Edie environmental legislation summary (May 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: POPs, EU membership, greenhouse gas emissions trading, clean neighbourhoods, hazardous waste regulations, and much more.


First CoP of the UN Stockholm Convention

Parties to the UN Stockholm Convention on persistent organic pollutants (POPs) gathered in Puente del Este, Uruguay, on 2 May for the “Conference of the Parties” since the treaty entered force in May 2004. Participants in the five-day conference – due to finish on 6 May – debated how to effectively eliminate the “dirty dozen” chemicals listed in the convention.

They also considered how to deal with government requests for exemptions for listed termiticides as well as taking a decision on how suggestions for additions to the convention from signatories should be assessed. The European Commission said it would push for the adoption of best practice guidelines to prevent the release of POPs.

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Together with the Basel Convention (on the Control of Transboundary Movements of Hazardous Waste and their Disposal) and the Rotterdam Convention (on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade), the Stockholm Convention provides an international framework governing the environmentally sound management of hazardous chemicals throughout their lifecycles.

Nor is it the case that International law can any longer be dismissed as “soft” or unenforceable, following the July 2004 decision of the European Court of Justice in the “Etang de Berre” case, to the effect that where the EU is a party to an international convention, certain provisions of those conventions may have direct effect, i.e. be capable of being relied on in national courts and litigation proceedings, within the EU where the provisions in question contain clear and precise obligations.


Romania and Bulgaria sign EU membership treaties

Romania and Bulgaria signed EU membership treaties in Luxembourg on 25 April with no fanfare and no major foreign ministers in attendance. EU entry for both countries will follow on 1 January 2007 if both countries live up to tough Brussels reform requirements – including implementing the entire EU environmental acquis.

The entry of the two countries will add around 30 million citizens to the EU’s current 454 million, and extend Europe’s borders to Moldova and the Black Sea.


UK wide

The Greenhouse Gas Emissions Trading Scheme Regulations 2005

These Regulations, which came into force on 21 April 2005, consolidate the Greenhouse Gas Emissions Trading Scheme Regulations 2003 and the Greenhouse Gas Emissions Trading Scheme (Amendment) Regulations 2004 with amendments.

As well as minor and drafting changes, the Regulations include substantive amendments to make provision for the treatment of new installations and installations which cease to carry out an activity listed in Schedule 1 of the Regulations, to provide for subsistence charges in relation to permits and to take account of the entry into force of various other items of EU legislation.

The Regulations provide the framework for a greenhouse gas emissions trading scheme for the purpose of implementing EU Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community – the so-called “Emissions Trading Directive”.

The Regulations control emissions of carbon dioxide from any of the activities listed in Schedule 1 to the Regulations.

Part 2 deals with the need for a permit to operate an installation covered by the Regulations (regulation 7), the procedure for granting permits and the contents of permits (regulations 8 to 10) and the treatment of permits once granted (regulations 14 to 18).

The conditions of permits (regulation 10) must ensure that the emissions of the installation are properly monitored and reported and that the operator surrenders within 4 months of the end of each scheme year allowances equal to the annual reportable emissions from the installation during that year.

Regulation 11 enables an installation in respect of which the European Commission has provided for temporary exclusion to apply for a certificate excluding it from the scheme.

Regulations 14 to 17 deal with the variation, transfer, surrender and revocation of permits.

Regulation 18 provides for a charge to be payable in respect of the subsistence of a permit. The subsistence charge and other charges in relation to the scheme are set out in Schedule 5. Regulation 18 also provides for the provisions of the Schedule to be superseded by charging schemes adopted by the regulators. Schedule 6 provides for amendments to the Environment Act 1995 to ensure that the Environment Agency and the Scottish Environment Protection Agency are able to adopt charging schemes to supersede the charges in Schedule 5.

Regulation 19 is made under section 2(1) of the Pollution Prevention and Control Act 1999 and provides for the Secretary of State to make a charging scheme for specified charges in relation to offshore installations. Schedule 6 provides for an amendment to the Pollution Prevention and Control Act 1999 to enable future regulations to extend regulation 19 to cover all the types of charge provided for in Schedule 5.

Part 3 deals with the allocation of allowances. Regulation 20 requires the Secretary of State to develop a national allocation plan for each phase of the scheme and Regulation 21 provides for the Secretary of State to make a final allocation decision.

Regulations 22 to 24 set the framework for the allocation of allowances to installations which obtain a permit after the national allocation plan has been submitted to the European Commission and for the treatment of installations which cease to be covered by the scheme.

Regulation 26 makes provisions consequential to the Registries Regulation.

Regulation 27 enables operators of certain installations to apply to form a pool.

Part 4 contains the enforcement powers under the Regulations.

Part 5 and Schedules 2 to 4 provide for appeals against decisions of the regulator and for appeals for the appropriate authority, responsible authority or the Secretary of State to reconsider decisions under the Regulations.

Part 6 sets out information gathering powers and publicity requirements.

Part 7 sets out offences for contraventions of the Regulations and civil penalties where an operator fails to surrender sufficient allowances to cover its specified emissions.

Part 8 enables the appropriate authority to give directions and guidance to regulators.

Part 9 enables the Secretary of State to give directions and guidance to the registry administrator.

Part 10 identifies powers under the regulations which can be exercised only with the agreement of the devolved administrations in relation to installations situated in their area (other than installations falling within the definition of offshore installations).

This includes the power to develop a national allocation plan under regulation 20 and to decide upon the allocation of allowances under regulation 21. There is a default power for the Secretary of State to act where no agreement is reached if it is necessary to ensure that the United Kingdom complies with its obligations under the Emissions Trading Directive.

Part 11 and Schedule 6 revoke the 2003 Regulations and the 2004 Regulations subject to savings and introduce the consequential amendments.

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English & Welsh

Clean Neighbourhoods and Environment Act 2005

This Act, which received Royal Assent on 7 April 2005 but which will come into force in various parts following further implementing legislation yet to be drafted or agreed, sets out a new legislative framework for providing and maintaining a clean and safe local environment in England and Wales.

This should be considered in tandem with the legislation in Part 6 of the Anti-social Behaviour Act 2003.

The Act covers such issues as environmental crime and disorder (i.e. anti-social and other behaviour adversely affecting the local environment), vehicles (two new offences are created relating to nuisance parking and amending the law relating to abandoned and illegally parked vehicles), litter and refuse (extending the statutory offence of dropping litter and amending the powers and duties of local authorities in relation to litter), graffiti (including fly-posting and the illegal display of advertisements), miscellaneous waste issues (provisions about the registration of carriers of particular kinds of waste, fly-tipping, the powers and duties of local authorities to collect and dispose of waste and waste generated at construction sites), dogs (offences relating to the control of dogs and fouling) and noise issues (local authorities are given new powers to deal with noise from intruder alarms, night time noise nuisance at licensed premises and resolution of complaints about noise qualifying as a statutory nuisance prior to issuing an abatement notice).

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The Control of Major Accident Hazards (Amendment) Regulations 2005

These Regulations, which amend the Control of Major Accident Hazards Regulations 1999, were laid before parliament on 7 April but do not come into force until 30 June 2005. They apply to England, Wales and Scotland but not to Northern Ireland. They give effect to EU Directive 2003/105/EC on the control of major-accident hazards involving dangerous substances.

In addition to minor and drafting changes, these Regulations:

  • (a) provide for the sending of notifications by electronic means,
  • (b) modify the exclusions relating to mines, quarries, boreholes and waste land-fill sites,
  • (c) introduce a time limit for the preparation of a major accident prevention policy and modify time limits for notification, the submission of a safety report and the preparation of the on-site emergency plan,
  • (d) require the notification of certain modifications to the establishment,
  • (e) require notification when a safety report is revised or when a review of a report does not lead to revision,
  • (f) modify the requirement to consult persons working in the establishment on the preparation of the plan,
  • (g) include the Environment Agency and the Scottish Environment Protection Agency among the consultees on the preparation of the off-site emergency plan,
  • (h) require the local authority to consult the public when the off-site emergency plan is reviewed,
  • (i) require that schools, hospitals and other such establishments are supplied with safety information,
  • (j) amend the quantities and classification of dangerous substances to which COMAH apply,
  • (k) require specific training in planning for emergencies for all persons working in the establishment,
  • (l) require that a notification in respect of the quantity and physical form of petroleum products includes information for each class of petroleum product,
  • (m) require the use of maps, images or equivalent descriptions to support the assessment of the extent and severity of the consequences of identified major accidents, and require the safety report to include the names of organisations involved in drawing up the report,
  • (n) provide for the competent authority to include, in the register of information which it maintains, any notification it receives following a review of the safety report which does not lead to its revision, and
  • (o) require the operator to provide an amended safety report for such register if information is excluded from the register.

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    The List of Wastes (England) Regulations 2005

    These Regulations, made in April but coming into force in July 2005, implement (except for Article 3) in England only, EU Commission Decision 2000/532/EC (“the List of Wastes Decision”, as amended by Decisions 2001/118/EC, 2001/119/EC and 2001/532/EC) which adopted the so-called ‘List of Wastes’.

    The List of Wastes, which replaced the “European Waste Catalogue”, provides for the classification and coding of wastes and hazardous wastes. These regulations should be used in conjunction with the Hazardous Waste (England and Wales) Regulations 2005 as well as other waste legislation.

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    The Hazardous Waste (England and Wales) Regulations 2005

    These Regulations, which were laid before Parliament in early April but which came into force in parts on 16 April with some parts yet to come into force until 16 July 2005 (as per Article 1(1)), set out the system for the control and tracking of the movement of hazardous waste for the purpose of implementing the Hazardous Waste Directive (Directive 91/689/EC).

    The Regulations extend to England and Wales only, although the only provisions that apply to Wales are modifications to the Environmental Protection Act 1990 contained in Part 11.

    Hazardous Waste – Parts 1 to 3 of the Regulations defines Hazardous Waste and sets out how the Regulations apply to that waste. The definition of hazardous waste in regulation 6 refers to the list of hazardous wastes set out in the List of Wastes (England) Regulations 2005.

    Mixing Ban – Part 4 of the Regulations bans the mixing of hazardous waste unless it is allowed as part of a disposal or recovery operation in line with the Waste Framework Directive. It also imposes a duty to separate different categories of Hazardous Waste where feasible.

    Notification – Part 5 makes it an offence to remove hazardous waste from premises which have not been notified to the Environment Agency, unless they are exempt premises or the waste has been flytipped. All premises at which hazardous waste is produced or removed must be notified by the producer of the waste or the consignor.

    Movement of Hazardous Waste – Part 6 requires documents to be completed whenever hazardous is removed from premises (including from ships and by pipeline). The types of form to be used are set out in Schedules 4 to 7. This is in addition to any requirements to ensure hazardous waste is properly packaged and labelled. Schedule 7 deals with cross border transfers.

    Records and Returns – Part 7 requires producers, holders, carriers, consignors and consignees to keep records for a minimum of 3 years except in the case of carriers where the period is 12 months. Consignees are required to provide the Environment Agency with a quarterly return setting out the consignments they have received during that period.

    The Agency’s functions – Part 8 sets out the Agency’s functions.

    Emergencies and Grave Danger – Part 9 imposes duties on holders of hazardous waste and the Environment Agency in the event of an emergency or grave danger which arises from hazardous waste.

    Enforcement – Part 10 makes it an offence for failure to comply with the requirements of these Regulations.

    Amendments to other legislation – Part 11 omits references to special waste in the Environmental Protection Act 1990 and replaces them with references to hazardous waste. It also gives the Secretary of State the power to designate waste as hazardous for the purposes of these Regulations by means of a statutory instrument.

    Schedule 11 makes consequential amendments to secondary legislation so that references to special waste are omitted and references to hazardous waste are updated so that they are consistent with these Regulations.

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    The Air Quality Limit Values (Wales) (Amendment) Regulations 2005

    These Regulations, which came into force on 30 April 2005, amend the Air Quality Limit Values (Wales) Regulations, which implement, in relation to Wales only, EU Directive 96/62/EC on ambient air quality assessment and management, EU Directive 99/30/EC relating to limit values for sulphur dioxide, nitrogen dioxide and oxides of nitrogen, particulate matter and lead and EU Directive 2000/69/EC relating to limit values for benzene and carbon monoxide in ambient air.

    Regulation 3 deals with public participation in respect of the drawing up of certain plans and programmes relating to the environment and regulation 4 adds an alternative method for the sampling and measurement of PM10.

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    The Renewables Obligation (Scotland) Order 2005

    This Order, which came into force on 1 April 2005, is made under section 32 of the Electricity Act 1989 and imposes an obligation on all electricity suppliers, which are licensed under that Act and which supply electricity in Scotland, to supply to customers in Great Britain specified amounts of electricity generated by using renewable sources.

    As alternatives, in respect of all or part of an electricity supplier’s renewables obligation, an electricity supplier is permitted to provide evidence that other licensed electricity suppliers have supplied electricity generated using renewable sources instead of it or to make a payment to the Gas and Electricity Markets Authority.

    Renewable sources include sources of energy such as wind, water, solar and biomass. This Order revokes and replaces, with amendment, the Renewables Obligation (Scotland) Order 2004.

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    The Control of Major Accident Hazards (Amendment) Regulations 2005

    These regulations apply to England Wales and Scotland but not Northern Ireland. A summary is detailed above under the heading for English and Welsh legislation.

    The Water Environment (Controlled Activities) (Scotland) Regulations 2005

    These Regulations, which were laid before the Scottish Parliament on 25 April and which will, with a few exceptions, come into force on 1 April 2006, are made under section 20 and 25 and Schedule 2 of the Water Environment and Water Services (Scotland) Act 2003 (“the Act”) which in turn transposed EC Directive 2000/60/EEC – the so-called Water Framework Directive.

    The regulations introduce new and extensive controls over activities affecting the water environment, provide transitional arrangements to the proposed new water framework regime, and link this new regime with existing environmental legislation.

    They replace the existing point source discharge consenting system set up under the Control of Pollution Act 1974, introduce further controls on abstraction and impoundment and introduce further controls on building, engineering and other works that can impact on the physical quality of aquatic habitats.

    With 54 Regulations and 7 Schedules, this is a substantial piece of legislation. Its main parts are as follows:

  • Part I of the Regulations outlines the scope of the Regulations and the main objectives to be achieved.
  • Part II of the Regulations describes the new authorisations which are given under them and which are necessary to avoid breach of the prohibition in regulation 5 (i.e. the prohibition against carrying out any “controlled activity” other than in accordance with a consent). Regulation 7 makes provision for the carrying out of particular activities in accordance with general binding rules. The activities and the rules are specified in Schedule 3. Regulation 8 makes provision for the regulation of activities which are not considered to be likely to have significant adverse impact on the water environment, to be authorised in accordance with a registration, to which conditions may be attached. Regulation 9, which applies where an authorisation under regulations 7 or 8 is inappropriate, may authorise the carrying on of an activity, also subject to any conditions which are necessary expedient for the purposes of the protection of the water environment. The matters which require to be taken into account in setting conditions under regulation 8 or 9 are set out in regulation 15. Regulation 10 makes specific provision to ensure that any activities authorised are fully compliant with EC Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances. Regulation 11 gives SEPA powers to impose an authorisation where it considers an unauthorised activity is being carried out in contravention of regulation 5, or an activity regulated under regulation 7 requires additional measures to protect the water environment, or where an existing authorisation under regulation 8 would be more appropriately authorised under regulation 9, or vice versa.
  • Part III of the Regulations makes provision for applications, their determination and appeals. Regulation 15 under Part III in particular sets out the requirements that SEPA must comply with when determining an application including assessing the risk to the water environment posed by the activity concerned and applying the requirements of the legislation set out in Part I of Schedule 4.
  • Part IV of the Regulations makes provision for the modification and termination of authorisations.
  • Part V makes provision for enforcement of the Regulations. Regulation 27 in particular places a duty on SEPA to monitor compliance with and enforce the provisions of the Regulations. It requires SEPA to consult and collaborate with the Environment Agency in respect of the discharge of their functions under the Regulations in the Solway Tweed River Basin District and the Northumbria River Basin District. Regulation 27 also gives SEPA power to have other persons carry out examination and investigation on its behalf for the purposes of discharging its duties under the Regulations, and the power to authorise persons to exercise the powers specified in Part I of Schedule 6 in accordance with the requirements of Parts II and III of that Schedule. Parts IV and V of Schedule 6 make provision for the evidential status of certain matters dealt with in accordance with Schedule 6 and for compensation in certain circumstances. Regulation 28 gives SEPA the power to issue enforcement notices to ensure compliance with the Regulations and to remedy or prevent significant adverse impacts on the water environment or any part of it. SEPA may issue a notice requiring the responsible person or operator to carry out steps, within such time limits as it may consider appropriate, and those steps may include cessation of the controlled activity for a specified period. Regulation 29 gives the SEPA the power to itself carry out steps that could be required in an enforcement notice and to be entitled to recover the cost of doing so from the responsible person or operator. Regulation 30 deals with the circumstances in which an enforcement notice requires a responsible person or operator to carry out work on land outwith the ownership or control of that person. In particular, it makes provision for the payment of compensation in certain circumstances and Schedule 7 makes provision for application for and assessment of the level of compensation. Regulation 31 makes provision for SEPA to take proceedings in any court of jurisdiction against a person who has failed to comply with the requirements of an enforcement notice where it considers prosecution for such failure would not afford an effectual remedy.
  • Part VI of the Regulations make provision for obtaining information and for the maintenance of a public register of information in respect of the Regulations.
  • Part VII makes provision in relation to offences.
  • Part VIII makes provision for appeals.
  • Part IX makes various general provisions.

    Copies of the regulations as laid before Parliament are available from the Scottish Executive. The accompanying Policy Statement and Regulatory Impact Assessment will be published on the Executive’s website during the week commencing 9th May.

    Northern Ireland

    The Genetically Modified Organisms (Transboundary Movements) Regulations (Northern Ireland) 2005

    These Regulations, which were made on 12 April but which do not come into force until 31 May 2005, make provision for the enforcement of EC Regulation 1946/2003 on the transboundary movements of genetically modified organisms.

    Regulation 4 makes provision for enforcement of the Regulations and the specified European Community provisions (the provisions of Regulation (EC) No. 1946/2003 specified in the Schedule).

    Regulation 5 makes provision for the appointment of inspectors. Regulation 6 provides powers of entry, including the power to carry out tests and inspections and to take samples. Regulation 7 enables inspectors to require the provision of information.

    Regulation 8 makes it an offence to contravene specified Community provisions; to obstruct inspectors in the exercise of powers under these Regulations; and to give false information; and sets out a due diligence defence in respect of breach of the specified Community provisions.

    Regulation 9 makes provision for offences committed due to the fault of another person. Regulation 10 makes provision for offences committed by corporate bodies. Regulations 11 and 12 prescribe penalties and specify limits for bringing prosecutions. Regulation 13 makes provision for service of notices under these Regulations.

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