Environment Update December 2009
Making waves – new plans spell out sustainable future for the marine environment
The Marine and Coastal Access Act 2009 has entered into force following the Government’s consultation on the draft Marine Bill in 2008. The Act introduces a new system of marine management which provides a framework of standards and guidelines to ensure that human activities within the marine environment are managed in a sustainable manner. The key provisions introduce tighter controls and increase enforcement powers:
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An independent body, the Marine Management Organisation (MMO), whose role is to discharge a number of functions on behalf of the Government, is established. Its general objective will be to make a contribution to sustainable development of the marine environment. It is proposed that the MMO will be given the responsibility of drawing up marine plans for the purposes of the new planning regime. It will also have the task of administering marine environmental licensing and harbours regimes on behalf of the Secretary of State, manage marine fisheries, undertake nature conservation functions and use enforcement powers set out in the Act to enforce fisheries, licensing and nature conservation legislation.
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A new system of marine planning is introduced under the Act. At present, marine policy is developed sector by sector, which can cause difficulties for decision-makers and sea-users in deciding how to prioritise marine policy within their respective areas. A Marine Policy Statement has therefore been introduced, which provides for the preparation of marine plans for the UK marine area, which takes account of the Marine Policy Statement.
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A number of existing licensing regimes, such as those under the Food and Environment Protection Act 1985 (FEPA) and the Coast Protection Act 1949, will change with the introduction of new marine licensing provisions under the Act. The Act also alters the relationship between marine licensing and certain other legislation governing activities in the marine area, including the Petroleum Act 1998 and the Electricity Act 1989.
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New Marine Conservation Zones (MCZs) are created across most UK waters. This will replace the current power under the Wildlife and Countryside Act 1981 to designate Marine Nature Reserves, with existing Marine Nature Reserves to be converted into MCZs. Under the Act, public bodies will exercise their functions in ways that further the conservation objectives set for MCZs, and not authorise activities or development which carry a significant risk of hindering those conservation objectives. Further powers will be created to make byelaws or orders, and interim byelaws or orders, to protect sites, and potential sites, from otherwise unregulated activities which may cause harm.
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New bodies called Inshore Fisheries and Conservation Authorities (IFCAs) will be set up in England, who will deal with duties in relation to fisheries and nature conservation, and will have the power to make byelaws.
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Amendments are also made in relation to the regulation of marine and freshwater fisheries through changes made to the Sea Fish (Conservation) Act 1967, to provide new powers in relation to the regulation of commercial and recreational fishing and amendments to the Sea Fisheries (Shellfish) Act 1967.
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Enforcement officers are to be appointed and a set of common enforcement powers for enforcing requirements across licensing, nature conservation and fishing (including enforcing sea fisheries legislation) in the marine area will be introduced.
The new Act may be accessed through the following link:
http://www.opsi.gov.uk/acts/acts2009/pdf/ukpga_20090023_en.pdf
Meanwhile in light of the new Act, DEFRA have launched a consultation on marine plan areas within the English inshore and English offshore marine regions. Before the MMO can commence its development of marine plans on behalf of the Secretary of State, the Government needs to decide upon the boundaries of the proposed plan areas. It therefore requires views (by 16 February 2010) on the proposed areas, as well as for the considerations that the MMO will take on board when deciding the order in which they develop marine pans for each area.
For more information on the consultation, click on the following link:
http://www.defra.gov.uk/corporate/consult/marine-plan/index.htm
Warning to the UK: don’t stand in the way of the promotion of cogeneration
The UK, along with three other Member States – Portugal, Slovakia and Finland – has been issued a reasoned opinion by the European Commission, following its failure to notify the Commission of the legislative measures that it has introduced in order to transpose the Cogeneration Directive (Directive 2004/8/EC). The Directive strives to promote the use of combined heat and power in order to preserve primary energy, avoiding network losses and cut greenhouse gases. Member States were given until 21 February 2006 in order to introduce the necessary laws, regulations and administrative provisions to comply with the Directive. However, the Commission are yet to be notified of any UK measures introduced in order to implement the Directive.
Under the Directive, Member States are under an obligation to promote the necessary technology for cogeneration in order to break down the barriers which still hinder its development. Cogeneration combines both heat and power generation in order to reach increased energy efficiency and to minimise damage to the environment, for example by allowing heat created as a by-product of electricity generation, which is normally released into the environment through cooling towers, flue gas or by other means, to be captured as a by-product for domestic or industrial heating purposes. Under the Directive, “cogeneration” is defined as the simultaneous generation in one process of thermal energy and electrical and/or mechanical energy.
Having failed so far to notify the Commission of any legislative measures introduced in the UK to implement the Cogeneration Directive, the UK now has a period of two months from the date of the reasoned opinion in which to comply with its terms, otherwise it risks infringement proceedings being brought before the European Court of Justice.
The details of the Commission’s opinion can be accessed through the following link:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/09/1797&format=HTML&aged=0&language=EN&guiLanguage=en
Green energy is given the go ahead
The term ‘green energy’ will be given official status through a new Act which has been created to promote its development, installation and usage. The Green Energy (Definition and Promotion) Act 2009 is due to come into force in January 2010.
Through its primary purpose of promoting ‘green energy’, the Act defines such energy as “generation of electricity or heat from renewable or low carbon sources by the use of any equipment”, the capacity of which is not to exceed a certain capacity – 5 megawatts for the generation of electricity; and 5 megawatts thermal for the generation of heat. The Act also sets out the duties of the Secretary of State, who must ensure the effective promotion of green energy, in order to alleviate fuel poverty and secure a diverse and long-term viable energy supply. To this end, the Secretary of State is to prepare and publish a strategy for the promotion of microgeneration in England. In preparing such a strategy, consultation is to be undertaken with producers and suppliers of microgeneration equipment, which should commence within 6 months from the entry into force of the Act.
Specific provisions are introduced under the Act to provide for the planning implications of installing microgeneration equipment, as regards private homes and non-domestic land. In relation to private homes, the Secretary of State is required to amend the Town and Country Planning (General Permitted Development) Order 1995 (the GPDO), concerning England, to enable the granting of planning permission for specified classes of equipment for microgeneration on, or within the remit of, a private home. In relation to non-domestic land (buildings or other land other than a dwelling house), the Secretary of State must consider amending the GPDO for the purpose of facilitating the installation of equipment for microgeneration on non-domestic land in England.
The Act may be viewed by clicking on the following link:
http://www.opsi.gov.uk/acts/acts2009/ukpga_20090019_en_1#Legislation-Preamble
Chemical reaction
The European Chemicals Agency (ECHA) have published a document entitled Guidance on Annex XV for Restrictions, intended to give direction to Member States and the ECHA when developing proposals for restrictions on the use or placing on the market of certain substances if they pose an unacceptable risk to health or the environment. The guidance therefore assists Member States and the ECHA when preparing the Annex XV dossier, to justify any restrictions of the manufacture and use or placing on the market of a substance.
The overarching aim of the guidance is to ensure that Member States fulfill their obligations under the REACH Regulation (Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation (EC) No.1907 2006). Annex XV of REACH lays down general principles for preparing dossiers to propose and justify restrictions on the manufacture, placing on the market or use of substances within the Community. Agreement on proposed restrictions will lead to the addition of any agreed restrictions to Annex XVII. Any subsequent manufacture, placing on the market or use of the substance has to comply with the conditions of the restrictions.
The guidance document gives substantial detail on preparing the restriction proposals for the Annex XV dossier and provides examples of situations which may prompt a Member State or the Commission to consider a restriction proposal.
The main issues to consider when preparing an Annex XV dossier are:
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Information required for the preparation of a restriction dossier – in order to decide whether there is a risk to human health or the environment, all available information on the hazards and risks of the substance should be gathered and evaluated. This information may stem from registrations and evaluations under REACH or from any other source.
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Criteria which justify the proposal for restriction - it has to be shown that a substance on its own or in a preparation or article poses a risk that needs to be addressed, which shall be described based on an assessment of the hazards and risks according to the relevant parts of Annex I of the REACH Regulation. Justification must be provided for restriction at Community level based on the extent and severity of the risk and also taking into account market-related considerations. A proposal also needs to show that a restriction under REACH is the most appropriate Community wide measure.
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The inclusion of all available information on alternative substances and techniques.
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Explaining how stakeholders who may be affected by the proposed restrictions, have been consulted during the preparation of the proposal, and how their views have been taken into account.
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Whether to include analysis of the socio-economic impacts of the proposed restrictions – although not a mandatory part of the restriction proposal, this may help an Authority in preparing a proportional and well informed restriction proposal by setting out the benefits to human health and the environment and the costs to manufacturers, importers, downstream users, consumers and society as a whole.
The ECHA guidance may be viewed via the following link:
http://guidance.echa.europa.eu/docs/guidance_document/restriction_en.pdf?vers=19_09_08
Meanwhile, the HSE (Health and Safety Executive) have launched a new Export and Import of Dangerous Chemicals website, which provides guidance for exporters and importers on how to identify restricted or banned chemicals included under Annex XVII of REACH.
All EU based companies involved with the export and import of chemicals or articles containing chemicals are regulated under the Prior Informed Consent (PIC) Regulation (EC) 689/2008, which sets out how to store, transport, use and dispose of chemicals safely. The new website contains simplified guidance for exporters and importers who wish to determine whether PIC applies to them.
Details are also given of the chemicals which do not come under the PIC procedure, such as chemicals in quantities of 10kg or less per annum used for research or analysis; radioactive materials or substances; chemical weapons; or wastes.
The HSE website emphasises that PIC equally applies to importers of articles. An article is a finished product containing or including a chemical, the use of which has been banned or severely restricted by EC legislation in that particular product. Such articles will similarly be listed in Annex XVII of REACH.
The website may be accessed via the following link:
http://www.hse.gov.uk/pic/index.htm
Groundwater given greater protection
The Water Environment (Groundwater and Priority Substances) (Scotland) Regulations 2009 recently entered into force on 25 November 2009, making provision in Scotland for the transposition of a further two European Directives which seek to regulate the water environment. While the Water Framework Directive (Directive 2000/60/EC) remains the main piece of European legislation in this field, Directive 2006/118/EEC on the protection of groundwater against pollution and deterioration (the Groundwater Directive 2006) and Directive 2008/105/EC on environmental quality standards in the field of water policy (the Priority Substances Directive) contain important provisions which expand upon the overall requirements laid down in the Water Framework Directive.
As the Water Framework Directive is transposed in Scotland through the Water Environment and Water Services (Scotland) Act 2003 (WEWS), the new Regulations make a number of changes to those Regulations. As well as making amendments in order to include references where appropriate to both the Groundwater Directive 2006 and the Priority Substances Directive, the Act is amended in order to place an overall requirement on the Scottish Ministers, SEPA and the responsible authorities to exercise their functions so as to secure compliance with both Directives.
The separate Water Environment (Controlled Activities) (Scotland) Regulations 2005 (CAR), which are made under the WEWS, are also amended to take account of both Directives and to introduce a definition of, and make provision for, hazardous substances. A substitute Schedule 2 of CAR, which sets out the criteria for the identification of hazardous substances by SEPA, is provided and Schedule 3 is amended, in order to take into account the new definition of hazardous substance within the rules concerning controlled activities.
SEPA must now apply both the Groundwater Directive 2006 and the Priority Substances Directive in its decision-making process under Regulation 15 of CAR, and in particular it must take into account the Groundwater Directive 2006 when considering any applications in respect of a controlled activity under CAR. However, for applications made before 22nd December 2012, the Groundwater Directive 1980 (Directive 80/68/EEC) will still apply.
The Regulations can be accessed at the following link:
http://www.opsi.gov.uk/legislation/scotland/ssi2009/ssi_20090420_en_1
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FOR FURTHER INFORMATION CONTACT: FIONA ROSS