Fabricated Examples Register of Legal and Other Requirements

DIRECTLY Applicable Legislation		Reference
Environmental Permitting
1.1.1	ENVIRONMENTAL PERMITTING: INTEGRATED POLLUTION PREVENTION AND CONTROL	2008/1/EC
1.1.2	ENVIRONMENTAL PERMITTING: WASTE MANAGEMENT	2006/12/EC
Waste
1.2.1	HAZARDOUS WASTE (ENGLAND AND WALES) REGULATIONS 2005, AS AMENDED	2005/894
1.2.2	ENVIRONMENTAL PROTECTION ACT 1990 PART II: THE DUTY OF CARE, AS AMENDED	1990 c.43 pt.II
Water
1.3.1	WATER RESOURCES ACT 1991, AS AMENDED	1991 c.57
1.3.2	WATER INDUSTRY ACT 1991, AS AMENDED	1991 c.56
Climate Change/Energy
1.4.1	CLIMATE CHANGE LEVY (REGISTRATION AND MISCELLANEOUS PROVISIONS) REGULATIONS 2001, AS AMENDED	2001/0007
Hazardous Substances/Chemicals
1.5.1	REGISTRATION, EVALUATION AND AUTHORISATION OF CHEMICALS (REACH)	EC/1907/2006
Wildlife/Biodiversity
1.6.1	ENVIRONMENTAL DAMAGE (PREVENTION AND REMEDIATION) REGULATIONS 2009, AS AMENDED	2009/153
INDIRECTLY Applicable Legislation
2.1	FINANCE ACT 1996, PART III: LANDFILL TAX, AS AMENDED	1996 c.8
FORTHCOMING Legislation
3.1	ENVIRONMENTAL CRIME DIRECTIVE	2008/99/EC
OTHER REQUIREMENTS
4.1	ENVIRONMENT AGENCY MONITORING AND CERTIFICATION SCHEME (MCERTS)	MCERTS
4.2	POLLUTION PREVENTION GUIDELINES (PPGs)	PPGs

EXPLANATION OF SECTIONS

Direct

This legislation has been identified as directly applicable to the company. The company is required to remain compliant with this legislation and should carry out compliance evaluation against these regulations.

Indirect

This legislation has been identified as indirectly applicable to the company and is provided for background information only. The company is not required to comply with these regulations directly but may be affected by them as they influence policies and requirements made by regulators such as the Environment Agency, Scottish Environmental Protection Agency and Local Authorities. A compliance rating is therefore not required.

Forthcoming

This legislation has been identified as forthcoming and may impact upon activities at the company in the future. These should therefore be monitored for further developments to ensure ongoing compliance.

Other Requirements

This section lists other requirements that are applicable to the company. The company is required to remain compliant with the non-legislative requirements listed and should carry out compliance evaluation against these requirements.

Compliance Codes
Red:	Evidence of non-compliance
Amber:	Risk of non-compliance
Green:	No evidence of non-compliance observed

Additional Information

DIRECTLY APPLICABLE LEGISLATION
Environmental Permitting

1.1.1    ENVIRONMENTAL PERMITTING: INTEGRATED POLLUTION PREVENTION AND CONTROL

The Integrated Pollution Prevention and Control Directive (consolidated version 2008/1/EC) requires installations in various industry sectors to apply for and operate under permits that aim to protect the environment as a whole.

Industry sectors covered include: combustion activities, refineries, ferrous and non-ferrous metal production and processing, surface treatment, mineral production including glass and ceramics, organic and inorganic chemical production, pharmaceuticals, waste management, paper and food industries. A 2011 amendment has also introduced carbon capture and storage to the sectors covered.

The Directive is implemented through the Environmental Permitting (England and Wales) Regulations 2010.  Schedule 1 to the regulations outlines activities covered by the regime.  

Those obligated must make a ‘Duly Made’ (on time, with the correct fee and containing all necessary information) application to the appropriate Regulator.  

Existing installations were required to apply for a permit dependent upon their activity, in accordance with a sector specific transitional timetable from 1st December 2000 to 31st March 2007. New installations must obtain a permit before operations commence.  

In their applications, companies are required to show how they comply with sector specific Best Available Techniques (BAT) for the protection for the environment in their operations and justify any deviation from them. They are also required to disclose other general information about environmental performance such as: emissions, raw materials use, waste generation, energy use, preparedness for accidents and decommissioning. Applicants are also required to submit a report detailing the existing condition of the land with their applications.  

Once the application has been made, it will be determined by the Regulator and a permit issued. The permit will contain conditions which companies are required to comply with during operations. Companies wishing to make changes to their operations or surrender their permit must apply to do so via their regulator and pay the appropriate associated fee.

The European Commission are debating whether to tighten the regime; in particular looking at stricter mandatory emission limits on NOx and SOx from new large combustion plants.

A 2011 amendment implements changes to this section of the Environmental Permitting Regulations 2010 to reflect changes that have been made in respect of carbon capture and storage to Directive 2008/1/EC.  ‘Carbon capture and storage’ is introduced into Schedule 1. A Part A (1) permit is required for capturing carbon dioxide streams from an installation for the purposes of geological storage.

The EA has recently produced updated guidance on how to comply with your environmental permit.

Applicability

The Detergent Plant at the Fabricated Examples Ltd site is an obligated process and falls under Section 4.1 Part A (1) (xi) of Schedule 1 of the IPPC Directive for the manufacture of surface active agents. 

The company were issued with a permit (no. EA12345FEL) from the Environment Agency in March 2007. During the audit it was revealed that the company have not submitted a Site Protection and Monitoring Program to the Environment Agency. This must be completed as an immediate priority and Fabricated Examples must contact their local inspector to arrange a submission date.

The company must also ensure that they monitor and report on the installation in line with the requirements of the permit and complete all improvement programs within the timescales specified.

1.1.2    ENVIRONMENTAL PERMITTING: WASTE MANAGEMENT

The aim of the Waste Framework Directive is to ensure the protection of human health and the environment in the course of waste management activities.  The Directive provides for the making of effective and consistent rules on waste disposal and recovery and the recovery and reuse of wastes where possible. 

Under the Directive, undertakings carrying out waste disposal and recovery must be authorized and inspected.  This requirement is implemented in England and Wales through the Environmental Permitting (England and Wales) Regulations 2010, as amended (Note: the EPR have superseded the previous Waste Management Licensing Regulations 2004).  Schedule 9 to the EPR requires the regulator to carry out its relevant functions in relation to the following articles of the Waste Framework Directive (2008/98EC), through ensuring the requirements are met through permits granted under the EPR regime:

Article 4: ensuring that waste is recovered or disposed of without endangering human health or harming the environment, in particular without risk to water, air or soil, or to plants or animals; without causing a nuisance through noise or odours; without adversely affecting the countryside or places of special interest.  Measures must be taken to prohibit the abandonment, dumping or uncontrolled disposal of waste.

Article 5: establishing an integrated and adequate network of disposal installations taking account of best available technology not involving excessive costs.

Article 9: granting of permits to cover activities in Article 4 and 5 to cover the types and quantities of waste; technical requirements; safety precautions to be taken; disposal site; treatment method.

Article 14: ensuring all permitted establishments keep records of the quantity, nature, origin and, where relevant, the destination, frequency of collection, mode of transport and treatment method in respect of the waste and make this information available to the competent authority.

Waste operations as set out in Annex IIA of the Directive are therefore required to apply for a permit under the EPR.  A number of excluded and exempted waste operations do not have to apply for a permit. 

Exempt operations are set out in Schedules 2 and 3 to the EPR.  Exempt operations are required to register with the relevant regulator (the Environment Agency or Local Authority).  A number of activities are classed as 'notifiable exemptions' including spreading of sludge, waste disposal for the benefit of land, land reclamation, sludge works, waste for construction, repair and refurbishment of WEEE and burning of plant material/wood at a dock.  Notifiable exempt operations must keep records of the quantity, nature, origin, destination and treatment method of all wastes disposed of or recovered in the course of the activity for at least 2 years.  Operators of notifiable exemptions must re-register with the regulator every 12 months.  The regulator is required to carry out periodic inspections of such operations.

Exemptions can be applied for here.

The EPR also provides for the granting of Standard Permits which apply to a number of waste management activities.  See entry under EPR for further details.

The Waste (England and Wales) Regulations 2011 amend these regulations by :

• changing some definitons to bring them in line with the revised Waste Framework Directive (rWFD) (2008/98/EC) and making other consequential amendments;
• removing certain wastes, including animal by-products, and other wastes that are excluded from the rWFD, from waste classifications

The amendments are set out in Schedule 3 of the waste regulations.

Regulation (EU) No 333/2011 establishes criteria determining when certain types of scrap metal cease to be waste under the WFD, including iron, steel and aluminium scrap.

Applicability

Fabricated Examples operate a compactor and baler for waste  cardboard generated by the goods-in packaging. The company must ensure that they apply for an exemption for this activity from the Environment Agency.

Waste

1.2.1    HAZARDOUS WASTE (ENGLAND AND WALES) REGULATIONS 2005, AS AMENDED

These regulations outline controls in place for those producing, transporting and disposing of hazardous waste including tracking of the movement of hazardous waste. They implement the requirements of the EC Hazardous Waste Directive (91/689/EEC as amended by 94/31/EC).

Definition of Hazardous Waste

The term “hazardous waste” is defined in the Hazardous Waste Directive and the revised European Waste Catalogue as non-domestic waste that is included on a designated list. This list has been transposed into national legislation by the List of Wastes (England) Regulations 2005 and the List of Waste (Wales) Regulations 2005. Each waste listed has been given a unique six-digit code; hazardous wastes are marked with an asterisk. The codes must be used on all waste documentation. Some wastes are hazardous irrespective of the concentration of dangerous substances (absolute entries). However, others (termed mirror entries) are hazardous only if they contain dangerous substances at levels above the appropriate thresholds. The Environment Agency technical guidance document WM2 provides help and advice on the classification and assessment of hazardous waste.

Registration as a Hazardous Waste Producer

All non-domestic premises that produce hazardous waste or where hazardous waste is collected, must make themselves known to the Regulator via an annual registration. Premises include land and any ship and any other means of transport from which a mobile service is operated. Sites exempt from the requirement to register are listed in regulation 23(3) and include offices, shops and agricultural premises. In order to be exempt, a site must fall into one of the categories listed and produce less than 500kg of hazardous waste per year.

Waste Documentaion

Hazardous waste must be accompanied by a consigment note. This is a specific form of waste transfer note. Hazardous waste producers (consignors) are required to retain consignment notes for three years under the Duty of Care. A 2009 amendment made it a requirement to include specific disposal or recovery codes on consignment notes, as per Annex IIA and IIB of the Waste Directive.

Hazardous waste transfer / management companies (consignees) are required to send quarterly consignment note returns to both the Regulator and the consignor. A charge is levied on carriers on the basis of quarterly returns to the Regulator covering all consignments accepted. The consignor is required to retain returns onsite for three years under the Duty of Care.

Compliance with these regulations is carried out by the Regulator through ‘cradle to grave’ auditing of hazardous waste movements. The Regulator checks that all paperwork is correct and complete from all parties in the waste consignment chain and that the waste has been handled and consigned properly at each part of the disposal process. The Regulator may also periodically inspect sites producing hazardous waste. 
In most cases, the mixing of any hazardous waste with any other type of waste, or other hazardous waste, is prohibited under the regulations unless the company has an environmental permit for this activity.

The regulations were amended by the Waste (England and Wales) Regulations 2011 by:

• replacing a number of definitions to bring them in line with the revised Waste Framework Directive (2008/98/EC) and making various other consequential amendments;
• amending H codes in Schedule 3 to include hazard code H13 as "sensitising" - substances and preparations which could lead to adverse health effects if they are inhaled or penetrate the skin. The previous H13 (waste capable of yielding another substance) is now H15;
• simplifying multiple hazardous waste collections with a modified consignment note introduced that can be used for multiple and single consignments (see Schedule 2 Part 3 of the 2011 regulations); and
• introducing a new condition in environmental permits that requires the mixing of hazardous wastes to comply with best available techniques, for example, sector guidance note IPPC S5.06 - Recovery and Disposal of Hazardous and Non-Hazardous Waste. New permits will include this condition and it will gradually be introduced into existing permits.

The new consignment note came into use on 28 September 2011. The 2003 SIC codes should continue to be recorded on consignment notes.

The Environmental Permitting (England and Wales) (Amendment) Regulations 2011 makes minor consequential amendments to this piece of legislation as a result of amendments made to theEPR 2010 and the repeal of the Radioactive Substances Act 1993.

Applicability

Fabricated Examples Ltd produce the following hazardous waste streams:

• Waste oil
• Fluorescent tubes

During the brief site walkover the waste streams were observed to be signed, well segregated and on-site personnel appeared to show a good understanding with respect to management of hazardous waste.

The control of waste movements and the selection of disposal / recovery method is governed through procedures in the ISO14001-accredited environmental management system.

Fabricated Examples use the waste contractor Waste Ltd for the majority of waste movements off site. Through regular auditing, Fabricated Examples Ltd ensure that the contractor holds all appropriate licences and competencies to deal with the waste streams produced at the site.

All off site disposal of hazardous waste is accompanied by a hazardous waste consignment note. The company hold these records onsite for at least three years and are available for inspection by the certifier or regulator upon request. The company also receive and store consignment note returns with the appropriate consignment note for that waste stream.

1.2.2    ENVIRONMENTAL PROTECTION ACT 1990 PART II: THE DUTY OF CARE, AS AMENDED

Section 34 of the Environmental Protection Act (EPA) 1990 imposes a ‘duty of care’ on anyone who produces, imports, carries, keeps, treats or disposes of ‘controlled’ wastes, or as a broker has control over such waste.

Controlled waste (see definition below) must only be transferred to authorised persons (e.g. registered waste carrier or licensed waste manager) and such transfers must be accompanied by ‘transfer note’ documentation. These regulations along with the Waste (England and Wales) Regulations 2011 (Part 9) in England and Wales and the Environmental Protection (Duty of Care) Regulations 1991 in Scotland, set out the requirements for a mandatory system of ‘transfer notes’ and record-keeping requirements including: the details to be completed on the transfer note - including appropriate classification under the European Waste Catalogue; the requirement for transferors and transferees to retain the documentation for two years after the transfer; and the requirement to furnish copies to the regulator if required.

It is a criminal offence to treat, keep or dispose of controlled waste except under and in accordance with a waste management licence issued by the Environment Agency or SEPA. Activities that are exempt include “the temporary storage of waste, pending its collection, on the site where it is produced”. It is however, a criminal offence to treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health, which applies irrespective of the need for a waste management licence.

All those who deal with controlled waste are required to take reasonable and appropriate steps in relation to it; otherwise they commit a criminal offence. This includes: storing and packaging waste properly; describing it clearly; dealing only with an authorised carrier; providing the carrier with an accurate transfer note relating to the waste, and; taking appropriate steps to ensure that the waste is disposed of properly.

In summary, the four key requirements of this legislation are:

• Keep waste so as to prevent its escape into the environment;
• Transfer waste to a registered carrier;
• Keep records and transfer notes; and
• Check that others in the waste management chain abide by the Duty of Care (audit waste management facilities).

Controlled waste is defined in the Controlled Waste Regulations 1992 and Controlled Waste (Duty of Care) Regulations (Northern Ireland) 2002 as household, industrial and commercial, including materials destined for recycling, clinical and construction waste. 

For the purposes of this Act, the definition of waste was amended by the Environment Act 1995 Part V Schedule 22, Regulation 88.

The Waste (England and Wales) Regulations 2011 have amended the definition of 'waste' to include anything within the definition given in Article 3(1) of the revised Waste Framework Directive (2008/98/EC).

Applicability

Fabricated Examples produce both hazardous and non-hazardous waste. The waste handling areas observed during the brief site tour were generally well segregated and stored within clearly designated areas and on-site personnel appeared to show a good understanding with respect to waste aspects. Housekeeping at the site was also noted to be to a high standard. EIP 3 outline the plan at Fabricated Examples to implement systems for collecting data to monitor and measure waste production.

The control of waste movements and the selection of disposal / recovery are governed by procedures (EWI 2) in the company’s ISO14001 accredited environmental management system. The procedures ensure that all non-hazardous waste movements are accompanied by a transfer note and hazardous wastes are accompanied by a consignment note, providing a unique identity for all waste transactions. 

Although waste document was not inspected during the site visit, site management stated that transfer notes and consignment notes are retained onsite for the designated time specified in the amended regulations and are available for inspection by the regulator.

Fabricated Examples use the waste contractor Waste Ltd for the all movements of waste on and off site. Fabricated Examples Ltd ensure that the contractor holds all appropriate licenses and competencies to deal with the waste streams produced at the site through regular auditing.

Water

1.3.1    WATER RESOURCES ACT 1991, AS AMENDED

This legislation controls water abstraction licensing and impoundment and sets provisions for the prevention and control of water pollution. 

Sections 85 to 91 of this Act, regarding pollution offences, have now been repealed and are included in Schedule 21 of the Environmental Permitting (England and Wales) Regulations 2010, as amended.

Abstraction
 
It is an offence for a person to abstract water from a source or supply, or to cause or permit another person to abstract water, without a licence or outside the provisions of that licence. No person shall begin, or allow another person to begin to construct or extend any well, borehole or any other work by which water may be abstracted, unless it meets the requirements of the licence. Any person found guilty of an offence shall receive a fine upon conviction.
 
Certain small quantities of water may be abstracted in line with Regulation 27. For example, these restrictions do not apply to abstractions of water of less than five cubic metres if it is not part of a continuous operation or series of abstractions that will cumulatively exceed five cubic metres. In general, certain small amounts may be abstracted for use on that holding for domestic purposes of the occupier’s household and/or agricultural purposes (excluding spray irrigation). The restriction on abstraction does not apply to abstractions for the purpose of land drainage (the protection of land against the erosion or encroachment of water) or to prevent interference with mining, quarrying, engineering or building activities. Where any person intends to construct a well for the sole purpose of water abstraction, they must inform the Environment Agency of their intention.
 
Changes to the abstraction regime have been made by the Water Resources (Abstraction and Impounding) Regulations 2006 and include provisions such as changes to time limits on licence applications and the content of enforcement notices.
 
Impounding
 
“Impounding works” means any dam, weir or other works in inland waters by which water may be impounded, or any works that divert the flow of inland waters in connection with the construction or alteration of any dam, weir or other works. It is an offence for a person to begin, or cause or permit another person to begin, to construct or alter any impounding works at any point in inland waters without a licence or outside the provisions of that licence. Any person found guilty of an offence shall receive a fine upon conviction. Exemptions to these restrictions are set out in Regulation 25.
 
These restrictions on abstraction and impounding do not apply to navigation, harbour or conservancy authorities.
 
Applications for a licence can be made separately or as a joint application for both abstraction and impounding. Conditions relating to licence applications and modification of licences can be found in Regulation 34 to 59.
 
Prevention and Control of Pollution
 
Regulation 93 provides for the designation of water protection zones with the aim of preventing or controlling the entry of any poisonous, noxious or polluting matter into controlled waters, or in areas which may result in the pollution of such areas.
 
Regulation 94 sets out provisions for nitrate sensitive areas with the purpose of preventing or controlling the entry of nitrate into controlled waters as a result of agricultural processes on the land.
 
The EA is entitled to carry out investigations in a case where poisonous, noxious or polluting matter is likely to enter controlled waters, including establishment of the source of the matter and the identity of the person responsible. The EA is entitled to serve a works notice to any person who caused or knowingly permitted entry of the matter into controlled waters. A “works notice” is a notice requiring the person on whom it is served to carry out the works or operations expressed in the notice. It is an offence not to comply with the terms of a works notice and the Regulator may take immediate action itself to perform the works and recover the costs from the person responsible.
 
A 2009 amendment makes some changes to the power to designate Water Protection Zones (WPZ) and the powers to undertake anti-pollution works and serve notices to undertake such works. This ensures that England and Wales comply with the obligations imposed by the Water Frame Work Directive (2000/60/EC).

Applicability

Site drainage enters the surface water drains, which returns all surface water drainage to the onsite lagoon. There is potential for uncontrolled spillages such as oil and chemical spills to enter the lagoon and during periods of heavy rainfall, surface water drainage to the lagoon could cause an overflow that is discharged directly to controlled water. This would cause a breach of the legislation and directly contribute to polluting the receiving water, Fulchester Dyke.

The discharge from the lagoon to Fulchester Dyke is now part of the IPPC permit, which contains the limits which apply to the discharge, and also requires compliance with the existing Thames Water Discharge consent Ref: 1234.  This consent is held by Mr. Jones in the Engineering Department. 

Fabricated Examples are required to sample the release to Fulchester Dyke no less than 12 times per year.  There have been no problems with the discharge since the PPC permit was granted; confirmed during the July 2007 audit when records of the monthly analysis were observed.  There were several months where levels of suspended solids were at or close to the consent limit; therefore Fabricated Examples must remain vigilant in this area.

1.3.2    WATER INDUSTRY ACT 1991, AS AMENDED

This legislation requires effluent discharges to the foul sewer to be authorised.

The Water Industry Act (WIA) regulates the discharge of trade effluent from trade premises to the foul sewer. It is a criminal offence to discharge trade effluent from trade premises into the foul sewer unless a trade effluent consent is obtained from the sewerage undertaker. Consents are normally granted subject to specified conditions. It is a criminal offence under section 121 (5) of the Act to contravene any condition attached to a trade effluent consent.  

This Act stringently controls the emissions of special category effluent to sewer. Special Category Effluent, including substances on the UK's Red List of dangerous substances, plus carbon tetrachloride and effluent likely to result in the release of more than 30kg or more of trichloroethylene or perchloroethylene in a year, is defined in the Trade Effluent (Prescribed Processes and Substances) Regulations 1989, as amended. Prescribed processes include manufacturing certain asbestos products, paper pulp manufacture, production of chlorinated organic chemicals, and processes discharging chlorinated effluents.

The sewerage undertaker (Water Company) has a power to vary a trade effluent consent unilaterally by giving two months’ notice to the discharger and may use this power in order to enable it to meet the requirements imposed upon its sewage treatment works by the Regulator under the Water Resources Act 1991.

The Water Industry Act 1999 amends the 1991 Act and outlines the specification for water and sewerage charges in England and Wales and makes provision for the establishment of a water industry commissioner in Scotland. The Water Industry (Special Administration) Rules 2009 applies the Insolvency Act 1986 to water and sewerage suppliers in the event that they go into administration.

THE WATER SUPPLY (AMENDMENT TO THE THRESHOLD REQUIREMENT) REGULATIONS 2011

These Regulations amend the Water Industry Act 1991 so as to reduce the threshold level for water supply to specified premises from 50 megalitres to 5 megalitres. The threshold is the minimum quantity of water estimated to be supplied annually to any premises by a licensed water supplier. A licensed water supplier may not enter into an undertaking with a new customer to supply water to their premises unless the threshold requirement is satisfied.
 

Applicability

Fabricated Examples Ltd has two point source releases to foul sewer; the Detergent Line effluent treatment plant and the Anodising Line effluent treatment plant. The detergent effluent treatment tank also receives discharges from the cooling water system.

Both have discharge consents regulated by Water Company plc. Additionally, these releases are regulated by the Environment Agency through the company’s PPC permit. These discharges run to foul sewer before being treated offsite at a wastewater treatment works.  

The company reported that they are within the parameters set by both Water Company plc and the Environment Agency and that the effluent treatment tanks are fitted with continuous monitoring and are alarmed in the event of the releases being out of specification. Previous problems with pH levels were resolved by installing a dosing plant.

Climate Change/Energy

1.4.1    CLIMATE CHANGE LEVY (REGISTRATION AND MISCELLANEOUS PROVISIONS) REGULATIONS 2001, AS AMENDED

The Climate Change Levy is a tax applied to energy consumed by business and the public sector and is automatically added to energy bills.

Since April 2011, the Climate Change Levy (CCL) has been/will be applied at the following rates to sales of electricity, coal, natural gas and non transport related Liquefied Petroleum Gas (LPG).

This cost is offset by a cut in employers’ National Insurance contributions, plus additional supporot for energy efficiency schemes and renewable sources of energy.

Climate Change Agreements are available within certain industrial sectors. Participation in the sector scheme will result in a reduction in the levy by 65% in exchange for commitment to the sector negotiated energy or carbon reduction targets. Failure to meet targets would lead to the need to buy carbon credits to make up the shortfall, a situation that is potentially very expensive. 

Amended rules for administering exemptions and other relief from the climate change levy were introduced by the Climate Change Levy (Miscellaneous Amendments) Regulations 2005. These regulations deal with treatment of exemptions for CHP plant and also cover the extension of levy exemption to various recycling processes.

The Climate Change Agreements (Energy Intensive Installations) Regulations 2006 and The Climate Change Agreements (Eligible Facilities) Regulations 2006 expand the types of installations that may be covered by a climate change agreement to include other activities such as heat-treating metals. A 2009 amendment adds certain plastics processes, non-domestic laundrettes and salt production to the list.

The Climate Change Levy (General) (Amendment) Regulations 2007 replace half rate (50%) reductions for energy intensive non-PPC industries such as the horticultural sector with full reduced rate (80%) reductions, and removes to 2-month time limit on generators to report electricity generation from combined heat and power (CHP) for the purposes of obtaining Levy Exemption Certificates (LECs).

The Finance Act 2009 amends the Finance Act 2000 so that the Secretary of State may issue or vary a certificate specifying certain taxable commodities are ineligible for reduced rate under the Climate Change Levy (CCL). It is also amended to allow the Secretary of state to remove the reduced rate of the CCL where targets set by a climate change agreement (CCLA) have not been met. The amendments have effect where the certification period began on or after 1st April 2009. 

The Finance Act 2011 inlcudes gas supplies in Northern Ireland in the levy. If the supply is treated as taking place before 1 April 2011, the levy is £0.00059 per kilowatt hour and if it is on or after that date, it is £0.00062 per kilowatt hour. It also allows the Treasury to suspend the exemption for supply for use in recycling processes where necessary.

A 2010 amendment to the Climate Change Levy (General) Regulations 2001 to increase the time limit for repayment from 3 to 4 years.

A 2011 amendment to The Climate Change Levy (General) Regulations 2001 remove the requirement for the recipient of excluded, exempt or reduced rate supplies to provide a copy of the supplier certificate to HM Revenue and Customs. The formula used in the case of excluded, exempt or reduced rate supplies to calculate the percentage of the supply on which the Climate Change Levy (CCL) is not due, has been amended. The saving in the CCL has been reduced from 80% to 65% from 2011. An announcement in the 2011 Budget said that this would return to 80% by 2013.

A 2011 amendment to the Climate Change Levy (Fuel Use and Recycling Processes) Regulations 2005 removes lead from the list of metal recycling processes where a CCL exemption is granted.

The Climate Change Levy (Suspension of Recycling Exemption) Order 2011 removes the CCL exemption for taxable commodities supplied for use in steel and aluminium recycling processes.

HMRC offer the following guidance documents: general; registering; CHP; relief and special treatment for taxable supplies; renewable electricity; and, penalties and interest.

Applicability

Fabricated Examples have entered into a climate change levy agreement (CIA/F1234) within the Chemical Industries Association agreement. Monitoring data of their consumption and targets has revealed that to date, they have achieved their agreed targets. Data was submitted in December 2006 showing the company are in compliance with their milestone target and have ringfenced approximately 1000 tonnes of CO2. 

Hazardous Substances/Chemicals

1.5.1    REGISTRATION, EVALUATION AND AUTHORISATION OF CHEMICALS (REACH)

REACH is a system for regulating a large range of chemicals and other substances for their possible effects on the environment and human health. It applies to companies manufacturing and importing substances within the European Union as well as downstream users of these substances.

• registration – importers and manufacturers of substances in quantities over 1 tonne per year must register their substance(s) with a European Chemicals Agency based in Helsinki effective 1st June 2008. However, manufacturers and importers who ‘pre-register’ an interest in these substances with the Agency between 1st June and 1st December 2008, benefit from a ‘staged’ registration process based on production tonnage and/or defined health and environmental effects;
• evaluation – Member State competent authorities will review registration packages and request further information / testing to determine the impact of the substance on human health and the environment; and
• authorisation / restriction – decisions regarding what substances require an authorisation or restriction on use will be carried out by the European Commission and will apply to substances that pose the most concern, such as carcinogens and mutagens and very persistent, very bioaccumulative substances.  

An updated REACH factsheet for substance evaluation for 2011 is available from the ECHA.

Applicability

Fabricated Examples import certain non bulk raw materials directly from suppliers located in China and the USA. The company have pre-registered with the ECHA and joined a Substance Information Exchange Forum to share information on the substances. Bulk raw materials are manufactured in the UK and Fabricated Examples have contacted their suppliers to ensure that all bulk chemicals that the company use have been pre-registered for the activity that Fabricated Examples use the substances for.

Wildlife/Biodiversity

1.6.1    ENVIRONMENTAL DAMAGE (PREVENTION AND REMEDIATION) REGULATIONS 2009, AS AMENDED

These Regulations implement the Environmental Liability Directive 2004/35/EC in England, which seeks to prevent and remedy environmental damage to protected species, natural habitats, sites of special scientific interest, water resources and land.

Damage to water bodies is defined in the regulations as:

• sufficiently lowering the biological, chemical or physiochemical status of surface water;
• sufficiently lowering the conductivity, level or concentration of pollutants in groundwater to lower its status

in accordance with the Water Framework Directive (2000/60/EC).

Damage to species and habitats is defined as:

• having a significant adverse effect on reaching or maintaining the favourable conservation status of a protected species or natural habitat; or
• for SSSIs, occurring to the notified or a protected species or habitat and having an adverse effect on the integrity of the site.

Environmental damage to land means contamination of land by substances, preparations, organisms or micro-organisms that results in a significant risk of adverse effects on human health.

Where there is an imminent threat of environmental damage, the operator must immediately take all practicable steps to prevent the damage. Where damage has occurred, the operator must immediately take all practicable steps to prevent further damage. In both instances the operator must notify the authority of all relevant details.

The regulator will decide whether the damage is environmental damage and can then serve notice on the operator to take specific measures to prevent the damage, or prevent further damage. In an emergency situation, or where the operator cannot be notified, or does not comply with a notice, the regulator must carry out the enforcing measures.

Operators have the right to appeal against a regulator’s notice to implement improvement measures. Where an operator is at fault, the operator is liable for any costs including the regulator’s cost such as: assessing the damage; carrying out consultation; and, monitoring the areas both before and after remediation.

Remediation to land must ensure that the relevant contaminants are removed, controlled, contained or diminished so that the land no longer poses any significant risk of adverse effects on human health. Remediation other than to land must remove any significant risk to human health and achieve the same level of natural resource or services as would have existed if the damage had not occurred. The choice of remediation method must be based on its effectiveness, cost, impact on health and safety and time.

The regulations allow any person to notify the regulator of any environmental damage which is being, or has been caused or of which there is an imminent threat. The regulations extend the regulators’ inspection powers to include a ship or marine installation in UK territorial water or a UK ship or marine installation in renewable energy zone.

The regulations apply to damage caused by:

• Sites permitted under the Pollution Prevention and Control Directive (2008/1/EC);
• Waste management operations under the Waste (2006/12/EC); Hazardous Waste (91/689/EC); Landfill (1999/31/EC); Waste Incineration (2000/76/EC); Mining Waste (2006/21/EC); and Transfrontier Shipment of Waste (1013/2006/EC) Directives;
• Discharges to surface water requiring prior authorisation under the Dangerous Substances Directive (2006/11/EC); discharges to groundwater requiring prior notification under the Groundwater Directive (80/68/EEC); discharges to, or abstraction or impoundment from, surface or groundwater requiring authorisation under the Water Framework Directive (2000/60/EC);
• Manufacture, use, storage, processing, filling, release into the environment and onsite transport of: Dangerous substances, dangerous preparations, plant protection products and biocidal products as defined in Directives 67/548/EEC; 1999/45/EC; 91/414/EEC and 98/8/EC respectively;
• Transportation of dangerous goods by road, rail as defined under Directives 94/55/EEC and 96/49/EC respectively; and transportation of dangerous and polluting goods in vessels under Directive 93/75/EEC; and
• Use, or deliberate release, transport or placing on the market of genetically modified organisms as defined under Directives 90/219/EEC and 2001/18/EC respectively.

In the case of environmental damage to protected species, natural habitats or a site of special scientific interest (SSSI), the Regulations also apply in relation to environmental damage caused by any other activity if the operator intended to cause environmental damage; or was negligent as to whether environmental damage would be caused. Therefore, any site can be prosecuted if proven to have caused damage deliberately or negligently.

A number exemptions are listed including: damage that took place prior to the regulations coming into force; defence activities; an incident for which compensation is covered by the International Convention Fund for Oil Pollution Damage or Civil Liability for Bunker Oil Pollution Damage.

The regulations are enforced by the Environment Agency, Natural England, the Local Authority and the Secretary of State depending on the damage. DEFRA guidance is available here.

A 2009 amendment correct the application of the regulations with regard to the sea adjoining the England.

A 2010 amendment alters the enforcement of these regulations if the damage caused is caused by an activity that does not require a permit or registration under the Environmental Permitting (England and Wales) Regulations. The area to which these regulations apply is extended for Damage to protected species or natural habitats or a site of special scientific interest, to include land, water, and any part of the continental shelf or in the sea up to the limit of the renewable energy zone which lies within the Scottish zone. Enforcing authorities are also specified for various activities resulting the damage.

Applicability

Fabricated Examples should be aware that these regulations introduce strict liability for damage caused to the environment by permitted sites, such as the Fabricated Examples' site.  The combination of the permits and discharge consents held by the company and the proximity of the neighbouring Site of Special Scientific Interest (SSSI) and brook make the company vulnerable to prosecution under these regulations should an incident occur that caused damage to the environment.  Fabricated Examples should continue to be vigilant and ensure a high standard of housekeeping, effluent management and waste management is maintained.

INDIRECTLY APPLICABLE LEGISLATION

2.1    FINANCE ACT 1996, PART III: LANDFILL TAX, AS AMENDED

This legislation introduces a tax on waste sent to landfill. 

Landfill tax was introduced under Part III of the Finance Act 1996. All waste disposed to landfill is subject to tax based on its weight. Two rates are in place: one for inert wastes and one for non-inert wastes. HM Revenue and Customs administer the tax, which is reviewed annually as part of the Chancellor of the Exchequer’s Budget Statement. 

• Inert wastes are currently taxed at £2.50 a tonne (April 2011).  The Finance (No. 3) Act 2010 grants the Treasury powers to periodically publish criteria revising what constitutes inert or inactive waste. Article 2 of the Landfill Tax (Qualifying Material) Order 2011 specifies materials classed as inert wastes.
• Non-inert wastes are currently taxed at a rate of £56 a tonne (April 2011). The £8 per year ‘landfill tax escalator’ was introduced in the Finance Act 2009 and will continue to increase until at least 2014. The Finance Act 2011 increases the rate to £64 per tonne from April 2012.

The Landfill Tax Regulations 1996 (As Amended) cover registration procedures, accounting arrangements and provisions for bodies undertaking work for the environment. Detailed information on weighing procedures, obtaining credits against tax charged on waste removed from landfill and credits on overall tax liability of operators are set out. Projects eligible for funding from landfill tax revenues are established.

The Landfill Tax (Material from Contaminated Land) (Phasing out of Exemption) Order 2008 removed a previous exemption for tax on disposal of soils from contaminated land. Applications for new exemption certificates were declined from 1st December 2008.  This amendment is to be fully introduced by 1^st April 2012 to allow completion of current projects covered by a current exemption certificate.

The Landfill Tax (Amendment) Regulations 2009 revoke Part IX of The Landfill Tax Regulations 1996, relating to temporary disposal of material at a landfill site and introduce a requirement for operators to maintain records of activities and provide information to commissioners. “Information areas” are to be maintained for material not to be disposed of as waste. Operators must maintain records of these temporary storage areas to enable determination of taxable status of material. Information required includes weight and description of material deposited, intended and actual destination/use of material and the description of any such material sorted or removed.  The Landfill Tax (Amendment) Regulations 2009 also confer powers to HM Revenue and Customs, allowing them to set the format of the Landfill Tax Return Form for submission by operators.

The Landfill Tax (Amendment) Regulations 2009 and The Landfill Tax (Prescribed Landfill Site Activities) Regulations 2009 prescribe specific temporary uses of material at landfill sites eligible for landfill tax.  Temporary uses may be credited back if later used in site restoration. Schedule 60 of the Finance Act 2009 establishes the regulatory environment for taxation of prescribed activities and enables information requirements .

The Landfill Tax (Amendment) Regulations 2011 increase the maximum credit a landfill site operator may claim against annual landfill tax liability, in respect of qualifying contributions made, from 5.5% to 6.2%.

The Landfill Tax (Qualifying Material) Order 2011 revokes the Landfill Tax (Qualifying Material) Order 1996 replacing the lists of qualifying material subject to the lower rate of landfill tax with a new list. The material listed is grouped under the following headings: Rocks and soils; ceramic or concrete materials; minerals; furnace slags; ash; low activity inorganic compounds; calcium sulphate; and calcium hydroxide and brine.

Applicability

Although not directly affected by the requirements of this legislation, Fabricated Examples Ltd dispose of much of the waste generated on site to landfill. They are therefore indirectly exposed to this tax via the rising costs charged by waste contractors of disposal to landfill.

Fabricated Examples Ltd should be aware of the implications of this tax and consider setting company waste minimisation targets in order to reduce both waste and associated financial burdens.

FORTHCOMING

3.1    ENVIRONMENTAL CRIME DIRECTIVE

The draft Directive requires member states to criminalise a wide range of environmental breaches where they have been committed "intentionally" or with "serious negligence". 

In most cases the unlawful activity must have caused, or be likely to cause, death, serious injury or substantial damage to the environment. These offences include:

• discharge, emission or introduction of materials or ionising radiation into air, soil or water;
• treatment, disposal, transport or storage of waste;
• operation of a plant in which a dangerous activity is carried out or dangerous substances are stored; and
• handling of hazardous radioactive substances.

Unlawful activities falling under the Directive must have been conducted in breach of EU or domestic environmental legislation. For some offences covered by the Directive, there is no need to demonstrate substantial damage to the environment or people:

• illegal shipment of waste for profit;
• handling of specimens of protected fauna and flora;
• deterioration of protected habitat; and
• unlawful trade in or use of ozone-depleting substances.

Maximum prison terms against individuals are likely to range between 5-10 years where the offence was committed intentionally and caused death or serious injury.

In the case of offences committed by "legal persons", such as companies, the Directive allows member states to apply criminal or non-criminal sanctions. These sanctions shall "not exclude" criminal proceedings against individual directors or managers who are "perpetrators, instigators or accessories to the offences". Fines up to €1.5 million are proposed where the offence was committed intentionally and caused death.

UPDATE: This Directive had to be implemented in December 2010. Waterman reviewed the status of its implementation in September 2011. No reference to this Directive being directly enacted into UK legislation was identified with the exception of the Water Supply (Water Quality) (Amendment) Regulations (Northern Ireland) 2009 and a reference from the Scottish Government stating that, with regard to waste crime..."It is the Government's view that the existing provisions of Scots law meet this requirement". It is interpreted that existing provisions with statutory legislation meet the requirements of the Environmental Crime Directive.

Applicability

Fabricated Examples Ltd should be aware of this proposed legislation and ensure that all staff are informed of their own responsibilities once it comes into force. 

OTHER REQUIREMENTS

4.1    ENVIRONMENT AGENCY MONITORING AND CERTIFICATION SCHEME (MCERTS)

MCERTS is the Environment Agency's monitoring certification scheme. it is designed to improve the quality of emissions monitoring data so ensuring regulatory compliance.

The scheme covers: the certification of instruments; the competency certification of personnel; and the accreditation of laboratories and on-site inspections.

Monitoring to MCERTs standards is commonly required for organisations obligated under the IPPC Directive (2008/1/EC) and Urban Wastewater Treatment Directive (91/271/EEC). Permits issued under the IPPC Directive will dictate whether monitoring is required, and if so, the frequency and type of monitoring and the substances to be detected. It is then best practice to undertake such monitoring using MCERTs certified equipment using MCERTs accredited personnel and laboratories.

MCERTS guidance is available for monitoring emissions to atmosphere and water, and for soil analysis. Guidance varies depending on the substance and type of monitoring and to which media. 

Operator Monitoring Assessment (OMA)

The Environment Agency may undertake an Operator Monitoring Assessment (OMA) audit to establish the quality of a company's monitoring regime. The audit typically entails interviews with relevant site personnel, inspections of monitoring locations and a review of appropriate documentation such as:

• Copies of monitoring procedures;
• Performance and validation data for methods used, for example, limits of detection including surrogate methods such as mass balances;
• Training records;
• Calibration and maintenance procedures and records; and
• equipment instruction manuals.

Applicability

As part of Faricated Examples Ltd's environmental permit, the company have a requirement to report on NOx and CO emissions to air from the process boiler. The company must ensure that monitoring is undertaken to the appropriate MCERTS standard by a suitably qualified contractor.

4.2    POLLUTION PREVENTION GUIDELINES (PPGs)

Pollution Prevention Guidelines (PPGs) are jointly produced by the Environment Agency for England and Wales, the Environment and Heritage Service for Northern Ireland, and, the Scottish Environment Protection Agency.  

This guidance is issued as practical guidance to help companies implement measures to prevent pollution occurring in a number of different scenarios.  All guidance should be considered within the context of each individual site. PPGs are also issued with the following caveat from the Regulators: 

Following these guidelines doesn’t remove your responsibility to comply with the law and prevent pollution from your activities. Causing or allowing pollution is a criminal offence: compliance with this or any guidance isn’t a defence. You should make sure that the references to other sources of guidance are still current; use updated guidance if it exists.

• PPG 1 General guide to the prevention of pollution 
• PPG 2 Above ground oil storage tanks
• PPG 3 Use and design of oil separators in surface water drainage systems
• PPG 4 Treatment and disposal of sewage where no foul sewer is available 
• PPG 5 Works and maintenance in or near water 
• PPG 6 Working at construction and demolition sites
• PPG 7 Refuelling facilities
• PPG8 Safe storage and disposal of used oils
• PPG 13 Vehicle washing and cleaning 
• PPG18 Managing fire water and major spillages
• PPG20 Dewatering underground ducts and chambers
• PPG 21 Pollution incident response planning
• PPG22 Dealing with spills
• PPG26 Storage and handling of drums and intermediate bulk containers (IBCs)
• PPG27 Installation, decommissioning and removal of underground storage tanks
• PPG 28 Controlled Burn Tactics
• Oil separator manufacturers
• Food and drink manufacturing industry: environmental management toolkit
• British Marine Federation: environmental code of practice 

Note that the following PPGs have recently been withdrawn:

• PPG 10 Highway depots
• PPG 11 Industrial sites
• PPG 14 Marinas and crafts
• PPG 15 Retail shops
• PPG 16 Schools and other educational establishments
• PPG17 Dairies and other milk handling operations
• PPG 19 Garages and vehicle service centres
• PPG 23 Maintenance of structures over water
• PPG24 Stables, Kennels, Catteries

In England and Wales, you should use the Environment Agency's 'Is your site right?' checklist instead of these withdrawn PPGs.

Applicability

Fabricated examples should be review the PPGs and implement relevant guidance. The following PPGs are noted as being particularly relevant to activities on site:

• PPG 1 General guide to the prevention of pollution
• PPG 2 Above ground oil storage tanks
• PPG 3 Use and design of oil separators in surface water drainage systems
• PPG8 Safe storage and disposal of used oils
• PPG18 Managing fire water and major spillages
• PPG 21 Pollution incident response planning
• PPG26 Storage and handling of drums and intermediate bulk containers (IBCs)