Regulation (EU) 2022/2400 of the European Parliament and of the Council of 23 November 2022 amending Annexes IV and V to Regulation (EU) 2019/1021 on persistent organic pollutants (Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 192(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee⁽¹⁾,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure⁽²⁾,

Whereas:

1. Regulation (EU) 2019/1021 of the European Parliament and of the Council⁽³⁾ on persistent organic pollutants implements at Union level the commitments set out in the Stockholm Convention on Persistent Organic Pollutants (‘the Convention’) approved on behalf of the Community by Council Decision 2006/507/EC⁽⁴⁾, and in the Protocol to the 1979 Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants, approved on behalf of the Community by Council Decision 2004/259/EC⁽⁵⁾.

2. At the seventh meeting of the Conference of the Parties to the Convention, held from 4 to 15 May 2015, it was agreed to include pentachlorophenol, its salts and esters (‘pentachlorophenol’) in Annex A to the Convention. At the ninth meeting of the Conference of the Parties to the Convention, held from 29 April to 10 May 2019, it was agreed to include dicofol as well as perfluorooctanoic acid (PFOA), its salts and PFOA-related compounds in Annex A to the Convention. At the tenth meeting of the Conference of the Parties to the Convention, held from 6 to 17 June 2022, it was agreed to include perfluorohexane sulfonic acid (PFHxS), its salts and PFHxS-related compounds in Annex A to the Convention. In view of those amendments to the Convention and to ensure that waste containing those substances is managed in accordance with the provisions of the Convention, it is necessary also to amend Annexes IV and V to Regulation (EU) 2019/1021 by including pentachlorophenol, dicofol and PFOA, its salts and PFOA-related compounds, as well as PFHxS, its salts and PFHxS-related compounds in the Annexes and indicating their corresponding concentration limits.

3. Pentachlorophenol had been previously listed in Annexes IV and V to Regulation (EC) No 850/2004 of the European Parliament and of the Council⁽⁶⁾ by Commission Regulation (EU) 2019/636⁽⁷⁾, with an Annex IV value of 100 mg/kg and an Annex V value of 1 000 mg/kg. Regulation (EU) 2019/1021, which repealed Regulation (EC) No 850/2004, unintentionally omitted pentachlorophenol. It is therefore necessary to amend Annexes IV and V to Regulation (EU) 2019/1021 to include pentachlorophenol.

4. Annexes IV and V to Regulation (EU) 2019/1021 already contain concentration limits for the following substances or substance groups: (a) the sum of the concentrations of tetrabromodiphenyl ether, pentabromodiphenyl ether, hexabromodiphenyl ether, heptabromodiphenyl ether and decabromodiphenyl ether (with the exception of the latter, which is not listed in Annex V to that Regulation); (b) Hexabromocyclododecane; (c) Alkanes C10-C13, chloro (short-chain chlorinated paraffins) (SCCPs); and (d) Polychlorinated dibenzo-p-dioxins and dibenzofurans (PCDD/PCDF). Pursuant to Article 15(2) of Regulation (EU) 2019/1021, it is appropriate to amend the concentration limits in Annex IV for those substances to adapt their limit values to scientific and technical progress. In order to be consistent with the list of polybrominated diphenyl ethers (PBDEs) set out in Annex IV to Regulation (EU) 2019/1021, the substance decabromodiphenyl ether should be included among the PBDEs listed in the third column of Annex V to that Regulation.

5. In order to enable Member States to collect data on the actual amount of PCDD/PCDF and of dioxin-like polychlorinated biphenyls (dl-PCBs) in ashes and soot from private households, as well as in fly ashes from biomass units for heat and power production, and to afford Member States sufficient time to take measures necessary to give effect to Regulation (EU) 2019/1021, the amended concentration limit for the sum of PCDD/PCDF and dl-PCBs should, with regard to ashes and soot from private households and for fly ashes from biomass units, apply at a later stage after the entry into force of this Regulation. In order to enable the design of suitable policies for the collection and treatment of those ashes and soot and to support the review referred to in Annex IV and the monitoring of implementation pursuant to Article 13 of Regulation (EU) 2019/1021, Members States should collect information on the presence of PCDD/PCDF and dl-PCBs in ashes and soot from private households and fly ashes from biomass units for heat and power production. That information should be made available no later than 1 July 2026.

6. As regards PBDEs listed in Regulation (EU) 2019/1021, the concentration limit for the sum of those substances in waste should be set at 500 mg/kg. Taking due account of the declining concentrations of PBDEs in certain waste, resulting from existing limitations on the placing on the market and use of PBDEs, and in light of the possible evolution of relevant sorting and analytical methods, the limit value should be lowered to 350 mg/kg 3 years after the entry into force of this Regulation and 200 mg/kg 5 years after its entry into force.

7. Considering that a subgroup of 12 PCB congeners, namely PCB-77, PCB-81, PCB-105, PCB-114, PCB-118, PCB-123, PCB-126, PCB-156, PCB-157, PCB-167, PCB-169 and PCB 189, known as dl-PCBs, have toxicological properties that closely resemble those of PCDD/PCDF, and in order to take into account the aggregated effect of all dioxin-like compounds listed in Regulation (EU) 2019/1021, it is appropriate to include dl-PCBs within the existing group entry for PCDD/PCDF in Annexes IV and V to Regulation (EU) 2019/1021. The list of toxic equivalency factor values in Part 2 of Annex V to that Regulation should also be amended to introduce the corresponding values for the individual dl-PCB congeners.

8. The proposed concentration limits in Annexes IV and V to Regulation (EU) 2019/1021 have been set applying the same methodology used to establish the concentration limits in previous amendments of Annexes IV and V to Regulation (EC) No 850/2004. The proposed concentration limits should be underpinned by the precautionary principle as laid down in the Treaty on the Functioning of the European Union and should aim to eliminate, where feasible, the release of persistent organic pollutants into the environment, in order to achieve the objective of a high level of protection of human health and the environment associated with the destruction or irreversible transformation of the substances concerned. Those limits should also take into consideration the broader policy objective of achieving a zero-pollution ambition for a toxic-free environment, increasing recycling, reducing greenhouse gas emissions, developing non-toxic material cycles, and a non-toxic circular economy, enshrined in the communication of the Commission of 11 December 2019 entitled ‘The European Green Deal’.

9. The concentration limits specified in Annexes IV and V to Regulation (EU) 2019/1021 should be coherent and contribute to the implementation of the communication of the Commission of 14 October 2020 entitled ‘Chemicals Strategy for Sustainability – Towards a Toxic-Free Environment’.

10. To ensure better traceability and effective treatment of waste containing persistent organic pollutants, and to avoid inconsistencies in Union law, it is necessary to ensure coherence between the provisions related to waste which contains persistent organic pollutants originally set out in Regulation (EC) No 850/2004, now repealed by Regulation (EU) 2019/1021, and those set out thereafter. The Commission should therefore assess whether it is appropriate that waste which contains any persistent organic pollutants exceeding the concentration limits specified in Annex IV to Regulation (EU) 2019/1021 is to be classified as hazardous, and put forward, if appropriate, a legislative proposal to amend Directive 2008/98/EC of the European Parliament and of the Council⁽⁸⁾ or a proposal to amend Commission Decision 2000/532/EC⁽⁹⁾, or both, accordingly.

11. According to the objectives of the Textile Strategy, set out in the communication of the Commission of 30 March 2022 entitled ‘EU Strategy for Sustainable and Circular Textiles’, textile products placed on the Union market should be to a great extent made of recycled fibres that are free of hazardous substances. To ensure that recycled textiles are free of hazardous chemicals such as PFOA from the onset, it is necessary to strengthen limit values for PFOA, its salts and PFOA-related compounds in waste since their presence could have an impact on the collection and treatment of textile waste. The Commission should therefore review the concentration limit with a view to lowering the value, where such lowering is feasible in accordance with scientific and technical progress.

12. Regulation (EU) 2019/1021 should therefore be amended accordingly.

13. It is appropriate to provide for a sufficient period of time to allow companies and competent authorities to adapt to the new requirements.

14. Since the objective of this Regulation, namely to protect the environment and human health from persistent organic pollutants, cannot be sufficiently achieved by the Member States, owing to the transboundary effects of those pollutants, but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective,

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