On 13th March 2024 we held our environment and health & safety legal update webinar. During the session, we provided an overview of what has changed in environment and health & safety legislation in the past year.
The session started with us taking a look at Assimilated law in the UK.
We then moved on the environment section, where we covered the following:
- Carbon border adjustment mechanism
- Biodiversity gain
- Energy and climate change
- Waste; single-use plastics, packaging waste, exemptions and permits etc.
Following this we took a look at key changes in H&S legislation, including:
- Building safety update
- Driver safety
- Hazardous substances
Finally, for the first time ever we finished with a live Q&A. The answers to all questions asked are below.
Note to reader: During the webinar, we discussed the EU Carbon Border Adjustment Mechanism (CBAM) as a key topic and there were plenty of questions about this and its implications for organisations in the UK. As explained in the webinar, the UK will implement its own CBAM scheme in 2027. This week the Government has opened a consultation seeking views on this and providing information on its introduction. You can access the consultation and more details here.
Questions & Answers
During the webinar, we gathered your questions and have answered them below. If you’d like to know more about our Consultancy Service or the Legislation Update Service, please contact us.
EU CBAM only covers imports into the EU so if you’re only exporting goods to the EU you do not have a duty to report; that would be the responsibility of the EU importer although the importer may ask for information on products being imported so they can accurately report information. Whether goods fall under CBAM or not all depends on the Combined Nomenclature (CN) code for the good(s). In general, finished products do not fall under CBAM, although there are some exceptions such as screws, nuts, bolts, and fasteners.
The EU has published guidance for importers which lists all of the CN codes for goods fall under CBAM. I’d recommend reviewing to determine whether any products you export to the EU may be currently included in the CBAM system. It’s worth mentioning that over time it’s expected that the range of goods covered under CBAM will be expanded.
Placing products into packaging is classified as a packaging activity so it will depend on your company turnover and volume of packaging used (N.B. some packaging is exempt including exported packaging). Small organisations currently only have to record packaging (but will need to report in the future) whilst large organisations must report packaging.
- Small organisations are those with a turnover of between £1 million and £2 million and responsible for more than 25 tonnes of packaging OR with a turnover of over £1 million and responsible for between 25 and 50 tonnes of packaging.
- Large organisations are those with a turnover of £2 million or more and responsible for more than 50 tonnes of packaging.
The weight of packaging is calculated as the amount of packaging per calendar year supplied through the UK market or imported and then discarded in the UK.
We have produced simple guidance on Extended Producer Responsibility scheme here and the Government guidance is here which you may find useful.
When calculating headcount for the UK’s Energy Savings Opportunity Scheme, this would include all employees employed or contracted (and subject to income tax in the UK) by a UK organisation or group, irrespective of whether they are based in the UK or overseas.
You may find the Environment Agency guidance here useful; it explains who ESOS applies to and also how the scheme works for more complex organisations such as international groups.
Whilst the requirement to fit a tachograph is mandatory for all vehicles with a gross weight exceeding 3.5 tonnes, the requirement to fit a tachograph for vehicles weighing between 2.5 and 3.5 tonnes from 2026 only becomes mandatory based on its usage.
Vehicles weighing between 2.5 and 3.5 tonnes will require a smart tachograph 2 from 1st July 2026 if they are used for hire and reward transport internationally (i.e., the use of the vehicle itself is to make money). Such usage would also require an operator licence.
As such, most light goods vehicles in the UK will not require a smart tachograph 2 as their use is not international and/or for hire and reward transport.
The EU’s CBAM system technically could apply to organisations across all industries (if they are importing goods into the EU) but is dependent on the type of goods being imported. In the initial phase of reporting, the only goods which require reporting are highly carbon intensive products namely:
- Cement
- Iron and steel
- Aluminium
- Fertiliser
- Electricity
- Hydrogen
Imported goods where the consignment does not exceed €150 in value are exempt from CBAM.
How the UK will implement its own CBAM system is to be confirmed as it will not start until 2027.
There is a minimum threshold for developments to which biodiversity net gain (BNG) requirements apply to. A development is exempt from BNG if it:
- does not impact a priority habitat;
- impacts less than 25 square metres or non-priority onsite habitat or 5m of non-priority onsite linear habitats.
As such, very small renovations or extensions may not fall within the requirements for BNG.
Defra have provided guidance on exemptions with examples here which you may find useful.
The use of halons falls under the Regulation (EU) 2024/590 on substances that deplete the ozone layer (the Ozone Regulation) rather than the F-gas Regulation in the EU. Exemptions have been updated relating to the use of halons in aircraft fire-suppressions systems which can be found in Annex V of the Regulation here.
Halon cannot be used in new fire-suppression systems on aircraft with the exception of systems for the protection of normally unoccupied cargo compartments where halon systems can be implemented up to the end of 2024.
Existing halon fire-suppression systems on aircraft can continue to be used until 2040, with the exception of portable extinguishers provided for the protection of cabins and crew compartments, which must be phased out by the end of 2025.
It is yet to be confirmed whether the UK’s assimilated version of the Ozone Regulation will be updated to follow similar changes to the EU version.
We can confirm the Building Safety Regulations mentioned during the webinar as coming into effect on 6th April 2024 are already on LUS (links below).
- The Building (Registered Building Control Approvers etc.) (England) Regulations 2024
- The Building (Restricted Activities and Functions) (England) Regulations 2023
- The Building Safety Act 2022 (Commencement No. 4 Transitional and Saving Provisions) (Wales) Regulations 2024
- The Building (Restricted Activities and Functions) (Wales) Regulations 2024
- The Building (Approved Inspectors etc.) (Amendment) (Wales) Regulations 2024
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The UK CBAM is currently at consultation stage and as such there are no duties for UK organisations yet. The EU CBAM, which is now in the transitional phase (2023-2026), requires EU importers of certain goods to report on the GHG emissions of their imports.
If you are only exporting to the Republic of Ireland, the importer may require information from yourselves to help them fulfil their reporting duties. Detailed information on EU CBAM as well as guidance for importers and installation operators can be accessed here.
We can confirm that The Waste Separation Requirements (Wales) Regulations 2023 is already on LUS. It sits as an amendment under the Environmental Protection Act 1990 (c. 43) and Environmental Protection Act 1990 (c.43) Part II.
If the waste is produced and managed by the contractor, the waste duty of care applies to the contractor directly. However, your staff can exercise due diligence by checking that contractors are following the statutory guidance.
According to the supplementary Government response, the transition period starts from the day when the amending Regulations are made. The amending Regulations are expected to be made this year; however, the release date is currently unknown.
Whether or not building work related to a HRB would need approval will vary depending on the specific nature of the work being undertaken, even if it is not directly affecting the fabric of the existing building. For example, it may result in changes to structural loads or fire loads for the building. We’d recommend getting advice and guidance from the relevant building control body for a project. The HSE provides guidance on this here.
The Regulations around SUP beads apply to products that are intended to be first applied to the human body and then promptly removed from the body (e.g., rinsing off with water). It is not relevant to products that are left to wear off over time.
If this is how the product in question is being used, then the regulations might apply.
You would need to check if the specific hand cleansers being used contain any plastic microbeads as it is these products that the regulation bans from being placed on the market. Some products have switched to biodegradable alternatives to plastics, but without inspecting the specific product in question, I cannot confirm if this is the case here.
You should also be reviewing the register if there are any significant changes (e.g., a new premises or new processes are introduced) as this can expand or reduce the scope that you need a legal register to cover. If you need any help with specific changes to your organisation and how it might impact the scope of your register, please don’t hesitate to get into contact through our helpline service.
While the ISO Standards do not tell us how often your aspects and impacts registers should be reviewed, we do recommend that an annual review is conducted. They should also be reviewed when there are changes within the organisation. The review should check if all the aspects identified are still present, if any new aspects need to be added, and if the scoring of all aspects requires updating. It is also worth bearing in mind that this is just a general rule and a more complex organisation may require a more frequent review.
While we currently do not have a definitive answer to how the revenue generated under CBAM will be spent by individual Member States and the EU itself, it is possible that it will be allocated and spent in a similar way to how EU ETS revenue is spent. This would suggest that most of these revenues will flow back to Member States, with Member States agreeing that this money will be spent on climate-related projects. If this will be duplicated with CBAM is currently unclear.
ISO 50001 certification can be one of the alternative compliance routes for ESOS. Whether or not your ISO 50001 certification will be adequate to fulfil the requirements of ESOS will depend on a range of factors, and I would recommend going through the government guidance on the topic found here. Part 7 and part 9 of this guidance cover available routes to compliance with ESOS (including alternative routes such as ISO 50001) and part 7.1 includes the reduced requirements if your ISO 50001 certificate covers all your energy supplies.
The new fluorinated greenhouse gas regulations will apply to all equipment containing F-gases that are either manufactured or imported into the EU. It is also possible for exemptions to be provided by a Member State of the EU under certain circumstances (e.g., alternatives are not available). If the vehicle chassis in question contain f-gases and they are being imported into an EU member state, then the new Regulations will apply.
Only goods that are released for free circulation into the EU market are subject to CBAM. Goods temporarily transiting in the EU are not subject to the new requirements.
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