Edie Environmental Legislation Summary, September 06

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 look at EU attempts to limit POPs entering the waste stream, tax allowances in the UK for energy saving industrial machinery and new regulations to protect the public and workers from radioactive contaminated land in Ireland.

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European Legislation

Persistent Organic Pollutants (POPs)

New EU limits on the presence of 14 POPs in waste will enter into force on 28 August 2006. Council Regulation (EC) No. 1195/2006 amending Annex IV to Regulation (EC) No. 850/2004 on persistent organic pollutants was made on 18 July 2006 and was published in the Official Journal on 8 August 2006.

Although the safety limits were due to be finalised by the end of 2005, the technical committee were unable to reach agreement and responsibility passed back to the Council of Ministers, which finally struck a deal in July.

The new limits are in compliance with a 2004 EU Regulation which implemented the UN Stockholm Convention on POPs.

The Regulation establishes limit values of 50 milligrams per kilogram (mg/kg) for POPs in waste, with the exception of dioxins and furans, which must not exceed 15 micrograms per kilogram.

Any waste containing organic pollutants above these concentrations must be “destroyed or irreversibly transformed” using physicochemical treatment or incineration.

The measures will mostly affect the metals, power and construction industries, as well as the waste management sector.

There is a separate proposed element of the 2004 POPs Regulation which would allow the power and metals industries to derogate from the obligation to “destroy or irreversibly transform” the waste. This would, however, be allowed only under exceptional circumstances, where the operator was able to show that it is better for the environment, that decontamination is not feasible and that POPs concentrations do not exceed certain limits.

If these criteria were met, operators could place waste in deep underground “permanent storage” or hazardous waste landfill sites. The European Commission has proposed a set of concentration limits, but the council has not taken a final decision on the matter.

The 14 POPs affected are: aldrin, chlordane, dieldrin, heptalchor, hexachlorobenzene, mirex, toxaphene, PCBs, DDT, chordecone, dioxins/furans, HCH, and hexabromobiphenyl.

UK Legislation

Tax Allowances

The Capital Allowances (Energy-saving Plant and Machinery) (Amendment) Order 2006 enters into force on 7 September, having been made on 16 August, and laid before the House of Commons on 17 August.

The Order amends the Capital Allowances (Energy-saving Plant and Machinery) Order 2001. The 2001 Order introduced a scheme for 100% first year allowances, enabling businesses to claim accelerated tax relief in relation to their spending on designated energy-saving technology.

The amendments update the definitions of the Energy Technology Criteria List and the Energy Technology Product List.

In addition, the Capital Allowances (Environmentally Beneficial Plant and Machinery) (Amendment) Order 2006 also enters into force on 7 September, having been made and laid in the House of Commons on the same date as the above Order.

It amends the Capital Allowances (Environmentally Beneficial Plant and Machinery) Order 2001, which introduced a similar scheme in relation to environmentally beneficial plant and machinery.

The updated lists are available at the following links for the eca and eca water.

English Legislation

Environmental Noise

The Environmental Noise (England) Regulations 2006 come into force on 1 October 2006, having been made on 8 August 2006. The Regulations are in implementation of Directive 2002/49/EC relating to the assessment and management of environmental noise. They apply to environmental noise to which humans are exposed in particular built up areas, and do not apply to noise arising from domestic activities, neighbours, or work places.

The Regulations require the Secretary of State to identify in Regulations all agglomerations, major roads, major railways and major airports in two stages.

The first round identifications are to be made by 31 December 2006, and the final round is to be identified by 31 December 2011.

The Regulations also provide for further identifications to be made after the final round where the most recent regulations are no longer appropriate.

The Regulations contain an obligation on the Secretary of State to make strategic noise maps showing the noise situation in the preceding calendar year.

The first of these is to be completed by 30 June 2007, and the final one is to be complied by 30 June 2012. One will be made every five years thereafter. Further, where a major development occurs that will affect the noise levels the competent authority must revise and review their strategic noise maps.

Obligations are also imposed on operators of non-designated airports to make strategic noise maps detailing the situation in the preceding calendar year and to submit these with other data to the Secretary of State.

The Secretary of State is further obliged to identify quiet areas in agglomerations and to protect these, as well as to generally manage noise and its effects, provide guidance on limit values and other criteria for identifying priorities for action plans. He must also compile a consolidated noise map.

The action plans that are required under the Regulations must be prepared following public consultation, and the results of such consultation must be taken into account when drawing up the action plan.

Once an action plan has been formulated public authorities must treat it as their policy, and may only depart from it if they provide written reasons to the Secretary of State and any other competent authority and publish those reasons.

The Regulations are available at the following link.

English and Welsh Legislation

The Pollution Prevention and Control (England and Wales) (Amendment) (England) Regulations 2006

The Pollution Prevention and Control (England and Wales) (Amendment) (England) Regulations 2006 come into force 1 October 2006 after having been laid in Parliament on 29 August.

The Regulations amend part B of section 1.2 on Gasification, Liquefaction and Refining Activities in Schedule 1 to the Pollution Prevention and Control Regulations. It adds motor vehicle refuelling activities to the list of activities requiring a permit under the PPC Regulations.

This change implements a UK obligation under the UN Economic Committee for Europe Geneva Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution Concerning the Control of Emissions of Volatile Organic Compounds (VOCs) or their Transboundary Fluxes.

There is a further amendment to section 5.1 on Incineration and Co-incineration of Waste in Schedule 1 to the PPC Regulations, which clarifies that incineration that occurs incidentally in the course of burning landfill gas does not require a permit under the Regulations.

There is a final amendment to Schedule 3 on Prescribed Date and Transitional Arrangements, which exempts certain operators of coin operated dry cleaning machines who have chosen not to make an application for a permit before 31 October 2006 from the permitting requirements of the Solvent Emissions Directive (1999/13/EC). The exemption is on the basis that they agree to cease carrying out operations that fall within the scope of the Directive at their installation before 31 October 2007.

The Regulations are available at the following link.

The UN protocol is available at the following link.

Northern Irish Legislation

Radioactive Contaminated Land

The Radioactive Contaminated Land Regulations (Northern Ireland) 2006 were made on 22 August 2006, and will come into force on 22 September 2006. The regulations implement Articles 48 and 53 of Council Directive 96/29/Euratom laying down basic safety standards for the protection of workers and the public against the dangers arising from ionising radiation.

The Chief Inspector of the Department of the Environment has a duty under the regulations to investigate land where he has reasonable grounds for believing the land to be causing lasting exposure to humans.

Humans are the only ‘receptor’ under the regime, similar to that adopted in relation to England. It applies to past practices and past works, and has the same requirements for any intervention to be proportionate to the risk posed and justified in terms of the harm and costs of the intervention, which in any event must be optimised to extract the most gain and least harm from it.

The Chief Inspector of the Department of the Environment has the power to carry out works detailed in an intervention notice and then recover the costs from the responsible person.

If there is no responsible person to be held accountable for the remediation then the Department of the Environment must undertake to remediate the land themselves where this is necessary.

The Regulations are available at the following


The Building (Amendment) Regulations (Northern Ireland) 2006

The Building (Amendment) Regulations (Northern Ireland) 2006 enter into force on 30th November 2006, having been made on 31st August.

The Regulations amend Part F by replacing it with new regulations to raise energy performance standards. Compliance with the regulations will be measured against an overall emissions target. The new regulations introduce the requirement for the first time for buildings over 1000m¬¬2 that are undergoing major refurbishment to be upgraded to comply with the energy performance criteria.

Part L has also been replaced by new regulations and has been renamed “Combustion Appliances and Fuel Storage Systems” in order to take account of solid fuel, oil and gas fired appliances and the storage of their associated fuel.

The new regulations relate to provision of information, the protection of liquid fuel storage tanks and protection against pollution. The references to the deemed-to-satisfy documents for this Part have all been updated to take account of the amendments.

Part R has also been replaced, and has been renamed “Access to and Use of Buildings”. The amendment only related to buildings that are not dwellings, and relates to the introduction of new regulations for access to extensions and sanitary accommodation in extensions.

New Tables have been substituted for Tables F, H, L, R and V of Schedule 5 so that the updated deemed-to-satisfy references are inserted.

The Regulations are available at the following link.

The Regulatory Impact Assessment is available at the following link.

Packaging Waste

The Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 2006 enter into force on 9 October 2006, having been made on 4 September 2006.

The Regulations are in implementation of Article 6(1) of Directive 94/62/EC, and follow consultation under the Producer Responsibility Obligations (Northern Ireland) Order 1998.

The Regulations impose an obligation on producers to recover and recycle packaging waste. In order to determine whether a producer is required to comply with the Regulations a two part test is set out.

If a producer had an annual turnover of £2 million or more in the last year and have handled 50 tonnes of packaging or packaging materials or more in the last year then they are subject to the producer responsibility obligations for that year.

Detailed rules are laid out in Schedule 2 for calculating the level of their obligations in this respect.

Producers covered by the Regulations can either buy Packaging Waste Recovery Notes (PRNs) or Packaging Waste Export Recovery Notes (PERNs) themselves as appropriate, or they may join a compliance scheme.

The benefit of joining a compliance scheme is that if it is a scheme registered with the Department of the Environment then the producer will be exempt from complying with the obligations set out in the Regulations for that year. Producers who do not join a registered scheme must register themselves with the Department of the Environment.

The Regulations contain requirements to keep records, and for producers to provide certificates to the Department of the Environment demonstrating that they have complied with the obligations.

They impose duties on the Department of the Environment to monitor compliance and to keep a public register. It is an offence to contravene the obligations on recycling and recovery contained in the Regulations.

The Regulations revoke the Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 1999 and its subsequent amending regulations.

The Regulations are available at the following link.

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