Edie environmental legislation summary (April 2005)
In this month's Semple Fraser round-up of new policies and recent changes to legislation that will impact the environmental sector in the UK, Europe and internationally: new aviation emission levels; GM ruling; changes to EU Energy Act; Landfill Tax amendments and the Landfill Allowances and Trading Scheme; pesticide controls; water resources regulations and more.
ICAO Council adopts new standards for aircraft emissions
The 36-member Council of the International Civil Aviation Organisation (ICAO) took the unanimous decision on 2 March 2005 to adopt new levels for nitrogen oxides (NOx). Created in 1944 to promote the safe and orderly development of international civil aviation throughout the world, and being a specialised agency of the United Nations, the ICAO sets standards and regulations necessary for aviation safety, security, efficiency and regularity, as well as for aviation environmental protection.
In close co-operation with international organisations concerned with the air transport industry, ICAO aims to limit or reduce the number of people affected by significant aircraft noise, the impact of aviation emissions on local air quality, and the impact of aviation greenhouse gas emissions on the global climate. Since 1981, ICAO has issued progressively stricter Standards and Recommended Practices (SARPs) for aircraft engine emissions, with the latest agreed levels now being 12 per cent more rigorous than previous levels agreed to in 1999. The new levels will take effect in 2008.
Recommendation 2005/178/EC of 1 March 2005 concerning a co-ordinated Community monitoring programme for 2005 to ensure compliance with maximum levels of pesticide residues in and on cereals and certain other products of plant origin and national monitoring programmes for 2006.
Directives 86/362/EEC and 90/642/EEC provide that the Commission should progressively work towards a system which would permit the estimation of dietary exposure to pesticides. Guidelines concerning quality control procedures for pesticide residue analysis are published on the Commission website and it is agreed that these guidelines should be applied as far as possible by the analytical laboratories of the Member States and should be reviewed continuously in the light of experience gained in the monitoring programmes.
Member States are invited, during the year 2005, to take and analyse samples for the product/pesticide residue combinations set out in Annex I of this Recommendation, on the basis of the number of samples of each product allocated to them in Annex II.
Corrigendum dated 5 March 2005 to a Commission Decision of 28 February 2005 which established guidance notes supplementing part B of Annex II to Council Directive 90/219/EEC on the contained use of genetically modified micro-organisms.
This Corrigendum is an amendment to an earlier Commission Decision which set out that the criteria listed in part B of Annex II to Directive 90/219/EEC must be met in order to establish the safety of a genetically modified micro-organism for human health and the environment and its suitability for inclusion in part C of Annex II to that Directive.
It further stated that the application of those criteria should be facilitated through the provision of guidance notes for Member States, as an aid to ensuring that the national competent authorities carry out their preliminary assessment in an appropriate manner and provide appropriate information to users as to the content of dossiers to be submitted. The guidance notes were set out in the Annex in the earlier Commission Decision but have been replaced in their entirety by the Annex in this Corrigendum.
Directive 2005/21/EC of 7 March 2005 adapting to technical progress Council Directive 72/306/EEC on the approximation of the laws of the Member States relating to the measures to be taken against the emission of pollutants from diesel engines for use in vehicles.
This Directive states that with effect from 9 March 2006, Member States shall no longer grant EC type-approval pursuant to Article 4(1) of Directive 70/156/EEC, and may refuse national type-approval for a new type of vehicle, on grounds relating to the emission of pollutants from diesel engines if it fails to comply with the provisions of Directive 72/306/EEC.
Directive 2005/20/EC of 9 March 2005 amending Directive 94/62/EC on packaging and packaging waste.
This Directive essentially amends the original packaging and packaging waste Directive so that those Member States who have recently acceded to the EU will get additional time to adapt their recycling and recovery systems to the required targets.
Member States having acceded to the EU by virtue of the Accession Treaty of 16 April 2003 may postpone the attainment of the targets referred to in paragraph 1(b), (d) and (e) of Directive 94/62/EC until a date of their own choosing which shall not be later than 31 December 2012 for the Czech Republic, Estonia, Cyprus, Lithuania, Hungary, Slovenia and Slovakia, 31 December 2013 for Malta, 31 December 2014 for Poland and 31 December 2015 for Latvia.
The Energy Act 2004 (Nuclear Decommissioning) (Exempt Activities and Further Conditions) Regulations 2005
These Regulations, made in March but which came into force on 1 April 2005, make provision regarding the activities of the Nuclear Decommissioning Authority (“the NDA”). They define exempt activities for the purposes of section 27 of the Energy Act 2004 and impose additional conditions regarding those NDA companies the whole of whose share capital is not owned directly or indirectly by the NDA.
The Energy Act 2004 (Designation of Companies and Designated Date) Order 2005
This Order, made in March but which came into force on 1 April 2005, designates companies which are publicly controlled companies to which either securities of the Nuclear Fuels Company (within the meaning of the Atomic Energy Authority Act 1971) (“BNFL”) or property or rights or liabilities of BNFL or a wholly owned subsidiary of BNFL have been transferred.
The Landfill Tax (Amendment) Regulations 2005
These Regulations were made in March but Regulations 3 and 5 came into force on 6th April 2005 and are required following the amendment to section 66 of the Finance Act 1996 which added to the categories of landfill site land in relation to which a permit under regulations under section 2 of the Pollution Prevention and Control Act 1999 or under regulations under Article 4 of the Environment (Northern Ireland) Order 2002 is in force.
Regulation 4, which came into force on 1st April 2005, amends regulation 31 of the Landfill Tax Regulations 1996 by reducing the maximum amount as a percentage of his annual landfill tax liability that a landfill site operator may claim as credit in the scheme whereby operators are entitled to credit based on the contributions they give to approved bodies with objects concerned with the environment.
The Landfill Tax (Site Restoration, Quarries and Pet Cemeteries) Order 2005
This Order, made in March but which came into force on 6th April 2005, makes amendments to the Finance Act 1996 relating to exemptions from landfill tax – these amendments were necessary to update the landfill tax exemptions with the PPC permitting regime now operating and still being phased across waste sectors. The entitlements to the exemptions available under the Finance Act under section 43C of the Act (site restoration), section 44A of the Act (quarries) and section 45 of the Act (pet cemeteries) applies to a landfill site covered by a permit in the same way as it applies to a site covered by a licence or resolution.
The Energy Act 2004 (Commencement No. 4) Order 2005
This Order made in March 2005 brings into force provisions of the Energy Act 2004. The provisions in Schedule 1 came into force on 1st March 2005, the provisions in Schedule 2 came into force on 31st March 2005 and the provisions in Schedule 3 will not come into force on 1st September 2005. The remaining provisions will be brought into force by subsequent orders.
The Energy Act 2004 (Commencement No 5) Order 2005
This Order made in March brings into force provisions of the Energy Act 2004. The provisions in Schedule 1 came into force on 1st April 2005, the provisions in Schedule 2 will not come into force until 1October 2005 and the provisions in Schedule 3 until 1st January 2006. The remaining provisions will be brought into force by subsequent orders.
The Regulatory Reform (Joint Nature Conservation Committee) Order 2005
This Order, made in March but which did not take effect until 1 April 2005, will allow the Joint Nature Conservation Committee (JNCC – which includes the Countryside Council for Wales, English Nature and Scottish Natural Heritage – but does not include the Northern Irish Heritage Service) to make changes as part of a package of measures implementing the Government response to the Financial, Management and Policy Review of JNCC, which reported in 2002.
The Order will allow JNCC to employ its own staff and pay staff and its own Chair and independent Committee members, have some of its work directly funded by Government, secure its own accommodation and other facilities, set up a Company Limited by Guarantee and provide the corporate vehicle necessary to implement these changes.
These changes will hopefully reduce the level of administration concerned with staff management, remove substantial pay anomalies and enable JNCC to retain its skilled workforce (at present all staff working at JNCC are assigned from one of three country conservation agencies on different terms and conditions), enable Government to obtain services from JNCC in a more flexible and transparent manner and reduce the level of administration concerned with JNCC acquiring the services and facilities needed to deliver its statutory functions efficiently.
English & Welsh
The Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (England and Wales) (Amendment) Regulations 2005
These Regulations, which came into force on 26 March 2005 and apply to England and Wales, further amend the provisions of the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (England and Wales) Regulations 1999 to implement Directive 2004/95/EC. The definition of “the Residues Directives” is updated and new maximum residue levels are substituted in Part 2 of Schedule 2 for residues of the pesticides Bifenthrin and Famoxadone.
The Environmental Protection (Waste Recycling Payments) (England) (Amendment) Regulations 2005
These Regulations, made in March but which came into force on 1 April 2005 and apply to England only, substitute a new Schedule for that in the Environmental Protection (Waste Recycling Payments) (England) Regulations 2004, which make provision for determining the net savings of expenditure payable by waste disposal authorities to waste collection authorities and other persons who collect and retain waste for recycling.
The new Schedule provides figures for determining the net saving of expenditure where this cannot otherwise be determined because sufficient accurate information is not available or could only be obtained at a disproportionate cost. These figures are increased to take account of rises in the Retail Price Index (by 3.5%) and increases in landfill tax (to £18 a tonne).
The Water Industry (Determination of Turnover for Penalties) Order 2005
This Order applies to England and Wales only. New powers, agreed between Ofwat, the Secretary of State for the Environment and the Welsh Assembly, came into force on 1 April 2005 allowing statutory water companies and licensed water suppliers to be fined if they breach statutory duties, appointment or licence conditions, or if they do not meet required standards of performance – these are allowable under section 22A of the Water Industry Act 1991.
These new powers available to Ofwat will bring it into line with those already available to other regulators. This Order, made in March but which came into force on 1 April 2005, defines “applicable turnover” for the purposes of calculating such fines, in order to assist in the exercise of such powers.
The Producer Responsibility Obligations (Packaging Waste) (Amendment) (England and Wales) Regulations 2005
These Regulations, made in March but which only come into force on 7 April 2005 and which apply to England and Wales, amend the Producer Responsibility Obligations (Packaging Waste) Regulations 1997 which impose obligations on producers to recover and recycle packaging waste, and related obligations, to assist the UK in attaining the targets set out in Article 6(1) of Directive 94/62/EC (as amended by EC Regulation No 1882/2003 and Directive 2004/12/EC).
These new regulations allow reprocessors and exporters to apply for and the Environment Agency to grant accreditation at any time throughout the year. In addition they remove the requirement for a person to have applied for accreditation as a reprocessor or exporter by the 30th of September in the year preceding the year in which he is applying to be accredited.
They also remove the requirement for the relevant Agency to have notified the applicant of its decision by the 30 November, although the requirement to notify in writing remains. Finally, these new Regulations state that where accreditation is granted in the preceding year to that to which the application relates, it takes effect from the 1st January and in all other cases, from the date of the decision. Accreditations subsist until the 31st December.
Landfill Allowances and Trading Scheme (England) (Amendment) Regulations 2005
These Regulations, made in March but which will not come into force until 9 May 2005 and which apply to England only, are made under the Waste and Emissions Trading Act 2003 (WET). They amend regulation 20(1) of the Landfill Allowances and Trading Scheme (England) Regulations 2004 so that the figure “£200” is replaced by the figure “£150”.
As originally drafted, regulation 20(1) of the 2004 Regulations provided that the penalty to which a waste disposal authority is liable under section 9(2) of WET is the excess landfill for that waste disposal authority multiplied by £200. “Excess landfill” is defined for these purposes in regulation 20(2) of the 2004 Regulations.
Countryside and Rights of Way Act 2000 (Commencement No 7) Order 2005
This Order, made in March 2005 and which applies to England only, brings into force on 28 May 2005 section 2 of the Countryside and Rights of Way Act 2000 (which introduces a new right of access to access land) in so far as it relates to access land which is shown as open country or registered common land on a map in conclusive form and which lies within an area covered by one of the maps in conclusive form issued by the Countryside Agency on 25th January 2005 and 7th March 2005 (such maps relate to the upper north west area of England and the north east area of England, respectively).
The Order also brings into force section 2 in so far as it relates to access land which is dedicated as access land under section 16 of the Countryside and Rights of Way Act 2000, which is not shown as open country or registered common land on a map in conclusive form, but which lies within an area covered by one of the maps in conclusive form issued on 25th January 2005 and 7th March 2005.
The day appointed for section 2 in relation to such land is 28th May 2005 or the end of a period of six months beginning with the day on which the land is dedicated under section 16, whichever is the later.
The Waste Management Licensing (England and Wales) (Amendment and Related Provisions) Regulations 2005
These Regulations, which apply to England and Wales, were laid before parliament at the end of March and will come into force on the 1 July 2005. The Regulations amend the Waste Management Licensing Regulations 1994, in particular regulations 10 and 12, in order that each waste regulation authority must enter details of any risk appraisal undertaken for a site to which a waste management licence relates in the public register. The description of plant that are to be treated as being mobile plant are also varied.
Amendments are also made to the conditions which apply to various exempt activities listed in Schedule 3 to the 1994 Regulations by regulations 9 to 14, with a new exempt activity is inserted by regulation 15. More detailed notification requirements also apply in relation to certain exempt activities. Finally, the penalty for failure to register a notifiable exempt activity has been increased to £1000.
Water Services etc. (Scotland) Act 2005
This Act came into force on 17 March 2005 establishing the Water Industry Commission for Scotland, creating offences in relation to the unauthorised use of the public water and sewerage systems and providing for the licensing of certain water and sewerage services. The Act also amends the system for fixing charges for services provided by Scottish Water and makes provision as to Scottish Water’s functions as well as provision in relation to coal mine water pollution.
The Water Environment (Drinking Water Protected Areas) (Scotland) Order 2005
This Order, which came into force on 22 March 2005, identifies those bodies of water used for the abstraction of drinking water, as required by section 6(1) of the Water Environment and Water Services (Scotland) Act 2003. The maps identify the bodies of surface water and bodies of groundwater in the Scotland River Basin District which are used for the abstraction of drinking water and either provide more than 10 cubic metres per day, or serve more than 50 persons, or are intended for such use.
The Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Amendment Regulations 2005
These Regulations, which came into force on 25 March 2005, further amend the provisions of the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Regulations. They substitute new maximum residue levels in Part 2 of Schedule 2 of the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Scotland) Regulations for residue of the pesticides Bifenthrin and Famoxadone and also update the definition of “Residue Directives” to reflect and incorporate Directive 2004/95/EC.
The Pollution Prevention and Control (Scotland) Amendment Regulations 2005
These regulations, made in March but which came into force on 1 April 2005, amend the Pollution Prevention and Control (Scotland) Regulations 2000. They include amendments to the definition of “prescribed date” to take account of the newly inserted Part % of Schedule 3. Schedule 1, Part 1, section 4(“)(d), which relates to inorganic chemicals has also been amended by the deletion of references to chromium, manganese, nickel and zinc. Other amendments are made regarding the incineration of animal waste, and the treatment of certain animal feed compounding activities.
Finally, a new part 5 has been inserted within Schedule 3 to deal with existing waste incineration installations. Operators of existing waste incineration installations will be presumed to have notified SEPA of their intention to cease incineration waste within an installation prior to 28 December 2005. The prescribed date for certain Part A, section 5.1 activities will therefore be 27 December 2005.
The Landfill Allowances Scheme (Scotland) Regulations 2005
These Regulations, made in March but which (with the exception of regulation 8) came into force on 1 April 2005, implement Articles 5(1) and (2) of the Landfill Directive (Directive 99/31/EC) which require the establishment of a national strategy for the implementation of the reduction of biodegradable waste going to landfills, and makes provision for implementing Chapter 1 of part 1 of the Waste and Emissions Trading Act (waste sent to landfills) including the landfill allowances scheme under that Part.
These new 2005 Regulations provide for the allocation, banking, borrowing and transfer of landfill allowances. Following an allocation of landfill allowances the monitoring authority is required under Regulation 5 to assign reference numbers to those allowances and to allocate them to the landfill allowance accounts of waste disposal authorities. Regulation 6 provides that landfill allowances which are not used in any one scheme year can then be automatically banked to the next year.
Regarding the borrowing and transfer of allowances, under regulations 7 and 8, requests must be submitted to the monitoring authority before landfill allowances can be borrowed or transferred, which will be accepted subject to the satisfactory fulfilment of a number of conditions. However, the Scottish Ministers may suspend waste disposal authorities from banking, borrowing and transferring landfill allowances in a number of circumstances, which are set out in Regulation 9(1) and (2).
Regulation 10 provides that SEPA is the monitoring authority for Scotland in respect of the landfill allowances scheme, and subject to the duties set out in section 10(2) of the Waste and Emissions Trading Act 2003. Under Regulation 14 of the new Regulations SEPA is required to calculate how much biodegradable municipal waste is sent to landfill by each waste disposal authority in a scheme year, and reconcile this amount with the waste disposal authority’s allowances for that year.
The 2005 Regulations also impose obligations on waste disposal authorities and landfill operators to maintain certain records and make returns to SEPA. Finally, SEPA must maintain the landfill allowances register, which must be made available for inspection by members of the public, who may also obtain copies of any entry on payment of a reasonable charge.
Similar Regulations will come into force in England & Wales in May 2005.
The Water Resources (Environmental Impact Assessment) Regulations (Northern Ireland) 2005
These regulations came into force on 9 March 2005 and place a limit on the amount of water permitted for abstraction for agricultural purposes, introducing an abstraction threshold of 200 cubic metres in any 24-hour period. If this threshold is exceeded screening will be required to ensure that the activity is not causing significant harm to the environment.
If it is, an environmental impact assessment will be required and consent given before the activity can proceed. These are intended to implement the Environmental Impact Assessment Directive (Directive 85/337/EC as amended by Directive 97/11/EC) in Northern Ireland.
Renewables Obligation Order (Northern Ireland) 2005
This Order, made in March but which came into force on 1 April 2005, was made under Article 52 of the Energy (Northern Ireland) Order 2003, and imposes an obligation on all electricity suppliers who are licensed under the Electricity (Northern Ireland) Order 1992, to supply to customers specified amounts of electricity generated from renewable resources. The Renewables Obligations for Northern Ireland (NIRO) will be set at 2.5% of electricity supplied in 2005/06 and will increase to 6.3% by 2012/13.
Alternatively, an electricity supplier may provide evidence that other licensed electricity suppliers have supplied electricity generated using renewable sources instead of it or to make a payment to the Northern Ireland Authority for Energy Regulation. The evidence required is in the form of Northern Irish Renewable Obligation Certificates (NIROCs) issued by the Authority, while the “buy out” fee will, in the first year, be set at £32.33 per each MWh of the obligation not met by ROC.
The proceeds from buy out payments are to be redistributed at the end of each year among suppliers in proportion to the number of ROCs they produced in satisfaction of their obligation.
The NIRO will operate in tandem with the existing Obligations in Great Britain and ROCs that are used to demonstrate compliance will be mutually recognised within the UK.
The Industrial Pollution Control (1997 Order) (Commencement No. 2) Order (Northern Ireland) 2005
This Order, made in March but with effect from 3rd April 2005, repeals the Alkali, &c. Works Regulation Act 1906 in so far as not already repealed.
The Transfrontier Shipment of Waste (Fees) Regulations (Northern Ireland) 2005
These Regulations, made in March but which came into force on 6 April, provide for the Northern Irish Department of the Environment to charge fees for the assessment and monitoring of transfrontier shipments of waste.
A notifier will also be required to pay a fee of £450 for each notification and £25 for each consignment note relating to a notification under EC Regulation No 259/93 on the supervision and control of shipments of waste, into and out of the European Community.
Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) (Amendment) Regulations (Northern Ireland) 2005
These Regulations, made in March but which will not come into force until 11 April 2005, further amend the provisions of the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) Regulations (Northern Ireland) 2002. They substitute new maximum residue levels in Part 2 of Schedule 2 of the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) Regulations (Northern Ireland) 2002 for residue of the pesticides Bifenthrin and Famoxadone and also update the definition of “Residue Directives” to reflect and incorporate Directive 2004/95/EC.
Waste and Contaminated Land (Northern Ireland) Order 1997
A new Code of Practice for the Northern Ireland Environment and Heritage Service has been produced in March 2005 under the Waste and Contaminated Land (Northern Ireland) Order 1997, provided for at Article 5(9). The Code aims to provide practical guidance for waste holders and brokers subject to the duty of care under Article 5 of the Order, recommending a series of steps to be taken to satisfy the duty of care.