Environment Update July 2008
New Regulations form basis for Prior Informed Consent
EC Regulation 304/2003 concerning the export and import of dangerous chemicals implemented the Rotterdam Convention in the European Community by establishing a system of prior and informed consent for the export and import of dangerous chemicals. However, this Regulation was annulled in January 2006 by the European Court of Justice (ECJ) in case C-178/03 (Commission v Parliament and Council ) on the grounds that it was founded on an incorrect legal base. Nevertheless, the ECJ stated that the effects of the Regulation were to be maintained until a new Regulation was adopted. This has now happened with the adoption of EC Regulation 689/2008 concerning the export and import of dangerous chemicals, which now implements the Rotterdam Convention within the European Community.
In order to provide for the enforcement of this new EC Regulation within the UK, the Government has enacted the Export and Import of Dangerous Chemicals Regulations 2008. These new Regulations revoke the Export and Import of Dangerous Chemicals Regulations 2005, the Export of Dangerous Chemicals Regulations (Northern Ireland) 1992 and the Export of Dangerous Chemicals (Amendment) Regulations (Northern Ireland) 1999. The new Regulations also amend a number of Regulations, including the Notification of New Substances Regulations 1993, the Chemicals (Hazard Information and Packaging for Supply) Regulations 2002 and their Northern Irish equivalents.
The new Regulations continue to implement the Rotterdam Convention within the UK by maintaining existing controls on the export and import of dangerous chemicals. The Regulations maintain the common notification procedure for the export of chemicals that are banned or severely restricted within the Community and make provision for the prevention of the export of such chemicals unless explicit consent from the importing country has been obtained. With respect to dangerous chemicals, the Regulations also regulate the export of chemicals close to their expiry date, packaging labelling, information exchange as well as safety, storage, transit and trading information.
The new Regulations refer to the Annexes within the European Regulation ‘as amended from time to time’, to ensure that that enforcement of the UK Regulations always mirrors the latest version of the Community Regulation thus avoiding unnecessary and time consuming legislative amendments.
The Export and Import of Dangerous Chemicals Regulations 2008 come into force on 3rd September 2008.
The text of the new EC Regulation and UK Regulations is available via the links below:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:204:0001:0035:EN:PDF
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20082108_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20082108_en.pdf
Environment Agency can enforce against sewerage leakage
The High Court has held that waste water escaping from a public sewerage system maintained by a statutory undertaking is controlled waste within the meaning of section 33 of the Environmental Protection Act 1990 (EPA) and that this is subject to enforcement control by the Environment Agency (EA).
The judgment of the Court was delivered following a judicial review hearing instigated by Thames Water Utilities Ltd (TWUL). TWUL had been prosecuted by the EA for alleged offences under section 33 of the EPA as a result of the leakage of untreated sewerage onto land. The Controlled Waste Regulations 1992 provide that waste which is not ‘Directive waste’ for the purposes of the Waste Framework Directive (WFD) is excluded from the definition of ‘controlled waste’. TWUL therefore applied for judicial review asking the question whether, as a matter of law, sewage escaping from pipes maintained by a statutory undertaking was controlled waste.
The matter was initially referred to the ECJ for a preliminary ruling. In May 2007 the European Court found that escaping waste water from a statutory sewerage system did fall within the definition of waste set down in the WFD; and, furthermore, that it was not excluded by virtue of the Urban Waste Water Treatment Directive (UWWTD). The Court held that the UWWTD was not ‘other legislation’ within the meaning of Article 2(1)(b) of the WFD which provides that waste water shall be excluded from the scope of the Directive where they are already covered by other legislation. However, the ECJ held that it fell to the national Court to determine whether the national laws were to be regarded as ‘other legislation’ within the meaning of that provision and whether the national rules contained precise provisions organising the management of waste so as to ensure a level of protection equivalent to the WFD.
The High Court found that although there are no ‘precise provisions’ governing the management of waste water which escapes unintentionally from the sewerage system, there is no reason for those wastes not to be subject to the criminal sanctions otherwise thought appropriate for the deposit of controlled waste. Accordingly, the Court held that escape of untreated sewerage fell to be regulated as controlled waste under the scope of section 33 of the EPA.
The full judgement of the High Court in this case is available via the following link:
http://www.bailii.org/ew/cases/EWHC/Admin/2008/1763.html
REACH guidance published on chemical safety assessments
The European Chemicals Agency (ECHA) has made available the finalised version of Part F of the ‘Guidance on information requirements and chemical safety assessment’ entitled: ‘Chemicals Safety Report’.
The complete guidance sets out the information requirements, under the REACH Regulations, with respect to substance properties, exposure, use and risk management measures; and is designed to assist those conducting chemical safety assessments and preparing chemical safety reports.
A chemical safety report (CSR) may be required under REACH as part of a registration dossier, an authorisation application or a downstream user’s obligations. A CSR must summarise the risk management measures and declare that these will be implemented and communicated. The CSR must also identify the substance and its physical and chemical properties. It must also provide details of its manufacture and use, classification and labelling, environmental properties, human health hazard assessment, persistent, bioaccumulative and toxic chemicals assessment, exposure assessment and risk characterisation.
The CSR guidance document details the format and requirements for preparing the CSR as provided for in Annex1, section 7, of the REACH Regulations. The main purpose of the CSR is explained. The guidance states that the CSR should document the results of the entire chemical safety assessment. The CSR should be clear and consistent so as to enable all users to understand the chemical safety assessment (CSA) and the scientific arguments that support the hazard assessment, exposure assessment and risk characterisation. The guidance also stresses the importance of the inclusion of key studies or information for each section, documentation of key assumptions and the provision of an interpretive and concluding narrative for each section and states that a CSR must always contain the conclusions from the CSA.
Action group loses wind farm case
The High Court has thrown out an action challenging the grant of planning permission to build a wind farm in Emberton, Olney, Milton Keynes.
In January 2008 Milton Keynes Council granted MK Wind Farms Ltd planning permission to construct the wind farm, comprising seven wind turbines of up to 125 meters high.
A local campaign group, Bucks Lacks Enough Wind (BLEW), opposed the wind farm on the basis that they considered the area to have insufficient wind power to make the wind farm economically viable so as to counteract the negative effects on the landscape and those living near it. A member of BLEW raised a court action seeking to have the planning permission quashed. He claimed that in granting the planning permission, Milton Keynes Council had failed to make wind speed data available, had erred in its approach to PPS 22 (the planning policy statement setting out the Government's policies for renewable energy), and had refused to visit various viewing points in order to gauge the impact of the development.
Although the judge acknowledged that the council had failed in some of its statutory duties, he rejected BLEW’s argument that wind speed data had not been made available to the public. The judge also stated that it was obvious that MK Wind Farm Ltd would not have pursued the application unless satisfied that it would provide value for money and be economically viable. In considering the PPS 22 principles it was held that the wind farm development presented no adverse impacts. Furthermore, it was also held that with respect to the failure to visit the various viewing points, the committee members were entitled to conclude that they had sufficient information without doing so.
The judgement of the High Court in this case is available from the link below:
http://www.bailii.org/ew/cases/EWHC/Admin/2008/1650.html
Microgeneration plant redefined
In order to enhance the UK’s contribution to combating climate change the Climate Change and Sustainable Energy Act 2006 obliges the Secretary of State to set national microgeneration targets.
The Climate Change and Sustainable Energy Act 2006 Act defines microgeneration as the use, for the generation of electricity or the production of heat, of any plant, which relies wholly or mainly on biofuels, fuel cells, photovoltaics, water (including waves and tides), wind, solar power; geothermal sources, and, combined heat and power systems, the capacity of which, with respect to electricity generation and heat production, doesn’t exceed 50 kilowatts and 45 kilowatts thermal respectively.
The Act provides that the list of energy sources and technologies, which power microgeneration plant, may be amended to include other sources of energy or technologies which would cut emissions of greenhouse gases.
Accordingly, the Climate Change and Sustainable Energy Act 2006 (Sources of Energy and Technologies) Order 2008, which comes into force on 23rd July 2008, amends the list of energy sources and technologies, set out in the Climate Change and Sustainable Energy Act 2006, by adding ‘heat from air, water or the ground’. It is envisaged that this will result in the inclusion of plant which wholly or mainly rely on ‘heat form air, water or the ground’ including air source heat pumps, ground source heat pumps and water source heat pumps.
Whilst it was intended to include ground source heat pumps in the definition of ‘microgeneration’ at the time of the passing of the Climate Change and Sustainable Energy Act 2006, these were not widely established in the UK at that time, therefore were missed out. The Order therefore clarifies matters, by amending the definition of microgeneration in order to ensure that it also applies to the source of energy for three types of heat pump, namely the heat from air, water, or the ground.
The text of the new regulations together with an explanatory memorandum is available via the following links:
http://www.opsi.gov.uk/si/si2008/uksi_20081767_en_1
http://www.opsi.gov.uk/si/si2008/em/uksiem_20081767_en.pdf
Hammer comes down on emissions allowances
New Regulations which make provision for the auctioning of allocations of Community tradeable emissions allowances came into force on 11th July. Up until now most allowances have been allocated free of charge. However, the Community Emissions Trading Scheme (Allocation of Allowances for Payment) Regulations 2008 now provides for the allocation for payment of European Union Emissions Trading Scheme (EU ETS) allowances.
The EU ETS was introduced in order to address the threat of climate change by putting in place a system aimed at reducing the emission of carbon dioxide and other greenhouse gases. The EU ETS commenced on 1 January 2005. The first phase ran from 2005-2007 and the second phase runs from 2008 – 2012.
In phase I almost all of the allowances were distributed free of charge. In Phase II, most allowances will still be distributed to installations for free but Member States may auction up to 10% of total allowances. The UK has opted to auction 7%, plus any surplus from the new entrants reserve. The new Regulations therefore provide the legislative framework for auctioning in phase II of the EU-ETS, enabling the Treasury to impose charges by providing for Community tradeable emissions allowances to be allocated in return for payment.
Under the Regulations the Treasury may conduct the auctions themselves, or appoint another person to conduct them. Provision is made for the payment for and transfer of emissions allowances, with the consequences of late or non-payment, transfer of excess allowances and breaches of the Regulations or of the Treasury’s Scheme also being set out.
The Regulations also provide for the appointment of an independent observer to oversee the auctioning of allocations, and affords opportunity to review any decision of the Treasury, or of a person conducting an auction or other allocation, under the Regulations.
The text of the new regulations together with an explanatory memorandum is available via the following links:-
http://www.opsi.gov.uk/si/si2008/pdf/uksi_20081825_en.pdf
http://www.opsi.gov.uk/si/si2008/em/uksiem_20081825_en.pdf
Dealing with Hazardous Waste? – Environment Agency publishes guidance
The Environment Agency (EA) has published a series of guidance documents to inform those moving hazardous waste from the point of its production to the place of its recovery and/or disposal. The various guidance documents cover the use of consignment notes in a number of scenarios, including where there are multiple waste collections, and where there are cross-border movements and aim to assist producers, holders, consignors, carriers and consignees to comply with the Hazardous Waste Regulations by providing a step by step guide to the documentation that must accompany hazardous waste in each scenario.
Producers, consignors and holders of hazardous waste must complete a consignment note in order to have the waste removed from their site. The consignment note must accompany the hazardous waste at all times during its carriage and on to the ultimate place of recovery or disposal.
The first guidance document: ‘Consignment notes: standard procedure’ gives advice on the layout of a consignment note, how to produce them and where to obtain them as well as setting out the circumstances where a consignment note is not necessary. Comprehensive instructions on how to complete a consignment note are given and the guidance details the type of information required, such as: consignment note codes, who produced the waste, the process giving rise to the waste, the standard industrial classification of the process, the place from where the waste was removed and where it is to be taken. The guidance also explains that a full description of the waste is required, detailing the list of waste code, quantity, chemical and biological composition, physical form, hazard code of the waste as well as the container type, number and size. The guidance stresses the point that a consignor must not sign off the consignment note until certain information has been entered by the carrier and also states that the consignor is obliged to keep a copy of the consignment note for three years.
In addition to single waste collections some waste carriers operate multiple collection rounds, collecting waste from more than one premises, on the same vehicle, and delivering this to the same consignee. The second guidance document ‘Consignment notes: multiple collections’ therefore explains the differences from standard collections, in that multiple collection consignment notes must detail all the collections the vehicle has made and identify the producers, holders and consignors at each premises where waste is collected.
A separate guidance note has also been produced for those moving hazardous waste from ships and/or via a pipeline. The Guidance on ‘Consignment notes: ships and pipelines’ explains that although ships are exempt from having to register as premises they must still use a unique consignment note code. The guidance also describes the specific procedures required for removing waste via a pipeline by batch and continuous flow.
The guidance on ‘Consignment notes: cross-border movements’ explains the procedure to be followed by those moving hazardous waste from England and Wales to Scotland or Northern Ireland, or from Scotland, Northern Ireland or Gibratar to England and Wales.
Finally, the EA has also produced guidance notes explaining the procedure to be adopted when more than one carrier is used to transport a consignment of hazardous waste, and the procedure to be followed by consignees, carriers and consignors where hazardous waste is rejected.
The whole series of guidance documents are available from the Environment Agency via the links below:-
http://publications.environment-agency.gov.uk/pdf/GEHO0507BMSK-e-e.pdf?lang=_e&lang=_e
http://publications.environment-agency.gov.uk/pdf/GEHO0507BMSL-e-e.pdf?lang=_e&lang=_e
http://publications.environment-agency.gov.uk/pdf/GEHO0507BMSM-e-e.pdf?lang=_e&lang=_e
http://publications.environment-agency.gov.uk/pdf/GEHO0507BMSI-e-e.pdf?lang=_e&lang=_e
Shipping waste? – EC Regulation amends notification and transit documentation
Commission Regulation EC 669/2008, published this week, sets out the text of Annex IC to Regulation EC 1013/2006 on the shipment of waste. The text of the Annex provides the instructions necessary for completing the notification and movement documents required to comply with the EC Regulation 1013/2006 on the shipment of waste.
Annex IC, as inserted by the new Regulation, states that the competent authorities of the country of dispatch are responsible for providing and issuing the notification and movement documents, which must be numbered in such a way which will allow a particular consignment of waste to be traced.
The notification document is intended to provide the competent authorities with the information they need to assess the acceptability of proposed waste shipments, prior to consenting to any proposed shipment.
The movement document must accompany a consignment of waste at all times from the instant it leaves the waste producer to its arrival at the site of disposal or recovery in another country. Each person taking charge of a shipment is required to sign the movement document upon delivery or receipt of the waste.
The regulation states that a planned shipment, subject to the procedure of prior written notification and consent, can only take place only after the notification and movement documents have been completed. Annex IC therefore sets out the specific instructions for completing the notification and movement documents.
The type of information required includes: the registration number (where applicable), name, address and contact details of the person responsible for the shipment; the identification number of the shipment; the type of packaging; details on the producer of the waste; relevant information pertaining to the carrier of the waste; the destination of the shipment and whether it is a disposal or recovery facility. The documents must also detail information on the waste itself including its common or commercial name, weight, physical characteristics and the relevant waste code identifying the waste.
Commission Regulation EC 669/2008 is available via the link below:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:188:0007:0015:EN:PDF
No point crying over spilt oil – ECJ says otherwise
In delivering its preliminary ruling in the case between the French community of Mesquer and companies in the Total Group, concerning an oil spillage incident involving the oil tanker Erika off the Brittany cost in 1999, the ECJ has endorsed an earlier opinion given by Advocate General Kokott by confirming that the ‘Polluter Pays Principle’ can extend to cover cleanup costs resulting from an oil spill at sea.
The Court held that although heavy fuel oil, capable of being sold as a combustible fuel without prior processing, could not constitute waste, the same heavy fuel oil could constitute waste if it was accidentally spilled at sea, mixed with water and sediment, and had subsequently washed up on shore, since it would no longer be capable of being sold as a combustible fuel without prior processing.
In its judgment the Court also said that the ‘Polluter Pays Principle’ was capable of being extended to impose financial liability, for a pollution incident, upon the seller of the heavy fuel oil and the charterer or a ship used for its transit, providing it could be shown that they had in some way contributed to the spillage by failing to take measures to prevent it.
The full judgment of the ECJ in the case (C-188/07), together with an ECJ press release, is available via the links below:-
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=c-188/07
http://curia.europa.eu/en/actu/communiques/cp08/aff/cp080039en.pdf
HSE gives go ahead for asbestos import
The Health and Safety Executive (HSE) has granted Able UK Ltd an exemption, under the Control of Asbestos Regulations 2006, to import asbestos contained within the French ship Q790 (formerly the Clemenceau) into the UK.
ABLE UK Ltd, who own and operate a facility for recycling redundant marine structures including ships, applied for the exemption in order to dismantle the ship at their Teeside Environmental Reclamation and Recycling Centre (TERRC).
The importation of asbestos into the UK is generally prohibited under Regulation 27 of the Control of Asbestos Regulations 2006. However, in certain cases, the HSE may, by issuing an exemption certificate, permit the importation of asbestos.
In doing so the HSE must consider the particular circumstances, the relevant legislative and regulatory provisions, and whether it should attach conditions to the exemption. It must also satisfy itself that that the health and safety of persons likely to be affected by the exemption will not be prejudiced in consequence of it.
This development is only the latest in the long running saga which represents Able UK Ltd’s quest to establish themselves as a world class recycling centre for contaminated vessels.
More information on this announcement, together with further details about the Hartlepool site, is available via the links below:-
http://www.hse.gov.uk/press/2008/gnnne24508.htm
http://www.ableuk.com/pressreleases.shtml
http://www.guardian.co.uk/environment/2007/may/31/pollution.uknews
http://www.express.co.uk/posts/view/41134/Public-s-say-over-ghost-ships-
European Chemicals Agency REACHes out
Under REACH (the new Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals) the use and marketing of substances with properties of very high concern (such as those with carcinogenic, mutagenic, reprotoxic, persistent and bioaccumulative effects as well as any other substances that present a serious risk to human health or the environment such as endocrine disruptors) can be made subject to an authorisation requirement thus ensuring that the risks posed are either justified relative to available alternatives or are adequately controlled.
The authorisation provisions of REACH requires those using or placing on the market such a substance to apply for an authorisation for its use, irrespective of the quantity involved.
The European Chemicals Agency (ECHA) has now published a list, prepared by member States, which proposes numerous substances for inclusion in the first candidate list of substances of very high concern that might eventually be subject to authorisation.
As required under REACH, the ECHA is inviting interested parties to submit by 14th August scientific comment relating to the hazardous properties associated with these substances, as well as information relating to their use, risk, exposure and alternative substances. The related links are listed below.
http://echa.europa.eu/consultations/authorisation/svhc/svhc_cons_en.asp
http://echa.europa.eu/doc/press/pr_08_18_pub_consultations_20080630.pdf
The ECHA has also reminded those submitting data during the pre-registration phase of REACH, and those using their temporary submission procedures, to observe agency guidance and instructions while submitting data.
After reviewing the first data submissions, the ECHA claim that many of the dossiers could not be further processed due to inadequate or incomplete information.
The most common errors relate to missing information on the chemical identity and the composition of the substance.
However, in response to these problems the ECHA has published further guidance on their submission procedures. This guidance is available from the ECHA via the links below:
http://echa.europa.eu/doc/press/PR_08_14_Quality_of_Data_20080618.pdf
http://echa.europa.eu/doc/press/pr_08_15_data_submission_guidance_20080626.pdf
http://echa.europa.eu/doc/press/pr_08_16_tech_dossier_man_20080701.pdf
Irish wind-farms fail to consider environmental impact
The Environmental Impact Assessment (EIA) Directive sets out to ensure that the impacts of certain public and private projects on the environment are identified and assessed prior to any development consent for their go ahead being given.
The European Commission reported Ireland to the ECJ claiming that Ireland's implementation of the EIA Directive was deficient.
The Commission alleged that Ireland had not put in place sufficient measures to check whether proposed projects were liable to have significant effects on the environment or should be subject to an environmental impact assessment.
Furthermore, the Commission also contended that the system, operational in Ireland, allowing an application for retention permission to be made after development works had been carried out without consent, undermined fundamental objectives of the EIA Directive.
The ECJ upheld the Commission’s complaints, confirming that Ireland had failed to adequately implement the EIA Directive.
The ECJ also found that Ireland had fallen far short of the requirements of the EIA Directive by failing to ensure that the development consents given for certain wind-farm developments and associated works at Derrybrien and County Galway were preceded by an assessment with regard to their impact on the environment.
The full judgment of the ECJ on the case C-215/06 may be accessed via the link below:-
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=c-215/06
FOR FURTHER INFORMATION PLEASE CONTACT: FIONA ROSS