Edie Legislation Summary October 2008

Recent changes to legislation which will impact on the environmental sector come under the spotlight in this Semple Fraser and Edie News monthly round-up of new law and policy.

EUROPE

Chemicals

EC Regulation 987/2008 will come into force on November 11 amending EC Regulation 1907/2006 on the registration, evaluation, authorisation and restriction of chemicals (the REACH Regulation) as regards its Annexes IV and V.

Substances included in Annex IV of the REACH Regulation are exempted from the obligation to register under REACH as sufficient information is known about them and they are considered to present minimum risk.

Substances covered by Annex V of the REACH Regulation are also exempted from the obligation to register as registration is deemed inappropriate or unnecessary.

The amendment Regulation removes three substances (vitamin A, carbon and graphite) from Annex IV as insufficient information is known to consider them as presenting minimum risk.

Vitamin A is removed as it may present a risk of reproductive toxicity. Carbon and graphite are also removed because the relevant Einecs and/or CAS numbers for carbon and graphite are also used to identify forms of carbon or graphite at the nanoscale which do not meet the criteria for inclusion in Annex IV. Limestone is also deleted from Annex IV because it is a mineral and is already exempted in Annex V.

Deemed to fulfil the relevant criteria, three noble gases (helium, neon and xenon) have been moved from Annex V to Annex IV. The noble gas krypton also meets the necessary criteria so has also been added to Annex IV for consistency.

Three other substances (fructose, galactose and lactose) have also been added to Annex IV because they also meet the criteria for inclusion.

Certain entries for oils, fats, waxes, and fatty acids have been deleted from Annex IV as not all of them meet the criteria for inclusion. However, certain oils, fats, waxes, fatty acids, as well as glycerol, chemically un-modified and obtained from natural sources, which do not possess and hazardous properties beyond flammability and skin or eye irritancy, have been included as a generic entry in Annex V.

Magnesia is also included in Annex V as it has been identified as a substance meeting the criteria for inclusion.

Furthermore, certain types of glass and ceramic frits which do not have dangerous constituents are also added to Annex V.

The text of EC Regulation 987/2008 is available via this link:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:268:0014:0019:EN:PDF

UNITED KINGDOM

Landfill tax

Subject to certain conditions, and provided a certificate from the HMRC has been issued, waste generated from the clean up of contaminated land, and disposed of to landfill, has always been exempt from the imposition of landfill tax. The rationale behind this exemption was to provide an incentive for the clean up of contaminated land.

Although it is Government policy to provide assistance for the clean up of contaminated land, the landfill tax exemption for waste originating from the clean up of contaminated land undermines a separate Government objective - the reduction of environmental damage from the landfilling of waste.

In a move aimed at addressing this inconsistency and to encourage non-landfill waste management options for dealing with contaminated land, such as decontaminating the waste on site, the Government has introduced the Landfill Tax (Material from Contaminated Land) (Phasing out of Exemption) Order 2008.

The order will amend sections 43A, 43B and 54(1) of the Finance Act 1996 in order to phase out the exemption from landfill tax on the disposal of material from the clean-up of contaminated land at landfill sites, with the exemption to be completely withdrawn from April 1, 2012.

In order to phase out the exemption, the new order dictates that applications for exemption certificates must be made by December 1, 2008. Any existing exemption certificates, issued following an application made before December 1, 2008, will cease to be valid from April 1, 2012.

The text of the new regulations, together with an explanatory memorandum, is available via these links:

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082669_en.pdf

http://www.opsi.gov.uk/si/si2008/em/uksiem_20082669_en.pdf

GREAT BRITAIN

Chemicals

The Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations 2008 came into force on October 1 in order to revise and update the rules and procedures for classifying and labelling dangerous chemicals.

These regulations correct errors in the Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 in transposing provisions of Directive 1992/32/EC (amending for the 7th time the Dangerous Substances Directive (67/548/EEC)) and the Dangerous Preparations Directive 1999/45/EEC.

The Regulations correct a cross reference in the 2002 Regulations, relating to particular labelling requirements for certain preparations, and revoke amendments made in error which duplicated amendments made in an earlier legislative instrument.

The Regulations also amend the 2002 Regulations in order to implement the provisions of Directive 2006/8/EC (the second Adaptation to Technical Progress of the Dangerous Preparations Directive).

The amendments adjust:-

  • the rules and procedures for classifying and labeling chemical preparations containing carcinogenic, mutagenic, toxic for reproduction and ozone depleting substances

  • the generic concentration limits used to evaluation ecotoxic substances

  • warning phrases on labels in order to make them clearer and more consistent


  • The Regulations also amend the Control of Major Accident Hazards Regulations 1999 (as amended) to designate the Health and Safety Executive as enforcing authority except in circumstances where it is provided that the relevant Local Authority should take that role.

    The text of the new regulations together with an explanatory memorandum is available via these links:

    http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082337_en.pdf

    http://www.opsi.gov.uk/si/si2008/em/uksiem_20082337_en.pdf

    ENGLAND & WALES

    Energy performance of buildings

    The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) (Amendment No.2) Regulations 2008 entered into force on October 1, amending the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007, the Building Regulations 2000, the Building (Approved Inspectors etc.) Regulations 2000 and the Home Information Pack (No.2) Regulations 2007.

    The new regulations amend the Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 to enable those in possession or control of energy performance certificates (EPCs) and related documents to disclose them to:-

  • an energy assessor for purposes connected with the assessment of a dwelling

  • an approved inspector in connection with building control functions

  • the Energy Saving Trust Ltd for the purpose of providing an occupier of a dwelling with information on financial assistance available for improving energy performance and for statistical and research purposes


  • The Energy Performance of Buildings (Certificates and Inspections) (England and Wales) Regulations 2007 are also amended in order to allow the keeper of the Register to divulge to anyone whether an EPC is registered for a non-dwelling building, and when it was registered.

    It is envisaged that this will benefit commercial landlords whose tenants may have commissioned newer EPCs, without their knowledge, thus invalidating earlier EPCs. It will also enable prospective buyers and tenants to determine whether the building already has an EPC.

    Other changes include an extension to the validity of an EPC, to be included in a Home Information Pack, from 12 months to 3 years and the transitional arrangements for obtaining and exhibiting an EPC, for non-dwellings, are extended until January 4, 2009, meaning that up until that date, a seller or a prospective landlord need not commission an EPC until after exchange of contracts, rather than having to make the EPC available when the property initially goes on the market.

    The Building Regulations 2000 and the Building (Approved Inspectors etc.) Regulations 2000 are also amended so as to ensure that local authorities and approved inspectors are given the registration number of an EPC as part of the notice that it has been given, thus enabling its validity to be checked.
    The new regulations also change the latest date by which an EPC, and notice, must be presented. The date will be no later than five days after completion of work under the Building Regulations 2000 and no later than five days after completion of the work or the date on which the initial notice ceases to be in force, whichever is earlier, when the Building (Approved Inspectors etc.) Regulations 2000 apply.

    The text of the new regulations together with an explanatory memorandum is available via these links:

    http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082363_en.pdf

    http://www.opsi.gov.uk/si/si2008/em/uksiem_20082363_en.pdf

    IPPC

    The Pollution Prevention and Control (Designation of Directives) (England and Wales) Order 2008 came into force on October 6.

    This Order designates Directive 2006/21/EC (on the management of waste from extractive industries and amending Directive 2004/35/EC) and Directive 2008/1/EC (concerning integrated pollution prevention and control), as amended from time to time, as relevant directives for the purposes of paragraph 20(2)(c) of Schedule 1 to the Pollution Prevention and Control Act 1999.

    The text of the new Regulations is available via this link:

    http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082549_en.pdf

    Pesticides

    Maximum Residue Levels (MRLs) reflect levels of pesticides that are expected to be found in produce that has been treated in accordance with good agricultural practice. MRLs therefore provide a mechanism for statutory control on pesticide levels in produce and for monitoring use of pesticides.

    The Pesticides (Maximum Residue Levels) (England and Wales) Regulations 2008 come into force on November 1, 2008 setting inspection, prohibition, enforcement and penalty provisions to ensure compliance with MRLs laid down in EC Regulation 396/2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin.

    The MRLs laid down in EC Regulation 396/2005 replace and supplement MRLs previously set by Directives 76/895/EEC, 86/362/EEC, 86/393/EEC and 90/642/EEC which were previously transposed in England and Wales under the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (England and Wales) Regulations 2005.

    The new Regulations also designate the Health and Safety Executive as the national authority for the purpose of EC Regulation 396/2005.

    The text of the new Regulations together with an explanatory memorandum is available via these links:

    http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082570_en.pdf

    http://www.opsi.gov.uk/si/si2008/em/uksiem_20082570_en.pdf

    ENGLAND

    Commercial property rates

    The Valuation for Rating (Plant and Machinery) (England) Regulations 2000 set out the classes of plant and machinery relevant to the rateable value of non domestic properties.

    New regulations, the Valuation for Rating (Plant and Machinery) (England) (Amendment) Regulations 2008, came into force on October 1, amending the 2000 regulations so as to ensure that installation of plant and machinery with microgeneration capacity will not have an immediate effect on the rateable value of non domestic properties in England.

    The practical effect of the amendment is that commercial rate payers who install microgeneration equipment such as solar panels, wind turbines and ground source heat pumps on or after October 1, 2008 will be shielded from any rise, as a consequence of the investment in the microgeneration plant and machinery, until the next five yearly rates review which is scheduled to take place on April 1, 2010.

    The text of the new regulations and further information is available via these links:

    http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082332_en.pdf

    http://www.opsi.gov.uk/si/si2008/em/uksiem_20082332_en.pdf

    http://www.communities.gov.uk/news/corporate/955160

    Agriculture

    The Nitrate Pollution Prevention Regulations 2008 revoke and replace three sets of regulations - the Protection of Water against Agricultural Nitrate Pollution (England and Wales) Regulations 1996, the Action Programme for Nitrate Vulnerable Zones (England and Wales) Regulations 1998 and the Protection of Water Against Agricultural Nitrate Pollution (England and Wales (Amendment) Regulations 2006.

    These Regulations implement Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources (the Nitrates Directive) in so far as they apply to England.

    The new Regulations have been made in order to update the implementation of the Nitrates Directive following a review of the areas designated as nitrate vulnerable zones (NVZs) and the effectiveness of Action Programme measures conducted in 2005/2006.

    The new regulations extend the areas designated as NVZs and make changes to the Action Programme by specifying various actions which must be taken by farmers in NVZs in order to reduce and prevent nitrate leaching and run-off to waters from manures and fertilisers.

    The new regulations reduce the annual limit of nitrate application, of livestock manure, to grassland for farms situated in NVZs, from 250 kg/ha to 170 kg/ha from 250 kg/ha (the previous lower limit applied to land other than grassland).

    The closed periods for spreading organic manures will be longer under the new Regulations and will apply to all soil types. The amount of organic manure storage capacity required will also be increased to reduce the risk of manures being spread when conditions are unsuitable.

    The changes come into force on January 1, 2009, although some measures have been given a grace period, for compliance, of up to three years to enable farmers to make necessary adjustments to their farming practices and to invest in new equipment and/or storage facilities. The new Regulations also introduce transitional measures for farms not previously in a NVZ.

    The text of the new Regulations together with an explanatory memorandum is available via these links:

    http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082349_en.pdf

    http://www.opsi.gov.uk/si/si2008/em/uksiem_20082349_en.pdf

    SCOTLAND

    Energy Performance of Buildings

    New regulations which transpose, for Scotland, further provisions of the European Directive on the Energy Performance of Buildings, will come into force on January 4, 2009.

    Under the Energy Performance of Buildings (Scotland) Regulations 2008, from January 4, 2009, anyone selling or letting any property in Scotland will be required to produce an Energy Performance Certificate (EPC). The requirement to produce an EPC however does not appear to extend to landlords renewing the leases of their existing tenants.

    Under the new regulations, when deciding whether to buy or lease a building, a prospective buyer or prospective tenant is entitled to be supplied with an EPC as soon as they request information about a building, a viewing, and/or when they make a verbal or written offer to buy or lease. From January 4, 2009 owners or occupiers of public buildings must also display an EPC within the building in a place clearly visible to members of the public.

    The new regulations require a register of EPCs to be maintained. The keeper of the register will only be permitted to disclose details of an EPC and/or associated data to certain individuals and in certain circumstances, namely:

  • to an approved organisation, whose members may issue EPCs, when the EPC was prepared by a member of that organisation

  • to an enforcement authority or to an officer of the Scottish Ministers when requested to do so.

  • The regulations also enable the Scottish Ministers and the keeper of the register to use any EPC or associated data for providing advice or guidance on the energy performance of buildings and for statistical or research purposes providing no building is identifiable from the information disclosed.

    The new regulations designate every local authority as an enforcement authority. A local authority may require an owner of a building to produce a copy of the EPC for their building within seven days of receiving a request from them to do so.

    Owners of buildings who fail to make an EPC available may be served with a penalty charge notice and liable to pay a penalty. If the building in question is a domestic building, or is ancillary to a domestic building, the penalty is £500, while a penalty of £1,000 will apply in all other cases. The recipient of a penalty charge notice may, however, challenge the decision of the local authority by requesting a review, and where this is confirmed following review, the recipient may appeal to the Sheriff Court.

    The text of the new regulations together with an accompanying executive note is available via these links:

    http://www.opsi.gov.uk/legislation/scotland/ssi2008/pdf/ssi_20080309_en.pdf

    http://www.opsi.gov.uk/legislation/scotland/ssi2008/en/ssien_20080309_en.pdf

    New regulations will come into force on January 4, 2009 amending the Building (Scotland) Regulations 2004 to take account of new legislation concerning the energy performance of buildings.

    The Buildings (Scotland) Amendment Regulations 2008 will insert a definition of "energy performance certificate", which has the same meaning as that set out in the Energy Performance of Buildings (Scotland) Regulations 2008 and will amend Standard 6.9 of Schedule 5 to the 2004 regulations, which sets out the role of the of "energy performance certificate" in ensuring that a building is designed and constructed in such a way that provision is made for energy conservation, so as to reflect the definition of "energy performance certificate".

    The new regulations also revise Schedule 3 to ensure that work that done to fix an energy performance certificate to a building does not require a warrant under the Building (Scotland) Regulations 2004.

    http://www.opsi.gov.uk/legislation/scotland/ssi2008/pdf/ssi_20080310_en.pdf

    http://www.opsi.gov.uk/legislation/scotland/ssi2008/en/ssien_20080310_en.pdf

    Agriculture

    The Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2008 come into force on January 1, 2009 implementing further provisions of the European Directive 91/676/EEC concerning the protection of waters against pollution caused by nitrates from agricultural sources (the Nitrates Directive) by establishing a revised action programme for nitrate vulnerable zones (NVZs) in Scotland.

    The new Regulations revoke the previous action programme established by the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2003 as amended.

    Under the new Regulations the occupier of a farm situated in a NVZ must ensure that a fertilizer and manure management plan is prepared each year. The new Regulations also require farmers to have sufficient storage capacity for manure and slurry, although the temporary storage of solid manure in field heaps is permitted, subject to certain conditions. Limits and conditions for the application of fertilizer and manure are imposed by the new Regulations.

    For nitrogen, farmers are required to calculate the nitrogen fertilizer requirements of crops to be grown and must not exceed the required amount and must also take into account the quantity of nitrogen uptake by crops from any livestock manure. Under the Regulations the amount of nitrogen in livestock manure that may be applied on a farm, is limited to 170 kg/ha whereas the amount of nitrogen in organic manure, excluding that deposited by grazing animals, to be applied to any field is limited to 250 kg/ha.

    Finally, the Regulations also specify closed periods, in autumn and early winter, during which time chemical fertilizer and organic manure must not be applied to land. and farmers are required to prepare records and keep them available for inspection.

    The text of the new regulations together with an accompanying executive note is available via these links:

    http://www.opsi.gov.uk/legislation/scotland/ssi2008/pdf/ssi_20080298_en.pdf

    http://www.opsi.gov.uk/legislation/scotland/ssi2008/en/ssien_20080298_en.pdf

    NORTHERN IRELAND

    Waste

    The Producer Responsibility Obligations (Packaging Waste) (Amendment No 2) Regulations (Northern Ireland) 2008 came into operation on October 13, amending the Producer Responsibility Obligations (Packaging Waste) Regulations 2007.

    Under the 2007 Regulations exporters of waste must be accredited by the Department of the Environment before they can issue a packaging waste export recovery notes (PERNs) as evidence of the quantity of packaging waste specified for reprocessing outside the UK.

    These amendment Regulations revise the requirements for accreditation of an exporter imposed by the 2007 Regulations.

    The text of the amendment Regulations is available via this link:

    http://www.opsi.gov.uk/sr/sr2008/nisr_20080373_en_1

    WALES

    Planning

    The Town and Country Planning (Environmental Impact Assessment) (England and Wales) Regulations 1999 implement, in England and Wales, the European Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended (the EIA Directive).

    From October 6th the Town and Country Planning (Environmental Impact Assessment) (Amendment) (Wales) Regulations 2008 amend the 1999 Regulations so that they apply in respect of applications or approval of reserved matters and in respect of applications for subsequent approval of matters under conditions attached to planning permissions in Wales.

    The new Regulations also amend the Town and Country Planning (Determination of Appeals by Appointed Persons) (Prescribed Classes) Regulations 1997 so as to exclude from the reserved classes of appeal, enforcement appeals relating to unauthorised development to which the EIA Directive applies.

    The text of the new Regulations is available via this link:

    http://www.opsi.gov.uk/legislation/wales/wsi2008/pdf/wsi_20082335_mi.pdf

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