Edie Environmental Legislation Summary

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 EU's proposals on the Mining Waste Directive, the latest on REACH, progress on the UK's packaging waste regulations, updated safety standards for the nuclear industry and changes to the Scottish stance on Nitrate Vulnerable Zones

European Legislation

A conciliation agreement has been reached between the European Parliament and the Council on the proposed Mining Waste Directive (COM (2003) 319 Final).

The proposed Directive covers the management of waste from the extractive industries and aims to introduce EU-wide rules on the prevention of water and soil pollution from the storage of waste in tailings ponds and waste heaps, with particular emphasis on the short and long-term stability of such waste facilities.

The text agreed on by the European Parliament and the Council maintains the approach taken in the Commission's original proposal. All extractive waste is dealt with (topsoil, overburden, waste rock and tailings, discarded during the prospecting, extraction and treatment of mineral resources), with provision being made in respect of planning, licensing, operation, closure and after-care of facilities dealing with such wastes.

Provision is also made for the drawing up of waste management plans for extractive waste and the authorisation and permitting of such waste facilities. With agreement having now been reached between the European Parliament and the Council, the proposed Directive will now have to be adopted by the Parliament and Council, after which it can be formally adopted and published.

For details, click on the link here.

EU Ministers have also adopted a first-stage agreement on the proposed legislation on REACH (Registration, Evaluation and Authorisation of Chemicals) following the first reading of the proposals in the latter half of November.

At the reading of the proposals, MEPs endorsed the principle that, where possible, hazardous chemicals should be substituted with safer ones, known as the 'substitution' principle, therefore putting public health and the environment at the heart of the new REACH legislation.

MEPs also accepted that more flexibility should be given to industry, permitting exemptions to be made from the requirement to provide test data where human exposure to the substance in question doesn't warrant such data being provided.

MEPs also voted in favour of allowing companies only to have to derive extra test data for some, rather than all, of the most risky low-tonnage substances on the market. This received strong criticism as it potentially could allow thousands of harmful chemicals to escape the requirement to provide detailed safety data as the majority of chemicals manufactured in low volumes (those only manufactured in volumes of between 1 and 10 tonnes per year) will not have to be tested to provide detailed safety data.

In addition, many of the chemicals produced in larger quantities could be exempted from the testing regime if manufacturers can convince the EU that people will not be exposed to them.

While the Council has largely agreed with the Parliament's amendments, proposing also to lower the information requirements on low-tonnage suppliers, supporting the sharing of data in certain circumstances and placing responsibility on the Agency for evaluation, the main area of divergence between the Council and the Parliament concerned the provisions on authorisation.

The Council and the Parliament will now undertake a Second Reading of REACH in 2006, in consultation with the Commission, through which all three institutions will seek to agree a final package.

For more information click on the links here, or here.

UK legislation


Great Britain

The Producer Responsibility Obligations (Packaging Waste) Regulations 2005

The Producer Responsibility Obligations (Packaging Waste) Regulations 2005 were made on 15 December 2005 and came into force on 16 December 2005, extending to the whole of Great Britain.

The Regulations are made in order to implement Article 6(1) of Directive 94/62/EC on packaging and packaging waste.

Article 6(1) of the Directive requires Member States to take the necessary measures in order to attain specific targets regarding the amounts of packaging waste which are to be recovered and recycled.

The Regulations therefore impose on producers the obligation to recover and recycle packaging waste, and related obligations, in order for the United Kingdom to attain these targets.

Part II of the Regulations provides that where a producer satisfies the two threshold tests, he will have producer responsibility obligations for that year.

The criteria are (1) to have a turnover of more than £2M (in the last financial year in respect of which audited accounts are available) and (2) to have handled packaging or packaging materials weighing more than 50 tonnes in the previous year.

A producer can purchase packaging waste recovery notes ("PRNs") or packaging waste export recovery notes ("PERNs") or both to satisfy his obligations himself, or may join a compliance scheme.

Part III sets out the requirements for registration of a producer or a scheme, the conditions that apply and the circumstances in which that registration may be cancelled while Part IV ("Records, Returns and Certificate") sets out the requirements on producers and operators of schemes to keep records and furnish returns to the appropriate Agency and on producers to provide certificates demonstrating compliance with their recovery and recycling obligations.

Provision is also made within the Regulations for accreditation of reprocessors and exporters, appeals, Agencies' power and duties, and offences under the Regulations. The Producer Responsibility Obligations (Packaging Waste) Regulations 1997 and subsequent amending Regulations are revoked, though transitional provisions are made.

See link to OPSI website here.


English

The Radioactive Contaminated Land (Enabling Powers) (England) Regulations 2005

The Radioactive Contaminated Land (Enabling Powers) (England) Regulations 2005 were made on 14 December 2005 and are due to enter into force on 20 January 2006.

Applicable in England only, the Regulations enable the powers in Part IIA of the Environmental Protection Act 1990 to be exercised for the purpose of implementing Articles 48 and 53 of Council Directive 96/29/Euratom which lays down basic safety standards.

Part IIA of the Environmental Protection Act 1990 sets out a regime for the identification and remediation of contaminated land. Within Part IIA, section 78YC of the Act provides that regulations may give effect to Part IIA with modifications for the purpose of dealing with harm which is attributable to radioactivity possessed by any substances.

These Regulations therefore make such provision, providing that the powers in Part IIA, to make any such regulations or order, or give directions or issue guidance may be exercised in relation to land contaminated by reason of radioactive substances in, on or under the land and for that limited purpose, are to have effect with modifications.

See link to OPSI website here.


English and Welsh

The Clean Neighbourhoods and Environment Act 2005 (Commencement No. 3) Order 2005

The Clean Neighbourhoods and Environment Act 2005 (Commencement No. 3) Order 2005 was made on 9 December 2005 and brings into force certain provisions of the Clean Neighbourhoods and Environment Act 2005.

Part 8 of the Act, including Schedules 2 and 3 are brought into force as well as Part 8 of Schedule 5 of the Act, all of which relate to the creation of a new Commission for Architecture and the Built Environment and the dissolution of the old commission.

See link to OPSI website here.


Scottish

The Environmental Assessment (Scotland) Act 2005

Having received Royal Assent on 14 December 2005, provision is made for the assessment of the environmental effects of certain plans and programmes within the Environmental Assessment (Scotland) Act 2005, which also includes provision regarding plans and programmes to which Directive 2001/42/EC relates.

Part 1 of the Act sets out the basic requirement to carry out an environmental assessment at the time that a qualifying plan or programme is being prepared, prior to the submission of the plan or programme to the legislative process or before its adoption.

It contains provisions for establishing which plans or programmes should be subject to an environmental assessment with section 5 setting out the qualifying plans and programmes while sections 6 makes provision for the types of excluded plans and programmes.

Part 2 of the Act sets out the requirements for performing, scoping and producing the environmental report as well as the requirements for consultation and the taking into account of consultation responses in reaching a final decision to adopt a particular plan or programme.

Part 3 of the Act makes provision for the announcement of the adoption of any plan that has been subject to an environmental assessment and sets out the arrangements for the monitoring of implementation of the plan.

Part 4 of the Act makes provision in respect of annual reports on the exercise of the functions of the Scottish Ministers under the Act, while the final part of the Act, part 5 makes a number of general provisions and revokes the Environmental Assessment of Plans and Programmes (Scotland) Regulations 2004.

See link to OPSI website here.


The Contaminated Land (Scotland) Regulations 2005

The Contaminated Land (Scotland) Regulations 2005 were made on 20 December 2005 and with the exception of Regulations 2(3)(d) and (e), which came into operation on 21 December 2005, are due to come into force on 1 April 2006.

The Regulations amend Part IIA of the Environmental Protection Act 1990 and the Contaminated Land (Scotland) Regulations 2000 in light of the Water Environment and Water Services (Scotland) Act 2003.

As both Part IIA of the 1990 Act and the 2000 Regulations, make provision in respect of pollution of "controlled waters", it is necessary to amend both legislative provisions in order to align the contaminated land regime with the requirements of the 2003 Act.

The draft Regulations therefore introduce a change in terminology from "controlled waters" to "the water environment" to ensure consistency of approach in the operation of the pollution control regime as provided for under the 2003 Act, with the provisions of Part IIA of the 1990 Act which concern contaminated land as a source of pollution of the water environment.

Similar amendments are made to the 2000 Regulations to ensure consistency of approach in the designation of special sites under those Regulations with the pollution control regime provided for under the 2003 Act.

The draft Regulations also make amendments to the definition of contaminated land by introducing a requirement that pollution be "significant" or likely to be "significant" in relation to the water environment and a definition of "harm" is introduced in relation to the water environment.

Regulation 2(11)(b) also inserts a new subsection (1A) into section 78YB of the 1990 Act, such that a remediation notice shall not be served where land would otherwise be remediated by virtue of enforcement action under the Water Environment (Controlled Activities) (Scotland) Regulations 2005.

See link to OPSI website here.

The Protection of Water Against Agricultural Nitrate Pollution (Scotla
nd) Amendment Regulations 2005
The Scottish Regulations on the protection of Nitrate Vulnerable Zones (NVZ's) has been updated with the Protection of Water Against Agricultural Nitrate Pollution (Scotland) Amendment Regulations 2005 having been made on 23 November 2005, and due to come into force on 20 December 2005.

The Regulations amend the Protection of Water Against Agricultural Nitrate Pollution (Scotland) Regulations 1996, which gave effect to Council Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources.

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



The Fossil Fuel Levy (Scotland) Amendment Regulations 2005

The Fossil Fuel Levy (Scotland) Amendment Regulations 2005 were laid before the Scottish Parliament on 15 December 2005 and will come into force on 1 April 2006.

The Regulations amend the Fossil Fuel Levy Regulations 1996 following the introduction of the British Electricity Trading and Transmission Arrangements on 1st April 2005 and make provision for payments out of levy to be made to a person nominated by the supply successor companies ("the nominated person").

Regulation 3 imposes the levy and Regulation 4 prescribes the Gas and Electricity Markets Authority as the person to collect payments from licensed suppliers and make payments to the nominated person.

Regulation 5 sets out the method of calculating the amounts to be paid to or by the nominated person. Provision is also made within the Regulations for the calculation of the levy and publication of this.

See link to OPSI website ,a href="here.


Northern Irish

The Landfill Allowances Scheme (Amendment) Regulations (Northern Ireland) 2005
The Landfill Allowances Scheme (Amendment) Regulations (Northern Ireland) 2005 were made on 30 December 2005 and will come into operation on 1 March 2006.

The Regulations amend the Landfill Allowances Scheme (Northern Ireland) Regulations 2004 by reducing the level of penalty to which a district council is liable under section 9(2) of the Waste and Emissions Trading Act 2003 from £200 multiplied by the excess landfill for that district council to £150 multiplied by the excess landfill by that district council.

See link to OPSI website here.


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