Could your business be subject to the new regulations for fuels?

The Air Quality (Domestic Solid Fuels Standards) (England) Regulations 2020 (‘the regulations’) are made under section 87 of the Environment Act 1995, and they make provision restricting the sale of certain solid fuels, and provide for the enforcement of breaches of these regulations by a local authority.

When did the legislation become effective?

The new legislation became effective from 1 May 2021 for the majority of firewood suppliers, with small foresters (that only supply less than 600 cubic metres of wood in the one year period ending 30 April 2021) given a longer period of 12 months from 1 May 2021 to transition.

What do the regulations mean for firewood suppliers?

There will be a ‘Ready to Burn’ Certification scheme with its clear logo giving customers and sellers a clear indication of what fuel is actually ready to burn and therefore can be purchased legally.

The regulations are broken down into several parts, covering wood, manufactured solid fuels, coal and enforcement.

Part 2 of the regulations relates to the prohibition of the sale of wood in units less than two cubic metres. Anyone supplying wood in volumes of less than two cubic metres for combustion in a domestic premises must:

• Only sell authorised wood (wood for which a certificate has been issued by an approved wood certification body);
• Ensure the wood is accompanied by the relevant information, including:
  • The name of the person who obtained the certificate from the approved wood certification body; and
  • The number of the certificate issued by the approved wood certification body.
• Ensure the wood is accompanied by the ‘Ready to Burn’ logo at Schedule 1 of the regulations; and
• Not supply any wood where, after a certificate has been issued from the approved wood certification body, there is reason to believe the moisture content is at a prohibited level, namely more than 20%.

The first person in the chain of supply that intends to supply wood in volumes of less than two cubic metres for combustion in a domestic premises must apply for a certificate to an approved wood certification body. The application must include a sample of the wood. The approved wood certification body must then test the sample and if the result of the test determines that the wood has a moisture content of less than the prohibited level of 20%, the approved wood certification body must issue a certificate recording this to the applicant.

Part 3 of the regulations relates to the supply of wood in amounts of two cubic metres or more. Anyone supplying wood in such amounts, comprising of one or more pieces of wood, for combustion in a domestic premises must ensure the wood is accompanied by a notice with the words specified in Schedule 2 of the regulations.

Part 4 of the regulations relates to the supply of manufactured solid fuels, which are fuels manufactured from coal, wood, plant-derived materials, waxes or petroleum products with other ingredients, for the purposes of combustion in domestic premises, but there are some exempt fuels set out at Part 4. Manufactured solid fuel must not be supplied unless it in on the authorised list. A supply of manufactured solid fuel must also be accompanied by: 

• the name of the person who obtained the certificate from the approved manufactured solid fuel certification body for the manufactured solid fuel in question; 
• the number of the certificate provided by the approved manufactured solid fuel certification body; and 
• the ‘Ready to Burn’ logo in Schedule 1 of the regulations.

A manufacturer of a manufactured solid fuel who intends to supply such a fuel in England must apply to an approved manufactured solid fuel certification body for a certificate. The application must be accompanied by analytical results showing that the fuel does not have the prohibited characteristics, which are:

• a sulphur content of 2% or more calculated on an ash-free dry basis; and
• the emission of smoke at a rate of five grams or more an hour.

Part 5 of the regulations relates to bituminous coal, which means coal falling within CN Code 2701 12(1) placed on the market for the purposes of combustion in domestic premises. It does not apply to bituminous coal extracted in accordance with the Dean Forest (Mines) Act 1838(2) or the Dean Forest Act 1861(3). Bituminous coal must not must not be sold regardless of being pre-packed or loose. An exemption is allowed for loose coal supplied directly to a consumer by a member of the Approved Coal Merchant Scheme until 30 April 2023.

What are the consequences of failing to comply with the new legislation?

Part 6 of the regulations covers enforcement and confirms that local authorities can take enforcement action against suppliers for breaches of the regulations, which is an offence. First offenders and repeat offenders who sell unauthorised fuel to customers can be treated differently. Depending on the severity of the offence this could be:

• a £300 fixed penalty notice (FPN) issued by the local authority; or
• more substantial fine issued by the courts.

Regulation 24 also states that a local authority may recover the expenses reasonably incurred by it in enforcing these regulations from a person in respect of whom it has taken any action under these regulations. The overall costs of facing enforcement action by a local authority could therefore become significant, particularly if the local authority pursue a prosecution in the magistrates’ court, where an offender could be subject to an unlimited fine.

If you are facing enforcement action for an offence under the regulations by a local authority, please feel free to contact our specialist environmental lawyers on 0161 696 6250 to discuss how we can assist with your case.