REUL Bill Further Update (UK)

I refer readers to my earlier blog post of this morning. The Report Stage debate is ongoing at the House of Lords – a number of aspects are being clarified –

(1) The Schedule (Revocation Schedule) is the list of those items that will be removed from the statute book at the end of this year. The Clause introducing this Schedule and removing the sunset clause and its extension is not yet voted on, but it has already been amended by vote to ensure each item on the said Revocation Schedule is referred to the Joint Committee of both Houses of Parliament for scrutiny, and if found to be a substantive deletion, is then debated on the floor of each House and if not approved for deletion, is then kept.

(2) All EU-era law will have its attribution context and it’s interpretative referencing to EU rights removed at the end of the year, regardless, so to that extent the sunset clause persists. Further amendment of this Clause 4 agreed by vote of the House of Lords will require the relevant minister to make a statement before the end of October 2023 to, as the case may be, each House of Parliament, the Scottish Parliament, Senedd Cymru or the Northern Ireland Assembly, identifying any rights, powers, liabilities, obligations, restrictions, remedies or procedures that the relevant national authority has decided not to restate, reproduce or replace before the end of 2023 and that it wishes to be revoked at the end of 2023. In this manner, Parliament & devolved legislatures rather than the Executive would have final say on revocation of rights, powers & liabilities of remaining retained law (assimilated law) at end of 2023.

(3) Any EU-era law not listed in the Revocation Schedule will be assimilated. And this assimilated EU-era law will be able to be changed, modified, including having its title changed and will certainly undergo minor amendment to remove its attribution/interpretative context up to 23rd June 2026 (listed in other clauses to the Bill). This date is not sunsetted. But the intention (as stated by Lord Callanan for the Government) is that the principle and the policy covered by the assimilated EU-era document is kept.

I may amend this Post further online. If I do, the reader must return to check the online version, as it will not be posted out to inboxes.

REUL Bill Update (UK)

This Bill (in my blog before) is now before the House of Lords, today and on Wednesday, for its Report Stage (one of the last stages before Royal Assent).

The UK Government recently confirmed it would delete the 31st December 2023 sunset clause, and its extension date in 2026, except for a list of EU-era documents. This list is now published – it would be an inserted Schedule to the Bill.

Find here, the collated amendments to the Report Stage of the REUL Bill, including the contents of the proposed new Schedule (of deletions by 31st Dec 2023). Note: the UK Government (Lord Callanan) has also proposed to enable devolved governments to remove items from his proposed Schedule.

On this Schedule (list of deletions by 31st Dec 2023) – (assuming Royal Assent of the list as is) –

(1) Removal of Annex 8 to the UK CLP document – here is a link to EU ECHA on the purpose of Annex 8. The UK CLP document is a version of the EU-era CLP (Classification, Labelling and Packaging) Regulation.

(2) Deletion of recent changes to Annex 1 of the EU-era PIC Regulation – a 2019 local instrument made changes to Annex 1 but these are not showing on the legislation dot gov dot uk website, and so we will need to produce a Cardinal Environment text consolidation for this PIC document. Annex 1 lists the chemicals covered by the EU-era PIC Regulation.

(3) Deletion of various EU-era instruments regulating establishing standardised application information when GMOs are to be deliberately released to the market or the environment. The UK now has a Precision Breeding Act regulating PBOs (Precision Bred Organisms) as distinct from GMOs (Genetically Modified Organisms). Under the new Act, the developer no longer “applies” but “notifies”. But developers still must “apply” under EU-era rules for the deliberate release of GMOs into the market/into the environment. It would appear DEFRA intends (by deleting the EU-era rules in this area) to change this to a “notification” process. The GMO register (of genetic modifications in GMOs) being lost in the REUL deletion process would be replaced by the PBO register under the Act. PBOs and GMOs would seemingly co-exist, in regulation terms.

The above would need to be achieved by issue of Statutory Instrument. Hopefully, further information will be available at that point.

We will amend the REUL List showing on client systems. and we will change the colour coding. However, we will retain the REUL List as a whole, since changes may occur to these EU-era rules over time, but not subject to a deadline.

Also note – the UK Government made two additional announcements (at the time of announcing the removal of the 31st Dec 2023 sunset deadline and it’s extension) –

(A) (EU-era) Working Time Regulations – these would be amended a bit, but the 48 hour week would be retained and also the combined leave provisions would still exceed the minimum in the EU.

(B) (EU-era) TUPE Regulations – these would be adjusted a bit. These rules are outside our remit.

UK REACH Extension (UK)

Last year (2022) the UK Government consulted on extending the registration deadlines, from the current deadlines, the first of which is as soon as October 2023.

The UK REACH Regulation contains transitional provisions that allow companies to submit initial ‘notification’ data in order to continue trading and then subsequently provide the full registration data. The transitional provisions apply to those that were registrants, downstream users or distributors under EU REACH before UK REACH came into effect. The current deadlines for completing this transitional registration process, depending on tonnage and hazard profile of the substance, are set down in Article 127P of UK REACH, and the first of these is 27 October 2023.

The UK Government published its consultation response in November 2022. It did agree to extend the deadlines. But the legislation to put this into effect is not yet issued.

We will notify subscribers to Cardinal Environment EHS Legislation Registers & Checklists, in the monthly Email Alert, as soon as this legislation has been enacted. In the meantime, questions about the deadlines should be addressed to the HSE.

The November 2022 UK Government consultation response is here.

Please note: the UK REACH legislative instrument (a Brexit amended EU-era document) is currently on the list for deletion in the REUL Project. However, we now understand that the REUL Project will remove a smaller number of EU-era documents than the current Bill wording requires, and possibly the sunset clause could itself be removed. We await the UK Governments tabled amendments to the REUL Bill, which will return to the Lords 15/17 May for its Report stage, for the detail on this.

Further Neonictinoids Ban (EU)

On 2nd Feb 2023, the EU Commission adopted new rules which, once applicable in 2026, will lower the Maximum Residues Levels (MRLs) of two pesticides in food.

Assessments by the European Food Safety Authority showed that the two chemicals, belonging to the group of neonicotinoid pesticides, clothianidin and thiamethoxam, pose a high risk to bees and contribute to the global decline of pollinators. For this reason, their outdoor use was banned in the EU in 2018.

The new rules will lower existing MRLs for these substances to the lowest level that can be measured with the latest technologies. They will apply to all products produced in the EU, and also to imported food and feed products.

The new rules will be issued as an EU Regulation, that will amend the existing 2005 Regulation. Further information is here.

Also on 19th Jan 2023, the EU court published a preliminary ruling on questions posed by the Belgian Administrative Court, following a complaint by PAN Europe, Nature & Progrès Belgium and a Belgian beekeeper. The Court declared that providing derogations for the treatment of seeds with a banned pesticide and their use is not in line with EU law. The ruling is here.

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 Water Standards (EU)

(1) On 26 October 2022, the EU adopted a proposal to amend the Water Framework Directive, the Groundwater Directive and the Environmental Quality Standards Directive. This proposal is here.

24 substances are proposed for addition to the list of priority substances in surface waters, as well as a standard for total pesticides. They include PFAS, a range of pesticides, bisphenol A, and a number of pharmaceuticals.

The proposal also includes making certain standards stricter for substances already on the list, such as some metals and industrial chemicals.

Four other existing priority substances are proposed for removal from the list, and another for integration into the new PFAS group, and eight already-regulated “other pollutants” have been re-designated as priority substances, resulting in a total of 73.

A Q&A on this proposal is here.

(2) On the 26th October 2022, the EU adopted a proposal to revise the Urban Wastewater Treatment Directive. This proposal is here.

A Q&A on this proposal is here.

The revised directive will introduce extended producer responsibility. This means certain industries will be asked to pay for the treatment of the harmful pollutants that are released from the use of their products. Currently the pharmaceuticals and the cosmetics sectors are jointly responsible for 92% of the toxic load in wastewaters. For both sectors, there is sufficient evidence on the existence of micropollutants from these products in wastewater and there are treatments to remove their harmful residues. In the long term, the European Commission will assess if other sectors can be added to the extended producer responsibility scheme.

EU Commission Work Programme (EU)

On 18 October 2022, the European Commission adopted its 2023 work programme (CWP), entitled ‘A Union Standing Firm and United’. It outlines the Commission’s policy initiatives for 2023, and how it would achieve the headline ambitions in Commission President von der Leyen’s Political Guidelines as set out at the start of her mandate.

The 2023 CWP frames the EU’s headline ambitions within the context of global challenges: in Ukraine, on energy, on the environment, and the fall-out of these developments on the global economy.

The 2023 CWP contains 43 new policy initiatives, eight suggestions to simplify regulation, and 116 pending “priority proposals” for legislation.

Re European Green Deal – the core Fit for 55 package from the 2021 CWP continues, added to this is a new planned revision of EU REACH and a call for binding targets to restore degraded ecosystems.

Note as part of EU Fit for 55, the European Parliament and Council already agreed on stricter regulation of greenhouse gas emissions in member states including less flexibility and more transparency – here.

Also, the Carbon Border Adjustment Mechanism (CBAM) is a key element of EU Fit for 55 – here.

Note re UK REACH – the UK’s Defra department is exploring An Alternative Transitional Registration Model which would apply to Britain. Presently EU REACH applies to Northern Ireland.

The EU continues to exchange views on chemicals regulatory developments with the UK, including through the Specialised Committee on Technical Barriers to Trade set up under the Trade and Cooperation Agreement that was agreed with the UK.

EU Law Revocation (Britain) UPDATE

The Retained EU Law (Revocation and Reform) Bill (I posted about recently) is in Committee stage, and the Public Bill Committee (the relevant Committee) yesterday has asked for submissions to it – here.

You can see from the link, the purpose of the Bill is to sunset (remove from the statute book) certain types of law by end 2023. In particular, the Bill will completely overhaul a body of UK domestic law known as “retained EU law” (REUL). This is a category of law that came into being as a result of the UK exit from the EU. It includes both Retained EU instruments, and certain domestic laws that gain their authority in a particular way.

Note: when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline of 5.00pm on Tuesday 22 November.

As I have written in the last Email Alert to clients, we will commence listing the laws to be affected shortly, and this list will display on Cardinal Environment Limited EHS Legislation Registers and Checklists from Jan 2023 (earlier drafts will display earlier) and be subject to tracking through 2023.

A very considerable number of laws will be affected.

We expect most affected laws to be replaced with new laws, covering the same obligations. The tracking evident on Legislation Registers and Checklists will identify progress.

We do not expect that obligations will be removed altogether. If a law is removed without a replacement, we expect the obligations to be inserted by amendment into other pre-existing law, and the tracking will identify this.

Nonetheless, this is a complex process.

UK REACH (Britain)

On 30th June 2022, the various organisations involved published their rationale for prioritising substances within the UK REACH programme 2022-2023. This document is here.

Priorities are established for 2 types of activity in UK REACH:

• Restriction – a mechanism that can lead to controls on the use of a substance or group of substances

• Regulatory Management Options Analysis (RMOA) – analysis produced by HSE and/or the Environment Agency to understand the risks of using a substance, or group of substances, and make recommendations for managing them.

The following are 5 priorities –

1 Per- and polyfluoroalkyl substances (PFAS) – acting on the recommendations of an ongoing RMOA, due for publication in summer 2022

2 Intentionally added microplastics – an evidence project on identifying and managing the risks they pose

3 Formaldehyde and formaldehyde releasers in articles – an RMOA to review the evidence base and evaluate a potential restriction

4 Bisphenols in thermal paper – an RMOA to review the evidence base and evaluate a potential restriction

5 Hazardous flame retardants – reviewing and updating the existing evidence on potential environmental risks, to feed into wider chemicals policy.

In addition, the HSE is running a number of calls for evidence in relation to additions to the Annex 14 (UK Authorisation List). Addition to the List means prior authorisation is needed to use, or place on the market, the relevant substance, after the specified sunset date.

Note – the DEFRA Secretary of State, together with Welsh and Scottish Ministers will need to authorise any decision.

The HSE link is here.

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.