Environment Update August 2008
Individuals can insist on implementation of air pollution laws
The ECJ was asked by the German Federal Administrative Court to provide a preliminary ruling on the interpretation of Directive 96/62/EC on ambient air quality assessment and management. The Reference was made in the course of proceedings between a resident of Munich and the German state of Bavaria.
The resident lived on the Landshutter Allee on Munich’s central ring road. A nearby air quality measuring station revealed that the limit value for emissions of particulate matter was exceeded more than 35 times in a year, this went beyond the maximum number of instances permitted under national pollution control laws.
The resident brought an action against Bavaria in the national courts, requiring them to draw up an air quality action plan in the district, to determine the measures to be taken in the short term in order to ensure compliance with the maximum permitted number of exceedances of the emission limit value for particulate matter.
The Federal Court found that the resident did not have any entitlement to have an action plan drawn up under national pollution control laws. However, the Court paused proceedings in order to ask the ECJ to provide a ruling on whether third parties affected by pollution were entitled to have air quality action plans drawn up on their behalf directly under the Directive.
The European Court said that whenever there was a failure to observe measures required by the Directive relating to air quality, designed to protect public health, which could endanger human health, then the persons affected must be in a position to rely on the mandatory rules contained within the Directive.
Accordingly, the ECJ held that the Directive must be interpreted as meaning that, where there is a risk that the limit values or alert thresholds may be exceeded, persons directly affected must be in a position to require national authorities to draw up an action plan. However, the Court ruled that Member States are only obliged to take such measures in the short term as are capable of reducing to a minimum the risk that the limit values or alert thresholds may be exceeded and of ensuring a gradual return to a level below those values or thresholds.
The judgement in case C-237/07 and an ECJ press release can be accessed via the following links.
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=c-237/07
http://curia.europa.eu/en/actu/communiques/cp08/aff/cp080058en.pdf
Tax man loses out on landfill tax
The Finance Act 1996 requires landfill site operators to pay landfill tax for the disposal of material as waste by way of landfill at a landfill site. The condition for a disposal to be taxable is further qualified in that the disposal of material is a disposal as waste if the person making the disposal does so with the intention of discarding the material.
Waste Recycling group Ltd (WRG), operator of some 60 landfill sites across the UK, sought a refund of landfill tax paid in respect of inert materials, recycled from waste, used to provide daily cover for active waste and for the construction of roads on its landfill sites.
WRG claimed that such use did not give rise to a taxable disposal as the material had not been disposed of as waste. This claim was refuted by HMRC and subsequently by the VAT and Duties tribunal. However, WRG took their case to the High Court and won.
Maintaining that such use was a taxable disposal, HMRC asked the Court of Appeal to reverse this; but, the Court of Appeal declined, upholding, in part, the judgment of the High Court. The Court found that such use of material recycled from waste used for daily cover and for building roads on a landfill site is not a taxable disposal.
Furthermore, in considering whether WRG had intended to discard the materials the Court held that at the relevant time there was either no disposal or no disposal with the intention to discard the material. The Court stated that there was no principle that material once labelled waste is always waste just because its original producer of it threw it away.
The full judgement of the Court of Appeal in this case may be accessed via the link below:
http://www.bailii.org/ew/cases/EWCA/Civ/2008/849.html
REACH – Further guidance published
The European Chemicals agency (ECHA) has issued Guidance Fact Sheets on data sharing, registration, information requirements and chemical safety assessment including exposure scenario building. Each Fact Sheet is intended to provide a structured overview of the relevant REACH Guidance Document.
The Guidance Fact Sheet on data sharing is aimed at companies who manufacture or export chemical substances into the European Community and are obliged to share data in the context of REACH. It may also be useful to downstream users or other stakeholders possessing technical data that they are wiling to share.
The Fact Sheet on registration is targeted at manufacturers, importers and only representatives established in the EU required to register substances under REACH.
The Guidance Fact Sheet on information requirements and chemical safety assessment (Part A) provides an overview of aspects relating to the compilation of Chemical Safety Reports. It applies to a broad range of parties including manufacturers, importers, downstream users, producers or importers of articles containing substances intended to be release, and companies preparing a Chemical Safety Report as part of an authorisation application.
A Guidance Fact Sheet on Exposure Scenario Building has also been produced, intended for companies manufacturing or importing more than 10 tons per year of a substance subject to registration and classified dangerous, persistent, bioaccumulative or toxic, and where an exposure assessment and risk characterisation is required. The Fact Sheet may also be used by downstream users, producers or importers of articles, and companies applying for authorisation and carrying out a chemical safety assessment.
http://echa.europa.eu/doc/reach/echa_08_gf_04_data_sharing_en_20080721.pdf
http://echa.europa.eu/doc/reach/echa_08_gf_05_registration_en_20080721.pdf
http://echa.europa.eu/doc/reach/echa_08_gf_06_inforeq_csr_part_a_en_20080721.pdf
http://echa.europa.eu/doc/reach/echa_08_gf_07_inforeq_csr_part_d_en_20080721.pdf
In addition, the ECHA has announced that the bulk pre-registration functionality is now available in REACH-IT thus enabling companies to submit pre-registration files for up to 500 substances listed in the European Inventory of Existing Chemical Substances (EINECS). The ECHA has published guidance on how to submit bulk pre-registration in Data Submission Manual 6: Submission of Bulk Pre-registrations.
http://echa.europa.eu/doc/press/pr_08_20_bulk_pre_reg_20080722.pdf
http://www.echa.europa.eu/doc/reachit/bulk_submission_manual_20080722.pdf
Environmental impact assessment – required for any road works?
A Court in Spain asked the European Court of Justice (ECJ) to provide a preliminary ruling on a matter concerning the interpretation of the European Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment as amended (the EIA Directive).
The reference was made in the course of proceedings between Ecologistas en Acción-CODA, an alliance of more than 300 environmental groups, and the Municipality of Madrid concerning the approval, by the Municipality, of various projects forming part of the refurbishment and improvement of the Madrid urban ring road. It was alleged that the Municipality had infringed national rules on environmental impact assessments by not subjecting a ring-road project to an environmental impact assessment (EIA).
In granting consent the Municipality had split the project into several independent sub projects. When treated separately only one of the sub projects exceeded the threshold at which the national rules relating to environmental impact assessments applied. On the other hand, when considering the project as a whole, it substantially exceeded that threshold.
The Spanish Court, having regard to the implications of the scheme asked the ECJ whether, under the EIA Directive, the whole project should be subject to an EIA .
The Municipality contended that since urban roads were not mentioned in the Directive it was entitled to take the view that projects for their modification were not covered by the Directive and consequently did not require an EIA. The ECJ refuted this stance stating that as the scope of the Directive was very wide it was contrary to its purpose to allow an urban ring road to fall outwith its scope solely on the grounds that the Directive does not expressly mention projects concerning that kind of road.
The ECJ held that urban roads must be regarded as falling within the scope of the Directive, and that Member States must implement the Directive in a manner which fully corresponds to its requirements before any consent is given. Accordingly, projects for the refurbishment and improvement of urban roads likely to have significant effects on the environment by virtue of their nature, size or location should be made subject to an assessment with regard to their effects.
Furthermore, the ECJ stated that the purpose of the Directive could not be circumvented by splitting up projects and the failure to take account of the cumulative effect of several projects must not mean that they escape the obligation to carry out an assessment when taken together they are likely to have significant effects on the environment.
The judgment of the ECJ in case C-142/07 may be accessed via the link below:
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=c-142/07
Government implements Batteries Directive
The Batteries and Accumulators (Placing on the Market) Regulations 2008 will come into force on 26th September 2008, partially implementing the Batteries Directive (2006/66/EC).
The new Regulations dictate that new batteries and accumulators placed on the market on or after 26th September must not contain more than specified levels of mercury and cadmium. They also require certain batteries and accumulators containing more than a specified level of mercury, cadmium and lead, to be labelled with the appropriate chemical symbol.
In order to promote recycling the new Regulations require all batteries and accumulators to be marked with a crossed out wheeled bin symbol.
With the exception of when continuity of power supply is necessary for safety, performance, medical or data integrity reasons, and a permanent connection between the equipment and the battery or accumulator is required as a result, the new Regulations require new electrical and electronic equipment to be designed so that it facilities the easy removal of waste batteries and accumulators for recycling purposes. Furthermore, such equipment must be accompanied by instructions showing how the battery or accumulator can be removed safely and, where appropriate, providing details of the type of battery or accumulator installed.
The Regulations enable the enforcing authority to serve compliance and enforcement notices, and in some cases require the withdrawal of non compliant goods from the market.
Those who contravene the Regulations or fail to comply with a compliance or enforcement notice will be committing a criminal offence and may be required to pay the costs of any investigation, take remedial action or pay a fine of up to £5,000.
The Regulations and Explanatory Note can be accessed at the following links:
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082164_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20082164_en.pdf
Euro enviro-crime law unveiled
The final text of the new European Directive on the protection of the environment through criminal law has been published by the European Council.
The Directive aims to achieve more effective environmental protection by obliging Member States to provide for criminal penalties in respect of serious infringements of Community environmental protection laws.
Member States are at liberty to ‘gold-plate’ the Directive, applying even more stringent measures than those specified.
The Directive provides that anyone carrying out certain activities unlawfully, either intentionally or through serious neglect, is committing a criminal offence.
The activities include the following activities where they are carried out unlawfully, and cause or are likely to cause death or serious injury to any person or substantial damage animals or plants or to the quality of air, soil or water:
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the release of materials or ionising radiation into air, soil or water;
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the collection, transport, recovery or disposal of waste;
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the operation of plant where dangerous activities are carried out and / or where dangerous materials are stored and used; and
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the production, processing, handling, transport or disposal of radioactive substances.
The Directive also criminalises the following activities, when carried out unlawfully and committed intentionally or with serious neglect:
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the shipment of waste in non negligible quantities;
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the killing, destruction, possession or taking specimens of protected plant or wildlife and the trading in such specimens;
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the conduct causing significant deterioration of habitats within a protected site; and
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the production, marketing or use of ozone depleting substances.
Both individuals and companies may be criminally liable under the Directive, and such liability also extends to those inciting, aiding and abetting any intentional conduct. Criminal liability may also arise where the offence took place because of a lack of supervision and control.
The Directive requires Member States to ensure that offences are punishable by effective, proportionate and dissuasive criminal penalties. The European Commission had proposed a harmonised European penalty system, but this was abandoned after the ECJ ruled that the determination of the type and level of criminal penalty to be applied was not within the Community’s competence and should be left to the individual Member State governments.
Although agreement on the Directive was reached in May, it will not enter into force until it has been published in the Official Journal of the European Union. Member States must then transpose the Directive into national law within two years of the date of entry into force.
The text of the Directive is available from the link below:
http://register.consilium.europa.eu/pdf/en/08/st03/st03639.en08.pdf
Scope of conservation law widened
The Conservation (Natural Habitats, & c.) Regulations 1994 implement the Habitats Directive in Great Britain. The Regulations list those European Protected Species (EPS) whose natural range includes Great Britain and prohibits the deliberate capture, killing, injuring or disturbance of EPS, as well as damage or destruction of breeding sites and resting places. The Regulations provide the necessary protection through the creation of a number of criminal offences.
From 1st October new Regulations will add three new species:
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the pool frog,
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the Fisher’s estuarine moth, and
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the lesser whirlpool ram’s-horn snail
to the list of protected species in England and Wales.
The Conservation (Natural Habitats, &c.) (Amendment) (England and Wales) Regulations 2008 will amend the 1994 Regulations, with the result that these three species will be afforded the strict protection required by the Habitats Directive.
The Regulations and Explanatory Memorandum can be accessed at the following links:-
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082172_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20082172_en.pdf
REACH for new guidance on Authorisation and Evaluation
The European Chemicals Agency (ECHA) has released two further sets of guidance documents on the REACH Regulation.
Guidance on the inclusion of substances in Annex XIV (the list of substances subject to Authorisation) has been published to provide ECHA and national authorities with technical guidance on the identification of substances with properties of very high concern (SVHC) and their subsequent inclusion within Annex XIV of the REACH Regulation. It is envisaged that the guidance will also be useful to manufacturers, importers and downstream users of substances which may be subject to the authorisation procedure.
The guidance provides a general overview of the authorisation procedure and describes the roles, obligations and rights of the various parties involved. It also sets out the type of substances subject to the authorisation procedure, as well as their conditions of use and a number of general and specific exemptions.
The authorisation procedure is set out, detailing the processes for identification of a substance as a SVHC, the establishment of the candidate list, the prioritisation of the candidate list, inclusion of the substance in Annex XIV, and the granting of an Authorisation. The guidance also details the type of information required in an Annex XIV entry, such as substance identity, intrinsic properties, transitional arrangements, uses and exemptions.
Technical guidance is also given on priority setting during the evaluation process under REACH, for the benefit of ECHA, registrants and Member State competent authorities. In particular, the guidance discusses the availability, parameterisation and utilisation of information on use and exposure. It also sets out the approach recommended for priority setting with regard to examination of testing proposals and compliance checking of registration dossiers.
FOR FURTHER INFORMATION PLEASE CONTACT: FIONA ROSS