Persistent Organic Pollutants from 1st Jan (UK Brexit)

The UK has confirmed that it’s persistent organic pollutants (POPs) regulation system will continue in its current form after 1 January 2021.

The matter is presently addressed (for the EU27) by a 2019/1021 recast EU POPs Regulation that came into force in 2019. In the UK, this 2019 EU Regulation is retained as Retained EU Law, and a 2019 enacted Brexit EU Exit instrument makes the Retained EU document operate in the UK (see the Brexit Consolidated Law List in Subscribers systems).

The UK confirmation is here.

The UK notice confirms all existing obligation and protections will continue because the UK is a signatory to both the Stockholm Convention and the Convention on Long-Range Transboundary Air Pollution. These Conventions are UNECE Conventions. The UK did not leave the UNECE (UN Economic Commission for Europe).

There is no change to the UK competent authorities.

Future updates will reflect Stockholm Convention decisions and agreed scientific and technical progress, and not necessarily changes to the EU POPs Regulation if it diverges.

Accordingly, subscribers to Cardinal Environment EHS Legislation Registers and Checklists – UK systems – will have both conventions added, where POPs are included in their UK systems. This is in addition to the necessary Retained EU Law.

The list of restricted, banned and monitored substances, with the exemptions, set out in the annexes to the current EU POPs Regulation will be amended this year (2020) to reflect decisions made at the last Stockholm Convention conference.

The Environment Agency is accordingly addressing changes pertinent to Perfluorooctane sulfonate (PFOS). The EA document is here.

These changes can be expected in amendments to existing domestic law.

The UK notice confirms identification of potential new POPs substances, with the exception of pesticides, will be managed initially through the UK chemicals regulatory regime that will replace EU REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) in the UK.

The UK notice confirms if all the characteristics of a POP emerge from the evidence gathering, the UK will develop a dossier for the Stockholm Convention’s POP Review Committee to assess.

Now that the UK has left the EU, this UK POPs notice confirms further changes to UK regulation of POPs will result from the review processes set up under UNECE Conventions.

Persistent Organic Pollutants (EU)

The EU Regulation on Persistent Organic Pollutants will be reissued (recast). Consultation responses are here. The proposal is here.

Detail

The European Commission is recasting the Persistent Organic Pollutants Regulation (EC) No 850/2004 (the current POPs regulation) which implements the commitments of the EU under the Stockholm Convention on POPs, and also takes account of the 1998 protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on POPs (protocol). Most EU countries, including the UK, are party to the Stockholm Convention and the protocol in their own right and as a member of the EU.

Persistent Organic Pollutants (POPs) are substances that remain intact in the environment for long periods, become widely distributed geographically, accumulate in the fatty tissue of humans and wildlife, and have harmful impacts on human health or on the environment. Examples of POPs include polychlorinated biphenyls (PCBs) and pesticides such as DDT.

The reasons for this recast are:

i. The EU Council Directive which provides the legal basis for the comitology committee for this regulation has been revoked and the committee ceased to exist on 1 June 2015.

ii. The regulation needs to take into account updated procedural changes introduced by the ‘Lisbon treaty’, in particular, which rules are subject to implementing acts and which conditions apply to the adoption of delegated acts.

The Commission proposes a recast of the Regulation with three objectives:

(1) to align the provisions for adoption of detailed implementing rules with changes introduced under the Lisbon Treaty—and, in particular, to stipulate which rules are subject to implementing acts and which to delegated acts; (see above)

(2) to involve the European Chemicals Agency (ECHA) in supporting the scientific, technical and reporting aspects of the Regulation—this includes providing advice on substances that are being considered by the Stockholm Convention for bans and restrictions and compiling, registering and disseminating information provided by Member States on the implementation of the agreement; and

(3) to simplify the reporting provisions.

Nonetheless there are changes, see the consultation responses.

BREXIT : It is possible that the recast Regulation will enter into force prior to the end of the post-Brexit implementation period on 31 December 2020. As a result, the Regulation could be directly applicable in the UK until the end of that period.

The UK relevant ministry (DEFRA) indicates possible concerns regarding the introduction of delegated acts and the ability for Member States to scrutinise and participate in decision making on the setting of thresholds and the nomination of POPs under the Stockholm Convention. It is not clear exactly, says the Minister, how the Commission will manage the approval of use of POPs in closed site systems nor how they will set waste thresholds for POPs in products. She believes that clarification over the ECHA’s role will be key. This includes whether there will be a requirement to use committees such as the Risk Assessment Committee and the Committee for Socio Economic Analysis to set maximum limits for POPs content within an article. The POPs element of the article above the maximum limit must be destroyed, usually at high temperature. The Government will therefore seek this clarification regarding the application of delegated acts during the negotiations.

The Minister welcomes the use of ECHA to assist in the implementation of the regulation as it brings the POPs regime into alignment with the REACH Regulation. This, she says, will help prevent conflicting decisions for the same substances and align timelines at the international and EU level. The UK is supportive of strengthening the role of the ECHA, and will be seeking further clarification regarding its role in relation to the POPs Review Committee (POPRC) and reporting to ensure there are no additional resource impacts.

The UK also supports streamlining reporting, digitalisation, and encouraging the use of the Information Platform for Chemical Monitoring (IPCheM). While there is no longer a requirement for triennial reports, a requirement is proposed to keep up to date data uploaded on the IPCHeM platform, allowing the ECHA to provide six-monthly reports to the Commission. The IPCHeM brings together chemical monitoring data under a new platform, established in 2015. It also brings the general EU reporting in line with the requirements under the Stockholm Convention, including requests for information for POPRC and the reporting for the convention under Article 13. The UK will seek clarification regarding the information and reporting requirements and standards which will be set by the ECHA going forward to align with the portal. Until the UK clarifies its relationship with the EU and the ECHA the precise impact of these changes once the UK has left the EU remains unclear.