Happy Christmas 🎄

I wish all who read this Blog a very Happy Christmas and many thanks for your company in 2018 🎄

Brexit Status (20 Dec 2018) (UK and EU)

Today, less than 100 days remain before exit day.

The EU has published Brexit Preparedness Notices, a proposed Contingency Action Plan, proposed Implementation of the Contingency Action Plan (which has further measures), and a Q&A about the Contingency Action Plan. This information is found here.

Please check all parts of the EU information.

The UK has published Technical Notices, and republished some of these yesterday with some updates. This information is here.

Please check all parts of the UK information, ignore the update date at the head of the page, scroll down and the update position of each document is visible.

In addition, ECHA, HMRC, the Department of Health and Social Care, the Department for Transport, and HSE, have each published additional guidance. Please check in the categories Chemicals, UK Brexit Notices and EU Brexit Notices, on this Blog.

In addition, Brexit laws are being proposed and enacted at UK level and also at EU level. The continually updating Brexit Law List (of global OHS and ENV) is added to Cardinal Environment EHS Legislation Registers & Checklists.

In summary : (if there is no deal) so far – (main points)

(1) air service agreements are in place with certain countries

(2) plans are in place to stockpile medicines

(3) membership of the Common Transit Convention is negotiated – this facilitates cross-border trade, but does not remove the need for all checks

(4) UK air service providers will be permitted to fly between the UK and an EU destination, but they will not be allowed to fly between EU27 cities

(5) on financial services, the Commission is granting ‘equivalence’ in a very limited number of areas, for a period of up to 24 months, and I posted about other limited arrangements that are granted. This will not fully remove the need for some firms to reregister their services with an EU regulator – and the decision could be unilaterally revoked by the Commission at any point

[financial services are beyond the scope of this Blog]

(6) the EU will allow UK hauliers to enter the EU, to continue transporting goods (provided this is reciprocal) – meaning they will not need to apply for the limited number of alternative permits available – but that only runs for nine months

[I corrected my post online, because I had initially said more permits would be available]

(7) the EU has said UK exports will face EU tariffs as with any third country. UK exporters will also be required to go through full customs processes, which the Commission stresses member states need to be ready to manage. The UK is writing to companies with further information on the steps they must take, some members states are also enacting legislation and engaging with companies.

(8) the Swiss existing trade agreement (with the EU) is now rolled-over

(9) HSE will take over from ECHA on REACH – the UK will operate its own chemicals system

(10) the Environment Agency will handle F-gas and ODS quotas

(11) the UK yesterday published its immigration white paper (a single system will be put in place from 2021, this single system will extend the non-EU nationals system to EU and EEA nationals with some tweaks)

[the UK has or is in the last stages of agreements with the EEA and EFTA states – people (outside of occupational health and safety) aspects are beyond the scope of this Blog]

UPDATE (20 Dec 2018) – the EEA EFTA separation agreement covers withdrawal aspects wider than people. The document is here.

UPDATE (20 Dec 2018) – the Immigration bill is here. (it’s very short and narrowly drawn, it ends free movement and confirms rights for Irish nationals)

(12) the UK will withdraw its experts from Seville, and issue its own UK version of BATC documents (industrial emissions control)

(13) participation in EUETS will not be possible, and the UK will put in place a carbon tax

(14) the UK has laid Fisheries and Agriculture bills, and the UK will imminently lay the governance and principles part of the new Environment bill – the UK will operate its own fisheries, agriculture, and environment systems

(15) UPDATE (20 Dec 2018) Leo Varadkar (Irish Taoiseach) today says a hard border would not be an immediacy in the case of ‘no deal’ because the UK/NI would still (at 11:01pm on March 29) still be in alignment with EU/RoI customs and regulations, and a border would only be necessitated by divergence.

(16) UPDATE (29 Dec 2018) UK-US bi-lateral agreed (insurance and re-insurance) to replace the EU arrangement – here.

I am offering subscribers to Cardinal Environment EHS Legislation Registers & Checklists opportunities to discuss Brexit with me in 2019 (additional to Annual Reviews). Please email me.

I wish everyone a very Happy Christmas!

HSE Guidance (UK Brexit)

HSE has now created an online resource for the UK Brexit Notices (the ones it is dealing with) and it’s own guidance for its new role in Chemicals Regulation (I posted about the new role for HSE recently). This online resource is here.

On this resource is new additional REACH guidance here.

Plus an important table with key dates here. Note the downstream user stipulations in this table.

Environment Watchdog Bill (UK Brexit)

DEFRA has just published its draft Environment (Principles and Governance) Bill. This document is here.

The consultation response is here.

This Brexit bill is necessary because without oversight of the EU institutions and mechanisms, environmental governance in the U.K. would face gaps.

The draft Environment (Principles and Governance) Bill sets out how the government will maintain environmental standards as the UK leaves the EU. It also details how the UK will build on the vision of the 25 Year Environment Plan.

This includes creating an independent body – the Office for Environmental Protection (OEP) – which will:

• scrutinise environmental law and the government’s environmental improvement plan (EIP)

• investigate complaints on environmental law

• take enforcement action on environmental law

The draft Bill commits the government to publishing a policy statement which will set out how ministers should interpret and apply environmental principles. It also commits government to have a plan for environmental improvement.

In essence this Bill is the first part of the broader Environment Bill (not yet published). The broader Environment Bill will also include measures on air quality, nature recovery, waste and resource efficiency and water management. A policy paper is also published today (in connection with the Environment Bill). This policy paper is here.

Ireland No Deal Contingency Action Plan (Ireland Brexit)

UPDATE (15 Jan 2019) : Confirmed by the Irish Government – the omnibus Brexit Preparedness Bill (to become the Miscellaneous Provisions (Withdrawal of the United Kingdom from the European Union on 29 March 2019) Act 2019) won’t be published until late February, and is expected to make it to the floor of Dáil and Seanad only in March.

The Cabinet this morning discussed four memos relating to no-deal planning: on Common Travel Area, transport, medicinal supply, legislation required. Planning permission is not required for airports etc, and Minister for Finance has power to direct the OPW in areas where required.

The Dáil is supposed to be in recess for SPD from Mar 13th to 26th, which may not in fact happen.

UPDATE (14 Jan 2019) : Leo Varadkar confirms that Ireland is bringing forward *ONE SINGLE* omnibus Brexit preparedness bill, to deal with *TWENTY ONE* areas in which primary legislation is needed to respond to the effects of a no-deal Brexit.

Ireland has now published its Brexit no deal contingency action plan. This document is here. It has as an Annex, the EU implementation document for its no deal contingency action plan published today, the Q&A, and the EU action plan published in November (I posted about these earlier).

The Ireland plan identifies substantive new legislation will be introduced in January 2019. A government meeting is scheduled for 3rd January 2019.

I will create an Ireland Brexit Law List and add this to the Cardinal Environment EHS Legislation Registers & Checklists.

EU No Deal Contingency Plan Update (EU Brexit)

As they promised, the European Commission has now published its update to its contingency plan for No Deal – 14 legal measures. This document is here.

(1) The Commission repeats its prior position – the EU no deal measures are unilateral, limited and temporary. Adds that they will not apply to Gibraltar.

(2) Re UK nationals in the EU Bloc, the Commission repeats its prior position that they should get residence permits. Silence re acquired rights.

(3) The Commission will issue guidance on social security coordination.

(4) Re Financial Services, the Commission will use its own secondary law powers to immediately adopt unilateral measures. Two of these were already announced.

EU bloc firms will be permitted one year access to derivatives clearing houses in the UK, and two years access to central securities depositories in the UK that settle trades (already announced), and a year-long window will be opened for EU bloc organisations to change the contractual terms of over the counter derivatives.

(5) Re Aviation and International Road Haulage, two legal acts will allow airlines to fly point to point between UK and European cities, the most basic form of landing rights. Aviation safety certificates are also temporarily extended. [these measures were already announced]

[still no measures for ownership rights, an extremely difficult problem for the International Airlines Group (Aer Lingus, British Airways, Iberia and Vueling), which falls below the threshold to maintain its EU flying licences]

9 months of permit-free commercial road haulage, if reciprocal.

(6) Re Trade in Goods, the Commission confirms that general rules will apply, ie tariffs and non-tariff barriers. Adopts an immediate change to EU customs law and proposes a law on exports of dual use goods to the UK (civil goods with military uses).

Time limits are adjusted for customs declarations, but there are no special waivers to help with ro-to ferries at ports.

(7) Re EU Climate Change Policy, the Commission will immediately adopt three measures to take account of Brexit, one applies from January 2019 already.

FURTHER INFORMATION IS SET OUT IN THIS Q&A here.

I will add this document and the global ENV and OHS relevant legal measures to the Brexit Law List in Cardinal Environment EHS Legislation Registers & Checklists.

Food and Drink Waste Hierarchy (England)

DEFRA today announced a new Food and Drink Waste Hierarchy, applicable in England. Scotland and Northern Ireland already have Food Waste rules, and Wales has stipulations to prevent down the drain disposal.

The (England) Food and Drink Waste Hierarchy is here.

The Hierarchy is as follows :

1 Prevent surplus and waste in your business.

2 Redistribute surplus food.

3 Make animal feed from former food.

4 Recycle your food waste – anaerobic digestion.

5 Recycle your food waste – composting.

6 Recycle your food waste – landspreading.

7 Incinerate to generate energy.

8 Incinerate without generating energy.

9 Send to landfill or sewer.

I will add to Cardinal Environment EHS Legislation Registers & Checklists.

New Waste Strategy (England)

Waste legislation and policy is a devolved matter in the UK. Today, DEFRA published its Waste Strategy for England, replacing the 2011 waste review and 2013 waste prevention programme. The document “Our Waste, Our Resources: A Strategy for England” is here.

This 2018 strategy has the stated aim to contribute to the delivery of five strategic ambitions:

1  To work towards all plastic packaging placed on the market being recyclable, reusable or compostable by 2025;

2  To work towards eliminating food waste to landfill by 2030;

3  To eliminate avoidable plastic waste over the lifetime of the 25 Year Environment Plan;

4  To double resource productivity by 2050; and

5  To eliminate avoidable waste of all kinds by 2050.

The document states –

As most of our existing waste legislation is EU-derived, this will be retained in UK law through the European Union Withdrawal Act 2018. And proposals which follow from this Strategy will take account of the future relationship we negotiate with the EU on environmental matters. Where existing legislation is insufficient to deliver our ambition we will take new powers to do so, including through our Environment Bill. And we will work with the devolved administrations to co- ordinate policy on resources and waste, to ensure that approaches are aligned and impacts on the UK Internal Market are minimised.

F-Gases & ODS (Brexit UK)

The UK Government has today issued a Technical Notice of instructions on using and trading F-Gases and ODS. This notice is here.

If there is no deal :

(1) The UK will regulate fluorinated greenhouse gases (F gas) and ozone-depleting substances (ODS) from 30 March 2019.

(2) The EU F gas and ODS regulations will no longer apply in the UK from 30 March 2019.

(3) New UK regulations will transfer most of the requirements of the EU regulations into UK law. [these are not yet published in draft, when they are published, I will add to the Brexit Law List in Cardinal Environment EHS Legislation Registers & Checklists]

(4) The UK will continue to:

• restrict ODS

• use the same schedule as the EU to phase down HFCs (hydrofluorocarbons, the most common type of F gas) by 79% by 2030 relative to a 2009 to 2012 baseline

That means UK F gas quotas will follow the same phase down steps as the EU:

• limited to 63% of the baseline in 2019 and 2020

• reducing to 45% of the baseline in 2021

(5) The UK will manage its own quota systems, and UK companies will need to register for a UK quota.

Where a company produces, imports or exports HFCs (the main class of F gases) or ODS, or products containing HFCs or ODS, it will need to apply for a:

• UK quota to place them on the UK market

• EU quota to place them on the EU market

If the company imports or exports ODS, including to and from the EU, it will need to apply for a UK import or export licence.

(6) The Environment Agency will administer the systems for the whole of the UK.

(7) After 30 March 2019 a company will need a UK HFC quota if it places on the UK market HFCs equivalent to 100 tonnes or more of carbon dioxide (CO2 ) per year. This total includes any imports to the UK from the EU.

(8) The Environment Agency will manage a new UK F gas system, including UK HFC quota allocation.

Companies will need to register on the new UK F gas system to:

• apply for a UK quota

• report on activities

If the Environment Agency has company data, it may register details for you.

The Environment Agency will publish details of how to use the UK F gas systems in early 2019. [I will update this post, or issue a separate post, at that time]

(9) Leak detection and other obligations will not change.

(10) Further rules are set out in the Notice, this post is not a full summary. Please read the Notice.

Chemicals Regulation – CLP (Brexit UK)

The UK has today updated its Technical Notice on CLP, and this now gives further instructions, here.

If there is no deal :

(1) The UK would establish an independent standalone chemicals regime. [this is looking increasingly likely in any event, deal or no deal]

(2) At the time of exit, as the UK would effectively adopt the GHS in the same way as the EU, the UK classification and labelling regime would be based on the existing EU regulatory regime in order to provide continuity for businesses, with amendments to enable functions presently carried out by the EU (including those performed by ECHA), instead being carried out in the UK by the Health and Safety Executive (HSE).

(3) Companies operating in the UK will deal with HSE in place of ECHA.

(4) The main duties and obligations on suppliers to classify, label and package hazardous chemicals placed on the market will remain in place.

This means the duties on UK manufacturers, importers and downstream users to classify, label and package the substances and mixtures they place on the UK market will remain.

This would also be the case for the obligations on those suppliers to identify, examine and evaluate available scientific and information on substances and mixtures where it relates to the possible physical, health or environmental hazardous properties of those chemicals to ensure all the requirements of classification are fulfilled.

Suppliers must also comply with mandatory classification and labelling.

[please note, it’s still unclear if current downstream user obligations under REACH will be continue, I posted about this the other day]

(5) Companies importing chemicals into the UK from EU countries would become importers under CLP and would need to be sufficiently competent to comply with the duties and obligations on an importer, just as they would if importing chemicals into the UK from a non-EU country.

(6) HSE would have the ability to put in place new arrangements for mandatory classification and labelling. These arrangements would allow new and revised classification and labelling to be proposed, considered in liaison with the devolved authorities and adopted for the UK.

(7) Companies would be required to use new UK arrangements and IT tools provided by HSE. These IT tools would be a UK mandatory classification and labelling list (of substances) and a UK notification database. The new arrangements will be operational after 29 March 2019.

(8) Responsibility for chemicals being imported into the EU from the UK would rest with whoever is the EU-based importer (remember, a third country importing into the EU will require the use of an EU-based legal entity) – the importer may therefore need details of the chemicals involved from the UK-based company.