Persistent Organic Pollutants (POPs)
POPs are known for persisting in the environment, bioaccumulating in the food web, and posing a risk to human health and the environment. They are easily transported long distances and have, inter alia, been found in significant concentrations in Arctic ecosystems. On the international level POPs are regulated by the 1998 Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants,[1] [2] which now focuses on twenty-three substances with the ultimate objective of eliminating any discharges, emissions and losses of POPs, and by the 2001 Stockholm Convention on Persistent Organic Pollutants, which prohibits or severely restricts the production and use of a number of intentionally produced POPs and also restricts export and import. It also provides for the safe handling of stockpiles/1 The Protocol also obliges Parties to reduce their emissions of certain POPs below their 1990 levels. The EU is party to both instruments and implements them through Regulation No 850/2004 on persistent organic pollutants/2
The substance of the Regulation, which is based on an article corresponding to the current Article 192(1) TFEU, is closely linked to the two international instruments. Its objective is, somewhat simplified, to protect human health and the environment from POPs by prohibiting, phasing out as soon as possible, or restricting the production, placing on the market, and use of substances subject to the Convention or the Protocol, and by minimising or eliminating releases of such substances, and by establishing provisions regarding waste containing any of these substances. The precautionary principle shall be taken into account. (Art 1.)
The production, placing on the market, and use of the substances listed in Annex I, including PFOS, polychlorinated naphthalenes, and short-chain chlorinated paraffins, shall be prohibited, whereas any POPs listed in Annex II shall be restricted in accordance with that Annex. Exemptions apply with respect to substances used for laboratory-scale research or as a reference standard, substances occurring as an unintentional trace contaminant, and those occurring as a constituent of articles already in use before May 2004.
72 [2004] OJ L 158/7.
Member States and the Commission are also required, under the relevant EU legislation, to take appropriate measures to control existing chemicals and pesticides and prevent the production, placing on the market, and use of new chemicals and pesticides which exhibit characteristics of POPs. (Arts 3 and 4.)
Member States must draw up and maintain release inventories for the substances listed in Annex III (including PCB and PAHs) into air, water, and land in accordance with their obligations under the Convention and the Protocol.
From the Convention follows an obligation to establish action plans. Those plans must be communicated to the Commission and the other Member States. They shall include measures to promote the development and, where appropriate, shall require the use of substitute or modified materials, products, and processes to prevent the formation and release of the substances listed in Annex III. The Convention further requires the drawing up of implementation plans. When doing so the Member States must give the public early and effective opportunities to participate in the process. The Commission shall also adopt a Community implementation plan. (Arts 6 and 8.)
Producers and holders of waste shall undertake all reasonable efforts to avoid, where feasible, contamination of this waste with substances listed in Annex IV.
Waste consisting of, containing, or contaminated by any such substance shall be disposed of or recovered, without undue delay and in accordance with Annex V, Part 1, in such a way as to ensure that the POPs content is destroyed or irreversibly transformed so that the remaining waste and releases do not exhibit the characteristics of POPs. Exemptions can be made, for example when the content of the listed substances in the waste is below certain concentration limits. Disposal or recovery operations that may lead to recovery, recycling, reclamation, or re-use of Annex IV substances are prohibited. (Art 7.)
The Regulation also provides for monitoring, information exchange, and technical and financial assistance to developing countries. There are also rather extensive reporting requirements. (Arts 9—12.)
Further Reading
L Bergkamp (ed) The European Union REACH Regulation for Chemicals: Law and Practice (Oxford University Press, 2013)
F Fleurke and H Somsen ‘Precautionary Regulation of Chemical Risk: How REACH Confronts the Regulatory Challenges of Scale, Uncertainty, Complexity and Innovation’ (2011) 48 Common Market Law Review 357—94 H Foth and AW Hayes ‘Background of REACH in EU Regulations on Evaluation of Chemicals’ (2008) 27 Human & Experimental Toxicology 443—61 C Klika ‘Risk and the Precautionary Principle in the Implementation of REACH’ (2015) 6 European Journal of Risk Regulation 111—20
J Scott ‘REACH: Combining Harmonization and Dynamism in the Regulation ofChemicals’ in J Scott (ed) Environmental Protection: European Law and Governance (OUP, 2009) 57 E Stokes and S Vaughan ‘Great Expectations: Reviewing 50 Years of Chemicals Legislation in the EU’ (2013) 25 Journal of Environmental Law 411—35
