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Environment LawBulletinApril 2003Renewables andefficiency takepriority in newenergy policyNew Water Billset to reformwater abstractionlicensingA review of recentdevelopmentsRecent cases

The CMS Cameron McKennaEnvironment Law Bulletin is prepared bythe Environment Law group of CMSCameron McKenna. It is intended tosummarise those recent developments inthe environment laws of the UnitedKingdom and the European Union that webelieve may be of interest to our clients andto collect them under appropriate headings.It should not be treated as a comprehensivereview of all developments in this area oflaw; also while we aim for it to be as up-todateas possible, some recent developmentsmay miss our printing deadline.This commentary is not a full review ofthe topics it covers. Specific advice shouldalways be sought on any particular subject.Law-Now - CMS Cameron McKenna’selectronic information serviceTo register for Law-Now on-line, go toour home page at www.law-now.comFor further information on our environmental servicesplease contact Paul Sheridan on: +44 (0)20 7367 3000Introducing the teamPaul SheridanPartner,Head of EnvironmentLaw groupDaniel ChappellSenior Assistant SolicitorDavid ShortSenior Assistant SolicitorTom BainbridgeAssistant SolicitorJenny McKenzieAssistant SolicitorEnvironment Law BulletinApril 20032

APRIL 2003ContentsArticles Renewables and efficiency take 4priority in new energy policyTom BainbridgeNew Water Bill set to reform 8water abstraction licensingJenny McKenzieCMS is a major transnational legaland tax services organisation with1,700 lawyers and a total staff inexcess of 3,500. CMS has beencreated by several major European lawfirms to offer clients seamless servicesacross Europe.Update A review of recent developments 11in environment and health andsafety issuesMark RutterSECTION 1 Liability in environment law 11SECTION 2 Air pollution and integrated 12pollution controlSECTION 3 Water 17SECTION 4 Noise 20SECTION 5 Waste 21SECTION 6 Transport and labelling of waste 27and hazardous substancesSECTION 7 Hazardous substances 28SECTION 8 Access to information 30SECTION 9 Energy 32SECTION 10 Planning aspects of 36environmental controlSECTION 11 Health and safety at work 38SECTION 12 Miscellaneous 40Cases A selection of recent cases in 45environment and health andsafety lawHelen HarrisonHelen HarrisonEnvironmentInformation AdviserDr. Mark RutterScience andEnvironment Adviser3Environment Law BulletinApril 2003

TOM BAINBRIDGEtom.bainbridge@cmck.comRenewables andefficiency take priorityin new energy policyThe UK Department of Trade and Industry(DTI) has finally published its long-awaitedEnergy White Paper, setting out theGovernment’s long-term strategy on energyto the year 2020 and beyond. The WhitePaper underlines the growing convergencebetween energy and environment policies,placing climate change firmly in the centreof future energy policy.Despite criticism that the White Paperis short on specifics, in some quarters it isbeing supported as an encouraging highlevelpolicy statement embracingrenewable energy and energy efficiency,which has Prime Ministerial backing and“The White Paper underlines the growingconvergence between energy and environmentpolicies, placing climate change firmly in the centreof future energy policy.”on which the necessary detail andcertainty can be built. An alternative viewmight be that the Government’s newenergy strategy to a large extent reflectssentiments expressed more strongly andfor some time now in Brussels on theimportance of using renewable energy andenergy efficiency technologies to tackleclimate change. The recent Directive onthe Energy Performance on Buildings isgiven as an example.Energy White PaperThe White Paper is wide ranging. Measuresproposed in the White Paper are intendedto affect all businesses by creating anenvironment in which economic growth isdecoupled from increased carbon emissionswhile ensuring ongoing security and diversityof supplies.The White Paper starts by accepting thefindings of the Royal Commission onEnvironmental Pollution and sets an objectiveof cutting CO2 emissions 60% by 2050.Technological change is seen as likely to playa significant part in delivering emissionsreductions at this level. Market solutionssuch as emissions trading, trading in renewableenergy and, possibly, combined heatand power certificates, taxation and taxbreaks, supported by increased R&D fundingand capital grants, are seen as the keymechanisms to deliver the cost-effectivetechnology that will be needed.Supporting statements from PrimeMinister, Tony Blair, were timed to coincidewith publication of the White Paper anddemonstrate support for growth in the environmenttechnologies and services industry.In a speech, he likened the long-term globalthreat of climate change to the immediatesecurity threat posed by weapons of massdestruction. In a joint letter with his Swedishcounterpart, Goran Persson, to the EUPresident he challenged EU leaders tocommit to reductions in their CO2 emissionsof the same order. The letter supports andbuilds upon the draft EU EnvironmentTechnologies Action Plan, designed to fosterdevelopment of cost-effective environmenttechnologies and services, by proposing thatthe EU should set further national targetsfor renewables and continue to work tosupport combined heat and power (chp).The White Paper has been criticised forbeing short on specific measures. Howeverthe detail of how the Government proposesto deliver the strategy set out in the WhiteEnvironment Law BulletinApril 20034

“The Government acknowledges that despite the UKhaving vast potential, growth in renewables in the UKhas been inadequate so far.”Paper is to be set out in an ‘implementationplan’. The Government has committed topublish the plan within the next year andthen to report annually on progress thathas been made towards achieving theobjectives set in the White Paper, as well ason any additional steps needed to remainon track. Interestingly, this commitmentforms the basis of the recent PrivateMember’s ‘Sustainable Energy Bill’.Energy efficiencyEnergy efficiency is seen as the most costeffectiveway of reducing CO2 emissions.Cost-effective measures are estimated to becapable of delivering approximately half ofthe reductions needed to achieve theGovernment’s greenhouse gas emissionsreductions targets. The White Papercontains a reminder that the Treasury isconsulting on specific fiscal measures topromote domestic energy efficiency (alsopicked up in April’s Budget) andGovernment commitments to: raise performance in the BuildingRegulations during 2005 (ahead of theimplementation date for the EU directiveon energy performance of buildings– on which, see below); support and work proactively to speeddelivery of a number of new EU energyefficiency and labelling laws, includingthe proposal for a directive on the ecodesignof end use equipment; setting up a working group withenergy regulator, OFGEM, to explorehow to create effective markets forenergy services (where the servicedelivered is, for example, warmthrather than units of electricity); maintaining existing national targetsfor chp, but introducing chp targets forthe Government Estate and, throughthe introduction of a project route,further enabling chp to participate inemissions trading.Renewable energyThe Government acknowledges thatdespite the UK having vast potential,growth in renewables in the UK has beeninadequate so far. The White Paper sets the‘ambition’, rather than the firm targetrecommended by its Policy Innovation Unit,of generating 20% of electricity fromrenewable sources by 2020. TheGovernment is committing to strengthenrenewables policy, with measures including: an additional £60m in capital grantsover the period 2002-2006; reviewing progress under theRenewables Obligation in 2005/6 andthen elaborating Government strategyto 2020 (which, presumably, meanssetting targets to 2020); amending the regulatory framework tofacilitate connection to the distributionnetwork of an increasing number ofsmall renewable and combined heatand power (chp) generators; addressing planning obstacles torenewables projects, to include revisingplanning guidance on renewables (tobe published shortly) and working withthe Ministry of Defence improvecommunication of their objections towind farm proposals; urging regional and local government(those that have not already done so)to develop local policy to balancenational energy policy againstlocal/regional concerns, to set targetsnegotiated between local and nationalgovernment and to develop detailedaction plans on renewable energy andenergy efficiency.Energy market and theenvironmentThe Government acknowledges thatcurrent market structures and regulationimpact on the environment and, whilstfirmly wedded to the current marketsystem, the Government is committing to: set up with the DTI, the Department ofEnvironment Food and Rural Affairs(DEFRA) and OFGEM a joint workinggroup to consider and report on relevantenvironment issues; revise the statutory guidance to OFGEMon social and environmental issues inthe light of the commitments andobjectives in the White Paper to makethe guidance more specific; introduce a statutory requirement forOFGEM to undertake an environmentalimpact assessment of all significant newpolicies (bringing it into line with othermarket regulators).NuclearSince the Government feels that currenteconomics make nuclear power unattractiveand complex nuclear waste issuesremain unresolved, it proposes no newnuclear build for the next five years.Beyond that, it proposes to keep thenuclear option open and to considerwhether nuclear is needed to achieveclimate change objectives. Subsequentpublication of details concerning theamount of radioactive waste producedby UK nuclear reactors is, however,5Environment Law BulletinApril 2003

likely to fuel concern about the sustainabilityof nuclear power.Emissions trading andenergy taxationDespite the conflicts with the UK emissionstrading scheme that it will now have toresolve, the Government supports the EUwideemissions trading proposal. It alsosupports further harmonisation andfocussing of energy taxation policy to internaliseenvironmental costs and commentssuggest an acceptance that the UK’s climatechange levy should be reviewed.PartnershipsA Sustainable Energy Policy Network ofthose department units involved in deliveringthe White Paper’s commitments willbe set up – to include the DTI, DEFRA, theDepartment for Transport, the Foreign andCommonwealth Office, the Treasury, theOffice of the Deputy Prime Minister, theScottish and Welsh Offices and devolvedadministrations, OFGEM and theEnvironment Agency.“The Directive requires that consideration is given toalternative energy systems…”TransportThe White Paper adds little in relation totransport. The Government is sticking tothe principles of its recent policy paper,Powering Future Vehicles, and deferringpolicy decisions on aircraft emissions untilpublication of its Air Transport White Paper.However, a hydrogen fuel cell technologyagency, Fuel Cell UK, is to be set up andthere are indications that there may beadditional support for biofuels and hybridfuel-electric vehicles.WasteOn waste, the Government is deferring anypolicy decisions until it publishes itsresponse to the review of its Strategy Unit(formerly Policy Innovation Unit), “WasteNot Want Not”, into delivery of the WasteStrategy 2000.EU Directive on the energyperformance of buildingsBut is this Government’s strategy ahead ofor merely following thinking in Brussels? Intruth, the answer is probably that it is both,to an extent. Energy efficiency nowfeatures prominently in the Government’sthinking although it has been the subject ofCommission activity over a number of yearsand is central to the Directive on the energyperformance of buildings adopted at theend of last year and to a further directiveproposal due this Summer. Buildings, notcounting industrial buildings, are estimatedto account for approximately 40% of allenergy consumed across the EU and,directly and indirectly, a substantial proportionof greenhouse gas emissions.Consequently, improving the energyperformance of buildings can make asignificant contribution to climate changegoals. The recently published EU Directiveon the Energy Performance of Buildings willintroduce new obligations affecting newbuildings, renovations and virtually allexisting buildings. Implementation of theDirective will drive energy performancestandards upwards, particularly in the UK.Minimum standardsUnder the Directive, the Government willhave to set energy performance standardsdifferentiating between different categoriesof building type and virtually all new buildingswill have to comply with the newstandards. The Directive also requires virtuallyall existing buildings to be upgraded tomeet applicable standards, ‘in so far astechnically, functionally and economicallyfeasible’, if the useful floor area of thebuilding exceeds 1000m 2 and a ‘majorrenovation’ of the building is planned. Theobligation to upgrade existing buildingscould either require the energy performanceof the whole building to be upgradedor, in certain circumstances, simply that ofthe renovated system or component.Certain categories of building may beexcluded from the requirement to complywith these energy performance requirements,including places of worship and architecturallyor historically important buildings.Environment Law BulletinApril 20036

Alternative energy sourcesThe Directive requires that consideration isgiven to alternative energy systems, such as: renewable energy technologies (forexample, solar electric roof tiles or wallcladding); combined heat and power plant (boilersthat generate both heat and electricity); district or block heating and/or coolingschemes (a central source providingheating and/or cooling to a number ofbuilding or occupational units); and heat pumps (for example, pumpsextracting heat from the ground orresidual heat from used air or water).Where a new building is to have a usefulfloor area of more than 1000m 2 , the ‘technical,environmental and economicfeasibility’ of incorporating such alternativeenergy systems will have to be consideredand taken into account before the constructionof the building starts. Buildingscurrently in the pipeline, where constructionis not due to start until after January 2006,will have to comply with this obligation.In the England and Wales, much can bedone to implement this requirement byamendment of the Building Regulations.Some of the systems, however, will requireconsideration that falls outside the currentscope of the Building Regulations andwhich may require consideration under theplanning system. A consultation draft revisionof the planning policy guidance noteon renewable energy (PPG22) is due shortlyalthough the alternative energy systemsrequirement of the Directive may requireseparate regulations or incorporation intogeneral development orders to ensureappropriate consideration is given in alldevelopments required under the Directive.The Government promises, in its EnergyWhite Paper, to urge regional developmentbodies and local authorities to developrenewable energy and energy efficiencystrategies and targets. In sum, the alternativeenergy systems obligation could meanhaving to justify to the planning authorityany decision not to include such measuresin a building’s design and, if the feasibilityof such measures is not considered in thedecision to grant a building planningpermission, the permission itself may beopen to challenge by judicial review.Energy certificatesIn England and Wales, energy performancecertificates are already required under theBuilding Regulations in respect of newbuildings. The Directive extends the certificationconcept to the regular energycertification of virtually all new and allexisting buildings. Only limited categoriesof buildings (as mentioned above) may beexcluded from this requirement.A valid certificate of energy performancewill have to be shown to the owner by thedeveloper on construction of any newbuilding, and by the owner to any prospectivepurchaser or tenant on the construction, saleor letting of any new or existing building. Thecertificate will have to be no more than 10years old, although wary purchasers andtenants are likely to ask for certificates thatare not just technically valid but also recent.A certificate will include an assessment ofa building’s energy performance and acomparison with the performance of anequivalent new building or similar benchmark.Each certificate will also include anyrecommendations for cost-effective measuresto improve the building’s energy performance.Whilst these recommendations are notintended to be binding, they are likely to leadto a de facto obligation to implement therecommendations in at least two scenarios: where a prospective purchaser or tenantwith a strong negotiating position isable to demand that recommendedenergy performance improvements arecarried out to bring the building closerinto line with then current legal standardsor industry benchmarks; and where major renovation is undertakenof a building with a useful floor areaover 1000m 2 , it will be difficult to arguethat the upgrading requirement doesnot include recommendations on thecertificate which effectively amount toan expert assessment that the specifiedmeasures are technically, functionallyand economically feasible.As a result of mandatory energy performancedisclosure in virtually every property transaction,energy performance is likely to gain amuch higher priority than it currently enjoys.“The Directive extends the certification concept to theregular energy certification of virtually all new andall existing buildings.”All other factors being equal, prospectivepurchasers and tenants are likely to choosebuildings with good energy performance overthose with poor performance. Alternatively,faced with buildings that do not matchcurrent benchmarks and that may requireupgrading if any renovation work is undertaken,they are more likely to use poor energyperformance as a bargaining chip to negotiatepurchase prices and rents downwards. Inthe UK, in conjunction with sweeteners thatalready exist for the property industry in theform of tax incentives, capital grants and thepossibility of generating ‘credits’ to sell intothe UK emissions trading scheme, the overalleffect of the Directive should be positive.Interestingly, in its Energy White Paper,the UK Government commits to raising thebuilding energy performance requirementsof the Building Regulations 2000 during thecourse of 2005. Meanwhile, the UK isbound to implement the Directive by 4 thJanuary 2006, and for England and Walesthis will require amendment of the BuildingRegulations. Therefore, it will be interestingto see if the Government’s policy commitmentwill result in energy performancestandards being set that are comparablewith those of our northern European neighboursand whether any other measures willbe introduced that go beyond the requirementsof the Directive.Tom Bainbridge - Senior Assistant SolicitorEnvironment Law GroupCMS Cameron McKenna7Environment Law BulletinApril 2003

JENNY MCKENZIEjenny.mckenzie@cmck.comNew Water Bill setto reform waterabstraction licensingMore than two years after a draft was circulatedfor consultation, the Government’slong-awaited Water Bill has finally reachedthe Houses of Parliament. The Bill, whichhad its first reading in the House of Lordson 19 February 2003, proposes significantchanges to the system regulating groundand surface water abstractions.Controversially, this includes removing theright to compensation in some circumstanceswhere existing abstraction licencesare varied or revoked in order to protect theenvironment. Other important changesinclude a new right for someone who hassuffered loss or damage as a result of the“These changes will affect anyone who abstracts waterin England and Wales, including water companies, foodand drink manufacturers using private water sourcesand industrial and agricultural water abstractors.”abstraction of water to bring a civil claimagainst the abstractor, even where thatabstraction is made under and in accordancewith an abstraction licence.These changes will affect anyone whoabstracts water in England and Wales,including water companies, food and drinkmanufacturers using private water sources andindustrial and agricultural water abstractors.The Bill also makes a number of regulatorychanges in relation to the waterindustry, replacing the Director General ofWater Services and the Customer ServicesCommittee with a new Board and an independentConsumer Council for Water, aswell as making provisions to extend competitionin relation to the supply of water.Part III of the Bill contains a range ofmiscellaneous amending provisions in relationto water, addressing matters as diverseas the transfer of discharge consents, theadoption of sewers, the system of local andregional flood defence committees andstatutory powers for the Coal Authority inrelation to water pollution from coal mines.One such amendment – small in size butpotentially significant in its impact – is thelong promised addition (for England andWales, but not Scotland) of a “significance”threshold to the water pollutionlimb of the contaminated land regimeunder Part IIA of the EnvironmentalProtection Act 1990.A summary of some of the key changesto the abstraction licensing system is setout below.Key changes to abstractionlicensing in the Water BillPart I of the Water Bill sets out widerangingchanges to the regulation of waterabstraction and impounding in England andWales. One of the driving forces behindthese changes has been the need to tacklethe problem of abstraction licences grantedin the 1960s without sufficient appreciationof their environmental impact and withouttime limits. Another is to provide powers toaddress the proliferation of statutoryexemptions from abstraction licensing thathave grown up over the years.Although consultations on the reformof the abstraction licensing system haveproceeded in advance and independently ofconsultations on the implementation of theEU Water Framework Directive, which hasto be transposed into national legislation bythe end of this year, the good news forEnvironment Law BulletinApril 20038

“The time limit for full and transfer licences is notprescribed in the Water Bill, but the EnvironmentAgency has indicated that the period will generally betwelve years.”water abstractors is that the Governmentconsiders that the Water Bill amendmentswill be “largely sufficient” to bring Englandand Wales into line with the WaterFramework Directive in this respect. TheWater Framework Directive requires“controls over the abstraction of freshsurface water and groundwater, andimpoundment of fresh surface water,including a register or registers of waterabstractions and the requirement of priorauthorisation for abstraction and impoundment”(Article 11(3)(e)). One area ofpotential difference, however, that theGovernment is currently considering iswhether the Water Framework Directiverequires abstraction and impoundmentcontrols to extend to certain self-containedlakes and reservoirs – which are currentlyexcluded from the key “source of supply”definition in the Water Resources Act 1991(“WRA 1991”).The abstraction provisions of the WaterBill have been designed in part as substantialamendments to the existing provisionsin Chapter II of the WRA 1991 and in partas stand-alone provisions (at times, thelogic behind this division is unclear, and itcertainly does not make for an easily readablebill). Although there is, of course, thepotential for these provisions to beamended as they pass through the Houseof Lords and House of Commons, some ofthe key changes proposed by theGovernment are set out below.New licencesAll new abstraction licences will be classifiedas one of three types: a temporary licence, covering abstractionover a period of less than 28 days;a transfer licence, applying to theabstraction of water from one source inorder to transfer it to another withoutintervening use over a period of 28days or more; or a full licence, which will apply to theabstraction of water from one source ofsupply over a period of 28 days or morefor any purpose.Every licence will have to state the purposesfor which the water is to be used and thedate on which the licence expires. The timelimit for full and transfer licences is notprescribed in the Water Bill, but theEnvironment Agency has indicated that theperiod will generally be twelve years. This hascaused some concern amongst water undertakersand those investing in water-relatedinfrastructure, such as hydropower operators.In response, the Government has said that insuch cases it may be possible to make thecase for the grant of a longer licence.Full licences will (and transfer licencesmay) also specify a “minimum value” forthe quantity of water to be abstracted. Thisis not a minimum amount that must beabstracted but rather the smallest quantityto which the licence holder can berestricted in certain circumstances withoutthe Environment Agency being required topay compensation (as discussed furtherbelow). This therefore has the potential tobe a very significant figure.Thresholds andexemptionsThe Water Bill increases the threshold forexemption from abstraction licensing from5m 3 to 20m 3 per day. There are around48,000 abstraction licences at present andthis move is expected to remove some20,000 of those abstractions from therequirement to be licensed. At the sametime, the Bill also provides powers torevoke existing statutory exemptions fromabstraction licensing, such those relating toparticular areas and made under local orprivate acts. From discussions with DEFRA,it appears that the intention is to revokesuch statutory exemptions over a numberof years after the Water Bill comes intoforce, with the ultimate intention ofremoving all current statutory exemptions.The 20m 3 exemption will itself be subjectto powers enabling the Secretary of State toraise or lower it in relation to a specificgeographical area and/or class of inlandwater or underground strata. It is likely thatthe policy behind this provision is, in part atleast, driven by the need for greater flexibilityin order to comply with the outcome–basedapproach of the Water Framework Directive.Unlike the Water Bill, the Water FrameworkDirective does not provide for an absoluteminimum threshold but instead provides thatMember States can exempt abstractions orimpoundments “which have no significantimpact on water status”.Protected rightsOne of the ramifications of the creation ofthe three types of abstraction licence isthat only the full licence will have thebenefit of existing provisions providingprotection against the Environment Agencygranting new licences that derogate froman existing licence holder’s rights. However,the Water Bill preserves the existing situationunder which certain unlicensedabstractions are also treated as“protected rights” (broadly, wheregroundwater is abstracted by an indi-9Environment Law BulletinApril 2003

vidual for domestic purposes orwhere inland waters areabstracted for use on neighbouringland for domestic oragricultural purposes and, in eithercase, the quantity of water does notexceed the 20m3 daily limit). Oneaddition to this system, though, isthat the Water Bill provides for theSecretary of State to make regulationsrequiring the Environment Agency to setup registers of unlicensed protectedrights in particular geographical areas.Where such a register is established, it willbe necessary for the holder of an unlicensedprotected right to register it inorder for it to maintain its protected status.Revocation, variation andcompensationOne of the most contentious elements ofthe reform of the abstraction licensingsystem has been the proposal that abstractionlicences should be able to be varied orrevoked without compensation in somecircumstances. Under the current system,there are procedures by which theEnvironment Agency or Secretary of Statemay cause a licence to be revoked oronwards for the licence to be revoked orvaried without compensation on thegrounds that the Secretary of State is satisfiedthat this is “necessary in order toprotect any waters or underground strata,or any flora or fauna dependent on them,from serious damage”.This last provision does not apply to“new” licences granted under the WaterBill, which will all be time limited in anyevent. However, such licences are subjectinstead to new provisions enabling thequantity of water that they permit to beabstracted to be reduced to a “minimumvalue” specified in the licence withoutcompensation being payable. This canonly be done if a minimum of twelveyears has passed since the grant of thelicence and the Secretary of State is satisfiedthat the variation is “necessary inorder to protect the availability of waterin the source of supply to which thelicence relates”.Civil liabilitySection 48 of the WRA 1991 currentlyprovides that it is a defence to any legalaction (other than an action for negligenceor breach of contract) in respect ofEnforcement noticesIt is proposed to insert a new provision intothe WRA 1991 giving the EnvironmentAgency the power to serve an enforcementnotice on anyone abstracting water withoutan abstraction licence (and without thebenefit of a relevant exemption);constructing, installing or extending anymeans (such as a borehole or machinery) bywhich groundwater may be abstractedother than in accordance with a licence; orotherwise failing to comply with an abstractionlicence. In addition to having powers toorder the relevant breach to cease, theEnvironment Agency will also be able torequire restorative works to waters and floraand fauna to be carried out. However, thereis a high threshold to be reached beforethese powers are exercisable, namely that itmust appear to the Environment Agencythat “the breach or failure to comply iscausing or is likely to cause significantdamage to the environment”.This article first appeared as a LawNowemail on 5 th March 2003.Jenny McKenzie - Assistant SolicitorEnvironment Law GroupCMS Cameron McKenna“…such licences are subject instead to new provisionsenabling the quantity of water that they permit to beabstracted to be reduced to a “minimum value” specifiedin the licence without compensation being payable.”varied, with corresponding provisionsenabling the licence holder to claimcompensation if this causes them certaintypes of loss or damage. There are anumber of limitations on this right tocompensation, including that no compensationis payable if no water has beenabstracted under the licence in question forthe past seven years. Under the Water Bill,this period is to be reduced to four years. Inaddition, in respect of an “old” licence(that is one granted before the Water Billcomes into effect) which has no time limit,it will be possible from 15 July 2012the abstraction of water to show that thewater was abstracted under and in accordancewith an abstraction licence. TheWater Bill proposes to amend this byinserting a new duty on “a person whoabstracts water from any inland waters orunderground strata” not to cause loss ordamage to another person by thatabstraction, and a corresponding right fora person who suffers such loss ordamage to bring a claim against theabstractor – to which the licence defencewill not apply.Environment Law BulletinApril 200310

SECTION 1Liability inenvironment law“It would requireMember States to ensureproportionate criminalpenalties for thesecrimes, including in someplaces imprisonmentand extradition.”European UnionEnvironmental crimeAn amended proposal for a Directive on theProtection of the environment throughcriminal law has been published in theOfficial Journal. Being similar in scope tothe Council’s proposal (see below) it wouldmandate criminal prosecution for a numberof environment offences irrespective ofwhether they were committed intentionally,through negligence or if there wascomplicity. It would also cover pollutionattributed to a legal person or an individualand would oblige Member States to ensurethat that ‘effective, dissuasive and proportionate’penalties were in place. Sanctionsother than criminal prosecution could beused as long as they were proportionateand dissuasive. The Commission hasrequested that the European Court ofJustice (ECJ) rules on the Council’s Decision,arguing that offences against EU environmentallaws must be made criminaloffences through the same process i.e.involving the Commission and Parliament,that decided those laws. The Council claimsthat the provisions are inter-governmentmatters and that it has the right to proposelegislation in justice and home affairs. If theECJ rules that environment crime is acommunity matter then the Council willhave to produce a common position on thisproposal. However, if it rules that it is aninter government matter then the Council’sproposal will be binding.(OJ C 20 E, 28 January 2003)The Council of Ministers’ frameworkDecision on protecting the environmentthrough criminal law seeks to obligeMember States to establish the following ascriminal offences when committed intentionallyor as a result of negligence:discharging, omitting or introducing aquantity of substances or ionising radiationinto air, soil or water; unlawfully disposingof, storing or transporting waste; unlawfullyoperating a plant at which dangerousactivities are carried out; unlawful manufacture,treating, storing or transportingnuclear material; damaging protectedwildlife; and creating ozone depletingsubstances. It would require Member Statesto ensure proportionate criminal penaltiesfor these crimes, including in some placesimprisonment and extradition. Other penaltiesincluding disqualification of companyDirectors could also be introduced.Although Member States have two years toimplement the law, the Commission ischallenging the move as it has proposed aDirective on the same issues (see above).(OJ L 29, 5 February 2003)11Environment Law BulletinApril 2003

SECTION 2Air pollution andintegrated pollutioncontrolUnited KingdomLAPCGuidance aimed at aiding local authoritiesin combating air pollution has beenreleased by DEFRA. It gives advice on a riskbasedregulatory approach to Local AirPollution Control (LAPC) for industrialinstallations. The new guidance, which isintended to be used from 1 April 2003,should enable local authorities to identifythe processes and resources needed toenforce this regime. It is similar to theOperator and Pollution Risk Appraisal(OPRA) used by the EA but adapted to theLAPC regime. It also includes advice on the“The amendment would make local authorities, ratherthan the EA, the regulator for some activities…”level of inspections necessary for installationsplaced in three categories – high,medium and low. The guidance follows twoconsultations in November 2000 and May2002 on the introduction of risk basedregulation for LAPC.(DEFRA, February 2003)Local air quality managementUnder the Environment Act 1995, localauthorities have a statutory duty for LocalAir Quality Management (LAQM) whichinvolves regularly reviewing and assessingair quality in their area against standardslaid down in the National Air QualityStrategy. Most of the standards areprescribed in Regulations. Where standardsare unlikely to be met, local authoritiesmust designate Air Quality ManagementAreas (AQMAs) and prepare and implementaction plans to address the problem.Revised guidance has now been issued onpolicy and technical issues to aid localauthorities with their duties in the nextround of reviews and assessments whichwas due to start in early 2003.(DEFRA, February 2003)An addendum to the Air Quality Strategy2000 has been published by theGovernment. The original strategy set airquality standards and objectives for eightair pollutants to be achieved between 2003and 2008. The addendum introduces amore stringent objective for particles,benzene and carbon monoxide and a newobjective for polycyclic aromatic hydrocarbons(PAHs).(DEFRA, February 2003)PPCDEFRA has consulted on proposals toamend the PPC (England and Wales)Regulations 2000 (SI 2000 No 1973). Theamendment would make local authorities,rather than the EA, the regulator for someactivities currently included under PartA(1). Nearly all the proposed activities arealready subject to local authority regulationunder the EPA 1990. As such it is thoughtthat the resulting continuity is likely toimprove the efficiency of regulation andthe IPPC permit application process. Theprocesses affected are mainly surface treatmentoperations of metals and plasticmaterial, in installations where a Part A(2)or Part B activity is also carried out.Guidance to local authorities on the regulationof the affected activities would bedrafted by the EA’s local authority unit, inthe same way as guidance for other PartA(2) activities. The closing date forcomments was 17 March 2003.(DEFRA, February 2003)Environment Law BulletinApril 200312

“…it states that the UK is still likely to achieve its Kyototarget of reducing total greenhouse gas emissions by12.5% from 1990 levels over the period 2008 - 2112,although beyond 2010 a radical shift is needed to obtaina low carbon economy.”DEFRA has issued a consultation paper onthe Best Available Technique (BAT) forminimising pollution from the glass, ferrousfoundry and particle board sectors. Therelevant sectors fall under A(2) installationsof the IPPC Regulations, regulated by localauthorities. DEFRA intends to issue statutoryguidance on what constitutes BAT foreach of the main sectors regulated. Thelatest consultation is intended to allowstakeholders, and a wider audience to havea final opportunity to comment on the firstthree such guidance notes before they areformerly issued. Any comments shouldreach DEFRA before 16 April 2003.(DEFRA, February 2003)Clean Air ActThe Smoke Control (Authorised Fuels)(England) Regulations 2001 (SI 2001 No3745) have been amended. After cominginto force on 6 January 2003, the SmokeControl Areas (Authorised Fuels) (England)(Amendment Regulations) 2002 (SI 2002No 3046) add Dragonglow briquettes andDragonbrite briquettes to the list of authorisedfuels. Under the Clean Air Act 1993, itis a defence to show that where smoke isemitted from a chimney in a smoke controlarea, it was caused solely by the use of anauthorised fuel.(SO, 11 December 2002)Greenhouse gasesThe Sustainable Development Commission(SDC), the Government’s independentsustainable development advisor, haswarned that the Climate ChangeProgramme is likely to fail in obtaining theGovernment’s goal for reducing emissionsof carbon dioxide emissions by 20% from1990 levels by 2010, unless further measuresare taken. The SDC say that emissionsreductions from the ten-year transport planare particularly at risk and draws attentionto the negative impact on greenhouse gasemissions from international air travel.However, it states that the UK is still likelyto achieve its Kyoto target of reducing totalgreenhouse gas emissions by 12.5% from1990 levels over the period 2008 - 2112,although beyond 2010 a radical shift isneeded to obtain a low carbon economy.(SDC, 12 February 2003)Climate changeA research report funded by the EuropeanCommission, entitled ‘Back to the DrawingBoard’, has examined the implications of theproposed EU Emissions Trading Directive forUK climate policy. The findings of the reportsuggest that the Directive will have a majoreffect on UK policy which has yet to beappreciated by government and industry. Itconcludes that major changes will be requiredto the Climate Change Levy and the ClimateChange Agreements. Furthermore, it says thatimplementation of the Directive could spellthe end of the UK Emissions Trading Scheme.Problems are also likely for the renewablesobligation, the energy efficiency commitmentand implementation of the IPPC Directive.Potential problems are likely to include doubleregulation, double crediting, opting out of theEU Directive on the basis of equivalentnational regulations and linking whereattempts are made to trade commoditiesbetween different trading schemes.(University of Sussex, January 2003)Emissions tradingThe consultancy Enviros has published a studyon the first year of the UK Emissions TradingScheme. The conclusions of the report werethat the scheme had helped companies gainexperience of emissions trading and hadestablished a UK based emissions tradingsupport industry. However, the report alsoexpressed doubts about the effectiveness ofthe scheme. It said that compulsory enforcementwould provide for a more effectivesystem than voluntary participation and thatpriority should be given to training andeducation to ensure that environmentalmarkets function efficiently. The study foundthat over 150 trades, representing around 1million tonnes of CO2 emissions, had beenrecorded and that the most important factorin determining a firm’s decision to participatewas the prospect of financial gain madeavailable through the auction. Furthermore,it said that the experience gained places UKbusiness in a favourable position to takeadvantage of European and global emissionstrading mechanism.(Enviros, March 2003)Climate Change LevyThe Climate Change Levy (General)(Amendment) Regulations 2003 (SI 2003 No604) came into force on 1 April 2003. TheRegulations amend the Climate Change Levy(General) Regulations 2001 (SI 2001 No 838)by inserting new provisions with regard torenewable energy sources. Although biomassis prescribed as a renewable source, peat isexcluded. The certification process for renewablesources has also been changed, withaccurate figures for electricity production nowhaving to be finalised no later than twomonths after the month of production. Inaddition, the levy exemption certificates are tobe regarded as only relating to a given batchof electricity. There are also new provisionsrelating to CHP with regard to certificationrequirements, record keeping and reconciliationrequirements, and penalties.(SO, 11 March 2003)13Environment Law BulletinApril 2003

The Climate Change Levy (Use as a Fuel)(Amendment) Regulations 2003 (SI 2003 No665), which came into force on 12 March2003, have introduced new climate levyexemptions for non-fuel uses. The newexemptions are in addition to those alreadycontained in the Climate Change Levy (Useas Fuel) Regulations 2001 (SI 2001 No1138). Although the new Regulations didnot come into force until 12 March 2003,Customs & Excise will treat those furthernon-fuel uses as if they were already specifiedunder the non-fuel use exemption from29 January 2003. A further seven uses oftaxable commodities as uses other than as afuel are specified. Customs & Excise are nowinviting applications reclaiming levy alreadypaid in respect of the new exemptions.European UnionEmissions trading(SO, 11 March 2003)The first ever trade of carbon dioxide emissionsallocated under the proposed EUEmissions Trading Scheme has taken place. Adraft Directive on emissions trading iscurrently working its way through the EUlegislative system which will allow companiesto meet restrictions in their carbon dioxideemissions by purchasing allowances resultingfrom a reduction in emissions by other“The first ever trade of carbon dioxide emissionsallocated under the proposed EU Emissions TradingScheme has taken place.”companies. Under the Trading Agreement,Shell will sell a significant volume of its firstcompliance year EU allowances, due to beallocated when the Directive comes intoforce, to Nuon. However, if the Directivedoes not proceed as currently drafted, theterms of the trade can be renegotiated.(Shell Press Release, 27 February 2003)Greenhouse gasesTrends in the emission of greenhouse gasesfrom a variety of industrial sectors in EU andcandidate countries have been published in areport by the European Environment Agency(EEA). The report covers the period from1990 to 2000 and assesses progress towardsachieving targets set under the KyotoProtocol. It was concluded that in 2000,Finland, France, Germany, Luxembourg,Sweden and the UK were on track towardsfulfilling their Kyoto targets. However, theother nine Member States were all wellabove their Kyoto targets. The report alsocovers in detail sectoral greenhouse gastrends including energy industries, transport,small combustion (including households),manufacturing industries and construction,agriculture and mineral products.(EEA, February 2003)The European Commission has issued aproposal for a Decision for a monitoringmechanism of greenhouse gas emissionsand the implementation of the KyotoProtocol. It is aimed at strengthening theexisting EU system for monitoring greenhousegas emissions which should fulfil itsobligations under the Kyoto Protocol. Aswell as monitoring emissions, Kyoto flexiblemechanisms i.e. emissions trading, theClean Development Mechanism (CDM) andJoint Implementation (JI) will also becovered. The proposed measures shouldalso provide a more effective system tocheck emissions trends and forecasts. Itwould replace the existing Council Decision93/389/EC and also provide greater transparencyon the methods used to collect theemissions data.(COM (2003) 51, 5 February 2003)Vehicle air conditioningEnvironment Commissioner MargotWallström has indicated that the EuropeanCommission is considering measures tomitigate the emission of greenhouse gasesfrom air conditioning units in cars. It is estimatedthat these appliances areresponsible for producing more than 10%of the sector’s greenhouse gas emissions.There are two concerns about these units.Firstly, power used to operate the unitsincreases emissions of carbon dioxide, andsecondly the refrigerant gas HFC134a, apotent greenhouse gas, is emitted duringtheir use. At present voluntary agreementswith vehicle manufacturers only includeemissions from the engine. Possible measuresinclude the use of alternativeEnvironment Law BulletinApril 200314

efrigerants with less potent greenhousegas effects or to include the units in awider regulation of these gases in aproposal due in Autumn 2003.(European Commission, Press Release, 10 February2003)A consultation paper issued by theEuropean Commission is seeking views onmeasures to alleviate the emissions ofgreenhouse gases from the use of mobileair conditioners. It states that containmentof HFC134a is possible but would likely tobe the most expensive measure. As substitutesare available, its phase-out seems tobe most cost effective measure, althoughthe most appropriate substitute has yet tobe identified. It is proposed to lay down aflexible approach to allow manufacturersand suppliers to select the most appropriateoption. The Commission is also calling fortest procedures to be defined as a prerequisitefor monitoring and future policydevelopment to tackle the additional fuelconsumption brought about by the use ofair conditioning in vehicles. All commentswere requested by 11 March 2003.(European Commission, 4 February 2003)Air pollutionAir emission trends across Europe for theperiod 1990 to 1999 have been presented ina report by the EEA. The report covers atmosphericpollution including acidification andeutrophication, and particulate matter. Trendsare shown for 18 EEA countries and 10 accessioncountries, with emissions also brokendown in terms of economic sector includingenergy, industry, transport and agriculture. Theresults show that emissions of acidifying gases(SO2, NOx and NH3) have decreased significantlyin most EU Member States. Emissionsdecreased by 38% between 1990 and 1999in the EU as a whole. Total ozone precursoremissions have been reduced across the EU by27% between 1990 and 1999, with roadtransport and industry contributing most tothis reduction. Total emissions of fine particlesalso have been reduced in this period, acrossthe EU by 34%. This is mainly due to a reductionin the emissions of secondary particulateprecursors SO2 and NOX but also to reductionsof PM10 from energy industries.(EEA, January 2003)SolventsA limit on the solvent content in paints,varnishes and vehicle coatings, designed toreduce the content of volatile organiccompounds (VOCs), has been presented bythe European Commission. VOCs are directlyresponsible for ground level ozone or smog,a chronic problem in the EU, which canresult in a range of symptoms such as eyeirritation and repertory problems, as well asaffecting the growth of plants. With theexception of vehicle finishing products, theproposals include a two-phase approach.The first phase will apply from 1 January“Total ozone precursor emissions have been reducedacross the EU by 27% between 1990 and 1999, withroad transport and industry contributing most tothis reduction.”2007 when limit values for decorative paintsrange from 50g/l for water-borne primers to750g/l for some special solvent-borneprimers. In phase 2, which will apply from 1January 2010, limit values will be furtherlowered significantly for most categories.The proposals will amend the Directive onthe limitation of emissions of VOCs due tothe use of organic solvents in certain activitiesand installations (1999/13/EC).(COM (02) 750, 23 December 2002)Non-road machineryA Directive amending Directive 97/68/ECrelating to measures against the emission ofgaseous and particulate pollutants frominternal combustion engines in non-roadmobile machinery (2002/88/EC) has nowbeen published in the Official Journal.Member States must transpose the Directiveby 11 August 2004 when the first in aseries of emissions limits will take effect. Itsets limits for carbon monoxide, hydrocarbons,nitrogen oxides and particulates forseven different engines for both handheldand non-handheld machines. It specificallyexempts chainsaws, hedge trimmers, powercutters and portable drills. Producers areallowed to use labelling to indicate thatequipment meets prescribed limit values.(OJ L 35, 11 February 2003)15Environment Law BulletinApril 2003

Large combustion plantGuidance on the implementation of aDirective on the limitation of emissions ofpollutants from large combustion plant(2001/80/EC) has been issued by theEuropean Commission. The Directiverequired significant emission reductions tobe made from existing plant by 1 January2008 by one of two compliance options.These were either compliance with theemission limit values under which allexisting plant were required to comply withthe limits outlined in the Annexes to theDirective, or Option 2 which involved implementationof a national emissions reductionplan. The new guidance relates to the latteroption and is aimed at assisting MemberStates to prepare such a plan. It is thoughtthat several Member States will use thisoption as it allows some existing plantexceeding the limits to continue operatingproviding reductions are made at otherplant. This option would also allow coalfiredplant to be maintained for longerwhich might be particularly attractive giventhe current rise in the price of gas.(C (2003) 9, 15 January 2003)“Member States are also able to introduce morestringent limits to protect public health in residentialareas or where there is at risk of water pollution.”Vehicle fuelA Directive relating to the quality of petroland diesel fuels (2003/17/EC) has beenpublished in the Official Journal. Asrequired by a previous Directive on thequality of petrol and diesel fuels (98/70/EC)it requires a compulsory 10 ppm sulphurlimit for all petrol, unleaded petrol anddiesel fuels sold by 2009, referred to as‘sulphur free’, and for this fuel to be widelyavailable in Member States by 2005. It alsointroduces a fuel quality monitoring systemand a system of penalties and fines wherenational provisions are breached. MemberStates are also able to introduce more stringentlimits to protect public health inresidential areas or where there is at risk ofwater pollution.(OJ L 76, 22 March 2003)InternationalClimate changeThe Carbon Disclosure Project (CDP), acollaboration of 35 major institutionalinvestors, has conducted a survey of theChairmen of the 500 largest global companiesto assess exposure to climate change.It took into account both the impacts ofextreme weather events as well as regulationof greenhouse gas emissions. With 221companies replying to the questionnaire,the survey found that 80% of respondentsacknowledged the importance of climatechange as a financial risk. However, only35% – 40% had actually taken action tocombat the risks or to capitalise on opportunities.The CDP is predicting thatalthough the financial consequences ofclimate change are likely to expand greatlyin the future, little information is beingcommunicated to investors. It also notedthat those companies who were quick toreduce emissions stood to gain a competitiveadvantage. The report concludes thatthe financial impact of climate change willaffect most companies including financialservices, transportation, telecommunicationsand electronic equipment sectors aswell as those emissions-intensive sectors.(CDP, February 2003)The EU and US have concluded a jointmeeting on climate change science andtechnology research aimed at enhancingco-operation. Six areas were identified forco-operative activity: carbon cycle research;aerosol – climate interactions; feedbacks,water vapour and thermohaline circulation;integrated observations systems and data;carbon capture and storage; and hydrogentechnology and infrastructure. Specifictopics within each of these areas were thenidentified and it was agreed to designatepoints of contact to co-ordinate the developmentof specific research activities. It wasalso agreed to review the progress of cooperationat the next joint meeting, likelyto take place in Italy later in 2003, whenadditional topics will be considered.(US Department of State Press Statement,7 February 2003)Environment Law BulletinApril 200316

SECTION 3Water“The proposedlegislation would alsorequire more disclosureof information ondetergent labels andwould facilitate futuretechnical amendmentsof the Regulationwithout the need for alengthy implementationprocedure.”United KingdomNitratesThe Planning Inspectorate has issued guidanceon the appeal procedure againstinclusion in a designated Nitrate VulnerableZone (NVZ). ADAS has been appointed toundertake reviews under the NitrateVulnerable Zones (Additional Designations)(England) (No 2) Regulations 2002. Theguidance explains the legislative backgroundto an appeal and highlights thespecific issues which may be the subject ofan appeal. The Planning Inspectorate canonly deal with queries initiated by theowner or occupier of land in question. Theprocedure is intended for farmers whobelieve that their land has wrongly beenincluded within a NVZ due to an error inthe application of the methodology toidentify NVZs. Appeals must be sent toADAS within 28 days of the date of theADAS proposed decision and are onlyaccepted outside this time limit inexceptional circumstances.(Planning Inspectorate, February 2003)CryptospridiumAfter an outbreak Cryptospridium infectionin Edinburgh in August 2002, the ScottishExecutive has published updated guidanceon management of incidents caused by theparasite. The report makes several recommendationsrelating to operational mattersaimed at minimising the risk of future incidentsof this type. The Executive nowintends to strengthen the obligations onScottish water by a revision to theCryptospridium Direction.(Scottish Executive, 10 January 2003)DetergentsDEFRA is consulting on a EuropeanCommission proposal for a Regulation ondetergents, on which comments must reachDEFRA by 7 May 2003. The proposal for aRegulation, published in September 2002,will repeal a number of existing detergentDirectives and Recommendations andextend testing for biodegradability tosurfactants – the basic cleaning ingredientused in all detergents, some of which arecurrently excluded from testing requirements.The proposed legislation would alsorequire more disclosure of information ondetergent labels and would facilitate futuretechnical amendments of the Regulationwithout the need for a lengthy implementationprocedure. The industrial andinstitutional product sectors of the detergentsindustry would be most affected bythe additional requirement for testing andlabelling, although the new provisionswould apply to all manufacturers andsuppliers of detergent products. Theconsultation paper examines four optionsfor dealing with the proposed Regulation.These are: to do nothing; to oppose theRegulation and introduce voluntary agreements;to seek amendments to theproposed Regulation; and to accept theproposed Regulation. The costs and benefitof each option is discussed in the consultationpaper.(DEFRA, February 2003)British WaterwaysA draft regulatory reform Order laid beforeParliament is seeking to amend the statutorypowers of British Waterways. It wouldincrease its ability to supply water servicesand clarify its borrowing powers. At presentBritish Waterways has the power toabstract and sell untreated water from itswaterways to water undertakers,industry and agriculture. As reported in17Environment Law BulletinApril 2003

the January 2003 issue of the EnvironmentLaw Bulletin, British Waterways is involvedwith AWG, Bristol Water Holdings andPartnerships UK in a Public PrivatePartnership, Watergrid. Watergrid isexpected to invest £135 million over thenext ten years in developing as a nationalwater company by combining BritishWaterways network of waterways withother water resources. The RegulatoryReform Committees in the Commons andLords had 60 days from the laying of thedraft Order to issue a report to be consideredby the Inland Waterways Ministerbefore it is tabled for final scrutiny.(DEFRA, 13 January 2003)“WaterVoice…has asked the Government for anindication of the cost to customers of implementingthe Water Framework Directive (2000/60/EC).”Water Framework DirectiveWaterVoice, an independent organisationrepresenting customers of the water andsewage companies in England and Wales,has asked the Government for an indicationof the cost to customers of implementingthe Water Framework Directive(2000/60/EC). It says that it was disappointedthat DEFRA did not address theimpact on water bills in its second consultationpaper on the Directive. WaterVoice iscalling for the new Consumer Council forWater, which is likely to be set up in April2005, to be consulted by the EA when itprepares it draft river basin managementplans. It says that this would allow theimpact on water customers to be properlyconsidered before public consultation.(WaterVoice Press Release, 14 January 2003)The Select Committee on Environment,Food and Rural Affairs has published itsfourth report on the Water FrameworkDirective. It concludes that being a hugelyimportant piece of legislation, meeting itsobjectives will require much change,particularly in the water industry, agricultureand in planning. Furthermore, theCommittee says that though implementingthe Directive will require a great deal ofscientific and administrative work, thecurrent Government does not appear tohave realised the urgency of the taskahead. It believes that the Governmentshould adopt a more positive and activeapproach to implementation. The reportincorporates written and oral evidencefrom a wide range of government andnon-government bodies and variousindustry sectors including farming, waterand chemical industries.(Parliament, 19 March 2003)Water BillEnglish Nature has welcomed the Water Bill(see article by Jenny McKenzie in this issue)believing that the proposed changes toregulating abstraction will improve thebalance between supply and demand andhelp to protect wildlife sites. It estimatesthat over 350 important wildlife sites areaffected by water abstraction. EnglishNature is also calling for all abstractionlicences to be time limited by 2012; acondition in licences that a check is madeon environmental impact; improved powersfor the EA to enforce abstracting regulations;a duty on all water companies toconserve water; and for further conservationand enhancement of SSSIs.(English Nature Press Release, 20 February 2003)Water UK, which represents UK water andwastewater service suppliers, has stated thatit supports much of the Water Bill, particularlythe creation of an independent bodyrepresenting customers. However, it has alsoexpressed concern that proposed provisionsfor protecting the environment might lead toa disproportionate increase in water bills forcustomers and affect the reliability of supply.It is also concerned that the Bill could lead tothe economic regulator OFWAT losing out togovernment control in certain areas. WaterUK is calling for a balanced approachbetween the interests of society, customers,the economy and the environment.(Water UK Press Release, 20 February 2003)Pollution from shipsThe Parliament’s Public AccountsCommittee has published a report entitled‘Dealing with Pollution from Ships’. TheCommittee points out that the UK is atparticular risk from pollution caused byEnvironment Law BulletinApril 200318

ships as it relies on shipping for 95% of itsvisible trade. The report examines thepreparedness of the Maritime andCoastguard Agency, an executive agency ofthe Department for Transport responsiblefor minimising the risk of pollution fromships. The report concludes that the UK’smarine pollution record has improvedconsiderably in recent years with no majoroil or chemical spill occurring in UK waterssince 1996. However, as a major pollutionincident could occur at any time, contingencyplans should be developed andcontinually updated. It also says that theAgency should exploit new technology todetect pollution offences and to identifyand trace offenders. Such developmentsmight include satellite surveillance, betteroil spill sampling and analysis, and trackingof ship movements.European UnionPollution from ships(Parliament, January 2003)A proposal for a Directive on pollution fromships and on the introduction of sanctions,including criminal sanctions, for pollutionoffences has been adopted. It provides forpenalties such as fines, permanent or temporarybans on activities, judicial control,liquidation of assets and bans on public aidfor legal persons responsible for pollution atsea. In the most serious cases sanctions mayinclude jail sentences. The proposal also stipulatesthat it will not be possible to insureagainst sanctions, a shift from currentmaritime practices. The proposal has comeabout due to the widespread belief that theexisting civil liability regime for pollution byships does not provide sufficient financialdisincentive for ship owners and transportersof dangerous goods by sea to behave in aresponsible manner. The Commission nowbelieves that the measure will help to preventthe numerous deliberate discharges of wasteand cargo from ships at sea around Europe.The proposal will not require Member Statesto alter their basic criminal law system.(COM (2003) 92, 5 March 2003)have been published by the EnvironmentDirectorate of the European Commission.The guidance covers a wide range of areasincluding impact analysis, ecological assessmentand public participation that will ariseas a consequence of the Directive, whichmust be transposed in to national law by theend of 2003. The documents will eventuallybe supplemented by daughter Directives,some of which are likely to emerge later in2003. Additional guidance documents arealso expected in 2003, including the ecologicalassessment of rivers and lakes, theplanning process and wetlands.(European Commission, February 2003)InternationalTransboundary watersAgreement has been reached on civilliability for damage caused by industrialaccidents on transboundary waters. Theinstrument, developed by the UnitedNations Economic Commission for Europe(UNECE), will provide a legally bindinginstrument on civil liability and compensationfor damage caused by thetransboundary effect of hazardoussubstances. The protocol will give suchgroups as fisherman or downstream waterworkersa legal right to claim compensationfrom the transboundary impact of industrialaccidents. Operators of industrial installationswill be liable under the protocol fordamage and will be required to have financialsecurity in place to cover this liability.The protocol is expected to be formallyadopted at a conference in May 2003.(UNECE Press Release, 28 February 2003)Water Framework DirectiveEight guidance documents on implementingthe Water Framework Directive (2000/60/EC)19Environment Law BulletinApril 2003

SECTION 4NoiseEuropean UnionWorkplace noiseA Directive on the minimum health andsafety requirements regarding the exposureof workers to the risks arising from physicalagents (noise) (2003/10/EC) has beenpublished in the Official Journal. It is the17th Directive under a Directive introducingmeasures to encourage improvements insafety and health of workers at work(89/391/EEC). The new Directive lays downlimits for exposure to noise in the workplaceand attempts to protect workers fromrisks to health. Exposure limit values andexposure action values are set in respect ofAs a result, Parliament agreed to withdrawamendments that would have introducedin-use compliance testing and alsoaccepted the Council’s position that theCommission should first assess the possiblebenefits of such a system. The Council alsoaccepted Parliament’s requests to exemptsteam powered craft from the Directive.Member States have until 30 June 2004 totranspose the Directive into national lawwith the provisions due to be enforcedfrom 1 January 2005.(European Commission News Update, 14 March 2003)“Employers are obliged to assess, and if necessary,measure the levels of noise to which workersare exposed.”daily noise exposure levels and peak sound.Employers are obliged to assess, and ifnecessary, measure the levels of noise towhich workers are exposed. Member Statesmust transpose the Directive before 15February 2006.(OJ L 42, 15 February 2003)Recreational craftAn informal conciliation agreementbetween the European Parliament and theCouncil has been reached on a proposal fora Directive modifying Directive 94/25/ECrelating to recreational craft. The newDirective will add provisions for noise andexhaust emissions for craft with a hulllength of 2.5 to 24 metres. The Councilagreed to a parliamentary amendment thatwould allow all multiple engine installationsa 3 decibel allowance over the noise limits.Environment Law BulletinApril 200320

SECTION 5Waste“A plant will only be anincineration or co-incinerationplant if it burnswaste as defined in theWaste FrameworkDirective (75/442/EEC).”United KingdomDuty of careIn an amendment to the EnvironmentalProtection (Duty of Care) Regulations 1991(SI 1991 No 2839), English local authoritieshave been given new powers to deal withfly tipping. The Environmental Protection(Duty of Care) (England) (Amendment)Regulations 2003 (SI 2003 No 63), whichcame into force on 20 February 2003, willallow waste collection authorities identicalpowers to the EA in demanding to examinecopies of Duty of Care documentation.Such documentation, required under the1991 Regulations, include written descriptionsof waste and transfer noticesdescribing the quantity of waste, the typeof containment and names and addressesof the transferor and transferee, both ofwhich must retain copies of the documentationfor two years.(SO, 19 January 2003)IncinerationGuidance on the Waste IncinerationDirective (2000/76/EC) has been producedby DEFRA. Aimed at operators of incinerationand co-incineration plant, regulators,waste producers and waste managers, itprovides a guide to the scope and regulatoryand technical requirements of theDirective which came into force in the UKon 28 December 2002. Although it shouldbe regarded as established guidance,DEFRA says that it would welcome anycomments on experience of applying it. Aplant will only be an incineration or coincinerationplant if it burns waste asdefined in the Waste Framework Directive(75/442/EEC). This includes municipalwaste, clinical waste, hazardous waste,general waste and waste-derived fuels. TheWaste Incineration Regulations 2002 (SI2002 No 2980) apply to all existing installationsfrom 28 December 2005 andimmediately to all new incinerators.(DEFRA, February 2003)LandfillGuidance on landfill completion has beenpublished by the EA. It sets out what isrequired for surrender and completion of alandfill, the initial application for a permit andthe aftercare stages, where an application tosurrender an authorisation is made. It is applicableto both waste management licencesand PPC permits and provides details of thetechnical requirements for surrender, but notthe procedural requirements of the process.The EA can only accept an application forsurrender of a landfill authorisation when itconsiders that a landfill no longer poses apollution risk. Views are requested on anumber of issues, including the risk-basedapproach, site reports and surrender criteria,before 6 June 2003.(EA, 14 March 2003)Guidance for landfill operators applying forPPC permits has been made available bythe EA. The first tranche, which includes50 sites, has to apply by 9 June 2003. Thenew guidance, deals with the area to becovered by a PPC permit for a landfill, andexplains how to identify this area. The EA’saim is to encourage operators to includeareas no longer accepting waste in applicationsfor a permit for operational sites, asunder PPC, the whole installation has to betaken into account.(EA, March 2003)All landfill operators in England and Waleshave been informed when they have toapply for a PPC Permit after the EAannounced that it had completed its21Environment Law BulletinApril 2003

assessment of 970 conditioning planssubmitted in 2002. Operators of landfillswho plan to continue to accept hazardouswaste had already been informed that thedeadline was July 2004. Deadlines for theremaining landfill sites, which will acceptnon-hazardous and inert waste, have beenallocated to one of five tranches with deadlinesfor permit applications ranging fromMay 2004 to May 2006. Those sites closeto high priority European protected sitesunder the Birds and Habitats Directives willrequire permits first. Eight sites wereconsidered to be unable to comply with therequirements for a PPC Permit and will nowbe closed.(EA News, 24 March 2003)Waste management licencesA revision of Waste Management Paper No4 has been proposed. In a consultationpaper launched by DEFRA, comments arerequested on new draft guidance issued totake account of the transfer of the wasteregulation function from the local authoritiesin England and Wales to the EA. DEFRA saysthat it believes the new guidance will offer a“The EA intends to target the few operators whichcause concern due to their criminal record.”more modern, efficient and integratedapproach to regulation by focusing on environmentalprotection and enhancement. Theguidance sets out overall objectives andtargets for the EA as well as specific requirementsfor determining applications for wastemanagement licences together with theirsubsequent supervision and enforcement. It isproposed to implement a more proportionatesystem of regulation, which recognises thedifferences in risk posed by different wasteactivities. According to DEFRA, this shouldresult in greater flexibility for the EA indealing with technical considerations andstandards of licensing. The deadline forcomments is 6 June 2003.(DEFRA, 14 March 2003)The EA is seeking comments on a newapproach to financial provision for wastemanagement licence holders other than forlandfill sites. Currently operators are requiredto secure funding so that if they do not meettheir licence obligations, funding would beavailable for environment and public healthprotection. However, the EA is nowproposing changes to this policy. Theseinvolve allowing operators of non-landfillsthat can demonstrate that they can makefinancial provisions, an exemption fromsetting monies aside. Another suggestion isthat the way in which the amount of provisionis calculated should be streamlined. Anychanges would be implemented from 1 June2003. Non-landfills include all waste sites,other than landfills subject to licensing andinclude transfer stations, treatment plant,civic amenity sites, recycling facilities andmobile plant. Views of stakeholders aresought on specific issues including how operatorscould demonstrate they are in aposition to make financial provision; whetherit is necessary to require a sum of money tobe set aside; and how to quantify whatconstitutes adequate financial provision.Responses are requested before 2 May 2003.(EA, 7 February 2003)The EA is consulting on the ‘relevant convictions’test which is applied on application fora licence, permit or for registration as acarrier or broker of waste following theconviction of an operator for an environmentaloffence. The EA intends to target thefew operators which cause concern due totheir criminal record. If such operatorsapplied for a licence or permit then theywould be encouraged to provide evidence oftheir intended future compliance in a ‘postconviction plan’, setting out the measures tobe taken to ensure improvements inperformance. Where convicted persons failto demonstrate that they are suitable to holda licence or permit, applications would berefused and the licence or permit revoked.The EA believes that applying the relevantconviction test would provide a deterrentand would encourage the operator to takemeasures to prevent further offences beingcommitted. Comments on the proposalsmust reach the EA by 2 May 2003.(EA, 7 February 2003)Waste facilitiesViews are being sought on new technicalEnvironment Law BulletinApril 200322

guidance for monitoring particulate matterin air around waste facilities. The guidance isintended to be used by EA staff, monitoringcontractors, industry and other partiesinvolved in monitoring particulate matter inthese environments. The sites most affectedwould be landfills, transfer stations andscrap yards. The guidance will also be usefulduring applications, determination andcompliance with permits and licences.Guidance is provided on which classes ofparticulate matter are relevant, how toassess impacts, sampling strategy and monitoringmethodology. The EA is particularlyinterested to hear views on the use ofnumerical air quality criteria, the methods ofchoice for monitoring different types ofparticulate matter and whether the casestudies add value to the guidance.Comments were requested by 14 May 2003.(EA, February 2003)WRAPThe European Commission has given partialapproval to the Waste Resource ActionProgramme (WRAP) which provides aidmeasures to promote waste recycling. TheCommission found that the WRAP pilotfund, a capital fund for investment in smalland medium size companies specialising inrecycling waste, complies with state aidrules. It also approved the WRAP leaseguarantee fund and the regional and SMEschemes which provide investment aid torecycling projects in the form of guaranteesand grants. However, the Commissionexpressed doubts over the WRAP environmentalscheme which provides subsidies forcompanies outside assisted areas for investmentin recycling facilities. The Commissionalso queried the use of the scheme toprovide aid in assisted areas, as the levelswere higher than allowed under national,regional or state aid rules. The environmentalscheme is now undergoinginvestigation by the Commission.(European Commission Press Release, 19 March 2003)End of life vehiclesA consultation paper issued jointly by DEFRAand the DTI is seeking comment on regulationsfor partially implementing the End ofLife Vehicles Directive (2000/53/EC). TheDirective, which came into force on 21October 2000 and should have been transposedinto national legislation by 21 April2002, is aimed at reducing the amount ofwaste from end of life vehicles. It requiresend of life vehicles and waste components tobe collected and transferred to permittedfacilities for treatment. It also sets targets forrecovery, reuse and recycling. The consultationpaper is seeking views on two draftstatutory instruments – the End of Life“Last owners of vehicles will be responsible for thecosts of take back until 2007, which is likely to leadto an increase in the number of vehicles dumped overthe period.”Vehicles Regulations 2003 and the End ofLife Vehicles (Storage and Treatment)(England and Wales) Regulations 2003. Thesedraft Regulations will bring into force anumber of technical aspects of the Directiveincluding: restrictions on the use of certainheavy metals in vehicles; the introduction ofa ‘certificate of destruction’ for scrappedvehicles; the marking of some vehicle componentsas a aid to recycling; free take back forvehicles put on the market from July 2002;and the introduction of authorised treatmentfacilities for dismantling end of life vehicles tospecified standards. The Government’sproposals for implementing the Directivehave been criticised. Last owners of vehicleswill be responsible for the costs of take backuntil 2007, which is likely to lead to anincrease in the number of vehicles dumpedover the period. The deadline for responsesto the consultation is 6 June 2003. A furtherconsultation on regulations on free take backof end of life vehicles of all ages and formeeting recycling targets in the Directive isplanned for the near future.(DEFRA and DTI, March 2003)TyresThe DTI has issued a further consultationpaper on the disposal of tyres to seek viewson the best way to meet the future ban ondisposal to landfill. Responses to a previousconsultation issued in mid 2002, highlighteda widespread concern over the flytipping of tyres and called for a suitable23Environment Law BulletinApril 2003

framework to minimise such activity. Manylocal authorities supported a statutoryproducer responsibility duty on tyre manufactures,as did a joint response from thetyre industry. The majority of responses onthe subject thought that obligations shouldbe equally applied for all companies in thesame sector. The consultation paper pointsout that the large-scale disposal of tyres tolandfill is mainly due to the fact that itprovides a cheaper option than recovery,and that there is adequate capacity in placefor the recovery option. Views are nowsought on: further steps the industry cantake to provide more accountability for therecovery of tyres; the introduction of statutoryrequirements; and an overhaul of thecomposition and work of the used tyreworking group. All responses must be sentby 6 June 2003.(DTI, 7 March 2003)Animal by-productsA draft Statutory Instrument to enable theenforcement of the EU Animal By-ProductsRegulation (EC No 1774/2002) in England“Views are requested on a number of issues such asthe mixing of specified risk material with otheranimal by-products and the frequency of sampling ofcompost and biogas residues for microbiologicaltesting purposes.”has been issued. The EU Regulation will applyin Member States from 1 May 2003. Once inforce, the SI will enable enforcement of theRegulation by providing for powers of entry,offences and powers for the Secretary ofState to grant and withdraw approvals. Anumber of other provisions are also includedwhich cover the keeping of specific recordsto demonstrate compliance with theRegulation. Views are requested on anumber of issues such as the mixing of specifiedrisk material with other animalby-products and the frequency of samplingof compost and biogas residues for microbiologicaltesting purposes. The draft SI does notcover the import provisions of the EURegulation as these are dealt with underanother set of domestic Regulations,although it does cover national controls onthe composting of catering waste which issubject to a separate consultation. The deadlinefor comments was 21 March 2003.(DEFRA, January 2003)Contaminated landDEFRA has announced the formal withdrawalof the DoE Technical Document used to helpassess land contamination – the ICRCL GuidanceNote 59/83 (Second Edition), published in1983. The document contained trigger valuesfor a series of substances, commonly found incontaminated land. New technical guidancedocuments were published in 2002 which aremore relevant to the assessment of humanhealth risk arising from contaminated land.These comprise the CLEA package consistingof the main Contaminated Land Reports(CLRs) 7-10, the CLEA software and the SoilGuidance Values for individual substances(SGV). However, ICRCL 59/83 will remain availablefrom DEFRA for historic purposes.(DEFRA, 20 December 2002)An EA project to review available and developingtechniques for the characterisation ofcontaminated land has begun. The projectwill examine chemical, biological and physicalparameters which can be used in thefield for site characterisation and for monitoringthe progress of remediation. Amongthe aims of the project are to look at therelevancy of the techniques to differentcontaminants and how data from thesetechniques may be interpreted. The use offield techniques has the benefit that theyprovide a preliminary screening tool to givean indication for more targeted samplingand analysis. The EA says that there is acurrent lack of understanding of how to useand interpret the data generated by fieldtechnologies and a lack of published informationabout their application.(EA News, 4 March 2003)Contaminated land – ScotlandFunding of £15 million has been allocatedto local authorities in Scotland to help themidentify and investigate contaminated sites.It is intended to help bring contaminatedsites back into productive use and eliminatingany threat to human health and theenvironment, in cases where those respon-Environment Law BulletinApril 200324

sible for the pollution cannot be identified.The funding covers the period 2003 to2006. The future distribution of resourceswill be decided when information on theextent and location of contaminated landbecomes available after initial investigationsof individual sites.(Scottish Executive News, 18 March 2003)National Waste Plan – ScotlandThe Scottish Executive has launched itsNational Waste Plan. It contains targets forrecycling and composting of 25% ofmunicipal waste by 2006 rising to 55% by2020. There are plans for segregated kerbsidewaste collection from 90% of Scottishhomes. The Executive have said that £230million will be invested over the next threeyears through the strategic waste fund tohelp local authorities put their area wasteplans into operation.(Scottish Executive News Release, 24 February 2003)RecyclingThe Municipal Waste Recycling Bill introducedby MP Joan Ruddock and Friends ofthe Earth, has successfully passed its secondreading in the House of Commons. It isseeking to require the Government to ensurethat 50% of domestic waste is recycled by2010, which would replace the currenttarget of 30%. At present only around 11%of waste is recycled. The Bill will now bediscussed by a committee of MPs.(Parliament, 14 March 2003)Electrical and electronic equipmentA first discussion paper aimed at explainingthe requirements of the two new Directiveson electrical and electronic equipment (seebelow), as well as outlining theGovernment’s initial views has beenpublished by the DTI. There are also anumber of questions relating to the WasteElectrical and Electronic Equipment (WEEE)Directive (2002/96/EC) and a Directive onthe Restriction of the Use of HazardousSubstances in Electrical and ElectronicEquipment (RoHS) (2002/95/EC). The questionsrelate directly to the implementationof the Directives in the UK. Commentsneed to be made by 30 May 2003, and willbe considered for a further consultationlater in 2003.(DTI, 28 March 2003)European UnionElectrical and electronic equipmentTwo Directives dealing with the end of lifemanagement and design of electrical andelectronic equipment (EEE) have beenpublished in the Official Journal. Under theDirective on Waste EEE (WEEE) (2002/96/EC)producers will be responsible for collecting,treating, recovering and disposing of WEEEarising from their own products. Althoughthere will be individual responsibility,producers may work together collectively tofulfil their obligation. Producers will alsohave to finance the management of WEEEput on the market before mid 2005 (historicwaste). The Directive must be transposedinto domestic law by 13 August 2004, withfree take back of waste goods from finalowners to be introduced one year later. TheWEEE Directive also contains a range ofrecycling and recovery targets which varywith the appliance category and requiresMember States to achieve an average wastecollection rate of 4 kilograms per inhabitantper year by 31 December 2006. The secondDirective to be published, restricting the useof certain hazardous substances in EEE(2002/95/EC) bans lead, mercury, cadmium,hexavalent chromium, polybrominatedbiphenyls (PBB) and polybrominateddiphenyl ether (PBDE) in EEE from 1 July2006. However, there are certain exemptions,which are to be reviewed by theEuropean Commission before 13 February2005. This review might introduce changeswhere progress has been made on thedevelopment of alternatives.(OJ L 37, 13 February 2003)The European Commission has published adraft text that could eventually form aproposal for a Directive. The text merges twoinitiatives, the impact on the environmentand a policy measure concerning the energyefficiency of EEE. The draft FrameworkDirective, known as the End Use EquipmentDirective (EuE), aims to ensure the freemovement of End of Use EEE by integratingenvironmental concerns into the design anddevelopment of equipment. EuE is definedas equipment which is dependent on energyinput and will require manufacturers toperform a conformity assessment of the EuEwith the relevant requirements of implementingmeasures. These implementationmeasures will introduce eco design requirementswhich will consider the entire lifecycle of equipment from raw materialsthrough to end of life. At each phase of thelife cycle, consumption of materials andenergy, emissions to air and water, pollution,“It is seeking to require the Government to ensurethat 50% of domestic waste is recycled by 2010,which would replace the current target of 30%.”waste and recycling and reuse will need tobe assessed. The draft has been criticised byenvironmental groups who claim that itcontains no clearly defined environmentalobjectives and that the objectives are onlybased on the free movement of goods.(European Commission, February 2003)BatteriesThe European Commission has issued aconsultation paper on revision of theBatteries Directive (91/157/EEC). TheCommission has stated that there is a needto reform the current Directive as it onlycovers the collection of batteries and accumulatorscontaining certain quantities ofcadmium, mercury or lead. In addition, itonly prohibits the marketing of batteriesand accumulators containing more than0.0005% mercury. End of life batteries andaccumulators can contain a range of toxicheavy metals including mercury, lead andcadmium which can cause environmentalproblems when incinerated or disposed ofin landfills. The proposals for a newDirective include establishing collectiontargets for battery collection of30%–40%, 60%-70% or 70%-80%,with car batteries having a separate25Environment Law BulletinApril 2003

target from 70%-100%. Forrecycling targets the range wouldbe set at 45%-55%, 55%-65% or65%-75%, with slightly highertargets for car batteries. Views arealso sought on the introduction ofproducer responsibility, which wouldinvolve establishing free collection andtake back facilities. In addition, highercollection and recycling targets areproposed for batteries containingcadmium, with the possibility of a targetfor cadmium recovery from spentbatteries. Stakeholder input is also beingrequested on banning the use of cadmiumin batteries where commercially viablesubstitutes exist. All views must reach theCommission by 28 April 2003.(European Commission, February 2003)LandfillA Decision for waste acceptance criteriaand procedures at landfills has beenpublished in the Official Journal. TheDecision sets out what types of wasteshould and should not be accepted atparticular kinds of landfill sites. Theworking on incorporating the Decisioninto final guidance.(OJ L 11, 16 January 2003)Waste minimisationThe European Environment Agency (EEA)has published a report containing casestudies on waste minimisation practices inEurope. The report focuses on ten casestudies of the most successful initiatives inEurope in the 1990s to promote andencourage waste minimisation. It isintended to publicise the initiatives so thatother EEA countries can utilise the experiencein meeting their own problemsrelated to waste generation. The study’sother five themes in eight countries includeproducer responsibility, voluntary agreements,legislative requirements,information programmes and waste taxes.The report concludes that the volume ofwaste is continuing to increase, with recyclingshowing a lesser increase over recentyears. However, the report also shows thatencouraging separation at source, reducinglandfilling, increasing recycling and wasteprevention have been developed in manymanagement would have to be to establishthe steps to be taken to achieve this. Theproposal is also an attempt to persuadenational governments to adopt deep undergroundburial as the preferred long-termdisposal route for these waste sources.(COM (03) 32, 30 January 2003)“The Decision sets out what types of waste shouldand should not be accepted at particular kinds oflandfill sites.”Landfill (England and Wales) Regulations2002 (SI 2002 No 1559) require that anoperator must be able to show that wastecan be accepted according to the site’spermit conditions and waste acceptancecriteria. The guidance is relevant to wastecarriers and consignors, as well as landfilloperators when preparing a permit applicationwho also must have theappropriate waste acceptance proceduresin place at sites permitted under PPC. It isparticularly useful for hazardous wasteproducers who now have a clearer viewas to what is required if they wish tocontinue landfill as a disposal option. TheEA issued draft guidance for the UK inSeptember 2002 which already containsthe majority of these measures. It is nowEEA countries and co-operation andexchange of technology and technologyexperience is needed to achieve furtherprogress in waste management.(EEA, January 2003)Radioactive wasteA Directive aimed at ensuring the safemanagement of spent nuclear fuel andradioactive waste has been published bythe European Commission. Intended toprotect the environment from the effects ofionising radiation, it would obligateMember States to ensure spent nuclear fueland radioactive waste was managedwithout contaminating water, soil or airand to appoint an authority to ensure safemanagement of the waste. A programmefor radioactive waste and spent fuelEnvironment Law BulletinApril 200326

SECTION 6Transport and labellingof waste andhazardous substancesUnited KingdomCHIPThe HSE has launched a website giving informationon the Chemicals Hazard Informationand Packaging for Supply (CHIP Regulations2002). The Regulations affect all chemicalsuppliers and are an attempt to ensure thatthose supplied receive the relevant informationrequired to protect themselves, othersand the environment. Suppliers have to identifyhazards such as flammability and toxicity,which together with advice on safe use, hasto be passed on to users, usually throughpackaging labels and safety datasheets. Thewebsite covers an introduction to theRegulations, recent changes and publications,as well as information relating to severalother aspects of CHIP 3 which consolidatesand extends the previous Regulations andcame into force on 24 July 2002.(HSE, January 2003)Carriage of dangerous goodsThe HSE has announced that the preparation ofdraft Regulations on the Carriage of DangerousGoods by Road and Rail is being delayed due tocomplex legal issues. It has stated that it expectsa document to be published in June 2003 for athree-month consultative period. Therefore, it isunlikely that the Regulations will come into forcebefore 1 March 2004. The new Regulations willimplement the 2001 and 2003 texts of RID andADR. Tank manufacturers will not be legallyrequired to manufacture new tanks for use onthe domestic market to approved RID or ADRstandards until the Regulations are in force,although the new standards may be used ifmanufacturers wished to do so. The newRegulations will also complete the implementationof the Transportable Pressure EquipmentDirective (99/36/EC).(Department for Transport, 7 February 2003)A draft statutory instrument intended toamend provisions in existing Carriage ofDangerous Goods Regulations relating tothe construction, inspection, testing anduse of tanks and pressure receptacles hasbeen issued for consultation. This isintended as an interim measure to ensurethere is no gap between existing requirementswhich expire on 1 July 2003 whenrequirements fully implementing equivalentprovisions in RID, ADR and theTransportable Pressure Equipment Directiveare due to be put into place in a single setof consolidated regulations (see above). Asa result, existing requirements will continueto apply until the draft Regulations comeinto force. The amending Regulations,therefore, defer the date when the existingrequirements expire until the end of 2004.Responses to the consultation should havereached HSE by 2 April 2003.European UnionImport and export(HSE, 20 February 2003)An EU Regulation No 304/2003 concerningthe export and import of dangerous chemicalshas entered into force after beingpublished in the Official Journal. It repealsand replaces Regulation (EEC) No 2455/92and implements the Rotterdam Conventionon Prior Informed Consent (PIC) for trade inhazardous chemicals and pesticides. Underthe new Regulation, importers have toexplicitly consent to receiving chemicals thatare banned or severely restricted in the EU.Those that are banned or severely restrictedfor consumer use will continue to form aseparate category and articles containingchemicals that could be released during useor disposal have to be notified for export.Chemicals not likely to affect health or theenvironment in quantities of not more than10 kilograms are exempt. The Commissionhas to review the chemicals listed annually.Gasoline, which contains benzene, is alsoexempt from notification requirements.(OJ L 63, 6 March 2003)“The new Regulations will implement the 2001 and2003 texts of RID and ADR.”InternationalRotterdam ConventionThe UN Food and Agricultural Organisation(FAO) has called for several substances tobe added to the PIC procedure under theRotterdam Convention. The substancesinclude five additional forms of potentiallycarcinogenic asbestos; the pesticidesDNOC, parathion and Benomyl-thiramcarbofuranmixture; and the petrol additivestetraethyl and tetramethyl lead. The recommendationswill be discussed by theinter-government negotiating committee ofthe Rotterdam Convention on priorinformed consent, in November 2003. Ifadopted then these chemicals will becomesubject to PIC.(UN News, 11 March 2003)27Environment Law BulletinApril 2003

SECTION 7Hazardous substancesUnited KingdomGMOsThe Strategy Unit is to carry out a studyinto the costs and benefits of growing GMcrops which will include their effect onconventional and organic farming. Thestudy is the third strand of a GM review,the other two strands being a publicdebate and a review of the scientificissues. The Strategy Unit’s study willconsider the possible scenarios for thefuture development of GM crops in theUK and will feed into the public debate.It will examine crops currently on trial, andthose in development, that could becomeavailable within a ten year time period.The report is likely to be published inJune 2003 for consultation.(Strategy Unit, February 2003)Biocidal productsThe Biocidal Products Regulations 2001 (SI2001 No 880) have been amended. TheBiocidal Products (Amendment)Regulations 2003 (SI 2003 No 429) introduceda general industry charge, whichimplements a Directive concerning thePlacing of Biocidal Products on the Market(98/8/EC). The new Regulations provide foran annual charge, persons liable to paythat charge, calculation of the charge andnotification of liability to pay. They cameinto force on 1 April 2003.(SO, 26 February 2003)European UnionResponsible care programmeThe Chemical Manufacturers Association(CEFIC)and the European ChemicalDistributors Association (FECC) have agreedon Product Stewardship Guidelines whichwill extend the responsible care initiativewhich was launched in 1985. Thisprogramme involved a commitment fromthe chemical industry, through theirnational associations, to work together toimprove the environmental performance oftheir products. The new agreement willbetter define the responsibility of distributorsand suppliers and is intended to beincorporated into commercial agreementsbetween the two groups. It will includerequirements on such areas as handling,storage and transport, product and packagingdisposal and labelling.(CEFIC News Release, 6 January 2003)Flame retardantsA Directive banning the use of brominated“The Strategy Unit’s study will consider the possiblescenarios for the future development of GM crops inthe UK…”flame retardants penta and octabromodiphenyl ether (penta BDE and octaBDE) has been published in the OfficialJournal. It amends for the 24 th time CouncilDirective 76/769/EEC relating to restrictionson the marketing and use of certaindangerous substances and preparations. Thetwo compounds are used as flame retardantsalmost exclusively in the manufacturerof flexible polyurethane foam for furnitureand upholstery. Articles containing theseflame retardants in concentrations of morethan 0.1% by mass will now be subject torestrictions in the marketing and use.Member States have to transpose therequirements of the Directive into nationallegislation by 15 February 2004.(OJL 42, 15 February 2003)ArsenicA tenth adaptation to technical progress toDirective 76/769/EEC relating to restrictionson the marketing and use of arsenic(2003/2/EC) has entered into force after itspublication in the Official Journal. The newDirective was the direct result of a riskassessment carried out by the EU ScientificCommittee on toxicity, eco-toxicity and theenvironment (CSTEE) which recommendedtighter restrictions on wood preservativescontaining arsenic due to its genotoxic andcarcinogenic health effects. The Directive willban the use of arsenic in wood preservatives,except for a small number of industrial applicationswhere it is absolutely necessary.Member States must publish domestic legislationto comply with the Directive by 30June 2003 with the ban to come into forceby 30 June 2004 at the latest.(OJ L 4, 9 January 2003)Radioactive substancesThe European Union has reissued aproposed Directive on the control of highactivity sealed radioactive sources. Itcontains only minor amendments to theoriginal proposal published in April 2002.The legislation is intended to deal with therisks from high activity sealed radioactivesources which, due to their mobility, havebeen involved in many radiation incidentsand accidents. It is estimated that aroundhalf a million sealed sources have beenEnvironment Law BulletinApril 200328

“…the report said that there is sufficient evidencethat all forms of asbestos, including chrysotile, arecarcinogenic to humans.”supplied during the past 50 years to operatorsin the EU’s current 15 Member States.Of these sources it is thought that about30,000 are at risk from being lost fromregulatory control, most of which are heldin local storage at the users premises. Theobjective of the proposed Directive is tostrengthen the control by the competentnational authorities on those sealedradioactive sources and to emphasise theresponsibilities of holders of such sources.The legislation is based on the EuratomTreaty, supplementing the basic SafetyStandards Directive.(COM (2003), 24 January 2003)Chemicals policyThe environment groups WWF and theEuropean Environmental Bureau (EEB) haveissued a joint report claiming that economicanalysis of pending new legislation of chemicalspolicy have overstated the costs relativeto the benefits. The Commission is at presentfinalising its draft proposal for a Directivewhich will introduce the REACH system formore stringent controls on chemical use.WWF and EEB say that the new Directivewould promote innovation and lead to manyenvironmental and health benefits.Environment groups have criticised the slowprogress on the policy since the White Paperwas published in February 2001.(EEB/WWF Press Release, 29 January 2003)AsbestosCSTEE has released its opinion on the risk tohuman health from white chrysotileasbestos and organic substitutes. The reportof the committee concluded that the substitutefibres cellulose PVA and p-aramid fibreswere less harmful than chrysotile. This is inline with previous findings. Furthermore, thereport said that there is sufficient evidencethat all forms of asbestos, includingchrysotile, are carcinogenic to humans.There is no evidence to suggest that any ofthe other fibres cause cancer in humans.(CSTEE, 17 December 2002)GMOsThe European Commission has held a policydiscussion on the co-existence of geneticallymodified and conventional crops. Amongthe issues discussed were farm managementmeasures and liability for accidental contaminationof non-GM crops by GM crops. Thediscussion was held to prepare the basis fora round table for stakeholders, scheduledfor 24 April 2003. Friends of the Earth havecriticised the plans for allowing co-existenceof GM and conventional crops saying thatrecent research has shown that the costs fororganic growers could increase by 41% andthat it would impact on consumer choice.The Commission was also criticised forfailing to endorse the concept of GM freeareas or countries.(European Commission/Friends of the Earth PressReleases, 5 March 2003)AzodyesIn an amendment to Directive 76/769/EECrelating to restrictions on the marketing anduse of dangerous substances and preparations,the European Commission hasproposed banning the use of azodyes.These are chemicals used for colouringtextiles recently found to be dangerous forfish and other aquatic organisms whenreleased into wastewater from the colouringprocess. The ban will take effect from 30June 2004. The marketing and use of a highnumber of other carcinogenic azodyes wasannounced in 2002. The latest ban appliesto the chromate-based azodyes.(OJ L 4, 9 January 2003)Pesticide residuesA proposal for a Regulation to streamlineMaximum Residue Levels (MRLs) for pesticidesin foods and feed has been proposedby the European Commission. The newproposal sets out a framework for MRLs ofpesticides that should simplify the currentpiecemeal approach and will replace andsimplify the four existing Directives onpesticide residues. (76/895/EEC,86/362/EEC, 86/363/EEC and 90/642/EEC).The effect will be to harmonise all MRLs forplant protection products at the EU level,removing all trade inconsistencies thatresult from the current situation whereMember States can set their own MRLs. AnMRL is the upper legal limit of pesticideresidue but is not a health based standard.(COM (2003) 177, 14 March 2003)29Environment Law BulletinApril 2003

SECTION 8Access to informationUnited KingdomPollution inventory – ScotlandThe Scottish Executive has announced thatSEPA is to launch a pollution inventory inAugust 2005. The Scottish EuropeanPollutant Emission Register (EPER), whichwill be available online by the end of May2003, is the first step in the process andwill contain information on activities regulatedunder PPC.(Scottish Executive News Release, 13 February 2003)European UnionAarhus ConventionThe access to environmental informationpillar of the Aarhus Convention has comeinto force after its publication in the OfficialJournal of the European Union. The newDirective (2003/4/EC) replaces a previousDirective (90/313/EEC) and is likely toprovide the public with wider and moreeasy access to environmental informationfrom public authorities. Public authoritieswill be required to respond to requestsfrom the public within two months and totake the initiative on making informationavailable in an electronic format that iseasily accessible. Such information will“The new Directive (2003/4/EC) replaces a previousDirective (90/313/EEC) and is likely to provide thepublic with wider and more easy access to environmentalinformation from public authorities.”include data on emissions and dischargesinto the environment and their impact onpublic health in addition to the results ofenvironmental impact assessments. TheDirective has to be transposed into nationallaw by 14 February 2005.(OJL 41, 14 February 2003)Vacuum cleanersA Decision setting out the ecological criteriafor awarding an eco label to vacuumcleaners (2003/121/EC) has been publishedin the Official Journal. All self containedvacuum cleaners, such as cylinder andupright vacuum cleaners are included, butcordless, battery operated or centralvacuum cleaning systems are not. The specificationscover energy consumption, dustremoval efficiency, ease of recycling at theend of use and noise. Motors should have alife time of at least 550 hours and replacementparts must be available for at least 10years after production ceases.Manufacturers must also offer a two yearguarantee to consumers and shouldprovide a disassembly report to third partieson request. Another requirement is thatplastic parts over 25 grams in weightshould not contain certain flame retardants.In relation to noise, products should notexceed 76dBA.(OJ L 47, 21 February 2003)Detergents for dishwashersAfter publication in the Official Journal, thecriteria for awarding an eco label to detergentsused in dishwashers has been mademore stringent. The new criteria(2003/31/EC) include a lower phosphatecontent for the award. Currently held by sixcompanies, the original criteria establishedby Decision 1999/427/EC, will still be validfor at least 18 months to allow companiesholding the award time to adapt to thenew criteria. The new Decision applies from1 January 2003 until 31 December 2007.The product group contains all detergentsEnvironment Law BulletinApril 200330

“The guidance is intended to help companies toproduce reports to include the relevant information forstakeholders, to mitigate company risk by protectingcorporate brand and to gain competitive advantage.”intended for use exclusively in automaticdomestic dishwashers and those operatedby professional users that are similar todomestic dishwashers. The aim of the newcriteria is to reduce water pollution byreducing the quantity of detergent andother harmful ingredients, to reduce energyuse by promoting low temperature detergentsand minimising waste by reducingthe amount of primary packaging.(OJ L 9, 15 January 2003)Laundry detergentsThe criteria for laundry detergents to beeligible for an EU eco label have beenrevised after the publication of a Decision(2003/200/EC) in the Official Journal. Theaims of the new criteria are to save transportand energy by encouraging compactlaundry detergents; reduce water pollutionby reducing the volume of chemicals, particularlyhazardous ingredients, in the product;and minimising waste through reducing theamount of packaging used. In addition,there are new criteria for informingconsumers by improved labelling of laundrydetergents on their environmental impact.The Decision applies from 1 March 2003until 29 February 2008. Those productsalready awarded an eco label before 1March 2003 may continue to use that labeluntil 31 August 2004. Those producersapplying before 1 March 2003 may beawarded the eco label under the terms ofthe previous Decision 1999/476/EC allowingit to continue to use the label until 31August 2004.(OJ L 76, 22 March 2003)InternationalPollution registerAgreement has been reached on a protocolto the Aarhus Convention by countriesfrom Europe, Central Asia and Canada forreporting on emissions of 86 pollutantsfrom industrial facilities. Under the auspicesof the United Nations EconomicCommission for Europe (UNECE), companieswill be required to report annually ontheir releases into the environment and ontransfers to other companies of these pollutants,with the information placed on apublic register known as a Pollutant Releaseand Transfer Register (PRTR). Informationwill be required from a range of activitiesincluding refineries, thermal power plants,chemical and mining industries, wasteincinerators, wood and paper productionand processing, and intensive agricultureand aquaculture. The requirements aremarginally stronger than the EU’s PollutantRegister (EPER), with additional requirementsincluding an obligation to reportdioxin releases to water and soil, and thevolumes of waste sent for disposal.(UNECE Press Release, 31 January 2003)Environmental reportingA global assurance standard for corporatepublic reporting on social, environmentaland economic performance has beenlaunched by the British Organisation,AccountAbility (AA). The AA 1000Assurance Standard is designed to increaseconfidence in corporate reporting by thepublic, investors and regulators. The standardis the result of a two-year worldwideconsultation involving hundreds of organisations,including the investmentcommunity, NGOs and business. The standardwas piloted by a number of leadingcompanies including Camelot, the Co-operativeBank and CIS in the UK, and also byassurance providers such as KPMG andPrice Waterhouse Coopers. The AA 1000Assurance Standard, which is openly accessibleon a non-commercial basis, will alsoplace new demands on consultants andaccountants that provide external audit andverification of CSR and environmentalreports. It requires them to demonstrateindependence and impartiality by publiclydisclosing commercial relationships withtheir clients. They must also prove theircompetency for examining issues such ashuman rights, labour standards and climatechange. Verifiers will also be expected tocomment if a report has omitted informationthat could be important tostakeholders. The standard is supported byseveral organisations including the GlobalReporting Initiative (GRI).(Accountability News Release, 25 March 2003)An aid to producing a corporate sustainabledevelopment report has recently been madeavailable. Produced by the World BusinessCouncil for Sustainable Development(WBCSD), a coalition of around 160 internationalcompanies committed to sustainabledevelopment, it is an attempt to addressincreasing global expectations on companyaccountability and transparency. The guidanceis intended to help companies to producereports to include the relevant information forstakeholders, to mitigate company risk byprotecting corporate brand and to gaincompetitive advantage. There are also recommendationson how to fulfil the informationneeds of the financial community and adebate on standardisation of reportingformats. It says that mounting pressure frommajor stakeholders is shifting sustainabilityreporting from a voluntary activity to amandatory requirement.(WBCSD, January 2003)31Environment Law BulletinApril 2003

SECTION 9EnergyUnited KingdomEnergy White PaperThe DTI has published its long-awaitedEnergy White Paper setting out theGovernment’s energy policies to the year2020. It proposes a range of measures forreducing carbon dioxide emissions whileattempting to ensure the security and diversityof supply, and sets an objective ofcutting carbon dioxide emissions by 60% by2050. The proposed measures are likely toaffect most business sectors. The EnergyWhite Paper was supported in a speech bythe Prime Minister who pledged his commitmentto putting sustainable developmentand the environment at the heart ofGovernment policy making. Market mechanismssuch as emissions trading andrenewable energy certificates trading, taxincentives and financial support for R&D arebeing put forward as the key mechanismsfor delivering the goals of the white paper.“The Energy White Paper was supported in a speechby the Prime Minister who pledged his commitmentto putting sustainable development and the environmentat the heart of Government policy making.”Among the specific measures are improvingenergy efficiency by raising performance ofbuildings and improving energy labelling ofelectric and electronic equipment. Withregards to renewable energy, the whitepaper sets an ‘ambition’ rather than anyfirm target for making up 20% of the totalelectricity generated by 2020. This ambitionis backed by additional £60 million in capitalgrants over the period 2002 to 2006 andimproving the conditions for small generatorsconnecting to distribution networks.Planning was also recognised as a majorbarrier to the development of renewableenergy sources and it was stated that thiswould be addressed with the publication offuture revised planning guidance. A moratoriumwas placed on the development ofnew nuclear power stations for the next fiveyears. However, the Government stated thatit would consider whether nuclear powerwas needed beyond this time to achieveclimate change objectives. (See article byTom Bainbridge in this issue).(DTI, February 2003)LPGThe DTI is encouraging people to switchfrom petrol or diesel to liquefied petroleumgas (LPG) as a vehicle fuel. LPG has anumber of environmental benefits includinga 12% reduction in carbon dioxide emissionscompared with petrol, and withsignificantly lower emissions of particulatesand oxides of nitrogen compared withdiesel. To encourage the uptake of LPG, it issubject to a much lower excise duty andretails for around half the price of petrol.LPG vehicles are also exempt from theLondon Congestion Charge which cameinto effect on February 17 2003. It is estimatedthat the number of vehicles usingthis fuel will increase to around 250,000 bythe end of 2005.(DTI, 31 December 2002)Offshore windThe Crown Estate is making new sites availablefor the development of offshore windfarms in 2003. It has invited potentialdevelopers to register an interest. This is thebeginning of the process of establishinghow sites will be offered and to provideEnvironment Law BulletinApril 200332

“Consent has been granted for building two moreoffshore wind farms, which will increase the numberoff the coast of the UK to five.”information to the Government on likelyinterest so that it can formulate its futurepolicy. Although the Crown Estate ownsthe seabed out to the 12 mile offshorelimit, the consents will be issued by the DTI.All plans should have been submitted tothe Crown Estate by 20 March 2003, andshould have included information on thescale of the proposed development anddetails of grid connection requirements.This is the second tender round followingthe first round in April 2001 when 18 siteswere identified for potential offshore windfarms. By February 2003, three of thesesites had gained the necessary planningconsent and are currently progressingtowards completion.(Crown Estate Press Release, 27 February 2003)Consent has been granted for building twomore offshore wind farms, which willincrease the number off the coast of theUK to five. The two new sites are in theThames Estuary – ‘Kentish Flats’ which willbe built by GREP UK Marine Limited withconstruction due to begin in 2004. Thesecond new wind farm is situated off thecoast of Cumbria in the Irish sea – ‘Barrow’,with work scheduled to begin in Spring2004 by Warwick Energy Limited. The twoprojects are likely to comprise around 200MW generating capacity.(DTI Press Release, 12 March 2003)Wave and tidal energyThe DTI has announced that it will makeavailable £4 million for developing wave andtidal technology in the highlands and islandsof Scotland. It is also to work towardssetting up a new capital grant scheme tosupport these energy sources, worth at least£5 million. It was also announced that therewould be a new joint venture betweenScottish and Southern energy and WeirGroup to develop new technology and waveelectricity generating schemes worth up to£10 million. The new money is designed tocontinue research in these areas in the shortterm in the hope that they will eventually becommercially viable. It was also acknowledgedthat improvements would need to bemade to the electricity transmission systemfor these technologies to impact uponnational electricity generation.(DTI Press Release, 21 March 2003)Onshore windProposals to construct and operate a windfarm at Cairn Uish in Scotland have beenapproved by the Scottish Executive. The newwind farm, which will supply 56MW of electricity,will be Scotland’s largest to date. Itwill be developed by Fred Olsen RenewablesLimited and will supply around 10% of therenewable generation capacity required tomeet Scotland’s 2010 target. The wind farmwas approved after a long consultationperiod during which the potential impactson the environment were investigated.(Scottish Executive News, 22 January 2003)BETTAA draft Bill on British-wide Electricity Tradingand Transmission Arrangements (BETTA) hasbeen published. BETTA is intended to introducea single set of trading rules andconnection policies for all of Great Britainand is aimed at reducing the barriers tosmall independent generators supplyingelectricity to customers in the South. Itshould increase competition in the industryallowing more consumer choice with lowerprices throughout Great Britain. Ofgem andthe DTI are working to implement the newarrangements by October 2004.(Parliament, January 2003)33Environment Law BulletinApril 2003

BiomassDetails of £4.2 million in grants to 11 projectsusing biomass to produce heat forindustrial and domestic consumers havebeen released by the Energy Minister. Theawards constitute support for 7 projects forbioenergy heating installations by the newopportunities fund, which distributesnational lottery money to health, educationand environment projects. Larger scale projectsinvolving industrial heating installationswith a capacity of more than 0.5MW aresupported by capital grants from the DTI.The new awards are part of a total ofapproximately £100 million allocated tobioenergy project from the DTI, the newopportunities fund and DEFRA.(DTI Press Release, 23 January 2003)Solar energyEighteen building projects in England andWales have been awarded a total of £2million in funding to fit photovoltaics toroofs and walls for electricity generationfrom sunlight. The funding will help projectsin the third set of proposals approvedunder the DTI’s £20 million photovoltaic“It is proposed that the electronic certification systemwill be administered by OFGEM and generators willbe able to request a REGO certificate as evidencethey have generated a given amount of electricityfrom renewables.”demonstration programme launched in2002. The latest projects are expected togenerate a maximum of 565kW of electricityat peak times and around 750kWh ofelectricity in a year.(DTI Press Release, 10 March 2003)Renewable energy community schemesA £10 million campaign to encouragehome owners, schools and communitiesacross the UK to install renewable energyschemes has been launched by the DTI. The‘Clear Skies Initiative’ is part of theGovernment’s strategy for boosting the useof renewable energy. It will provide anopportunity for community groups andhome owners to bid for capital grants forrenewable energy schemes. This will besupplemented with measures to increasethe uptake of renewable energy technologies,including training and accreditationfor professional installers.(DTI Press Release, 13 January 2003)Renewables obligationOFGEM has announced that the buy outprice for the second year of RenewablesObligation will be set at £30.51 per MWhup from £30 per MWh for 2002 to 2003.The new rate will apply from 1 April 2003to 31 March 2004 throughout GreatBritain. The buy out price allows electricitysupply companies to make up for deficiencybetween the amount of their obligationand the number of Renewable ObligationCertificates (ROCs) presented.(OFGEM, 13 March 2003)Renewable energyThe DTI has issued a consultation paperseeking views on a Renewable EnergyGuarantee of Origin (REGO) Scheme topartly implement the EU Directive on thepromotion of electricity from renewablesources (2001/77/EC). It is designed towork alongside the existing RenewableObligation Certificates (ROCs) which areavailable to generators producing morethan 0.5MW per month from specifiedrenewable sources. However, the REGO willalso apply to large-scale hydropowerschemes and some energy from wastegeneration. It is proposed that the electroniccertification system will beadministered by OFGEM and generators willbe able to request a REGO certificate asevidence they have generated a givenamount of electricity from renewables. Thecertificate will have no monetary value, butwill guarantee the origin of generation tocustomers throughout the EU. The consultationperiod will end on 30 June 2003.(DTI, March 2003)United Utilities Green Energy Limited hassecured a £10 million loan from theEuropean Investment Bank (EIB) for a rangeof renewable energy projects throughoutEngland and Wales. The projects comprisewind, small scale hydro and landfill gasschemes and represent a combined investmentof £20 million. The EIB has statedEnvironment Law BulletinApril 200334

that environmental protection andimprovement, particularly in supportingrenewable energy projects is a priorityarea. The projects are now subject toenvironmental assessment.(EIB Press Release, 11 March 2003)OFGEMOFGEM has published its corporate strategyfor 2003 to 2006. Following consultationwith various organisations on its initialstrategy proposals, it now states that it will:work with the Government on movingtowards a low carbon economy; introduceregulatory impact assessments to considerthe costs and benefits of major new policies;increase its work to improve thesecurity of gas and electricity supply; andplace a stronger emphasis on complianceand enforcement to ensure that competitionbenefits customers.(OFGEM, March 2003)European UnionEnergy efficiency in buildingsA Directive on the Energy Performance ofBuildings (2002/91/EC) has come into forceafter its publication in the Official Journal(see article by Tom Bainbridge in this issue).The Directive seeks to develop and standardiseminimum energy performancestandards for buildings throughout the EU. Itwill result in the production of energy certificatesfor all buildings that are constructed,sold or rented, and will be available to anyprospective purchaser or tenant. There arealso provisions for the inspection and assessmentof boilers and heating and coolingsystems by accredited engineers.(OJ L 1, 4 January 2003)Wind energyThe European Wind Energy Association(EWEA) has announced that a further5,871MW of electricity generating capacitywas installed in 2002 – a 31% increaseover that installed in 2001. Germany, Spainand Denmark accounted for almost 90%of the installed capacity in 2002. Of thetotal 23,056MW installed by December2002, Germany accounted for 55%, sufficientto supply 4.7% of its nationalelectricity demands.(EWEA, 6 February 2003)35Environment Law BulletinApril 2003

SECTION 10Planning aspects ofenvironmental controlUnited KingdomPlanning policyParliament’s Housing, Planning, LocalGovernment and the Region’s Committeehas published its report on planning,competitiveness and productivity. Thereport came about as a result of evidencetaken from the CBI during the enquiry intothe Planning Green Paper, which statedthat planning was a major hurdle to theefficiency of British business. The conclusionsof the Committee were that planningis not a significant factor in determiningproductivity, but that skills, innovation andinvestment are the most important factors.It says that rather than blaming planningfor the UK’s low productivity, businessshould consider the positive role of planning.It also said that improving theplanning system is a matter of better“The EA has responded to the new announcementsaying that expansion of housing needs to be carefullymanaged to minimise the pressure on theenvironment through good planning and design.”resourcing and more focusing rather thanchanging the rules. The Committee alsorecommended that the Government’smeasure of improved performance shouldtake into account the quality of planningdecisions as well as their speed.(Parliament, 5 February 2003)Sustainable communitiesThe Office of the Deputy Prime Ministerhas announced a £22 billion plan for thedevelopment of sustainable communities.Included within the plan are measuressuch as more affordable homes for keyworkers and social housing, improvingurban design, the development ofdeserted and run down areas in the Northand Midlands and encouraging modernbuild housing. The Government is claimingthat the proposals are aimed at improvingthe quality of life in urban and rural areasof the country. It says that it will addressthe housing shortages in London and theSouth East together with the impact ofhousing abandonment in the North andMidlands. The money will be allocatedover the next three years. However, theDeputy Prime Minister as reiterated thattackling the housing shortage would notbe to the detriment of the greenbelt as allnew development will use previouslydeveloped land where available. In 2002over 60% of new housing developmentoccurred on brownfield land. The EA hasresponded to the new announcementsaying that expansion of housing needs tobe carefully managed to minimise thepressure on the environment throughgood planning and design. It identified theenvironment risks of the plan as: the risksof flooding from development on floodplains; the extra demand for drinkingwater impacting on water resources in thesouth east of England; additional wastefrom new households leading to increasedproblems of waste disposal; and highercarbon dioxide emissions throughincreased energy consumption in thehome. As a result it is calling for all newdevelopments to use sustainable materialsand to incorporate measures to minimiseenvironment impacts.(ODPM News, 5 February 2003: EA News,6 February 2003)Environment Law BulletinApril 200336

“The move could have far reaching implications forplanning and development in the UK as the court willconsider the general question of how the developmentconsent procedure is applied.”Water resourcesThe Water Resources (Environmental ImpactAssessment) (England and Wales)Regulations 2003 (SI 2003 No 164) cameinto force on 1 April 2003. The newRegulations complete the implementationof a Directive on the assessment of effectsof certain public and private projects on theenvironment (85/337/EEC) and relate towater management projects for agriculture.They also include new procedural requirementsin considering applications forabstraction or impounding licences underthe Water Resources Act 1991. Theyimpose a requirement for an EIA to becarried out for agricultural water managementprojects which are likely to havesignificant effects on the environment. Onlyprojects involving the abstraction of morethan 20 m 3 in any 24 hour period would beincluded. The procedure for an EIA is laiddown in the Regulations.(SO, 30 January 2003)TourismThe Office of the Deputy Prime Minister isseeking views on cancelling PPG 21 onPlanning for Tourism and replacing it withgood practice guidance. It says that tourismmust contribute to sustainable developmentand seek to balance growth with conservationof the environment. The change is alsonecessary as national planning policies thatimpact on tourism are contained in severalPPGs, and proposed changes outlined inthe Planning Green Paper published inDecember 2001 to make the planningsystem simpler, quicker and more accessible.The ODPM says that while itrecognises the importance of tourism andeconomic benefits of it, the industry willbenefit from the provision of guidancewhich addresses the issues of concern toplanners and the tourist industry. Theconsultation period ends on 23 May 2003.European UnionEIA(ODPM, February 2003)The European Commission is to pursueinfringement proceedings against the UKfor non-compliance with a 1997 amendmentto the Environmental ImpactAssessment Directive (97/11/EC). The UK isbeing referred to the Court of Justice inrelation to a proposed development in theCrystal Palace area of London. TheCommission says that the Government andthe local authority are responsible for planningin the area had not requested theenvironmental impact assessment requiredby the Directive to ensure the developmentwould not harm the local area. The projectconcerned a large multiplex cinema andleisure complex which exceeded thethreshold required for an assessment stipulatedin UK screening guidelines. The movecould have far reaching implications forplanning and development in the UK asthe court will consider the general questionof how the development consentprocedure is applied. The currentGovernment gave the go ahead for amultiplex cinema and leisure developmenttwo years ago. If the Commission wins itscase it could mean a requirement for anenvironmental assessment for all majorschemes including those that alreadyoutlined planning consent.(European Commission Press Release, 24 January 2003)The UK has also been sent a final writtenwarning on its system of allocating ‘certificatesof lawful development’. This affectsprojects such as scrap yards which could becovered by the EIA Directive, whichprotects the operator from prosecutionunder planning laws by exempting suchprojects from requiring planning permission,and therefore an EIA. TheCommission’s view is that the certificateshould only be granted after the EIA ruleshave been considered.(European Commission Press Release, 24 January 2003)37Environment Law BulletinApril 2003

SECTION 11Health and safetyat workUnited KingdomWorkplace accidents workAfter considering views collected during aconsultation exercise, conducted between1998 and 2001, the HSE has announcedthat it is to issue new guidance foremployers on a new duty to investigateaccidents, dangerous occurrences anddiseases in the work place. Originally, it wasproposed to introduce a legal requirementson employers and others to investigate incidentsreportable under the Reporting ofInjuries, Diseases and DangerousOccurrences Regulations (RIDDOR) 1995 (SI1995 No 3163). However, it became clear“…the HSE has announced that it is to issue newguidance for employers on a new duty to investigateaccidents, dangerous occurrences and diseases in thework place.”during consultation that many employerswere uncertain on how to tackle the issue,resulting in the HSC’s decision. The HSChas said that it might consider the possibilityof introducing legislation and if thereis no improvement in incident investigation.The guidance will come in a range offormats, including paper and electronic,due to be published later in 2003.(HSC press release: 31 January 2003)Mortuaries andclinical laboratoriesTwo new guidance booklets have beenissued which give advice on a range of activitiesin post mortem rooms and clinicallaboratories. These include cleaning, disposalof waste and monitoring employee health,as well as information on precautions forhandling higher risk material, such asCreutzfeld-Jacob disease ‘Safe working andthe prevention of infection in the mortuaryand post mortem room’ and ‘Safe workingand the prevention of infection in clinicallaboratories and similar facilities’, wereprepared and published by the HSE and theHSC’s Health Services Advisory Committee(HSAC). They revise the booklets firstpublished in 1991 to take account ofchanges in legislation and new technologies.(HSE Press Release, 3 February 2003)Major hazard sitesThere were four major accidents in 2000-01 at industrial premises subject to theControl of Major Accident Hazards(COMAH) Regulations 1999 (SI 1999 No981), none of which resulted in serious orfatal injuries. The Regulations require thatthe European Commission is notified ofcertain major accidents including therelease of a specified quantity of adangerous substance; specified harm topersons; specified harm to the environment;and some near misses. They apply toapproximately 1,100 establishments thathave the potential to cause major accidentsbecause they use, or store, significantquantities of dangerous substances, such asoil products, natural gas, chemicals andexplosives. ‘COMAH major accidents notifiedto the European Commission, England,Wales & Scotland 2000-2001’ waspublished by the HSE, the EA and SEPA,who enforce the COMAH Regulations. Theenforcers expressed some concern at themagnitude, frequency and causes of theseaccidents and reiterated that they woulduse the Regulations to improve corporategovernance of major hazard sites.(HSE February 2003)Environment Law BulletinApril 200338

“…there were 241 offshore hydrocarbon releases fromoffshore oil and gas installations on the UK ContinentalShelf, 29 (11%) less than the previous year.”Dangerous substances in the workplaceDangerous substances in the workplaceare to be targeted in the sixth EuropeanWeek for Safety and Health, which beginson 13 October 2003. Organised in the UKby the HSE, the campaign is designed toaid companies to investigate ways ofpreventing illnesses such as cancers, respiratorydiseases and skin diseases in theworkplace. It will be launched in May2003, with the issuing of a free actionpack. The HSE estimate that the majorityof the 1.3 million companies covered byspecific chemical legislation are small andmedium sized enterprises and say thatmany of these do not realise they areusers of hazardous chemicals. As a result,these companies do not fully realise whatthey need to do to protect theiremployees from the use of these chemicals.It is thought that there are 6,000deaths from cancer and around 7,000new cases of asthma per year, due tooccupational causes.(HSE Press Release, 12 February 2003)Offshore hydrocarbonsThe HSE’s Offshore Division has released theseventh in a series of hydrocarbon releasestatistics reports. Its findings were thatduring 2001-2002, there were 241 offshorehydrocarbon releases from offshore oil andgas installations on the UK ContinentalShelf, 29 (11%) less than the previous year.The 2002 report gives details of releasesnotified to HSE from 1 October 1992 to 31March 2002, and replaces the 2001 statisticsreport. The information is obtainedfrom incident reports required under theReporting of Injuries, Diseases andDangerous Occurrences Regulations(RIDDOR) 1995, as well as voluntarilyreporting. The HSE also stated that itexpects all operators to take on board thefindings from the joint HSE and industryleaks reduction campaign. It says that thisshould lead to a dramatic decrease inhydrocarbon leaks in the UK sectorreducing the risk of fire and explosion.(HSE Press Release 14 February 2003)PAHsExposure to polycyclic aromatic hydrocarbons(PAHs), found in every industry,especially where substances are burned,such as in aluminium smelting and cokeproduction, are known to cause lung andbladder cancer. A research report publishedby the HSE has now quantified the risks. Itwas found that people who are exposed to1 µg/m 3 of PAHs through work over 40years, are 8% more likely to contract lungcancer. However, the risks of contractingbladder cancer were less certain, as thisdisease is rarer and therefore there were amuch smaller number of cases available forstudy. The research will be used by the HSEto determine an occupational exposure limitfor PAHs.(HSE, March 2003)Nuclear incidentsUnder powers given by section 11 of theHealth and Safety at Work, etc. Act 1974,the HSC has published its statement onnuclear incidents at nuclear installationssince 1993. The latest statement for nuclearinstallations in Britain, covering the period 1July to 30 September 2002, mentioned justone installation - British Energy’s Tornessplant in May 2002. There was a failure of agas circulator, thought to be linked to thedevelopment of a fatigue-related crack inpart of the impeller.(HSE 30 January 2003)39Environment Law BulletinApril 2003

SECTION 12MiscellaneousUnited KingdomCSR“CSR is becoming a mainstream consideration, withthe market rewarding responsible behaviour, and thecompanies that measure and manage their environmentalimpacts often make substantial savings ontheir operating costs.”The Secretary of State for the Environment,Margaret Becket, has delivered a key notespeech strongly supporting Corporate SocialResponsibility (CSR). In the speech, she saidthat issues such as the efficient use ofresources should be taken seriously by businesssome of which have for some timerecognised the links between sustainabledevelopment and success. She went on tostate that CSR is becoming a mainstreamconsideration, with the market rewardingresponsible behaviour, and the companiesthat measure and manage their environmentalimpacts often make substantialsavings on their operating costs. It also reassuresshareholders that companies aremanaging their risks and identifying businessopportunities and customers are reassured bythe fact that the products and servicesprovided are not causing environmentaldamage. Such policies are also likely to motivateemployees. In the speech she alsoidentified the boundaries to CSR, i.e. wherethe market does not reward companies thatcomply with voluntary standards, andsuggested that fiscal measures introduced bythe Government will continue to move theseboundaries in favour of sustainable development.Such measures, including the climatechange levy and landfill tax, have alreadybeen implemented. The disclosure of environmentinformation was also addressed in thespeech. Examples cited included the PensionsAct, which requires occupational pensionfunds to disclose the extent to which ethicalenvironmental and social considerations aretaken into account in investment decisions,and proposals to include environmental,social and community issues in the annualreports of major companies in the CompanyLaw Review. However there was no indicationof mandating environmental reportingfor all companies.(DEFRA, February 2003)Business in the Community (BITC) an independentcharity consisting of 700 membercompanies with the aim of improving thepositive impact of business on society, haspublished a benchmark CSR index. Theindex was based on an overall scoreachieved for strategy, integration andmanagement practice on community, environment,market place and work place, andperformance in seven impact areas, whichinclude three social and four environment.The new index incorporates the previousannual index of corporate environmentalengagement published by BITC. It covers122 companies, 53 of which are in theFTSE100 and places the companies into oneof five quintiles.(BITC, March 2003)Air transportA report entitled ‘Aviation and theEnvironment – Using EconomicInstruments’, has been published by theDepartment for Transport as the basis fordiscussion with stakeholders. It follows theannouncement in the 2002 Pre-BudgetReport that the Government would beEnvironment Law BulletinApril 200340

“The report is likely to be a precursor to a white paperto be released later in 2003, covering the futuredevelopment of the aviation industry in the UK overthe next 30 years.”considering the most effective economicinstruments to reduce the impact of theaviation industry on the environment. Thereport provides estimates of aviation’sexternal environment costs including itscontribution to greenhouse gases in theatmosphere and local air and noise pollution.The report is likely to be a precursor toa white paper to be released later in 2003,covering the future development of theaviation industry in the UK over the next 30years. This will include the Government’sdecision on airport development and environmentalframework aimed at ensuringthat air transport in the UK is sustainable.The Government’s current view is thateconomic instruments can be a useful wayto reduce the environmental impact of airtransport by encouraging the use of cleanerand quieter aircraft.(Department for Transport, March 2003)The Department for Transport has reissuedits consultation document seeking views onthe development of air transport in thesouth east of England. The reissue follows aHigh Court decision that it was wrong toexclude the option of developing a newrunway at Gatwick Airport. As a result,although the content is very similar to thefirst consultation document, information isnow included on options for new runwaysat Gatwick. The original consultation periodhad been due to end on 30 November2002 but has now been extended to 30June 2003. The paper is one of six consultationdocuments relating to differentregional areas of the UK.(Department for Transport, February 2003)HedgerowsThe Government is consulting on reformingthe legislation relating to hedgerows. Anew draft guide relating to the law andgood practice for amendments to theHedgerows Regulations 1997 (SI 1997 No1160) has been published. The Regulationscontain the criteria for determiningwhether a hedgerow is ‘important’. Localplanning authorities can order the retentionof such hedgerows, although they are notrequired to legally do so. However, underthe Regulations most countrysidehedgerows cannot be removed without firstnotifying the local planning authority. Areview of the Regulations began in May1997 on how the system of hedgerowprotection might be strengthened. In particularit considered whether the localauthority should be given more time torespond to hedgerow removal notices andhow the definition of important hedgerowsmight be improved. The new proposals inthe consultation document include newpowers to allow local planning authoritiesto prevent the removal of certainhedgerows that form an essential part ofan area. These were identified by theCountryside Agency in 1999. DEFRA is alsoattempting to make the practical applicationof the Regulations more simple byproposing to relax the requirement for sitevisits by inspectors. Responses to theconsultation paper must reach DEFRA by18 April 2003.(DEFRA, January 2003)EMASThe EA has announced that a chemicalcompany has been suspended from theEco-Management and Audit Scheme(EMAS), the voluntary EU environmentalmanagement system introduced byRegulation 761/2001. The suspensionfollows an unauthorised release of aharmful solvent. An investigation by the EArevealed that staff had been given noproper training on running the system,which had contributed to the release. Thisis the second occasion on which a UKcompany has been suspended from EMASfor contravening environment regulations.The EA is under a duty to take action toensure that companies’ EMAS registration isremoved when such a breach occurs.(EA News, 7 March 2003)Sustainable consumptionand productionDEFRA has announced the launch of a UKstrategy for Sustainable Consumption andProduction (SCP). The strategy arose fromthe Johannesburg Summit held inSeptember 2002 and will be developed overthe next few months for publication in thesummer of 2003. Containing the steps totake forward commitments made inJohannesburg, it will set out a frameworkfor future action by Government and business.The strategy will be linked to existingand proposed UK and EU policies includingthe Strategy Unit’s report on waste and theEnergy White Paper. While concentrating ontwo major policy areas – energy and waste– the strategy will set out the economic,social and environmental rationale for longterm policy planning to uncouple economicgrowth and environmental degradation.(DEFRA, 6 February 2003)Environment awarenessA survey published by the EA has foundthat there is a general lack of environmentawareness among SMEs. The survey wasconducted across a range of businesssectors which together are responsiblefor up to 80% of pollution incidents. Ofthe 1,175 SMEs surveyed, 86% did not41Environment Law BulletinApril 2003

think that their activities were harmful tothe environment. Furthermore, only 18%could name any environment legislationthat applied to them. The survey also foundthat most of the smaller businesses had noenvironmental management system inplace, with only 17% having implementedone. Larger SMEs were more likely to havean EMS than smaller businesses and thechemical sector was more likely that hotelsand restaurants, printing and publishingfirms to have one in place.(EA, January 2003)Nature conservation – ScotlandA draft Nature Conservation (Scotland) Billhas been issued for consultation until 6June 2003. The Bill is intended tostrengthen the protection for SSSIs, place aduty on public organisations to protect anddevelop biodiversity and proposes newlegislation to address wildlife crime. In relationto SSSIs, the Bill proposes to ceasecompensation paid to landowners whothreaten such habitats with speculativedevelopments. However, landowners willstill be compensated where the existing“a report…calling for company listings requirementsto be reformed to include environmental, social andethical information.”management of the land has to change inorder to protect an SSSI.(Scottish Executive, March 2003)Food and drink industryAfter the publication of the Government’sStrategy for Sustainable Farming and Foodin December 2003, producers, wholesalers,caterers and retailers are to work with theGovernment on a joint strategy to improvethe food and drink industry’s economic,environment and social performance. Themain remit of the group will be to developperformance indicators for the foodindustry and will address issues such aspollution, litter, waste, food miles, transportand energy use. A wide range of industrybodies and groups will be represented towork in a partnership with government toestablish sustainability priorities and how totackle these. The food industry sustainabilitystrategy is due to be published at theend of 2003.(DEFRA Press Notice, 7 March 2003)Mobile phone mastsA study of mobile phone masts on 109sites in the UK has shown that emissionsrange from hundreds to millions of timesbelow international guideline values. As aresult the DTI has said that results continueto show that exposure levels of the publicare well below recommended limits.However, the study of masts at schools andhospitals is to continue throughout 2003.The survey for testing electromagneticemissions which began in December 2000,could now be extended to other potentiallysensitive sites.(DTI Press Release, 18 February 2003)Socially responsible investmentThe UK branch of the Worldwide Fund forNature (WWF) has announced that it is tosell all its shares in BP. The NGO cited thereason as the company’s oil and gas explorationin Alaska, where it is attempting togain the go-ahead for drilling in the ArcticNational Wildlife Refuge. Although thevalue of the shares was insignificant infinancial terms, it is likely to impact on theenvironment reputation of the company. BPclaims it has withdrawn from the AlaskanLobby Group trying to obtain permissionfrom the Bush Administration to open upthe wildlife refuge for exploration. One ofthe UK’s leading ethical investment funds,Henderson Global Investors has alsoannounced that it is selling BP shares worthseveral million pounds due to thecompany’s poor record on worker safetyand the environment in Alaska.(The Independent, 23 January and 8 February 2003)Environment risksFriends of the Earth have published a report‘Open Disclosure: Sustainability and theListings Regime’ calling for company listingsrequirements to be reformed to includeenvironmental, social and ethical information.It says disclosure should includeimpacts such as climate change which isnow widely recognised as a risk to thevalue of a company. The report comparesEnvironment Law BulletinApril 200342

listing regimes in the UK with those abroadand concludes that the UK is behind otherstock exchanges in taking into accountsocial and environmental risks. Friends ofthe Earth point out that many companiesalready address risks from social and environmentalfactors on their value. The reportcites the case of a mining companyXSTRATA whose share price fell 12% over 2days following the release of news thatthere was a possibility of a Japanese coaltax, resulting from the country’s commitmentsunder the Kyoto Protocol. Thecompany had failed to disclose risks in thisarea. At present the Financial ServicesAuthority is reviewing UK listing rules and aconsultation paper is expected in summer2003. This could lead to a policy change byDecember 2004. There are also moves atEU level to bring in new legislation relatingto listing requirements.(Friends of the Earth, March 2003)Mineral workingThe Office of the Deputy Prime Minister isconsulting on a revised draft of MineralsPolicy Statement (MPS) on controlling andmitigating the environmental effects ofmineral working. The issues concernedwere formerly consulted upon as an extensionto MPG11 in 2000, and takes intoaccount the responses received to thisconsultation. The ODPM is now eager tobring in the revised guidance as soon aspossible. The major issues on which viewsare being sought are: the detail included inthe revised MPS and specific effects coveredin the annexes; the clarity of the explanationof requirements for PM10 and whetherthe requirements are reasonable; and thelimits on noise emissions proposed. Theconsultation brings together in one MPSand its accompanying annexes, guidancepreviously dispersed among a number ofdifferent MPGs and in research reports ongood practice. All views should have beensubmitted by 11 April 2003.(ODPM, 14 February 2003)AggregatesThe Aggregates Levy (General)(Amendment) Regulations 2003 (SI 2003No 466), which came into force on 1 April2003 amend the list of industrial and agriculturalprocesses prescribed for thepurpose of Section 30 of the Finance Act2001. These are laid down in the scheduleto the Aggregates Levy (General)“Poor access to finance, long investment cycles, theneed for more targeted research, poor disseminationof new technologies, organisational barriers slowingentry into the market and a lack of awareness andskills are all highlighted as important issues.”Regulations 2002 (SI 2002 No 761). Thenew Regulations will affect Code 004 as faras water is concerned to drinking waterand adds in oil filtration and purification.They will also add in the production andprocessing of drink to Code 012 and theproduction of growing media for sportspitches and other leisure facilities to Code020. The manufacture of agricultural lime isclarified as falling within Code 039 as areagricultural and horticultural uses ofgrowing media which fall within Code 044.European UnionEnvironment technologies(SO, 3 March 2003)The European Commission has publishedfor consultation the Communication‘Developing an action plan for environmentaltechnology’, which sets out itspreliminary views on identifying and tacklingthe barriers to the development ofenvironment technologies. Environmenttechnologies defined by the Commission as‘all technologies whose use is less environmentallyharmful than relevant alternatives’,includes both low and high-tech applicationsand knowledge. The focus of theCommunication is on four specific areas -climate change, soil protection, sustainableproduction and consumption, and water -although this scope is likely to be broaderin the Action Plan, scheduled for publicationby the end of 2003. Poor access tofinance, long investment cycles, the needfor more targeted research, poor disseminationof new technologies, organisationalbarriers slowing entry into the market and43Environment Law BulletinApril 2003

a lack of awareness and skills are all highlightedas important issues. It is proposedto deal with these barriers by using technicalmeasures such as targeting particularresearch technologies, using regulatorymeasures to remove legislative hurdles, byincluding the costs of environmental impactinto markets and by supporting promisingpilot-scale technologies. All comments mustreach the Commission by 15 May 2003.(COM (2003) 131, 25 March 2003)EMASThe total number of EMAS registration fell by3.4% in 2002, leaving 3,780 registered organisationsand companies in January 2003. Incontrast, the number of ISO 14001 certifiedorganisations increased by 42% in the EU overthe same period to 20,400. The ISO 14001 isseen as the weaker of the two standards interms of requirements. Being an internationalstandard, it incorporates the interest of manydifferent countries. It also offers a greater flexibilityand clarity to companies wishing toimplement it. There are also criticism over thecosts of implementing and maintaining anEMAS registration. Germany and Austriawhich are the traditionally strongholds ofEMAS experienced particularly rapid falls in thenumber of organisations registered.(European Commission, March 2003)“There are also criticism over the costs of implementingand maintaining an EMAS registration.”Organic farmingThe European Commission has consultedon a working document for the developmentof organic farming in the EU. Itfollows the initiative of the EuropeanCouncil of Agricultural Ministers invitationto stakeholders to share ideas on furtheraction for boosting organic products inEurope. The Commission is interested inreceiving views, in order to bring forward apossible future action plan. Some of theissues being consulted upon are based onexisting legislation whilst others wouldneed the creation of new instruments. Theconsultation was closed on 16 March 2003.(SEC (2002) 1368, 12 December 2002)WTOThe WTO is to allow UN EnvironmentProgramme (UNEP) and Multi-lateralEnvironmental Agreements (MEAs) ad hocattendance at its meetings on the environment.This decision is seen as a first step inresponding to issues raised at theJohannesburg Summit on sustainable development.The EU has said that it is pushingfor permanent observer status for UNEPand the various MEAs at future meetings.(European Commission Press Release, 20 February 2003)InternationalSustainable development reportingThe World Business Council for SustainableDevelopment (WBCSD) has developed aweb based portal to help companies reporton their sustainable development activities.The portal provides examples of reportingpractices from 43 companies in 14 businesssectors in addition to a guide which can beused as a checklist against a company’s ownpractices. The portal is not intended toprescribe rigid practices but rather togenerate ideas on what information toinclude in a sustainable development report.(WBCSD, January 2003)TourismA study published in the journal EcologicalEconomics has attacked the tourism industryclaiming that it is an unsustainable contributorto land use change and pollution,which is leading to the destruction of habitatsand species, and climate change.Furthermore, the report argues that theindustry could be on the road to selfdestruction through environmental degradation.It says that the main problem is airtravel which in total is responsible for around10% of global carbon dioxide emissions.(Financial Times, 23 January 2003)Environment Law BulletinApril 200344

HELEN HARRISONhelen.harrison@cmck.comA selection of recentcases in environmentand health & safety law“This latter argumentwas dismissed by theHigh Court which ruledthat there had been nobreak in the chain ofcausation.”Water pollutionAn Express Dairies Distribution milk tankerwas travelling on the M25 motorway whena tyre blowout culminated in damage to adelivery pipe and the escape of milk fromthe tanker. The milk entered drains on thehard shoulder of the motorway which feddirectly into controlled waters. Thecompany was prosecuted by theEnvironment Agency for causing pollutingmatter to enter controlled waters, anoffence under section 85(1) of the WaterResources Act 1991. The magistrates heldthat Express Dairies could not rely on thedefence provided by section 89(1) of the1991 Act, that the polluting entry was‘caused or permitted … in an emergency inorder to avoid danger to life or health’because this was limited to situations inwhich an entry occurred to preserve life orhealth. In this case, the real cause of theentry of the pollutant was the tyre blowoutand not the action of the driver in pullingonto the hard shoulder to avoid danger tolife or health. Express Dairies appealed,arguing that the justices had erred in theirconstruction of the defence. The companyalso argued that, following the authority ofEnvironment Agency v Empress CarCompany [1998] 1 All ER 481, thesequence of events from the blowout tothe pollution had been so extraordinarythat the chain of causation had beenbroken and no offence had therefore beencommitted. This latter argument wasdismissed by the High Court which ruledthat there had been no break in the chainof causation. The tyre blowout could notbe considered to be ‘extraordinary’. On thecontrary, it was an ordinary event and theresulting events had followed from it. Theuse of ‘extraordinary’ in Empress CarCompany referred to the intervention of athird party or a natural event. ExpressDairies could however rely on the defenceto causing water pollution provided bysection 89(1) which, on its true construction,was available to a person who actedin an emergency to preserve life or health.It was not limited to situations in which thedischarge itself was caused to preserve lifeor health. The concept of ‘causing’ entrywas broader than that of ‘discharge’ so itwas possible to consider the chain ofcausation and determine whether theaction that had caused the entry of thepollutant had been taken to avoid dangerto life or health. The defence was thereforeavailable to the defendant in this case andthe conviction quashed.(Express Dairies Distribution v Environment Agency, AllER D 393, 27 February 2003)Fines and costs of £119,750 were imposedon Henkel Ltd after the chemical companypleaded guilty to eight separate waterpollution and integrated pollution controloffences under section 85 of the WaterResources Act 1991 and section 23 of theEnvironmental Protection Act 1990. Theprosecution followed several incidents,including one in which two tonnes ofsodium nitrite were discharged into a dyke.This was not reported to the EnvironmentAgency for two weeks. The costs awardedagainst the company totalled £21,750.(Environment Agency News Release, 21 March 2003)Thames Water Utilities Ltd was fined twicein recent months for polluting watercourseswith sewage. In January 2003, thecompany pleaded guilty to an offenceunder section 85 of the WaterResources Act 1991 after foul sewage45Environment Law BulletinApril 2003

from an outfall overflowed into the surfacewater network and entered a brook in WestLondon. A fine of £20,000 was imposed,plus costs of £2,801. Thames Wateradmitted three further water pollutionoffences under section 85 of the 1991 Act inMarch 2003. It was fined a total of £22,500with £2,900 costs: £17,500 for breachingthe conditions of its discharge consent and£5,000 each for two charges of causingwater pollution. The company was prosecutedfollowing an incident in which sewageescaped from a pumping station andentered a lake and streams, resulting in asubstantial fish kill. It has already paid£48,000 to replace fish stocks at the site.(Environment Agency News Releases,28 January and 26 March 2003)Two other sewerage undertakers were prosecutedin early 2003 for water pollutionoffences under section 85 of the WaterResources Act 1991. United Utilities Waterplc was fined £19,000 with costs of £1,257after it admitted discharging sewage effluentinto a tributary of the River Wenning.Effluent was found to be escaping from“A routine sampling exercise by the EnvironmentAgency found that the effluent being discharged was inbreach of the conditions of Anglian Water’s dischargeconsent concerning suspended solids and BOD.”lagoons at the company’s wastewater treatmentworks. A fine of £18,000 was imposedon Anglian Water Services Ltd in February2003. The company pleaded guilty tocausing trade or sewage effluent to bedischarged into the North Sea from its wastewatertreatment centre in Lowestoft. Aroutine sampling exercise by the EnvironmentAgency found that the effluent beingdischarged was in breach of the conditions ofAnglian Water’s discharge consentconcerning suspended solids and BOD.(Environment Agency News Releases,22 January and 21 February 2003)Sewerage servicesSection 101A of the Water Industry Act1991 imposes a duty on sewerage undertakersto provide a public sewer for thedrainage of domestic sewage if the conditionsset out in that section are satisfied.Unsuccessful applications for access to thepublic sewerage system were made by anumber of householders to their sewerageundertaker (the claimant). The sewerageundertaker concluded that the existingseptic tanks should be replaced withcesspools. The dispute was referred to theEnvironment Agency which determinedthat the sewerage undertaker had a dutyunder section 101A of the 1991 Act toprovide a public sewer to certain premises.The undertaker applied for judicial reviewof two of the Agency’s decisions,contending that the Agency had notcarried out adequate inquiries and that ithad wrongly assumed that it did not needto carry out the balancing exercise requiredby section 101A (2) and (3) because it wasunder the impression that a duty to sewerall the premises in the locality arose if anyof them were causing adverse environmentaleffects. This approach had beenheld to be unlawful in R v EnvironmentAgency, ex parte Anglian Water ServicesLtd [2002] EWCA Civ 05 31 January 2002.It was also claimed that the Agency hadapplied its policy against cesspools inflexibly.The High Court dismissed theclaimant’s appeal. Both parties acceptedthat it had been open to the EnvironmentAgency to include premises in the duty tosewer that were not originally the subjectof the initial application. In such circumstances,the Agency should however makethe claimant aware of this and also seekto ensure that it had the necessary informationin relation to the additionalpremises. This had been done in this case:the sewerage undertaker had been put onnotice that the Agency was consideringthe additional premises and, on the informationsupplied by the claimant, theAgency had been entitled to reach itsconclusions. The Agency had not failed tocarry out the balancing exercise requiredunder section 101A(2) and (3). Nor had itbeen under the impression that all premisesin the locality had to be sewered ifany were found to be causing adverseEnvironment Law BulletinApril 200346

environmental effects. Finally, there wasno evidence that it had applied itscesspool policy inflexibly. The applicationfor judicial review was dismissed.(Dwr Cymru Cyfyngedig v Environment Agency ofWales, [2003] EWHC 336 (Admin), 28 February 2003)WasteStewart Browett received a four monthsprison sentence after pleading guilty toeight charges of keeping and treatingwaste on his land without a waste managementlicence, an offence under section 33of the Environmental Protection Act 1990.The judge found that Mr Browett was criminallyinvolved in the activities at the site heoccupied and that his unwillingness to paya financial penalty left no alternative otherthan the imposition of a custodial sentence.Kevin Kennell, a business associate of MrBrowett’s, was sentenced to eight monthsimprisonment for related waste offences inlate 2002.(Environment Agency News Release, 10 January 2003)A three months prison sentence imposedon the owner of a skip hire company wasreduced on appeal to a £20,000 fine byDerby Crown Court. Timothy Birchenoughadmitted two charges of depositing andkeeping waste on land without a wastemanagement licence contrary to section 33of the Environmental Protection Act 1990after his company was discovered to havetipped waste that had been collected frommembers of the public. Costs of £2,666were also awarded against him.(Environment Agency News Release, 24 February 2003)Storing a quantity of waste more than tentimes the amount permitted by theEnvironment Agency led to the prosecutionof Kevin Deery and fines totalling £26,000.Mr Deery pleaded guilty to keeping wastewithout a waste management licencecontrary to section 33 of the EnvironmentalProtection Act 1990 (£12,000 fine). He alsoadmitted charges of illegally burning waste(£1,000 fine) and storing oil in tankswithout sufficient bunding at DeeryConstruction Ltd’s site (£4,000 fine). Thecompany has since gone into liquidation.Costs of £10,000 were also awardedagainst Mr Deery.(Environment Agency News Release, 25 March 2003)Clinical wasteFines totalling £100,000 were imposed onEurocare Environmental Services Ltd afterthe company admitted ten chargesrelating to the illegal storage and handlingof clinical waste and to the pollution of awatercourse with liquid from its incinerator.Eurocare Environmental, which had anumber of waste disposal contracts withNHS Trusts, was discovered to be keepingclinical waste in unrefrigerated trailers inprivate lorry parks. An Environment“A three months prison sentence imposed on theowner of a skip hire company was reduced on appealto a £20,000 fine by Derby Crown Court.”Agency surveillance operation at thecompany’s incinerator also found noncompliancewith its integrated pollutioncontrol (“IPC”) authorisation. Thecompany pleaded guilty to six wasteoffences under Part II of the EnvironmentalProtection Act 1990, one offence of failingto comply with the conditions of an IPCauthorisation under Part I of the 1990 Act,one offence of causing water pollutioncontrary to section 85 of the WaterResources Act 1991 and two offences ofmaking false and misleading statements tothe Environment Agency in connectionwith applications for a waste managementlicence and an IPC authorisation. EurocareEnvironmental was also ordered to pay£114,818 in costs.(Environment Agency News Release, 14 February 2003)Oil pollutionExtensive oil pollution resulted from thegrounding of the Sea Empress off MilfordHaven in 1996. Claims for damages comingabove the owners’ limitation figure were tobe settled by the International Oil PollutionCompensation Fund in accordance with theMerchant Shipping Act 1995. In this case,the claimant was a shellfish processingbusiness based in Devon which had supplycontracts with fishermen in the MilfordHaven area. The company alleged that thefishing ban imposed under the Food and47Environment Law BulletinApril 2003

Environment Protection Act 1985 had led toit losing the profit it would otherwise havemade from processing the shellfish and thatthis sum was recoverable without proof ofdefault by virtue of section 153(1)(a) ofschedule 4 to the 1995 Act. This sectionprovides that where oil has been dischargedor has escaped, the ship owner is liable for‘any damage caused in the territory of theUK by contamination resulting from thedischarge or escape’. Whilst the InternationalFund accepted the claimant’s loss of profithad been foreseeable, it argued that thisflowed from the interruption of a businessrelationship with the primary victims of thecontamination. As a matter of law, such asecondary or relational claim was not recoverable.The High Court agreed and ruledthat the claim must fail for the same reasonsas those in Landcatch Ltd v The InternationalOil Pollution Compensation Fund [1999] 2Lloyd’s Rep 316, that is that it was an indirect,relational economic loss which was tooremote from the causal factor. The claimant’sappeal to the Court of Appeal was unsuccessful,that Court holding that the“This section provides that where oil has beendischarged or has escaped, the ship owner is liable for‘any damage caused in the territory of the UK bycontamination resulting from the discharge or escape’.”claimant’s action should be excludedbecause it was not engaged in any localactivity in the physical area of the contamination.Rather, its loss arose from its inabilityto process, pack and deliver the landed shellfishin a location far away from thepollution. This was a form of secondary lossand outside the intended scope of the 1995Act which was closely focused on physicalcontamination and its consequences. Incontrast, the local fishermen whose physicalactivities were closely affected by the oilpollution would be able to recover under the1995 Act as they had a direct economicinterest in the contaminated waters.(Alegrete Shipping Co Inc and Another v TheInternational Oil Pollution Compensation Fund 1971andOthers, [2003] EWCA Civ 65, 7 February 2003))AsbestosProceedings in negligence were broughtagainst the Royal Navy by Mr Matthews,a former electrical mechanic who claimedthat he had been injured by exposure toasbestos during his work on board shipbetween 1955 and 1968. In response,the Secretary of State certified undersection 10(1)(b) of the CrownProceedings Act 1947 that Mr Matthews’injuries would be treated as attributableto service for the purpose of an entitlementto an award under the NavalMilitary and Air Forces Etc. (Disablementand Death) Service Pensions Order 1983.The effect of this certificate was topreclude a claim in tort for personalinjury. The High Court held that section10 of the 1947 Act was a procedural barto a civil claim and was therefore incompatiblewith article 6(1) of the EuropeanConvention on Human Rights (“ECHR”)(the right to have the opportunity ofhaving civil rights determined by an independentand impartial tribunal). Thisdecision was reversed by the Court ofAppeal which allowed an appeal by theCrown and held that section 10 wassubstantive rather than procedural andthat article 6 of the ECHR did not apply.Mr Matthews’ appeal to the House ofLords was dismissed. Article 6 wasconcerned with procedural fairness andthe integrity of the state’s judicial system,not with the substantive content of itsnational law. Although defining theborderline between substance and procedurecould be difficult, the general natureof the distinction was clear in principle. Inthis case, section 10 of the 1947 Actsubstituted a no fault system of compensationfor a claim for damages, creating asubstantive limitation on the right to suethe Crown in tort under section 2, whichhad section 10 not been enacted, wouldotherwise have been available. The provisionof a certificate by the Secretary ofState did not alter this. It was not aprocedural limitation and so was notincompatible with article 6 of the ECHR.(Matthews v Ministry of Defence, [2003] UKHL 4,13 February 2003)Environment Law BulletinApril 200348

Health and safety – finesYorkshire Sheeting & Insulation Services Ltd(the defendant) was sub-contracted to carryout roofing works at commercial premises.In turn, the company engaged a number ofself-employed workers, including one manwho fell through a roof light and wasfatally injured. Yorkshire Sheeting &Insulation and the main contractor (the codefendant)pleaded guilty to failing toensure the safety of persons not in theirdirect employment, an offence undersection 3(1) of the Health and Safety atWork etc. Act 1974. In his sentencingremarks, the judge commented that thevictim was an employee of the defendantand that the company, as employer, boreprimary responsibility for his safety: had itbeen a civil case, the relative moral culpabilitywould have been apportioned as 90%to the defendant and 10% to the codefendant.A fine of £100,000 wasimposed on Yorkshire Sheeting &Insulation, with £8,950 costs, whilst the codefendantwas fined £10,000 andsignificantly lower costs. Yorkshire Sheeting& Insulation appealed against this sentence,arguing that the judge’s approach had beenwrong: the victim was not actually anemployee, some factual errors had beenmade and a precise percentage approach torelative culpability should not have beenadopted. The appeal was successful. TheCourt of Appeal held that the judge haderred in his sentencing by making factualerrors and that his approach masked thetrue nature of the sentencing exercise. Toomuch emphasis had been placed on theapportionment of overall liability betweenthe two parties and not enough onassessing the defendant’s degree of culpabilityand criminality in respect of theoffence and the failure to take steps toensure so far as is reasonable practicablethe safety of the roof workers (followingthe guidelines in R v F Howe & Son(Engineers Ltd) [1999] 2 All ER 249). Settinga tariff for health and safety cases was notpossible as each case must be decided onits own merits. In this case, a substantialfine was required but the £100,000 fineimposed was excessive. Taking into accountthe defendant’s culpability and mitigation,an appropriate fine was in the region of£60,000, an amount that would bereduced to reflect the costs order that wasdetermined in relation to the proportion ofthe original fines. Yorkshire Sheeting &Insulation’s fine was quashed and a newfine of £55,000 imposed.(R v Yorkshire Sheeting & Insulation Ltd, [2003] EWCACrim 458, 26 February 2003)HedgerowsUnder The Hedgerows Regulations 1997,prior notice of the removal of certain types“The Court of Appeal held that the judge had erredin his sentencing by making factual errors and thathis approach masked the true nature of thesentencing exercise.”of hedgerows must be given to a localauthority, subject to specific exemptions,including the proper management of ahedgerow. A decision must be reached bythe local authority within a prescribedperiod on whether to allow the removal orto issue a hedgerow retention notice. It isan offence to fail to serve a hedgerowremoval notice. In this case, Mr Lloyd notifiedConwy County Borough Council thathe proposed to remove 100 metres ofhedgerow but before the period prescribedfor the Council to reach its decision hadelapsed, the hedgerow was removed. In thesubsequent prosecution, Mr Lloyd arguedthat the work carried out had not in factrequired notification because the removalwas necessary ‘for the proper managementof the hedgerow’ (regulation 6(1)(j)).Evidence was accepted by the justices thatthe hedgerow was worthless anddangerous and that its removal was necessaryfor proper management. Mr Lloyd wasacquitted and the Council appealed,arguing that allowing the complete removalof a hedgerow to come within permittedworks under regulation 6(1)(j) wouldprovide a mechanism for the Regulations tobe circumvented. The High Court wasrequired, inter alia, to decide whether the49Environment Law BulletinApril 2003

complete removal of a hedgerow couldamount to ‘proper management’ for thepurposes of regulation 6(1)(j). That regulationcontemplated the removal of ‘anyhedgerow’, if required for the propermanagement of ‘the hedgerow’. As it didnot distinguish between removing some orall of the hedgerow, the regulation didencompass the possibility that completeremoval could amount to proper managementof a hedgerow. This interpretation didnot provide a mechanism for the circumventionof the Regulations. In this case, ithad been concluded, on the basis of theevidence presented to the justices, thattotal removal of the hedgerow wasrequired for its proper management. Theappeal was dismissed.(Conwy County Borough Council v Lloyd, [2003] All ER(D) 11, 3 February 2003)Environmental impact assessmentPlanning permission for the erection of 407residential units on a contaminated site wasgranted by the Secretary of State on appealwho decided that environmental impactassessment (“EIA”) was not required and“The claimant brought a claim in nuisance fordamage caused to his land by the flood and sought adeclaration that the defendants had no right todischarge water onto his land.”that the necessary remediation work couldbe dealt with by attaching appropriateconditions to the permission. This decisionwas challenged under section 288 of theTown and Country Planning Act 1990 by alocal resident who was concerned aboutthe land contamination and the lack of anEIA. He argued that the Secretary of Statehad misdirected himself in law by havingregard to potential remediation measureswhereas The Town and Country Planning(Assessment of Environmental Effects)Regulations 1988 suggested that the focusought to be on likely significant environmentalimpact. The application was allowedby the High Court which held that an EIAshould have been conducted before thegrant of planning permission. The site inquestion required extensive remediationwithout which there would be likely to besignificant environmental effects. The 1988Regulations required the provision of separateinformation on likely environmentaleffects and measures to reduce or remedythose effects. The Secretary of State hadbeen wrong to take the remediationproposals into account when decidingwhether the development was likely tohave significant environmental effects andtherefore require EIA. Instead, he shouldhave first decided that there were significantenvironmental effects and that an EIAwas necessary and then determined thesuitability and effectiveness of the remediationmeasures as part of the EIA procedure.The decision was quashed.(Gillespie v First Secretary of State and Another, [2003]EWHC 08 Admin, 20 January 2003)NuisanceThe claimant’s marshland was floodedwhen, after a period of heavy rainfall,water flowed from an adjoining marshand lake owned by the defendants. Theclaimant brought a claim in nuisance fordamage caused to his land by the floodand sought a declaration that the defendantshad no right to discharge wateronto his land. The High Court dismissedthe claim: there was no nuisance liabilityand the duty of care identified in Leakey vNational Trust for Places of HistoricInterest or Natural Beauty [1980] 1 All ER17 did not arise in relation to naturallyflowing water. The claimant appealed. TheCourt of Appeal concluded that there wasno authority for this proposition. TheLeakey duty that an occupier of land owesa general duty of care to a neighbouringoccupier in relation to a hazard occurringon his land did apply with respect tofloodwater. ‘Naturally flowing water’ wasan expression that could bear more thanone meaning and in the context of theEnglish landscape, a distinction betweennatural and artificial features was aninherently uncertain foundation on whichto rest a decision as to the existence ofliability in nuisance. It had therefore beenincorrect for the High Court judge toEnvironment Law BulletinApril 200350

conclude that there was no duty of care.The key to resolving disputes betweenneighbours in cases such as this wasreasonableness between neighbours. Inthis case, the evidence suggested that thedefendants had acted reasonably. Theappeal was dismissed.(Green v Lord Somerleyton and Others, [2003] EWCACiv 198, 28 February 2003)The claimants issued proceedings allegingthat foul and surface water escaping fromthe defendants’ drainage system had penetratedthe party wall between theirpremises and accumulated in their cellar. Itwas claimed that defendants had caused orpermitted this to occur and that theiraction or lack of it constituted a nuisance.The claimants sought an injunction toprevent the continuation of the nuisance,plus damages to cover repair costs and lossof rent for the ground floor of the property.In court, it was established on the balanceof probabilities that the defendants’drainage system was responsible for theproblem and that the defendants wereliable in nuisance. An injunction wasgranted requiring investigations and remedialwork and damages were awarded tothe claimants in respect of past and futurerepair costs and past and future loss ofrent. The defendants appealed, contendingthat the judge had not made specific findingsor given reasons to justify the overallconclusion that they were liable innuisance. It followed therefore that therewas no basis on which to make an orderfor an injunction and that, in any event, theterms of the injunction were too vague.This appeal was dismissed by the Court ofAppeal. On the evidence, the judge hadfound that water had run between theproperties because of defects in the defendants’drainage system. It was implicit inthese findings that at the time the defendantsmust have known about the drainagedefects and their consequences. The propertest for liability was whether the defendantswere aware or should have beenaware of the facts that constituted thenuisance: it was not necessary for the judgeto find that the defendants knew the factsand also appreciated that as a matter oflaw that they constituted a nuisance. In thiscase, the defendants had known the factsat all times and the judge had made noerror in respect of their liability in nuisance.Further, criticism of the injunction wasunfounded. It was open to the defendantsto apply to the court for an order that theyhad discharged all their obligations in relationto the injunction. Neither had thejudge been wrong concerning the damagesawarded. To sum up, she had not erred inany aspect of liability or damages and therehad been nothing wrong with the form orcontent of the injunction.(Fawcett and Others v Phoenix Inns Ltd and Another,[2003] EWCA Civ 128, 12 February 2003)51Environment Law BulletinApril 2003

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