APPENDIX 3
Memorandum submitted by the Environment
Agency
INTRODUCTION
The Environment Agency
The Environment Agency welcomes this opportunity
to submit a memorandum on the effects of European Council Regulation
2037/2000 on Ozone Depleting Substances on the disposal of refrigeration
units since 1 January 2002 and on the Government's preparations
for the coming into force of the Regulation.
The Environment Agency ("the Agency")
is a statutory body created by the Environment Act 1995. The Agency
has a regulatory role in relation to emissions to atmosphere and
is the waste regulation authority for England and Wales.
EC REGULATION ON
SUBSTANCES THAT
DEPLETE THE
OZONE LAYER
Council Regulation No 2037/2000 on substances
that deplete the ozone layer ("the Regulation") was
published on 29 June 2000 and applied from 1 October 2000.
The Regulation applies to the production, importation,
exportation, placing on the market, use, recovery, recycling and
reclamation and destruction of ozone depleting substances ("ODS"),
to the reporting of information on these substances and to the
importation, exportation, placing on the market and use of products
and equipment containing ODS.
Article 11 prohibits the export of equipment
containing ODS from the European Community (the "EC").
This applies even where the equipment is capable of being used.
Central to this Inquiry is Article 16 of the
Regulation.
Article 16 requires the recovery for destruction
(the "recovery") of any ODS contained within the following
equipment:
— refrigeration and air conditioning
equipment;
— equipment containing solvents; and
— fire protection and extinguishing
equipment.
ODS must be recovered during servicing and maintenance
of equipment and before it is recycled, reclaimed, dismantled
or disposed of. This applied to commercial and industrial appliances
from October 2000 and to domestic appliances from 1 January 2002.
This includes domestic fridges and freezers.
The recovery of ODS from other (non-specified)
products is also required, where practicable.
Member States are required to assign responsibility
for compliance to appropriate bodies and to report to the Commission
on the systems established and quantities of ODS recovered.
For the purposes of Article 16 ODS means Chlorofluorocarbons
("CFCs"), hydrochlorofluorocarbons ("HCFCs"),
halons, 1,1,1 trichlorethane, carbon tetrachloride and bromochloromethane.
These substances are used mainly in refrigeration, air conditioning,
foam blowing, as solvents and in fire fighting.
INTERPRETATION AND
APPLICATION OF
THE REGULATION
Interpretation
There was widespread misunderstanding of the
requirements of Article 16 of the Regulation and particularly
the extent to which it applied to fridges (commercial/ industrial
or domestic) or whether it only applied to these items "where
practicable".
In addition, there appears to have been confusion
within DEFRA about whether the Regulation applied to ODS contained
in the insulation foam as well as that in the cooling systems
of fridges. This is significant because whilst the removal of
ODS from cooling systems (through "de-gassing") has
been common place, ODS has not been recovered from the insulation
foam in the UK and no facilities exist for doing so. Insulation
foam contains between two and four times as much ODS as fridge
cooling systems.
The Agency understands that in June 2001 Government
clarified with the EC that the Regulation required the removal
of all ODS from domestic fridges from January 2002.
Implementation
As a European Regulation the ODS Regulation
is binding in its entirety and is directly applicable in all Member
States. However it does require the Member State to take certain
actions to implement it, including prescribing necessary penalties
relating to breaches of the Regulation; the latter were required
to be notified to the EC by 31 December 2000.
The Government has prepared draft Regulations
(The Environmental Protection (Controls on Ozone Depleting Substances)
Regulations). Those Regulations prescribe the Secretary of State
as being the Competent Authority. Reference is also made to other
bodies, including the Agency, although it is not entirely clear
as to the respective roles of those bodies under the Regulations.
The Agency understands that Government intends to prepare a Memorandum
of Understanding to clarify the respective roles of Government,
Customs and Excise, Health and Safety Executive, Local Authorities
and the Agency.
In October 2001 the Agency commented on the
draft Regulations and in particular on enforcement issues arising
from Article 16. Whilst it was commonly held that fridges should
not be disposed of after 1 January 2002 unless the ODS had first
been removed, clarification was required on:
— is responsible for meeting this requirement;
— how it is to be enforced; and
— the interface between these Regulations
and the Duty of Care (Section 34 Environmental Protection Act
(EPA) 1990) on all persons handling waste.
Further, industry was looking for assurances
from the Agency that the Regulation would be enforced before investing
in appropriate recovery facilities.
The Agency is the competent authority under
the Waste Framework Directive in respect of the permitting of
waste disposal and recovery activities. The Agency has therefore
assumed a role in respect of Article 16 but limited it to the
regulation of the recovery of ODS from waste equipment ie that
which has been discarded or is intended or required to be discarded.
The Agency has no involvement in the regulation of fridge maintenance.
In the absence of the Regulations being made
and without the provision of any specific powers, any action by
the Agency would need to be under its existing Part II EPA 1990
powers. It had previously been suggested by DEFRA that Government
guidance (Circular 11/94) would be amended to clarify that ODS
contained within fridge insulation foam came within the remit
of existing waste management legislation; the Agency is not aware
whether this is being pursued.
IMPLICATIONS OF
THE REGULATION
Fridge collection and recovery infrastructure
Between 2.5 and 3 million fridges arise in the
UK for recovery or disposal each year. Before the Regulation came
into effect 40-50 per cent of those were exported for re-use in
developing countries, 15 per cent were refurbished for use in
this country and the rest were recycled through the metal recycling
industry or disposed of to landfill.
Government initiated discussions between industry
(including retailers and the metal recycling/waste management
industry), local authorities and the Agency. Possible impacts
of the Regulation were identified as being that:
— Retailers' take-back schemes were
likely to cease;
— Fridge collection and disposal could
fall increasingly on Local Authorities;
— Export of fridges outside the EC
would have to cease (although exports within the EC for recovery
can continue)
— Existing metal recycling sites were
likely to stop taking fridges; and
— As result of the above, there would
be an increased risk of fly-tipping.
The following priorities were identified to
deal with the above impacts:
— Maintain as far as possible the existing
collection/take back arrangements;
— Provision of appropriately authorised
recovery/destruction capacity; and
— In the interim, appropriately authorised/located
fridge storage capacity.
The Agency does not have a direct role in the
first of these but has assisted by clarifying the regulatory requirements.
The Agency has encouraged Government and local authorities to
undertake appropriate publicity to address public and industry
confusion about the impacts of the Regulation on domestic fridges.
The Agency has also recommended to Government that it monitors
the level of fridge storage, treatment and export.
THE ROLE
OF THE
AGENCY
The primary role of the Agency has been to work
with Government to ensure the provision of a clear and proportionate
regulatory framework, firstly for fridge storage, and secondly
the recovery of ODS from those fridges.
Fridge storage
It was not clear initially whether Government
wished to see the 1 January 2002 date enforced for domestic fridges,
particularly given that suitable recovery technology was not available
in the UK. Once it has been clarified that fridges should be stored
pending the provision of that technology (unlikely before summer
2002) it became apparent that storage capacity for between 1.5
and 2.5 million fridges would be required.
The Agency worked with Government to clarify
the regulatory requirements for such storage thereby assisting
local authorities and industry in providing suitable sites. Consideration
was given to whether fridge storage could take place under an
exemption from waste management licensing, thereby minimising
the regulatory burden. However, the Agency was concerned that
this was not lawful (current exemptions only allow storage of
waste fridges at the site of production). Full licensing controls
were also considered necessary to prevent subsequent abandonment
of fridge storage sites. The Agency confirmed this with Government
and standards for safe storage were developed and published on
Government and Agency web sites.
The Agency also prepared a standard licence
for fridge storage and provided generic guidance on issues such
as charging and "fit and proper person" requirements
to ensure consistency and facilitate determination of applications.
The Agency currently has16 new fridge storage applications in
process.
Given the time taken to obtain the necessary
clarity, the Agency was concerned whether sufficient authorised
facilities would be in place by the end of 2001. Whilst there
was some existing licensed capacity, it was not adequate for the
anticipated demand; obtaining the necessary planning permission
and waste management licence for new sites would take some time.
The Agency therefore adopted an "enforcement
position" on 28 December 2001. This position, which was publicised
on the Agency's web site, states that providing certain conditions
are met, the Agency will not normally take enforcement action
against failure to hold a waste management licence for the storage
of fridges. Those conditions include the requirement for
— a licence application to be submitted
and pursued by the operator;
— the site to be operated in accordance
with the fridge storage licence standards; and
— the activities to not cause environmental
pollution/harm to human health.
The Agency understands that this has had the
effect of considerably easing the fridge storage issue.
ODS Recovery
The Agency and Government have held discussions
with industry on proposed techniques for ODS extraction and destruction;
the latter will normally be by high temperature incineration.
The Agency identified existing authorised incineration capacity
that could handle fridges in compliance with the Regulation. There
are two plants in England and Wales, one of which can only take
insulation panels and not whole fridges. More widespread facilities
are needed and a number of companies expressed interest in importing
technology.
The Agency has worked with Government to clarify
the regulatory requirements for such technology. Depending on
the nature of the activity being undertaken, either a waste management
licence (under Part II EPA 1990) or a pollution prevention and
control permit (under the Pollution and Prevention and Control
Regulations 2000) would be required. Most of the proposals to
date are for the mechanical treatment of fridges involving metal
and plastic recovery and therefore require a waste management
licence. A licence template for the treatment of fridges was prepared
and disseminated as a working draft for consultation on 21 February
2002. There are currently proposals for up to five fixed plants
in England and Wales. There are no known proposals for mechanical
recovery with integral destruction which would be likely to require
a PPC permit.
Despite Agency efforts to reduce the time taken
to determine such applications within the current regulatory framework
there are still concerns regarding the delays in obtaining site
licences. Before the Agency can issue such a licence the use of
land must have the necessary planning consent. It was suggested
that some of the equipment could be licensed as "mobile plant"
enabling it to be used at different locations without having to
seek a separate licence for each site. In order to do so, however,
this type of plant would have to be prescribed as "mobile
plant" under the Waste Management Licensing Regulations 1994.
The Agency made representations to the Government in this respect
and understands that an amendment is being progressed. The Agency
currently has two applications for site licences in respect of
plant that is actually mobile and anticipates a further 4 mobile
plant applications once the amending Regulations are made.
ODS Standards
During January 2002 the Agency, supported by
Government, commissioned work on standards for:
— "de-gassing", that is the
removal of ODS from fridge cooling systems;
— recovery of ODS for destruction from
insulating foams; and
The Agency has defined (currently as a working
draft for consultation) the total permitted loss of ODS from the
fridge de-commissioning process and will require the operator
to demonstrate how this will be met. Work continues on suitable
methods and standards for monitoring of ODS within the de-commissioning
process.
The Agency's Fridge Group
In response to concerns over the impact of
the Regulation the Agency created a national multi-functional
team in January 2002 to:
— lead the Agency's contribution in
securing safe storage and disposal of fridges and the destruction
of associated ODS in England and Wales;
— maintain an overview of the scale
of development of the fridge backlog, including international
movements;
— liase with Government and ensure
Secretary of State is kept informed;
— ensure consistency of approach;
— guide and supervise the permitting
process, to define standards and respond to queries;
— minimise licensing processing times;
and
— ensure that its Chief Executive and
Directors are kept informed.
The Agency will continue to work with Government
and local authorities to monitor the impacts of the Regulation
on the environment and take actions appropriate to its role to
minimise those impacts.
Environment Agency
22 February 2002
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