Persistent Organic Pollutants (Amendment) (No. 2) Regulations 2023

Lord Benyon Excerpts

Tuesday 14th November 2023 Grand Committee

Moved by

[Lord Benyon]

That the Grand Committee do consider the Persistent Organic Pollutants (Amendment) (No. 2) Regulations 2023.

[The Minister of State, Department for Environment, Food and Rural Affairs (Lord Benyon) (Con)]

My Lords, I beg to move that these regulations, which were laid before the House on 16 October 2023, be approved.

This instrument adds a new substance called perfluorohexane sulfonic acid—PFHxS for short—including its salts and related compounds, to the retained persistent organic pollutants regulation in response to the listing of this substance under the United Nations Stockholm Convention on Persistent Organic Pollutants. The UK is a party to the convention and is therefore obligated to reflect in UK law the listing of POPs under the convention. This legislative change is permitted by use of the powers available within article 15 of the retained EU regulation on POPs. We have worked with the devolved Administrations on this instrument. These regulations are needed to implement the UK’s commitments under the United Nations Stockholm Convention on Persistent Organic Pollutants. POPs are substances recognised as particularly dangerous to the health of humans, wildlife and the environment. This SI preserves and adds to the current regime for managing, restricting or eliminating POPs in the UK.

Let me turn now to the details of the instrument. At the 10th meeting of the conference of the parties last year, PFHxS was added to the list of substances for global elimination under the convention. This decision was communicated to parties and observers by the UN depository in November 2022. The SI adds this new POP to the list of substances prohibited by law from being manufactured, sold and used in Great Britain.

Secondly, the instrument provides some exemptions from the prohibitions by allowing the unintentional presence of PFHxS at trace levels. These limits define the concentrations at which PFHxS can lawfully be found in a substance, article or mixture, where they are unintentionally present and found in minimal amounts. The SI includes two general limits and one that is specific to its presence in firefighting foams.

This instrument was not subject to consultation because, although it represents an update to existing legislation, it implements an international obligation that the UK is required to put into place in law. There were opportunities for UK stakeholders to feed into earlier engagement, both UK and convention led, at various stages before PFHxS was adopted for elimination under the Stockholm convention. The Government have also initiated public calls for information and opportunities to comment on draft evaluation documents for this substance. We received no evidence to suggest that exemptions or derogations were required by industry in Great Britain. Following that previous engagement, a recent Defra-led consultation on other potential amendments to the POPs regulation stated our intention to list PFHxS in annexe 1 of the POPs regulation in order to meet the UK’s obligations under the Stockholm convention.

A de minimis impact assessment was carried out. It concluded that there is no indication that PFHxS chemicals are intentionally produced or used in Great Britain. As such, this SI is not expected to have an impact on businesses, beyond one-off familiarisation costs. It is also not expected to disproportionately burden small businesses.

The Environment Agency is the delivery body for the POPs regulation for England, and Natural Resources Wales and the Scottish Environment Protection Agency are the delivery bodies for Wales and Scotland respectively. They have been involved in the development of this SI and have no concerns in relation to implementation or resources.

The territorial extent and application of this instrument is Great Britain. Under the Windsor Framework, the EU POPs regulation 2019/1021 applies in Northern Ireland. The devolved Administrations in Wales and Scotland were engaged in the development of the SI and have consented to it being made on a GB-wide basis.

In conclusion, I emphasise that the measures in this SI are needed to implement the requirements of the Stockholm convention by adding the new POP PFHxS, its salts and related compounds to the list of substances prohibited by law. The Environmental Improvement Plan for England has made clear our commitment to support and protect the natural environment, wildlife and human health. This includes our commitment to manage and reduce POPs in the environment. The draft regulations will allow the UK to continue to meet commitments relating to POPs and to continue to implement the Stockholm convention requirements to prohibit, eliminate or restrict the production and use of POPs. I hope noble Lords will support these measures and their objectives, and I commend the draft regulations to the House.

[Baroness Sheehan (LD)]

My Lords, I thank the Minister for the information he gave, and I convey the apologies of my noble friend Lady Bakewell, who is unable to be here today—I am standing in her place. The Minister spoke about PFHxS, but I was under the impression that we would be speaking about PFOAs and the extension of the deadline from July 2023 to 2025. I may have got it completely wrong, but that was the brief I was given.

I listened carefully to what the Minister said. These POPs are very toxic substances, with a long lifetime in the environment. It is not for nothing that they are called “forever chemicals”. So I am pleased that the Government have taken this firm line and will make sure that they are banned—and I am pleased that they are not being produced in the UK.

[Lord Tunnicliffe (Lab)]

My Lords, in the absence of my noble friend Lady Hayman of Ullock, it falls to me to thank the Minister for introducing these regulations. The pedant in me needs to point out that we are invited to consider these regulations, not approve them.

The Minister will be relieved to hear that we support the passage of this statutory instrument, which, as he outlined, implements a June 2022 decision on the Stockholm convention, to which the UK is a party, to list PFHxS, its salts and related compounds as prohibited persistent organic pollutants—POPs. The Explanatory Memorandum notes that PFHxS is

“one of the most frequently detected and predominant PFASs in human blood”.

Although not all PFAS chemicals are POPs, it is worth acknowledging the significant threat posed by many PFASs. These forever chemicals degrade incredibly slowly, bringing a risk of large-scale health and environmental effects. From the debate in another place, I understand that more of these chemicals are due to be listed as POPs under the Stockholm convention in the near future. Is the Minister able to provide any timeline for the designation of these additional chemicals? Will the Minister commit to bringing forward further statutory instruments as quickly as possible?

As my colleague, Ruth Jones MP, noted, this instrument represents

“a very good example of common sense alignment with our neighbours”.—[Official Report, Commons, Second Delegated Legislation Committee, 13/11/23; col. 5.]

Close cross-border co-operation on environmental and chemical threats is vital. It is for that reason that we were puzzled by the Government’s decision not to seek an ongoing relationship with the EU’s REACH programme —the system for the recognition, evaluation, authorisation and restriction of chemicals. The replacement UK REACH scheme is still very much in its infancy, with worryingly little information about how it will work in practice. Recent media reports suggest that the department will require less hazard information from chemical companies when they register substances in the UK. Can the Minister confirm whether that is the case and whether an impact assessment will be made available in due course?

While this SI keeps us in step with international partners in relation to POPs, there is a perception that the UK is falling behind on broader chemical regulation. That flies in the face of promises made by a variety of Prime Ministers, Secretaries of State and Ministers. While we support the passage of this instrument, I hope the Minister will accept that the Government have work to do to convince colleagues that the necessary steps are being taken to preserve the health of the population, wildlife and the natural environment.

[Lord Benyon (Con)]

I thank noble Lords for their contributions to this debate. The regulations debated here today ensure that existing legal provisions for the prohibition and restriction of the manufacture, placing on the market and use of POPs will be extended to the new POP substance PFHxS, following its addition to the list of POPs for global elimination under the Stockholm convention. This will contribute to the protection of the current and future health of the population, wildlife and the environment of the United Kingdom and the rest of the world.

I greatly appreciate the remarks made by the noble Lord about co-operation. We are seeking to fulfil our commitments to the Stockholm convention and to make sure that business understands that we are aligning with our closest trading partner, the EU. Of course, this has implications for the Windsor Framework and will ensure that there is a single standard on this chemical across the EU, Great Britain and the United Kingdom.

The noble Lord raised important points about REACH, and I will seek to cover them now. This instrument is about the management of POPs, which sits outside the REACH regime, as he understands. The POPs regime differs from the REACH regime in that there is no requirement on businesses to register POPs chemicals. The 2023-24 UK REACH work programme will be published by the Health and Safety Executive in due course, following approval by the Secretary of State and devolved government Ministers. It is worth noting that this instrument is now, as I said, outside the REACH programme.

We are developing an alternative transitional registration model for UK REACH. The aim is to maintain or improve existing human health and environmental protections in line with our international commitments, as we are doing with this measure, while reducing the cost to businesses transitioning from EU REACH to UK REACH. On Thursday 9 November, we announced the outline for the transitional registration model, including refining what information registrants will need to provide on how their chemicals are used in Great Britain and what that means for exposure for people and the environment. This will ensure that we reduce to the essential minimum hazard information required for transitional registrations for chemicals that were already on the market at EU exit. This will mean that UK REACH registrants will not generally need to access and pay for data packages held by EU industry consortia. It will also ensure that we improve regulators’ powers so they can require and receive data from registrants quickly for regulatory or risk prioritisation purposes, ensuring that we can respond to new and emerging risks. A consultation on the proposals will be published early next year.

This is a very important issue for a number of noble Lords on all sides of the House. I understand the points that the noble Lord made. Defra asked the Environment Agency and the Health and Safety Executive to examine the risks that PFAS posed and to develop a regulatory management options analysis. This makes recommendations for risk management measures for PFAS and was published in April this year.

Ministers accepted the recommendations, which include work under UK REACH to reduce PFAS emissions by developing UK REACH restrictions, beginning with restrictions on PFAS in firefighting foams. Defra is taking forward the recommendation to bring together work on PFAS strategically through development of a cross-government chemicals strategy and the creation of a working group on PFAS. Aspects such as drinking water standards and F-gases review will be considered within this overall policy development and subject to further ministerial engagement. I hope I have convinced the noble Lord that we are taking this matter extremely seriously. Business wants clarity, and we are working hard to achieve that.

As I have outlined, the changes introduced by this instrument will ensure that the UK can continue to implement its obligations under the Stockholm convention, which aims to protect the health of populations, wildlife and the environment from harmful persistent organic pollutants. I commend the draft regulations to the Committee.

Motion agreed.