Edie Environmental Legislation Summary (November 2005)
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 new health and safety regulations for Britain's nuclear industry, legislation to slash solvents in paints and varnish, regulation to reduce hazardous chemicals in electronic goods and the formal adoption of an emissions trading scheme.
The High-activity Sealed Radioactive Dests and Orphan Dests Regulations 2005
These Regulations, which came into force on 20 October 2005, make provision in connection with the implementation of Council Directive 2003/122/EURATOM on the control of high-activity sealed radioactive sources and orphan sources (the HASS Directive) and make relevant amendments to the Radioactive Substances Act 1993 (the 1993 Act).
They apply to the whole of the United Kingdom save regulation 5 that applies to England, Wales and Scotland only.
High-activity sources as defined in Article 2 of the HASS Directive are radioactive material within section 1 of the 1993 Act and as such are regulated under that Act.
High-activity sources for the purposes of these Regulations and the amendments made to the 1993 Act by these Regulations do not include such sources once their activity level has fallen below the exemption levels specified in column 2 of Table A to Annex I to Council Directive 96/29/EURATOM (OJ L 159, 29.6.1996, p.1) laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation (the Basic Safety Standards Directive).
High-activity sources first placed on the market on or before 31st December 2005 are referred to in these Regulations as existing high-activity sources.
Regulation 3 provides for applications for variation of registrations under the 1993 Act concerning high-activity sources.
The Environment Agency, the Scottish Environment Protection Agency or the chief inspector will consider if any variation of the registration is required to comply with the HASS Directive.
Failure to make an application as required shall mean the registration is revoked so far as it relates to the high-activity source in question.
Regulation 4 provides for variation of authorisations under the 1993 Act in a similar way to variations required in relation to registrations under regulation 3.
Regulation 5 applies to England, Wales and Scotland and provides that the Environment Agency or the Scottish Environment Protection Agency may exercise their powers under any enactment in connection with the prevention of unauthorised access to, or loss or theft of high-activity sources and other sources which, in their opinion, are of a similar level of potential hazard to high-activity sources, notwithstanding that the control of pollution is not the primary or only purpose for which the powers are exercised.
Regulation 6 imposes requirements in relation to premises where high-activity sources and other sources (which, in the opinion of the Environment Agency, the Scottish Environment Protection Agency or the chief inspector, are of a similar level of potential hazard to high-activity sources) will be kept, used, disposed of or accumulated.
Regulation 7 provides for the appropriate Agency and chief inspector to keep various records and to establish or maintain a system of inspections to enforce the provisions of the HASS Directive.
Regulation 8 provides for specialised technical advice and assistance to be made available in connection with the presence of orphan sources.
Regulations 9 to 14 make minor amendments to the 1993 Act in relation to the HASS Directive.
Regulation 15 inserts section 23(6) into the 1993 Act. It provides that in Northern Ireland, where the Department of the Environment makes directions under section 23 of the 1993 Act for the purpose of implementing provisions of the HASS Directive, the Department must follow certain procedural requirements in relation to those directions. It is intended that directions will be made as soon as possible after these Regulations come into force.
Regulation 16 inserts section 30A into the 1993 Act to provide for the Environment Agency, the Scottish Environment Protection Agency or the chief inspector to comply with Article 9(1) of the HASS Directive in relation to the recovery of orphan sources.
It also provides that sums may be provided to them for the costs and expenses of recovery and disposal of orphan sources where the sums required to do so exceed the reasonable provision for such costs and expenses.
Regulation 17 inserts additional definitions in section 47 of the 1993 Act, including the insertion of subsection (5A). That subsection provides that in relation to the regulation of high-activity sources under sections 7 and 10 of the 1993 Act, the keeping or use of those sources shall mean any practice concerning those sources, except their disposal or accumulation.
The disposal or accumulation of high-activity sources is a matter for authorisation under sections 13 or 14 of the 1993 Act. The expression “any practice” is defined in the Basic Safety Standards Directive.
Regulation 18 inserts “the HASS Directive”, “high-activity source” and “orphan source” into the index of defined expressions in section 48 of the 1993 Act.
Regulation 19 provides that the requirements for appropriate training of, and adequate information to be given to, employees and other persons concerning ionising radiation under regulation 14 of the Ionising Radiations Regulations 1999 (S.I.1999/3232) and regulation 14 of the Ionising Radiations Regulations (Northern Ireland) 2000 (S.R. 2000/375) shall include the training and information requirements in Article 8(1) of the HASS Directive.
See link to OPSI website.
The Volatile Organic Compounds in Paints, Varnishes and Vehicle Refinishing Products Regulations 2005
These Regulations, made on 9 October and which came into force on 1 November 2005, are made in implementation of Directive 2004/42/EC (“the VOCs in Paints Directive”) on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain paints and varnishes and vehicle refinishing products, and amending Directive 1999/13/EC (the Solvent Emissions Directive).
The Volatile Organic Compounds in Paints Directive lays down maximum content limit values for volatile organic compounds (VOCs) which apply in two phases for paints and varnishes, that is to say, from 1st January 2007 for the first phase limits, and from 1st January 2010 for the tighter, second phase limits.
These limits are set out in Part A of Annex II to the Directive.
The directive lays down a single set of content limit values for VOCs in vehicle refinishing products in Part B of Annex 2, which apply from 1st January 2007.
Annex II is set out in Schedule 2 to these Regulations.
Regulation 3 applies the regulations to the products covered by Annex I of the VOCs in Paints Directive, unless they are for use outside the European Community or are for uses regulated by the regulations implementing Directive 1999/13/EC.
Regulation 4 limits the marketing of paints and varnishes and vehicle refinishing products, listed in Schedule 1, unless they have a VOC (volatile organic compound) content which does not exceed the limit values set out in Schedule 2 by the dates set out in that Schedule.
Schedule 3 sets out the analytical methods to be applied in determining the VOC content of products.
Regulation 5 requires that products in Schedule 1 carry a label concerning the maximum VOC content of that product in a ready to use condition.
Regulation 6 designates the Secretary of State as the competent authority for the United Kingdom for ensuring fulfilment of the obligations of Directive 2004/42/EC, and requires that she consult the devolved administrations as necessary in the exercise of these responsibilities.
Regulation 7 provides that it is the Secretary of State’s function to enforce the Regulations (though not to prosecute in Scotland, where the procurator fiscal prosecutes), and requires the Secretary of State to establish and maintain a programme of monitoring for the purpose of determining whether the Regulations are being complied with.
The Secretary of State may delegate her monitoring and enforcement functions to others to such extent as she determines, but must publish appropriate notice of any such delegation.
Except in Northern Ireland, section 108 of the Environment Act 1995 provides powers for persons authorised by (among other authorities) the Secretary of State to establish whether the regulations, being pollution control enactments, are being complied with and to obtain evidence necessary to take enforcement action.
These powers include the power to enter premises and to take samples, which may be tested. Special provisions in relation to enforcement powers in Northern Ireland are set out in Schedule 4.
Regulation 8 creates offences of contravening regulation 4, and prescribes penalties.
Directors and similar officers of bodies corporate are liable to conviction in certain circumstances where the offence is attributable to their fault.
An evidential burden rests on a person relying on the transitional provision in regulation 10 to show when the product was produced.
The maximum penalties are a fine on conviction on indictment, and on summary conviction, a fine of the statutory maximum, which, at the time of making these Regulations, is £5,000.
Regulation 9, which applies to England and Wales only, amends Section 7 of Part 1 of Schedule 1 to the Pollution Prevention and Control (England and Wales) Regulations 2000. This in turn gives effect to the implementation of the Solvent Emissions Directive by the Solvent Emissions (England and Wales) Regulations 2004. Regulation 9 deletes from the scope of the 2000 Regulations one category of “vehicle refinishing” which has been removed by Article 13 of Directive 2004/42/EC. Similar amendments will be made by the devolved administrations to the relevant regulations applicable to Scotland and Northern Ireland.
Regulation 10 provides transitional provisions.
A product to which these Regulations apply may be placed on the market for 12 months after the appropriate date specified above if it was produced before that date.
See link to OPSI website.
The Greenhouse Gas Emissions Trading Scheme (Amendment) and National Emissions Inventory Regulations 2005
These Regulations, made on 16 October and coming into force on 13 November 2005, transpose Directive 2004/101/EC amending Directive 2003/87/EC establishing a Scheme for greenhouse gas emission allowance trading within the Community, in respect of the Kyoto Protocol’s project mechanisms.
They also provide the Secretary of State with powers to assist her in carrying out her obligations under Decision 280/2004/EC to prepare a national emissions inventory and makes a small number of other provisions relating to the collection of data.
Part 2 of the Regulations amends the Greenhouse Gas Emissions Trading Scheme Regulations 2005 (“the ETS Regulations”) to permit holders of accounts in the UK emissions trading registry to hold certain types of Certified Emissions Reductions (CERs) and Emissions Reduction Units (ERUs) in their registry accounts (regulation 26(17) of the ETS Regulations).
It also allows people with obligations to surrender allowances under the EU Emissions Trading Scheme, subject to specified limitations, to use certain types of CERs and ERUs as well as allowances towards complying with those obligations (regulation 27A of the ETS Regulations).
It also extends the power that the Secretary of State and other bodies have under the ETS Regulations to require people to supply information (regulation 35(4)-(5) of the ETS Regulations).
Part 3 of the Regulations establishes an application procedure by which a person may apply to the Secretary of State for approval of one of the project activities established under the Kyoto Protocol or for authorisation to participate in the project activity (regulation 5).
It sets out certain conditions that the Secretary of State must ensure when considering whether or not to approve such a project or authorise participation (regulation 7).
It also provides a procedure for the applicant to appeal against the determination of his application (regulation 9).
Part 4 of the Regulations provide a power for the Secretary of State and devolved administrations to require a person to supply information for the purposes of compiling a national emissions inventory (regulation 10).
Regulation 11 sets out powers of entry and inspection which may be exercised by an authorised person for the purpose of preparing such an inventory.
Part 5 makes it an offence to comply with a number of obligations imposed under the Regulations (regulation 13(1)) and specifies the maximum penalties which may be imposed for such an offence (regulation 13(2)).
It also provides that where an offence is committed by a body corporate or by a Scottish partnership, specified individuals may also be guilty of that offence if it were committed with that person’s consent or connivance, or as a result of their neglect (regulation 13(3)-(5)).
See link to OPSI website.
English & Welsh
The Countryside and Rights of Way Act 2000 (Commencement No. 10) Order 2005
This Order, made on 6 October 2005, brings into force certain provisions of the Countryside and Rights of Way Act 2000 in relation to England only.
Apart from minor consequential repeals, it brings into force on 31st October 2005 section 2 (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 1st July 2005 and 16th August 2005 (such maps relate to the west area of England and the 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 1st July 2005 and 16th August 2005.
The day appointed for section 2 in relation to such land is 31st October 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.
See link to OPSI website.
The Clean Neighbourhoods and Environment Act 2005 (Commencement No.2, Transitional Provisions and Savings) (England and Wales) Order 2005
This Order, made on 15 October 2005, brings into force in England and Wales the provisions of the Clean Neighbourhoods and Environment Act 2005 set out in article 2 on 18th October 2005 (and in England only, the provisions in article 3).
Article 4 contains transitional provisions requiring that a vehicle in respect of which a local authority has given a notice under section 3(2) of the Refuse Disposal (Amenity) Act 1978, or to which a local authority has affixed a notice under section 3(5) of that Act, in either case before 18th October 2005, shall continue to be dealt with in accordance with sections 3 and 4 of that Act as those sections applied before the coming into force of provisions under this Order.
Article 5 contains transitional provisions requiring that a vehicle on a road in respect of which an authority has given a notice under section 99(3) of the Road Traffic Regulation Act 1984 or a vehicle to which an authority has affixed a notice under section 99(4) of that Act, in either case before 18th October 2005, shall continue to be dealt with in accordance with sections 99, 101 and 103 of that Act as those sections applied before the coming into force of provisions under this Order.
Article 6 contains savings continuing the effect of section 32 of, and Part 2 of Schedule 2 to, the Environmental Protection Act 1990 in their application to the activities of companies engaged in the collection, or the treating, keeping or disposal, of waste which remain under the control of waste disposal authorities on 18th October 2005 and to the functions of such authorities in relation to such companies.
See link to OPSI website.
The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005
These Regulations, made on 7 October and coming into force on 21 November 2005, are made under section 2(2) of the European Communities Act 1972.
They implement, in relation to England and Wales, Article 8 of Council Directive 75/442/EEC on waste (the “Waste Framework Directive”) as respects an occupier of domestic property in relation to the household waste produced on the property.
Regulation 2 amends section 34 of the Environmental Protection Act 1990 (the “1990 Act”). Regulation 2(2) inserts a new section 34(2A) into the 1990 Act so as to impose a duty on an occupier of domestic property as respects the household waste produced on the property.
The duty imposed is to take all such measures available to him as are reasonable in the circumstances to secure that any transfer by him of household waste produced on the property is only to an authorised person or to a person for authorised transport purposes.
The amendments in regulations 2(3) to (6) are consequential on the amendment in regulation 2(2).
In particular, the amendment in regulation 2(6) makes it a criminal offence for any person to fail to comply with the new duty imposed by the amendment in regulation 2(2).
On summary conviction, the penalty for the offence will be a fine not exceeding the statutory maximum (at the date of these Regulations £5000) and, on conviction on indictment, a fine.
The amendments in regulations 3, 4 and 5 are also consequential on the amendment in regulation 2(2).
In particular, the amendments in regulation 3 ensure that section 34B of the 1990 Act (power to search and seize vehicles etc), which is not in force at the date of these Regulations, will not apply where an offence has been committed as a result of a failure to comply with the duty imposed by the amendment in regulation 2(2).
Section 34B is to be inserted into the 1990 Act by section 46 of the Clean Neighbourhoods and Environment Act 2005 (in accordance with a commencement order under that Act).
See link to OPSI website.
The Pollution Prevention and Control (Public Participation etc.) (Scotland) Regulations 2005
These Regulations, made on 13 October and coming into force on 16 November 2005, are made under section 2 of the Pollution Prevention and Control Act 1999.
They implement in Scotland the amendments to the public participation provisions in Directive 96/61/EC made by Article 4 of Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (“the Public Participation Directive”).
The requirements of Directive 96/61/EC concerning integrated pollution prevention and control have been implemented in Scotland by means of the Pollution Prevention and Control (Scotland) Regulations 2000 (“the 2000 Regulations”).
Regulation 3 amends regulation 4 of the 2000 Regulations to enable SEPA to grant a permit subject to the condition that the applicant obtains any relevant certificate of technical competence within 2 years, where satisfied that the person is a fit and proper person to carry out certain specified waste management activities.
Regulation 4 amends regulation 17(8) of the 2000 Regulations so as to extend the application of that provision to mobile plant.
Regulation 5 inserts a new regulation 22A into the 2000 Regulations to extend the additional access to justice requirements in Article 4 of the Public Participation Directive to environmental non-governmental organisations.
Regulation 6(a) substitutes a new section 5.4 into Schedule 1 to the 2000 Regulations, which deals with the regulation of certain waste recovery activities.
This corrects minor errors in the most recent amendment of that section by SSI 2005/146, regulation 19(f) and (g).
Regulation 6(b) amends the definition of “vehicle coating” in section 7 of Schedule 1 to the 2000 Regulations to exclude certain coating activities from the scope of that definition in certain circumstances.
Regulation 7(a) to (c) amend paragraphs 5, 6 and 9 of Schedule 3 to the 2000 Regulations to enable SEPA to receive and consider applications for permits under those Regulations to allow the continued operation of existing installations, whether or not already subject to an authorisation under Part I of the Environmental Protection Act 1990 (“the 1990 Act”).
Regulation 7(d) substitutes a new paragraph 23 into Schedule 3 to the 2000 Regulations to clarify that the specific powers of variation or revocation under that paragraph are exercisable at any time and without prejudice to more general powers of variation or revocation, for example, under section 10 of the 1990 Act.
Regulations 8 and 9 amend the procedures for public participation in Schedules 4 (grant of permits) and 7 (applications for variation of conditions) respectively to the 2000 Regulations in order to implement the additional public participation requirements in paragraphs 1 to 3, 5 and 6 of article 4 of the Public Participation Directive.
These requirements apply to all applications for permits to operate new Part A installations and to variations authorising substantial changes in the operation of a Part A installation or variations resulting from a review by SEPA of a Part A installation under regulation 11(2)(a) of the 2000 Regulations.
Regulation 8 amends Schedule 4 to the 2000 Regulations, which sets out the procedures for applications and determination of permits under regulation 7 of those Regulations. In particular:
(i) regulation 8(a) adds a new paragraph (oa) (relating to alternatives) to the list of information specified in paragraph 1 of Schedule 4 which needs to be provided with the application;
(ii) regulation 8(b) to (o) extends the public participation requirements in Parts 1 and 2 of Schedule 4 to apply the new requirements in Article 4 of the Public Participation Directive to applications for permits to operate new Part A installations, within the meaning of paragraph 6 of Part 1 of Schedule 3 to the 2000 Regulations;
(iii) regulation 8(b) and (c) provides for additional advertisement requirements in respect of applications for permits to operate new Part A installations;
(iv) regulation 8(f) to (l) amends the provisions in Parts 1 and 2 of Schedule 4 to provide for a new “draft determination” stage, which includes additional obligations to advertise, to inform other Member States in the case of installations with transboundary effects, to allow for representations from interested parties, and to provide or make available the additional information specified in Annex V to the Public Participation Directive;
(v) regulation 8(m) to (o) amends the provisions in Part 3 of Schedule 4 to ensure that the additional advertisement requirements under the new paragraph 15B shall not extend to information precluded from disclosure under regulation 28 (national security) or regulation 29 (commercially confidential information).
Regulation 9 amends Schedule 7 to the 2000 Regulations, which sets out the procedures for the variation of conditions of permits under regulation 13 of those Regulations. In particular:
(i) regulation 9(a) to (i) extends the public participation requirements in Part 2 of Schedule 7 to apply the new requirements in Article 4 of the Public Participation Directive to-
(aa) variations authorising substantial changes in the operation of Part A installations; and
(bb) variations in the conditions of a permit to operate a Part A installation proposed by SEPA and resulting from a review under regulation 11(2)(a) of the 2000 Regulations;
(ii) regulation 9(a) amends paragraph 4 of Schedule 7 to the 2000 Regulations to require SEPA to furnish the operator with additional information as well as to provide for additional advertisement requirements in respect of variations affecting the operation of Part A installations;
(iii) regulation 9(b) to (h) inserts, for variations affecting Part A installations, a new “post-advertisement” stage in respect of variations proposed by SEPA and a “draft variation” stage in respect of applications for variations, including, as in the case of applications for permits to operate Part A installations, additional obligations in relation to advertising, the provision of information to other Member States in the case of installations with transboundary effects, new representation requirements, and the obligation to provide or make available information specified in Annex V to the Public Participation Directive.
(iv) regulation 9(i) and (j) amends Part 3 of Schedule 7, in a similar way to the amendments to Schedule 4 by virtue of regulation 8(m) to (o), to exclude information from advertisement on grounds of national security or commercial confidentiality.
Regulation 10 inserts a new sub-paragraph (c) into paragraph 1 of Schedule 9 (Registers) to require SEPA to include in the register the information resulting from the new public participation requirements specified by these Regulations.
Regulation 11 amends the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 (S.I. 1991/472) to increase the threshold from 1 tonne to 2 tonnes for which an authorisation is required under Part I of the Environmental Protection Act 1990 (c.43) to carry out certain activities involving repainting or respraying of road vehicles.
See link to OPSI website.
The Pollution Prevention and Control (Amendment) (No. 3) Regulations (Northern Ireland) 2005
These Regulations, which came into force on 1 November 2005, amend the Pollution Prevention and Control Regulations (Northern Ireland) 2003. They are made to take account of The VOCs in Paints, Varnishes and Vehicle Refinishing Products Regulations 2005 which implement Directive 2004/42/CE (“the VOCs in Paints Directive”) on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain paints, varnishes and vehicle refinishing products, and amending Directive 1999/13/EC (“the Solvent Emissions Directive”).
These Regulations delete from the scope of the 2003 Regulations one category of “vehicle refinishing” which has been removed by Article 13 of the VOCs in Paints Directive.
See link to OPSI website.
The List of Wastes (Amendment) Regulations (Northern Ireland) 2005
These Regulations, which were made on 21 October and come into force on 14 November 2005, correct minor errors in the List of Wastes Regulations (Northern Ireland) 2005.
In regulation 2 (interpretations) in sub-paragraph (b) for “Council Regulation (EC) No.807/2003” there shall be substituted “Commission Directive 2004/73/EC”.
In regulation 4(b) (properties and characteristics of dangerous substances classified as hazardous waste) for “R40 at a concentration = 1% .” there shall be substituted “R68 at a concentration = 1% “.
See link to OPSI website.
The Chemicals (Hazard Information and Packaging for Supply) (Amendment) Regulations (Northern Ireland) 2005
These Regulations, made on 24 October and coming into force on 30 November 2005, amend the Chemicals (Hazard Information and Packaging for Supply) Regulations (Northern Ireland) 2002.
Regulation 2(2) introduces a new approved supply list thereby implementing in full Commission Directive 2004/73/EC adapting to technical progress for the 29th time Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances.
The Regulations also make consequential amendments and correct drafting errors.
See link to OPSI website.