Environment Update April 2008
REACH – should you be pre-registering?
Industry is being encouraged, by the European Commission, to pre-register all chemicals with the European Chemicals Agency (ECHA) as soon as possible so as to safeguard the continuity of their operations.
The new chemicals legislation, REACH (Registration, Evaluation, Authorisation and restriction of Chemicals), requires all EU based companies that manufacture or import chemicals, in quantities of one tonne or more, to pre-register between 1st June and 1st December of this year. Companies that fail to pre-register by December will be required to cease manufacturing and/or importing immediately until they lodge a full registration with the ECHA.
Pre-registering will enable companies to take advantage of extended registration deadlines, up to 2010, 2013 or 2018. Companies who do not pre-register before December will find themselves on the back foot as they will be required to submit full registration dossiers right away. Pre-registration is free and consists of the submission of only basic details such as the name of the company and of the chemical concerned.
The Commission has also published a notice of the fees and charges that will apply in respect of registration, evaluation and authorisation of chemicals under REACH. Fees will vary relative to the volume of chemical produced, whilst discounts will be available to smaller companies and to those companies who cooperate with one another on registration.
Further information on the Commission’s campaign is available via the links below:-
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/564
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/582&type=HTML&aged=0&language=EN&guiLanguage=en
Scottish Government reject plans for Lewis windfarm development
The Scottish Government has announced its decision to refuse a planning application lodged by Lewis Wind Power, a collaborative venture between Amec and British Energy, to build a 181 turbine windfarm on peatlands on the Isle of Lewis.
Plans were rejected on the grounds of incompatibility with European Law, in particular the European Birds and Habitats Directives.
Scottish Ministers believe that the windfarm would have had a significant adverse impact on the Lewis Peatlands Special Protection Area (SPA), designated and protected under the European Birds and Habitats Directives, due to its population of rare and endangered birds.
Nevertheless, Energy Minister, Jim Mather claims that this decision does not spell the end for future onshore windfarm developments on the Western Isles.
Further information on this decision is available from the Scottish Government:-
http://www.scotland.gov.uk/News/Releases/2008/04/21102611
Banding the Renewables Obligation – a Scottish perspective
The Scottish Government has launched a consultation on proposals which aim to tailor the introduction of a system of banding to the Renewables Obligation for Scotland.
The Renewables Obligation (Scotland), the regulatory tool through which the Scottish Government aims to deliver on its pledge to meet a target of 50% of Scotland’s electricity demand from renewable sources by 2020, is in line for a re-vamp by the introduction of a system of banding through which different renewable technologies will receive different levels of support.
The Scottish Government favour the principle of banding and welcome its introduction across the UK obligations. However, they believe that, in certain circumstances, support measures, specifically tailored for Scotland, should apply.
In the wave and tidal sector, the Scottish Government propose to discontinue the Marine Supply Obligation, replacing it with a banded / multiple ROC mechanism. Furthermore, the Scottish Government believe that wave and tidal output in Scotland should receive a higher level of support than proposed by the UK Government.
In the energy from waste sector, the Scottish Government propose that stations, with advanced conversion technologies should only become eligible for ROCS at a higher multiple where plants are fitted with good quality combined heat and power and meet established efficiency standards.
In the wind power sector, the Scottish Government welcome views on proposals to institute a higher level of support for the development of wind capacity on the Scottish Islands.
This Scottish Government preliminary consultation is available via the link below:-
http://www.scotland.gov.uk/Topics/Business-Industry/Energy/Energy-sources/19185/Resources/20801/ROSSC2008/ROSCons08Intro
‘Piggybacking’ permit applications
Following the Court of Appeals decision in the case of R (Anti-Waste Ltd) v EA from April 2007, the Environment Agency (EA) has recently issued a regulatory position statement regarding how they will determine landfill permit applications in light of this case.
The Anti-Waste case looked at the issue of "piggybacking", i.e. where an operator seeks to start a new landfill partially on top of a closed landfill. The EA had said it was illegal, and the new one had to be beside, and not on top of, the old one. However the Court disagreed with the EA and said there's nothing inherently unlawful about it, although it can only be allowed where the new landfill is able to meet the usual modern technical controls. Therefore if the old one is still discharging leachate, or if putting the new one on top of the old one would result in the old one being "squeezed" so that contaminants started to leak out of it, then that would be impermissible.
The position statement from the EA lists a number of issues that will be required to be addressed in a permit application for a piggyback landfill. These include requirements regarding the engineering and lining of the landfill and the effects on the existing waste mass. There are also requirements in relation to the protection of groundwater.
New EU air quality Directive takes final form
The final text of a new Directive on air quality has been released by the European Parliament and the Council of Ministers. The Directive is to repeal the existing framework Directive on ambient air quality (Directive 96/62/EC) and three of the four daughter Directives, which set out the numerical limit values, or in the case of ozone, target values for each of a number of identified pollutants.
The overall aim of the Directive is to ensure the maintenance of air quality where it is good and its improvement in other cases. To this end the Directive sets threshold limits and target values for ambient air quality in terms of sulphur dioxide, nitrogen oxides, particulate matter, lead, benzene, carbon monoxide and ozone, the pollutants previously covered by the 1996 framework Directive and its daughter Directives. However, as well as streamlining existing EU air quality legislation into one Directive, the new Directive will introduce a limit for fine dust particles, known as PM2.5, one of the most dangerous air pollutants.
The Directive lays down definitive air quality assessment criteria and requires member states to operate ambient air quality management programs and implement air quality plans in order to preserve best ambient air quality where it exists and to attain improvement in areas where threshold limits are exceeded and/or target levels are not met.
Under the Directive member states will be required to ensure that information on ambient air quality is made available to the public. The Directive also aims to promote increased cooperation between the Member States in reducing transboundary air pollution.
Movements in the Marine sector
With the publication of the draft Marine Bill this week, Defra has launched a consultation on its provisions, upon which views are sought by 26th June.
Amongst other things the Bill proposes the creation of a Marine Management Organisation (MMO) which will regulate offshore activity and enforce environmental protection legislation, the introduction of a marine planning regime, the simplification of licensing developments at sea, such as offshore windfarms, the establishment of marine nature conservation zones, improvements to the management and reform of marine and inland fisheries, and improved public access to coastal land.
The Consultation together with the text of the draft Bill is available via the links below:-
http://www.official-documents.gov.uk/document/cm73/7351/7351.pdf
The other development this week saw amendments made to the Marine Supply Obligation (MSO), introduced under the Renewables Obligation (Scotland) (ROS). The MSO requires suppliers, with an obligation under the ROS, to meet a proportion of their obligation by producing as evidence, ROCs awarded to eligible wave or tidal generation in Scottish waters, or alternatively to pay a higher buy-out price.
Although the ROS Order 2007 contained MSO levels from 2008/9 onwards (the 2007/8 level was set at zero).. The Renewables Obligation (Scotland) Amendment Order 2008, which came into force on April 1st, therefore amends the Renewables Obligation (Scotland) Order 2007 by introducing adjustments to the minimum wave and tidal Requirements falling to suppliers as part of their renewables obligation.
http://www.opsi.gov.uk/legislation/scotland/ssi2008/pdf/ssi_20080132_en.pdf
'Aid-ing' environmental protection
In recognition of the fact that in certain circumstances state aid can promote sustainable development and benefit the environment the European Commission has published new guidelines on state aid for environmental protection. The guidelines set out certain ways in which Member States can subsidise environmental improvements by companies without falling foul of EU competition law.
According to the guidelines, state aid measures must result in a higher level of environmental protection than would occur in the absence of aid. In assessing whether an aid measure is compatible with the common market, a balancing test is carried out, in which the positive impact of the aid is weighed up against any negative effects such as the distortion of trade and competition.
The Commission has identified a series of situations where state aid measures, with the aim of protecting the environment, may, under certain circumstances, be compatible with EU competition law. These include aid for undertakings which go beyond Community Standards for environmental protection or increase the level of environmental protection in the absence of Community Standards. Examples include aid for environmental studies, energy saving, renewable energy sources, cogeneration and for district heating, waste management, remediation of contaminated sites, the relocation of undertakings, and reductions and exemptions from environmental taxes for certain sectors or undertakings.
The Commission guidelines are available via the link below:-
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:082:0001:0033:EN:PDF
Soil management strategy set for England
Defra has published a consultation on a draft soil strategy for England. The aim of the strategy, which will succeed the 2004 Soil Action Plan, is to provide a framework for policy making to ensure the sustainable management of England’s soils.
The strategy focuses on key areas including the sustainable management of soil in the agriculture and forestry sector via the promotion of good soil management and the implementation of targeted and proportionate policy measures. The strategy also aims at halting the decline of soil carbon by introducing policies aimed at increase the understanding of carbon decline and promoting management practices which secure carbon sinks. The strategy also deals with the prevention of flooding, sustainable soil management in the built environment via the promotion of sustainable urban drainage systems, as well as the protection of soil during the recycling of materials to land via the use of composts, industrial wastes and manures.
Defra invite responses by 23rd June.
Environment Agencies to probe deeper into packaging waste export
The Producer Responsibility Obligations (Packaging Waste) (Amendment No. 2) Regulations 2008 Regulations came into force on the 19th July, amending the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 by revising the requirements for exporter accreditation.
The amended Regulations give the Environment Agencies greater discretion in respect of the evidence required to show that exported packaging waste will be reprocessed under conditions ‘broadly equivalent’ to the standards which exist within the European Community.
Under the 2007 Regulations producers are obliged to recover and recycle packaging waste in order to meet recovery and recycling targets set out in the European Directive 94/62/EC on packaging waste. However, packaging waste exported outside of the Community can only count towards these targets if there is sound evidence that the recovery and/or recycling operation took place under conditions broadly equivalent to those required within the Community.
A producer choosing to export packaging waste must issue a Packaging Waste Export Recovery Note (PERN), as evidence of export for reprocessing outside of the UK. However, before an exporter can issue a PERN, he must be accredited, by one of the Environment Agencies, in relation to the reprocessing sites identified. An application for accreditation can only be granted if the Agencies are satisfied that the reprocessing sites operate under the conditions of broad equivalence.
As exporters of packaging waste are finding it increasingly difficult to obtain evidence of broad equivalence from overseas reprocessors, the revised Regulations aim to widen the discretion held by the Environment Agencies when accrediting an exporter, allowing for consideration of alternative ‘sound evidence’ of broad equivalence. It is envisaged that the amendments will cover cases where either specific evidence is not available or where the identity of the reprocessing site is not known at the time of accreditation. However, site-specific accreditation will remain the default position, and the new option will still need to meet a number of environmental criteria. This will mean that consideration must be given to whether proper sorting is undertaken, whether a quality system for reprocessing exists, and the current market conditions and requires the authorities to be satisfied that there are no environmental draw-backs to reprocessing the material.
The new Regulations are available via the link below:
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081941_en.pdf
Cooking up a profit – biodiesel from waste
The Environment Agency (EA) in collaboration with WRAP (Waste & Resources Action Programme) has published a draft Quality Protocol setting out criteria for the production and use of biodiesel derived from waste cooking oil and rendered animal fat.
Biodiesel will be regarded as having ceased to be a waste and therefore no longer subject to waste management controls when the criteria of the Quality Protocol are met. In order to comply with the Quality Protocol the producer must apply a strict acceptance criteria to their input materials. Only those wastes classified under European Waste Catalogue (EWC) codes: 20.01.25 (waste cooking oil originating in restaurants, catering facilities and kitchens); and, 02.02.99 (rendered animal fat and waste cooking oil) may be used in the production of biodiesel.
The Quality Protocol dictates that biodiesel must be produced via the chemical process of transesterification. The resultant biodiesel must also be intended for use as a heating fuel or an automotive fuel and comply with the requirements of the approved standards.
In order to demonstrate that all the criteria have been met the Quality Protocol requires the producer of the biodiesel to retain records of incoming wastes and records of quality inspections and testing carried out. The producer must also produce and keep copies of customer supply documentation and issue a Quality Statement declaring that the biodiesel was produced in conformance with the Quality Protocol.
The EA have indicated that they intend to have the Quality protocol adopted as a technical regulation under the Technical Standards and Regulation Directive 98/34/EC, which it is estimated will take up to six months. In the meantime the Environment Agency will continue to regulate the production and use of biodiesel derived from waste cooking oil and rendered animal fat in accordance with their interim regulatory position statement. However, a final version of the Quality Protocol is expected by spring 2009.
Quality Protocol for processed fuel oil - guidance on end of waste test?
A Quality Protocol for the production of processed fuel oil from waste lubricating oils, developed by the Environment Agency following consultation with industry and other stakeholders, has been published for wider consultation.
The draft Protocol sets out criteria for the production and use of processed fuel oil from waste lubricating oils. Processed fuel oil will be regarded as having ceased to be a waste and therefore no longer subject to waste management controls when the criteria of the Quality Protocol are met.
In order to comply with the Quality Protocol the processed fuel oil must only be produced from the input materials specified. The processed fuel oil, derived from waste lubricating oil, must also comply with the requirements of approved standards. In order to be utilised as a replacement fuel for Gas Oil or Heavy Fuel Oil, the processed fuel oil must meet the parameters set out in the British Standard (BS2868:2006) for class D and class G fuels respectively. Certain threshold limits for total halogens (expressed as chlorine), PCBs and certain heavy metals have also to be met. In addition, according to the Quality Protocol, processed fuel oil, used as a substitute for Heavy Fuel Oil, must conform to the limit for ash content specified in the Protocol as opposed to that set out in British Standard (BS2869:2006) for class G fuels. The Protocol specifies an ash content limit of 0.2 %(m/m), for Heavy Fuel Oil substitutes, determinable by test method IP550, an analytical designed for the determination of the sulphated ash from burner fuels derived from waste mineral oils.
In order to demonstrate that all the criteria have been met the Quality Protocol requires the producer of processed fuel oil to retain records of incoming wastes and results of quality testing carried out. The producer must also produce and keep copies of customer supply documentation and issue a declaration of conformance stating that the processed fuel oil was produced in conformance with the Quality Protocol.
The consultation was launched on July 29th and will remain open for comment to any interested business or stakeholder group for a period of 12 weeks. The draft Quality Protocol is available via the link below:
http://wloqp.dialoguebydesign.net/
Environmental permitting exemptions in line for overhaul
Defra has launched a consultation on proposals to overhaul the system of exemptions under the Environmental Permitting (England and Wales) Regulations 2007.
It is claimed that the review will result in a more risk based and proportionate approach to the regulation of waste recovery and disposal operations. Having assessed the risk posed by each activity currently subject to an exemption, the revisions proposed are intended to reflect the relevant thresholds and criteria, which have been used to determine whether an activity should be regulated by way of a simple exemption or the more onerous environmental permit.
With the exception of the introduction of a two-tiered system of simple and complex exemptions, little amendment has been made to the system of exemptions from environmental permitting (formerly the waste management licensing exemption system) since its introduction back in the early 1990’s. The draft Environmental Permitting (England and Wales) Regulations 2009 therefore seek to introduce a number of changes.
With the current list of exemptions now spanning to more than 50 separate activities, it is proposed that these be replaced with exemptions categorised under the broad headings of use, treatment, disposal and storage at the place of production.
The proposals also include a widening of the application of exemptions to low risk activities and therefore it is intended that a number of activities currently operating under an Environment Agency low risk position, will fall within one of the proposed revised exemptions under the categories listed above.
It is proposed that the number of exemptions available for higher risk waste operations will be reduced with such activities being regulated by standard permits. Furthermore, notifiable exemptions will be phased out.
It is proposed that simple exemptions will no longer apply indefinitely , but that a three yearly registration period be introduced., Finally, it is also proposed to introduce charges for registration of each exempt site and quantity limits for all exemptions.
It is hoped that the draft Regulations, once introduced, will be implemented by Autumn 2009. However, thereafter a phased three year transitional period, prioritised relative to the environmental risk posed by the activity, is suggested in order to allow operators to comply with the revisions.
The revisions also aim to target red tape by enhancing the public register of exempt operations, limiting record keeping requirements to a small number of simple exemptions, using European Waste Catalogue codes to describe exempt waste types, restructuring the Regulations making them more comprehensible and easier, and by providing revised guidance on exemptions.
The closing date for responses to this consultation is Thursday 23rd October 2008.
http://www.defra.gov.uk/corporate/consult/waste-exemption-review/consultation.pdf
FOR FURTHER INFORMATION PLEASE CONTACT: FIONA ROSS