TL: OZONE CRIMINALS SO: Greenpeace UK (GP) DT: November 1992 Keywords: greenpeace ozone illegal legal cfcs uk europe legislation regulations liability consumers atmosphere gp / Legal advice to Greenpeace concerning the Environmental Protection Act 1990 and the emission of ozone depleting substances. A report by Greenpeace UK Ltd, Canonbury Villas, London, N1 2PN November 1992 Legal opinion obtained by Greenpeace (see annexe) suggests that millions of small CFC and HCFC users and hundreds of large firms are now open to prosecution for the damage they do to the ozone layer. This is because virtually any release of ozone depleting chemicals constitutes an offence under the 1990 Environmental Protection Act. Such offences carry a maximum penalty of an unlimited fine and up to five years in jail. Refrigeration, air conditioning, foam blowing and solvent use of ozone destroying gases all involve routine emission into the air: Greenpeace's advice is that these releases qualify as 'waste disposal' under the Act, and are therefore illegal. According to a report commissioned from March Consulting by the Department of the Environment (DOE) (1), the refrigeration sector alone involves 'millions' of small users (such as corner shops and pubs). The consultants put the number of pubs with CFC chilling, refrigeration or air conditioning systems at 120,000 containing 8% of the UK CFC 'bank' for such uses, while it estimates there are 75,000 large retail users holding almost one quarter of all the CFCs (24%) of which 650 'super stores' (over 25,000 sq feet) bank 2,100 tonnes. According to the same report 72% of the CFC used in such applications is a result of refilling due to mainly routine leakages ('servicing' demand). Release of this 'waste' is, as Greenpeace are advised, an offence under Section 33 of the Act. The 150 large firms (such as supermarkets and drink manufacturers) holding 75% of the CFC 'banked' in such systems, may be particularly liable to legal action. However the Government seems to be sitting on its hands, and has even invited environment groups (2) to 'test the law' by bringing private actions. Although both the DOE and the Department of Trade and Industry have issued statements about the scope of Act, they have failed to back this up with clear instructions to business or industrial users, and show no sign of actually enforcing the law. The 'Government Estate' itself is responsible for 6% of the total CFC refrigeration bank (1300 tonnes). One result of this is that a powerful legal instrument which could be employed by the Government to deter companies from using or releasing ozone destroying chemicals, lies neglected. Another is that there is considerable confusion in industry about the legal implications. For example, Sainsbury's, Britain's leading food retailer, recently told Greenpeace (3) that routine losses of ozone destroying chemicals (as opposed to major leaks or deliberate disposal) were not an offence under the Act unless the chemical was released 'knowingly'. This would be a weak defence as refrigeration and air conditioning equipment is known to leak routinely but in any case this qualification applies only to Section 33 (1) (a) and (b), which is not yet in force, and not to Section 33 (1) (c) which is the applicable part of the law and which is in force. In a letter (4) to Environment Minister David Maclean, Greenpeace has now called for 'immediate action to use your legal powers to put a stop to this pollution by prosecuting polluters who destroy the ozone layer'. What the DTI Says (5): 'In most cases when ozone depleting substances are discarded or removed from equipment in the course of maintenance they become controlled waste. SECTION 33 OF THE ENVIRONMENTAL PROTECTION ACT STATES THAT IT IS ILLEGAL TO 'TREAT, KEEP OR DISPOSE OF CONTROLLED WASTE IN A MANNER LIKELY TO CAUSE POLLUTION TO THE ENVIRONMENT OR HARM TO HUMAN HEALTH. You should therefore take great care to avoid accidental discharge of controlled wastes and ensure all who handle them are aware of the regulations'. What the DOE Says (6): The Second Anniversary Report on the Environment White Paper states that: 'Under the provisions of the Environmental Protection Act 1990 ozone depleting substances become controlled waste in most cases when they are removed from equipment or on disposal of equipment which contains them. Section 33 of the Act makes it illegal to release controlled waste in a manner likely to cause pollution of the environment, or harm to human health'. What March Consulting Say (7): Government consultants on refrigeration and air conditioning industries state that: '...under section 3.3 and 3.4 of the Environmental Protection Act 1990, it is illegal to vent such refrigerants to the atmosphere' (P.1.5) The Government have not taken any action against any offenders so far, and Greenpeace is clarifying the matter with the Waste Management Division of the DOE. However, at a recent Government meeting on the use of CFCs in the refrigeration and air conditioning industry, the DOE invited Greenpeace to test the law by taking out a prosecution. The Refrigeration and Air Conditioning Sector accounts for 35% of all UK use of CFCs, a rise of 10% since 1986, and is of prime concern. Research commissioned by the DOE (the March Report) reveals that refrigeration systems are responsible for a significant amount of leakages of CFCs - the rate of leakage is 20% a year of the bank (ie the amount of CFCs contained within a system). This rate is described as 'very common'. CFC demand in this sector has dropped marginally from 6,800 tonnes in 1986 to 5,750 tonnes in 1991, and an extraordinary 72% of this (4,140 tonnes) is for leakages. UK usage for this sector of CFCs and HCFCs has actually increased from 8,600 tonnes in 1986 to 10,500 tonnes in 1991. Greenpeace believes that these losses are by definition waste and therefore illegal. A relatively small number (150) of very large companies own a significant (75%) proportion of the bank - supermarkets, food/drink manufacturers, chemical manufacturers and multi-site building owners, government bodies such as the Ministry of Defence and the National Health Service. The main areas of concern include: Air conditioning in the City of London Supermarkets, particularly super stores Government establishments Meat processing Cocoa, chocolate and sugar confectionary Pharmaceutical products Pubs and clubs Large Hotels In conducting its research, March Consulting contacted a large number of retail, commercial and industrial concerns. It is from these enquiries that March was able to help construct the tables detailed below. It seems almost certain that many of these companies may be committing an offence under the 1990 Act. The companies contacted by March were: Albright & Wilson Associated Cold Stores BBC Blue Star Ship Management Bowyers ASDA Bass Birds Eye Walls Boots Co BP Chemicals British Aerospace Cadbury Christian Salvesen Food Services Ciba-Geigy Esso Petroleum Express Dairy Frigoscandia Geest Glaxo GPT Grampion Health Board Halifax Building Society Iceland Frozen Foods ICI John Menzies UK Lin-Pac Mouldings Marathon Oil Marstons Mattesons Walls National Westminster N W Health Authority PSA Northern Foods Sainsburys St Ivel Sheffield Health Authority Shell Expro Sketchleys Smith Kline Beecham Tesco Store Threshers Tioxide Unilever Van de Burgh and Jurgens Whitbread Willam Low March also broke down use by sector (8), as follows: UK CFC BANK - 1992 (after March Consulting 1992) (Omitted .. unscannable) March Consulting notes that: 'The relative quantities of CFC banked in different sectors give a useful indication of the scale of the CFC phase out problem for different end users' but warns that whereas 'Large food retail has a bank that is approximately 10 times bigger than small retail... In small retail it is estimated there are 1 million separate refrigeration systems, containing an average of 0.5 kg of refrigerant each. In the large retail sector it is estimated there are only 75000 separate systems, each containing an average of 50 kg of refrigerant. Hence the large food retail CFC bank is 10 times the size of small retail, but it has less than one tenth of the number of systems.' The food and drink sectors use of CFC in refrigeration and similar uses breaks down as follows: UK FOOD AND DRINK INDUSTRIES - 1991 Sub-Sector No. of Total CFC Industrial Refrigerant Banked (tonnes) Sites Food: Dairy Products 260 200 Ice Cream 37 50 Meat Processing 295 350 Poultry Processing 105 80 Fish Processing 152 100 Abattoirs 168 100 Fruit & Vegetables Processing 120 200 Cocoa, Chocolate & Sugar Confectionery 124 300 Bread & Flour Confectionery & Biscuits 712 150 Vegetable and Animal Oils and Fats 15 40 Miscellaneous Foods 250 100 Cold Storage and Distribution 300 200 Drink: Breweries 139 400 Soft Drinks 125 50 ----- ----- TOTAL 2803 2320 The 'large retail food outlets' cited by March are given in the table below. Greenpeace has been repeatedly pressing Sainsburys, which is committed to using HCFCs, to use totally ozone-benign systems. The same problem of leakage arises with HCFCs as with CFCs. UK LARGE FOOD RETAIL OUTLETS - 1991 Sub No. of Total CFC Category Stores Refrigerant Banked Supermarkets: over 25,000 sq ft floor area 650 2100 10,000 sq ft to 25,000 sq ft 1100 1100 floor area below 10,000 sq ft floor area 3750 1500 Cash and Carry Warehouses 600 300 ---- ---- TOTAL 6100 5000 March notes that 'increasing demand for refrigeration systems in this sector ... has been a major factor in the overall growth in the demand for refrigerant in the UK, since 1986'. March also notes that 'Pubs form an important part' of CFC use 'because there are a large number of them and they each use a significant amount of refrigeration' (mainly for chilling food and beer). The pub, hotel and food catering sector use of CFCs, reflected in the 'bank' is as follows: UK PUBS HOTELS AND CATERING - 1991 Sub No. of Retail Total Amount of Category Outlets Refrigerant Banked (tonnes) Pubs & Clubs 120,000 600 Large Hotels 12,000 550 Small Hotels 47,000 250 Restaurants 16,000 100 Fast food/cafes 35,000 100 Company canteens 24,000 100 ------- ---- TOTAL 254,000 1700 According to March, it is the industrial sector which 'has the largest and most varied' use of refrigeration. It notes 'Industrial usage is dominated by food/drink manufacturing and chemical manufacturing (including petrochemicals and pharmaceuticals).' In the 'Government Estate' March notes that 'The major user is Central Government for offices and computer suites, as well as the Ministry of Defence. Defence applications cover air conditioning on military vehicles and refrigeration and air conditioning for the Navy.' It also states that: 'In health all general hospitals have some air conditioning, eg. operating theatres and some city centre hospitals have air conditioned wards.' THE PUBLIC ESTATE - 1991 Category Refrigerant Bank tonnes Central Government /MoD 1000 Local Government 50 Education 100 Health 150 ---- TOTAL 1300 For air conditioning, the outstanding contributor to potential or actual ozone destruction is the City of London, as is shown in the table below: PENETRATION OF AIR CONDITIONING Sector Penetration of Air CFC Refrigerant Conditioning (%) Bank (tonnes) Commercial: City of London 45 1000 Other London 20 500 Other SE 10 200 Provincial Centres 10 300 Other Commercial: Shops 6 100 Hotels 7 100 Public Sector: Offices 10 Health 50 Education 8 Industrial 2 ---- TOTAL 2200 References (1) March Consulting Group, CFCs In The UK Refrigeration And Air Conditioning Industries: Usage And The Scope For Substitution, A Study For The Department of the Environment, October 1992. (March: 0753 869346) (2) DOE civil servants, pers comm to Greenpeace Ozone Campaign at DTI Seminar 'Protecting the Ozone Layer: Safeguarding Your Business', 14 October 1992 (National Motorcycle Museum, Birmingham) (3) Sainsbury's Board and staff meeting with Greenpeace UK, 12 11 92 (4) Letter from Chris Rose, Greenpeace, to David Maclean, Environment Minister, DOE, 13 11 92 (5) Refrigeration and Air Conditioning: Protecting the Ozone Layer and Safeguarding Your Business, leaflet DTI Pub 956/40K/8192 (6) DOE, This Common Inheritance: The Second Year Report Cm 2068 HMSO ANNEXE - LEGAL OPINION OBTAINED BY GREENPEACE FROM MICHAEL SEIFERT, SOLICITOR (49 Elgin Crescent, London, W11 2JD). MICHAEL SEIFERT SOLICITOR 49, ELGIN CRESCENT, LONDON W11 2JD TEL: 071-727 5306 Peter Melchett Executive Director Greenpeace UK Canonbury Villas London Nl 2NP 10 November 1992 Dear Peter RE: DEPLETION OF THE OZONE LAYER I have been asked to look at the Environmental Protection Act 1990 ("EPA") in relation to the remedies which may be available to restrain or punish people whose activities cause depletion of the ozone layer. I have looked at various parts of the Act and various sections, but I have been most attracted to Part II of the Act, dealing with waste, and in particular section 33(1)(c). Section 33(1)(c) and section 33(6) of the EPA - which sections came into force on l April 1992 - make it an offence for any person "to treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment, or harm to human health". The penalties for contravening this sub-section of the EPA are severe namely: a) on summary conviction (ie in a Magistrates' Court) a term of imprisonment not exceeding six months or a fine not exceeding œ20,000 or both: b) on conviction on indictment (ie by a jury) a term of imprisonment not exceeding 5 years or a fine (unlimited) or both. This Section of the EPA appears to extend not only to the person who directly commits the act which contravenes the provisions of the Section, but also to anyone who instructs or knowingly permits the person to do so - such as a foreman, manager or owner of a business. In my opinion, this section of the EPA is one of the most powerful legal weapons in the hands of those seeking to campaign to protect the ozone layer and prevent ozone depletion, and may prove to be the most powerful. These are my reasons for saying this: 1 Dealing with the sub-section phrase by phrase - A) "Waste" is defined (s.75[21]) to include (a) "any substance which constitutes a scrap material or an effluent or other unwanted surplus substance arising from the application of any process" and b) "any substance which requires to be disposed of as being worn out, contaminated or otherwise spoiled. S/75(3) adds a presumption that "waste" includes anything which is discarded or otherwise dealt with as if it were waste. B) "Controlled waste" is defined (s.75[4] and following) as almost every kind of waste - whether generated in households or industrial processes, or on commercial premises - other rather than radioactive waste. C) The phrase "treat, keep or dispose of it is defined (s.29[6]) to cover almost every circumstance in which waste is dispersed or subjected to any process. I believe that the escape of such substances as CFCs is a "disposal". D) "Likely to" means what it says: you don't have to have incontrovertible evidence that it will, but sufficient evidence for a reasonable person to believe that there is a likelihood that it would. E) "Pollution of the environment" is defined (s.29[3]) as the release or escape into land, water or air of substances constituting or resulting from the waste and capable (by reason of the quantity or concentration involved) of causing harm to any living organism supported by the environment. F) "Harm to human health" is defined to mean what it says. 2 One of the strengths of section 33(1)(c) is that it does not require any governmental or statutory authority to define and publish lists of processes or substances which are covered by it. Nor is there scope for people to avoid their duties by negotiating with statutory authorities. 3 The Secretary of State for the Environment is authorised (section 33(3)) to make exceptions by way of regulations: but this puts a different onus on her/him (both legally and politically) from other parts of the EPA where she/he has to include processes etc within the legislation before an offence can be committed. There are certain limited defences listed in section 33(7) which are: a) that all reasonable precautions were taken and due diligence exercised to avoid the of fence being committed. I do not believe that this enables someone to avoid prosecution by pleading that there is no safe process available. In any event we know that in relation to the matters dealt with in detail later in this letter, safe processes are available. I see nothing in the legislation to indicate that BATNEEC principles apply to the deficiencies in this sub-sub section which I believe covers unavoidable accidents within an essentially safe process. b) that someone was acting under orders from an employer and had no reason to suppose that the acts contravened the section. c) that the acts were done in an emergency to avoid a catastrophe. 5 The only exclusion in this section is household waste from a domestic property. 6 I cannot find in this part of the EPA any restriction on the people who can bring a prosecution under section 33. Turning to the specifics of the ozone protection campaign and the assistance it can derive from section 33, I would make the following observations arising from the excellent document prepared on 4 September of this year by Greenpeace, and how it inter-relates with section 33(I)(c) of the EPA. 1. There is clearly very strong evidence that ozone depletion causes serious harm to terrestrial plant and aquatic ecosystems. There is also evidence that it causes harm to human health (see point 3 in Greenpeace memorandum, pages 3-5). This means that anything which is likely to adversely affect the ozone layer is "likely to cause pollution of the environment". 2. There is also unchallenged evidence that ozone depletion is primarily caused by the release into the environment of the following man-made chemicals: CFCs; halons; methylchloroform; carbon-tetrachloride; HCFCs. 3. A person who "treats, keeps or disposes of" "waste" which consists of or includes any of the foregoing substances, in a manner likely to result in their release into the air (or land, or water) is committing an offence under section 33(1)(c) and can be prosecuted for so doing. 4. Thus, in looking at any process which results in the release of these chemicals into the environment, one has to look at two factors in order to determine whether an offence has been committed: a) Did the chemicals constitute "waste" (as defined in EPA)? b) Did the person concerned "treat, keep or dispose of" the waste (again as defined in the EPA)? 5 By applying these principles to specific processes, we can test how powerful this section of the EPA is. A. Solvents. The problem: CFC 113 and Methylchloroform are used as cleaning agents mainly in the general engineering, precision engineering and electronics industries. The waste generated by the cleaning process is not infrequently disposed of by allowing 100% evaporation, and occasionally disposed of by pouring down the drain. ii) Is an offence committed? a) is the by-product of the application of the solvent "waste"? It clearly comes within the compass of section 75(2) and (3). (See para. 1A) above). b) Did the person "keep, treat or dispose of" the waste? Clearly allowing the waste to evaporate is a "disposal" as is pouring it down the drain. Thus an offence has prima facie been committed and a prosecution can be seriously contemplated. The statutory defences are not open to the defendant in this case since we know that reasonable precautions would involve engaging a waste disposal company - as other users of solvents do and once alerted to the dangers, a defence of ignorance (S.33(7)9b)) is not available. A prosecution should therefore succeed. B. Foams: i) The problem CFCs and HCFCs are used as blowing agents in plastic foams and in "flexible" foams. They are released into the atmosphere either immediately or during destruction. ii) Has an offence been committed? a) Is the blowing agent waste? Applying the test which we use, any blowing agent which either escapes during the process of blowing, or during the lifetime of the product, or on the destruction of the product is, a "other unwanted surplus substance arising from the application of any process". b) Was the waste "treated, kept or disposed of in these processes"? It would appear that as the blowing agent was surplus to requirements during the production process and while the foams were being used and, without any doubt, when they were disposed of a disposal has taken place. Thus, again, an offence has prima facie been committed and a prosecution should take place. Again, the statutory defences are not open to defendants as the process in itself is a contravention of the section and therefore the defences set out above cannot be invoked by the defendants. C. Refrigeration and Air Conditioning plants i) The problem It is generally accepted that emission of CFCs occurs throughout the life of refrigeration and air conditioning units, i.e. - in manufacture - in use - during service - in disposal The general profile of levels of emissions varies in relation to domestic or commercial or industrial refrigeration or air conditioning, but some emission occurs at each stage for each type of equipment. ii) Has an offence been committed? a) Is the emitted CFC "waste"? Returning to section-s75(2) we remind ourselves that "waste" includes an "unwanted surplus substance arising from the application of any (my underlining) process". We can take the phrase word by word and then look at its meaning as a whole: I "unwanted": When disposing of defunct refrigeration or air conditioning plant, the owner has two choices - either to recover the CFCs for further use or to vent them to the atmosphere. The decision will (in the absence of legislation making it unlawful to vent the CFC) be based on an economic calculation. If it is more expensive to recover the CFC than to vent them, the owner will vent them. Therefore, on economic grounds they are "unwanted". Applying the same principle to manufacture, if enough care and money is spent in preventing emission during manufacture the manufacturer can preserve or recover all the CFCs. However, if the cost of so doing is too high, the manufacturer will allow CFCs to escape because, given the high costs of keeping it, it is unwanted. I see no reason why the same principles should not be applied to refrigeration and air conditioning plant which is 'in use' or 'in service'. In both cases, if enough care and money is applied the emission of CFCs can be kept to a negligible level or possibly prevented altogether. For example, the technology exists to instal valves and seals in commercial refrigeration plant or air conditioners which would reduce or avoid the emission of CFCs. Clearly the owner/operator/servicer of the plant does not want to keep the CFCs because the cost of keeping it (eg more efficient valves and seals etc) is greater than the benefit of keeping it (i.e. the avoidance of the cost of topping it up from time to time). The CFCs which are emitted in these circumstances are, in my opinion, accordingly "unwanted". II "surplus" When disposing of defunct refrigeration or air conditioning plant if the CFC is vented to the atmosphere is both "unwanted" and "surplus" - in that it is not required or needed. In this situation the two words appear to me to be virtually synonymous. In manufacture, use, and servicing, however, the word "surplus" has a distinct meaning. The manufacturer's must use more CFC than is required to fill the apparatus in the process of manufacture because they must calculate the amount which is going to escape during the process. The CFCs which escape during this process are "surplus" to the process of filling the apparatus. The manufacturers must also ensure that the plant contains more CFC than is strictly required to make it function. This is because the manufacturers and users know that while the plant is operating CFCs will escape but the plant must continue to function. It therefore contains "surplus" CFC and this "surplus" escapes into the atmosphere while the plant is in use. A similar conclusion can be reached in relation to servicing - more CFC than is required for the servicing is used because it is known that some will escape. The amount which escapes is "surplus" to requirements. III "substance" s.29(11) defines "substance" as including any natural or artificial gas or vapour. This must include CFCs. THUS - CFCs which escape during the manufacture, use, service or disposal of refrigeration or air conditioning plant are, in my opinion, "unwanted, surplus substances" within the definition of waste in s.75(2). IV "arising from the application of any process" The CFCs which are emitted during the process of manufacture, use, servicing and disposal are unwanted and surplus because of the application of those processes - they become unwanted and surplus as a result of the application of the process. A good analogy, suggested by the Campaign team, is to consider a situation in which the CFC which escaped during the process of (say) using a refrigerator were to turn briefly into a liquid (with the same destructive characteristics as CFC) which leaked onto the floor. If it then evaporated into the atmosphere, the disposal of this waste would be analogous to the disposal by evaporation of a solvent. There could be no doubt that this was an "unwanted surplus substance arising from the application of any process". There is absolutely no difference in principle between the above situation and the emission of CFCs directly to the atmosphere since waste can be a substance in solid, liquid gaseous or vapour form. It should also be borne in mind that s.75(2) makes it clear that "waste" should be taken to bear its natural meaning and that the points made in subsections (a) and (b) are by way of example only. Thus if my interpretation set out above is wrong, this does not close the matter. b) is the emission of CFCs during the manufacture, use, service or disposal of the plant a "disposal"? I believe that it clearly is within the natural use of the word disposal. I have been asked to re-examine the definition of the phrase "pollution of the environment" in s.29(3) of the EPA in relation to refrigeration and air conditioning plant. The indisputable parts of the subsection can be paraphrased as follows: "Pollution of the environment" means causing harm to man or other living organisms due to the release or escape into land, water and air of substances constituting the waste. However, there is a further requirement - namely that the waste must be released or escape from either the land on which the waste was treated, kept or deposited or fixed plant by means of which the waste is treated, kept or disposed of. Land includes the surface of land and any structure set into the surface (s.29 [8]). If one accepts that CFCs are emitted during the various processes set out above constitute "waste" then it appears to me to be the case that such waste is "kept" on land or disposed of by fixed plant during use. It is likely that Section 33(1)c of the EPA(1990) has applicability to many routine releases of ozone depleting substances. In effect, the Act creates a far-reaching instrument for the control of ozone depleters which will require the Secretary of State to prescribe specific 'essential uses'. However, the power to disapply S.33(1)c is limited in the currently proposed Waste Management Licensing Regulations to only those instances where there already exists an adequate control regime. In the context of the EPA this means the regime of Integrated Pollution Control. Yours sincerely Michael Seifert