Environment Update May 2008
Investment funding for recycling businesses up for grabs
WRAP (Waste & Resources Action Programme) has launched a new initiative offering recycling companies that process construction industry waste, and thereby divert it from landfill, an opportunity to boost their reprocessing capacity by applying for funding through a capital grant scheme.
It is hoped that the new scheme will provide the investment necessary to help develop the increased recycling capacity needed to process construction, demolition and excavation (CD&E) waste from construction sites.
WRAP state that they are particularly keen to receive exemplary proposals, which will incentivise further investment in other projects to increase recycling capacity and proposals that will significantly increase both the quantity and quality of waste materials recycled and recovered from construction sites.
The Capital Grant Programme covers a wide range of CD&E materials and is open to waste processing and recycling businesses wishing to develop new or existing facilities and will provide up to 30% of the total costs of plant, equipment and infrastructure.
In order to qualify for a grant under the scheme applicants must be; located in England, be able to prove that that their project will process waste that would otherwise go to landfill and be able to show that a market exists for their output. Furthermore, the project must be dependent on WRAP support for viability and commercially sustainable in the medium and long term.
Although the Capital Grant Programme is being targeted in England, it is envisaged that a separate programme for Scotland will be launched later in the year.
The deadline for applications is Wednesday 16th July 2008.
European Court of Justice rules on EU directives on pollution, emissions trading and waste incineration
The European Court of Justice has upheld a complaint by the European Commission that Belgium, in the Wallonia region and in Brussels, had only partially or incorrectly transposed a number of essential provisions of the integrated pollution prevention and control directive.
The European Court was asked, by a court in France, whether the directive, establishing the greenhouse gas emissions trading scheme, breached the principle of equality laid down in the EU Treaty insofar as the directive makes the greenhouse gas emission trading scheme applicable to installations in the steel sector, without including, in its scope, the aluminium and plastics industries.
Advocate General Poiares Maduro found that there was no such breach, stating that that in the initial phases of the emissions trading scheme, the EU was entitled not to include all industry sectors.
The European Court was also asked, by a court in Sweden, to provide a preliminary ruling on the interpretation of the waste incineration directive. The court was asked, in terms of the waste incineration directive, whether each unit (furnace) in a combined heat and power plant should be assessed as a separate plant, or whether an assessment should cover the combined power and heating plant as a whole. The court was also asked whether a plant constructed for waste incineration, but having as its main purpose the production of energy, should be classified as an incineration plant or as a co-incineration plant.
Advocate General Juliane Kokott found that a each unit of a combined heat and power plant, and its associated equipment, should be regarded as installation. However, she stated that it is possible, for purposes of the application of the waste incineration directive, to regard several installations as a single installation, provided that there is no avoidance of provisions intended to prevent negative effects on human health or the environment. The Advocate General also stated that the qualification of an installation as an incineration or co-incineration plant is dependent on whether the key objective was the heat treatment of waste or the production of energy.
The judgment in the case C-271/07, and the opinions in the cases C-127/07 and C-251/07, are available from the European Court of Justice via the link below:-
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en
Nuclear waste disposal facilities – have your say!
Two separate regulatory guidance documents on radioactive waste disposal facilities have been published for consultation by the UK environmental regulators.
The Environment Agency, together with the Environment and Heritage Service of the Department of the Environment for Northern Ireland, have prepared guidance for the disposal of radioactive waste to deep geological facilities.
Guidance for the disposal of radioactive waste to near surface disposal facilities has also been produced by the Environment Agency, in collaboration with the Scottish Environmental Protection Agency and the Environment and Heritage Service of the Department of the Environment for Northern Ireland.
These regulatory guidance documents aim to update existing guidance on the regulation of radioactive waste disposal facilities to take account of developments in UK law and policy, revised international advice and recommendations, the need for specific guidance for near surface facilities, and the need to address the disposal of higher activity wastes.
The guidance documents require developers and operators of both near surface and deep geological disposal facilities to show that their facilities will protect people and the environment. In order to do this they are required to demonstrate that the development, operation and eventual closure of their facilities will meet the principles, technical, requirements, and safety guidelines for the disposal of solid radioactive waste set out in the guidance documents.
The guidance also presents information on government policy as well as the national and international legislative framework for the regulation of radioactive waste disposal.
This consultation is open until 1st September 2008.
Defra consult on expert reports on ambient air quality
A report by the Air Quality Expert Group (AQEG) ‘Ozone in the United Kingdom’ has been published in draft to allow for expert comment.
The report is intended to provide scientific evidence to inform policy makers in the preparation of UK control strategies for tropospheric ozone.
Recent trends in ozone levels in urban and rural areas are investigated. Predications of likely future trends in urban ozone concentrations are also made and their causes discussed.
The report also examines other issues such as the possible impact of climate change on ozone levels and discusses possible control options to reduce population exposure to ozone.
Two reports by the Expert Panel on Air Quality Standards (EPAQS) have also been published in draft to allow for expert comment.
In their first report, ‘Addendum to Guidelines for halogen and hydrogen halides in ambient air for protecting human health against acute irritancy effects’, the EPAQS propose provisional guideline values for chronic systemic effects resulting from airborne exposure to hydrogen iodide and hydrogen fluoride and address long term exposure effects of these airborne pollutants.
In their second report, ‘guidelines for metals and metalloids in ambient air for the protection of human health’, the EPAQS recommend guideline values for arsenic, beryllium, chromium and nickel. These metals are proven or suspected human carcinogens, shown to affect human health through inhalation.
The EPAQS state that the guideline values proposed in both reports represent a level in ambient air at which no or minimal effects on human health are likely to occur.
The reports will advise the Environment Agency and SEPA on some of the priority substances, emitted from point sources, falling under their regulatory remit.
Technical comments on both reports are invited by 6th August 2008.
How noisy is Scotland?
In publishing the Transportation Noise Action Plan, the Edinburgh Agglomeration Noise Action Plan and the Glasgow Agglomeration Noise Action Plan, the Scottish Government has set out its plans to further implement the requirements of the Environmental Noise Directive.
Under the Directive, Member States are required to assess and manage environmental noise. They are required to draw up strategic noise maps for major roads, railways, airports and major cities; and to inform and consult the public on noise exposure, its effects, and any counter measures put forward to address it.
Set against a discursive backdrop examining the Environmental Noise Directive together with existing Scottish Legislation on environmental noise, the draft action plans introduce strategic noise maps and describe the rationale and methodology behind the selection of areas and sources that have been mapped to date.
Their aim is to manage noise and its effects, including noise reduction if necessary. The action plans for the “agglomerations” of Glasgow and Edinburgh also aim to protect quiet areas against an increase in noise levels.
The draft action plans set out the methodology and steps involved in the action planning process, including the analysis of strategic noise maps via a prioritisation matrix, the determination and further investigation of Candidate Noise Management Areas (CNMA) and Noise Management Areas (NMA).
The planning framework relevant to the action planning process, together with the alignment of other initiatives aimed at reducing noise, is also described.
These Consultations are open until 21st July 2008. Further information may be accessed via the following links.
http://www.scotland.gov.uk/Consultations/Current
http://www.scotland.gov.uk/Publications/2008/05/22153851/0
http://www.scotland.gov.uk/Publications/2008/05/22153936/18
http://www.scotland.gov.uk/Publications/2008/05/22154015/19
Contamination court case highlights lease drafting pitfalls
Kwik-fit entered into a 25 year lease of premises in Edinburgh in 1993. In 2007 their Landlords wrote to them to say that they wished to carry out intrusive testing of the ground in order to ascertain if contaminants were present in the soils and underlying groundwater. In common with many leases, the lease in question was silent with regard to either (a) such "environmental" rights of entry for the Landlord, or (b) the tenant's liability for cleanup of past contamination.
The Landlord asked the court to declare that the phrase in the lease entitling the Landlord "to enter upon the premises generally to inspect and examine the same, and to view the state of repair and condition" was sufficient to cover the right to sink boreholes, and the court agreed that it was.
This seems a fair result especially considering the potentially contaminative nature of garage premises, although that consideration did not feature in the court's judgment. Instead, the court felt that it was appropriate to interpret the above phrase so as to include the right to carry out intrusive testing because it felt it would not be sensible to limit the power of inspection to merely a superficial visual inspection "particularly in a long lease, when the condition of the premises may materially alter over time".
The reference to the length of the lease raises potential doubts about whether a basic right to view the state of repair of premises would also extend to intrusive testing in a SHORT term lease.
The case is a reminder of the need for Landlords to consider environmental issues carefully whenever granting (long or short) leases and to ensure that the lease wording caters for issues such as intrusive testing.
It is also a reminder that the decision on this narrow "inspection" point has no bearing at all on what the actual liability position will be as between Landlord and Tenant if subsequent cleanup is required, which reinforces the advisability of such liability issues being bottomed out commercially prior to a lease being finalised.
The case can be accessed at: http://www.scotcourts.gov.uk/opinions/2008CSOH79.html
Better protection for groundwater
Defra have published a consultation paper setting out the purpose and scope of the new Groundwater Directive 2006 (GwD), and presenting proposals for transposition of its Article 6 through amendment of the Groundwater Regulations 1998.
Defra say that although the proposed changes to the existing regulations appear complex, they are not great in overall substance, and that although the amended regulations will cover a wider range of substances, they will introduce a more flexible risk based approach to their regulation.
The GwD, a daughter directive of the Water Framework Directive (WFD), sets out specific measures to prevent and control groundwater pollution. Together the GwD and the WFD constitute the new groundwater regime. However, the GwD must operate in parallel with the 1980 Groundwater Directive until it is repealed in 2013.
Overall, the consultation focuses on the transposition of Article 6 of the GwD, which provides that, subject to various exemptions, Member States must prevent the input of hazardous substances and limit the input of all others to avoid pollution.
Defra propose to introduce measures to prevent inputs of all hazardous substances to groundwater. It is proposed that for all hazardous substances, including those which are not also List I substances (as designated in the 1980 Groundwater Directive), existing controls should be extended to cover any non-listed hazardous substance, thus avoiding the need for two separate regulatory regimes. Defra also suggest that hazardous substances should be referred to by their properties, such as: toxicity, persistence and bioaccumulation.
Defra also propose to introduce measures to limit inputs of non-hazardous substances to groundwater. As the set of non-hazardous substances is greater than the subset of List II substances (as designated in the 1980 Groundwater Directive), and because the GwD envisages a risk based approach, it is proposed that the Environment Agency should be afforded greater flexibility over permit requirements.
With respect to diffuse sources of pollution, it is proposed that the potential role notice powers and codes should be made more explicit.
Defra propose to change the requirement to review authorisations from every four years to every six years or another frequency that the Environment Agency considers justified in relation to risk. It is also suggested that the Environment. Agency should determine the scope and extent of the review based on risk.
Measures to introduce and integrate provisions concerning exemptions to the controls on hazardous and non-hazardous substances laid down in the GwD are also put forward. However, Defra stress that exemptions from preventing or limiting outputs of pollutants are not exemption from necessary controls.
Defra invite responses to this consultation by 20th August 2008.
Organic whiff may lead to cheaper legal challenges
Hinton Organics operates a large composting facility near Bristol. Two neighbours raised an odour nuisance action against the operator, and successfully obtained an interim injunction preventing the release of foul odours. The operators tried to resist the injunction, claiming that it could put them out of business pending the nuisance issue being resolved at a later trial, as well as causing disposal difficulties for the various local authorities who made use of their services. However the neighbours were successful in obtaining an injunction (not least because the wording of the interim injunction was no more onerous than the sort of odour condition you normally find in a PPC permit).
But the neighbours then objected to the judge's conclusions in relation to the award of costs for the injunction proceedings. He had ruled that the costs of that early part of the court proceedings should be held over and determined at the eventual trial, despite the neighbours "winning" their injunction.
Fearing a large bill if ultimately unsuccessful, the neighbours are applying to the Court of Appeal for permission to appeal against the holding over of the costs decision. One of their arguments is that the judge's discretion on costs may be incompatible with the Aarhus Convention on access to justice, which is supposed to ensure (amongst other things) that procedures exist to challenge environmental breaches which, for the challengers, are "fair, equitable, timely and not prohibitively expensive".
The case comes hot on the heels of a report from a WWF Working Party (chaired by a highly respected High Court judge) which concluded that existing court costs arrangements were NOT compatible with the Aarhus obligations and that the government would have to take action to make challenges more affordable.
http://www.bailii.org/ew/cases/EWCA/Civ/2008/537.html
New Compliance Scheme to replace SEPA’s OPA
SEPA has published initial proposals for a new compliance scheme to replace the Operator Performance Assessments (OPA), ahead of a formal consultation due to begin in July. The proposed scheme will assess operators regulated under the PPC, Waste Management Licensing and Radioactive Substances Act regimes, except activities regulated under exemptions from licensing regimes or general binding rules. Operators regulated under CAR will also be assessed in accordance with the new scheme, with the exception of those carrying out engineering works and disposal to land activities.
SEPA propose to introduce the scheme in 2009, with the last assessments under the OPA for 2008 completed in the first half of 2009.
The scheme is designed to contribute to the implementation of the Better Regulation agenda, and recognises that there are two types of licence condition – those relating directly to the environment, and those focussed on management requirements. It will therefore distinguish between what it calls Environmental Limit Conditions (ELCs) and Environmental Management Conditions (EMCs), and will assess each in terms of 5 bands indicating performance.
SEPA is inviting operators to take part in trials of the new scheme in the summer.
Opinions sought on Offshore Wind Energy
The European Commission has published a public consultation on key barriers to the development of offshore renewable energy in the EU, ahead of preparing a draft EU Offshore Wind Energy Action Plan.
The consultation follows on from the new energy and climate package adopted by the European Commission early this year, which included a proposal for a directive promoting the use of renewable energy and setting national targets aimed at achieving the overall EU target of 20% of energy being generated from renewable sources by 2020.
The Commission is seeking to identify through the consultation key barriers to the development of offshore energy in Europe, as well as actions that may be taken to address such barriers, with a particular emphasis on actions at EU level. The Commission is also encouraging comment on other forms of offshore energy, such as wave, tidal and ocean current technology, which may be affected by similar issues to offshore wind energy.
The consultation, which is open until 20 June 2008, is available at the following link:-
http://ec.europa.eu/energy/res/consultation/offshore_wind_energy_en.htm
Europe re-examines Building Energy Efficiency Standards
The European Commission is consulting on proposals to revise the Energy Performance of Buildings Directive (EPBD), before it has even been fully implemented in the UK. The Commission has so far raised infringement proceedings against no less than 17 EU countries for late or inadequate transposition of the Directive.
The consultation on the recasting of the EPBD notes that setting energy efficiency standards on an EU-wide basis, such as previously suggested by the Commission, would be complex and difficult, and instead proposes a benchmarking system to allow the different efficiency standards set by Member States under the existing Directive to be compared against one another.
The consultation recognises that a many of the available cost-effective energy efficiency measures are not realised in practice, and notes the potential for the buildings sector in contributing to the achievement of EU policies in relation to climate change and energy supply. It sets out aspects of the EPBD which may be addressed through amendments to the legislation, but also recognises that there are also other factors, which may not be so readily addressed, pointing to the issues of fragmented nature of building ownership and the competing interests in the landlord-tenant relationship, as well as the lack of finance for installing energy efficiency features.
The consultation, which is open until 20th June 2008, is available at the following link:-
http://ec.europa.eu/energy/demand/consultations/buildings_dir_en.htm
FOR FURTHER INFORMATION PLEASE CONTACT: FIONA ROSS