The Commission was due to have tabled the proposal at the Environment Council in March. But the draft was blocked by Commission President Jacques Delors following objections from the French company Elf Atochem, the world's leading producer of HCFCs and a major manufacturer of methyl bromide (ENDS Report 218 pp 35-36 ).
Finally tabled at the June Council, the proposals go further than the controls on the chemicals agreed at global level under the Montreal Protocol last November.
The legal basis of the draft Regulation consists of Articles 130S and 113 of the EC Treaty, thus allowing room for Member States to impose stricter rules. The earlier draft, based on Article 100A, would not have permitted this.
The Regulation provides for a cap on HCFC consumption from 1996 equivalent to 2.5% of CFC consumption in 1989 plus the total consumption of HCFCs in 1989, as in the earlier draft (ENDS Report 217, pp 38-39 ). HCFC consumption must then be cut by 25% of the 1996 level from 1 January 2000, 60% from 2004, 80% from 2008 and 95% from 2012, with a complete phase-out following by the end of 2014.
The proposal would also impose restrictions on specific uses of HCFCs. It contains both a positive list of acceptable uses and a negative list of banned uses. The latter kicks in from January 1995 and includes the use of HCFCs in aerosols, in non-contained solvent uses, as refrigerants in open equipment, as sterilants, and in the production of most flexible or rigid non-insulating foams.
In addition, the Regulation would ban the use of HCFCs in certain types of refrigeration equipment manufactured after the end of 1994. However, there is a degree of confusion as to whether this applies to the use of HCFCs in new equipment for supermarkets. The list refers to public cold stores and warehouses and cooling and freezing within industrial installations. Some observers have taken this to mean that supermarkets, which are normally described as commercial equipment users, are excluded.
This uncertainty has done nothing to allay the fears of the food retail sector, which accounts for a large proportion of refrigerant consumption and is deciding how much dependence to place on HCFCs as a transitional substitute for the CFCs. Many supermarkets have had a policy of employing HCFC-22 in new stores for some years.
Britain's largest supermarket chain, Sainsbury's, announced on the day of the Environment Council that it would not use HCFCs in any of its new stores from November, prompting environmentalists to say that this proved that the Commission's proposals do not go far enough, as users can move out of HCFCs much quicker than originally thought (see pp 9-10 ).
Sainsbury's move conflicts with the arguments of the British Refrigeration Industry Board (RIB), which represents producers, distributors and users of refrigeration equipment. In a briefing document issued in May, the RIB said that a cap of 4% rather than 2.5% on the HCFCs is needed, and urged the Commission to resist the "extreme views" of some Member States. According to the RIB, it would be an "unreasonable and unnecessary burden on industry and the consumer to finance the move from CFCs to HCFCs and on to HFCs, possibly within a 10-year time span."
ICI, a major producer of HCFC-22 at 30,000 tonnes per year, wants the ban on its use in new equipment delayed, saying that the Commission is being over-optimistic in expecting sufficient quantities of HFCs, one of the substitutes for HCFCs, to be available to meet the demand generated by the Regulation.
But ICI has also suggested that as a trade-off the initial cap on HCFC consumption could be lowered, thus ensuring that the overall level of HCFCs in use is minimised.
Even the Commission conceded in an explanatory memorandum accompanying the draft Regulation that it would be possible to reduce the initial consumption cap to at least 2.3%. The Commission says the lower value could be achieved because the foam industry has recently made a rapid technology transition to foams that are not blown with HCFCs. However, it fails to explain why the lower figure was not adopted in its proposal.
The memorandum also notes that some Member States have said they can implement much earlier phase-out dates for HCFCs. Denmark, for example, intends to ban HCFCs by 2002, and Germany, whose refrigerator manufacturers have been leading the move out of HCFCs, wants to phase out
HCFC-22 use by 2000 except in closed-circuit refrigeration systems.
The Regulation's other provisions include a complete phase-out of hydrobromofluorocarbon (HBFC) production by the end of 1995, and reduction of methyl bromide production by 25% of 1991 levels from 1 January 1996. The Commission's position on methyl bromide is thus considerably weaker than in its earlier proposal, when cuts of 20-30% by the middle of this decade were being proposed with larger cuts by the end of the century.
At the Environment Council on 28-29 June, the UK indicated that it was happy with a cap on HCFC consumption of 2.5% and a phaseout date of 2015. Surprisingly, however, it said that it was still considering its position on the date for a 25% reduction in methyl bromide production. Last November, it had argued for a 25% reduction by 2000 during negotiations on the Montreal Protocol.
The French delegation caused no surprises by saying that it opposed any new controls on HCFCs and methyl bromide, and even stated at one point that there are no alternatives to HCFCs. But Italy did surprise everyone by not only agreeing to the tighter HCFC controls proposed in the Regulation but also hinting at possibly going further. Italy also said it was still considering its position on methyl bromide. And while Spain appears to be wavering on accepting the controls proposed for methyl bromide, Greece is still adamantly opposed to them.
The draft Regulation also includes provisions for preventing leaks of ozone depleting substances from equipment and for recovery and recycling of the chemicals after use.
Article 14 provides that three months after the Regulation is brought into force, Member States must ensure that "all precautionary measures should be taken to avoid leakages from commercial and industrial air-conditioning and refrigeration equipment during manufacture, installation, operation and servicing." Drafted in such broad terms, this provision will no doubt give lawyers sleepless nights and could prove impossible to enforce.
They will also be concerned about Article 13, which provides that from the same date Member States must ensure that ozone depleting chemicals are recovered from stationary and mobile commercial and industrial refrigeration equipment and air conditioning, fire protection systems and cleaning machinery. The recovered substances would have to be channelled "as appropriate" to destruction by approved technologies or "for recycling purposes during the servicing and maintenance of equipment as well as prior to equipment dismantling and disposal."
Meanwhile, there is growing unease about the Commission's apparent intention to weaken its department dealing with ozone depletion. Officials who have been responsible for drafting the legislation and monitoring its implementation reached the end of their contracts in June, and there are rumours that the Commission intends to drastically reduce the size of the department as well as drafting in inexperienced replacements. ICI says it is appalled that this should be happening just when the existing controls on ozone depleters are beginning to bite, and the UK Government has also indicated that it is unhappy about the situation.