Ban on Outdoor Use of Metaldehyde (UK)

Metaldehyde is used in slug pellets. It’s use is widespread.

Authorisation of Metaldehyde-containing products is regulated by EU law EC Regulation 1107/2009 (Plant Protection Products). This document is a retained law in Britain.

DEFRA announced in September 2020 it would not renew current authorisations for the outdoor use of mollusc-killer in the UK, where Metaldehyde is the active ingredient.

The details are here.

The effect of this decision is from 1st April 2022 Metaldehyde slug pellets should not be used outdoors.

Changes to EU Industrial Emissions Directive (EU)

The European Commission has announced today (5 April 2022) major changes (proposed) to the EU Industrial Emissions Directive (the IED).

Pollution prevention and control will continue to be based on the ‘Best Available Techniques’ (BAT) IED permitting process, but the framework will be enhanced by measures to boost effectiveness:

• Member State permitting authorities will be required to use tighter pollutant emission limit values when revising permits or setting new permit conditions. Currently, about 80% of permits stick to the lowest legally allowed values.

• Extending the IED’s coverage to additional livestock farming and industrial activities: new sectors with significant potential for high resource use or pollution will need to curb environmental damage at source by applying Best Available Techniques.

• Increased focus on energy, water and material resource efficiency and reuse, as well as promoting the use of safer and less toxic, or non-toxic chemicals in industrial processes.

The new sectors proposed for IED coverage include especially:

–   Extractive industry installations (mines), covering metals, rare earth metals and industrial minerals. Energy minerals, such as coal, and aggregate quarries are excluded.

–   ‘Giga-factories’ for electro-mobility batteries: a growth sector, relevant for the industrial transformation, and complementing the Batteries Regulation, for larger-scale plants.

The new rules will preserve the effective mechanism used to date to decide what Best Available Techniques are for the various industrial sectors, known as the Sevilla process. The Sevilla process is a participatory, transparent, science-based information exchange involving all industry, national and European Commission experts, and civil society to set mandatory emission limits of pollutants emitted by large agro-industrial installations. Environmental norms defined through the Sevilla process are published for each industrial sector in the Best Available Techniques Reference Documents – BREFs.

BREFs then become BATC documents, when agreed and published.

Details are here.

Clean Air Zones (England)

Air quality objectives and standards in Britain follow those set by the EU (to 31st December 2020), meanwhile the WHO published new Global Air Quality Guidelines in 2021 here.

Repeated court decisions have determined breaches in Britain, and as a consequence DEFRA is obliging local authorities (England) to meet legal deadlines for improved air quality in hot spot areas. This is done via Local Air Quality Management (also an EU legacy).

Clean Air Zones are sometimes the result. In addition to the Low and Ultra Low Emission Zones in London, three Clean Air Zones are established in England. The Greater Manchester Clean Air Zone is delayed.

Information on Clean Air Zones is here. Note, there can be different types of Clean Air Zones.

Information on the London Zones is here. Note, London operates a Congestion Charge Zone, a Low Emission Zone and an Ultra Low Emission Zone.

Scotland is planning Low Emission Zones in 2022 – information is here.

EU-UK Withdrawal Agreement Joint Committee (Northern Ireland)

The EU-UK Withdrawal Agreement (an international agreement) is overseen by a Joint Committee of the parties. This Joint Committee holds regular meetings, the last meeting was in June 2021. Specialised Committees operate under the auspices of the Joint Committee, these also meet regularly. The last meeting of the Specialised Committee for the Withdrawal Agreement Ireland/Northern Ireland Protocol was in September 2021. The EU tracks these meetings here. The UK tracks these meetings here. You will notice that the statements made re the Ireland/Northern Ireland Protocol are not Joint Statements. This is the case also re Gibraltar.

The next meeting of the Joint Committee is next week, but the agenda is not published.

Meanwhile, the Northern Ireland Executive is not operating (this has happened before). An executive order to stop checks on goods moving from Britain to Northern Ireland is stayed by the Northern Ireland High Court pending a decision of a Judicial Review of that order due early March (in 2021 the Northern Ireland High Court quashed a similar order). Also May is a month in which elections to the Northern Ireland Assembly are scheduled.

In advance of the Joint Committee meeting next week, Irish and EU representatives are discussing matters with Northern Ireland political parties, business and civil society representatives. Checks on goods moving between Britain and Northern Ireland are continuing. In the absence of a Northern Ireland Executive, civil servants will attend the Joint Committee.

The Joint Committee may also consider other matters (the Withdrawal Agreement has other protocols, and five Specialised Committees). The agenda will give more information.

I will update this post (on the blog platform) after the Joint Committee meeting.

Substances of Very High Concern (UK REACH) (Britain)

UPDATE (17 February 2022) : authorisation decisions for time-limited use of SVHC are here.

The government (UKG) has today published its policy on how new chemicals will be added or existing chemicals removed from the Substances of Very High Concern candidate list (SVHC) that was fossilised as at the EU list on 31st Dec 2020. The policy paper is here.

When UK REACH came into force, all substances that were on the EU REACH candidate list were carried over onto the UK REACH candidate list. UK REACH applies in Britain, not Northern Ireland which follows EU REACH.

The UK REACH work programme for 2021-22 committed to assess those substances that have been added to the EU REACH candidate list since UK REACH came into force, to consider if it was appropriate to add them to the UK REACH candidate list.

To aid this assessment, DEFRA (UKG) and the Welsh and Scottish Governments agreed interim principles for including SVHCs on the candidate list in UK REACH:

1 Including SVHCs on the candidate list should be used to encourage substitution away from particularly hazardous substances.

2 A substance should not be proposed for inclusion on the candidate list unless it is a good candidate for the authorisation list.

3 Regulatory Management Options Analysis (RMOA), informed by calls for evidence, should be used to determine if inclusion on the candidate list is the correct route.

The Health and Safety Executive (HSE), with the Environment Agency (EA), used these interim principles to assess the substances that have been added to the EU REACH candidate list since UK REACH came into force. HSE and EA identified four substance groups as priorities for further assessment via Regulatory Management Options Analysis (RMOA):

• dioctyltin dilaurate, stannane, dioctyl-, bis(coco acyloxy) derivatives, and any other stannane, dioctyl-, bis(fatty acyloxy) derivatives wherein C12 is the predominant carbon number of the fatty acyloxy moiety

• 1,4-dioxane

• small brominated alkylated alcohols (SBAA)

• phenol, alkylation products (mainly in para position) with C12-rich branched or linear alkyl chains from oligomerisation, covering any individual isomers and/or combinations thereof (PDDP)

These RMOAs will recommend the most appropriate route for managing any identified risks from these substances. This may include these substances being added to the candidate list, but HSE and EA may make other recommendations.

The Defra Secretary of State, Welsh ministers, Scottish ministers and HSE can put a substance forward for inclusion on the candidate list. They can do so if they consider it fulfils one or more of the technical, hazard-based criteria to be considered an SVHC. HSE will then prepare a dossier on, and consult on, the proposed addition to the candidate list. The final decision on whether to add a substance to the candidate list is made by HSE (with the EA advising on environmental matters).

National Carbon Trading System (Germany)

The FT reports (this morning) higher inflation in Germany, and cites (amongst other components) the carbon tax introduced Jan 1 (2021).

This Blog doesn’t often report on domestic policies in non-UK/Ireland jurisdictions. However, in this case, we comment as follows –

A new national carbon trading system was introduced in Germany, to start Jan 1 2021. In many places, this is cited as a carbon tax. The German National Emissions Trading System sits alongside the EU ETS (and is influential in terms of possible extension of the EU ETS to transport and buildings). The new German system applies to GHG emissions from fuel distribution and supply. Fuel distributors and suppliers based in Germany are obliged to participate (there are exemptions). Specifically, the obligated parties are those that place fuels on the market include fuel wholesalers, gas suppliers or companies in the mineral oil industry that are liable to pay energy tax. For each tonne of CO2 produced by the combustion of these fuels, the party placing the fuel on the market must acquire a corresponding emissions certificate and surrender it to the DEHSt – here.

Further information is set out – here (English).

As you are aware, the UK national carbon trading scheme based on electricity through half hourly meters, was abolished, and the material removed from Cardinal Environment EHS Legislation Registers & Checklists.

Building Safety Regulator (England)

Clause 2 of the Building Safety Bill (not yet enacted), appoints the Health and Safety Executive (HSE) as the Building Safety Regulator in England.

The Building Safety Regulator will be an independent regulator with its own powers, strategic plan, and programme of work. It will give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents.

The Bill proposes that the Building Safety Regulator will have two objectives:

(1) securing the safety of people in and around buildings in relation to risks from buildings

(2) improving building standards.

The Building Safety Regulator will:

* implement a new, more stringent regulatory regime for high-rise buildings in England (high-rise buildings are residential buildings of 7 storeys or more or 18 metres or more in height and in the design and construction phase only, including care homes and hospitals that meet the same height threshold)

* be the building control authority in England for building work on high-rise buildings

* oversee and enforce a new regime for occupation of high-rise buildings

* oversee the safety and performance of all buildings. This has two aspects:

(1) overseeing the performance of other building control bodies (local authorities and registered building control approvers (currently known as approved inspectors))

(2) understanding and advising on existing and emerging building standards and safety risks

* promote competence among industry professionals and regulators to raise standards in the design, construction, and management of buildings.

The HSE published on 14 October 2021 a fact sheet on its proposed enforcement approach – here.

This fact sheet states the HSE intends that –

* the Building Safety Regulator will deliver evidence-based, proportionate, and targeted engagement and interventions with dutyholders,

* the Building Safety Regulator’s programme of work will include communication activities to advise and support dutyholders and residents,

* enforcement activities and sanctions will be targeted to improve the safety and performance of buildings.

The Building Safety Bill provides for greater regulatory scrutiny and the HSE expects a series of hard stops at key stages during design and construction to be introduced by separate regulation (enacted under the Bill when it is an Act and commenced).

During occupation of the buildings in scope, the Bill requires dutyholders to demonstrate ongoing management of building safety risk through a safety case report. The HSE fact sheet states this will give the Building Safety Regulator a wide range of tools to achieve improved building safety performance and to deliver the culture change identified in Dame Judith Hackitt’s review Building a Safer Future.

The Building Safety Regulator will be responsible for the regulatory decisions during the design, construction, occupation and refurbishment of high-rise buildings.

Per the HSE fact sheet – the Building Safety Regulator’s activities to achieve building safety and performance outcomes will include:

* granting permission to proceed with construction work and issuing completion certificates at appropriate points in the construction and occupation phases

* a process of providing certification following assessment of the in-occupation safety case

as well as formal enforcement and sanctions.

There will be a published Enforcement Policy Statement (EPS). But it may be the HSE arrives at a position that it’s existing HSE EPS is sufficiently flexible to accommodate its new responsibilities as the Building Safety Regulator or it requires some amendment but is still the right vehicle.

Re the building safety report – the bill requires a building specific safety case report to be produced (high rise buildings in the design and construction phase). This safety case report will identify the fire and structural hazards associated with the building. It will set out how the risks they present are being managed to prevent the risks materialising and reduce the severity of any incident resulting if the risks do materialise. The adequacy of the safety case will be assessed by the Building Safety Regulator, working with multi-disciplinary teams, as part of the building assessment certification process.

Re oversight of existing building control inspection – the Building Safety Regulator will monitor the performance of local authority building control bodies and private sector building control approvers. The fact sheet states the HSE will also oversee and regulate all individuals working as building inspectors. Building inspectors and building control approvers will be subject to a registration requirement and the Building Safety Regulator may suspend or remove inspectors from the register and address performance and professional misconduct. The fact sheet states there will be improved competence and accountability through the creation of a unified professional and regulatory structure.

Environment Act 2021 OEP (England & NI)

Today (17th November 2021) section 22 of the Environment Act 2021 and Schedule 1 which establish the Office for Environmental Protection (“OEP”) as a body corporate are commenced.

Commencement also brings into force today:

* section 23 which defines the OEP’s principal objective when exercising its functions and provides that the OEP must prepare a strategy that sets out how it intends to exercise its functions

* section 24 which sets out the process by which the OEP must publish, revise or review the strategy and how it must consult on it

* section 26 which sets out that the OEP and the Committee on Climate Change must prepare a memorandum of understanding which sets out how the OEP and the Committee intend to co-operate.

In addition, certain terms used in Part 1 of the Act are now in force:

* section 44 (meaning of “natural environment”)

* section 45 (meaning of “environmental protection”)

* section 46 (meaning of “environmental law”)

* section 47, which provides for the interpretation of further terms.

An interim OEP is already established.

Here is the OEP website

Here is the statement from DAERA (Northern Ireland)

CORRECTION : Fuel Duties changes (UK)

The red diesel and biodiesel fuel duty changes (recent blog) are located in the Finance Act 2021, which is enacted but not yet commenced. The blog post is corrected.

There are further changes proposed in the Finance (No 2) Bill. Further information is here.

The changes to the duties on rebated fuels apply from 1 April 2022.