1 Control of ozone depleting
substances
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12832/08
+ ADDs 1-3
COM(08) 505
| Part I: Commission Communication on completing the phase-out of substances that deplete the ozone layer
Part II: Draft Regulation on substances that deplete the ozone layer (recast)
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| Legal base | Part I: —
Part II: Articles 133 and 175(1)EC; co-decision; QMV
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| Department | Environment, Food and Rural Affairs
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| Basis of consideration | SEM of 14 January 2009
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| Previous Committee Report | HC 16-xxxiv (2007-08), chapter 4 (5 November 2008)
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Committee A
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Background
1.1 The production and use of substances which deplete the ozone
layer[1] has since 1987
been subject to international control under the Montreal Protocol,
and the Community subsequently enacted legislation to enable it
and Member States to fulfil — and, in some cases, to exceed
— their obligations as parties to the Protocol. This was
followed in August 1998 by a proposal enabling it to implement
the more stringent controls agreed at meetings of the Montreal
Protocol in 1995 and 1997 (and indeed to again exceed these in
certain respects).
1.2 That proposal was eventually adopted as Regulation
(EC) No 2037/2000,[2] which
bans the sale and use of those substances whose production had
already been prohibited; makes further staged reductions in the
production and use of methyl bromide, leading to a total prohibition[3]
after 31 December 2004; makes further cuts in the production and
consumption of HCFCs, but with the eventual phase-out date deferred
until the end of 2025, whilst imposing tighter controls over their
use. However, these restrictions do not apply when the substance
in question is to be placed on the market for destruction by approved
technologies, for use as a feedstock or processing agent, to meet
licensed requests for essential or critical uses where no adequate
alternatives are available, or to respond to an emergency.
1.3 In addition, the Regulation imposes severe restrictions
on the export of ozone depleting substances, and on the import
and export of products containing them; extends trade controls
with states not party to the Protocol to include methyl bromide
and HCFCs; and specifies measures for the recovery, recycling
or reclamation of used substances, and in relation to leakages,
in order to reduce emissions.
1.4 As we noted in our Report of 5 November 2008,
the current document is in two parts. Part I is a Commission Communication,
which says that the Montreal Protocol has been highly successful,
achieving a 95% reduction in the consumption of ozone depleting
substances, and leading to the almost complete banning of the
production and consumption of the most harmful known substances
in industrialised countries by 2010. At the same time, it notes
that, despite this, a number of key challenges remain, including
ozone depleting substances which are stored or "banked"
in products and equipment; emissions arising as a result of the
various uses exempted under the Protocol; and new ozone depleting
substances, not currently covered by the Protocol.
1.5 Part II of this document therefore proposes a
number of revisions to Regulation (EC) No. 2037/2000. Some of
these would be aimed at simplifying the measure, reducing administrative
costs and facilitating enforcement. In addition, the proposal
would align the Regulation with a recent decision to bring the
phase-out of HCFCs forward from 2025 to 2020, and introduce a
number of measures to reduce the risk of their illegal trade and
use. It would also include three further measures, which would:
- reduce the current limit on
the use of methyl bromide for quarantine and pre-shipment purposes,
with a full phase-out by 2015;
- tighten up the provisions on the recovery and
destruction of "banked" substances in products and equipment
(with the Commission being given powers to introduce legislation
setting out those products and equipment for which recovery and
destruction would be mandatory); and
- identify new substances with an ozone depleting
potential which should be subject to controls, with the Commission
again being given the power to add any further such substances.
1.6 The Commission also intends to take further action
to achieve a complete phase-out of ozone depleting substances
by focusing on improving the implementation and enforcement of
the waste policy framework, and on identifying appropriate incentives
to increase significantly the quantity of ozone depleting substances
contained in foam products, notably demolition waste, which is
presented for recovery, recycling or destruction within the Community.
It will also work in parallel at international level with the
Member States and other Parties to the Protocol to continue to
bring down remaining uses and emissions of ozone depleting substances,
and to encourage all concerned to sign up to the amendments to
the Protocol.
1.7 In his Explanatory Memorandum of 15 October 2008,
the Minister for Sustainable Development, Climate Change Adaptation
and Air Quality at the Department for Environment, Food and Rural
Affairs (Lord Hunt of Kings Heath) commented that the proposal
enabling the Commission to list products,
installations and equipment for which recovery of ozone-depleting
substances would be mandatory if considered to be "technically
and economically feasible" could lead to significant new
obligations for the construction industry, with no assessment
having been presented by the Commission of the likely costs. He
added that the tightening up of existing export bans on products
and equipment containing or relying on controlled substances needed
further consideration, and that the Government would also want
to consider the more minor proposals on their merits. He concluded
by saying that the Government intended to provide further information
on the proposal's impact in a Supplementary Explanatory Memorandum
by December 2008.
1.8 Although we were glad to note that these latest
proposals would bring the Community into line with the most recent
changes made to the Protocol, as well as simplifying the way in
which the relevant legislation is implemented by Member States,
we did identify a number of significant concerns, namely that
the proposal would give the Commission potentially far-reaching
legislative powers; that it had made no assessment of the likely
costs and benefits; and that, although it had provided a plethora
of figures showing the possible impact of the various steps, these
lacked any coherent focus, and provided a confusing mix of impacts
at different levels, and over different periods of time. We therefore
expressed the hope that the Government's own Impact Assessment
would clarify some of these issues, at least in relation to the
UK.
Supplementary Explanatory Memorandum of 14 January
2009
1.9 We have now received from the Minister a supplementary
Explanatory Memorandum of 14 January 2009. This confirms that
the key aspects of the proposal
are likely to be the measures relating to "banks" of
ozone depleting substances, and in particular that any obligation
to recover and destroy those found in building insulation foam
could be significant in both economic and environmental terms.
He also says that, as the draft Regulation
stands, any new obligations in this area would have to be proposed
by the Commission and voted on by the Member States' representatives
after the Regulation has come into force, but that the Commission
has yet to provide a detailed analysis of the technical and economic
feasibility of such a step, or of the costs to industry. He says
that the UK will therefore be pressing for the Regulation to include
a explicit duty on the Commission to carry out this analysis after
it is adopted, but before bringing forward any new obligations
as regards recovery and destruction.
1.10 The Minister also points out that the global
bank of blowing agents in foams was estimated in 2005 as being
close to 3 million tonnes (equating to about 10 billion tonnes
of carbon dioxide equivalent), and that the corresponding figures
for the UK might be 100,000 tonnes and 240 million tonnes respectively
He adds that, if not recovered, some of this is likely to be released
into the atmosphere at some stage, and, although these releases
would be spread over a period as long as 100 years, they are likely
to begin in earnest between 2010 and 2020, and may reach their
peak between 2030 and 2040; in the meantime, emissions are likely
to remain low whilst these foams are currently in buildings.
1.11 The Minister confirms that measures to phase
out the use of methyl bromide for quarantine and pre-shipment
purposes by 2015, and to require its mandatory recovery in the
meantime, may have a limited impact in the UK as this substance
has not been used here to fumigate wood packaging as a quarantine
measure for a number of years. They are also likely to be pre-empted
by the withdrawal shortly of the authorisation of methyl bromide
under the Plant Protection Products Directive (91/414/EEC).
1.12 The Minister also comments on the measures governing
trade in HCFCs. He points out that the volume of trade in second
hand commercial refrigeration and air conditioning equipment containing
HCFCs is negligible, and that a tightening up of the controls
applying to them would have little or no economic impact. However,
he suggests that to limit the export and inward processing of
HCFCs themselves would penalise distributors and exporters, but
produce no environmental benefit. He therefore says that the Commission
should provide a stronger justification for banning this trade.
Conclusion
1.13 As we observed in our Report of 5 November
2008, these proposals contain a number of welcome elements, not
least in giving effect to the most recent changes made to the
Montreal Protocol and simplifying the way in which the legislation
in question is implemented within the Community. However, some
of the concerns we expressed then still remain.
1.14 In particular, it seems to us that tackling
the issue of banked ozone depleting substances in foam products,
and demolition waste in particular, raises some major questions.
Thus, on the one hand, it is clear that these wastes occur in
large quantities, and that, if and when released, their global
warming potential could be formidable. On the other hand, it is
also evident that the cost of taking the necessary measures to
bring about their safe release could be very considerable. It
is therefore all the more unsatisfactory that the Commission should
be seeking the power to introduce such measures before producing
a proper Impact Assessment, and we do not believe that the approach
suggested by the Government — to include an explicit duty
on the Commission to carry out such an analysis after the Regulation
is adopted but before bringing forward any new obligations in
this area — is adequate. In particular, once any Regulation
has been adopted, we remain to be convinced that it would be possible
in practice to hold the Commission to this, or to ensure that
any such analysis provided a convincing justification for the
action proposed. In short, we believe that this is a matter which
must be resolved satisfactorily before the current proposal is
adopted.
1.15 For that reason, and because of the doubts
which the Government has expressed over the justification for
the restrictions proposed on the export of HCFCs (and equipment
containing them), we are recommending this document for debate
in European Committee A.
1 These substances include chlorofluorocarbons (CFCs),
halons; carbon tetrachloride; 1,1,1-trichloroethane; methyl bromide;
hydrobromofluorocarbons (HBFCs); and hydrochlorofluorocarbons
(HCFCs). Back
2
OJ No. L 244, 29.9.00, p.1. Back
3
Except where it is used for quarantine or pre-shipment treatment Back
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