Environment Protection and Biodiversity Conservation Act 1999 (Australia)

The Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act) is the Australian Government’s core piece of environmental legislation which commenced 16 July 2000. Information about the EPBC is found here. We posted earlier about the EPBC water trigger.

The EPBC Act enables the Australian Government to join with the states and territories to deliver a national level scheme of environment and heritage protection and biodiversity conservation. The EPBC Act has the objective to focus the Australian Government interests on the protection of matters of national environmental significance, with the states and territories having responsibility for matters of state and local significance.

Following a change of government, a ‘one stop shop’ for environmental approvals that will accredit state planning systems under national environmental law, to create a single environmental assessment and approval process, is being pursued. This one stop shop policy aims to simplify the approvals process for businesses, lead to swifter decisions and improve Australia’s investment climate, while maintaining high environmental standards.

On 16 October 2013, the Minister for the Environment, the Hon Greg Hunt MP, announced that the Government had approved the framework for achieving the one stop shop. This includes a three-stage process with each of the willing jurisdictions, comprising:

– signing a Memorandum of Understanding;
– agreement on bilateral assessments and updating any existing agreement with the state; and
– negotiation of approval bilateral agreements within 12 months.

Memoranda of Understanding have to date been formed with New South Wales and Queensland. The status of current proposals and agreements reached, together with the associated documents is found here.

Queensland has extensive coal resources. The Kevin’s Corner and Alpha coalmines are two of a series of developments planned for the coal-rich Galilee basin area of central Queensland. GVK’s press release on the proposed Kevin’s Corner coal mine is here.

Per the Guardian news article on legal action being considered by environmental groups – Carbon emissions from coal mined at Kevin’s Corner are estimated at 58m tonnes a year – more than the entire annual emissions of Denmark. Construction is set to start in 2015, with the first coal mined in 2018.

Fracking and Federal Clean Water Legislation (US)

Information on US federal regulation of water impacts is found here.

Per the USEPA – water is an integral component of the hydraulic fracturing process and the USEPA Office of Water regulates waste disposal of flowback and sometimes the injection of fracturing fluids as authorized by the Safe Drinking Water Act and Clean Water Act.

The USEPA’s central authority to protect drinking water is drawn from the federal Safe Drinking Water Act (SDWA).

The protection of underground sources of drinking water (USDWs) is focused in the EPS’s Underground Injection Control (UIC) program, which regulates the subsurface emplacement of fluid.

However, the UIC authority (SDWA § 1421(d)) is altered by the Energy Policy Act of 2005:

“The term ‘underground injection’ –

(A) means the subsurface emplacement of fluids by well injection; and
(B) excludes –
(i) the underground injection of natural gas for purposes of storage; and
(ii) the underground injection of fluids or propping agents (other than diesel fuels) pursuant to hydraulic fracturing operations related to oil, gas, or geothermal production activities.”

While the SDWA specifically excludes hydraulic fracturing from UIC regulation under SDWA § 1421 (d)(1), the use of diesel fuel during hydraulic fracturing is still regulated by the UIC program.

Per the USEPA – Any service company that performs hydraulic fracturing using diesel fuel must receive prior authorization through the applicable UIC program.

Information on how the UIC regulations apply to hydraulic fracturing using diesel fuels is found in EPA’s draft Guidance issued 2012 for public comment. The UIC regulations can be found in Title 40 of the Code of Federal Regulations Parts 144-148.

Disposal of produced water flowback into surface waters of the United States is regulated by the National Pollutant Discharge Elimination System (NPDES) permit program. The Clean Water Act authorizes the NPDES program.

Agreement on Nevada Anaconda Tort Case (US)

Residents local to the old Anaconda copper mine in Nevada had filed a class action lawsuit after the federal USEPA investigation determined that uranium, a by-product of the mine, was leaking into groundwater, resulting in “dangerous levels of uranium or arsenic or both” in 79% of wells north of the mine. A US Labour Department review in 2008 also revealed that the clean-up schedule had not been enforced.

The Defendents (the mining company) had moved (in court) to dismiss seven of the ten claims, but the Court had upheld the Residents claim founded in Rylands v Fletcher strict liability. Here is the Court ruling dated 30th August 2011.

Per the ABC news article – Fueled by demand after World War II, Anaconda produced 1.7 billion pounds of copper from 1952-78 at the mine in the Mason Valley, an irrigated agricultural oasis in the area’s otherwise largely barren high desert. The EPA determined over the years that uranium was produced as a byproduct of processing the copper and that radioactive waste was initially dumped into dirt-bottomed ponds that — unlike modern lined ponds — leaked into the groundwater.

BP and Atlantic Richfield, which bought Anaconda Copper Co. in 1978, provided bottled water for free to any residents who want it for several years. But they say uranium naturally occurs in the region’s soil and there is no proof that a half-century of processing metals is responsible for the contamination. Local residents started seeking outside legal help after a new wave of EPA testing first reported by the AP in November 2009 found that 79 percent of the wells tested north of mine had dangerous levels of uranium or arsenic or both that made the water unsafe to drink. One and a half miles away had uranium levels more than 10 times the legal drinking water standard. At the mine itself, wells tested as high as 100 times the standard.

Though health effects of specific levels are not well understood, the EPA says long-term exposure to high levels of uranium in drinking water may cause cancer and damage kidneys.

Per the ABC news article – The companies agree to pay $7 million in property damages and $900,000 to a medical monitoring fund. The final damages will depend on the cost of extending city water supplies to about 200 residents, estimated between $6.5 million and $12.5 million.

UNFAO Voluntary Guidelines on the Responsible Governance of Tenure

The UNFAO Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security promote secure tenure rights and equitable access to land, fisheries and forests as a means of eradicating hunger and poverty, supporting sustainable development and enhancing the environment. They were officially endorsed by the Committee on World Food Security on 11 May 2012. Information about these Guidelines is found here.

Information on the progress made with the G8’s initiative – New Alliance for Food Security and Nutrition (NAFSN) is found here. This initiative aims to boost investment in African agriculture so as to increase food security by bringing together governments from both the North and the South, multinational firms and international agencies.

The international NGO Oxfam has published a hard hitting report ‘Nothing sweet about it: how sugar fuels land grabs’. In this, Oxfam asserts “Land grabbing is a bitter secret in the sugar supply chains of some of the world’s biggest food and beverage companies. Poor communities across the globe are in dispute or even being kicked off their land, without consultation or compensation, to make way for huge sugar plantations. When they lose their land they often lose their homes and their main source of food and income.”

Oxfam’s Behind the Brands campaign focuses on 10 major food and beverage companies, including Coca-Cola and PepsiCo.

Coca-Cola’s Sustainable Agricultural Guiding Principles document is here.

PepsiCo’s Global Supplier Code of Conduct is here.

The BrandRepublic news report is here.

The Just-Drinks news report is here.

The Guardian news article is here.

Electronic Reporting of Toxics Release Inventory Data (US)

Information on the USEPA’s final rule that requires facilities to report all non-trade secret Toxics Release Inventory (TRI) data to the USEPA using its TRI-MEweb online reporting application is found here.

This rule (40 CFR 372) also requires facilities to submit electronically any revisions or withdrawals of previously-submitted TRI reporting forms. Facilities may revise or withdraw TRI forms going back to reporting year (RY) 1991, but not for years prior to this.

This rule applies to all facilities required to report to the TRI Program, and is effective January 21, 2014.

After January 21, 2014, facilities submitting non-trade-secret TRI reporting forms for the 2013 TRI reporting year (forms due on July 1, 2014) or prior reporting years must report electronically.

Marine Fuels Sulphur (EU) Query

EU Directive 2012/33/EU (effective 17th December 2012) is the implementation within the European Union of mandatory IMO rules on marine fuels, further amending Directive 1999/32/EC as regards the sulphur content of marine fuels.

The key elements of the new directive are:

– In line with Annex VI of the MARPOL Convention, the limits for the sulphur content of marine fuels used in designated SO2 Emission Control Areas (SECAs) will be 1% until 31st December 2014 and 0.1% as from 1st January 2015.

– The IMO standard of 0.5% for sulphur limits outside SECAs will be mandatory in EU waters by 2020. This will also be valid for passenger ships operating outside SECAs to which the current regime of 1.5% applies until that date.

NB: currently a general cap does not allow the use of marine fuels with a sulphur content of more than 3.5% by mass within member states territory, with the exception of fuels used by vessels with alternative exhaust gas cleaning systems operating in closed mode.

In line with the MARPOL Convention the directive provides that Member States shall endeavour to ensure the availability of the required marine fuels.

By 18 June 2014 at the latest, Member States will have to amend their existing legislation on the quality of marine fuels to align it with the new Directive.

From 2015 onwards, Member States are asked to ensure that ships use fuels with a sulphur content of not more than 0.1% in the Baltic Sea and the North Sea including the English Channel. Equivalent compliance methods, such as exhaust cleaning systems, are accepted.

From 2020 onwards, ships operating in all other European Sea areas will have to use fuels with sulphur content of 0.5% or less.

The Association of European Vehicle Logistics has a useful summary of this area.

WEEE Directive (recast) Implementation (UK & Ireland)

The EC Directive on waste electrical and electronic equipment (WEEE) 2002/96/EC (in force and implemented) aims to reduce the environmental impacts of electrical and electronic equipment (EEE) when it reaches the end of life.

In the UK, the Department of the Environment (NI) in conjunction with the Department for Business, Innovation and Skills (Britain) and the Department for the Environment, Food and Rural Affairs (Britain) has established a UK-wide system to transpose the Directive through the WEEE Regulations.

In the UK, the WEEE Regulations require:
– producers of EEE to fulfil their obligations relating to collection, treatment and recycling by joining an approved Producer Compliance Scheme;
– retailers or distributors of EEE to provide information to consumers about the environmental impact of EEE and WEEE and provide a free take system in-store on a ‘like for like’ basis or by joining a UK wide Distributor take-back Scheme.
– adherence to minimum recovery and recycling targets (between 50%-80%) for different types of WEEE;
– waste operators or exporters to issue evidence of tonnages of WEEE recycled. These operators are known as Approved Authorised Treatment Facilities and Approved Exporters.

In Ireland, the 2002 Directive is implemented by the European Communities (Waste Electrical and Electronic Equipment) Regulations 2011 (S.I. No. 355 of 2011).

The Recast Waste Electrical and Electronic Equipment Directive 2012/19/EU was published on 24 July 2012 (entered into force on 13th August 2013), and has a transposition date of 14 February 2014. The Directive aims to further the prevention or minimisation of discarded electrical and electronic equipment (EEE) within the general waste stream, by improving the environmental performance of all operators involved in the lifecycle of EEE.

This is a useful link to the consultation exercises that have been conducted in Britain and in Northern Ireland and the associated documents.

The main changes introduced by the recast are:
– a wider scope for the range of products covered;
– an increased emphasis on re-use;
– the introduction of the concept of a producer’s authorised representative in an effort to lower the regulatory and cost burdens on business;
– new tools to fight the illegal export of WEEE more effectively;
– the introduction for the first time of a one for zero take back requirement with respect to small items of WEEE in retail outlets of a certain size;
– the introduction of higher Member State collection and recovery targets and a changed methodology for calculating the WEEE collection rate.

The Department of Environment, Community and Local Government in Ireland is now consulting on implementation (ROI).

Energy Bill 2012-13 Emissions Performance Standard (UK) (HL amendment)

UPDATE: House of Lords amendment (older coal fired stations) is defeated (4th December vote of the House of Commons).

An Emissions Performance Standard (EPS) is proposed to limit the amount of CO2 emitted by new fossil fuel power stations – this is a statutory limit set by the Energy Bill 2012 on the amount of annual CO2 emissions to be allowed from new fossil fuel generating stations. The limit is set at 450g/kWh until 2045. This document is an update on the technical details of the EPS.

The EPS does not apply to existing plant, which must in any event fit pollution clean-up equipment to meet tighter limits from January 2016. Under the European Industrial Emissions Directive (IED), plants that do not fit clean-up equipment will from January 2016 be subject to a 17,500 hour limit on their operation, after which they must close, or, from mid-2020 be limited to just 1,500 hours of operation a year.

The House of Lords had voted 4th November to give the Secretary of State the power to apply the emissions performance standard—EPS—to any existing fossil fuel power station upgrading to conform to the IED. The Energy Bill returned to the House of Commons, where MPs voted 318 to 236 (4th December) to overturn the amendment. The Government did not consider it necessary to grant itself this power.

Per the 4th December debate – “Let us be clear about what the amendment would do and what it would mean for coal plant. Coal plants operating in 2013 effectively have three choices. The first is to leave the plant as it is, without investment, in which case it would close some time before 2023, depending on how quickly it used the permitted hours of operation to which the Minister referred. The second is to upgrade in order to conform to the industrial emissions directive, as has been done at least once, at Ratcliffe-on-Soar, and as others are considering doing. The third is to upgrade more significantly to extend the lifetime and meet the IED stipulations.

The coal-fired power stations in the first category would be unaffected by the amendment. If they burned through their allowances quickly, operating at 55% load factor, they would still run until 2020, and because of the likely profitability of the capacity market being introduced, I suspect that many would choose to run at slightly lower load levels until 2023. The Government’s emissions performance standards, already in the Bill, will apply to the third category of plant—those that extend their lives through investment. The amendment would impact on the second group and take effect, effectively, from 2023.

The EPS limits on carbon emissions are expressed as the amount of CO2 per kWh, but they limit the amount produced not per hour but per year. A typical power station, therefore, would be limited to a 40% to 45% load factor without lowering its emissions rate. That means running at a low load factor, to manage peaks in demand or in winter, or becoming serious about CCS. Neither choice is the end of coal generation in the UK.

From the Minister’s remarks, it seems that the Government are not persuaded by the amendment for several reasons.”

UK Renewable Energy Roadmap

The 2013 update is published to the UK Renewable Energy Roadmap.

Per this document – “Since the publication of the last Update in 2012, the UK has made very good progress towards our challenging 2020 renewables target, to deliver 15% of our energy demand from renewable sources. We are fully committed to achieving this target and have seen a significant amount of deployment to date, particularly in the renewable electricity sector. This was demonstrated in 2012 when more than 4% of the UK’s energy came from renewable sources – above our interim target. We will continue to monitor our progress towards the target, ensuring that we have measures in place to reach our goal.”

In Quarter 2 of 2013, renewables accounted for a record 15.5% of all electricity generated. Overall capacity has grown by 38% over the period July 2012 to June 2013 and now stands at 19.5 GW.

Per the 2013 Update – “We recognise that some individuals and communities are concerned about the siting of particular renewable energy projects. An important part of this Update concerns our plans for community energy and the work we are doing to strengthen engagement, enhance local benefits, and promote community ownership. We are clear that if renewable energy is to be truly successful it must be truly sustainable, not only economically and environmentally, but also socially. We want to see more and more communities actively involved in small scale renewable projects. It is important that local communities are properly engaged with, and see real benefits from renewable energy developments. The support mechanism and the public register of community benefits in Scotland, which includes over 3 GW of schemes, shows what is possible. We are working towards providing a framework that removes barriers and encourages participation on a wider scale.”

Construction Site Waste Management Plan Regulations Query (England)

UPDATE: the legislation is now published and the Regulations are revoked effective 1st December 2013.

The UK government has signalled it intends to repeal the construction Site Waste Management Plan Regulations 2008 from 1st December 2013. DEFRA’s intentions can be found in its summary of responses to its consultation exercise carried out earlier this year.

The construction Site Waste Management Plan Regulations apply in England only, and create an obligation on organisations that are not regulated as Part A activities (under the Environmental Permitting Regulations) to put in place a waste management plan for construction projects in excess of 300,000 GBP. No such regulations have yet been enacted by the devolved administrations in Northern Ireland, Scotland or Wales.

According to DEFRA, 24 respondents cited the lack of engagement with designers and architects as the main weakness of the Regulations and a reason to repeal. This confirmed industry feedback that Defra had received at earlier stakeholder meetings. Both respondents and those at stakeholder meetings stated that generally clients pass the plan requirement onto contractors, once the building has already been designed, thereby missing out on the greatest savings likely to arise from putting a waste management plan in place. The UK recycling support organisation WRAP is hoping to address this weakness in the supply chain with a new responsibility deal that focuses on the designing out of waste.

“SWMP legislation by-passes the construction design phase which also wields huge power and influence in the creation of resource-efficient outcomes e.g. by ‘designing-out’ waste and specifying recoverable/recyclable products/materials.”