Review of Marine Protection (England)

DEFRA last week announced the designation of 41 more Marine Conservation Zones in English waters.

Today it is announcing a review of whether and how new stronger protections for areas of the sea known as Highly Protected Marine Areas (HPMAs) could be introduced. This review is to be led by Richard Benyon, a Conservative MP and former Environment and Fisheries Minister who has a particular interest in marine fisheries and their protection. The announcement is here.

The new HPMAs would protect vulnerable areas of England’s coastal, inshore and marine waters by closing them off to any human activity with the potential to cause harm.

The Government’s manifesto includes a commitment to create a Blue Belt of marine protection for Britain’s overseas territories and its own coast.

Per DEFRA – targeted HPMAs would complement the existing network of marine conservation zones and allow vulnerable marine wildlife to fully recover, free from all damaging human activities, with the aim of restoring areas to a pristine state.

The UK’s Blue Belt currently spans 220,000 sq km with 128 Marine Conservation Zones including 89 in English waters.

Targeted Highly Protected Marine Areas would complement the existing network of Marine Conservation Zones, and would mark the most significant expansion of England’s ‘Blue Belt’ of protected areas to date, if it happens.

The review will be asked to establish an evidence-based process and criteria for selecting Highly Protected Marine Areas, and if supported by the evidence, recommend potential locations for pilot sites.

The review is supported by Natural England.

The views of those who use the seas will be at the heart of the review, which will over six months consider the economic and social impacts on businesses and individuals who use the sea, taking into account the views of fishermen, conservation groups, marine industries, and local communities. (DEFRA)

Animals and Animal Products Update (UK Brexit)

The Exit day is 12th April (day after tomorrow) – the Exit time is 12.00 (midnight) CET

(1) The EU has now listed the UK as a ‘third country’. This means the EU has accepted that the UK meets the health requirements for trade with the EU. It ensures that exports of animals and animal products can continue from the UK to the EU if the UK leaves the EU without a deal. This is following a meeting yesterday.

(2) The European Commission has confirmed that the current list of UK animal byproduct-registered or approved premises will be accepted. These premises will continue to be listed with the EU for the purpose of exporting animal byproducts to the EU.

The Department for Environment, Food and Rural Affairs (Defra) is preparing to confirm the list of these establishments with the EU.

(3) Defra is preparing to submit a list of establishments that want to export commodities other than animal byproducts to the EU.

Establishments can provide information and ask to be listed by emailing eulistings@food.gov.uk.

(4) The government will seek to bring into force UK-third country agreements from Exit day, or as soon as possible afterwards. But few are currently in force.

These new agreements will replicate existing EU agreements as far as possible. Where replacement trade agreements are not agreed, trade would take place on World Trade Organisation (WTO) terms with that country. Details of each agreement will be shared with parliament and the public when they have been agreed.

(5) At the moment there is no Border Inspection Post (BIP) in Calais. BIPs are under construction that had the intention of the French authorities to be operational by the end of March.

(6) UK access to TRACES after Exit day is not confirmed.

[the Exit day may change, please continue to follow this Blog]

Animal Products Import from the UK (Ireland Brexit)

The Exit day is 12th April (this Friday) – the Exit time is 12.00 CET (midnight)

UPDATE (10th April) : The EU has now listed the UK as a ‘third country’. This means the EU has accepted that the UK meets the health requirements for trade with the EU. It ensures that exports of animals and animal products can continue from the UK to the EU if the UK leaves the EU without a deal.

The Irish Department of Agriculture, Food and the Marine has published its Information Note on Animal Products Import (from the UK) – here.

It’s part of the DAFM series of Brexit Related Trader Notices and Information Notes – here.

The DAFM Animal Product Information Note repeats – when the United Kingdom (UK) will leave the European Union (EU), it will become a Third Country (i.e. a non EU member State).

Given that the UK will exit the Single Market on that date, there will be a requirement for EU Member States (including Ireland) to apply sanitary and phytosanitary (SPS) checks on all imports of animal products from the UK into the EU.

It continues – my comments in [ ]

This will mean that the importation of animal products from the UK into Ireland will have to meet certain requirements, including:

(1) The UK will have to be listed by the European Commission as a country approved to export the relevant products of animal origin to the EU.

[Presently, it is not. Third Country listing is expected to be granted by 12th April. – see UPDATE]

(2) The UK will have to be listed as having a residue plan approved in accordance with EU legislation.

(3) The establishment in the UK from where the animal product is dispatched must be listed as an EU approved establishment for that category of animal product in the EU’s TRACES system.

[The UK access to this is not confirmed after Exit. The status of EU approval of individual establishments is not published. Queries should be addressed to UK DEFRA.]

(4) Each consignment of animal products must be accompanied by an original health certificate, drawn up in conformity with the model under EU law for the particular product, completed and signed on behalf of the competent authorities of the UK.

[The status of health certification is not published, Queries should be addressed to UK DEFRA.]

(5) The consignment may only enter Ireland through an approved Border Inspection Post (BIP).

[Current Ireland BIPs are at Dublin Airport, Dublin Port and Shannon – here.]

[So far there is no indication where the BIP checks will be made for trade across the Irish Border (from Northern Ireland to Ireland).]

(6) At least 24 hours before the physical arrival of the consignment in Ireland, the person responsible for the load must complete Part 1 of the Common Veterinary Entry Document (CVED) in the EU TRAde Control and Expert System (TRACES).

[Note, UK access to TRACES is not confirmed.]

(7) The consignment must be presented to the BIP where it will be subjected to official controls. These official controls will include documentary checks and identity checks, and may include physical checks, including the taking of samples for laboratory testing.

(8) In addition, a declaration to Customs must be made of the intention to bring a consignment of products/animals into Ireland. The consignment must be declared to Customs using the Single Administrative Document (SAD) before the official controls at the BIP can be completed.

(9) Upon satisfactory completion of the required checks, the decision is entered in Part 2 of the CVED which must accompany the consignment to the first place of destination referred to in the CVED.

[In addition, animal products imported from the UK into Ireland will face tariffs.]

[the Exit day may change, please continue to follow this Blog]

REACH No 2 (UK Brexit)

Exit day is 12th April

I posted yesterday (DEFRA post) that a second REACH SI (Brexit Law) would be enacted. It is now laid, and comments may be made on it for the next few days only.

The document is here.

The instrument amends the REACH etc. (Amendment etc.) (EU Exit) Regulations 2019 (the “REACH SI”). It adds to one of the transitional provisions relating to imported substances.

The REACH SI is here.

[the Brexit Law List in subscribers’ Cardinal Environment EHS Legislation Registers and Checklists is being updated again today. So check later today.]

Information per the Explanatory Note here

What did any relevant EU law do before exit day?

Controls on the use of chemicals are set out in Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals and establishing a European Chemicals Agency (“the EU REACH Regulation”). The REACH SI makes amendments to the EU REACH Regulation to make it operable in the domestic context and create a domestic regime for chemicals. The REACH SI contains a number of transitional provisions to allow for uninterrupted production and supply of chemicals, including one to allow the continued import of substances from the European Economic Area (“the EEA”) (“the transitional import provision”). That provision allows the importer of the substance two years from exit before they have to register the substance with the UK Agency. In the meantime the importer must provide the UK Agency with a notification within 180 days of exit.

Why is it being changed?

After the REACH SI was laid, the Department received representations from industry about the transitional import provision. Industry was concerned that, as drafted, it would still lead to disruption in the supply chain in the case of substances imported from outside the EEA. Industry was also concerned that the provision did not allow an only representative to send the required notification to the UK Agency. Only representatives are UK-based entities appointed by non-UK manufacturers, formulators or producers to fulfil the obligations of importers under the REACH Regulation. The EU REACH Regulation contains an equivalent provision regarding EEA-based only representatives. While industry has not provided detailed evidence of the impact, the Government has decided to reduce the risk through this instrument.

What will it now do?

This instrument adds to the transitional import provision. The revised version will also apply to imports to the UK from outside of the EEA where an EEA-based only representative had registered the substance under the EU REACH Regulation prior to exit. It also inserts a new provision that allows UK-based only representatives to provide the notification to the UK Agency.

Continue reading

National Air Pollution Control Programme (UK)

Published yesterday (1st April 2019) the National Air Pollution Control Programme (NAPCP) sets out measures and analysis for how emission reduction commitments can be met across the UK. The document (which is a lengthy series of tables spanning 60+ pages) is here.

The NAPCP sets out how the UK can meet the legally binding 2020 and 2030 emission reduction commitments (ERCs). These commitments apply for 5 pollutants:

• nitrogen oxides

• ammonia

• non-methane volatile organic compounds

• particulate matter

• sulphur dioxide

This programme is required under The National Emission Ceilings Regulations 2018 (which give effect to EU law on this topic).

The programme identifies the UK air quality framework to be derived from a mixture of domestic, EU and international legislation and consists of three main strands:

(1) Legislation regulating total national emissions of air pollutants – the UK is bound by both EU law (the National Emission Ceilings Directive) and international law (the Gothenburg Protocol to the UNECE Convention on Long-range Transboundary Air Pollution);

(2) Legislation regulating concentrations of pollutants in ambient air;

(3) Legislation regulating emissions from specific sources such as legislation implementing the Industrial Emissions Directive, Medium Combustion Plant Directive, and the Clean Air Act.

The programme mentions Directive 2008/50/EC of 21 May 2008, on ambient air quality and cleaner air for Europe which sets objectives for the following pollutants; sulphur dioxide, nitrogen dioxides, particulate matter (as PM10 and PM2.5), lead, benzene, carbon monoxide and ozone (and applies to the UK).

Plus, Directive 2004/107/EC of 15th December 2004, relating to arsenic, cadmium, mercury, nickel and polycyclic aromatic hydrocarbons in ambient air, covers the four elements cadmium, arsenic, nickel and mercury, together with polycyclic aromatic hydrocarbons (PAH) including benzo[a]pyrene.

The programme mentions the UK National Air Quality Strategy, published in 1997 under the Environment Act 1995 (the last time a UK-wide Environment Act was enacted). This Strategy established objectives for eight key air pollutants, based on the best available medical and scientific understanding of their effects on health, as well as taking into account relevant developments in Europe and the World Health Organisation. These Air Quality Objectives are at least as stringent as the limit values of the relevant EU Directives – in some cases, more so. The most recent review of the Strategy was carried out in 2007.

The programme details the steps taken since in the devolved administrations of England, Scotland, Wales and Northern Ireland.

The programme sets out, in separate Tables, the progress made, targets and future measures.

The programme merits detailed reading, and it is too lengthy to summarise in full in this Blog post.

The programme does not mention the Environment Bill.

Plant Passports & Pest-Free Areas (UK Brexit)

DEFRA issued guidance on this matter in December 2018, and updated it in March 2019. Here

Exit day is 12th April 2019.

After the UK leaves the EU, any plants and plant products currently managed under the EU plant passport scheme will be subject to UK import controls and become ‘regulated commodities’. This will replace the EU plant passport’s assurance and traceability, and maintain biosecurity in the UK.

Importers must :

• register as an importer using the Procedure for Electronic Application for Certificates from the Horticultural Marketing Inspectorate (PEACH) website for regulated plants and plant products entering the UK via England and Wales

• make sure a regulated consignment enters the UK with a phytosanitary certificate (PC) issued in the country of export (or re-export)

• provide pre-arrival notification using the PEACH website – uploaded scanned copies of the PC and other relevant documents (for example bill of lading, cargo movement request, or delivery company invoice) are required to the PEACH website

• supply the original copy of the PC by post within 3 days of the consignment arriving in the UK

• if entering goods directly into Scotland or Northern Ireland, refer to the relevant plant health authority for further information.

Regulated plants and plant products originating in the EU will not be stopped at the border.

The relevant UK plant health authority will carry out their documentary and identity checks remotely. This will be a virtual check using the documents submitted as part of the pre-notification and will not require the goods to stop inland. These checks will be charged for by the plant health authority. Companies will also be charged for any Forestry Commission checks.

Plant health inspectors will continue to carry out follow-up surveillance and inspections inland in line with current policies. The government does not charge for such inspections.

Importing goods from third countries via the EU (such as The Netherlands)

After 12th April, the EU is no longer be obliged to carry out plant health checks on regulated third- country goods going to the UK.

Plants and plant products that come from third countries via the EU without plant health checks by an EU member state, will be treated as third-country imports.

Many plants and plant products entering the UK via the EU arrive at fast-moving roll-on roll-off (RoRo) ports where checks at the border would create significant disruptions to traffic. All third-country plant health regulated material arriving in the UK via RoRo ports requiring checks will have to go to a plant health approved facility for inspection.

These facilities include:

• Place of First Arrival (PoFA) – trade premises that have been authorised to host plant health controls on third country material entering the UK via the EU at RoRo ports

• other facilities that have been authorised for Plant Health control (‘alternative inspection posts’)

Importers must ensure that plant health checks are carried out on third-country material entering the UK via the EU by doing one of the following:

• registering a place of first arrival (PoFA)

• using a non-RoRo point of entry where checks can take place at the border

• using an ‘alternative inspection post’.

Checks on third country plant health material will be charged for by the relevant plant health authority.

[the exit day may change, please keep following this Blog]

Waste Storage and Shipment (UK Brexit)

Yesterday DEFRA issued a reminder to companies to check their waste movements and environmental licences and exemptions (as respects waste).

This reminder is here.

If you or your business collects, transports or stores waste that is due to be exported to the EU, your existing permit or licence still applies and you are expected to continue to meet its conditions.

Given anticipated disruption at some ports, you should make a plan to minimise any impacts on your business:

• review your own capacity and how long you can store waste on your site

• identify alternative storage facilities that could accept your waste

• assess if there are other export routes to market that avoid impacted ports

• identify any alternative recovery or disposal routes for your waste

• contact your haulage operator to discuss any potential changes to transport plans

If you do change your export route, you will also need to change your export notification. This must be agreed by the UK and overseas competent authority. In England, you can contact the Environment Agency for advice, or contact the equivalent competent authority if you are in Scotland, Wales or Northern Ireland.

If you have to keep additional waste on your site for longer than expected, you will need to consider any resulting environmental risks and take steps to keep these properly controlled.

Your contingency plans need to be compatible with the requirements on your permit. In England, if you are unable to make adequate contingency plans you should contact the Environment Agency for advice.