Environment Update June 2010
‘Baker’ case brings about changes to the EIA Regulations
The Scottish Government has launched a consultation on changes it proposes to make in order to consolidate and update Part II of the Environmental Impact Assessment (Scotland) Regulations 1999, in order to take account of recent case law requiring amendments to be made to the provisions regarding extensions to existing developments, screening and multi-stage consents.
The EIA Directive (85/337/EC) requires an assessment to be made of the effects of certain public and private projects on the environment before development consent is granted. The Directive’s main aim is that local authorities follow the EIA procedure which requires that any likely significant environmental effects are taken into account before consent for certain types of project is given. Fundamentally, it sets out to ensure that primary consent is given in the full knowledge of any likely significant environmental effects on the environment. The 1999 Regulations apply the EIA Directive to development under the Town and Country Planning (Scotland) Act 1997.
Views are now sought on key changes which are to be introduced by the Environmental Impact Assessment (Scotland) Regulations 2010 in respect of the following matters, as set out in the consultation document:
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Changes or extensions to existing developments – As a result of the ‘Baker’ judgement (R (on the application of Baker) v Bath and North East Somerset Council) concerning the application of the EIA Directive to changes or extensions to existing developments, new screening provisions are now proposed to ensure that any applicable Schedule 2 threshold applies to the development as a whole once modified, and not just to the change or extension. Also proposed is a new provision requiring that all changes or extensions to Schedule 1 projects undergo an EIA screening test. (Schedules 1 and 2 set out the descriptions of a range of industrial developments and applicable thresholds and criteria for the purposes of classifying the development as a Schedule 1 or Schedule 2 development);
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Reasons for negative screening decisions – Following a recent preliminary ruling from the ECJ (Case C-75/08), a new provision is proposed to clarify the requirement that where Scottish Ministers or a planning authority issue a negative screening provision, they shall be required to make available on request the reasons for that decision. Reasons are currently only required to be given where a screening opinion is adopted to the effect that EIA is required; and
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Multi-stage consents – Following amendments made in 2007 applying EIA to reserved matters applications (now applications for approval of conditions to a planning permission in principle), the Government proposes extending these provisions to also include other types of multi-stage consents under the 1997 Act.
In addition, a number of miscellaneous provisions are proposed with a view to generally updating the regulations or to address issues concerning the smooth operation of the EIA regime. For example, the Government is currently considering what changes may be required for Scottish legislation, including the EIA 1999 and other EIA sectoral legislation, in order to transpose the Geological Storage Directive (GSD). The GSD applies the EIA Directive to the capture and transport of CO2 streams for the purposes of geological storage, and to certain storage sites. Member States have until 2011 to apply the GSD.
The consultation closes on 27th August 2010 and can be viewed via the link below:
http://www.scotland.gov.uk/Resource/Doc/312585/0098844.pdf
BSI PAS sets a model carbon footprint
Companies will be able to assure customers of their carbon footprint statement by complying with a new PAS carbon neutrality standard, recently published. The PAS 2060 ‘Specification for the demonstration of carbon neutrality’ is a BSI (Business Standards Institution) creation, and follows publication of government guidance on carbon neutrality last year. The non-statutory guidance published jointly by DECC and DEFRA last year sets out how businesses should measure and report emissions. Significantly, it confirmed that companies should no longer aim for absolute carbon cuts, but instead aim to make voluntary carbon cuts more consistent. Reporting may become mandatory in 2012 under the Climate Change Act 2010.
However, the PAS 2060 requires businesses to go further than simply offsetting their emissions by requiring a cut in absolute terms (a cut in total emissions), or in terms of intensity (a cut in the ratio of emissions relative to a measure of output). Cuts on carbon intensity must outweigh the economic growth for the region in which the organisation making the claim operates. Therefore BSI’s 2060 goes beyond BSI’s 2050 (published in 2008, for measuring the carbon footprint of products and services throughout their lifecycles), as it helps organisations to actually commit to and reduce carbon emissions.
Although PAS 2060 is more ambitious than PAS 2050, the BSI states that it decided not to require a minimum reduction in emissions, meaning that an organisation could technically cut by 1% and offset the remaining 99%. However, BSI will review this decision in two years when it revises the standard.
PAS 2060 covers a wide range of claims from organisations wishing to achieve and demonstrate carbon neutrality, in respect of reducing greenhouse gas emissions from a specific project including activities, services, buildings, projects and major developments, towns and cities and events. The standard requires businesses to make reductions in emissions for the subject of their claim and forms the model against which companies can quantify, reduce and offset carbon emissions. It also describes how claims should be declared and validated.
Finally, PAS 2060 requires offsets to come from projects that have achieved genuine emissions reductions due to being part of accredited carbon schemes, including Kyoto-compliant schemes or voluntary non-Kyoto compliant schemes.
The PAS is available for download from the link below:
http://shop.bsigroup.com/en/ProductDetail/?pid=000000000030198309
The sky’s the absolute limit for the UK
The UK has failed to convince the European Commission (EC) that it has complied with EU air quality standards for dangerous airborne particles known as PM10. These particles carry a number of dangerous consequences for human health, ranging from asthma and lung cancer to premature death. The EC has therefore issued its final warning to the UK that it could face the European Court of Justice (ECJ) over consistent breaches of the Air Quality Directive (2008/50/EC). The EC’s action comes after a number of zones in the UK exceeded the PM10 limit values in 2005, 2006 and 2007.
The Air Quality Directive sets binding limit values and/or indicative target values for the maximum permitted concentrations of certain pollutants into the air. Action to reduce pollution through an air quality plan is required where there is a risk of these standards being exceeded. The Directive also includes the possibility of requesting time extensions of up to three years after the entry into force of the Directive in 2008, for complying with PM10 limit values, based on conditions and assessment by the EC for specific parts of the country.
However, the EC sent its first warning in 2009 to the UK, because by 2009, the UK had not submitted notifications for time extensions or had not notified the Commission about all air quality zones exceeding the limit values for PM10.
The UK subsequently submitted an exemption request for eight zones in the Greater London area. However the EC did not accept that compliance with the daily PM10 limit value would be reached by the expiry of the exemption period in 2011. The UK has recently sent a further exemption request for London, currently still under assessment, but as recent data shows that London still exceeds PM10 limit values, the EC went ahead with sending the UK a final warning.
If the UK does not succeed in demonstrating that it has taken the necessary measures to comply with the Air Quality Directive, the EC could refer the case to the ECJ with the UK facing a large fine in the process.
Further information can be found at the following link:
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/687&format=HTML&aged=0&language=EN&guiLanguage=en
ECHA sheds light on intermediates under REACH
The European Chemical Agency (ECHA) has provided clarification on the definition of intermediates in accordance with rules under REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals Regulation). Intermediates are subject to different registration requirements from other chemicals. However, despite guidance on intermediates having been issued in 2008, the ECHA was aware that industry was still experiencing difficulty in understanding what exactly constitutes an intermediate, and has therefore now issued further clarification.
An intermediate is defined under Article 3(15) of REACH as ‘a substance that is manufactured for or consumed in or used for chemical processing in order to be transformed into another substance’, referred to as ‘synthesis’. The guidance provides a closer analysis of this definition, clarifying that the status of a substance as an intermediate is in fact not specific to its chemical nature but rather, to how it is used following manufacturing. The definition of an intermediate is therefore the definition of an intermediate use of a substance.
The guidance provides a further breakdown of the definition by establishing the key distinction between non-isolated and isolated intermediates for the purposes of the REACH. Non-isolated intermediates are not within the scope of REACH and the guidance states that further clarification for isolated intermediates is therefore necessary given their potential to be prioritised as substances of very high concern (SVHCs) which are included in Annex XIV of REACH (the ‘authorisation’ list). Article 3(15)(b) of REACH explains that an isolated intermediate is produced where the manufacture of the intermediate and the synthesis of another substance from that intermediate take place on the same site. Therefore, the substances are by definition first isolated before being ‘used for’ synthesis, and ECHA highlights that the process must take place in a single location.
Examples are used by the guidance in order to illustrate those cases where a substance would not be classified as an intermediate, because they are not used themselves to be converted into another substance. These include activities where substances are used as catalysts or processing agents or for the production of an article (an article is a finished product containing or including a chemical). On this basis, the guidance draws the conclusion that a substance is an intermediate if both the following conditions are met:
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the substance is manufactured to be itself converted into another substance on an industrial site; and
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the outcome of the chemical processing is another manufactured substance on its own but not another substance in an article.
Therefore, as soon as the main aim of the chemical process is not to manufacture another substance, but rather to achieve another function, specific property, or a chemical reaction as an integrated part of producing articles, the substances used for this activity should not be regarded as intermediates under REACH. Moreover it is emphasised that it is key to the Article 3(15) definition that the manufacturer of the intermediate is certain that a customer of the intermediate is a manufacturer of another substance using the intermediate solely for chemical processing (synthesis) into that other substance.
Finally, the guidance focuses on REACH’s registration requirements and clarifies its application to intermediates. It establishes that registration constitutes the basic mechanism for industry to address the risks associated with any substance formed, thereby fulfilling the key objective of REACH to ensure a high level of protection for human health and the environment. Therefore REACH requires that the reduced registration requirements provided for intermediates under Articles 17 and 18, only apply to intermediates manufactured and handled under the conditions set out in these Articles. The guidance recognises that REACH therefore ensures the complete coverage of the risks throughout the supply chain.
The guidance is available via the following link:
http://guidance.echa.europa.eu/docs/guidance_document/clarificationintermediates_201005_en.pdf
Scotland set for carbon countdown
New regulations have entered into force in Scotland, ensuring that Scotland accounts for its carbon emissions by opening a carbon credit account in the UK registry. The Carbon Accounting Scheme (Scotland) Regulations 2010 sets up a scheme for carbon accounting which will be used to monitor compliance with the targets for reducing greenhouse gas emissions introduced by the Climate Change (Annual Targets) (Scotland) Order 2010.
Overall, the Regulations are fundamental to carrying out the key requirements of Climate Change (Scotland) Act 2009. The 2009 Act set targets for Scotland to meet in areas of key environmental policy, including the reduction of greenhouse gas emissions.
The Regulations establish the arrangements for opening an account in which to place and keep track of carbon units and set out the circumstances in which such units may be credited and then cancelled. The Scotland account will be known as the net Scottish emissions account (NSEA). The carbon units referred to in the Regulations include both those used by participants in the EU ETS (Emissions Trading Scheme) and carbon units which may be used as credits by the Scottish Government.
The Regulations include the following key provisions on carbon units and the operation of the NSEA:
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specification of carbon units which may be counted as carbon credits for the purposes of calculating the NSEA – the units (which are internationally recognised and are monitored and tracked under United Nations and European Union rules) are accepted as representing genuine and verifiable emission reductions. The value assigned to each carbon unit is 1 tonne of carbon dioxide equivalent; and
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clarification that a carbon unit credited to the NSEA must be cancelled – the Regulations ensure that carbon units used by the Government are no longer available for offsetting emissions made elsewhere.
Details of the interaction between the NSEA and the EU ETS are also set out in the Regulations. In particular, there is provision for the Scottish Government to calculate in respect of each year in the period 2010-2012 whether any carbon unit is to be credited to or debited from the NSEA as a result of the operation of the EU ETS. Where an individual participant exceeds the amount of carbon units than those allocated for ETS participants in Scotland, then they will need to purchase units (‘credits’) to cover those additional emissions. Conversely, where their emissions are lower than the ETS allocation, then participants may sell units (‘debits’) from the NSEA to ETS participants.
Meanwhile, the limits on the use of credits by the Government are set out in an accompanying instrument, the Climate Change (Limit on Carbon Units) (Scotland) Order 2010. Again, the limit excludes any carbon units which are surrendered by participants in the EU ETS.
The Regulations and the accompanying Order can be accessed through the following links:
http://www.opsi.gov.uk/legislation/scotland/ssi2010/ssi_20100216_en_1
http://www.opsi.gov.uk/legislation/scotland/ssi2010/pdf/ssi_20100217_en.pdf
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