Environment law update: Hazardous substances 7

United Kingdom

Asbestos

The Control of Asbestos at Work Regulations 2002 (SI 2002 No. 2675) have finally been released (see article by David Short in this issue). Regulation 4 of the new Regulations, imposing an obligation on anybody with maintenance or repair responsibilities for a work place to manage any asbestos that might be present, will come into force on 21 May 2004. It is aimed at preventing building and maintenance workers being accidentally exposed to asbestos through their work, and specifies the actions that must be taken by employers and others to prevent this exposure. In practice, the duty holder will usually be the employer occupying workplace premises, but may also be owners of buildings, managing agents, surveyors and architects. It is estimated that around 2 million non-domestic properties contain asbestos in various forms. Although the duty to manage asbestos is the most onerous of the provisions in the new legislation, there are also several other provisions which come into force on 21 November 2002, imposing requirements for the protection of employees who might be exposed to asbestos at work. The new Regulations replace the Control of Asbestos at Work Regulations 1987 (SI 1987 No 2115) and implement a number of European Directives. The HSE has published several guidance documents to accompany the new Regulations, including a new Approved Code of Practice (L127) to support the duty to manage asbestos under Regulation 4.
(SO, 24 October 2002: HSE, December 2002)

The HSC is proposing to amend the Asbestos (Prohibition) Regulations 1992 (SI 1992 No 3067). The effect of the amendment will be to prohibit the importation of crude, fibre, flake, powder and waste asbestos by restricting the prohibition to compounds to which asbestos has been intentionally added. The move is necessary after the European Commission queried whether this legislation meets single market treaty obligations. The HSC is also seeking comments on its long term aim of introducing a de minimus threshold into the Regulations. Comments must reach the HSC by 28 February 2003.
(HSC, December 2002)

The Government has issued a position statement on the soon to be proposed EU Directive dealing with a chemicals strategy. A proposal for a Directive is expected early in 2003. It is likely to include the REACH system which involves registration, evaluation and authorisation of chemicals under a single system aimed at collating hazardous information, assessing risks, classifying, labelling and restricting the marketing and use of individual chemicals and mixtures of chemicals. The policy is due to cover both new and existing substances and those chemicals identified as being of utmost concern could be banned. The Government’s position paper says that it is keen for the Commission to publish a proposal for a Directive as soon as possible, and is releasing its statement to stimulate debate, rather than to lay out its definitive position.
(DEFRA, December 2002)

Ammonium nitrate

The Notification of Installations Handling Hazardous Substances (Amendment) Regulations 2002 (SI 2002 No. 2979) came into force on 30 December 2002. These Regulations amend the 1982 Regulations (SI 1982 No 1357) in relation to ammonium nitrate. Under the 1982 Regulations, the handling of certain quantities of hazardous substances, specified in Schedule 1, is prohibited unless the HSE has been notified. The new amending Regulations substitutes four weeks for three month as the minimum period of notice and ensure that the HSE is always the enforcing authority for sites where ammonium nitrate is handled. They also widen the description of mixtures containing ammonium nitrate specified in Schedule 1 of the principal Regulations and lower the specified quantity from 500 to 150 tonnes.
(SO, 2 December 2002)

Dioxins and PCBs

DEFRA has issued a consultation paper seeking opinions on the current situation regarding dioxins and PCBs in the environment. The aims of the consultation paper are to identify and control sources of these compounds, gain information about levels and effects in the environment and on human exposure. The Government is using the consultation process to develop its future strategy for these compounds in order to reduce overall exposure to them. A partial regulatory impact assessment has also been published alongside the consultation paper designed to identify the potential costs and benefits of any future measures to reduce the environmental levels of dioxins and PCBs. DEFRA were accepting comments up to 24 January 2003.
(DEFRA, October 2002)

Pesticides

The Environmental Audit Committee, appointed by the House of Commons to consider the extent to which Government policies contribute to environmental protection, has released a report entitled ‘Pesticides: The Voluntary Initiative’. The report concludes that the voluntary initiative, a formal agreement between the Government and the farming industry involving the main industry trade groups and the farming unions, has got off to a slow start. Furthermore, it states that the objectives of the voluntary initiative lack clarity in their main objective of reducing pesticide use. It also says that the initiative lacks a clear implementation strategy to provide incentives for farmers to alter their behaviours and, therefore, doubts whether it can deliver the very high levels of take up required for success. However, it does qualify this by stating that it might be too early to judge voluntary initiative and recommend that it needs to be given further time, at least until the end of 2003, when an appraisal should be carried out. The Environmental Audit Committee also believes that the Government should publish a pesticide strategy showing how different policy instruments can be used to achieve its objectives. The Committee advocates not relying on a single policy measure and is in favour of using fiscal instruments in conjunction with other policy instruments in relation to pesticides.
(Parliament, 26 November 2002)

Nonylphenols

Information and comments were requested in a consultation paper on a proposed EU Directive on Controls for the Marketing and Use of Nonylphenol and Nonylphenol Ethoxylates. The proposal relates to amendments made to the EU Marketing and Use Directive (76/769/EEC) to protect the environment, which with some exceptions, cover industrial and institutional cleaning, textiles, metalworking, paper and pulp manufacturing and cosmetic products. The consultation period closed on 9 December 2002.
(DEFRA, October 2002)

Chemicals policy

The Chemicals Stakeholder Forum (CSF) have identified nonylphenols, octylphenols and their ethoxylates as persistent, toxic and capable of bioaccumulation. The CSF also concluded that these chemicals pose significant risks to the environment and are suspected endocrine disruptors. As a result, DEFRA has announced that it is to seek formal voluntary agreement with industry to reduce the use of these compounds. Nonylphenols and their ethoxylates are used in a variety of products and processes including industrial cleaning, paints, paper and textiles. Although octylphenol and their ethoxylates are less widely used they are potential substitutes for nonylphenols. While nonylphenol and its ethoxylates are the subject of a restriction on marketing and use in a proposed EU Directive, the CSF concluded that the implementation of this legislation would take too long.
(DEFRA News Release, 18 October 2002)

GMOs

The Government has announced a major scientific review of GM science. The scientific review will be conducted in conjunction with public debate and is expected to be completed by June 2003. The measure is intended to help determine whether or not commercial growing of GM crops should be allowed in the UK. Friends of the Earth have criticised the move, as it points out that the results will be produced before the GM farm scale trials, started in 1999, have finished and therefore the results of the trials will not be included in the review.
(Science Media Centre Press Release, 29 November 2002)

The Genetically Modified Organisms (Deliberate Release) Regulations 2002 (2002 No 2443) came into force on 17 October 2002. They implement the Deliberate Release Directive (2001/18/EC) by imposing a requirement to obtain consent for those activities to comply with the conditions imposed on the consent for marketing and releasing GMOs into the environment. The new legislation is aimed at strengthening the existing control regime and in particular post marketing surveillance.
(SO, 25 September 2002)

DEFRA has produced a draft guidance note on the Genetically Modified Organisms (Deliberate Release) Regulations 2002 to replaces the previous DOE/ACRE guidance note. The deliberate release regime consists of the 2002 Regulations, the Deliberate Release Directive (2001/18/EC), which the Regulations implement, and the EPA 1990. The guidance sets out the purpose, scope and main aspects of the regime in England in terms of Part B (Non Commercial) and Part C (Commercial) release of GMOs. It also outlines for England the process to be followed in order to obtain the Secretary of State’s permission for authorising the release of any GMO into the environment. All applications for authorisation are examined by scientific experts, after which consent is either granted or refused. If consent is granted there might be conditions attached to the release.
(DEFRA, November 2002)

Hexachloroethane

A consultation paper issued by DEFRA is seeking information and comments from all stakeholders on the transposition into domestic legislation of the eighth adaptation to technical progress of the Marketing and Use Directive (76/769/EEC). The Directive was amended by an EU Directive (2001/91/EC) further restricting the use of hexachloroethane by removing the derogations that previously allowed it to be used in some non-ferrous metal production. The use of hexachloroethane will now be prohibited in all non-ferrous metal manufacturing. Responses to the consultation paper were requested by 28 January 2003.
(DEFRA, October 2002)

Organophosphates

A study examining 646 adverse human reactions to organophosphates reported to the Vetinary Medicines Directorate (VMD) Suspected Adverse Reaction Surveillance scheme between 1985 and 2000 has been published. The reports were all attributed to exposure to organophosphates in vetinary medicines, in particular sheep dips. The report concluded that certain symptoms such as headaches and depression were prominently featured in the adverse reaction reports, though it pointed out that the information obtained from the scheme was of variable quality and therefore no firm conclusions on the causes of this ill health could be reached.
(VMD, November 2002)

Persistent pollutants

DEFRA has published a report investigating the scope for using economic instruments to manage the risks associated with a range of persistent pollutants. It states that despite a number of voluntary initiatives and pending EU legislation for chemicals regulation, that there is a need to continue examining the role that alternative approaches can play in managing chemical risks. The conclusions from the first phase of the study were that economic instruments offer important advantages as complementary measures and in particular as incentives to longer term improvements in environmental performance. The first phase was followed by case studies examining the potential application and design of economic instruments.
(DEFRA, November 2002)

Medium chain chlorinated paraffins

The UK Chemicals Stakeholder Forum (CSF) has concluded that medium chain chlorinated paraffins (MCCPs) present significant risks to the environment. As a result, it is now calling on industry to take voluntary action to address the risks from MCCPs, the main use of which is in the manufacture of PVC. They also have significant uses in other plastics and rubber products as flame retardant and in a number of other applications such as paints, metal cutting fluids and sealants. The CSF is concerned over the recent discovery of MCCPs in both breast and cows milk.
(DEFRA, November 2002)

Lead

New Regulations which impose requirements for the protection of employees who might be exposed to lead at work came into force on 21 November 2002. The Control of Lead at Work (CLAW) Regulations 2002 (SI 2002 No 2676) re-enact with some modifications, the CLAW Regulations 1998 (SI 1998 No 543). The new Regulations include further definitions and follow closely the structure of the COSHH Regulations. However, if an employer concludes from the assessment that exposure of employees to lead is likely to be significant, as defined by the Regulations, then the employer must introduce specific controls such as issuing employees with protective clothing, carrying out air monitoring and placing them under medical surveillance. The HSC has also published a revised approved code of practice to complement the new Regulations.
(SO, 24 October 2002: HSC, December 2002)

European Union

Pesticide residues

A Directive amending maximum levels of certain pesticide residues allowed in and on food crops has been published in the Official Journal. The Directive sets new maximum residue levels (MRLs) for eighteen active substances, which apply from 1 August 2003. Approvals for advertisement, sale, supply, storage and use of any of these pesticides, in which the new MRL would be exceeded, will be revoked. Therefore, approval holders will have to submit applications to amend the approval to ensure compliance.
(OJL 291, 28 October 2002)

Chemicals policy

An initial list of persistent and bio accumulative substances that might be classified as chemicals of high concern requiring authorisation under the REACH system, which forms the basis of an imminent EU Directive on the regulation of chemicals, has been published. However, none of the substances have been firmly selected, as a definitive list is awaiting consultation with industry. All the substances on the list are either persistent, bio accumulative and toxic (PBT) or are very persistent and very bio accumulative (vPvB).
(European Chemicals Bureau, 15 October 2002)

International

Arctic pollution

A report released in Finland, ‘Arctic Pollution 2002’ incorporates five years of research work under the Arctic Monitoring and Assessment Programme (AMAP). The report has highlighted problems due to global movement of a number of well known pollutants as well as new concerns over other substances. Among the findings is that the Arctic may be a global sink for atmospheric mercury. While emissions are falling in Europe and North America, they are rising in Asia due to increased coal burning, and are now seven times higher than in pre-industrial times. Similarly levels of brominated flame retardants (BDEs) are also rising in the Arctic. Levels of platinum, palladium and rhodium were found to have significantly increased in the last few decades and this was attributed to the use of these metals in vehicle catalytic converters. However, the Bromine Science and Environmental Forum have challenged the finding relating to BDEs, claiming that only one such compound, Penta BDE which is being phased out, was present at significant levels in the Arctic.
(AMAP, October 2002)

Pesticides

The United Nations Food and Agricultural Organisation (FAO) have adopted a revised international Code of Conduct for the distribution and use of pesticides. It is aimed at minimising the potential health and environmental risks associated with different phases of the life cycle of the product including development, production, packaging and labelling through to distribution, application and use and disposal. The code is particularly aimed at developing countries, where the use of pesticides is seen as presenting major risks, and calls on industry to supply only pesticides of adequate quality and to minimise risk by careful monitoring of pesticide formulation, packaging and labelling.
(FAO, November 2002)

For further information please contact Paul Sheridan on 020 7367 2186