# EUR-Lex - 52015PC0137 - EN

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# 52015PC0137

**Proposal for a COUNCIL DECISION on the position to be adopted, on behalf of the European Union, at the Seventh Conference of the Parties to the Stockholm Convention on Persistent Organic Pollutants regarding the proposals for amendments of Annexes A, B and C /* COM/2015/0137 final - 2015/0069 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The Stockholm Convention on Persistent
Organic Pollutants (POPs)[1]
was adopted in May 2001 in the framework of the United Nations Environment
Programme (UNEP). The European Union and its Member States[2] are parties to the
Convention[3]
and the provisions of the Convention have been implemented in EU law by
Regulation (EC) No 850/2004 of the European Parliament and of the Council of 29
April 2004 on persistent organic pollutants and amending Directive 79/117/EEC[4] (the POPs Regulation).

The overall objective of the Stockholm
Convention is to protect human health and the environment from POPs. Specific
reference is made to the precautionary approach as set out in Principle 15 of
the 1992 Rio Declaration on Environment and Development. The principle is made
operational in Article 8 of the Convention, which lays down the rules for
including additional chemicals in the Annexes to the Convention.

At the seventh Conference of the Parties
(COP7) in May 2015, three decisions should be taken to add polychlorinated
naphthalenes (PCN) and hexachlorobutadiene (HCBD) to Annexes A (elimination)
and C (unintentional production) and pentachlorophenol (PCP) to Annex A. All
three substances were nominated by the EU in 2011. Furthermore the continued
need for specific exemptions and acceptable purposes for perfluorooctane
sulfonic acid and its derivatives (PFOS) shall be assessed by COP7.

As regards the three new substances, the
production, placing on the market, use and unintentional emission have already
ceased or have been severely reduced in the Union, whereas it cannot be
excluded that they are still produced, placed on the market, used and/or
significantly unintentionally emitted in other countries. Due to the potential
for long-range environmental transport of these chemicals, the measures taken
nationally or at the Union level are not sufficient to safeguard the high level
of protection of the environment and human health but wider international
action is necessary.

The POP RC recommendations

At its ninth meeting, the Persistent
Organic Pollutants Review Committee (POPRC) adopted the risk management
evaluation on hexachlorobutadiene (HCBD). The risk management evaluation
concluded inter alia that:

– 
HCBD is not known to be currently intentionally
produced or used, therefore it is important to prevent its re-introduction and
manage the risks associated with its unintentional release.

– 
HCBD is generated as an unintentional by-product
from industrial manufacturing processes (particularly the production of other
chlorinated hydrocarbons and the production of magnesium). Measures to minimise
releases during production are known and already applied in countries that are
parties to the Stockholm Convention.

– 
HCBD is unintentionally generated during
combustion and other thermal processes and industrial processes. Measures to
reduce unintentional releases of POPs from such processes will lead to a
further reduction of HCBD releases. Monitoring of HCBD may induce additional
costs.

HCBD is released to an unknown extent from
former waste disposal sites. Control measures to minimise such releases are
available. The POPRC at its 9th meeting in October 2013 recommended the listing
of HCBD in Annex A and Annex C to the Convention without exemption.

As regards polychlorinated naphthalenes
(PCN) the risk management evaluation concluded inter alia that:

– 
PCN are not known to be currently intentionally
produced or used, however it is important to limit possible remaining uses and
to prevent the re-introduction of PCN.

– 
PCN are unintentionally generated during
high-temperature industrial processes (particularly waste incineration, but
also in other processes known to generate Polychlorinated
dibenzo-p-dioxins/Polychlorinated dibenzofurans (PCDD/PCDF). Measures that
reduce the release of PCDD/PCDF will also reduce PCN releases. Monitoring of
PCN may induce additional costs.

– 
PCN are released to an unknown extent from waste
disposal sites and stocks of old appliances. Measures that are in place with
respect to PCB stockpiles will also efficiently reduce releases of PCN from
stockpiles.

The POPRC at its 9th meeting in October
2013 recommended the listing of PCN in Annex A and Annex C to the Convention
without exemption.

At its tenth meeting in October 2014, the
POPRC adopted a risk management evaluation on pentachlorophenol its salts and
esters (PCP). The risk management evaluation concluded inter alia that:

– 
Production of PCP shall be restricted, with the
only exemption for uses of industrial wood preservation purposes for the
treatment of utility poles and cross-arms.

The POPRC at its 10th meeting in October
2014 decided to recommend the listing of PCP in Annex A to the Convention with
a specific exemption for the production and use of PCP for utility poles and
cross-arms.

In accordance with Article 8 (9) of the
Convention, the POPRC has submitted these recommendations to the COP for its
consideration at the meeting in May 2015.

The POPRC also adopted recommendations on
alternatives to the use of PFOS in open applications. Information on the
commercial availability and effectiveness of safer alternatives to PFOS for the
following applications has become available: carpets, leather and apparel,
textiles and upholstery, coating and coating additives, insecticides for the
control of red imported fire ants and termites, and insect bait for the control
of leaf cutting ants from Atta spp. and Acromyrmex spp. Furthermore, POP RC
also encourages Parties to restrict the use of PFOS in hard metal plating,
(allowed as a 'specific exemption' under the Convention), to closed-loop
systems only. The latter has been allowed as an 'acceptable purpose' under the
Convention.

HCBD and EU law

HCBD is a priority hazardous substance
under the Water Framework Directive (2000/60/EC) [5]. Furthermore,
HCBD is listed in the Protocol on POPs of the UNECE Convention on Long-Range
Transboundary Air Pollution (CLRTAP) and, therefore, Parties are requested to
eliminate its production and use. Commission Regulation (EU) No 519/2012 of 19
June 2012 amending Regulation (EC) No 850/2004 of the European Parliament and
of the Council on persistent organic pollutants as regards Annex I[6] implements the ban in
EU law. However, wastes and contaminated land issues remain, as well as
consideration of measures to prevent re-introduction.

Whilst the production of HCBD in Europe has
ceased, it still may be produced unintentionally in some industrial activities.
Such activities, when meeting the thresholds in the Directive on industrial
emissions (the IED; 2010/75/EU[7]),
are required to apply the best available techniques (BAT) to prevent and reduce
emissions and the impact on the environment as a whole.  In order to operate,
an industrial installation must obtain a permit from a Member State competent
authority. These permits must contain emission limit values for the polluting
substances listed in Annex II of the IED, as well as other substances, likely
to be emitted in significant quantities having regard to their nature and their
potential for cross-media pollutant transfer.

PCN and EU law

PCN is listed in the Protocol on POPs of
the CLRTAP and, therefore, Parties are requested to eliminate its production
and use. By virtue of Commission Regulation (EU) No 519/2012, production and
use of PCN is prohibited in the EU. Unintentional production via combustion
(primarily waste incineration) is considered the most significant current
source.

Whilst the production of PCN in Europe has
ceased, it still may be produced unintentionally in some industrial activities.
Such activities, when meeting the thresholds in the Directive on industrial
emissions (the IED; 2010/75/EU), require mandatory application of the best
available techniques (BAT) to prevent and reduce emissions and the impact on
the environment as a whole. In order to operate, an industrial installation
must obtain a permit from a Member State competent authority. These permits
must contain emission limit values for the polluting substances listed in Annex
II of the IED, as well as other substances, likely to be emitted in significant
quantities having regard to their nature and their potential for cross-media
pollutant transfer.

PCP
and EU law

Placing on the market or use of
pentachlorophenol as a substance, as a constituent in other substances or in
mixtures in a concentration equal to or greater than 0.1% by weight is
restricted pursuant to entry 22 in Annex XVII to Regulation (EC) No 1907/2006
(REACH)[8].
In addition, placing on the market and use of PCP as a plant protection product
and as a biocidal product is prohibited pursuant to Regulation (EC) No
1107/2009[9]
and Regulation (EU) No 528/2012[10],
respectively.

Actions subsequent to the COP7 Decisions

Substances listed in Annexes A, B and/or C
to the Stockholm Convention will need to be included in the POPs Regulation in
order to ensure that the EU implementation corresponds to the international
commitments[11].

HCBD and PCN have been added to Annex I to
the POPs Regulation in 2012. Listing in Annex C of the Stockholm Convention
will require the listing in Annex III in addition.

After the listing in Annex A to the
Stockholm Convention, PCP will have to be added to Annex I of the POPs
Regulation. Since this will render the current listing in Annex XVII to the
REACH Regulation obsolete, removal from that Annex will be initiated.

PFOS and EU law

At the fourth meeting of the Conference of
the Parties to the Stockholm Convention in May 2009, it was agreed to list PFOS
and its derivatives in Annex B to the Convention, with a number of specific
exemptions and acceptable purposes. The implementing EU legislation is more
restrictive than the Stockholm Convention as it does not include the exemptions
and the acceptable purposes that were already banned in the EU pursuant to
REACH. This was done in order to comply with the over-arching principle of not
lowering the level of environmental protection in the EU.

Procedure for Adding new POP substances and
Amending the Annexes of the Convention

According to Article 8 of the Convention,
Parties may submit proposals to the Secretariat for listing a chemical in
Annexes A, B and/or C. The Persistent Organic Pollutants Review Committee (POP
RC) shall examine the proposal.

If this review concludes that the chemical
is likely, as a result of its long-range environmental transport, to lead to
significant adverse human health and/or environmental effects such that global
action is warranted, the proposal shall proceed and a risk management
evaluation that includes an analysis of possible control measures shall be
drawn up. On this basis, the POP RC recommends whether the chemical should be
considered by the Conference of Parties (COP) for listing in Annexes A, B
and/or C. The final decision is taken by the COP.

For the EU, amendments to the Annexes A, B
and/or C enter into force one year from the date of the communication by the
depositary of their adoption by the COP.

The POP RC recommendations and EU Law

The POP RC recommendation, if followed by
the COP in May 2015, will result in international bans on manufacturing,
placing on the market, import / export and use of PCN, HCBD and PCP, excluding
PCP production and use for utility poles and cross-arms.

The listing of HCBD and PCN in Annex A and
Annex C and of PCP in Annex A to the Convention will require amendments to the
POPs Regulation. According to Article 14(1) of the Regulation, when substances
are added to the Convention, changes to the Annexes of the Regulation can be
made in accordance with the committee procedures established in Articles 5a of
Decision 1999/468/EC[12],
having regard to Articles 10 and 11 of Regulation (EU) No 182/2011[13].

With regards to PFOS and its derivatives, a
deletion of the specific exemptions listed in the report of the POPRC will have
no impact on the EU law as the relevant exemptions were either not implemented
in the POPs Regulations or have already expired. The only exception to this is
the exemption for the use of PFOS in hard metal plating in open systems,
currently exempted under the POPs Regulation for the use as wetting agents in
controlled electroplating systems. This exemption under the POPs Regulation is
however only allowed until 26 August 2015.

The EU position

In view of the above, at the seventh COP to
the Stockholm Convention, the European Union should support the adding of PCN
and HCBD to Annexes A and C to the Convention, and PCP to Annex A. As PCP is
already restricted in the EU a specific exemption for the production and use of
PCP for utility poles and cross-arms is not needed, but can be accepted as part
of an overall compromise. Furthermore, the European Union should support the
deletion of the relevant specific exemptions and acceptable purposes for PFOS
and its derivatives, including the exemption for the use as wetting agents in
controlled electroplating systems, since that the deletion of the exemption
will only enter into force after expiry of the exemption in the EU in August
2015.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

As PCN and HCBD are already listed in the
POPs Regulation (EC) No 850/2004 no further consultation is considered
warranted. As PCP is already banned for placing on the market and use in the EU
pursuant to the listing in Annex XVII to Regulation (EC) No 1907/2006 (REACH)
and the non-approval under Regulation (EC) No 1107/2009 and Regulation (EU) No
528/2012, no further consultation was deemed necessary either. All substances
have been subjected to open consultations with stakeholders world-wide during
the POPRC assessment and stakeholders have also been admitted to the
deliberations of POPRC.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

The proposal consists in a Council
Decision, based on Articles 192(1) and 218(9) of the TFEU, establishing the
position to be adopted, on behalf of the EU, at COP7 of the Stockholm
Convention on Persistent Organic Pollutants with regards to proposals for
amendments of Annexes A, B and C.

Article 218(9) TFEU is the appropriate
legal basis as the act that COP7 is called upon to adopt is a decision amending
an annex to the Stockholm Convention which has legal effects.

2015/0069 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be adopted, on behalf
of the European Union, at the Seventh Conference of the Parties to the
Stockholm Convention on Persistent Organic Pollutants regarding the proposals
for amendments of Annexes A, B and C

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 191(1), in
conjunction with Article 218(9) thereof,

Whereas:

(1)       On 14 October 2004, the
Stockholm Convention on Persistent Organic Pollutants ("the
Convention") was approved, on behalf of the European Community, by Council
Decision 2006/507/EC[14].

(2)       The Union has implemented
the obligations of the Convention in Union law by way of Regulation (EC) No
850/2004 of the European Parliament and the Council[15].

(3)       The Union places strong
emphasis on the need for the gradual expansion of Annexes A, B and/or C to the
Convention with new substances which fulfil the criteria for persistent organic
pollutants (POPs), taking into account the precautionary principle, with a view
to meeting the objective of the Convention and the commitment of governments
made at the World Summit on Sustainable Development held in Johannesburg in
2002 to minimise the adverse effects of chemicals by 2020.

(4)       Pursuant to Article 22 of
the Convention, the Conference of the Parties ("COP") may adopt
decisions amending Annexes A, B and/or C to the Convention. Those decisions
enter into force one year from the date of communication by the depositary of
an amendment, save for those parties to the Convention ("the
Parties") that have opted out.

(5)       Following a nomination of
pentachlorophenol (PCP)[16]
received from the Union in 2011, the Persistent Organic Pollutants Review
Committee ("POPRC") established under the Convention has concluded
its work on PCP. POPRC has found that PCP meets the criteria of the Convention
for a listing in Annex A. At its seventh meeting, the COP is expected to decide
on the inclusion of PCP in Annex A to the Convention.

(6)       The placing on the market
and use of PCP is prohibited by entry 22 of Annex XVII to Regulation (EC) No
1907/2006 of the European Parliament and of the Council (REACH)[17]. Placing on the market
and use of PCP as a plant protection product and as a biocidal product is
prohibited pursuant to Regulation (EC) No 1107/2009 of the European Parliament
and of the Council[18]
and Regulation (EU) No 528/2012 of the European Parliament and of the Council[19], respectively. Since
PCP is capable of long-range environmental transport, a global phase-out of the
use of this substance would be more beneficial to the EU citizen than the
prohibition in the Union.

(7)       POPRC recommends the
listing of PCP under the Convention with a specific exemption for the
production and use of PCP for utility poles and cross-arms. The Union does not
need the specific exemption but should accept the exemption in COP7, if that is
required to ensure the listing of PCP.

(8)       Following a nomination of
chlorinated naphthalenes received from the Union in 2011, POPRC has found that
polychlorinated naphthalenes (PCN) meet the criteria of the Convention for a
listing in Annexes A and C. At its seventh meeting, the COP is expected to
decide on the inclusion of PCN in Annexes A and C to the Convention.

(9)       There is no production of
PCN in the Union but it may be produced unintentionally, most significantly via
combustion (primarily waste incineration). Such activities are covered under
Directive 2010/75/EU of the European Parliament and of the Council[20], and require the
application of certain emission management measures.

(10)     The placing on the market
and use of PCN is prohibited in the Union pursuant to Regulation (EC) No
850/2004, as amended by Commission Regulation (EU) No 519/2012[21]. Since PCN is capable
of long-range environmental transport, a global phase-out of the use of this
substance would be more beneficial to the EU citizen than the prohibition under
Regulation (EC) No 850/2004 in the Union.

(11)     Following a nomination of
hexachlorobutadiene (HCBD) received from the Union in 2011, POPRC has found
that HCBD meets the criteria of the Convention for a listing in Annexes A and
C. At its seventh meeting, the COP is expected to decide on the inclusion of
HCBD in Annexes A and C to the Convention.

(12)     The production of HCBD has
ceased in the Union but it may be produced unintentionally in some industrial
activities. Such activities are covered under Directive 2010/75/EU and require
the application of certain emission management measures.

(13)     The placing on the market
and use of HCBD is prohibited in the Union pursuant to Regulation (EC) No
850/2004, as amended by Commission Regulation (EU) No 519/2012. Since HCBD is
capable of long-range environmental transport, a global phase-out of the use of
this substance would be more beneficial to the EU citizen than the prohibition
under Regulation (EC) No 850/2004 in the Union.

(14)     Perfluorooctane sulfonic
acid and its derivatives (PFOS) are already listed in Annex A to the Convention
with a number of specific exemptions. Following a review of those exemptions,
POPRC encourages parties to stop using PFOS in carpets, leather and apparel,
textiles and upholstery, coating and coating additives and insecticides for the
control of red imported fire ants and termites. POPRC also encourages Parties
to restrict the use of PFOS in hard metal plating, which is allowed as a
'specific exemption', by only keeping the use in hard metal plating only in
closed-loop systems, which is allowed as an 'acceptable purpose' under the
Convention. Moreover, POPRC encourages parties to stop using PFOS in insect
baits for control of leaf cutting ants from Atta spp. and Acromyrmex spp.,
which is currently allowed as an 'acceptable purpose'.

(15)     The Union should support
the deletion of the 'specific exemptions' and 'acceptable purposes' for PFOS
and its derivatives in line with the proposal made by POPRC, including the
exemption for use as wetting agents in controlled electroplating systems, which
has been implemented in the Union by Regulation (EC) No 850/2004 as amended by
Regulation (EU) No 757/2010[22]
with the expiry date of 26 August 2015,

HAS ADOPTED THIS DECISION:

Article 1

The position to
be taken by the Union at the seventh Conference of the Parties to the Stockholm
Convention shall be, in line with the recommendations of the Persistent Organic
Pollutants Review Committee [23],
to support:

– 
the listing of pentachlorophenol (PCP)[24] in Annex A to the
Convention. If required, the Union can accept a 'specific exemption' for the
production and use of PCP for utility poles and cross-arms;

– 
the listing of polychlorinated naphthalenes
(PCN)[25]
in Annexes A and C to the Convention without exemption;

– 
the listing of hexachlorobutadiene (HCBD) in
Annexes A and C to the Convention without exemption;

– 
the deletion of the following exemptions and
acceptable purposes from the entry on perfluorooctane sulfonic acid (PFOS) and
its derivatives in Annex B to the Convention: carpets; leather and apparel;
textiles and upholstery; coating and coating additives; insecticides for the
control of red imported fire ants and termites; and insect bait for the control
of leaf cutting ants from Atta spp. and Acromyrmex spp.;

– 
the deletion of the specific exemption for PFOS
in metal plating, save for hard metal plating only in closed-loop systems,
listed as an 'acceptable purpose' in the Convention.

Refinement of this position, in light of
developments at the seventh meeting of the Conference of the Parties to the
Stockholm Convention, may be agreed to by the representatives of the Union in
the meeting, following coordination on the spot, without further decision of
the Council.

Article 2

This
Decision shall enter into force on the day of its adoption.

Done at Brussels,

For
the Council

The
President

[1]               http://www.pops.int/documents/convtext/convtext_en.pdf.

[2]               Two EU Member
States have not yet ratified (Italy and Malta).

[3]               OJ L 209, 31.7.2006, p. 1.

[4]               OJ L 158, 30.4.2004, p. 7.

[5]               OJ L 327, 22.12.2000, p.1.

[6]               OJ L 159, 20.06.2012, p.1.

[7]               OJ L 334, 17.12.2010, p. 17.

[8]               OJ L 396, 30.12.2006, p.1.

[9]               OJ L 309, 24.11.2009, p.1.

[10]             OJ L 167, 27.06.2012, p.1.

[11]             The same applies to substances added to Annexes I, II
and/or III of the UN-ECE Protocol on POPs.

[12]             Council Decision 1999/468/EC of 28 June 1999 laying
down the procedures for the exercise of implementing powers conferred on the
Commission, OJ L 184, 17.7.1999, p. 23.

[13]             Regulation (EU) No 182/2011 of the European Parliament
and of the Council of 16 February 2011 laying down the rules and general
principles concerning mechanisms for control by Member States of the
Commission’s exercise of implementing powers, OJ L 55, 28.2.2011, p. 13.

[14]             Council Decision 2006/507/EC of 14 October 2004
concerning the conclusion, on behalf of the European Community, of the
Stockholm Convention on Persistent Organic Pollutants (OJ L 209, 31.7.2006, p.
1).

[15]             Regulation (EC) No 850/2004 of the European Parliament
and the Council of 29 April 2004 on persistent organics pollutants and amending
Directive 79/117/EEC (OJ L 158, 30.4.2004, p. 7).

[16]             Nomination UNEP/POPS/POPRC-7/4

[17]             Regulation (EC) No 1907/2006 of the European Parliament
and of the Council of 18 December 2006 concerning the registration, evaluation,
authorisation and restriction of chemicals (REACH), establishing a European
Chemicals Agency, amending Directive 1999/45/EC and repealing Council
Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as
Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC,
93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p.1).

[18]             Regulation (EC) No 1107/2009 of the European Parliament
and of the Council of 21 October 2009 concerning the placing of plant
protection products on the market and repealing Council Directives 79/117/EEC
and 91/414/EEC (OJ L 309, 24.11.2009, p.1).

[19]             Regulation (EU) No 528/2012 of the European Parliament
and of the Council of 22 May 2012 concerning the making available on the market
and use of biocidal products (OJ L 167, 27.06.2012, p. 1).

[20]             Directive 2010/75/EU of the European Parliament and of
the Council of 24 November 2010 on industrial emissions (integrated pollution
prevention and control) (OJ L 334, 17.12.2010, p. 17).

[21]             Commission Regulation (EU) No 519/2012 of 19 June 2012
amending Regulation (EC) No 850/2004 of the European Parliament and of the
Council on persistent organic pollutants as regards Annex I (OJ L 159,
20.06.2012, p.1).

[22]             Commission Regulation (EU) No 757/2010, OJ L 223/29 of
25. 8. 2010 amending Regulation (EC) No 850/2004 of the European Parliament and
of the Council on persistent organic pollutants as regards Annexes I and III

[23]             Decision POPRC-10/1, POPRC-9/1, POPRC-9/2,

[24]             Pentachlorophenol, its salts and esters.

[25]             dichlorinated naphthalenes, trichlorinated
naphthalenes, tetrachlorinated naphthalenes, pentachlorinated naphthalenes,
hexachlorinated naphthalenes, heptachlorinated naphthalenes and octachlorinated
naphthalene, individually or as components of chlorinated naphthalenes.