Ross Wright, Author at The Compliance People

As you’ve probably realised by now, we’re immensely proud that as a not for profit organisation, 100% of all profits generated by The Compliance People are gift aided to our parent charity, Newground Together. We also want our customers to feel proud that through supporting our business they are directly impacting the lives of so many.

This month instead of focussing on one project, we take a look back on what our charity has been able to achieve this year.

The status of the EU law retained by the UK since Brexit changes at the end of 2023, what effect will it have for you and your organisation?

Following the United Kingdom’s decision to leave the European Union in 2016 there has been much debate and concern about how this would affect the thousands of pieces of legislation which originated from the EU and its associated impacts. The Retained EU Law (Revocation and Reform) Act 2023 was passed on 29th June 2023 and provides clarity on the future of retained EU law in the UK.
Revocation of EU law
The Government’s finalised plans confirm that much of the UK’s domestic legislation and direct legislation incorporated from the EU will continue to apply, with just 587 laws being revoked in full or part at the end of 2023. The vast majority of laws which will be revoked are either duplicates, no longer applicable, or expired. As such, the revocation will have little impact to most individuals and organisations across England, Wales, Scotland and Northern Ireland. A full list of the schedule of EU law that will be revoked or sunset at the end of 2023 can be found on the Government website here.
Retained EU law (assimilated law)
At the end of 2023 all EU-originating law which will continue to be retained will become known as ‘assimilated law’, rather than ‘retained EU law’. Effectively these laws will become secondary UK legislation with ministers and authorities having specific powers to restate, replicate, revoke or replace EU-originating law until 23^rd June 2026.
Principles of EU legislation
Wider changes at the end of 2023 include the removal of the general principles of EU law in the UK, as well as revocation of the principle of supremacy of EU law over domestic law in the UK.

The vast majority of EU-originating laws will continue to be in effect after 31^st December 2023, with relatively few being revoked, providing organisations with certainty and continuity as they operate across the UK post-Brexit.

Systematic failures in regulating waste carriers, brokers and dealers has led to record levels of crime and is costing over half a billion pounds a year. These were the conclusions of Mike Brown, managing director of Eunomia, when in 2017 he managed to register his deceased dog Oscar as a waste carrier. The purpose of this stunt was to highlight that the lack of background checks under the current regime would allow anyone (or anyone’s pet) to register, leaving it open to exploitation by bad actors. The problem has only worsened since, with the Environment Agency estimating the cost in 2021 alone to be over £1 billion a year.

At the beginning of 2022, the Department for Environment, Food and Rural Affairs (DEFRA) consulted on its plans to reform the waste carriers, brokers and dealers registration system in an attempt to address some of the shortcomings that Mike Brown had exposed in 2017. This consultation proposed moving the regime from a registration to a permit-based system under the Environmental Permitting Regulations (EPR) and proposed enhanced background checks needed to operate as a waste carrier, broker or dealer. On the 21^st of October 2023, the Governments response to this consultation was published.

This response confirmed that changes to the waste carriers, brokers and dealers regime would be made to replace the current registrations with permitting rules, and simplify the current terminology that is used under the regime.
Changes to terminology
The current regime distinguishes between waste carriers, waste brokers and waste dealers; distinctions that have caused some confusion. These are going to be replaced with 3 new designations:

Permit changes
The existing two-tier registration system for waste carriers is going to be replaced with a ‘standard rules’ environmental permit or a registered exemption under the EPR. It is outlined in the Government publication that they plan to introduce the following three permit types:

These permits will be differentiated with the addition of tiers that take into consideration the type and volume of waste carried. This will include four levels of risk, with additional charges and permit conditions reflecting the risk level of the waste. The details of these permits and their conditions will be outlined in future consultations.

All 3 of the newly proposed permits will require a single, up-front payment. The payment will cover the application fee and a subsistence fee to cover compliance costs. If the application is unsuccessful then the subsistence fee will be refunded. A renewal fee will be charged after 3 years that also includes a subsistence fee.

Registered and non-registered exemptions will still be available, exempt activities can be found here.
Technical competence
A significant change to bringing the current regime into line with the EPR is the duty to demonstrate technical competence for permitted activities. This will mean that before waste controllers or transporters can obtain one of the permits outlined above, they must satisfy the Environment Agency that they can meet both the conditions of the permit being applied for and have the appropriate level of technical competence required. When implemented, this should prevent inadequate applications, such as those made on behalf of Oscar the dog, from being granted.
Get ready for the new waste system
As it stands, when the new system goes live, those with an existing upper-tier registration will be required to apply for the relevant permit when their registration is due for renewal. Those with an existing lower-tier registration will be required to apply for any permits that they require within 12 months, after which their registration will have expired.

The coming changes are still very much in the early stages, with alterations following additional consultations likely and currently no timeline for when the new system will go live. However, it is clear that significant changes in the way we handle and transport waste are on the horizon.

CCA extension
The Climate Change Agreements (CCAs) scheme, initially set to end on 31^st March 2025, is now extended until 31st March 2027. The scheme is administered by the Environment Agency (EA).

About CCAs
Climate change agreements are voluntary agreements between organisations in the UK industry sectors and the Government. Scheme participants enter into an agreement to reduce their energy use or emissions and, in exchange, will pay a reduced rate of Climate Change Levy (CCL). The current CCL discount is 90%.
Compliance
Scheme participants can remain compliant with the CCA scheme by:

*Scheme participants may, if they fail to achieve the energy efficiency or the emissions reduction target, pay a buy-out fee, which is calculated per tonne of CO2.

Key Changes
The extension to the CCA scheme brings a number of changes, such as:

*Surplus means the amount by which the reduction in emissions has exceeded the target during a target period.

However, the scheme administrator is given discretion to waive or reduce the amount of financial penalty, or to allow extra time for payment, where appropriate.

For financial penalties issued after 31st December 2023, the administrator must publish:

Amends: GB Retained: Regulation (EU) 517/2014 on fluorinated greenhouse gases and repealing Regulation (EC) 842/2006
Mini Summary

Summary
Organisations must have a licence to transport hydrogen gas and carbon dioxide through a pipeline, and dispose of carbon dioxide via geological storage*.

*Geological storage is the injection of captured carbon dioxide into rock to remove it from the atmosphere.

It aims to promote sustainable development and help the United Kingdom achieve net-zero emissions** targets.

**Net-zero emissions means reducing greenhouse gas emissions to zero.

Counterparties
The Secretary of State may appoint a counterparty* for:

carbon dioxide capture, transport and storage providers**;
hydrogen producers; and
hydrogen transport and storage providers***.

*A counterparty is an individual or organisation that provides financial support to organisations.

**A carbon dioxide capture, transport and storage provider is a person that captures, transports or stores carbon dioxide under a licence.

***A hydrogen transport and storage provider is a person that transports or stores hydrogen or a compound containing hydrogen.

Counterparties may:

impose conditions on providers;
specify the process to be followed when producing hydrogen or capturing carbon dioxide; and
specify targets for hydrogen production and carbon capture.

Duties
Various duties apply and are available to view on the Legislation Update Service.

The Energy Savings Opportunity Scheme Regulations 2014 introduces the Energy Savings Opportunity Scheme (ESOS) which is a mandatory energy assessment and energy saving identification scheme for large undertakings and their corporate groups. All must audit their energy use every four years. ESOS is the UK Government’s approach to transposing Article 8(4)-8(6) of the EU Energy Efficiency Directive which imposes these requirements on EU member states.

A large undertaking either:

has 250 or more employees in the UK; or
has fewer than 250 employees but has an annual turnover exceeding £44m and a balance sheet exceeding £38m.

If you are very close to the qualification threshold or have substantially increased or decrease in size in recent years, please refer to the full ESOS guidance on how to assess if you qualify.

Smaller organisations may still be obligated if they are part of a Corporate Group which includes an undertaking in the UK that meets criteria in the bullet point list above.

Small and Medium Enterprises (SMEs) and public sector bodies are exempt from the scheme, but are still encouraged to consider voluntarily undertaking energy audits and proactive energy management, in order to save money and cut energy bills. ESOS provides a framework that can be used to help identify energy efficiency opportunities for these organisations.

The ESOS Regulations came into force on 17 July 2014. The second compliance period has now ended and organisations will now be working towards the third compliance period (6th December 2019 to 5th December 2023).

Changes are made to the Energy Savings Opportunity Scheme (ESOS), including requirements for ESOS audits and reports.

The measures introduced by this amendment aim to:

strengthen requirements for audits and make them more standardised;
improve the quality of ESOS audits; and
require public disclosure of high-level recommendations by participants.

Stronger requirements for audits / standardisation

The maximum percentage of total energy consumption that may be excluded from the ESOS audit is reduced from 10% to 5%.

Regulation 15 requires organisations to provide more details regarding the calculation of energy consumption, including energy intensity metrics.

Specific details of how the audit was carried out must now be recorded.

ESOS reports
An ESOS report must be produced for each ESOS assessment conducted after 5^th December 2019.

The information that must be included in an ESOS report is outlined in Schedule 3.

ESOS reports must also include additional data on compliance and energy savings, as detailed in Article 18. Where applicable, relevant parts of ESOS reports and evidence packs must also be provided to members of the corporate group.

Improved quality of ESOS audits

Energy audits must identify specific information in relation to energy saving opportunities, as detailed in Article 17.

These include:

costs;
benefits; and
an implementation programme.

Public disclosure of high-level recommendations

Regulation 6 sets out the requirements for the public disclosure of certain information.

Regulation 21 requires organisations to give additional information to the scheme administrator to support compliance monitoring and enforcement.

Regulation 26 introduces a new requirement to:

submit an ESOS action plan to the scheme administrator, setting out any commitments to implement energy efficiency measures; and
provide annual progress updates on the action plan.

In the case of corporate groups, when an organisation leaves the group before an action plan or a progress update is submitted, the organisation can agree to comply as if still part of the group or on its own.

Other changes

Organisations with an annual consumption of less than 40,000 kWh of energy are no longer required to appoint a lead assessor; however, they will need to appoint 2 responsible officers instead.

Responsible organisations using estimates must record the method used to make those estimates and, in some instances:

notify the scheme administrator that an estimate was used; and
record in the evidence pack, the reasons why an estimate was used.

These Regulations come into force on 29^th November 2023.

Link to full government text

Amends: GB Retained: Regulation (EU) 2019/1021 on persistent organic pollutants
Mini Summary

The GB Retained: Regulation (EU) 2019/1021 on persistent organic pollutants repeals and replaces Regulation (EC) 850/2004 on persistent organic pollutants.

Persistent Organic Pollutants (POPs) are chemical substances which stay in the environment, migrate into and accumulate in the food chain, and threaten human health and the environment. POPs can be found in pesticides, industrial chemicals (such as polychlorinated biphenyls – PCBs) and industrial by-products.

The purpose of this Regulation is the protection of the environment and human health from POPs by prohibiting, phasing out or restricting the manufacturing, placing on the market and use of substances subject to:

It also aims to minimise and eventually eliminate releases of substances containing POPs and control waste containing or contaminated by POPs.

Application in Great Britain (GB)

Following the UK’s departure from the European Union (EU), the European Union (Withdrawal) Act 2018 incorporated all directly acting EU Regulations into UK law. Those Regulations have been subsequently amended to update various definitions, terminology, authorities, etc. to GB rather than EU references. They have also been amended so that GB bodies, rather than EU bodies, can regulate and enforce them. This entry describes the retained version of Regulation (EU) 2019/1021 on persistent organic pollutants, which applies in England, Scotland and Wales (GB) from IP completion day.

Application in Northern Ireland

Although Northern Ireland has left the EU, under the terms of the Northern Ireland Protocol the EU version of Regulation (EU) 2019/1021 on persistent organic pollutants continues to apply in Northern Ireland.

The competent authorities are:

the Environment Agency in England;
the Scottish Environment Protection Agency (SEPA) in Scotland; and
Natural Resources Wales (NRW) in Wales.

Appropriate authorities are the Secretary of State and the Welsh and Scottish Ministers.

This Regulation is implemented in GB by The Persistent Organic Pollutants Regulations 2007.

The Climate Change Agreements (Eligible Facilities) Regulations 2012 revoke, replace and consolidate with some amendments the Climate Change Agreements (Eligible Facilities) Regulations 2001, the Climate Change Agreements (Eligible Facilities) Regulations 2006, the Climate Change Agreements (Eligible Facilities) (Amendment) Regulations 2006 and the Climate Change (Eligible Facilities) (Amendment) Regulations 2009.

This legislation sets out the eligibility criteria for facilities wishing to enter into Climate Change Agreements (CCAs) in order to receive a discount on their Climate Change Levy (CCL). The CCL is a tax on electricity, natural gas, liquefied petroleum gas and solid fuels (taxable commodities) supplied to the business and public sectors.

The CCA scheme was introduced in order to allow certain energy intensive businesses to pay a reduced rate of CCL in return for entering into sector-specific energy efficiency agreements. The CCA discount meant that companies in a CCA paid only 35% of the CCL however as of 1^st April 2013 this rate is being reduced to 10% on electricity (the rate of CCL on gas, LPG and solid fuels will remain at 35% of the main CCL rates).

The 2012 Regulations are a consolidation of the previous Regulations and as a consequence the CCA regime remains largely the same. There are, however, two significant amendments to the eligibility criteria, meaning that companies should check their eligibility.

The amendments change the 90% rule and the remove the energy intensive criteria that applied for entry into a CCA.

The Environment Agency took over from DECC as the administrator of the CCA scheme on 1st October 2012 and will perform this role until 2027.

The Climate Change Agreements (Administration) Regulations 2012 transfer the administration of the Climate Change Agreement (CCA) scheme from DECC to the Environment Agency.

They set the Environment Agency’s powers and duties as administrator of the scheme and they will apply to CCAs which are entered into after 1^st October 2012.

Having the Environment Agency administer CCAs brings the scheme in line with the EU Emissions Trading System (ETS) and the CRC Energy Efficiency Scheme. Subject to approval the new CCAs will be set at 90% relief from April 2013 and will run until March 2027.

The amendments stem from Section 207 and Schedule 31 of the Finance Act 2012 which transfer the administration of the CCA scheme in respect of any CCAs entered into after the date Finance Act 2012 came into force from the Secretary of State to an administrator. The Finance Act 2012 also conferred powers on the Secretary of State to make regulations on the administration of the new scheme including the powers and duties of the administrator relating to new aspects of the scheme, including:

terms to be included in a CCA that mean that a lack of progress towards meeting targets may be made up for by the payment of a fee;
the imposition of financial penalties; and
circumstances in which a CCA can be terminated.

The CCAs will also contain provisions about the obligations of participants in the scheme, when a facility covered by an agreement may be certified, how the buyout fee will be operated, how an agreement may be varied, and further rights of appeal in respect of decisions made under the CCAs.

The Climate Change Agreements (Eligible Facilities) Regulations 2012

The Climate Change Agreements (CCAs) scheme has been extended. Intended to end on 31^st March 2025, it will now run until 31^st March 2027.

The Climate Change Agreements (Administration) Regulations 2012

The Climate Change Agreement (CCA) scheme is extended until 31^st March 2027.

Key changes
The main changes introduced by this Amendment are as follows.

A new target period (TP6) is introduced from 1^st January 2024 to 31^st December 2024.
The buy-out fee* for TP6 is increased to £25 per tonne of CO2 that exceeds the target.
No surplus** previously accumulated by participants is considered in relation to TP6.

*Participants may, if they fail to achieve the emissions reduction target, pay a buy-out fee.

**Surplus means the amount by which the reduction in emissions has exceeded the target.

Mandatory disclosure
Participants in the CCA scheme must provide information on actions that have been taken to meet the target upon request.

Penalties
The maximum financial penalty is increased from £250 to £500.

However, the scheme administrator is given discretion to:

withdraw a financial penalty;
impose a lower amount; or
allow additional time for payment of the penalty.

For financial penalties issued after 31^st December 2023, the administrator must publish:

the name of the operator;
the amount of the penalty imposed; and
a description of the contravention that led to the imposition of the penalty.

These Regulations come into force on 31st December 2023.

Amends: The Controlled Waste (England & Wales) Regulations 2012
Mini Summary

The Controlled Waste (England & Wales) Regulations 2012 revoke and replace The Controlled Waste Regulations 1992.

They classify waste as household, industrial or commercial waste and also list the types of wastes for which local authorities may make a charge for collection and disposal. All controlled wastes are covered by a duty of care.

The main impact of these Regulations is that local authorities, acting as waste collection authorities, are now able to charge for the disposal of waste arising from a wider range of non-domestic premises than allowed under the 1992 Regulations.

Defra concluded that the 1992 Regulations undermined efforts to reduce waste and increase recycling. Exemptions from disposal charging extended to private institutions and some businesses. Most wastes from industry and commerce, including materials that are destined for recycling, are to be treated as controlled waste. The main exemptions are wastes from agricultural premises, mines, quarries and radioactive wastes, which are regulated under other statutory regimes.

“Household waste” that can now incur collection and disposal charges include litter, waste from residential homes, waste from nursing homes, waste from some premises forming part of a hospital or nursing home and waste from penal institutions. Collection charges can be made for garden waste, dead pets and waste from charity shops originating from domestic properties. See the tables in Schedule 1 of the Regulations for full details.

Duties
The producer of the waste must identify controlled waste and, as such, should treat it in compliance with all relevant Regulations regarding waste.

The 2012 Regulations may impose additional requirements and costs on those types of businesses, charities or organisations which had under the previous 1992 Regulations had their waste disposed of free of charge by their local authority. However there are still exemptions available for charity shops (no “disposal charge” if the waste originated from domestic property), reuse organisations, firms eligible for free waste disposal and entitled to Small Business Rate Relief, and premises used for public meetings.

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