Legislation and Regulation Update (May
2006)
KEY REGULATORY CHANGES
Nitrate Regulations Revised
Regulations on nitrate pollution from agriculture in England and
Wales have been revised to reflect the provisions of the EU public
participation Directive.
The 2003 Directive requires Member States to involve the public in
environmental decision-making, and the amending regulations will
require members of the public to be allowed to participate in the
preparation, review and revision of action programmes for nitrate
vulnerable zones.
The Protection of Waste against Agricultural Nitrate Pollution
(England and Wales) (Amendment) Regulations 2006 (SI 2006/1289) are
available from the Stationery Office or can be downloaded at
www.opsi.gov.uk. [top]
Waste Management Licensing Changes Introduced
The Waste Management (England and Wales) Regulations 2006 (SI
2006/937), which came into force on 15 May, make several largely
detailed amendments to various pieces of waste legislation including
the Environmental Protection Act 1990, the Controlled Waste
(Registration of Carriers and Seizure of Vehicles) Regulations 1991,
the Controlled Waste Regulations 1992 and the principal (1994) waste
management licensing Regulations.
The changes are necessary for the purpose of transposing into UK law
certain provisions of the Waste Framework Directive and the Landfill
Directive. [top]
OTHER NEW LEGISLATION IN BRIEF
Animal By-Products (Wales) Regulations 2006 (SI 2006/1293) (W.127)
These regulations, which came into force on 12 May and apply only
to Wales, revoke and remake, with amendments, the Animal By-Products
Regulations 2003. These regulations made provision for the
administration and enforcement of EC Regulation 1774/2002, laying
down health rules concerning animal by-products not intended for
human consumption. They give effect to additional EC
instruments and remove previous transitional measures which no
longer have any effect. Finally, they repeal other provisions
in relation to matters which are now controlled by these Regulations
e.g. parts of the Slaughterhouses Act 1974. [top]
GUIDANCE
Revised PPC Guidance for
the Galvanising Sector
DEFRA has published revised guidance for sites in the galvanising
sector regulated by local authorities as Part A2 installations under
the PPC regime.
The previous guidance focused mainly on air pollution issues but the
new version includes requirements for controls on discharges to
water as well as in relation to odour and waste e.g. the need for
odour assessments and reports on water use (to be completed by July
of this year and April 2007 respectively). In addition, advice
is provided on how to prevent or treat contaminated waste run-off
from yards.
The guidance entitled "Secretary of State’s guidance for A2
activities in the galvanizing sector (SG5)" is available from DEFRA
(www.defra.gov.uk).
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Waste at Contaminated Sites
Revised guidance published by the Environment Agency re-addresses
the issue of when contaminated soils are to be classified as waste
for regulatory purposes.
Previously, the Agency had stated that all contaminated soils become
waste when they are excavated. Now, it accepts that such soils
not requiring treatment or containment could be considered suitable
for use, like uncontaminated soils if there is no risk to the
environment. More work with industry is necessary to establish
how operators might demonstrate that no risk is posed (possibly, a
remediation action plan).
The Agency also now accepts the principle that soils leaving
treatment "hubs" or "clusters" might cease to be waste but again,
more work is necessary to decide how to make such an assessment.
The guidance is available from the Environment Agency (www.environment-agency.gov.uk).
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CONSULTATIONS
The following consultation documents have been published:
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Agency Updates
Groundwater Policy
The Environment Agency has published draft proposals for updating
its policy in relation to groundwater protection, which was last
revised in 1998 to reflect the then new Groundwater Directive.
The revised version takes account of changes to waste legislation
and also the requirements of the Water Framework Directive.
Currently comprising three elements – the core policy, a technical
framework and a section on the tools available for analysing the
threats to groundwater, a final part will be released later this
year covering legislation and guidance.
The Agency’s guiding policy principle is to "protect and manage
groundwater resources for present and future generations in ways
that are appropriate for the risks that we identify" and to this end
the policy comprises some seven aims which include managing surface
and groundwater in an integrated manner and using "robust" pollution
prevention measures.
A final version of the policy plus a report on the quality of
groundwater in England and Wales is expected this autumn.
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DEFRA Consults on
PPC changes
DEFRA has launched a consultation on relatively minor changes to
the Pollution Prevention and Control (PPC) Regulations.
The changes relate to the:
- implementation of further petrol vapour recovery provisions (
so-called "Stage II" controls);
- increases in penalties for
offences under the regulations;
- transitional provisions in
relation to coin-operated dry cleaning equipment which ultimately,
will not be able to comply with the Solvent Emissions Directive
requirements;
- a minor technical amendment to provisions
relating to the burning of landfill gases containing halogens.
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Revised System of
Penalising Environmental Non-compliance
The Cabinet Office has published a consultation document on a new
system of penalties for businesses which fail to comply with their
environmental regulatory obligations.
With a broader emphasis than simply environmental non-compliances,
the paper also cites failures in relation to Health and Safety and
other regulated areas. It cites several high-profile examples
of instances where the fines imposed by the court system do not
reflect the seriousness of the offence, or the economic benefit
which the offender has derived. For example, a small waste
disposal company operating without a waste management licence being
fined �25k but having saved ten times that amount by operating
illegally over a two year period.
The consultation follows a review by Richard Macrory, Professor of
Environmental Law at University College, London and Environment
Agency board member, in which he found that the current system is
heavily reliant on criminal prosecution. The new proposals
contemplate the use of administrative fines and other non-criminal
penalties which could mean, in appropriate cases, the Environment
Agency being able to fine offending businesses instead of
prosecuting them in the courts.
The closing date for this consultation is 18 August 2006 and it can
be accessed at
www.cabinetoffice.gov.uk/regulation/. [top]
NEWS
Agency Moves from "Inspections" to
"Audits"
In keeping with the development of risk-based regulation based on
its Operator Performance and Risk Appraisal ("OPRA") philosophy, the
Environment Agency is moving away from pollution control inspections
towards more in-depth environmental audits focusing on outcomes such
as operator performance and pollution levels.
Under IPC and more recently, PPC, there has been a steady decline in
inspections, with the allocation of monitoring resources now being
based on risk and concentrating on those processes and installations
that pose the greater risk to the environment. This approach
is gradually being extended to waste management licensing facilities
and even producer responsibility obligated companies. The
change appears to be welcomed by those businesses which are
regulated, several of them commenting that the new approach is far
more useful in identifying underlying problems and producing
solutions.
Businesses can expect this approach to be further developed and
extended with a commensurate reduction in the levels of "check"
monitoring carried out on the Agency’s behalf. [top]
Guidance to be Issued on "Wastes"
and "Non-wastes"
Guidance defining when certain materials previously regarded as
waste are not waste is being jointly developed by the Government’s
Waste and Resources Action Programme (WRAP) and the Environment
Agency.
The guidance "protocols" are intended to make sure businesses are
clear about the point of recovery for various waste streams,
informing them of the necessary control processes which they need to
follow to take specific waste streams up to their recovery points.
This would enable the recovered material to enter the secondary
markets as well as reducing the quantity of material going to
landfill.
According to WRAP, the protocols, which will be developed and
released on a rolling basis, will mean that many businesses will not
even contemplate buying a material which remains within the scope of
the waste management regime. The placing of these developed
products outside that regime will mean fewer waste management
licences or registered exemptions.
Examples of the sort of waste that could thus become "non-wastes"
are food oil (used for biodiesel), and blast furnace slag,
pulverized fuel ash and "stabilized" contaminated soils (used as
secondary aggregates).
Further developments in this key area will be reported in due
course. [top]
Exports Help Packaging Recycling
Targets
According to DEFRA, overall EU targets for recycling packaging
waste have been almost achieved, some three years ahead of schedule.
In 2005, the overall recovery percentage was 59.9%, just short of
the 2008 target of 60%, largely due to the fact that the UK has
become one of the major exporters of packaging waste, exporting
almost a third in 2005 compared with 10% in 2001. The big
increases are in cardboard and glass, although there is some
considerable concern about significant "over declarations" which is
currently being investigated. Also, there has been a
considerable drop in domestic reprocessing over the period 2002 to
2005, because of a continuing drop in cardboard recycling.
DEFRA has also revealed that nearly �60m was raised through PRNs in
2005, with a further �47m raised though the exporting notes
(PERNs).
Material-specific targets were met and in the case of glass and
steel, easily exceeded, with no compliance schemes having failed to
meet their obligations. The only real concern in terms of the
2005 targets appears to be glass, the recovery rate for which will
have to increase by about 160,000 tonnes per year.
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Agency Publishes 2006/7 Charges
The Environment Agency has published its charges for 2006/7 for
each of its regulatory regimes including PPC, water discharge
consents and waste management licensing.
The PPC and waste licensing charges have risen by just under 3%,
with the amount calculated relating to risk, in accordance with the
OPRA philosophy, now adjusted so that applications which attract
significant public interest are charged more to cover the Agency’s
public consultation costs.
Full details of the 2006/7 charges for all of the regulatory regimes
are available from the Environment Agency (www.environment-agency.gov.uk).
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"Informal" Consultation on WEEE
Implementation
Following the recent publication by DTI of the results of the WEEE
implementation review (see Legislation and Regulation Update,
January –April 2006), the Government has now launched a further
"informal" consultation on implementation. This comprises an
executive summary of the previous consultation responses and a
supplementary paper outlining its latest proposals with regard to
the forthcoming legislation. These proposals are very much as
outlined in the Legislation and Regulation Update, January -April
2006. This supplementary paper can be accessed at
www.dti.gov.uk/files/file 28449.pdf.
The DTI says that the purpose of this consultation is to ensure the
establishment of a workable system, but also says that it is still
its intention to publish a formal consultation paper "later in the
spring" dealing with the new legislation, guidance and the timeframe
for implementation. [top]
Waste Data Strategy issued by DEFRA
and the Welsh Assembly
The first national waste data strategy was jointly issued by DEFRA
and the Welsh Assembly in April.
Essentially unchanged from proposals originally issued in 2004, the
first stage of the strategy, which was due to be implemented with
effect from May, will involve collection of data on municipal,
hazardous and commercial waste and on industrial waste from sites
regulated by PPC permits or waste management licences. The
second phase, which focuses on sewage sludge, agricultural and
mining and quarrying wastes, is due to begin twelve months later.
Issues still outstanding are the requirement for sites that operate
under waste management licensing exemptions to report data which
will be linked to changes in the exemptions system planned for later
this year, and the effect of the delay in installing the Environment
Agency’s new permitting and compliance systems which will not now be
available until next year. [top]
EU NEWS
Final Agreement Reached on
Batteries Directive
Agreement has been reached between the European Parliament and
Council of Ministers on a revised Batteries Directive.
As a result, Member States must establish collection schemes for
waste portable batteries by 2008. In addition, recycling
targets for batteries will be 65% for lead-acid, 75% for nickel-
cadmium and 50% for the remainder. Other requirements relate
to a ban on cadmium, except in batteries used in emergency alarm
systems, medical equipment and cordless power tools. With
regard to ultimate disposal, batteries collected can be sent to
landfill or underground storage when "no viable end-market is
available". There is a general requirement that producers are
financially responsible for the collection, treatment and recycling
of batteries. However this will not normally apply to
producers of "very small quantities" of batteries, although all
producers will have to be registered. Newly agreed provisions
include a requirement from 2009 for producers to label batteries to
indicate their energy capacity and for appliances to be designed to
allow easy battery removal.
Following formal adoption of the Directive in the summer, Member
States will have 24 months to transpose it into national law.
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