Majority voting looms on landfills, ozone depleters

The glimmerings of an agreement on the proposed EC Directive on packaging waste were the most positive outcome of the Environment Council on 5 October. Efforts by the European Commission to break the deadlock on its proposed carbon/energy tax nudged the debate along only a fraction. The UK failed in its attempts to block the proposed landfill Directive on subsidiarity grounds, and now faces the possibility of being out-voted.

Reports on the Council's discussions on the packaging Directive and the carbon/energy tax are given in separate articles below.

The October meeting was the last at which legislation could have been adopted only by unanimity. Although a handful of environmental Directives have been subject to agreement by qualified majority vote in the past, the ground rules changed on 1 November, when the entry into force of the Maastricht Treaty cleared the way for Ministers to adopt most environmental legislation by qualified majority vote (ENDS Report 203, pp 22-23). The waters, though not wholly uncharted, are somewhat murky.

Two proposals currently on the table may provide an early test of Ministers' willingness to push legislation through against the wishes of the minority. One of these is the landfill Directive (ENDS Report 195, pp 32-34).

As explained last month, the UK decided to press at the Council for the landfill proposal to be dropped altogether on the grounds of subsidiarity (ENDS Report 224, pp 35-36 ). It received a dusty answer. No other Member State appears to have gone along with the UK, and Belgium's Environment Minister Magda de Galan, the current President of the Council, commented after the meeting that there was virtual unanimity that subsidiarity should not be allowed to paralyse the Council's work.

The implications of that view for the UK go well beyond the landfill Directive, and suggest that it will find itself increasingly isolated in the Community's affairs if it persists in invoking subsidiarity as regularly as it is doing at the moment. The dangers of that position will of course be magnified by the wider availability of qualified majority voting.

There was greater sympathy for the UK's view that the landfill proposal is too prescriptive, and work has since got under way at official level to cull some of the excess detail. The outcome of this work should become clear shortly before the next Environment Council on 2 December.

The UK's other main concern about the Directive is the proposed ban on co-disposal five years after it enters into force. The view of the majority, led by Germany, France and the Netherlands, is that the ban should remain. The UK is holding out for a more flexible approach which would allow Member States to prohibit the practice if they wish but allow others to retain it. However, at present it is believed to have support only from Greece and Eire. This would leave it just short of the backing needed to block the proposal if it was put to the vote.

A minor theme in this debate is whether the proposed ban should apply to the co-disposal of solid or liquid hazardous wastes, or both. As the Directive stands the ban would appear to apply to solids but not liquids - a position which many would regard as perverse.

The prospect of an outright ban on co-disposal has concentrated the minds of the UK waste management industry on this issue. UK Waste, a major player in the market, broke ranks in October by proposing a five-year phase-out of liquid co-disposal. Support for this idea may gather momentum if the UK is unable to find more allies for its overall position on co-disposal.

An unexpected feature of the debate at the Council was whether the Directive should apply to all landfills or only to new sites. Views on this are currently split, with the UK taking a middling position, suggesting that the Directive should apply to new landfills and extensions to existing sites. The implications of this for the proposed ban on co-disposal are not clear at present, but clearly if the ban did not apply to existing sites then it would soften the blow for the UK.

The second item on which qualified majority voting appears to be in prospect deals with ozone depleting substances - and in particular methyl bromide and HCFCs (ENDS Report 217, pp 38-39 ).

Methyl bromide, used principally as a crop and soil fumigant, was recognised as a potent ozone depleter only three years ago. At global level its use is to be frozen at 1991 levels by 1996. The Commission proposed that the EC should go further by reducing consumption by 25% by 1996, but has run into strong opposition from Greece, Spain and Portugal, which rely heavily on the chemical as a pesticide in food storage applications.

A possible compromise emerged at the Environment Council, with France and Spain suggesting that the 25% reduction should take effect in 2000. The UK also backed this line although it had previously been holding out for a 25% cut by 1996. Greece and Portugal would be isolated if the compromise can be made to stick.

There also appears to be a majority in favour of the Commission's proposed phase-out schedule for the HCFCs. These have a lower ozone depletion potential than the CFCs and have been pushed as transitional substitutes for them in some applications, notably refrigeration.

Agreement on the phase-out schedule, which would see HCFCs banned by 2015, has been held up mainly by France, which is protecting major investments in new HCFC capacity by the state-owned chemical company Elf Atochem. Spain is also holding out for a longer phase-out programme. At the opposite end of the spectrum is Denmark, which has drafted domestic regulations to ban HCFCs from 2002.

For the Regulation as a whole to be pushed through by qualified majority vote either Spain or France would have to withdraw their objections, and both appear to be fairly well dug in at the moment. There are also other details of the proposal to be agreed, so the chances of the Regulation being adopted in December do not seem bright.

Another item on the October agenda was a Commission proposal to delay the entry into force of the 1991 "framework" Directive on hazardous waste. As explained last month, the problem here is that the Commission has failed to draw up a common Community list of hazardous waste - and without this the Directive cannot be effectively implemented (ENDS Report 224, p 36 ).

Ministers agreed that the implementation deadline should be pushed forward by 12 months to December 1994. In the meantime, the Commission will renew its efforts to draw up the EC list by next June.

One large obstacle stands in the way. This is the lack of agreement on how ambitious the list should be. The Commission's original intention was to make it exhaustive and binding, and this is still supported by some Member States, notably Germany. However, the Commission now believes the goal it was originally set - to draw up a definitive list of hazardous wastes based on the characteristics of different materials which would cater for all circumstances and be legally binding - is quite impracticable.

During and after the Council, the debate has centred on whether the list should be exhaustive and binding, or non-exhaustive but binding, or even non-exhaustive and non-binding. The Commission also wants to switch the basis of the list from waste characteristics to their origin and composition and, in some cases, the concentrations of particular constituents. Further work on these ideas is to be carried out by officials before the December Council.

The only item of legislation which came close to adoption at the Council was a Directive on trade in dangerous chemicals. Political agreement was readily reached on the proposal, which will place a further 15 substances and groups of chemicals on the EC list of "banned or severely restricted" chemicals. Exports of these materials to third countries will in future be subject to a "prior informed consent" procedure (ENDS Report 219, p 41 ).

The Belgian Presidency also resuscitated a draft Directive on polychlorinated biphenyls and terphenyls (PCB/Ts) which has been dormant since 1991. In essence this would require Member States to draw up an inventory of equipment in which PCB/Ts are still in use and to take various measures to ensure their safe destruction. A new obligation added by the Belgians would give effect to a 1990 agreement among North Sea countries across the EC by requiring Member States progressively to reduce the use of PCBs and destroy them by 1 January 2000.

The proposal was discussed briefly by Ministers, and it is believed that most of the non-North Sea states expressed reluctance to sign up to the proposed PCB phase-out date, primarily because they lack high-temperature incineration capacity.

After the meeting, Mr Yeo reaffirmed that the UK remains committed to the 1999 phase-out date agreed by North Sea Ministers. A phase-out plan is being drawn up by the Department of the Environment. But it would be no surprise if the UK was to oppose the EC proposal for a national inventory of PCB equipment on the grounds of cost, practicality and need.

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