act to place a duty on local authorities to serve notices in the case of Type A supplies. Type A supplies are those which must satisfy the water quality standards set out in the Drinking Water Directive (Directive 98/83/EC).

However, in the case of Type B supplies, local authorities retain their powers to serve notices.

See link to OPSI website.

Wales
The Animal By-Products Regulations (Wales) Regulations 2006
The Animal By-Products Regulations (Wales) Regulations 2006 were made on 10 May 2006 and came into force on 12 May 2006.
The Regulations, applicable only in Wales, revoke and re-make the Animal By-Products Regulations 2003, which made provision in Wales for the administration and enforcement of the European Regulation No 1774/2002, which lays down health rules concerning animal by-products not intended for human consumption, and also enforce a number of additional Community instruments, which supplement and further amend the EC Animal By-Products Regulation and make further transitional measures, such as Regulation (EC) No 813/2003 on transitional measures under Regulation (EC) No. 1774/2002 as regards the collection, transport and disposal of former foodstuffs and Regulation (EC) No 92/2005 implementing Regulation (EC) No 1774/2002 as regards means of disposal or uses of animal by-products and amending its Annex VI as regards biogas transformation and processing of rendered fats.

Included within the new 2006 Regulations are provisions making it a specific offence to categorise, collect, transport, dispose, store, process or use, category 1, category 2 or category 3 material or to collect, transport, identify or store animal by-products other than in accordance with the European By-Products Regulation.

The restrictions in Article 22 of the European By-Products Regulation on the application of organic fertiliser to pasture land is also enforced within the new 2006 Regulations. Regulations 13 to 15 provide for the approval of premises for the different types of treatment of animal by-products.

See link to OPSI website.

Northern Ireland
The Quarries Regulations (Northern Ireland) 2006

The Quarries Regulations (Northern Ireland) 2006, were made on 2 May 2006, and with the exception of certain provisions, shall come into operation on 1 August 2006.

The Regulations impose requirements with respect to health and safety in quarries, and supersede certain provisions of the Quarries (Northern Ireland) Order 1983, the Mines and Quarries (Tips and Tipping Plans) Regulations (Northern Ireland) 1995 and in certain other health and safety regulations.

The Regulations give effect in relation to quarries to Council Directive 92/104/EEC concerning minimum requirements for improving the health and safety protection of workers in surface and underground mineral extracting industries and apply to all quarries where persons work and therefore impose duties on the operator with respect to persons at or in the area immediately surrounding the quarry.

Various duties are placed on the operator in accordance with regulations 6 to 16 and Regulations 18 to 23, including that the operator ensures that a permit to work system is in place and that the risk of explosions or fires and harmful or explosive atmospheres is controlled.

Part V of the Regulations relate to excavations and tips. Within the requirements set out in this Part, an operator is to ensure that excavations and tips are designed, constructed, operated and maintained so as to ensure health and safety and that excavations and tips rules are made.

All proposed or existing excavations or tips are to be appraised by a competent person and, where required by regulation 26, subjected to a geotechnical assessment and remedial work undertaken.

An operator is also to ensure that excavations and tips are subject to further geotechnical assessments at specified intervals and in specified circumstances in accordance with regulations 28 and 29.

See link to OPSI website.

The Quarries (Explosives) Regulations (Northern Ireland) 2006

The Quarries (Explosives) Regulations (Northern Ireland) 2006 were also made on 2 May 2006 and are due to come into operation on 1 August 2006.

The Regulations impose requirements with respect to health and safety in the keeping, transport and use of explosives in quarries as defined and in order to give effect to Council Directive 92/104/EEC on the minimum requirements for improving the health and safety protection of workers in surface and underground mineral extracting industries.

Included within the requirements of the Regulations are provisions requiring the operator to ensure the safe storage, transport and use of explosives, to appoint an explosives supervisor, to ensure that suitable shotfiring rules and specifications are drawn up and followed, to ensure that explosives workers are competent and that appropriate facilities and equipment are provided, and to ensure that explosives are stored safely.

See link to OPSI website.

The Planning (Inquiry Procedure) Rules (Northern Ireland) 2006

The Planning (Inquiry Procedure) Rules (Northern Ireland) 2006 were made on 11 May 2006 and will come into operation on 10 June 2006.

Article 123(1) of the Planning (Northern Ireland) Order 1991 provides that the Department of the Environment (DOE) may cause a public local inquiry to be held for the purpose of the exercise of any of its functions under that Order and Article 123(2) provides that the DOE may make rules to regulate the procedures to be followed in connection with inquiries held by or on behalf of the Department.

The Planning (Inquiry Procedure) Rules (Northern Ireland) 2006 therefore provide procedures to be followed in connection with inquiries required to be held under Article 123B and where the Secretary of State has directed that evidence described in the direction shall only be heard or be open to inspection at that inquiry by persons specified in the direction.

See link to OPSI website.

The Planning (Application of Subordinate Legislation to the Crown) Order (Northern Ireland) 2006

The Planning (Application of Subordinate Legislation to the Crown) Order (Northern Ireland) 2006, was made on 15 May 2006 and is due to come into operation on 10 June 2006.

The Order applies the Planning (Northern Ireland) Order 1991 to the Crown and, among other things, makes provision for national security, enforcement and the preservation of trees.

A number of statutory rules are also applied to the Crown, including the Planning (Hazardous Substances) Regulations (Northern Ireland) 1993.

See link to OPSI website.

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