Documents considered by the Committee on 28 January 2009 - European Scrutiny Committee Contents


1 Control of ozone depleting substances


(29949)

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)

Legal basePart I: —

Part II: Articles 133 and 175(1)EC; co-decision; QMV

DepartmentEnvironment, Food and Rural Affairs
Basis of considerationSEM of 14 January 2009
Previous Committee ReportHC 16-xxxiv (2007-08), chapter 4 (5 November 2008)
To be discussed in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionFor debate in European Committee A

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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