Edie Environmental Legislation Summary (October 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 the final proposal of the EC's thematic air strategy, plans to bring the aviation industry into pan-European carbon trading schemes, more changes to UK law on GMOs, safety zones banning shipping from getting close to oil rigs and a welcome effort to eliminate Euro POPs.


Cross-border air pollution – persistent organic pollutants (POPs)

The European Council adopted in the first week of September a decision authorising the European Commission to submit to the executive secretary of the United Nations Economic Commission for Europe proposals for amendments to the 1998 protocol to the 1979 Convention on long range transboundary air pollution on POPs, by adding new substances.

The purpose of the protocol is to control, reduce or eliminate discharges, emissions and losses of POPs that cause significant adverse effects on human health or the environment.

The protocol stipulates, in principle, the elimination or reduction of use and emissions of sixteen substances. In addition, the protocol lays down rules for its own amendment by the addition of new substances to its annexes.

See Europa press release here.

Thematic Strategy on Air Pollution

On 21 September 2005 the European Commission formally proposed a Thematic Strategy on Air Pollution (COM (2005) 446 final).

The strategy aims to cut the annual number of premature deaths from air pollution-related diseases by almost 40% by 2020, focusing therefore on fine dust, also known as particulates, and ground-level ozone pollution, as these pose the greatest danger to human health.

It includes proposals to start regulating fine airborne particulates, known as PM2.5, which penetrate deep into human lungs.

The strategy also aims to substantially reduce the area of forests and other ecosystems suffering damage from airborne pollutants.

The full text of the strategy can be found here.

Emissions Trading

The European Commission formally announced on 27 September 2005 that it proposes to bring emissions from aviation within the EU’s Greenhouse Gas Emissions Trading Scheme (ETS).

The European Parliament and the Council will now be invited to comment on the Commission’s Communication and following this, the Commission will present a formal legislative proposal.

The Commission Proposals have, however not been received with approval on the international front. In particular, the International Air Transport Association (IATA) has criticised the European proposals as a distraction from the need to present a global solution to the problem of airline emissions through the International Civil Aviation Organization (ICAO).

The US is also backing the need to take action on an international scale, and has questioned the legal basis of the Commission proposals, which seek to require participation by non-EU airlines.

See link here.

MEPs vote on proposed changes to existing EU laws on cross-border waste shipments

In the last week of September, MEPs on the environment committee voted against introducing a ban on cross-border shipments for ‘interim operations’ (e.g. mixing and repackaging). The reason for the rejection arose chiefly from concerns regarding the consequences such a ban would ultimately have on the waste stream. MEPs also voted to keep animal by-products outside the existing EU regulation’s scope.

However, key amendments adopted included:-

· an exemption for waste produced on ships, trains and other vehicles;

· controls on shipments of household waste; and

· an obligation on member states to inspect at least 3% of ships in their territory for conformity.

See link to Environment Committee website.

End-of-life Vehicles Directive amended

The European Council passed a Decision on 20 September 2005 (published 30 September) amending Annex II of Directive 2000/53/EC on end-of-life vehicles.

The Council Decision officially amends the list of exemptions including an extension by three years (until 1 July 2008) for continued use of nickel cadmium (NiCad) batteries in electric vehicles, an extension (by one year to 1 July 2006) on the permissible uses of lead in valve seats and in vulcanising agents and stabilisers in certain applications and the introduction of a completely new exemption (to 1 July 2007) for cadmium in certain optical components.

Conversely it now closes (from 1 July 2008) an existing unrestricted exemption for the use of lead in bearing shells and bushes. It also strengthens an existing limit on lead content of copper used in brake linings (from 1 July 2007).

See link to Council Decision:-


UK Wide

The Genetically Modified Organisms (Contained Use) (Amendment) Regulations 2005

These Regulations, which came into force as of 1 October 2005 (except for regulation 2(12) to 2(16) which won’t come into force until 1 January 2006) amend the Genetically Modified Organisms (Contained Use) Regulations 2000 (“the 2000 Regulations”), as amended by the Genetically Modified Organisms (Contained Use) (Amendment) Regulations 2002. The principal amendments are as follows:-

Paragraph 7 of regulation 2 revokes regulations 22, 23 and 23A and paragraph 8 amends regulation 24.

Paragraph 9(a) removes appeal provisions relating to regulations 22 and 23.

Regulation 4 revokes the provision in the Genetically Modified Organisms (Contained Use) Regulations 2002, which inserted regulation 23A into the Genetically Modified Organisms (Contained Use) Regulations 2000.

These amendments implement the provisions of Directive 2003/4/EC on public access to environmental information and repealing Directive 90/313/EEC on the freedom of access to information on the environment.

The existing provisions in the 2000 Regulations implemented the provisions of Article 19 of Directive 90/219/EEC on the contained use of genetically modified micro-organisms as amended by Directive 94/51/EC and 98/81/EC.

These provisions have been superseded by Directive 2003/4/EC, which is implemented by the Environmental Information Regulations 2004 and the

Environmental Information (Scotland) Regulations 2004.

Paragraph 10 of regulation 2 removes regulation 30 so that the Regulations are no longer extended outside Great Britain.

Paragraph 11 of regulation 2 requires additional information for notifications. This is necessary in order to fully comply with the requirements of Regulation 1946/2003/EC on transboundary movements of genetically modified organisms.

Paragraphs 12 to 16 of regulation 2 amend the containment levels for specified containment measures.

The remaining paragraphs of regulation 2 make changes to correct errors, including provisions for representation at appeals, provisions in respect of Wales and provisions for notifications and appeals relating to premises and activities that are situated partly in Scotland.

The Regulations also amend the Health and Safety (Fees) Regulations 2005. Under regulation 3, no fee shall be charged in respect of notifications under regulation 11(1) or applications under regulation 18(2) of the 2000 Regulations that have arisen as a result of the changes to containment measures in regulation 2.

See link to OPSI website.

The Offshore Installations (Safety Zones) (No. 2) Order 2005

This Order, made on 24 September and coming into force on 15 October 2005, establishes (under section 22 of the Petroleum Act 1987) safety zones having a radius of 500 metres from the point around each installation specified in the Schedule and stationed in waters to which section 21(7) of the Act applies (these include territorial waters and waters in areas designated under section 1(7) of the Continental Shelf Action 1964 (article 2).

Vessels, which for this purpose include hovercraft, submersible apparatus and installations in transit, are prohibited from entering or remaining in a safety zone except with the consent of the Health and Safety Executive or in accordance with regulations made under section 23(1) of the Act (currently the Offshore Installations (Safety Zones) Regulations (S.I. 1987/1331)).

This Order also amends the Offshore Installations (Safety Zones) Order 2005 (article 3).

See link to OPSI website.

English & Welsh

The Countryside and Rights of Way Act 2000 (Commencement No. 9) Order 2005

This Order brought into force as of 27 September 2005, in relation to England only —

(a) section 51 of, and paragraphs 2 and 5 of Part I of Schedule 5 to, the Act, to the extent that these provisions insert the following sections or subsections into the Wildlife and Countryside Act 1981 (“the 1981 Act”)-

(i) section 53B, which provides for the keeping of a register with respect to applications under section 53(5) of the 1981 Act; and

(ii) subsections 55(7) and (8), which relate to the effect of orders made under section 55(5) of the 1981 Act; and

(b) section 69(2) of the Act, which provides for the amendment of section 147(5) of the 1980

Act, with the effect that references to agricultural land and to land being brought into use for agriculture for the purposes of section 147 of the 1980 Act include land used or, as the case may be, land being brought into use for the breeding or keeping of horses.

The Countryside and Rights of Way Act 2000 (Commencement No 4) Order (“the Commencement No 4 Order”) contains provisions to bring into force paragraphs 8, 10 and 11 of Part I of Schedule 5 to the Act and paragraph 3 of Part I of Schedule 6 to the Act (“the Schedular provisions”) without express provision for bringing into force sections 51 and 57 of the Act (“the introducing provisions”) in so far as they give effect to the Schedular provisions.

This Order brings into force on 27th September 2005 in relation to England the Schedular provisions and the introducing provisions in so far as they give effect to the Schedular provisions, in so far as they are not already in force in consequence of the Commencement No 4 Order.

See link to OPSI website.

The Public Rights of Way (Register of Applications under section 53(5) of the Wildlife and Countryside Act 1981) (England) Regulations 2005

These Regulations, which apply to England only, came into force on 27 September 2005. Section 53(5) of the Wildlife and Countryside Act 1981 (“the Act”) enables any person to apply to a surveying authority (defined in section 66(1) of the Act to include certain local authorities) for an order to modify the definitive map and statement concerning public rights of way.

Section 53B(1) of the Act (inserted by paragraph 2 of Schedule 5 to the Countryside and Rights of Way Act 2000) requires every surveying authority to keep a register of applications under section 53(5) of the Act.

These Regulations prescribe the information to be contained in that register and the manner in which that register is to be kept by the surveying authority (regulations 2 and 3).

These Regulations do not apply to an application under section 53(5) of the Act which has been determined by the surveying authority before the relevant date (regulation 4).

See link to OPSI website.


The Pollution Prevention and Control (Designation of Public Participation Directive) (Scotland) Order 2005

This Order, made on 27 September and coming into force on 5 October 2005, designates 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”) as a relevant directive for the purposes of paragraph 20(2)(c) of Schedule 1 to the Pollution Prevention and Control Act 1999 (“the Act”).

The purpose of the designation is to enable the powers in the Act to be used to transpose the Public Participation Directive.

Schedule 1 to the Act specifies particular purposes for which provision regulating polluting activities may be made under section 2 of the Act.

Paragraph 20(1)(b) allows for making provision which corresponds to or is similar to any provision made, or capable of being made, under section 2(2) of the European Communities Act 1972 (c.68) in connection with one of the relevant directives.

The relevant directives are Council Directive 96/61/EC concerning integrated pollution prevention and control, Council Directive 75/442/EEC on waste, as amended, and any other directive of the Council of the European Communities designated by the Scottish Ministers for the purposes of that paragraph by order made by statutory instrument.

The following Orders under these powers have been made:-

(a) an Order was made on 3rd November 2002 and entered into force on 4th November 2002 (S.S.I. 2002/488) designating:

(i) Council Directive 2001/80/EC on the limitation of emissions of certain pollutants into the air from large combustion plants; and

(ii) Council Directive 2001/81/EC on national emission ceilings for certain atmospheric pollutants entered into force on 4th November 2002;

(b) an Order was made on 10th March 2003 and entered into force on 1st April 2003 (S.S.I. 2003/185) designating Council Directive 99/31/EC on the landfill of waste;

(c) an Order was made on 17th March 2003 and entered into force on 1st April 2003 (S.S.I. 2003/204) designating Council Directive 2000/76/EC on the incineration of waste; and

(d) an Order was made on 9th December 2003 and entered into force on 15th January 2004 (S.S.I. 2003/600) designating Council Directive 1999/13/EC on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations.

See link to OPSI website.

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