Edie Legislation Summary December 2008

Recent changes to legislation which will impact on the environmental sector come under the spotlight in this Semple Fraser and Edie News monthly round-up of new law and policy.



The future landscape of waste management in the EU has been set out in the new Waste Framework Directive (2998/98/EC) following its publication in the Official Journal on 22nd November 2008.

In addition to revising existing EU waste law, one of the main stated aims of the Directive is to take the EU closer to a ‘recycling society’ which seeks to prevent waste generation and promote the use of waste as a resource.

The new Directive dictates that national waste management policy should observe a 5 tier was hierarchy, applying, in priority order – prevention at number one followed by re-use, recycling, recovery, through to disposal as a last resort.

However, the Directive does allow Member States some discretion in this regard, permitting a departure from the waste hierarchy where necessary to achieve the best overall environmental outcome and where lifecycle considerations justify such a move.

It is also interesting to note that the new Directive regards the incineration of waste, as a fuel or other means of generating energy, as a recovery operation providing certain energy efficiency criteria are met.

The Directive also sets ambitious new recycling targets requiring Member States to achieve a 50% re-use/recycling rate for household waste such as paper, metal, plastic and glass; and, a 70% re-use/recycling rate for non hazardous construction and demolition waste.

A clearer demarcation line is drawn between waste, by-products and substances which have undergone a recovery operation and achieved ‘end-of-waste’ status as the Directive sets out requirements for meeting ‘end-of-waste’, stating that waste will cease to be waste when it has undergone a recovery operation that complies with the following criteria:-

  • the recovered material is commonly used for a specific purpose
  • a market demand must exist for the recovered material
  • the recovered material must fulfil technical requirements, for the specific purpose, and meet existing legislation and standards applicable to such products
  • the re-use of the recovered material will not lead to overall adverse environmental or human health impacts
  • The new Directive also lays out the circumstances in which a substance or object, resulting from a production process, the primary aim of which is not the production of that item, may be regarded as a by-product and not waste provided the following conditions are met:-

  • further use of the substance or object is certain
  • the substance or object is capable of being used without further processing
  • the substance or object is produced as an integral part of the production process
  • further use is lawful, in that the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts
  • This development has the effect that certain materials which now fall within the definition of waste will escape waste management controls under the new regime.

    The new Directive also introduces a number of exclusions. These exclusions include un-excavated contaminated soils. Happily, this settles the issues which arose out of the Van der Walle case in which the ECJ considered unexcavated contaminated soils to be waste. A further exclusion will also enable on-site re-use of uncontaminated soil and other naturally occurring material excavated during construction activities.

    The new Directive on Waste will enter into force on the 12th December and Member States have a period of 2 years in which to transpose the requirements of the Directive.

    The text of the new Waste Framework Directive is available via the following link:-



    A new Directive (2008/103/EC) which amends the Batteries Directive (2006/66/EC) entered into force on the 19th November 2008 following its publication in the Official Journal of the European Union.

    In order to provide legal certainty the new Directive confirms that batteries and accumulators which do not comply with the Batteries Directive, but which were legally placed on the market, anywhere within the Community, before the 26th September 2008 – the date on which the Batteries Directive entered into force, can remain on the market.

    Member States are required to transpose the Directive by 5 January 2009.

    The text of the new Directive is available below:-


    Mercury Exports

    In order to reduce the risk posed to human health and the environment from exposure to mercury, EC Regulation (1102/2008) will ban, from 15 March 2011, exports of metallic mercury, cinnabar ore, mercury (I) chloride, mercury (II) oxide and mixtures of metallic mercury with other substances, including alloys of mercury, with a mercury concentration of at least 95 % weight by weight from the Community.

    However, this ban is not absolute, as it will not apply to exports of certain compounds used for research and development, medical or analysis purposes.

    In order to ensure the effective protection of human health and the environment the Regulation also lays down provisions for the safe disposal and storage of mercury within the Community.



    Climate Change

    The Climate Change Act 2008 received Royal Assent on 26th November 2008. This new legislative instrument sets legally binding targets for the reduction of greenhouse gas emissions in the UK while at the same time leaving certain areas to devolved legislatures.

    Through the Act the Government aims lead the way in the fight against climate change by laying down a framework to improve carbon management and facilitate the transition towards a low carbon economy. Under the new Act the Government is required to achieve a reduction in carbon dioxide emissions of at least 26% by 2020, and a reduction in total greenhouse gas emissions of at least 80% by 2050, against a 1990 baseline.

    In order to meet these targets the new Act requires the Government to set 5 yearly carbon budgets, with three budgets set at any one time.

    The Act creates an independent Committee of Climate Change charged with the responsibility of advising the Government on carbon budgets, the use of carbon credits, the 2050 emission reduction target, and on emissions from aviation and international shipping as well as providing the Government with annual progress reports and advising generally on how to reduce emissions and any other matter relating to climate change.

    In order to reduce emissions, the Act provides the basis upon which a number of specific policy measures can be introduced, such as improvements to the operation of the Renewable Transport Fuel Obligation through amendments made to the Energy Act 2004, the imposition of charges on the use of single use carrier bags, the setting up of waste reduction pilot schemes, and amendments to the Certified Emissions Reductions Scheme.

    Under the new Act the Government is under an obligation to assess the risk presented to the UK by Climate Change and. the Act also requires a limit to be put on the use of overseas emissions credits.

    The Climate Change Act 2008 and an Explanatory note is available below:-




    The Energy Act received Royal Assent on 26th November 2008 implementing the UK Government’s energy policy following the 2006 Energy Review and the 2007 Energy White Paper – Meeting the energy challenge. However, not every provision of the Act applies to the UK as a whole, as certain energy matters remain to be legislated on by devolved administrations.

    In order to protect reliable gas supplies, and to encourage private sector investment, the new Act aims to reinforce the regulatory framework for offshore gas supply infrastructure.

    In order to reduce carbon emissions from fossil fuel run power stations, the Act also lays down the regulatory framework necessary to facilitate private sector investment in carbon capture and storage (CCS) projects.

    To maintain a reliable supply of energy, with a corresponding reduction in carbon emissions, provision is made to improve the Renewables Obligation, by introducing measures such as banding, to bring about greater use of renewable energy by the electricity generating sector.

    The Act also enables the Government to introduce feed in tariffs to support small scale renewable electricity installations and to award incentives to renewables heat and biogas installations.

    A number of changes are also introduced in respect of the regulation of the offshore oil and gas sector. In order to reduce the liabilities which may fall to the Government, the Act introduces tougher measures for the decommissioning of offshore wells and oil, gas and renewables installations.

    The new Act also provides for amendments to be made to the offshore oil and gas licensing regime, and to the electricity transmission licensing regime, so as to enable the Department of Energy and Climate Change (DECC) and the energy regulator (OFGEM) to carry out their regulatory functions more effectively. Furthermore, the legislation also enables the Secretary of State to modify distribution and supply licenses so as to facilitate the installation of smart meters.

    Within the Act provision is also made to ensure that operators of new nuclear power facilities hold sufficient funds to cover all decommissioning and waste management costs.

    The text of the new Energy Act 2008 is available below:-


    REACH regulations

    An enforcement regime for the European Regulation 1907/2006/EC concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) will come into play in the UK on 1st December 2008.

    The aim of REACH is to improve the protection afforded to human health and the environment from the risks associated with certain chemical substances. Under REACH the responsibility for assessing and managing the risks posed by chemical substances is shifted onto industry manufacturing, importing and/or placing chemicals on the market.

    The UK Government is obliged, under Article 126 of REACH, to provide for effective enforcement of REACH within the UK, including the introduction of effective, proportionate and dissuasive penalties for infringement.

    The Enforcement Regulations empower the relevant enforcing authorities (the Department of the Environment; the Environment Agency; the Health and Safety Executive (HSE); the Health and Safety Executive for Northern Ireland (HSENI); local consumer safety authorities; local health and safety authorities; the Scottish Environment Protection Agency (SEPA); and, the Secretary of State) to enforce the appropriate provisions of REACH.

    Under the Regulations the enforcement authorities are required to share information and cooperate with one another, the relevant competent authority and the European Chemicals Agency (ECHA) while carrying out their enforcement duties. Furthermore, HM Revenue and Customs (HMRC) will assist the relevant enforcement authorities by detaining goods suspected to be imported in breach of REACH.

    The Regulations also provide for the availability of exemptions from compliance with listed REACH provisions in circumstances where a defence exemption certificate is held or where such an exemption would be in the interests of defence. The Regulations also make provision for an exemption from the restriction on the marketing and use of leaded paint as long as certain conditions are met and complied with.

    A breach of a listed REACH provision will constitute a criminal offence, as does providing false or misleading information and failing to cooperate with the enforcement authorities. Scotland excepted, persons authorised by the HSE or the HSENI may prosecute an offence under the Regulations themselves.

    Those convicted, either summarily or on indictment, face penalties which include fines and even imprisonment and a court may also require those convicted of an offence to remedy those matters for which they were convicted. In circumstances where criminal proceedings would be unlikely to result in an effective remedy, the Regulations enable the enforcing authorities to institute civil proceedings.

    The text of the new Regulations, together with an explanatory memorandum, is available via the links below:-




    The Transfrontier Shipment of Radioactive Waste and Spent Fuel Regulations 2008 will come into force on 25th December 2008,revoking and replacing the Transfrontier Shipment of Radioactive Waste Regulations 1993 which currently deal with radioactive waste shipments only.

    The new Regulations will continue to apply the European Directive (96/29/Euratom) concerning the basic standards of protection owed to workers, and the general public, from the dangers of radiation. However, the new Regulations also implement the European Directive (2006/117/Euratom) on the supervision and control of shipments of radioactive waste and spent fuel.

    The new Regulations will therefore extend the existing regulatory regime in order to encompass shipments of spent nuclear fuel, such as uranium and plutonium, sent for reprocessing.

    The new Regulations will be enforced by the Environment Agency in England and Wales; the Scottish Environmental Protection Agency (SEPA) in Scotland; and, the Chief Inspector, appointed under the Radioactive Substances Act 1993, in Northern Ireland.

    The Regulations set out the administrative procedures relating to authorisations, consents and notifications required by the relevant competent authorities as well as the necessary documentary requirements. Under the new Regulations the authorisation procedure will be subject to set timescales and a deemed consent procedure will apply in circumstances where no reply is received from the relevant competent authority within 2 to 3 months.

    It will be an offence to ship radioactive waste or spent fuel without an authorisation granted by the appropriate competent authority, the Regulations containing penalty provisions for those convicted of an offence under the regulations.

    The text of the new Regulations and an Explanatory Memorandum is available below:-



    Air Pollution

    The Merchant Shipping (Prevention of Air Pollution from Ships) Regulations 2008 came into force on 8th December 2008, implementing Annex VI of the MARPOL Convention relating to the prevention of air pollution from ships.

    The main provisions of the Regulations relate to the control of emissions of ozone depleting substances, nitrogen oxides, sulphur oxides and volatile organic compounds and the establishment of a number of requirements in respect of the quality of fuel oil to be used on board a ship, which include limitations on sulphur, organic acid and additive content.

    The Regulations also lay down criteria for ship board incineration of waste including prohibitions on the incineration of contaminated packing materials, garbage containing more that trace amounts of heavy metals and refined petroleum products containing halogens.

    Provision is also made for the survey and certification of ships as well as inspection and investigation. Where there is a breach of the Regulations, provision is also made for the detention of ships.

    The text of the new Regulations and an Explanatory Memorandum is available below:-




    In order to comply with its obligations under the Energy Products Directive (2003/96/EC), the UK Government has now removed the fuel duty derogation that was applicable to waste oils. The Energy Products Directive requires a minimum level duty to be imposed on the supply and use of fuel oils as well as on other energy products.

    However, for many years the EU allowed the UK, and other Member States, to derogate from the Energy Products Directive by way of an exemption from the requirement to impose duty on heavy fuel oil including waste oils or petroleum fuels derived from waste oil. However, this derogation came to an end on 31st December 2006.

    Although a number of Member State Governments, including the UK, made submissions to the European Commission for maintaining this derogation, their arguments were rejected.

    Legislation was therefore introduced in the Finance Act 2008 with the effect that from November 1st 2008 a positive rate of excise duty, equivalent to the rebated fuel oil rate, currently 9.29 pence per litre, must be levied on heavy oil, including waste oils or petroleum fuels derived from waste oil, when it is supplied as a fuel for heating and for use in off road engines.

    If the heavy oil is to be used as road fuel however, the rebated rate will not apply. In such circumstances the full rate of duty, currently 50.35 pence per litre, must be levied.

    Accordingly, for fiscal purposes most waste oil operators will now be treated as oil producers. Companies undertaking activities considered by HMRC to constitute ‘oil production’ must now register their premises with HMRC.

    HMRC explain that where the recovery of waste oil involves the application of energy or the introduction of chemical additives, such recovery will be regarded as oil production. In such instances the waste operator will be required to notify the HMRC. However, HMRC state that they will not regard recovery achieved through gravity settling or through filtration as a production process, in which circumstances notification is not required.

    Waste oil operators should be aware that HMRC requires oil producers to note that excise duty is payable before the heavy oil is supplied.

    Nevertheless, given that the EU requires only the imposition of a minimum rate of duty, the UK Government’s decision to levy duty at a significantly higher rate has been met with dismay by the waste oils reprocessing industry.

    Some further details on this development are available via the link below:-


    Noise and Emissions Standards for Light Passenger Vehicles

    New Regulations come into force on 10th December 2008 amending the Motor vehicles (EC Type Approval) Regulations 1998.

    The Motor vehicles (EC Type Approval) (Amendment) Regulations 2008 implement three European Directives and two European Regulations relating to noise, lighting, mobile air conditioning and emissions, for the purposes of EC type approval of light passenger vehicles, including Commission Directive 2007/34/EC, which aligns the technical requirements relating to noise with the type approval system established by the UN Economic Commission for Europe (UNECE) and Regulation (EC) No. 715/2007, which makes various provisions on emissions and access to repair and maintenance information.

    The text of the new Regulations and an Explanatory Memorandum is available below:-




    Energy and Planning

    An Act which will enable local planning authorities to set requirements for energy use and energy efficiency in local development plans was given Royal assent on Thursday 13th November 2008.

    The Planning and Energy Act 2008 puts the ‘Merton Rule’, a planning policy named after the sustainable planning policy adopted by the London borough of Merton, on a statutory footing in England and Wales. The Merton Rule requires developments to source at least 10% of their energy use from renewable sources.

    The new Act enables local planning authorities to include, in their development plans, policies imposing reasonable requirements for a proportion of the energy to be used by local developments to be from renewable and/or low carbon sources in the locality. The Act itself though, does not lay down a proportion of renewable and/or low carbon energy to be used.

    The new Act also permits local authorities to impose reasonable requirements upon local developments to comply with energy efficiency standards that exceed those laid down in building regulations.

    The text of the new Act is available via the link below:-



    Energy Performance of Buildings

    Amendment Regulations will come into force on 31st December 2008 in order to smooth out the introduction of the Energy Performance of Building (Scotland) Regulations 2008.

    The Energy Performance of Buildings (Scotland) Amendment Regulations 2008 insert a provision into the main Regulations so as to prevent a penalty charge notice being served in circumstances where the owner has requested an energy performance certificate no later than 7 days after a person becomes a prospective buyer or prospective tenant; and where the owner has made the energy performance certificate available to the prospective buyer or prospective tenant within 9 days of obtaining the certificate.

    For the first three months of 2009 the amendment Regulations will therefore give owners a grace period within which to commission an Energy Performance Certificate.

    The text of the new Regulations, together with an Executive Note, is available below:-




    The Action Programme for Nitrate Vulnerable Zones (Scotland) Amendment Regulations 2008 will come into force on 1st January 2009 in order to correct minor errors in regulation 9 of the Action Programme for Nitrate Vulnerable Zones (Scotland) Regulations 2008 so that that regulation applies to the storage of livestock manure other than slurry rather than solid manure. The Regulations also correct minor errors in the text and figures in some of the tables in Schedule 3.

    The text of the new Regulations is available below:-




    Maximum Residue Levels (MRLs) reflect levels of pesticides that are expected to be found in produce that has been treated in accordance with good agricultural practice.

    MRLs therefore provide a mechanism for statutory control on pesticide levels in produce and for monitoring the use of pesticides.

    New legislation came into force on 18th November 2008 implementing a new MRL regime in Northern Ireland. The Pesticides (Maximum Residue Levels) Regulations (Northern Ireland) 2008 set inspection, prohibition, enforcement and penalty provisions to ensure compliance with MRLs laid down in EC Regulation 396/2005 on maximum residue levels of pesticides in or on food and feed of plant and animal origin and amending Directive 91/414/EEC, as amended by EC Regulation 299/2008.

    The new regulations revoke the Pesticides (Maximum Residue Levels in Crops, Food and Feeding Stuffs) Regulations (Northern Ireland) 2006, including all Regulations amending those Regulations.

    The new Regulations also designate the Department of Agriculture and Rural Development as the national authority for the purpose of EC Regulation 396/2005.

    The text of the new Regulations is available via the link below:-


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