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Brussels, 28.1.2009

COM(2009) 27 final

Proposal for a

COUNCIL DECISION

establishing the position to be adopted on behalf of the European Community with regard to proposals for amending Annexes A, B and C of the Stockholm Convention at the fourth meeting of the Conference of Parties on 4 – 8 May 2009

(presented by the Commission)

EXPLANATORY MEMORANDUM

The Stockholm Convention on Persistent Organic Pollutants (POPs)[1] was adopted in May 2001, upon completion of three years of negotiations conducted in the framework of the United Nations Environment Programme (UNEP). The European Community 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) 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent organics pollutants and amending Directive 79/117/EEC[4].

The overall objective of the Stockholm Convention is to protect human health and the environment from POPs. Specific reference is made to a 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, which lays down the rules for including additional chemicals in the Annexes of the Convention.

The nine intentionally produced chemicals currently listed in Annex A of the Stockholm Convention (aldrin, chlordane, dieldrin, endrin, heptachlor, hexachlorobenzene, mirex, toxaphene and PCBs) are subject to a ban on production and use except where there are generic or specific exemptions. In addition, the production and use of DDT, a pesticide still used in many developing countries for malaria and other disease vector control, is severely restricted, as set out in Annex B of the Stockholm Convention. Finally three substances (PCDD/PCDF, HCB and PCB) which may be formed and released unintentionally are listed in Annex C.

ADDING NEW POP SUBSTANCES TO THE ANNEXES OF THE CONVENTION

ACCORDING TO ART 8 OF THE CONVENTION , parties may submit proposals to the Secretariat for listing a chemical in Annexes A, B and/or C. The Secretariat shall verify whether the proposal contains the necessary information. If the proposal is satisfactory it shall be forwarded to the Persistent Organic Pollutants Review Committee (POP RC). The POP RC shall examine the proposal taking into account all information provided. Where the POP RC decides that the criteria have been fulfilled it shall review the proposal and prepare a draft risk profile.

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.

Altogether twelve new substances have been nominated since the entry into force of the Convention. The European Community and its Member States have nominated seven of the new substances (chlordecone, hexabromobiphenyl, PFOS compounds, octa-BromoDiphenyl Ether (octa-BDE), pentachlorobenzene, short-chained-chlorinated-parafines (SCCP) and Endosulfan), Norway two (penta- BromoDiphenyl Ether (penta-BDE) and hexabromocyclododecane (HBCDD)) and Mexico three (lindane, alpha-hexachlorocyclohexane (α-HCH) and beta-hexachlorocyclohexane (β-HCH)). The POP RC has not yet concluded its work on Endosulfan and SCCP. It is the expectation that these two substances will only be ready for the fifth COP expected to take place in 2011. HBCDD was nominated on 19 June 2008, but it was not discussed officially by the POP RC due to the late availability of the dossier, so it will only be ready for the sixth COP at the earliest, if it meets the criteria set out in the Convention.

The forthcoming COP is the first conference where changes to Annexes will be discussed and decided.

RULES FOR CHANGES OF THE ANNEXES A, B AND/OR C

ACCORDING TO ART 22 OF THE CONVENTION, THE ANNEXES A, B AND /or C are amended by a decision of the COP and enter into force one year from the date of the communication by the depositary of the adoption of changes to Annexes A, B and/or C, save for those parties who chose to opt out from the amendment to the Annex.

THE SUBSTANCES AND COMMUNITY LAW

The European chemicals legislation has been substantially reformed with the adoption of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Authorisation and Restriction of Chemicals (REACH)[5]. While REACH has not yet regulated any of the substances on the agenda for the fourth meeting of the COP, several substances are covered by restrictions imposed by the Council Directive 76/769/EEC[6] which will be incorporated into Annex XVII of REACH with effect from 1 June 2009. New substances to be nominated to the Convention will in many cases be found amongst those on the European Chemicals Agency's (ECHA) candidate list of substances established in accordance with REACH Art 59.1.

All substances that will be listed in Annexes A, B and/or C to the Stockholm Convention[7] will need to be included in the EU Regulation on POPs in order to ensure that the EU implementation corresponds to its international commitments. In addition to restricting certain substances, the international instruments also contain reporting requirements, which are included in the Regulation as well. Therefore, in order to maintain a manageable overview of how the Community meets its international commitments and to ensure consistent reporting, it would be appropriate to add all the substances to the appropriate Annexes of the Regulation, even in cases where these may already be restricted, partly or fully, by other Community instruments.

The POP RC recommendations

Parties to the Convention were informed on 29 October 2008 by the Executive Director that the POP RC has decided at its third and fourth meetings to recommend the listing of nine chemicals in Annexes A, B and/or C of the Convention and to submit that recommendation to the COP for its consideration at the meeting on 4 – 8 May 2009, in accordance with Article 8 paragraph 9 of the Convention.

Chlordecone and Hexabromobiphenyl

The third meeting of the POP RC (19 - 23 November 2007) decided to recommend listing Chlordecone and Hexabromobiphenyl in Annex A of the Convention

The two substances are already included in Annexes I and/or II of the UNECE POPs Protocol without exemptions and have therefore been completely prohibited to use and produce in the EU since the entry into force of the POPs Regulation adopted on 29 April 2004.

During the evaluation by the POP RC of the two substances, several requests from the Secretariat of the Stockholm Convention were sent to Parties and observers to identify remaining uses and/or production. Information sent by Parties and observers indicated no remaining uses and/or production of these two substances. Therefore, there is good reason to believe that all parties should be able to accept the listing of the substances in Annex A (elimination) without exemption.

α-HCH, β-HCH and γ-HCH (Lindane)

At its third meeting POP RC decided to recommend the listing of Lindane (γ-HCH) in Annex A and at the fourth meeting the POP RC (13 – 17 October 2008) recommended listing α-HCH and β-HCH in the same Annex.

In the POPs Regulation, HCH compounds are covered by one entry (i.e., HCH, including Lindane) and two CAS No (608-73-1 and 58-89-9). Lindane (CAS RN: 58-89-9) is the common name for the γ-isomer of HCH. Technical HCH (CAS RN: 608-73-1) is an isomeric mixture that contains mainly five forms of HCH. The five principal isomers are present in the mixture in the following proportions: α-HCH (53%–70%), β-HCH (3%–14%), γ-HCH (11%–18%), δ-HCH (6%–10%) and ε-HCH (3%–5%). The γ-isomer is the only isomer showing strong insecticidal properties.

After almost forty years of extensive use worldwide, there has been a gradual replacement of technical HCH by lindane. No significant uses of technical HCH have been reported after 2000 at worldwide level.

For lindane, the POPs Regulation allowed Member States the right to provide derogations for HCH (including lindane) until 1 September 2006 for professional remedial and industrial treatment of lumber, timber and logs and indoor industrial and residential applications. A second set of derogations, which expired on 31 December 2007, allowed technical HCH for use as an intermediate in chemical manufacturing and products in which at least 99% of the HCH isomer is lindane only for use as public health and veterinary topical insecticide. Today, both lindane and technical HCH are totally banned within EU.

However, some Parties currently produce and use lindane as topical insecticide for public health purposes (scabies, lice). There is good reason to believe that all Parties should be able to accept the listing of lindane in Annex A (elimination) but with an exemption for public health purposes.

α-HCH and β-HCH are chemical intermediates to manufacture lindane. The manufacture of lindane has resulted in a huge amount of HCH residuals, which must be disposed of or otherwise managed. In the absence of exact data, it has been estimated that there are 1.9 to 4.8 million tons of HCH residuals based on global lindane production. The main issue for α-HCH and β-HCH will be the management of their stockpiles. However, their listing in Annex A should be accepted by all Parties, but with an exemption for their uses as intermediate to produce lindane.

Commercial pentabromodiphenyl ether and commercial octabromodiphenyl ether

The third POP RC decided to recommend listing in Annex A of the Convention 2,2',4,4'- tetraBDE (BDE-47, CAS No. 40088-47-9) and 2,2',4,4',5-pentaBDE (BDE-99, CAS No. 32534-81-9) and other tetra- and penta-BDE present in commercial pentaBDE.

The subsequent POP RC decided to recommend listing in Annex A of the Convention 2,2',4,4',5,5'-hexaBDE (BDE-153, CAS No. 68631-49-2), 2,2',4,4',5,6'- hexaBDE (BDE-154, CAS No. 207122-15-4), 2,2',3,3',4,5',6-heptaBDE (BDE-175, CAS No. 446255-22-7) and 2,2',3,4,4',5',6-heptaBDE (BDE-183 CAS No. 207122-16-5) and other hexa- and hepta-BDE present in commercial octaBDE.

These substances are used as flame-retardants but have been restricted in the EU since 2003[8]. The EU restriction covers all pentaBDE and octaBDE congeners and is therefore wider in scope than only targeting the specific commercial forms of the two substances. The POP RC concluded that all polyBDEs with four or five bromines (for commercial penta-BDE) and all polybrominated diphenyl ethers with six or seven bromines (for commercial octa-BDE) present in the commercial pentaBDE and octaBDE are likely, due to the characteristics of their components and as a result of long-range environmental transport, to lead to significant adverse effects on human health and the environment. Therefore, the POP RC recommended the listing of all those congeners in Annex A of the Convention.

The European Community legislation is not identical to the proposed rules at international level, but it is the Commission's assessment that, in practice, the addition of the polyBDEs with four to seven bromines to Annex I of the POPs Regulation will not change the restrictions already in place. However, the existing restrictions only apply to placing on the market and do therefore not restrict the production of these substances, which may take place with a view to their export outside the EU. The listing of polyBDEs with four to seven bromines in Annex A of the Convention without exemption means that production at global level must cease as other Parties must not import polyBDEs from the EU. Therefore, prohibiting export from the EU is a necessity to meet the international obligations but it will have a de jure impact on possible EU producers as there should be no parties to export to, but only those countries which are not parties to the Convention[9].

During the evaluation by the POP RC of these substances, several requests from the Secretariat of the Stockholm Convention were sent to Parties and observers to identify remaining uses and/or production. Information sent by Parties and observers indicated no remaining uses and/or production of these two substances. In addition, there are no reports to the POP RC that any commercial mixture is still being produced that could contain polyBDEs with four to seven bromines above trace level. Therefore, there is good reason to believe that all parties should be able to accept the listing of the substances in Annex A (elimination) without exemption as proposed by the POP RC.

It should be noted that the management of articles containing polyBDE (e.g., EEE equipments) upon becoming wastes will probably be problematic for certain developing country Parties as the waste will have to be treated in accordance with article 6(d) of the Convention. This may call for transitional rules and / or need for financial and technical support.

Perfluorooctane sulfonic acid (PFOS, CAS No. 1763-23-1), its salts and perfluorooctane sulfonyl fluoride (PFOSF, CAS No. 307-35-7) ()

The third meeting of the POP RC decided to recommend the listing of PFOS (CAS No. 1763-23-1), its salts and PFOSF (CAS No. 307-35-7) in Annex A or B of the Convention and specifying the related control measures.

PFOS and its compounds are expected to be the most controversial substances for the Convention COP as there is still significant production and uses of the substances at global scale. Certain developing countries are expected to request financial and technical assistance in order to be able to deal with the replacement of PFOS compounds with safer alternatives.

By listing PFOSF, which is used as a common intermediate in the production of PFOS substances, the POP RC definition aims to restrict production of this intermediate and thereby excluding production of any PFOS substances.

PFOS and its compounds have been restricted in the EU since 2006[10] with respect to use and putting the substance on the market. The EU directive defines PFOS substances as "C8F17SO2X (X = OH, Metal salt (O-M+), halide, amide, and other derivatives including polymers)", which means all possible PFOS substances produced via PFOSF intermediate or via any other intermediate. The legislators acknowledged that for certain uses there were not yet alternatives available, thus specific exemptions have been granted, some of them without time limit. It is an obligation of the Commission to keep under review the availability of safer alternative substances and to propose measures to reduce identified risks when these alternatives are available. The scope of the EU definition is in some aspects slightly broader than the proposed definition by POP RC, which should be kept in mind during the negotiations.

Therefore, there is good reason to believe that some Parties will only accept the listing of the PFOS and its compounds in Annex B, with a number of exemptions.

Pentachlorobenzene

The fourth meeting of the POP RC decided to recommend listing in Annex A and C of the Convention Pentachlorobenzene (PeCB).

There is no known production or use of PeCB but it is one of the priority hazardous substances under the Water Framework Directive (2000/60/EC)[11]. The substance is not covered by marketing or use restrictions at the Community level. During the evaluation by the POP RC of PeCB, several requests from the Secretariat of the Stockholm Convention were sent to Parties and observers to identify remaining uses and/or production. Information sent by Parties and observers indicated no remaining uses and/or production of PeCB. Therefore, there is good reason to believe that all parties should be able to accept the listing of PeCB in Annex A without exemption.

PeCB may also occur as an unintentional by-product from diffuse sources such as impurities in products e.g. as solvents, pesticides and wood preservative products; barrel burning; open fireplaces; accidental fires; and forest burning for agricultural purposes. The POP RC concluded that most measures taken to reduce PCDD/F releases as set out in the Convention's best available techniques / best environmental practises (BAT/BEP) guidelines for incinerators and other thermal processes would lead to a significant reduction of the releases of PeCB. Nevertheless, the POP RC recommended listing PeCB in Annex C. Unintentional emissions of PCDD/F are already regulated in the EU[12]. Due to the possible additional administrative burden of the listing of PeCB in Annex C for Parties and the possible low added value of such a listing, some Parties could be opposed to add the substances in Annex C.

CONCLUSION

In view of the above, at the COP-4 of the Stockholm Convention on 4 – 8 May 2009, the Community should support the adoption of the amendments to the Annexes A, B and/or C to that Convention as proposed in the Council Decision.

Proposal for a

COUNCIL DECISION

establishing the position to be adopted on behalf of the European Community with regard to proposals for amending Annexes A, B and C of the Stockholm Convention at the fourth meeting of the Conference of Parties on 4 – 8 May 2009

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175 (1), in conjunction with the second subparagraph of Article 300 (2), thereof,

Having regard to the proposal from the Commission[13],

Whereas:

1. The promotion of measures at international level to deal with global environmental problems is one of the objectives of the Community's policy on the environment, in accordance with Article 174 of the Treaty.

2. The Community ratified on 16 November 2004 the Stockholm Convention on Persistent Organic Pollutants (hereafter called the Convention) based on the 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[14].

3. The Community has implemented the obligations from the Convention in Community law by way of 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[15] (hereafter called the POPs Regulation).

4. The Community places strong emphasis on the need for the Convention to gradually expand its Annexes A, B and/or C with new substances which meet the criteria of being POP substances, taking into account the precautionary principle, with a view to meeting the objective of the Convention and the commitment of all governments made at the Johannesburg Summit in 2002 to minimise the adverse effects of chemicals by 2020.

5. In accordance with Article 22 of the Convention, amendments to Annexes A, B and C of the Convention are adopted by decision of the Conference of the Parties and enter into force one year from the date of communication by the depositary of an amendment, save for those parties that have opted out.

6. Following nominations of substances received from the European Community and its Member States[16], Norway[17] and Mexico[18], the Persistent Organic Pollutants Review Committee established under the Convention has concluded its work on nine proposed substances which have been found to meet the criteria of the Convention. The forthcoming Conference of Parties to the Convention is expected to decide on the inclusion of these substances into the Annexes of the Convention.

7. All nine substances are already subject to Community legislation and five of them (Alpha hexachlorocyclohexane, Beta hexachlorocyclohexane, Chlordecone, Hexabromobiphenyl and Lindane) are subject to a complete production and use ban as they are included in Annex I, Part B of the POPs Regulation since they were listed in Annex I and/or II of the POPs Protocol.

8. Putting on the market and use of PFOS[19], pentabromodiphenyl ether and octabromodiphenyl ether[20] have been restricted in the Community through amendments to the Directive 76/769[21]. Pentachlorobenzene is a priority hazardous substance under the Water Framework Directive (2000/60/EC)[22].

9. The amendments to the Annexes A, B and/or C of the Convention by adding the nine new substances 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 normal committee procedures established in Articles 5 and 7 of Decision 1999/468/EC, having regard to the provisions of Article 8 thereof.

10. At the fourth Conference of Parties to the Stockholm Convention, the Community and the Member States should cooperate closely to ensure that any amendments to the Annexes are compatible with Community law and/or policies,

HAS DECIDED AS FOLLOWS:

Sole Article

At the fourth meeting of the Conference of the Parties to the Stockholm Convention on POPs, the Commission shall present the following position of the Community on the proposals for adding substances to Annexes A, B and/or C to that Convention:

(1) To list in Annex A of the Convention without use and production exemptions:

- 2,2',4,4'- tetrabromodiphenyl ether (BDE-47, CAS No. 40088-47-9) and 2,2',4,4',5-pentabromodiphenyl ether (BDE-99, CAS No. 32534-81-9) and other tetra- and pentabromodiphenyl ethers present in commercial pentabromodiphenyl ether

- 2,2',4,4',5,5'-hexabromodiphenyl ether (BDE-153, CAS No. 68631-49-2), 2,2',4,4',5,6'- hexabromodiphenyl ether (BDE-154, CAS No. 207122-15-4), 2,2',3,3',4,5',6-heptabromodiphenyl ether (BDE-175, CAS No. 446255-22-7) and 2,2',3,4,4',5',6-heptabromodiphenyl ether (BDE-183 CAS No. 207122-16-5) and other hexa- and heptabromodiphenyl ethers present in commercial octabromodiphenyl ether

- Chlordecone

- Hexabromobiphenyl

- Alpha hexachlorocyclohexane

- Beta hexachlorocyclohexane

- Lindane

(2) To list in Annex A of the Convention and specifying the related control measures of following chemicals:

- Perfluorooctane sulfonic acid (CAS No. 1763-23-1), its salts and perfluorooctane sulfonyl fluoride (CAS No. 307-35-7) with the following use exemptions:

- photoresists or anti reflective coatings for photolithography processes;

- photographic coatings applied to films, papers, or printing plates;

- mist suppressants for non-decorative hard chromium (VI) plating and wetting agents for use in controlled electroplating systems;

- hydraulic fluids for aviation;

- fire-fighting foams, placed on the market before the ban, can be used until two years after the entry into force of the Decision under the Convention.

(3) To list in Annex A and C of the Convention without use and production exemptions:

- Pentachlorobenzene

Done at Brussels, […]

For the Council

The President

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

[2] Three EU Member States have not yet ratified (Ireland, Italy and Malta)

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

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

[5] OJ. L 136, 25.5.2007, p. 3

[6] OJ L 262, 27.9.1976, p 201

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

[8] OJ L177, 6.7.2002, p. 21; Directive 2003/11/EC of the European Parliament and of the Council of 6 February 2003 amending for the 24th time Council Directive 76/769/EEC relating to restrictions on the marketing and use of certain dangerous substances and preparations (pentabromodiphenyl ether, octabromodiphenyl ether).

[9] On 1 December 2008, 162 parties were registered.

[10] OJ L 372, 27.12.2006, p. 32; and Directive 2006/122/EC of the European Parliament and of the Council of 12 December 2006 amending for the 30th time Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (perfluorooctane sulfonates)

[11] OJ L 327, 22.12.2000, p. 1.; Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy

[12] OJ L 332, 28.12.2000, p 91; Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste

[13] OJ C […], […], p. […].

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

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

[16] Chlordecone, hexabromobiphenyl, nominated on 5 May 2005, see

http://www.pops.int/documents/meetings/poprc/chem_review/Chlordecone/Chlordecone_Letter.pdf. PFOS nominated on 14 June 2005, see

http://www.pops.int/documents/meetings/poprc/chem_review/PFOS/PFOS_Letter.pdf. Octabromodiphenyl ether, Pentachlorobenzene (and SCCP, not on the agenda for COP-4) nominated on 29 June 2006, see

http://www.pops.int/documents/meetings/poprc/chem_review/OctaBDE/OctaBDE_Letter.pdf

[17] Pentabromodiphenyl ether, nominated on 28 January 2005, see

http://www.pops.int/documents/meetings/poprc/chem_review/PentaBDE/PentaBDE_Letter.pdf

[18] Lindane, nominated on 29 June 2005, see

http://www.pops.int/documents/meetings/poprc/chem_review/Lindane/Lindane_Letter_e.pdf

Alpha and Beta hexachlorohexane, nominated on 25 July 2006, see

http://www.pops.int/documents/meetings/poprc/chem_review/AlphaHCH/AlphaHCH_Letter_e.PDF

[19] OJ L 372, 27.12.2006, p. 32; and Directive 2006/122/EC of the European Parliament and of the Council of 12 December 2006 amending for the 30th time Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (perfluorooctane sulfonates)

[20] OJ L177, 6.7.2002, p. 21; Directive 2003/11/EC of the European Parliament and of the Council of 6 February 2003 amending for the 24th time Council Directive 76/769/EEC relating to restrictions on the marketing and use of certain dangerous substances and preparations (pentabromodiphenyl ether, octabromodiphenyl ether).

[21] OJ L 262, 27.9.1976, p. 201; Council Directive of 27 July 1976 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations

[22] OJ L 327, 22.12.2000, p. 1; Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy