New EU Waste Shipment Regulation (EU)

On 24th May 2023, the Council adopted its negotiating mandate to start talks with the European Parliament on a proposal to update EU legislation on cross-border waste shipments.

The proposal to revise the waste shipment regulation aims to:

* ensure that waste is only sent to destinations where it’s properly treated

* modernise, harmonise and digitalise procedures for shipments within the EU, and promote the transport of waste destined for recycling

* tackle illegal waste shipments that occur due to diverging procedures and lack of control.

The Council, in its negotiating mandate, agrees to ban waste exports for disposal to another member state, except under strict conditions and to ban non-hazardous waste shipments to non-OECD countries, unless they expressly consent to it and can prove they treat the waste in an environmentally sound manner.

Once provisional agreement has been found between the Council and the European Parliament, the final text will be formally adopted by both institutions.

The Council negotiating mandate is here.

The European Parliament proposal is here.

List of Disapplied EU SPS Laws (Northern Ireland)

The Windsor Framework includes an agreement between the EU and the UK, that will disapply a list of EU SPS rules to goods entering Northern Ireland in certain circumstances. I posted before about the Windsor Framework, more generally. The Windsor Framework amends the Ireland/Northern Ireland Protocol to the EU-UK Withdrawal Agreement.

The disapplication list is found in Annex 1 to the Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on specific rules relating to the entry into Northern Ireland from other parts of the United Kingdom of certain consignments of retail goods, plants for planting, seed potatoes, machinery and certain vehicles operated for agricultural or forestry purposes, as well as non-commercial movements of certain pet animals into Northern Ireland.

The document is published as COM(2023) 124 final and Annex I is here. It is not yet law.

SPS is Sanitary and Phytosanitary.

The original Ireland/Northern Ireland protocol applied the same rules to agrifood trade between Cairnryan and Larne as between Holyhead and Dublin.

The Windsor Framework will set up a new “green lane” agrifood retail scheme. Part 2 of COM(2023) 124 final provides for the core elements of this “green lane” for agrifood retail movements to Northern Ireland. Part 2 is found here.

The “green lane” will allow traders moving agrifood goods to the final consumer in Northern Ireland to benefit from a unique set of arrangements that will enable an entire truck to move on the basis of a single certificate, without routine physical checks, and on the basis of UK food and drink safety standards.

The “green lane “ will be available to all such traders who are retailers, wholesalers, caterers, and persons providing food to public institutions like schools and hospitals.

Articles 4 and 5 (in Part 2) set out the requirements goods must meet in order to qualify for these unique arrangements. This includes products being prepacked and being made available only on the NI market for final consumers. The scheme is not limited to goods from Britain or the EU. Goods from the rest of the world can move under this scheme, either where they are processed in the UK, where they meet UK public health standards and pose no disease risk, or where disease risks exist and the UK has chosen to take the same approach to protecting against the same pests and diseases as the EU.

Products moved under the “green lane” scheme will be subject to UK and not EU rules for public health, marketing, organic, labelling, genetic modification, and drinks such as wines, spirits and mineral waters. Annex I sets out the list of EU rules that will be disapplied.

Product labelling will be introduced from October 2023 onwards.

Part 3 sets out the provisions for the movement of plants and plant products (other than seed potatoes) under the “green lane” scheme. These arrangements will be the same as those for plant movements within the UK.

Part 4 sets out the provisions for the movement of pets. Northern Ireland pet owners will therefore continue to move their pets to Ireland and the EU using the EU pet passport.

Article 11 removes the ban on movement of seed potatoes.

Cardinal Environment will identify the EU rules that will be disapplied for the “green lane” scheme, in Northern Ireland Registers & Checklists.

We will also highlight the disapplied EU rules in the REUL Deletion List which is supplied in every UK jurisdiction Registers & Checklists system.

EU CBAM – update (EU)

The EU CBAM is a proposed tax on imports to the EU zone, to be applied to products traded in the industry sectors covered by the EU ETS. Information is here.

The EU CBAM will not start before June 2023 or later.

Any carbon price paid in the country of origin of a good will be recognised and there will be an opportunity for third countries to put in place an agreement with the EU which could cover, but would not be limited to, how their carbon price would be recognised under the EU CBAM.

The EU will turn to the details of this third country carbon price agreement process once the Regulation is finalised and the transitional period started.

The reporting of embedded emissions will follow a simple methodology and, under the Commission’s proposal, will not require verification in the transitional period.

Re Art. 9 of the proposed regulation, the EU intends to find avenues to facilitate compliance with the CBAM.

[the UK is a third country, but is developing its own UK CBAM]

New Arsenic Limits in Certain Foods (EU)

UPDATE (13th March) the UK baby food trade body (BSNA) says its members will be manufacturing to the new EU standard.

Regulation (EC) No 1881/2006 sets the maximum level of arsenic in some foods.

Regulation (EU) No 2023/465 of 3rd March 2023 amends the 2006 document to radically reduce the maximum arsenic limit in infant formula and baby food and set arsenic limits in rice, cereal, fruit juice and salt. The 2023 document enters into force on 26th March.

Long shelf life foodstuffs that met the higher arsenic limit before this change will be permitted to remain on the market until their limit of minimum durability or use-by date.

The new limits are set out in the replacement Annex (in the 2023 document) here.

Re Northern Ireland (Windsor Framework 2023) –

The EU and UK agreed new and simplified rules and procedures for the entry into Northern Ireland from Britain of certain agri-food retail goods where the goods are sent for final consumption in Northern Ireland:

• Use of a general single certificate for mixed loads of agri-food goods.
• Identity checks drastically reduced: down to 5% when all safeguards are in place, physical checks to be carried out on a risk basis and intelligence-led approach.
• Application of UK public health standards (e.g. level of additives in food) to goods moved for end consumption in Northern Ireland. Previously prohibited chilled meats, such as sausages, are now allowed.
• Removal of certificates for organics and wine.
• Possibility to move goods originating in the rest of the world to Northern Ireland through Britain when UK conditions are identical to EU ones (specific list of products, including New Zealand lamb and vegetables).

Also, to protect the integrity of the EU Single Market:

• The UK is constructing operational SPS Inspection facilities and provide EU representatives with access to relevant UK IT databases.
• Labelling “not for EU” is to be used for products that will remain in Northern Ireland.
• Identity checks will be progressively reduced as the labelling requirements are fully completed.
• Monitoring will take place of the movement of retail goods; and there will be traceability and listing of the dispatching and receiving authorised establishments.

If the UK does not adopt the lower arsenic limits, it may be that two sorts of foods are offered to the market in Northern Ireland –

(a) “not for EU” foodstuffs

(b) lower arsenic limit EU compliant foodstuffs.

New European Drinking Water Directive (EU)

The EU adopted a recast Directive (EU) 2020/2184 on drinking water in December 2020, and the document entered into force in January 2021. EU member states had until 12 January 2023 to transpose this document in national law and comply with its provisions. The 1998 Directive is repealed from 13 January 2023. As of currently, not all EU member states have updated their domestic law.

The new Drinking Water Directive is here.

Key features of the revised Directive are:

• reinforced water quality standards, in line or, in some cases, more stringent than the World Health Organisation (WHO) recommendations
• tackling emerging pollutants, such as endocrine disruptors and PFAs, as well as microplastics
• a preventive approach favouring actions to reduce pollution at source by introducing the risk-based approach
• measures to ensure better access to water, particularly for vulnerable and marginalised groups
• measures to promote tap water, including in public spaces and restaurants, to reduce (plastic) bottle consumption
• harmonisation of the quality standards for materials and products in contact with water
• measures to reduce water leakages and to increase transparency of the sector

The EU also adopted the first watch list on 19 January 2022. This document is here. This means that drinking water across the EU will have to be monitored more closely for the potential presence of two endocrine disrupting compounds (beta-estradiol and nonylphenol) throughout the whole water supply chain. Endocrine disrupting compounds are a mixed group of chemicals of varying structure that can interfere with physiological and biochemical processes in the human body.

In justified circumstances, EU member states may provide for derogations. this means they will set a less stringent value than the parametric value set out in Part B of Annex I of the 2020 document, up to a maximum value to be determined by them. Such derogations should not constitute a potential danger to human health and the supply of water intended for human consumption in the area concerned cannot be maintained by any other reasonable means.

The Drinking Water Directive is not a document that is retained in Northern Ireland under the Ireland/Northern Ireland Protocol of the Withdrawal Agreement.

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.

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.