Edie Legislation Summary September 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

Environmental Crime

The final text of the new European Directive on the protection of the environment through criminal law has been published by the European Council.

The Directive aims to achieve more effective environmental protection by obliging Member States to provide for criminal penalties in respect of serious infringements of Community environmental protection laws.

Member States are at liberty to 'gold-plate' the Directive, applying even more stringent measures than those specified.

The Directive provides that anyone carrying out certain activities unlawfully, either intentionally or through serious neglect, is committing a criminal offence.

The activities include the following activities where they are carried out unlawfully, and cause or are likely to cause death or serious injury to any person or substantial damage animals or plants or to the quality of air, soil or water:

  • the release of materials or ionising radiation into air, soil or water;
  • the collection, transport, recovery or disposal of waste;
  • the operation of plant where dangerous activities are carried out and/or where dangerous materials are stored and used; and
  • the production, processing, handling, transport or disposal of radioactive substances.

The Directive also criminalises the following activities, when carried out unlawfully and committed intentionally or with serious neglect:

  • the shipment of waste in non negligible quantities;
  • the killing, destruction, possession or taking specimens of protected plant or wildlife and the trading in such specimens,
  • the conduct causing significant deterioration of habitats within a protected site; and
  • the production, marketing or use of ozone depleting substances.

Both individuals and companies may be criminally liable under the Directive, and such liability also extends to those inciting, aiding and abetting any intentional conduct. Criminal liability may also arise where the offence took place because of a lack of supervision and control.

The Directive requires Member States to ensure that offences are punishable by effective, proportionate and dissuasive criminal penalties. The European Commission had proposed a harmonised European penalty system, but this was abandoned after the ECJ ruled that the determination of the type and level of criminal penalty to be applied was not within the Community's competence and should be left to the individual Member State governments.

Although agreement on the Directive was reached in May, it will not enter into force until it has been published in the Official Journal of the European Union. Member States must then transpose the Directive into national law within two years of the date of entry into force.

The text of the Directive is available from the link below:-
http://register.consilium.europa.eu/pdf/en/08/st03/st03639.en08.pdf

EUROPE & UK

Export and Import of Dangerous Chemicals

EC Regulation 304/2003 concerning the export and import of dangerous chemicals implemented the Rotterdam Convention in the European Community by establishing a system of prior and informed consent for the export and import of dangerous chemicals.

However, this Regulation was annulled in January 2006 by the European Court of Justice (ECJ) in case C-178/03 (Commission v Parliament and Council ) on the grounds that it was founded on an incorrect legal base. Nevertheless, the ECJ stated that the effects of the Regulation were to be maintained until a new Regulation was adopted.

This has now happened with the adoption of EC Regulation 689/2008 concerning the export and import of dangerous chemicals, which now implements the Rotterdam Convention within the European Community.

In order to provide for the enforcement of this new EC Regulation within the UK, the Government has enacted the Export and Import of Dangerous Chemicals Regulations 2008. These new Regulations revoke the Export and Import of Dangerous Chemicals Regulations 2005, the Export of Dangerous Chemicals Regulations (Northern Ireland) 1992 and the Export of Dangerous Chemicals (Amendment) Regulations (Northern Ireland) 1999. The new Regulations also amend a number of Regulations, including the Notification of New Substances Regulations 1993, the Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 and their Northern Irish equivalents.

The new Regulations continue to implement the Rotterdam Convention within the UK by maintaining existing controls on the export and import of dangerous chemicals. The Regulations maintain the common notification procedure for the export of chemicals that are banned or severely restricted within the Community and make provision for the prevention of the export of such chemicals unless explicit consent from the importing country has been obtained.

With respect to dangerous chemicals, the Regulations also regulate the export of chemicals close to their expiry date, packaging labelling, information exchange as well as safety, storage, transit and trading information.

The new Regulations refer to the Annexes within the European Regulation 'as amended from time to time', to ensure that that enforcement of the UK Regulations always mirrors the latest version of the Community Regulation thus avoiding unnecessary and time consuming legislative amendments.

The Export and Import of Dangerous Chemicals Regulations 2008 came into force on 3rd September 2008.

The text of the new EC Regulation and UK Regulations is available via the links below: -

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:204:0001:0035:EN:PDF

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082108_en.pdf

http://www.opsi.gov.uk/si/si2008/em/uksiem_20082108_en.pdf

UK

Batteries Directive

The Batteries and Accumulators (Placing on the Market) Regulations 2008 will enter into force on 26th September 2008, partially implementing the Batteries Directive (2006/66/EC).

The new Regulations dictate that new batteries and accumulators placed on the market on or after 26th September must not contain more than specified levels of mercury and cadmium. They also require certain batteries and accumulators containing more than a specified level of mercury, cadmium and lead to be labelled with the appropriate chemical symbol.

In order to promote recycling the new Regulations require all batteries and accumulators to be marked with a crossed out wheeled bin symbol.

With the exception of when continuity of power supply is necessary for safety, performance, medical or data integrity reasons, and a permanent connection between the equipment and the battery or accumulator is required as a result, the new Regulations require new electrical and electronic equipment to be designed so that it facilities the easy removal of waste batteries and accumulators for recycling purposes.

Furthermore, such equipment must be accompanied by instructions showing how the battery or accumulator can be removed safely and, where appropriate, providing details of the type of battery or accumulator installed.

The Regulations enable the enforcing authority to serve compliance and enforcement notices, and in some cases require the withdrawal of non compliant goods from the market.

Those who contravene the Regulations or fail to comply with a compliance or enforcement notice will be committing a criminal offence and may be required to pay the costs of any investigation, take remedial action or pay a fine of up to £5,000.

The Regulations and Explanatory Note can be accessed at the following links:-

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082164_en.pdf

http://www.opsi.gov.uk/si/si2008/em/uksiem_20082164_en.pdf

ENGLAND & WALES

Conservation

The Conservation (Natural Habitats, &c.) Regulations 1994 implement the Habitats Directive in Great Britain. The Regulations list those European Protected Species (EPS) whose natural range includes Great Britain and prohibits the deliberate capture, killing, injuring or disturbance of EPS, as well as damage or destruction of breeding sites and resting places. The Regulations provide the necessary protection through the creation of a number of criminal offences.

From 1st October new Regulations will add three new species, the pool frog, the Fisher's estuarine moth and the lesser whirlpool ram's-horn snail to the list of protected species in England and Wales.

The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2008 will amend the 1994 Regulations, with the result that these three species will be afforded the strict protection required by the Habitats Directive.

The Regulations and Explanatory Memorandum can be accessed at the following links:-

http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082172_en.pdf

http://www.opsi.gov.uk/si/si2008/em/uksiem_20082172_en.pdf

WALES
Conservation

A new Order which aims to save a number of animals from extinction came into force on the 12th August 2008. The Wildlife and Countryside Act 1981 (Variation of Schedule 5) (Wales) Order 2008 amended Schedule 5 to the Wildlife and Countryside Act 1981, which lists animals protected under section 9 of the Act, in relation to Wales.

Four animals have been added to Schedule 5 of the Act. Two seahorse species (short snouted seahorse and spiny seahorse) have been given general protection whereas the angel shark and the roman snail have been given limited protection.

The Order states that the protection afforded to the angel shark will not apply to those territorial waters between 6 and 12 nautical miles from baselines.

The Order also amends the Act by replacing the limited protection previously afforded to the water vole by general protection.

The text of the Order may be accessed via the link below:-
http://www.opsi.gov.uk/legislation/wales/wsi2008/pdf/wsi_20081927_mi.pdf

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