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Directive 2001/90/EC Adapting to Technical Progress for the 7th Time Annex 1 to the Marketing & Use Directive 76/769/EEC (Creosote)

1.1 This consultation document seeks your views on how the UK proposes to implement Directive 2001/90/EC which adapts to technical progress for the 7^th time Annex I to the Marketing and Use Directive (76/769/EEC).

RESPONSES

CLOSING DATE

OUTCOME

CONFIDENTIALITY

1.5 Your response to this consultation document may be made publicly available in whole or in part at the Department’s discretion. If you do not wish all or part of your response (including your identity) to be made public, you must state in the response which parts you wish us to keep confidential. Where confidentiality is not requested, responses may be made available to any enquirers outside the UK, or published by any means, including on the Internet.

CONSULTEES

1.6 Please tell us if you know of others who would be interested in receiving this consultation. It is also available by request from the sources listed in paragraph 1.2 and on the Department’s website. http://www.dti.gov.uk/ccp/consultations.htm

HELP WITH QUERIES

1.7 If you would like help with queries or further information about this consultation, please contact David Jenkinson on 020 7215 0366.

2.1 Directive 76/769/EEC seeks to protect human health and the environment in the Member States by restricting the use of dangerous substances and preparations listed in Annex 1 of the Directive. Member States are required to take all necessary measures to ensure that the dangerous substances and preparations listed in Annex 1 may only be placed on the market or used, subject to the conditions specified therein.

2.2 Directive 94/60/EC amended for the 14^th time Directive 76/769/EEC to harmonise, amongst other things, the use and marketing of creosote and similar coal tar distillates, as well as preparations containing them, by limiting the content of Benzo-a-pyrene (BaP).

2.3 A recent study by the Fraunhofer Institute of Toxicity and Aerosol Research in Hannover, Germany, has concluded that creosote has a greater potential to cause cancer than previously thought. The study was referred to the EU Scientific Committee on Toxicity, Ecotoxicity and the Environment (CSTEE) who concluded that there is a cancer risk to consumers from creosote with BaP content of less than 0.005% by mass and/or from wood containing such creosote. CSTEE therefore considered that there is a cancer risk to consumers from creosote with BaP levels that are currently permissible under current EU legislation.

2.4 Directive 2001/90/EC, adapting to technical progress for the 7^th time Annex I to Directive 76/769/EEC, places further restrictions on the sale and use of creosote and creosote-treated wood. The Directive not only protects consumers but strengthens the restrictions on the industrial and professional use of creosote-treated wood through a ten-fold reduction in the BaP content , compared to the current EU legislation, and the prohibition for use where there is a risk of frequent skin contact.

2.5 This consultation document is not seeking views on whether the UK should or should not implement the Directive - Member States have a Treaty obligation to implement all agreed Directives. However, the Department is seeking views on the best way of transposing the Directive into national legislation.

The UK implementation of Commission Directive 2001/90/EC (7^th adaptation to technical progress of Annex I to the Marketing and Use Directive 76/769/EEC).

3.1 Directive 76/769/EEC seeks to protect human health and the environment in the Member States by restricting the use of dangerous substances and preparations listed in Annex 1 to that Directive. Member States are required to take all necessary measures to ensure that the dangerous substances and preparations listed in Annex 1 may only be placed on the market or used, subject to the conditions specified therein.

3.2 Directive 94/60/EC amended for the 14^th time Directive 76/769/EEC to harmonise, amongst other things, the use and marketing of creosote and similar coal tar distillates, as well as preparations containing them, by limiting the content of BaP.

3.3 Directive 2001/90/EC, adapting to technical progress for the 7^th time Annex I to Directive 76/769/EEC, places further restrictions on the sale and use of creosote and creosote-treated wood.

3.4 The Annex to Directive 2001/90/EC replaces point 32 of Annex I to Directive 76/769/EEC.

3.5 New point 32.1 of the Annex to Directive 2001/90/EEC prohibits the use of the substances and preparations containing one or more the of the substances listed in new point 32(a) to (i) in the treatment of wood. Furthermore, wood so treated may not be placed on the market.

3.6 New point 32.2 however allows certain derogations to this prohibition, as follows.

New point 32.2(i) of the Annex permits the use of such substances and preparations for wood treatment in industrial installations or by professionals covered by Community legislation on the protection of workers for in situ retreatment, but with the following restrictions:

3.8 Wood Treated in Industrial Installations or by Professionals and complying with new point 32.2(i)

New point 32.2(ii) lists those uses for which such wood, placed on the market for the first time or retreated in situ, are permitted. It must only be used for professional and industrial uses, such as:

3.9 Wood treated with the substances listed in new point 32(a) to (i) before the provisions of Directive 2001/90/EC apply – new point 32.2(iii)

The prohibition in new point 32.1, on placing on the market, does not apply where wood so treated is placed on the second hand market for re-use.

3.9a However, new point 32.3 lists those uses for which wood referred to in new points 32.2(ii) and (iii) may not be used:

3.10 In 1994 Directive 94/60/EC, which restricted the levels of BaP to less than 0.005% by mass, was implemented in Great Britain by HSE (the Health and Safety Executive) via restrictions on the specification of products approved under the Control of Pesticides Regulations 1986.

3.11 New points 32.1 and 32.2(i) of Directive 2001/90/EC will again be implemented by HSE, via these Regulations, by revocation of the following approvals:-

INITIAL REGULATORY IMPACT ASSESSMENT

4.1 Commission Directive 2001/90/EC of 26 October 2001 adapting to technical progress for the seventh time Annex I to Council Directive 76/769/EEC, relating to restrictions on the marketing and use of certain dangerous substances and preparations (creosote).

4.2 Issue: Directive 76/769/EEC seeks to protect human health and the environment in the Member States by restricting the use of dangerous substances and preparations listed in Annex I to that Directive. Member States are required to take all necessary measures to ensure that the dangerous substances and preparations listed in Annex I may only be placed on the market or used subject to the conditions specified therein.

4.3 Directive 94/60/EC amended for the 14^th time Directive 76/769/EEC to harmonise, amongst other things, the use and marketing of creosote and similar coal tar distillates, as well as preparations containing them, by limiting the content of BaP.

4.4 Objective: Directive 2001/90/EC, adapting to technical progress for the 7^th time Annex I to Directive 76/769/EEC, places further restrictions on the sale and use of creosote and creosote-treated wood.

Risk Assessment

4.5 Substances classified as carcinogenic, and preparations of which they are a constituent part, pose a possible health risk to the general public.

4.6 Within the framework for action in the field of public health, the European Parliament and the Council have adopted an action plan to combat cancer. Due to the fact that the use of chemicals by consumers cannot be controlled, safety can only be ensured by prohibiting the use by consumers of substances and preparations which are carcinogenic.

4.7 Option 1: To implement the Directive, which will also be implemented in all Member States, thus establishing uniform rules for this carcinogen.

4.9 Option 1 is the recommended option. Directive 2001/90/EC will produce harmonised rules for the circulation of substances and preparations classified as carcinogenic. It also guarantees a high level of protection of the health and safety of consumers.

4.10 Failure to implement the Directive under Option 2 will result in infraction proceedings being initiated against the United Kingdom - Member States have a Treaty obligation to implement all agreed Directives.

Issues of Equity or Fairness

4.11 It is considered that the proposed measure should impact equally across the whole industry. The overriding factor in this proposal, however, is consumer safety.

Benefits

4.12 Option 1 ensures that consumers are safeguarded from the possible health risks of exposure to this carcinogen. The Directive will be implemented by all Member States, thus applying to all sectors of Industry in the European Union.

4.13 If Option 2 is followed consumers would not be guaranteed the safeguards detailed for Option 1.

Quantifying and Valuing the Benefits

4.14 Until the consultation exercise has been completed, it is not possible to give a monetary value to the two options.

4.15 The Chemical Industry will be affected by this proposal. Consultation with Industry will take place shortly and a breakdown of the compliance costs will be attached to the Full Regulatory Impact Assessment.

4.16 The recurring compliance costs will be broken down for both large and small businesses.

Non-recurring Compliance Costs

4.18 Again, any non-recurring compliance costs will be broken down for both large and small businesses.

Other costs

4.20 If identified, details of these costs will be set out here. For example, any extra costs falling to the Enforcement Authorities will be provided.

Total Compliance Costs

Result of the Consultation

Summary and Recommendation

4.24 A summary of the consultation process will be included, as will the estimates of the costs to Industry, Local Government and Central Government if appropriate.

Enforcement, Sanctions, Monitoring and Review

COMMISSION DIRECTIVE 2001/90/EC of 26 October 2001 adapting to technical progress for the seventh time Annex 1 to Council Directive 76/769/EEC on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations (creosote).

THE CONSULTATION CRITERIA

1. Timing of consultation should be built into the planning process for a policy (including legislation) or service from the start, so that it has the best prospect of improving the proposals concerned, and so that sufficient time is left for it at each stage.

2. It should be clear who is being consulted, about what questions, in what timescale and for what purpose.

3. A consultation document should be as simple and concise as possible. It should include a summary, in two pages at most, of the main questions it seeks views on. It should make it as easy as possible for readers to respond, make contact or complain.

4. Documents should be made widely available, with the fullest use of electronic means (though not to the exclusion of others) and effectively drawn to the attention of all interested groups and individuals.

5. Sufficient time should be allowed for considered responses from all groups with an interest. Twelve weeks should be the standard minimum period for a consultation

6. Responses should be carefully and open-mindedly analysed, and the results made widely available, with an account of the views expressed, and the reasons for decisions finally taken.

7. Departments should monitor and evaluate consultations, designating a consultation co-ordinator who will ensure the lessons are disseminated.

The complete code is available on the Cabinet Office’s web site, address www.cabinet-office.gov.uk/servicefirst/index/consultation.htm.

COMMENTS OR COMPLAINTS

If you wish to comment on the conduct of this consultation or make a complaint about the way this consultation has been conducted, please write to Mr P Martin, DTI Consultation Co-ordinator, Room 725, 1 Victoria Street, London SW1H 0ET or telephone him on 020 7215 6206 or email philip.martin@dti.gsi.gov.uk.

CONTENTS

1. INTRODUCTION

2. SUMMARY