ChemRegs Newsletter – October 2019

New Environmental Bill

Last week, (15 October), the UK government introduced a new Bill designed to tackle environmental priorities after Brexit. The bill refers only to England, but many of its measures are designed to apply across the UK.

The Environment Bill (“the Bill”) is made up of two halves:

1. The first provides a legal framework for environmental governance once the UK leaves the EU.
2. The second makes provision for specific improvement of the environment, including measures on waste and resource efficiency, air quality and environmental recall, water, nature and biodiversity, and conservation covenants.

The first part of the Bill was published in part as the draft Environment (Principles and Governance) Bill on 19 December 2018, fulfilling a legal obligation set out in section 16 of the European Union (Withdrawal) Act 2018. Section 16 of the Withdrawal Act required the Secretary of State to publish a draft Bill to make provision for a new environmental governance body and a requirement for Ministers of the Crown to have regard to a new policy statement on environmental principles when making policy following the UK’s withdrawal from the EU.

The measures published in the draft Bill in December 2018 related only to environmental principles and governance, and placing the government’s 25 Year Environment Plan on a statutory footing. In its 2017 Manifesto, ‘Forward Together’: Our Plan for a Stronger Britain and a Prosperous Future, the government pledged to be ‘the first generation to leave the environment in a better state than we inherited it’. To this end the government has consulted on a broad range of measures, and published a 25 Year Environment Plan in January 2018. Measures in this Bill take legislative steps to achieve this vision.

The remaining parts of the Bill make provision for a range of environmental improvements.

Background

Most of the UK’s environmental law and policy derives from the EU, and EU structures and processes provide for oversight and enforcement. The Bill sets out the measures needed to ensure that there is no environmental governance gap on withdrawal from the EU. It will allow the setting of long-term, legally binding and joined-up targets tailored to England, embed consideration of environmental principles in future policy making and establish the independent Office for Environmental Protection.

Overview

The Environmental Governance Part of the Environment Bill (Part 1) includes provisions to:

• allow government to set long-term targets (of at least 15 years duration) in relation to the natural environment and people’s enjoyment of the natural environment via statutory instrument;
• require government to meet long-term targets, and to prepare remedial plans where long-term targets are not met;
• require government to set, by October 2022, at least one long-term target in each of the priority areas of air quality, water, biodiversity, and resource efficiency and waste reduction;
• require government to set and meet an air quality target for fine particulate matter in ambient air (PM2.5);
• require government to periodically review all environmental targets to assess whether meeting them would significantly improve the natural environment in England;
• establish the process by which a long-term target is set and amended, as well as an enhanced process where a long-term target is lowered or revoked;
• require the government to have, and maintain, an Environmental Improvement Plan, a plan to significantly improve the natural environment, which sets out the steps the government intends to take to improve the natural environment, and which sets out interim targets towards meeting the long-term targets;
• require government to produce an annual report on the Environmental Improvement Plan, to consider progress towards improving the natural environment and meeting the targets;
• require government to review the plan periodically, to consider progress and whether further or different steps are needed to improve the natural environment and meet the targets, and if appropriate revise the plan;
• require government to collect and publish data used to measure progress in improving the natural environment and meeting the targets;
• require the publication of a policy statement on environmental principles setting out how environmental principles specified under the Bill are to be interpreted and applied by Ministers of the Crown during the policymaking process;
• create a new, statutory and independent environmental body, the Office for Environmental Protection (OEP), to hold government to account on environmental law and its Environmental Improvement Plan once the UK leaves the EU;
• define the scrutiny, complaints and enforcement functions of the OEP and their scope;
• establish an OEP enforcement process of environmental review in the Upper Tribunal; and
• define the nature of the OEP, including considerations of membership, remuneration, staffing, powers, reporting, funding, accounts and other issues.

The Environmental Governance: Northern Ireland Part of the Environment Bill (Part 2) includes provisions to:

• extend the application of the OEP to Northern Ireland, and make separate provision for Environmental Improvement Plans and environmental principles in Northern Ireland.

The Waste and Resource Efficiency Part of the Environment Bill (Part 3) includes provisions to:

• require producers to pay the full net cost of managing their products at end of life to incentivise more sustainable use of resources;
• allow deposit return schemes to be established, whereby a deposit is included in the price of an in-scope item (such as a drink in a bottle or can) which is redeemed when the item is returned to a designated point;
• enable producer responsibility obligations to be applied at all levels of the waste hierarchy to, for example, facilitate the prevention of food waste and increase the redistribution of food surplus;
• enable charges to be applied to specified single-use plastic items;
• require local authorities in England to collect the same range of materials for recycling from households;
• ensure households have a weekly separate food waste collection;
• ensure businesses and public bodies present recyclable materials for separate collection and arrange for its separate collection;
• enable government to set resource efficient product standards and information and labelling requirements, to drive a shift in the market towards durable, repairable and recyclable products;
• improve the proportionality and fairness of litter enforcement, by issuing statutory guidance on the use of enforcement powers and extending an existing power to set out conditions to be met by all those carrying out enforcement activity;
• improve the management of waste, by enabling the Secretary of State to make regulations in relation to waste tracking digitally;
• improve the regulators’ effectiveness in tackling waste crime, reducing the cost of that criminal activity on the wider economy, environment and society;
• allow the Environment Agency to be more flexible and responsive in managing exempt waste sites and ensure proportionate controls are in place to avoid environmental harm or illegal activity as waste market practices change;
• fill a gap in existing powers to ensure that waste can be collected and disposed of when normal processes fail;
• enable the Secretary of State to make regulations to amend the permitted range of penalties for existing Fixed Penalty Notices; and
• enable the Secretary of State to regulate the import, export or transit of waste and hazardous waste.

The Air Quality and Environmental Recall Part of the Environment Bill (Part 4) includes provisions to:

• amend Part IV of the Environment Act 1995 (which creates the Local Air Quality Management Framework) to strengthen the requirements in respect of the National Air Quality Strategy, including a requirement for it to be regularly reviewed;
• amend the Local Air Quality Management Framework to clarify duties and enable greater cooperation between different levels of local government, and other relevant public bodies, in the preparation of Local Air Quality Action Plans;
• amend Part III of the Clean Air Act 1993 to enable quicker, simpler and more proportionate enforcement of Smoke Control Areas, a key means by which local authorities can control pollution from domestic solid fuel burning; and
• provide for mandatory recall notices for vehicles and equipment that do not comply with relevant environmental standards and for fines to be issued when a minimum recall rate is not met.

The Water Part of the Environment Bill (Part 5) includes provisions to:

• change the procedural requirements for Water Resources Management Plans, and enable increased collaboration between different water undertakers to better manage water resources;
• require the preparation of Drainage and Sewerage Management Plans by sewerage undertakers, to better plan for the management of waste water;
• modernise the process for modification of water and sewerage undertaker licence conditions by the Water Services Regulation Authority (“Ofwat”) to bring it in line with other utilities, and to strengthen Ofwat’s ability to improve water and sewerage undertakers’ operations;
• change the circumstances in which a licence to abstract water from the environment can be revoked or varied without paying compensation, to prevent damage to the environment;
• enable future updates to the lists of priority substances in water quality legislation, and enable the reallocation of regulatory responsibilities in the Solway Tweed river basin district; and
• enable updates to be made to the valuation calculations relevant to the apportionment of internal drainage board (IDB) charges in secondary legislation, allowing for the creation of new or expansion of existing IDBs where there is a local desire to do so.

The Nature and Biodiversity Part of the Environment Bill (Part 6) includes provisions to:

• amend section 40 of the Natural Environment and Rural Communities Act 2006 to strengthen and improve the duty on public bodies to conserve and enhance biodiversity, in accordance with the proper exercise of their functions;
• mandate net gain in biodiversity through the planning system, requiring a 10% increase in biodiversity after development, compared to the level of biodiversity prior to the development taking place, as measured by a metric set out by Defra;
• require the preparation and publication of Local Nature Recovery Strategies, a tool to direct action for nature, and place an emphasis on supporting local leadership of nature improvement; and
• provide greater enforcement powers to the Forestry Commission to reduce illegal tree felling, and require local authorities to consult local residents prior to the felling of street trees.

The Conservation Covenants Part of the Environment Bill (Part 7) includes provisions to:

• provide for Conservation Covenants: voluntary, legally binding private agreements between landowners and responsible bodies, designated by the Secretary of State, which conserve the natural or heritage features of the land, enabling long-term conservation.

The Miscellaneous and General Provisions Part of the Environment Bill (Part 8) includes provision to:

• amend two pieces of retained European Union law relating to the regulation of chemicals.
• allow for consequential provision; regulations; commencement and transitionalor saving provision; and
• set out the position in relation to Crown application; financial provisions; and the extent and the short title of the Bill, which may be cited as the Environment Act 2019.

The Bill went for its 2nd reading in the House of Commons on the 28 October 2019 and has now been committed to a Public Bill Committee, which will scrutinise the Bill line by line. The Committee was expected to report to the House by Thursday 19 December 2019. However, with the General Election now due in December, this is unlikely to take place.

Other News

GHS Revision 8

The Globally Harmonized System of Classification and Labelling of Chemicals (GHS), eighth revised edition, is now available online in English and French.

https://www.unece.org/trans/danger/publi/ghs/ghs_rev08/08files_e.html 

The GHS are the basis of all the various classification, labelling and packaging of chemical regulations e.g. the EU CLP Regulations.

Revisions include, inter alia:

• new classification criteria, hazard communication elements, decision logics and guidance for chemicals under pressure;
• new provisions for the use of in vitro/ex vivo data and non-test methods to assess skin corrosion and skin irritation;
• miscellaneous amendments to clarify the classification criteria for Specific Target Organ Toxicity;
• revised and further rationalized precautionary statements and an editorial revision of Sections 2 and 3 of Annex 3;
• new examples of precautionary pictograms to convey the precautionary statement “Keep out reach of children”;
• a new example in Annex 7 addressing labelling of sets or kits; and
• guidance on the identification of dust explosion hazards and the need for risk assessment, prevention, mitigation, and hazard communication.