ECHA PFASs Ban Proposal (EU)

In a major development, the European Chemicals Agency (ECHA) has today 7th Feb 2023 published its proposal to ban PFASs.

Per- and polyfluoroalkyl substances (PFASs) are a large class of thousands of synthetic chemicals in common use. They are increasingly detected as environmental pollutants and some are linked to negative effects on human health.

ECHA states as they all contain carbon-fluorine bonds, which are one of the strongest chemical bonds in organic chemistry, it means that they resist degradation when used and also in the environment. Most PFASs are also easily transported in the environment covering long distances away from the source of their release.

ECHA states that PFASs have been frequently observed to contaminate groundwater, surface water and soil. In addition, cleaning up polluted sites is technically difficult and costly. And so, if releases continue, they will continue to accumulate in the environment, drinking water and food.

Information about the ECHA proposal and ECHA’s next steps are here.

EU Law Revocation (UK)

Yesterday the REUL bill had its Third Reading in the House of Commons, and now goes to the House of Lords. To remind, it’s a UK bill extending to all parts of the UK. It’s unamended, save for a government amendment that will make any document surviving the process to be known as an “assimilated” instrument.

At Third Reading, the government confirmed the following –

(1) up to 4,000 existing instruments on the UK statute base could be affected by the REUL bill project, they said 3,200 instruments had already been verified as within the scope of the project (the government accepted its (public) dashboard shows 2,400, some already revoked)

(2) the (above) dashboard (here) hitherto moribund, would be updated possibly by the end of this month

(3) standards could rise, despite the REUL bill regulatory burden stipulations

(4) devolved governments could reissue the sunsetted laws themselves within their capacities (no announcement re Northern Ireland which has no current government)

Reminder: the REUL bill will sunset (revoke) in scope existing instruments by 31st December 2023. The bill enables a Minister or a devolved administration to exempt an instrument or a part of an instrument from sunset before that date, and thereby preserve it.

The bill gives an extension possibility, by regulation of a Minister (not a devolved administration) and only for an instrument or category of instrument specified in that regulation (not a general extension), and only to 23 June 2026.

The bill applies UK wide, but “Northern Ireland law” is out of scope.

It’s now accepted that 4,000 existing instruments are in scope.

As I posted yesterday, the Britain list (of in scope REUL bill affected instruments) is already loaded onto subscribers’ systems. I will now compile the Northern Ireland list, and it will show on subscribers’ systems shortly.

EU Law Revocation (Northern Ireland)

I had earlier written that the REUL Bill does not apply to Northern Ireland. This is incorrect. As currently drafted, the Bill applies to Northern Ireland, and so it’s accommodation of the pre-existing Northern Ireland Protocol is not presently understood.

The Bill is back in Parliament today for its Third Reading in the House of Commons.

I will commence compiling the list of laws pertaining to Northern Ireland affected by the Bill. This will load onto subscribers Northern Ireland systems shortly, and updates included in the monthly Email Alerts. This list will also identify those of the cohort also listed in the Northern Ireland Protocol. If a document is listed in the Northern Ireland Protocol, it also applies in Northern Ireland, even if identified for deletion under the Bill.

Note: the list pertaining to Britain and the devolved administrations in Britain (Scotland and Wales) is already loaded onto subscribers systems for these jurisdictions.

I will Blog post again, if the Government accepts any amendments arising from the Report stage, being debated later today.

The later stages in the Lords (of enactment of this Bill) could also make amendments, that may or may not be accepted by the Government. Further Blogs on the matter can be expected.

New Lighting Products MEPS (Britain)

The UK government is consulting on changes to the 2021 Regulations on lighting products, to put in place more stringent minimum energy performance standards (MEPS) from late 2023.

The existing rules are set out in The Ecodesign for Energy-Related Products and Energy Information (Lighting Products) Regulations 2021. The 2021 Regulations were, anyway, enacted after 31st Dec 2020 and are not part of the REUL project; but the new MEPS proposed will be more stringent than those applying to lighting products circulating in the EU.

The current deadline to end the circulation of CE marked lighting products on the GB market (31st December 2024) would be brought forward to the date the new GB requirements come into effect.

The consultation is here. The consultation ends on 4th April 2023.

Holiday Entitlement Consultation (Britain)

The UK government is consulting on changes to holiday entitlement for part year and irregular hours workers. The proposal is to amend the Working Time Regulations 1998, which give effect to pre-31 Dec 2020 EU law, to remove the effect of a recent Supreme Court judgment, and in effect to move away from EU law in this respect.

In July 2022, the Supreme Court handed down its judgment on Harpur Trust v Brazel. This case concerned the calculation of holiday pay and entitlement of a permanent part-year worker on a zero-hours contract.

The judgment held that the correct interpretation of the Working Time Regulations 1998 is that holiday entitlement for part-year workers should not be pro-rated so that it is proportionate to the amount of work that they actually perform each year.

Part-year workers are entitled to 5.6 weeks of statutory annual leave calculated using a holiday entitlement reference period to determine their average weekly pay, ignoring any weeks in which they did not work. As a result of the judgment, part-year workers are now entitled to a larger holiday entitlement than part-time workers who work the same total number of hours across the year.

The UK government disagrees with this approach, and proposes amending the Working Time Regulations to ensure that holiday entitlement reflect hours worked. The consultation is here.

The consultation closes on 9 March 2023.

SPS Border Posts Construction (Northern Ireland)

The UK Government has enacted The Official Controls (Northern Ireland) Regulations 2023, in force on 2nd February 2023.

These Regulations make provision allowing the Secretary of State to implement specific elements of Article 64 of European Regulation (EU) 2017/625 on official controls and other official activities performed to ensure the application of food and feed law, rules on animal health and welfare, plant health and plant protection products, in Northern Ireland.

The EU document applies in Northern Ireland by virtue of the Withdrawal Agreement.

Regulation 3 provides that the Secretary of State may do anything that the Secretary of State considers appropriate in connection with the construction of facilities for the purpose of performing official controls.

It also makes provision for the Secretary of State to direct the competent authority in Northern Ireland to recruit and employ staff to implement Article 64 in Northern Ireland.

As a result, border post construction for the purposes of SPS checks on goods likely to cross the border into the EU (on the island of Ireland) can be expected to commence.

New Packaging and Packaging Waste Regulation (EU)

The European Commission is proposing new EU-wide rules on packaging, in the form of an EU Regulation, replacing the existing Directive.

The new Regulation has three main objectives:

(1) to prevent the generation of packaging waste: reduce it in quantity, restrict unnecessary packaging and promote reusable and refillable packaging solutions.

(2) to boost high quality (‘closed loop’) recycling: make all packaging on the EU market recyclable in an economically viable way by 2030.

(3) to reduce the need for primary natural resources and create a well-functioning market for secondary raw materials, increasing the use of recycled plastics in packaging through mandatory targets.

The proposal on packaging and packaging waste will now be considered by the European Parliament and the Council.

The proposal is here. The Q&A is here.

New Batteries Regulation (EU)

Provisional political agreement is reached between the European Parliament and the Council on a new Batteries Regulation. The proposed Regulation is here. It will replace the existing Batteries Directive.

Once the new law enters into force, sustainability requirements on carbon footprint, recycled content and performance and durability will be introduced gradually from 2024 onwards. A more comprehensive regulatory framework on Extended Producer Responsibility will start applying by mid-2025, with higher collection targets being introduced over time. For portable batteries the targets will be 63% in 2027 and 73% in 2030, while for batteries from light means of transport, the target will be 51% in 2028 and 61% in 2031. All collected batteries will have to be recycled and high levels of recovery will have to be achieved, in particular of valuable materials such as copper, cobalt, lithium, nickel and lead.

Extensive more detailed secondary legislation will be adopted from 2024 to 2028 to enable the new regime to be fully operational.

Companies placing batteries on the EU internal market will have to demonstrate that the materials used for their manufacturing were sourced responsibly. This means that social and environmental risks associated with the extraction, processing and trading of the raw materials used for the battery manufacturing will have to be identified and mitigated.

The new Batteries Regulation will enter into force once it’s adopted by the European Parliament and the Council. It will then be added to Cardinal Environment Tailored EHS Legislation Registers & Checklists.

Carbon Border Adjustment Mechanism (EU )

Agreement was reached on Tuesday on the EU’s Carbon Border Adjustment Mechanism. (CBAM). The agreement needs to be confirmed by ambassadors of the EU member states, and by the European Parliament, and adopted by both institutions before it is final.

This provisional agreement is dependent on some aspects which are relevant for CBAM but need to be spelled out in other pieces of legislation on which negotiations are still ongoing. The Council presidency considers that the CBAM regulation can be formally adopted only once the elements relevant for CBAM are resolved in other related dossiers.

Concerning the products and sectors which fall within the scope of the new rules, CBAM will initially cover a number of specific products in some of the most carbon-intensive sectors: iron and steel, cement, fertilisers, aluminium, electricity and hydrogen, as well as some precursors and a limited number of downstream products. Indirect emissions would also be included in the regulation.

Under the provisional agreement, CBAM will begin to operate from October 2023 onwards. Initially, a simplified CBAM would apply essentially with reporting obligations only. The aim is to collect data. From then onwards, the full CBAM will kick in. It would be phased in gradually, in parallel to a phasing out of the free allowances, once it begins under the revised EU emissions trading system (ETS) for the sectors concerned.

CBAM addresses greenhouse gas emissions embedded in certain goods listed in Annex I of the proposal, upon their importation into the customs territory of the Union, in order to prevent the risk of carbon leakage.

CBAM targets imports of products in carbon-intensive industries. The objective of CBAM is to prevent the greenhouse gas emissions reduction efforts of the EU being offset by increasing emissions outside its borders through relocation of production to non-EU countries (where policies applied to fight climate change are less ambitious than those of the EU) or increased imports of carbon-intensive products.

CBAM is designed to function in parallel with the EU’s Emissions Trading System (EU ETS), to mirror and complement its functioning on imported goods. It will gradually replace the existing EU mechanisms to address the risk of carbon leakage, in particular the free allocation of EU ETS allowances.

It is essentially a Carbon Border tax. Importers will have to buy permits for their carbon emissions at the same price as domestic producers under the EU’s emissions trading system.

Some issues are still outstanding (set to be discussed over this weekend) . These include energy rebates, and the free greenhouse gas allowances currently received by some EU companies.

CBAM is designed to protect against “carbon leakage” – the risk that EU industries could outsource manufacture of goods for the domestic market to regions with lower environmental standards.

Note: the US has introduced its own Inflation Reduction Act of 2022 – a 700 billion US dollar climate, health and tax bill. Information is here.

Environmental Targets (UK)

Late today the UK Government announced its delayed proposals for targets (under the Environment Act 2021) – 13 targets will be laid by statutory instrument – here – they will go live in 2023 once approved by Parliament – this is a link to England’s biodiversity indicators –

Biodiversity on land

  • To halt the decline in species abundance by 2030.
  • To ensure that species abundance in 2042 is greater than in 2022, and at least 10% greater than 2030.
  • Improve the Red List Index for England for species extinction risk by 2042, compared to 2022 levels.
  • To restore or create in excess of 500,000 hectares of a range of wildlife-rich habitat outside protected sites by 2042, compared to 2022 levels.

Biodiversity in the sea 

  • 70% of the designated features in the MPA network to be in favourable condition by 2042, with the remainder in recovering condition.

Water quality and availability 

  • Abandoned metal mines target: Halve the length of rivers polluted by harmful metals from abandoned mines by 2038, against a baseline of around 1,500 km.
  • Agriculture target: Reduce nitrogen (N), phosphorus (P) and sediment pollution from agriculture into the water environment by at least 40% by 2038, compared to a 2018 baseline.
  • Wastewater target: Reduce phosphorus loadings from treated wastewater by 80% by 2038 against a 2020 baseline.
  • Water Demand Target: Reduce the use of public water supply in England per head of population by 20% from the 2019/20 baseline reporting year figures, by 2037/38.

Woodland cover 

  • Increase total tree and woodland cover from 14.5% of land area now to 16.5% by 2050.

Resource efficiency and waste reduction 

  • Reduce residual waste (excluding major mineral wastes) kg per capita by 50% by 2042 from 2019 levels.

Air quality 

  • An Annual Mean Concentration Target for PM2.5 levels in England to be 10 µg m-3 or below by 2040.
  • A Population Exposure Reduction Target for a reduction in PM2.5 population exposure of 35% compared to 2018 to be achieved by 2040.

The announcement states the UK Government will set out more details about its plans to deliver these targets in its Environmental Improvement Plan: its manifesto for the environment for the next 5 years. Publication will be by 31 January, as required by law.

There are no targets announced for –

* River or groundwater health (existing legislation is listed for deletion in GB under the Removal of REUL Project)

* Protected nature sites (much of the existing legislation is listed for deletion in GB under the Removal of REUL Project)

* Resource efficiency (existing legislation is listed for deletion in GB under the Removal of REUL Project)