ChemRegs Newsletter  – February 2017

REACH after Brexit – update

In our January Newsletter we reported that the UK Parliamentary Environmental Audit Committee were launching a second inquiry into the future of environmental law and policy and chemicals regulation following the result of the EU Referendum. This is focusing on the future of the European Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) and will consider the possible impacts on environmental protection, public safety and the UK chemicals industry.

The Committee asked for feedback from the UK chemical industry by 20 January 2017 and various responses from industry, trade associations, professional associations and experts were submitted.

There have also been two public hearings examining evidence and speaking with witnesses – the 7 February Oral Evidence Session with academic and legal experts and a representative from CHEM Trust and the 16 February Oral Evidence Session, which featured two panels. The first panel heard from representatives of the chemicals industry and the Royal Society of Chemistry to examine the options available for chemicals regulation after Brexit. The second heard from representatives of the technology, automotive and pharmaceutical sectors to examine what changes in chemicals regulation would mean for UK industry.

These first respondents to the select committees call for evidence shed some useful light on the very technical and abstract nature of chemical legislation.
In these sessions REACH was discussed at length, with some discussions on CLP. It was interesting to note that some of the MPs’ questions were very broad and demonstrated an unwillingness to delve too deeply into the detail of REACH. It was evident that REACH could not be discussed in isolation but impacted on many other areas of chemical legislation, e.g. waste, export coding, equivalence, data packages etc.

The sessions lasted approximately an hour and half. Here is a subjective précis of some of the more salient points raised:

• SMEs are finding it particularly onerous to comply with REACH with regards to data sets or information sharing. An example was cited of an SME who had to stop importing a chemical from China as the £50K cost to create a data file could not be found. The result was that the SME had to stop buying the material, stop supplying it and pass the business on to the SME’s customer who took over the responsibility of registering. This meant the same chemical was imported from the same Chinese manufacturer obviating the original SME.
• REACH is the most strict, voluminous, wide ranging, detailed, and demanding chemical legislation in the world. It will never be completed as the chemical industry is in constant flux. May 2018 is when the relaxations from the burden of registration come to an end; as this is the final registration date for substances over one tonne.
• Most companies that were intending to register their substances in May 2018 will continue to do so, as they expect that REACH will apply in the future in the UK or will apply to their customers. An example was a paint supplier in the UK who may well sell paint to a washing machine manufacturer in the UK, who then supplies their painted washing machines to the EU. There would have to be a registration for the chemicals contained in the paint on the washing machine going into the EU.
• There is concern in industry that considerable money and resources have been spent compiling data sets for substances. If the UK does not recognise REACH and ECHA post-Brexit, then the money and resources spent may be lost.
• It is unlikely that the UK will join The European Economic Area (EEA). The EEA provides for the free movement of persons, goods, services and capital within the single European market. The EEA consists of either EU member states or members of EFTA. The European Free Trade Association (EFTA). (EFTA) is a regional trade organisation and free trade area consisting of four European states: Iceland, Lichtenstein, Norway, and Switzerland.
• It is likely we may have mirroring transitional arrangements with REACH i.e. in effect carry on using REACH until things have settled down post-Brexit.
• Consideration is also being given to some sort of mutual recognition between a UK-REACH system and the EU REACH.
• To have a UK-REACH system to mirror EU REACH, the biggest cost implication would depend on whether or not we would be using the ECHA (European Chemicals Agency) and their services to implement UK-REACH, or whether it would be a UK Government Department or its counterpart to implement UK-REACH.
• The precautionary principle and polluter pays principle are distinctly European in practical effect and jurisprudence, having no similar provisions in English law.
• The requirement for safety data sheets is enshrined in REACH, whilst the classification and labelling requirement arises from the CLP regulations. Post-brexit it is posited that these functions could be codified in a single piece of legislation.

The next Oral Evidence Session is scheduled for 07 March 2017 at 10:15 am.

Other News

The Environmental Permitting (England and Wales) Regulations 2016

The Environmental Permitting (England and Wales) Regulations 2016 (EPR 2016) entered into force on 1 January 2017. These new regulations have consolidated and revoked the Environmental Permitting (England and Wales) Regulations 2010, which have been amended 15 times to date. The consolidation and updating of the legislation have not really changed any of the duties, but are in effect a “tidying-up” exercise that aims to make the rules more accessible and transparent.
Although this is primarily a consolidation exercise, there are two areas of substantive change:

T17 waste management exemption for the crushing of fluorescent lamps. This type of tube lighting is commonly found in large offices and other buildings such as hospitals. Many of these lamps contain mercury, which is considered hazardous to humans and the environment. This exemption allows the use of specifically designed mobile crushing equipment to reduce the volume of waste lamps before they are collected. The mercury emissions are captured by the equipment and the crushed material is then transported to a permitted site later in the day. This provides lamp recyclers with an alternative to collecting and transporting lamps whole. The new regulations restrict the situations in which the T17 exemption can be used, reducing the quantity of lamps that can be crushed at a site. They also clarify the conditions for operation of the lamp-crushing equipment required by EU law, making it clear that impermeable surfaces and waterproof covering are required for areas where crushing is carried out. This change prevents large-scale lamp-crushing operations being carried out without a permit, while allowing smaller-scale operations to continue under the exemption but with enhanced conditions. As a result of this amendment, a permit will now be required in some cases where there was previously an exemption.

Correction to the rules on dredging. The correction is to allow the Canal and Rivers Trust and other statutory undertakers to be able to dredge without the need for a permit under a flood risk activity scheme in England (see Schedule 25). Unfortunately, the amending regulations made in April 2016 inadvertently brought such statutory undertakers into the permitting scheme because of a typographical error. The amendment in these new regulations reinstates the position that existed under the previous scheme, where those organisations with a statutory function to undertake dredging did not have to apply for a permit.

The new regulations also re-transpose 15 EU Directives and amend a wide number of acts including the Control of Pollution Act 1974, Environmental Protection Act 1990, Environment Act 1995 and Hazardous Waste (England and Wales) Regulations 2005. The full list of amendments is found in Schedule 29 of the new Regulations.

The EPR 2016 can be downloaded as a pdf from:
http://www.legislation.gov.uk/uksi/2016/1154/contents/made

You can also download the explanatory memorandum here:
http://www.legislation.gov.uk/uksi/2016/1154/pdfs/uksiem_20161154_en.pdf
Annex A to the explanatory memorandum contains a correlation table to assist readers in identifying where provisions of the 2010 Regulations may be found in the 2016 Regulations.

NEW WASTE INDUSTRY SAFETY & HEALTH (WISH) WEBSITE

The Waste Industry Safety and Health Forum (WISH) have launched a new website. The new site, hosted by the Chartered Institution of Wastes Management (CIWM), provides a one-stop-shop for all WISH guidance previously hosted on the HSE (Health and Safety Executive) website. With a new look and easy navigation, the site hosts both formal guidance documents and other resources, including good practice case studies.

WISH members include representatives from HSE, main trade associations, professional associations, trade unions, recycling organisations and national and local government bodies involved in waste management and recycling.

Its purpose is to provide information, identify solutions and stimulate action across the industry to ensure the health, safety and well-being of those working in the industry and those affected by its activities.

WISH has published a series of guidance documents on key health and safety issues within the industry, including Waste27 – Health and hazardous substances in waste and recycling and Waste28 – Reducing fire risk at waste management sites.

For more information on WISH, its activities and the guidance it has produced for the waste and recycling industry see the WISH web site at www.wishforum.org.uk

For more information on anything in this Newsletter, please contact us at info@chemregs.co.uk