Environment Update May 2010
A question of combustion
The UK will have to bring itself into line with the Large Combustion Plants Directive (LCP Directive) (2001/80/EC) following a recent European Court of Justice (ECJ) decision which found it to be in breach of its obligations under the Directive (Case C-346/08). The ECJ held that the Directive applied to a power station operated by Rio Tinto Alcan Smelting and Power UK Ltd, at Lynemouth in Northumberland, that generates electricity for use in an aluminium smelting process. The ruling means that the plant will now have to install expensive emission abatement technology in order to comply with emission limits set down in the Directive.
The case focused on examining the process of electricity generated from combustion in relation to key provisions within the Directive. In particular it raised questions as to the “direct” use of the product of combustion for the purposes of determining the scope of the LCP Directive and its exceptions.
The LCP Directive seeks to combat acidification with the aim of limiting emissions of sulphur dioxides, nitrogen dioxides and dust from large combustion plants which have a rated thermal input equal to or greater than 50 megawatts (MW), irrespective of whether they use solid, liquid or gaseous fuel. Article 2(7) of the Directive states that the Directive shall only apply to combustion plants designed for the production of energy generated from the oxidising of fuels, with the exception of those which are not designed for the production of energy, or which make direct use of the products of combustion in manufacturing processes.
Under Article 4 Member States were required to achieve significant emissions reductions for existing combustion plants by 1 January 2008, either by taking appropriate measures in order that the existing plants concerned complied with the emission limit values set in Annexes III and VII of the Directive, or by ensuring that those plants were subject to the national emission reduction plan (NERP). The UK opted to take measures under a NERP therefore committing itself to communicating the NERP to the Commission by 2003, who in turn would evaluate whether it met the Directive’s emission requirements.
However, it later sought to claim the Article 2(7) exception for the Lynemouth smelting plant, by omitting the plant from a revised version of its NERP submitted to the Commission in 2006. The UK argued that it had reached the decision that the plant qualified for the general exception under Article 2(7) because the electricity generated from combustion within the plant was directly used in a manufacturing process and therefore the sole purpose of the plant was for the production of aluminium (and therefore not of energy).
Secondly, it argued that it was inappropriate to interpret the Article 2(7) exception as applying only to direct products of combustion used in manufacturing processes. In its view the exception could apply where there was an indirect product of combustion which itself had a direct link with the manufacturing process. It contended that in the present case, there was a direct link between the electricity produced from combustion and the manufacturing process employed since electricity is used by that process to produce aluminium.
However, the ECJ shared the Commission’s view that Lynemouth could not benefit from the Article 2(7) exception. It was adamant that the exception only applied to the situation where there was direct use of the products of combustion in a manufacturing process. It held that electricity is not a product of the combustion process, as it results from a series of other processes needed after combustion for its generation (combustion releases heat, that generates steam, that propels a turbine, that finally generates electricity). Products of combustion are waste gases, ashes and other residues and also the heat generated on combustion.
In deciding that the intermediate steps taken to generate electricity meant that there was no “direct” use of a product of combustion, to which the Article 2(7) exception could not apply, the Court also took into account the overall purpose of the Directive and the fact that the UK’s broader interpretation of the exception would undermine the objective of the LCP Directive, which was to combat acidification.
The full text of the judgement can be viewed by accessing the following link:
http://curia.europa.eu/jcms/jcms/j_6/
Offshore wind energy in Scotland set to soar
Scotland’s plans for the development of offshore wind energy projects have been revealed following the publication of a consultation by the Scottish Government, who at the same time has signalled its commitment to progress 10 sites, identified by the Crown Estate in 2009, for potential offshore wind energy development. The consultation on the Draft Plan for Offshore Wind Energy in Scottish Territorial Waters, reveals the Government’s plans at this stage for helping to reduce greenhouse gas emissions and to realise Scotland’s multibillion pound potential in renewables. The plan has been fundamentally shaped by a Strategic Environmental Assessment (SEA) which highlighted a range of environmental issues arising from the 10 sites.
The consultation follows the Scottish Government’s commitment to generate 20% of all energy, and 50% of its electricity from renewable sources by 2020, and comes in the estimated knowledge that Scotland has 25% of Europe’s offshore wind resource – meaning that there is considerable potential for offshore wind, wave and tidal energy developments in the future. The plan includes the 10 areas identified by the Crown Estate, where it was prepared to grant commercial leases for offshore wind energy developments, with the SEA and technical analysis, considering the implications of taking all 10 of these sites forward. However, the plan also covers all other areas of Scottish territorial waters (i.e. between 0-12 nautical miles offshore).
The consultation sets out the proposals for the plan to develop over the short, medium and long-term up to 2020 and beyond for all identified areas, in light of the information set out in the SEA report and technical analysis. It therefore seeks views on the suitability of the options proposed to accommodate the offshore developments, providing an opportunity to give strategic consideration to mitigation measures which could be applied to ensure that the plan avoids major adverse impacts in the short, medium and long term.
The proposals include:
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Progressing the 10 sites for potential offshore wind energy development recently identified by The Crown Estate. Environment and technical assessment has concluded there are no significant environmental effects which cannot be avoided or reduced through appropriate project planning and development.
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The mapping of key technical and environment constraints to identify the most feasible areas for development, and further evaluation of these areas in relation to other users of the sea, most notably shipping and commercial fishing sectors.
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A commitment from the Scottish Government to consider reviewing the plan every two years, in recognition of the fast pace of change within the offshore wind sector and marine environment.
The consultation will run for 12 weeks until the 16th August 2010, following which the draft plan will be reviewed by Marine Scotland before a final version is adopted.
The draft plan and information on how to respond may be viewed via the following link:
http://www.scotland.gov.uk/Resource/Doc/312147/0098586.pdf
Sites of Community Importance
The ECJ has dismissed an action by the Commission claiming Spain to be breach of its obligations under the Habitats Directive (92/43/EC), following the weighing up of evidence taken from a series of studies in relation to a project for upgrading a country road in between Villamanrique de la Condesa (Seville) and El Rocio (Huelva) in Spain. The case (C-308/08) concerned questions as to whether the project compromised Spain’s earlier decision to include the Donana natural park as a Site of Community Importance (SCI) due to the presence of the Iberian Lynx (among the priority species listed in Annex IV to the Directive). Despite rejecting the Commission’s claim, it nevertheless highlighted the obligation on member states to ensure that the appropriate protection arrangements are made for a site once it has been designated as an SCI under Article 6, with the aim of preventing the deterioration of natural habitats and habitat species.
SCIs are an integral part of the network of sites of special areas of conservation (SACs), known as Natura 2000, which the Habitats Directive requires member states to operate for the purpose of conserving the natural habitat types and habitat species which appear in Annex I and Annex II of the Directive. Articles 4(1) and (2) direct Member States to propose a list of sites (SCIs) host to protected species, which are listed respectively in Annex I and II of the Habitats Directive. The agreed list of SCIs is then transmitted to the Commission for inclusion on their draft list of SCIs.
The case arose primarily from Spain’s proposal to designate the Donana park as an SCI in 1997. In 1999, between the time that the site was proposed as an SCI and the time that it was actually placed on the draft list of SCIs by the Commission in 2006, Spain upgraded the country road which ran alongside the park, so that it cut through a section of the Donana park. The Commission objected to Spain’s actions, sending it formal notices in 2004 and 2006 warning that it had failed to fulfil its obligations under the Directive. In particular, the Commission voiced its concern that the road conversion exposed the residing Iberian Lynx to the risk of fatal accidents, declaring that Article 12 (4) had been breached in this respect.
Article 12 (4) requires member states to establish a system to monitor the incidental capture and killing of the animal species listed in Annex IV. In light of the information gathered, member states are expected to take further research or conservation measures as required to ensure that incidental capture and killing does not have a significant negative impact on the species concerned.
The Commission’s 2004 notice was prompted by a report showing that a number of Iberian Lynx had been struck down by vehicles in the Donana region. In the same year Spain took additional protection measures to deter vehicles speeding along the road, such as the construction of wildlife crossings, the provision of road signs and the erection of animal fencing along the length of the section crossing the forest area. However, the Commission went ahead with taking Spain to the ECJ, standing firm in its opinion that Spain’s breaches were ongoing. The Commission’s claim largely rested on a 2006 pilot study indicating that for Iberian Lynx in the Donana region, being struck by a vehicle had become one of the main causes of death, precisely due to the increase in the number of asphalt roads throughout the region.
Although the ECJ acknowledged that certain elements in the case file appeared to indicate that the overall situation of the Donana site might not be satisfactory in the light of the requirements relating to conservation of the Iberian lynx, it did not believe that the upgrading had a real impact on the habitat fragmentation of the Iberian Lynx. It considered the additional protective measures adopted by Spain to deter speeding as adequate, referring to a 2006 report of the Donana park which showed that no animal had been struck by a vehicle since implementation of the additional protective measures.
Therefore, on the basis of the evidence in front of it, the ECJ held that the Commission had failed to prove that the implementation of the project for upgrading the country road had threatened the existence of the Iberian Lynx. It also paid regard to the fact that the Spanish authorities continued to study new measures capable of further improving the conditions for conservation and improvement of the species, which in its view secured the underlying aim of Article 12(4).
The full text of the judgement may be viewed by accessing the following website:
http://curia.europa.eu/jcms/jcms/Jo1_6308/
A fitting role for suppliers under FITs
New guidance has been issued by Ofgem, specifically targeted at putting suppliers in the know in respect of their obligations and duties under the Feed-In-Tariff scheme (FITs). The guidance, entitled ‘Feed-In-Tariff Scheme: Guidance for Licensed Electricity Suppliers’, is made in accordance with the FITs Order 2010 which brought FITs into force on 1 April 2010. It has the aim of facilitating the efficient operation of the FIT scheme and outlines the powers given to Ofgem under the Order to carry out the behind the scenes administration of FITs.
The FITs is designed to be available through licensed electricity suppliers and is intended to encourage the uptake of small scale renewable and low carbon technologies of a capacity size up to 5MW. The FITs requires certain suppliers to make tariff payments on both the generation and export of renewable and low carbon electricity from eligible installations using photovoltaic (PV), wind, hydro, anaerobic digestion (AD) and CHP.
The guidance confirms the central role that suppliers will play in the proposed processes, procedures and interactions being established to deliver FITs, stating that the onus is on suppliers at all times to ensure that they comply with the requirements of the FITs Order 2010 and the new Electricity Standard Licence Conditions (SLCs) relating to the FITs and the Order.
The guidance establishes that FIT licensees fall into two groups, classed as Mandatory FIT licensees (suppliers who have a minimum of 50,000 domestic customers) and Voluntary FIT licensees (suppliers with fewer than 50,000 domestic customers). Both classes of licensee will be responsible for delivering a range of aspects of FITs, including assessing whether an installation is eligible, registering eligible installations on the Central FITs Register, making FITs payments and verifying generation and export meter readings.
A key duty of suppliers is the obligation to contribute to the cost of FITs through participation in the Levelisation Process. The guidance explains that all suppliers will have to make levelisation payments in proportion to their share of the UK electricity supply market and taking into consideration any FITs contribution made. However, Ofgem is planning to publish further guidance on what is expected of suppliers during the levelisation process which is to take place in FITs year 1 (1 April 2010 – 31 March 2011), over quarterly levelisation periods. Suppliers will be required to send Ofgem a levelisation report covering a FITs year, by 1 July, following the end of that FITs year.
The guidance may be viewed through the following link:
http://www.ofgem.gov.uk/Sustainability/Environment/fits/Documents1/Ofgem-FIT%20Guidance%20Document%20for%20Licensed%20Electricity%20Suppliers%20(FINAL%20FOR%20PUBLICATION).pdf
What’s in a name? Labelling for hazardous substances comes under the lens
The European Chemicals Agency (ECHA) has issued guidance on the preparation of dossiers for harmonised classification and labelling (CLH) under the Classification, Labelling and Packaging (CLP) Regulation of substances and mixtures. The CLP Regulation determines whether a substance or mixture displays properties that lead to a classification as hazardous, resulting in its inclusion into its Annex VI. The Regulation specifies that competent authorities of member states (MSCAs), manufacturers, importers or downstream users may submit proposals for harmonised classification and labelling of substances to the ECHA.
Hazard labelling allows for the communication of hazard classification to the user (including consumers) of a substance or mixture, alerting them to the presence of a hazard and the need to avoid exposures and the resulting risks.
The guidance focuses on the interaction between the CLP Regulation and the preparation of a CLH dossier, aiming to provide technical guidance for MSCAs, manufacturers, importers or downstream users on preparing a CLH dossier under the CLP Regulation. The guidance therefore outlines the essential components of the CLH dossier as well as the required procedure to be followed in its preparation. In particular, the guidance highlights the role of REACH (Registration, Evaluation, Authorisation and restriction of Chemicals Regulation) alongside the CLP Regulation which establishes the information requirements for determining the physical properties of hazardous substances.
A key element in the preparation of a CLH dossier is substance identification based on requirements set out in Annex VI of REACH, that ensure that the dossier submitter provides sufficient information to enable the substance to be unequivocally identified. Substance identification depends upon information which includes the name and European or international identity codes and information as to the composition, impurities and the molecular and structural formula of the substance. Once unequivocal substance identification has been established, this identification provides the basis for the CLP Regulation Annex VI entry for the substance. Annex VI specifies the information listed for each entry in the list of harmonised classification and labelling.
In addition, the guidance also clarifies the substances for which a proposal for a CLH dossier can be submitted, namely substances which fulfil the criteria for classification set out in Annex I to the CLP Regulation and which fall into one or more of the listed hazard classes:
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Carcinogenicity;
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Germ cell mutagenicity;
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Reproductive toxicity; and
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Respiratory sensitisation.
However, the guidance also reminds dossier submitters that the CLP Regulation allows harmonised classification for other hazard classes to be proposed on a case-by-case basis if it is justified that action is needed at European Community level.
The ECHA guidance may can be viewed by clicking in the following link:
http://guidance.echa.europa.eu/docs/guidance_document/clh_en.pdf
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