Select Committee on Environment, Food and Rural Affairs Minutes of Evidence

Memorandum submitted by the Department for Environment, Food and Rural Affairs



  1.  The Committee is to consider the effects of European Council Regulation 2037/2000 on Ozone Depleting Substances on the disposal of refrigeration units since 1 January 2002; and to analyse the Government's preparations for the coming into force of EC Regulation 2037/2000. This memorandum sets out the background to the Regulation, the history of the negotiations on it, and the discussions that took place on the interpretation of the provisions affecting disposal of domestic refrigerators. It then describes the action taken to facilitate implementation of the requirements of the Regulation.


  2.  The UK and the European Community are Parties to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, a multilateral environmental agreement designed as a global response to the threat of depletion of the stratospheric ozone layer. It has been well documented that the ozone layer helps to protect life on earth by filtering out most potentially harmful ultraviolet radiation. In humans, enhanced long-term exposure to ultraviolet radiation is likely to lead to increased levels of skin damage including sunburn and skin cancers, and also eye abnormalities such as cataracts. It can also suppress the immune system. Harmful effects of increased ultraviolet radiation levels have also been recorded on animals, plants and marine life.

  3.  In 1998, EC Regulation 3093/94, which implemented the Montreal Protocol within the European Community, needed to be replaced to reflect amendments and adjustments to the Protocol negotiated and agreed between 1995 and 1997. A new draft regulation was prepared by the European Commission and published in August 1998. The effect of the proposal was to provide for the phase-out of production and use of ozone-depleting substances ("controlled substances", principally chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), halons, carbon tetrachloride, 1,1,1 trichloroethane, methyl bromide and hydrobromofluorocarbons) through controls on their production, placing on the market and use, import into and export from the Community, and their recovery for destruction or reuse. The rationale for implementing these measures through a regulation rather than a directive was that the measures should be applied in the same way in all Member States.


  4.  The Commission's proposal was a complex and highly technical one which, in some respects, went further than obligations imposed at Montreal Protocol level for developed countries. It sought to introduce wide-ranging controls on ozone depleting substances affecting a large number of users of these chemicals in refrigeration, manufacture and use of insulating foams, solvents and in agriculture. CFCs and HCFCs were widely used in domestic, commercial and industrial refrigeration equipment as cooling agents. They were also used as the blowing agent for rigid insulating foam because of their excellent thermal insulation properties. In domestic and small commercial refrigeration appliances the foam also provides strength and rigidity to the cabinet.

  5.  The intention of the Commission's proposal was also for the EC to take an environmental lead during a decade when ozone depletion was expected to peak. It reflected new obligations arising from adjustments and reductions to the production and consumption of ozone-depleting substances agreed at the Seventh Meeting of the Parties to the Montreal Protocol in 1995, which introduced phase-out schedules for HCFCs and methyl bromide. It also implemented the further reductions and adjustments, agreed at the Ninth Meeting of the Parties in 1997, including the introduction of trade controls on methyl bromide and mandatory licensing for imports and exports of controlled substances.

  6.  The Commission's proposal went beyond Montreal Protocol obligations in several respects:

    —  tighter controls on HCFCs and methyl bromide.

    —  recovery if practicable of ozone-depleting substances from refrigeration and air-conditioning equipment, equipment containing solvents, fire-protection systems and extinguishers and rigid foams.

    —  a ban on the use of CFCs in servicing equipment.

    —  decommissioning of halon fire-protection systems by 2003.

    —  a prohibition on the export of most controlled substances, excluding HCFCs, as well as products and equipment containing them or whose continuing function relied on their continued supply.


  7.  Officials from the former DETR had lead responsibility for negotiations on the draft regulation, in consultation with officials from DTI (impacts on business and trade issues), HM Customs & Excise (impact and export), MoD (phase out of controlled substances used in military equipment and installations), Home Office (specialised uses by the police), DOH (use of CFCs in medical devices), and former MAFF (supply and use of methyl bromide).


  8.  As noted in the Explanatory Memorandum submitted to Parliament in September 1998, the Government considered that the draft Regulation was broadly in line with its policies for the protection of the ozone layer.

  9.  DETR consulted UK stakeholders on the draft regulation in September 1998. The main issues on which comments were received were proposed controls on HCFCs and methyl bromide. In subsequent negotiations, the key issues on which the UK sought amendment to the proposed Regulation were the proposed tighter cap on HCFC consumption and further controls on use, arguing that it made little economic or environmental sense to apply more restrictive standards to European industry in the absence of international action, and the proposal for phase out of methyl bromide by 2001, for which there was as yet no alternative in a number of applications.

  10.  A Regulatory Impact Assessment (RIA) of the draft regulation was carried out during the autumn and completed in December 1998. The RIA did not address the recovery of CFCs and HCFCs from insulation foam in refrigerators as it was not mandatory, ie recovery was "if practicable". This aspect was not identified by industry as a problem in the original proposal.


  11.  The Commission's original proposal was made under Article l30s(1) of the EC Treaty and was therefore subject to qualified majority voting and the co-operation procedure with the European Parliament. However, as a result of the ratification of the Treaty of Amsterdam, the Treaty base was amended to Article 175(1) and the co-decision procedure then applied. Negotiations at official level took place in the Environment Working Group of the Council (attaches from Member States' permanent representations accompanied by national experts plus the Commission) and the Committee of Permanent Representatives (COREPER); negotiations at Ministerial level took place at the Environment Council. The Council reached political agreement on the Regulation on 20-21 December 1998. The Council adopted a common position (following preparation of equivalent texts in all 11 official languages) on 23 February 1999. Since the Common Position differed from the European Parliament's first reading opinion, the proposal was returned to the European Parliament for second reading. Following conciliation between the EP and the Council, the Regulation was finally adopted by the two institutions on 29 June 2000.


  12.  Article 15 of the original Commission proposal dealt with the recovery of used controlled substances. It stated that:

    [Controlled substances] contained in:

    —  Refrigeration equipment and air-conditioning equipment;

    —  Equipment containing solvents;

    —  Fire protection systems and fire extinguishers; and

    —  Rigid foams

    Shall be recovered if practicable for destruction by technologies approved by the Parties or by any other environmentally acceptable destruction technology, or for recycling or reclamation during the servicing and maintenance of equipment or before the dismantling or disposal of equipment.

  13.  Following consultation with the industry, the UK took the view that recovery of controlled substances from cooling circuits in refrigeration and air conditioning equipment, from equipment containing solvents and fire protection equipment was practicable, as such technology was already available and being used in the UK. The focus at this stage was only on the recovery of the coolant. On this basis, the draft Article did not present difficulties for the UK.

  14.  In November 1998, the Austrian Presidency proposed an amendment to this Article:

  Controlled substances contained in:

    —  Refrigeration, air-conditioning and heat pump equipment, except domestic refrigerators and freezers,

    —  Equipment containing solvents,

    —  Fire protection systems and fire extinguishers,

    shall be recovered for destruction by technologies approved by the Parties or by any other environmentally acceptable destruction technology, or for recycling or reclamation during the servicing and maintenance of equipment or before the dismantling or disposal of equipment.

    Controlled substances contained in products, installations and equipment other than those mentioned above shall be recovered, if practicable, and dealt with as provided for above.

  The effect would have been to make recovery of controlled substances from the specified equipment mandatory, rather than "if practicable", but it excluded domestic refrigeration, and removed the specific reference to rigid foams. The UK placed a scrutiny reserve on the proposed amendment. Five other Member States objected to the exclusion of domestic refrigeration. The UK's position at the Environment Working Group on 7 and 14 December 1998 was that the scrutiny reserve could be lifted provided the exemption for domestic fridges remained.

  15.  In December 1998, the Presidency circulated a further revised text of this Article:

    1.  Controlled substances contained in:

    —  Refrigeration, air-conditioning and heat pump equipment, except domestic refrigerators and freezers,

    —  Equipment containing solvents,

    —  Fire protection systems and fire extinguishers,

    Shall be recovered for destruction by technologies approved by the Parties or by any other environmentally acceptable destruction technology, or for recycling or reclamation during the servicing and maintenance of equipment or before the dismantling or disposal of equipment.

    2.  Controlled substances contained in domestic refrigerators and freezers shall be recovered and dealt with as provided for in paragraph 1 after 31 December 2001.

    3.  Controlled substances contained in products, installations and equipment other than those mentioned in paragraphs 1 and 2 shall be recovered, if practicable, and dealt with as provided in paragraph 1.

  The effect was to introduce mandatory recovery from domestic refrigeration equipment with effect from 1 January 2002, but still with no specific reference to foams. This text was considered by the Committee of Permanent Representatives (COREPER), and submitted to Council by the Presidency. The UK did not raise any difficulty with this Article at that stage. Environment Ministers discussed the draft regulation at the December 1998 Environment Council meeting. The discussion focussed on areas of particular difficulty for the UK and several other Member States such as early phase-out dates for the use of HCFCs and methyl bromide. Environment Ministers reached political agreement on a text of the proposal, which included no further amendments to the article on recovery. Ministers adopted a common position on the same text in February 1999. The draft Regulation then continued through the various stages of European Parliament consideration.

  16.  The issue of removal of CFCs from insulating foam in fridges was not raised until January 1999, after Ministers had reached political agreement, because of lack of clarity caused by the changes. The UK had not addressed the question of recovery of controlled substances from foam in Council because we believed that the Regulation would only require recovery of CFC coolants from refrigeration equipment, and from foam recovery would be "if practicable". This view was supported by the definition of "recovery" under Article 2 of the Regulation, which stated that:

    "recovery" means the collection and the storage of controlled substances from, for example, machinery, equipment and containment vessels during servicing or before disposal.

  Since we understood it not to be technically possible to remove controlled substances from rigid foams during servicing or before the dismantling or disposal of equipment (foam in fridges is sandwiched between the metal and plastic panels of the cabinet) as proposed in the revised text, it was reasonable to assume that recovery of CFCs in this case would not be mandatory.


  17.  The Government circulated the Common Position to stakeholders. The refrigeration and foam blowing industries asked for clarification as to whether the text required mandatory recovery of controlled substances from rigid foams in domestic and commercial/industrial refrigeration equipment, particularly in view of the requirement to remove these substances before dismantling. UK officials' interpretation of the text at this stage was that neither paragraph 1 nor 2 of the article applied to rigid foams. This was based on the fact that the original reference to foams had been deleted from draft paragraph 1 and a new draft paragraph 3 inserted covering "products. . . other than those mentioned in paragraphs 1 and 2", from which recovery was required "if practicable".

  18.  At the February 1999 meeting of the Management Committee on EC Regulation 3093/94, the UK raised the interpretation of what was now Article 16 and asked other Member States for information on their experience of recovery and destruction of controlled substances, in order to identify what currently was "practicable". This was followed up at a workshop in Oslo organised by the Swedish and Norwegian recycling industries, which took place on 23-24 September 1999, where best available technology for recovery was considered. This concluded that it was technically possible to recover CFCs from domestic refrigerators but that the costs were high, especially in the case of insulating foam. An industry group was to be established to define the best available technology, but we are unaware whether this was taken forward.

  19.  At the following October 1999 Management Committee meeting, the UK raised again the interpretation of Article 16. The Committee agreed that clarification was needed on a range of definitions in the Regulation and that any wording leading to misunderstandings or misinterpretations should be avoided. At this stage the minutes of the discussion indicate that the possibility of making technical amendments to the draft Regulation during the continuing conciliation with the European Parliament was envisaged. (However, it proved not to be possible to raise any further issues during the conciliation process in early 2000 as the Portuguese Presidency and the Commission only wished to focus on the amendments resulting from the second reading by the European Parliament on which a compromise needed to be negotiated. It was also difficult to raise the problem with Article 16 to Ministerial level discussions since it had been part of the Common Position agreed by Council).

  20.  The Commission sent a list of clarifications to Member States on 28 February 2000. This stated that the Commission's interpretation was that Article 16(1), did not apply to foams blown with either CFCs or HCFCs and that "it was the Commission's understanding that the clarification proposed here is in line with the intention of the Council during negotiations of the new Regulation." At the Management Committee meeting on EC Regulation 3093/94 in March 2000, UK officials requested that the same clarification should apply to Article 16(2) (domestic fridges and freezers) since the language in both paragraphs was the same. No agreement was reached on applying this interpretation. The matter was discussed at a separate working group meeting on 6 April 2000, but again no conclusion was reached.

  21.  EC Regulation 2037/2000 was finally adopted under co-decision on 29 June 2000. No further amendments had been made to Article 16 as a result of the European Parliament's consideration of the proposal.

  22.  In July 2000, during informal discussions in the margins of a UNEP Montreal Protocol meeting, certain other EU Member States including Sweden and Denmark argued that CFCs could be extracted from foam, that it was therefore practicable, and, in that case, recovery from foam in refrigeration equipment should be considered mandatory. UK officials sought technical advice from UNEP's Technology and Economic Assessment Panel (TEAP) on the feasibility of extracting CFCs from foam, in particular before the dismantling and disposal of equipment as required by Articles 16(1) and 16(2). TEAP advised that it would not be possible to remove controlled substances from foam either during maintenance or before dismantling of equipment; that removal during service and maintenance was not possible as no such service or maintenance of the foam takes place; that there was a possibility of recovering controlled substances before disposal of the equipment, but that it was not practicable to do so because experiences of successful recovery were mixed and it was therefore premature to make this mandatory. On 11 September 2000, UK officials wrote to the European Commission supporting the interpretation that foams should be classified as a product under Article 16(3) and recovery from foam in commercial and domestic refrigeration equipment should therefore be "if practicable".

  23.  EC Regulation 2037/2000 entered into force on 1 October 2000: The UK's written proposal was discussed at the Management Committee meeting on 4-6 October 2000. The minutes of the meeting record that the Committee agreed that foam containing CFCs was classified as a product, and therefore covered by Article 16(3). Several Member States, however, were of the view that recovery from foam in equipment was practicable as the technology existed and could be used for both domestic and commercial refrigeration equipment; while it was not available in some Member States they had the option to send refrigerators to those Member States that had the capability. Although there was general consensus that it was practicable to recover CFCs from foam in some Member States, there was no discussion on the definition of "if practicable" and to what extent the concept of practicability could reflect the lead-time required for investments in suitable technologies for extracting CFCs from foam, to ensure a Member State had sufficient access to disposal capacity. UK officials raised this issue again at another Management Committee meeting on 25 October 2000 requesting that the same interpretation should apply to foams in domestic fridges under Article 16(2) as had been agreed for commercial and industrial refrigeration under 16(1) at the meeting in early October. The Commission advised that this would be considered.

  24.  In December 2000, following questions raised on the export ban on products containing CFCs (see paragraph 30 below), officials sought legal advice. That advice was that where a refrigerator has chlorofluorocarbons in its insulating foam, it is a product containing that substance. This implied that the first two paragraphs of Article 16, read in conjunction with one another, provide that controlled substances contained in domestic refrigerators shall be recovered for destruction or for recycling or reclamation after 31 December 2001. Officials considered that there was a strong argument that fridge insulating foam blown with controlled substances was covered by Article 16(2), not Article 16(3), and that as the language was the same in both Article 16(1) and 16(2), the recovery of ozone—depleting substances from foam in all equipment specified would be required. This was, however, contrary to the interpretation of the Commission in its clarification table and the consensus reached by Member States that for the purposes of Article 16(1) foam contained in the equipment specified was a product and therefore would fall under the "if practicable" proviso in 16(3). Officials therefore requested urgent clarification of this apparent contradiction from the Commission.

  25.  Officials remained in touch with the recycling and waste management industry during the process of seeking clarification on Article 16. Potential recyclers first approached officials in early 2000 asking for a clear interpretation of Article 16(2). They needed to be assured that the recovery of CFCs from foam in fridges would be mandatory from 1 January 2002 to enable them to secure the investment funding in order to purchase and install the necessary equipment. In the light both of legal advice received, and of the strong arguments from some Member States that recovery from foam was in any case practicable, UK officials at this stage informed them that it was likely that the outcome would be that recovery facilities would be required. However, the UK waste management and recycling industry continued to press strongly for certainty regarding the requirement for extraction of controlled substances from foam, as a precondition for securing the funding to invest in facilities. In the continuing absence of an agreed interpretation, the Government remained unable to give that assurance.

  26.  On 30 January 2001, UK officials wrote to the Commission requesting an urgent interpretation of Article 16 and other Articles on which clarification was outstanding, stating that if it was not received it would jeopardise UK compliance with the Regulation. After consultation with its Legal Service, the Commission produced a revised clarifications paper on the Regulation, entitled "Frequently Asked Questions". It was placed on the agenda for the next meeting of the Management Committee on 13-14 March 2001. The paper noted that interpretation of Article 16 was still a "grey area". It noted that technologies existed and were being developed to recover controlled substances from foam but that they were not yet widespread throughout the EU. It repeated the Commission's understanding that its interpretation that Article 16(3) covered foam was in line with the Council's intention during the negotiations. However, there was not time to discuss the paper at that meeting and to agree a common understanding of Articles 16(1), (2) and (3).

  27.  The UK, supported by other EU Member States, requested that an extraordinary meeting of the Committee be held to discuss the issues that there had not been time for in March. A meeting took place on 11-12 June 2001, at which the "Frequently Asked Questions" paper was discussed. At this meeting the UK pressed for a definite ruling, one way or the other, on the interpretation of both Articles 16(1) and (2). The Commission for the first time stated that it considered that foam in both commercial and domestic refrigeration equipment was covered by Articles 16(1) and (2) respectively, and not by Article 16(3). In discussion, other Member States indicated that they were content for Article 16(2) to be interpreted as applying to controlled substances in foam in domestic refrigeration equipment. On this basis, and bearing in mind legal advice, the UK agreed to this interpretation. The UK reported the UK industry's view that indicated that it would be possible to install recovery facilities for domestic refrigerators within around six months if they had certainty that recovery was required under the Regulation. The UK recorded its doubt that it was possible technically to carry out recovery from larger equipment in accordance with the Commission's interpretation of Article 16(1). The Commission and some Member States, however, considered that it was technically possible. The Commission asked Member States to send the Commission information on their experiences relating to implementation of Article 16 as a precursor to further discussion. UK officials did not send in a separate response since this information had been provided during the Management committee meeting. The UK has not yet seen the information provided by other Member States in response to this request.

  28.  At the October 2001 Management Committee meeting, France requested an amendment to Article 16(2) to require recovery from foams in equipment only "if practicable" on the grounds that it could not comply until 2005 with the expected introduction of the Waste Electrical and Electronic Equipment (WEEE) Directive which is expected to introduce producer responsibility for the disposal of "white goods" including fridges. As only the European Commission can propose amendments to European legislation, Commission officials said that they would consider the request bearing in mind that there seemed to be no support from other Member States. As the interpretation of Article 16(2) had been agreed in June, and was now being acted upon with industry in the UK (see paragraphs 34-36 below), UK officials did not support France's request.

  29.  Although the above paragraphs focus on the discussions related to Article 16 and the requirement to recovery CFCs from foam, this was only one of a number of problem areas in the regulation. The Commission's table of clarifications issued in February 2000 identified 23 areas of ambiguity (including three in Article 15 (now 16)) where an agreed interpretation was needed. UK officials also highlighted another six areas of the Regulation on which we would need clarification. In addition to this, the UK was involved throughout 1999 in negotiations on amendments to several Articles proposed by the European Parliament, which would pose considerable difficulties for UK industry. This was therefore one of a large number of issues on which intensive discussions continued over the period.


  30.  When the Regulation entered into force in October 2000, Customs officers began to enforce the prohibition on export of products containing CFCs in Article 11 of the Regulation. At this point, it emerged that there was a large export trade in second-hand refrigeration. Up to 40 per cent of domestic fridges entering the waste stream in the UK each year were refurbished and exported, mainly to West Africa. UK Government (DTI, Customs & Excise and DETR) had not been alerted to this trade in second hand fridges, despite regular consultations with the refrigeration industry and the manufacturers' trade association.

  31.  Exporters, who had been generally unaware of the Regulation, made representations to Government for time to adapt to the prohibition. Government agreed that fridges containing CFCs could temporarily continue to be exported as long as the refrigerant had been removed, and sought legal advice on the effect of Article 11. Legal advice was that the export prohibition in Article 11 applied to CFCs in insulating foam as well as the refrigerant.

  32.  The Government therefore decided that the export prohibition on CFC fridges should be enforced as of 1 January 2002. This took account of the fact that, while there is a great demand for affordable refrigeration from developing countries, a large number had reported to UNEP that they did not want to receive equipment containing CFCs or whose continuing function relied on the supply of them. This was because the continued supply of CFC refrigerants needed for servicing old equipment would cause them problems in ensuring compliance with Montreal Protocol controls. Nigeria, our largest export market for old fridges, and various other developing countries have now banned the import of second-hand refrigeration and air-conditioning equipment that contains CFCs.


  33.  The requirements of the Regulation are consistent with the policies set out in Waste Strategy 2000, which sets out the Government's vision for waste management. The effects of the Regulation will be that the amounts of ozone depleting substances recovered from waste fridges and freezers are increased by at least 100 per cent, thus reducing emissions that are harmful to the ozone layer. Where fridges cannot be refurbished economically, their metal content will be recovered.


    —  Electrical equipment manufacturers and retailers have ceased to take back domestic fridges and freezers.

    —  All domestic fridges are being disposed of through local authorities.

    —  Recovery of metal from fridges and landfilling of fridges have ceased.

    —  Most fridges are being stored prior to sufficient new treatment plants becoming operational.

    —  Some fridges are being exported to other European Member States, in particular Germany.

    —  A small number of fridges are being disposed of in high temperature incinerators.


  34.  After it became clear that the UK would need to take action to recover CFCs from insulating foam in fridges, DEFRA and DTI organised a series of meetings, at which a wide range of stakeholders were informed of recent developments and invited to participate in the working up of solutions. The first of these took place on 21 August 2001. It was recognised that the availability of treatment facilities was crucial to efficient implementation and that the key barriers to the provision of new treatment facilities were the need for clear technical standards and adequate funding for local authorities.

  35.  A mobile fridge treatment plant capable of processing around 150,000 fridges a year was imported into the UK in March 2002 and is now in operation. The first static plant is expected to become operational in June, with a second following shortly afterwards.

  36.  Fridges can also be disposed of at one of two high temperature incinerators, although this tends to be a rather more costly option and uptake has therefore been limited. The Environment Agency has received notifications of proposals to export over 250,000 fridges to treatment plants in Europe (mainly Germany). While it cannot be assumed that this many fridges will actually be exported, it seems that this is a viable short-term option, as a number of local authorities and companies are choosing this in preference to storage and treatment in the UK.


  37.  There is no common standard for recovery of ozone depleting substances from fridges at global, or even European, level. However, industry needed to know what would be required before it could invest in the necessary plants. DEFRA therefore awarded a contract to develop a draft technical standard to Caleb Technical Services on 1 October 2001. Paul Ashford of Caleb, who carried out this work, is the Chairman of a UN task force working on recovery of ozone depleting substances. A draft of this standard was circulated and placed on the DEFRA website on 5 November 2001. The Environment Agency has subsequently developed this work into a draft guidance note on the recovery of ozone depleting substances from fridges. This should be finalised in early April. However, several companies had sufficient confidence in the initial draft to make investment decisions.

  38.  The operation of mobile fridge treatment plant has been facilitated by an amendment to the Waste Management Licensing Regulations, which came into force on 14 March 2002 and allows mobile treatment plant to operate at any location under one licence. Without this change, a new license would be needed every time the plant was moved to a new location.


  39.  It was clear that fridges would need to be stored until sufficient treatment facilities were available and that the waste industry would need guidance on standards for storage of fridges in a manner that would be both be safe and minimise harm to the environment. These standards were discussed at stakeholder meetings and issued by the Environment Agency on 4 December 2001. The standards were placed on the DEFRA website on the same day. The Environment Agency has now incorporated the standards into its guidance on recovery of ozone depleting substances from refrigerators.

  40.  DEFRA understands that the waste industry and others have identified enough suitable storage sites to accommodate at least a year's arisings of waste fridges. The Environment Agency has taken action where fridges have been stored in a manner that does not meet the standards.


  41.  An initial statement on funding for local authorities was made at the same time as the Revenue Support Grant for 2002-03 was announced on 4 December 2001. DEFRA accepts that the 6 million announced to cover costs in 2001-02 will be only an initial payment. Information is being collected to gain a better picture of local authority costs. DEFRA will make a further announcement on local authority funding very shortly.


  42.  Previously, up to 50 per cent of domestic fridges (estimates vary) were collected by electrical retailers and manufacturers when new units were delivered. However, most electrical manufacturers and retailers stopped taking back old fridges in November 2001. Consequently, all waste domestic fridges are now being dealt with by local authorities.

  43.  DEFRA has been working with retailers, local authorities and fridge refurbishers since Autumn 2001 to devise means of restoring take back. It is clear that this will be possible only if a means is found of bridging the economic gap between the former and current costs of disposing of recovering materials from waste fridges. The most efficient means of achieving this appears to be some form of payment to operators of treatment facilities for each fridge processed, thereby restoring fridge refurbishers to economic viability. DEFRA hopes to make an announcement on the detail of such a scheme shortly.


  44.  A proportion of domestic fridges that are discarded can be refurbished for re-use. This provides employment, including training and re-training through schemes run by the voluntary sector. Refurbishment would also reduce short-term costs to local authorities and the Government, as fewer fridges need to be processed. However, the level of refurbishment is limited by the size of the market for the product (it is estimated that 15-20 per cent might be possible if fridges are collected in good condition).

  45.  Refurbishers formerly obtained most of their fridges from retailers' take back schemes and have been closely involved in DEFRA-led discussions on the restoration of takeback. DEFRA has also facilitated contacts between refurbishers and local authorities in order to encourage refurbishment of fridges collected by local authorities.


  46.  The Regulation applies to commercial refrigeration equipment in a similar way to domestic equipment. Consequently, most waste commercial units are being stored awaiting the availability of treatment plant. However, there is some evidence that the increased cost of disposal has led to increased levels of refurbishment of large commercial refrigerators.


  47.  There has been a great deal of demand for information from DEFRA regarding the disposal of fridges. In December 2001 DEFRA published web pages, which contained draft standards for fridge storage and treatment as well as answers to frequently asked questions. These pages have been updated regularly. DEFRA is in the process of expanding the pages to cover commercial refrigeration issues.

  48.  Once it became clear that retailer takeback was ceasing, DEFRA and DTI produced a leaflet for householders, explaining how fridges could be disposed of in a safe, responsible manner through local authorities. Around 18,000 copies of the leaflet, which was published on 4 December, have been distributed.


  49.  Having reviewed the negotiation and handling of this matter from the perspective of the Department, there are a number of issues concerning the handling of European legislation which need to be addressed. The key points are:

    (1)  A perennial difficulty in negotiating technical EU proposals is ensuring sufficient technical examination of the implications of proposed measures so that it is clear at the time of agreement what the intended and actual effects are. In the case of this Regulation, there was strong political pressure from the Austrian Presidency in particular to reach political agreement in December 1998. In such a situation it is difficult for a member state to secure a delay without support from sufficient other member states to persuade the Presidency that agreement is not possible. The lack of time and complexity of the proposal meant that the implications of Article 16 could not be fully analysed either by the UK team or in the negotiating group. This in turn meant that key stakeholders concerned with disposal of equipment could not be identified and consulted about the practical effects and costs.

    (2)  There is a strong argument, where significant interpretations of such a Regulation are being considered, for returning such issues to the Council of Ministers to clarify their intention. Records of Management Committee discussions show that the possibility of doing so, or indeed of seeking agreement to technical amendments before adoption of the Regulation by the Council and Parliament, was considered, but that there was a reluctance on the part of the Presidency and Commission to appear to be opening up the Council's common position. UK officials should also with hindsight have alerted Ministers to the issue at an earlier stage in the Management Committee discussions to give them the opportunity of raising it with colleagues or in order to put pressure on the Commission and EU partners to reach a definitive view sooner.

    (3)  There was too great a delay in securing a definitive interpretation of Article 16 even though several attempts were made to achieve this. This problem could be avoided in future if in answer to (1) above, some provision could be implemented to ensure adequate technical clarification before legislation is adopted by Council.

    (4)  While it is essential to ensure that environmental regulation is necessary and proportionate, there is a good case for adopting a more positive approach to the opportunities it offers to UK business. However, coupled with this there is the need to avoid "gold-plating" or over-enthusiastic interpretation or application of European legislation which could entail excessive burdens on industry without providing proportionate environment benefit. The development of innovative technology to tackle environmental problems for which a solution needs to be found sooner or later is an area where UK business could play a leading role. A defensive approach to environmental regulation may mean that UK business is not given the appropriate signals at an early stage and misses out on these opportunities which are then taken up by other countries. In this instance, some UK companies have developed recovery technologies, but others have been importing technology from elsewhere.

    (5)  Government needs to create a policy framework that stimulates innovative and market-led solutions, using the best mix of voluntary, economic and regulatory action. Regulation should be outcome/objective based rather than prescriptive. It should give business:

      —  Clear signals about longer-term environmental objectives and priorities.

      —  Sufficient time to adjust and develop competitive solutions.

      —  Flexibility to achieve objectives in ways that suit business best.

    (6)  The UK should continue to press the Commission for RIAs or cost-benefit assessments of all new proposals.

Department for Environment, Food and Rural Affairs

11 April 2002


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