Edie Environmental Legislation Summary, October 06

This month sees the EU get tough on battery disposal, setting targets for member states in a Directive on battery and accumulator recycling, as well as increasing its efforts to involve citizens in environmental policy making and tightening up freshwater quality regulations.

In the UK tractors are under the spotlight as regulations on emissions from agricultural and forestry vehicles come into force on October 12th.

Meanwhile across England, Wales and Northern Ireland it is the noise rather than fumes produced by vehicles that came under scrutiny following the introduction of new Environmental Noise Regulations covering cars, airplanes and construction sites on October 5th.

EUROPEAN LEGISLATION

Battery Recycling

Directive 2006/66/EC on batteries and accumulators and waste batteries and accumulators entered into force on 26th September, repealing Directive 91/157/EEC. The Directive sets binding targets for Member States to meet in relation to the collection and recycling of batteries.

The recycling target for general consumer batteries is 50% by 2010, while for lead-acid batteries it is 65% by 2010, and for nickel-cadmium batteries it is 75% by 2010. The minimum collection rate for used batteries is 25% by September 2012, going up to 45% by September 2016.

Battery producers are to finance the cost of the collection, treatment and recycling of the waste batteries, as well as funding the related public information and awareness campaigns. It is possible to grant exemptions for small-scale producers, although only if in doing so the proper overall functioning of the schemes are not undermined. The treatment and recycling schemes are to be established by September 2009 at the latest. Member States will still be allowed to send batteries to landfill, but only if there is no viable end market available or an assessment of environmental, economic and social impacts demonstrates that landfill is a preferable option to recycling. It is worth noting, however, that the practical difficulties associated with landfill remain, such as stringent pre-treatment and waste acceptance criteria that apply to hazardous wastes such as batteries under the Landfill Directive.

Battery distributors must take back used batteries from consumers free of charge. There is an exemption under the Directive to safeguard existing national schemes that operate differently to those outlined in the Directive as long as they are at least as effective in achieving the aims of the Directive in terms of environmental impact.

Those who manufacture products that use batteries must design their products such that the batteries can be easily removed at the end of the product's life, although this requirement can be waived on the basis of safety, performance, medical reasons or data integrity reasons.

The sale of batteries with more than 0.0005% mercury and 0.002% cadmium by weight are banned. Member States must transpose the Directive by September 2008. They have the option of achieving the Directive's aims through voluntary agreements with industry, although these agreements must be enforceable.

The Directive is available at this link.

Public Participation in Environmental Policy

Regulation (EC) No. 1367/2006 on the application of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice was entered in the Official Journal on 25th September.

The legislation applies the requirements of the Aarhus Convention to European Union institutions, requiring them to collect and disseminate such environmental information as is relevant to their functions. The institutions are also required to provide "early and effective" opportunities for the public to participate in the drafting and review of environmental programmes.

The Regulation is available at the following link.

Fresh Waters

Directive 2006/44/EC on the quality of fresh waters needing protection or improvement in order to support fish life enters into force on 15th October. The Directive consolidates existing legislation on the area in order to clarify the law.

Directive 78/659/EEC has been amended significantly on a number of occasions since its inception in 1978, and it is this Directive and the amendments to it that are consolidated in the new Directive.

The new Directive also sets targets for various factors such as thermal discharges, dissolved oxygen, phosphorous and nitrates.

The Directive is available at this link.

UK LEGISLATION

Vehicle Emissions

The Agricultural or Forestry Tractors (Emission of Gaseous and Particulate Pollutants) (Amendment) Regulations 2006 come into force on 12th October 2006. The regulations amend the Agricultural or Forestry Tractors (Emission of Gaseous and Particulate Pollutants) Regulations 2002 in order to implement Directive 2005/13/EC in so far as it relates to the entry into service of tractors and tractor engines. The other provisions of the Directive, relating to the type-approval of tractors will be implemented separately by amendment to the Tractor etc (EC Type-Approval) (Amendment) Regulations 2005.

The regulations introduce new limit values for emissions of particulate pollutants from tractor engines, and such limits will no longer be permitted to be exceeded on the first entry into service of the engine.

The Directive requires flexibility schemes to be introduced in Member States, and under these a limited number of engines that comply with the emission limit value stage immediately preceding the current stage will be allowed to be placed on the market. Engines placed on the market under such a flexibility scheme are not subject to the regulations. The requirements for the UK flexibility scheme are set out in Schedule 3.

Replacement engines are no longer exempt, but are only required to comply with the limit values that applied to the engine that they replaced when it first entered into service.

The definitions used in the 2002 Regulations have been amended by the new regulations, which also expressly apply some requirements to tractors as well as to their engines.

The Regulations are available at this link.

SCOTTISH LEGISLATION

Pesticides

The Plant Protection Products (Scotland) Amendment (No.2) Regulations 2006 entered into force on 26th September 2006, having been made on 30th August 2006. The Regulations amend the Plant Protection Products (Scotland) Regulations 2005, and revoke the Plant Protection Products (Scotland) Amendment Regulations 2006.

The definition of "the Directive" is amended in order to implement Directives 2006/39/EC, 2006/41/EC, 2006/45/EC and 2006/64/EC. These Directives amend Annex 1 to Directive 91/414/EEC by amending the specification of the active substance propoxycarbazone and adding eleven new substances to the Annex 1 list of active substances in the Directive. The Regulations are therefore amended in accordance with these amendments.

The Regulations are available here.

Environmental Noise

The Environmental Noise (Scotland) Regulations 2006 came into force on 5th October, implementing Directive 2002/49/EC on environmental noise. The regulations require Scottish Ministers to prepare maps showing noise sources for which strategic noise maps are to be made, and showing all quiet areas in agglomerations. The Scottish Ministers are to make strategic noise maps for agglomerations, major roads and major railways. These are to be subject to review and revision every five years or whenever a major development takes place making revision necessary.

The regulations also require airport operators to make strategic noise maps for all major airports, and for air traffic noise arising from other airports in agglomerations. These are also subject to review and revision every five years and where a major development makes this necessary. Once they have been made, or once a revision has been made they must be submitted to the Scottish Ministers for adoption.

The Scottish Ministers are required to compile and publish consolidated noise maps. They are also required to draw up action plans for areas near to major roads and major railways and for all agglomerations. The requirements for such action plans are set out in the regulations, and the Scottish Ministers are required to issue guidance on the preparation and content of them. They too will require to be reviewed and if necessary revised very five years and when a major development calls for it. Airport operators must also draw up action plans in relation to major and other airports, subject also to the review and revision. These are to be submitted to the Scottish Ministers for adoption.

The Regulations are available at this link.

Water Licences

The Water Services and Sewerage Services Licences (Scotland) Order 2006 entered into force on 5th October 2006. Articles 2 and 3 of the Order provide for the form and content of and notification of licence applications for the purposes of paragraph 1(1) and (4) of Schedule 2 to the Water Services etc. (Scotland) Act 2005, which establishes a licensing regime for the provision of water services and sewerage services to eligible premises. Article 3, providing for the notification of licence applications provides for the form specified in Schedule 1 to the Order to be used in this regard. It also provides for representations to be made in relation to notified licence applications.

Article 4 of the Order modifies procedures for making representations in relation to the initial licensing application granted in respect of the business undertaking established under s13(1) of the 2005 Act. It also provides for the incorporation of standard conditions into the initial licensing application.

Articles 5 and 6 of Schedules 2 and 3 to the Order prescribe notices for the discontinuation of water and trade effluent services respectively.

The Order is available at this link.

ENGLISH AND WELSH LEGISLATION

Environmental Noise

The Environmental Noise (England) Regulations 2006 came into force on 1st October 2006, having been made on 8th August 2006. The Regulations are in implementation of Directive 2002/49/EC relating to the assessment and management of environmental noise. They apply to environmental noise to which humans are exposed in particular built up areas, and do not apply to noise arising from domestic activities, neighbours, or work places.

The Regulations require the Secretary of State to identify in Regulations all agglomerations, major roads, major railways and major airports in two stages. The first round identifications are to be made by 31 December 2006, and the final round is to be identified by 31 December 2011. The Regulations also provide for further identifications to be made after the final round where the most recent regulations are no longer appropriate.

The Regulations contain an obligation on the Secretary of State to make strategic noise maps showing the noise situation in the preceding calendar year. The first of these is to be completed by 30 June 2007, and the final one is to be complied by 30 June 2012. One will be made every five years thereafter. Further, where a major development occurs that will affect the noise levels the competent authority must revise and review their strategic noise maps.

Obligations are also imposed on operators of non-designated airports to make strategic noise maps detailing the situation in the preceding calendar year and to submit these with other data to the Secretary of State.

The Secretary of State is further obliged to identify quiet areas in agglomerations and to protect these, as well as to generally manage noise and its effects, provide guidance on limit values and other criteria for identifying priorities for action plans. He must also compile a consolidated noise map.

The action plans that are required under the Regulations must be prepared following public consultation, and the results of such consultation must be taken into account when drawing up the action plan. Once an action plan has been formulated public authorities must treat it as their policy, and may only depart from it if they provide written reasons to the Secretary of State and any other competent authority and publish those reasons.

The Regulations are available at the following link

Fertilisers

The EC Fertilisers (England and Wales) Regulations 2006 enter into force on 11th October 2006, implementing Regulation (EC) 2002/2003 on fertilisers. The regulations create an offence for manufacturers of breaching requirements regarding designation, compositional tolerances, identification, marketing, labelling and packaging of fertilisers that have been designated as EC fertilisers under the Regulation. Under the regulations manufacturers also have a duty to keep records.

The Secretary of State in England and the National Assembly for Wales have powers to serve compliance notices in this regard, although it is Local Authorities that are responsible for enforcing the regime and for appointing inspectors for that purpose. The inspectors have a power to require remedial action to be taken in relation to EC fertilisers in respect of which they suspect an offence is being committed. They also have the power to seize such fertilisers.

The Secretary of State in England and the National Assembly for Wales have the power to issue directions for the mitigation and elimination of risk in circumstances where there are justifiable grounds to believe that an EC designated fertiliser constitutes a risk to the safety and/or health of human, animals or plants or constitutes a risk to the environment.

The provisions of Part IV of the Agriculture Act 1970; the Fertilisers Regulations 1991 as amended; and the Fertilisers (Sampling and Analysis) Regulations 1996 are disapplied by the regulations.

The Regulations are available at the following link

Electricity

The Electricity from Non-Fossil Fuel Dests Arrangements (England and Wales) Order 2006 entered into force on 1st Oct 2006. The purpose of the Order is to modify certain contracts between generators of electricity and the Non-Fossil Purchasing Agency Ltd. The reason for this is that due to the method used to calculate the 'premium' and 'reference' prices in the contract, the 'reference' price ended up being the higher of the two, thereby removing the intended financial incentive to encourage generators to meet certain requirements in terms of supplying heat.

The Order is available at this link.

Biodiversity

Section 40 of the Natural Environment and Rural Communities Act 2006 became effective from 1st October, meaning that all public sector bodies in England and Wales must consider biodiversity in the work that they do. The aim of the provision is to raise the profile of the issue of biodiversity until such issues occur to everyone making decisions in the public sector as a matter of course.

The provision affects in excess of 900 public bodies, including local authorities, the police and fire departments, health bodies, museums and transport authorities. DEFRA is to produce both general guidance and also specific guidance for local authorities in partnership with other relevant bodies. It is expected to be published early next year.

The relevant provision of the Act is available at the following link.

NORTHERN IRISH LEGISLATION

Packaging Waste

The Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 2006 entered into force on 9th October 2006, having been made on 4th September 2006. The Regulations are in implementation of Article 6(1) of Directive 94/62/EC, and follow consultation under the Producer Responsibility Obligations (Northern Ireland) Order 1998.

The Regulations impose an obligation on producers to recover and recycle packaging waste. In order to determine whether a producer is required to comply with the Regulations a two part test is set out. If a producer had an annual turnover of £2 million or more in the last year and have handled 50 tonnes of packaging or packaging materials or more in the last year then they are subject to the producer responsibility obligations for that year. Detailed rules are laid out in Schedule 2 for calculating the level of their obligations in this respect.

Producers covered by the Regulations can either buy Packaging Waste Recovery Notes (PRNs) or Packaging Waste Export Recovery Notes (PERNs) themselves as appropriate, or they may join a compliance scheme. The benefit of joining a compliance scheme is that if it is a scheme registered with the Department of the Environment then the producer will be exempt from complying with the obligations set out in the Regulations for that year. Producers who do not join a registered scheme must register themselves with the Department of the Environment.

The Regulations contain requirements to keep records, and for producers to provide certificates to the Department of the Environment demonstrating that they have complied with the obligations. They impose duties on the Department of the Environment to monitor compliance and to keep a public register. It is an offence to contravene the obligations on recycling and recovery contained in the Regulations.

The Regulations revoke the Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 1999 and its subsequent amending regulations.

The Regulations are available at this link.

Environmental Noise

The Environmental Noise Regulations (Northern Ireland) 2006 enter into force on 20th October. The Regulations are in implementation of Directive 2002/49/EC on the assessment and management of environmental noise.

The Regulations require that Strategic Noise Maps are compiled in two rounds, 2007 and 2012 and every five years thereafter. The Department for Regional Development is charged with the task of preparing Strategic Noise Maps for major roads; Northern Ireland Transport Holdings Company is to prepare them for major railways; airport operators are to prepare them for major airports and airports within agglomerations; and the Department of the Environment is to prepare them for industrial noise sources within agglomerations. Consolidated Strategic Noise Maps are to be prepared for all noise sources within agglomerations. All bodies charged with these responsibilities must review and if necessary revise their maps from time to time and in particular whenever a major development occurs necessitating their revisal.

The Regulations also require that the bodies that have drawn up Strategic Noise Maps draw up Action Plans in two rounds, 2008 and 2013 and every five years thereafter. They too must be reviewed and if necessary revised whenever there is a major development that requires such revisal. There is also a requirement for public participation during the drawing up of the action plans.

The Regulations are available at the following link.

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