Consultation outcome

Summary of responses and government response (English)

Updated 6 March 2024

Introduction

This document summarises the responses that the Department for Environment, Food and Rural Affairs (Defra) received for its consultation on potential amendments to the Environmental Protection (Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) Regulations 2000 (SI 2000/1043), as amended by the Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) (Amendment) Regulations 2020 (SI 2020/489), (‘the PCBs Regulations’).

The consultation exercise ran for 6 weeks before closing on 30 June 2023.

There were 18 questions in the consultation document. 8 of these were background questions about the respondents, providing important contextual information. This summary is a high-level overview of the main messages from the consultation responses, reflecting the views offered. It also provides a UK government response to these messages.

As the PCBs Regulations have territorial application in England and Wales only, the amendments and proposals detailed within the consultation were intended to be applied to England and Wales only. The Welsh Government was involved in the preparation of both the draft Regulations and the consultation. The consultation was carried out on a joint basis by the UK and Welsh Governments. We are grateful to everyone who took the time and effort to respond.

Background to the consultation

This consultation sought views on proposed changes to the PCBs Regulations.

The United Kingdom (UK) is a Party to the Stockholm Convention, a global treaty which lists chemical substances known as Persistent Organic Pollutants (POPs), one of which is a group of chemicals called polychlorinated biphenyls (PCBs). The Stockholm Convention aims to protect human health and the environment by prohibiting, eliminating or restricting the global production and use of POPs. PCBs belong to a broad family of man-made organic chemical compounds, with a range of toxicities that can cause serious health effects in humans and animals. The use of PCBs has been regulated in the UK since the early 1980s. However, some PCBs still exist in use in the UK, predominantly within high voltage equipment in our national energy infrastructure. 

In the UK, the assimilated Regulation (EU) 2019/1021, as amended (the ‘POPs Regulation’) regulates the production, placing on the market, and use of POPs which are banned or restricted under the Stockholm Convention. The PCBs Regulations, which relate to the control of PCBs in England and Wales, were introduced in 2000, pre-dating the Stockholm Convention (adopted in 2001) and the EU POPs Regulation (initially 2004, and subsequently recast in 2019). They specifically regulate the use and management of PCBs, further to the general regulation of PCBs and other POPs as detailed within the POPs Regulation.

In line with international obligations under the Stockholm Convention, the EU POPs Regulation was recast in 2019 with amendments including new requirements for the use and management of PCBs such as the identification and removal from use of certain equipment containing PCBs as soon as possible and no later than 31 December 2025. As a result, amendments were made to the PCBs Regulations through the Environmental Protection (Disposal of Polychlorinated Biphenyls and other Dangerous Substances) (England and Wales) (Amendment) Regulations 2020 (‘the 2020 PCBs Regulations’) in order to reflect the recast EU POPs Regulation which became the POPs Regulation in the UK following the exit of the UK from the EU.

Following the 2020 PCBs Regulations coming into force in July 2020, Defra was made aware through stakeholder engagement of a need for some further clarity in the references to volumes of PCBs in some of the individual provisions, and especially for the requirement to remove certain pieces of equipment containing PCBs from use by 31 December 2025.

Purpose of the consultation

The purpose of the consultation was to seek stakeholders’ views on a draft statutory instrument proposed to amend the PCBs Regulations using powers in Section 2 of the Pollution Prevention and Control Act 1999.

The proposals in the consultation sought to provide additional clarity to reflect the original policy intent of 4 individual provisions in the existing PCBs Regulations. The proposals did not contain any new policy positions.

Confirmation was sought from stakeholders that the proposals would clarify the requirements in 4 provisions relating to PCB-containing equipment as follows:

• the removal of some pieces of equipment by the end of 2025
• which pieces of equipment can be held until the end of their useful life
• one of the criteria for the decontamination of equipment
• one of the criteria for labelling decontaminated equipment

Consultation process

The consultation ran for 6 weeks from 19 May to 30 June 2023 on Defra’s online Citizen Space website. The website was accessible from links from the UK government website and the Welsh Government website. Welsh language versions of the consultation documents were available on the Citizen Space website.

To increase awareness of the consultation, especially among our target audience, we publicised the consultation by communications to the UK Chemicals Stakeholder Forum (UKCSF), the Chemicals Policy and Communications Forum (CPCF), and other groups of potentially interested stakeholders.

Where it was not possible for respondents to reply using the Citizen Space website, alternative options were provided enabling respondents to submit responses by email to a Defra mailbox and by post to a Defra office.

As Defra managed the consultation process on behalf of the UK and Welsh Governments, an option was also provided for respondents to submit responses to the Welsh Government directly by email to a Welsh Government mailbox.

Respondents were not required to answer every section of the consultation.

Analysis of responses

Defra’s online digital platform Citizen Space recorded responses to the consultation through an online questionnaire. Some responses were also received by email. Email responses which directly responded to individual questions were entered onto Citizen Space manually and were treated in the same way as other responses received on that platform.

11 responses were received in total with 6 responses received directly through the Citizen Space questionnaire, and 5 received by email to the Defra mailbox.

The consultation included 4 closed-ended questions with options to choose from ‘strongly agree’ through to ‘strongly disagree’, and 6 open-ended questions where comments were invited. All responses received within the consultation deadline were counted and the views presented were included in the analysis. All responses were read individually.

A numerical breakdown of those respondents in support and against each proposal has been provided alongside a breakdown of responses by sector.

Identical responses were received from an industry association and some of its member organisations. The industry association response representing collective views of the member organisations counted as a single view in the analysis. Responses from the member organisations who also responded separately were included in the analysis as separate responses and all responses were read individually.

All consultation questions and the organisations who responded are listed further below in this summary.

Overview of respondents

An industry association responded on behalf of themselves and 7 of their member organisations, all 7 being large businesses. Of the 7 member organisations, 4 also responded separately with identical responses to that of the industry association.

3 responses were received from other large businesses, One of which wished to remain anonymous.

2 responses were received from government bodies.

One response was received from a non-departmental public body.

Option	Total	Percent
Industry association	1	9.1%
Large business (250 or more employees, including global operations)	7	63.6%
Government body	2	18.2%
Other – non-departmental public body (NDPB)	1	9.1%

The 11 respondents were asked where their organisations are based or are in operation. They were able to select more than one option. The organisations responded in the following quantities for each location:

• 10 in England
• 6 in Wales
• 5 in Scotland
• 4 in Northern Ireland
• 2 outside of the UK but within the EU

Option	Total
England	10
Wales	6
Scotland	5
Northern Ireland	4
Outside of the UK (EU)	2
Not answered	0

Organisations who responded

The organisations who responded to the consultation were as follows:

Electricity North West Ltd

Electricity distribution network operator for North West England, excluding Merseyside and parts of Cheshire.

Energy Networks Association

Industry body representing the energy networks in the UK and Ireland.

Landmarc Support Services Ltd

Delivery and maintenance of safe infrastructure and support services that promote sustainable and effective military training.

National Grid Electricity Distribution

Electricity distribution network operator for East Midlands, West Midlands, South West and Wales.

Natural Resources Wales

Public body and regulator for natural resources and the environment in Wales.

Network Rail

Owner, repairer and developer of railway infrastructure in England, Wales and Scotland.

Northern Powergrid

Electricity distribution network operator for North East England, Yorkshire regions and North Lincolnshire area.

SSE plc

UK electricity network company developing and operating a low carbon energy infrastructure.

UK Atomic Energy Authority

UK government research organisation responsible for development of fusion energy.

UK Power Networks

Electricity distribution network operator for London, South East and East of England.

Anonymous

Large business (250 or more employees, including global operations).

Summary of responses

There were 18 questions in the consultation document. The first 8 questions related to the identity, location and role of the respondents and are reported on in the previous section.

There were 10 questions that related to the proposed amendments to the PCBs Regulations and the responses received to these are summarised below.

Amendment to Regulation 4(3A)

We proposed to amend Regulation 4(3A) in the PCBs Regulations by replacing a reference to ‘PCBs’ with a reference to ‘fluids containing PCBs’ to ensure clarity on the nature of the fluids within transformers and the policy intent of this regulation.

Consultation question 9: To what extent do you agree that the proposed amendments to Regulation 4(3A) of the PCBs Regulations successfully clarify the requirements of this regulation?

All 11 respondents answered this question. 10 respondents were in agreement and one was in disagreement with the proposed amendment.

Option	Number of responses	Percentage of responses
Strongly agree	2	18.2%
Agree	8	72.7%
Neither agree nor disagree	0	0%
Disagree	0	0%
Strongly disagree	1	9.1%
I don’t know	0	0%
I’d prefer not to say	0	0%
Not answered	0	0%

Consultation question 10: Please explain the reasons for your answer to question 9, with reference to evidence and/or possible alternative options where relevant.

There were 8 responses to this question.

Details of responses can be found below in the section ‘Further comments on the 4 proposed amendments’.

Amendment to Regulation 4(3C)

We proposed to amend Regulation 4(3C) in the PCBs Regulations by replacing a reference to ‘PCBs’ with a reference to ‘fluids containing PCBs’ to ensure clarity on the nature of the fluids within transformers and the policy intent of this regulation.

Consultation question 11: To what extent do you agree that the proposed amendments to Regulation 4(3C) of the PCBs Regulations successfully clarify the requirements of this regulation?

10 respondents answered this question and all were in agreement with the proposed amendment.

Option	Number of responses	Percentage of responses
Strongly agree	3	27.3%
Agree	7	63.6%
Neither agree nor disagree	0	0%
Disagree	0	0%
Strongly disagree	0	0%
I don’t know	0	0%
I’d prefer not to say	0	0%
Not answered	1	9.1%

Consultation question 12: Please explain the reasons for your answer to question 11, with reference to evidence and/or possible alternative options where relevant.

There were 6 responses to this question.

Details of responses can be found below in the section ‘Further comments on the 4 proposed amendments’.

Amendment to Regulation 4(4)(a)

We proposed to amend Regulation 4(4)(a) in the PCBs Regulations by replacing a reference to ‘PCBs’ with a reference to ‘fluids containing PCBs’ to ensure clarity on what the objective of transformer decontamination should be and the policy intent of this regulation.

Consultation question 13: To what extent do you agree that the proposed amendments to Regulation 4(4)(a) of the PCBs Regulations successfully clarify the requirements of this regulation?

All 11 respondents answered this question. 10 respondents were in agreement and one respondent was in disagreement with the proposed amendment.

Option	Number of responses	Percentage of responses
Strongly agree	2	18.2%
Agree	8	72.7%
Neither agree nor disagree	0	0%
Disagree	0	0%
Strongly disagree	1	9.1%
I don’t know	0	0%
I’d prefer not to say	0	0%
Not answered	0	0%

Consultation question 14: Please explain the reasons for your answer to question 13, with reference to evidence and/or possible alternative options where relevant.

There were 7 responses to this question.

Details of responses can be found below in the section ‘Further comments on the 4 proposed amendments’.

Amendment to Regulation 5(3)

We proposed to amend Regulation 5(3) in the PCBs Regulations by replacing a reference to ‘PCBs’ with a reference to ‘fluids containing PCBs’ to ensure clarity on the nature of the fluids within a piece of equipment for the purposes of labelling, and clarity of the policy intent of this regulation.

Consultation question 15: To what extent do you agree that the proposed amendments to Regulation 5(3) of the PCBs Regulations successfully clarify the requirements of this regulation?

All 11 respondents answered this question. 10 respondents were in agreement with the proposed amendment and one respondent was in disagreement with the proposed amendment.

Option	Number of responses	Percentage of responses
Strongly agree	3	27.3%
Agree	7	63.6%
Neither agree nor disagree	0	0%
Disagree	0	0%
Strongly disagree	1	9.1%
I don’t know	0	0%
I’d prefer not to say	0	0%
Not answered	0	0%

Consultation question 16: Please explain the reasons for your answer to question 15, with reference to evidence and/or possible alternative options where relevant.

There were 7 responses to this question.

Details of responses can be found below in the section ‘Further comments on the 4 proposed amendments’.

Further comments on the 4 proposed amendments

When offered the opportunity to provide further comments to support their level of agreement to the 4 proposed amendments, between 6 and 8 respondents opted to provide extra comments for each proposal.

Of those who provided extra comments, the significant majority (regarding Regulations 4(3A), 4(4a) and 5(3)), or the entirety (regarding Regulation 4(3C)), of these respondents were supportive of the proposals, commenting that they agreed that the proposed amendments would remove uncertainty in the existing version of the Regulations.

The one respondent who provided extra comments in opposition to these proposals commented that they had identified conflict between the new proposed wording of the PCBs Regulations and amendments made by the 2020 PCBs Regulations, accompanying guidance, and the EU POPs Regulation on which the 2020 PCBs Regulations were based. They commented that this was due to the proposed change in wording from volume of PCBs to fluid volume as a criterion for removing equipment from service. The respondent also commented that they believed the proposed new wording would create divergence from the EU POPs Regulation, and that this would make the UK’s requirements in this regulation more onerous to comply with than equivalent EU requirements.

One of the respondents in support of the proposals commented that consideration is needed of the process by which sludge in the bottom of oil filled units can remobilise PCBs into the oils.

In relation to proposals to Regulations 4(3A) and 4(4a), the majority of respondents in support of the proposal added a comment that the wording in the proposed amended regulations implied that a transformer could continue to be held containing less than 50ml of oil inside, but that they felt use of oil-containing transformers of this size was unlikely.

Consideration of financial impacts

Consultation question 17: The financial impact of this policy was assessed and published in an impact assessment in 2020. We do not anticipate that the proposed clarifying amendments in this draft statutory instrument would generate any additional financial burden to UK businesses. Do you have any evidence to suggest otherwise? Please provide details if so, with specific reference to any evidence of impacts or costs incurred.

There were 8 responses to this question.

One respondent commented that they agreed that no additional financial burden would arise from the proposed amendments.

6 respondents commented that they had no evidence to suggest that the proposed clarifying amendments would generate any additional financial burden to UK businesses.

One respondent expressed concerns that the proposals would significantly increase the cost and timescale for compliance with the amended legislation and they had estimated that their costs for compliance would increase to 10 times their initial estimated value.

Any further comments or evidence to share

Consultation question 18: Please use this space if you have any other comments that you would like to share relating to this consultation and the proposed amendments

There were 9 responses to this question.

One respondent commented that they believe the proposed changes will be very useful and will help to clarify the regulatory requirements for PCBs, and another respondent commented that the clarification of the Regulations would be very welcome.

6 respondents queried why the definition of “relevant equipment” in Regulation 4(10), which currently refers to the volume of PCBs, was not proposed to be amended as they felt that the current wording of Regulation 4(10) does not align with the proposed revised wording of ‘volume of fluids’ in the consultation.

One respondent commented that they believe that in complying with the proposed wording of the legislation, the residual value of equipment would be destroyed, and that this destruction of value would be disproportional to the environmental impact of the equipment.

UK government response

We have carefully considered all responses from the consultation and thank consultees for taking the time to respond.

On sludge in units

We have noted the comment that consideration is needed for the process by which sludge in the bottom of oil-filled equipment can remobilise PCBs into the oils. We agree that sludge in equipment must be managed carefully and regulators have confirmed that this is established best practice. When oils in transformers are replaced, equipment is flushed with oil, which is then tested for PCB content. This process is repeated if there are still signs of contamination by PCBs.

On units containing less than 50ml of oils

While we acknowledge that it is unlikely that UK businesses would hold transformers containing less than 50ml of PCB-containing oil, with the proposed amendments the PCBs Regulations will continue to allow transformers containing 50ml or less of oil to remain in use until the end of their useful life.

On the definition of ‘relevant equipment’ - why clarification to Regulation 4(10) is not necessary

We have noted the comments querying why the definition of ‘relevant equipment’ in Regulation 4(10), which makes reference to ‘volume of PCBs’, was not proposed to be amended to align with the proposed wording in Regulations 4(3A), 4(3C), 4(4)(a) and 5(3) to make reference to ‘volume of fluids’.

The policy intent of Regulations 4(9) and 4(10) together is to allow relevant equipment, which is part of another larger piece of relevant equipment, to be held until that larger piece of equipment is taken out of use, where it contains 0.05 dm3 or less of fluids containing PCBs. The full definition of PCBs in Regulation 2(1) applies to Regulation 4(10), as it is not subject to the exception that applies to other parts of Regulation 4 (and other regulations). “PCBs” therefore already includes mixtures, including fluids, where that fluid contains PCBs above the 0.005% concentration threshold as stated in the definition of PCBs. No amendment is required.

We have noted how an amendment to Regulation 4(10) to refer to volumes of fluids rather than volumes of PCBs could make it very clear that when the regulation states ‘PCBs’ it means ‘fluids containing PCBs’. However, doing so would widen the scope of the regulation as it would apply to any mixtures containing PCBs at levels less than 0.005%, even trace levels, and therefore this would create a change in the policy intent of that regulation.

On comments in opposition to proposed amendments to the regulations

Although the majority of respondents (10 of 11) supported our proposed amendments, we have carefully considered the comments received from the one respondent that indicated disagreement with the proposed amendments regarding references to volumes of PCB-containing fluid. This respondent indicated disagreement with the proposed changes to refer explicitly to volumes of fluids containing PCBs, rather than to volumes of PCBs, as a criterion for removing equipment from service, suggesting that this would make the UK’s requirements in these Regulations more onerous to comply with than equivalent EU requirements.

It is well established, both internationally and domestically, in documents governing the use and management of PCBs, that references to volumes of PCBs contained within items of equipment are in relation to total volumes of liquids (such as oils) with PCBs mixed within those liquids. Such documents include the EU PCBs Directive 96/59/EC, which came into force in 1996, the UN Stockholm Convention on POPs, the PCBs Regulations themselves, and the POPs Regulation.

References to volumes of PCBs referring to volumes of oils mixed with PCBs is a long-established practice and reflects the understanding of regulators who approach matters of compliance on this basis. In addition, it reflects the understanding of the majority of regulated businesses. The significant majority of respondents to the consultation (10 of 11) indicated in their responses that they understand that the Regulations apply to volume of fluids containing PCBs, rather than volumes of pure PCBs. This was indicated by their support for our proposals, and by the fact that they do not anticipate any additional financial impacts due to the amendments as they have been working towards the 2025 deadline on the basis of the requirements for equipment removal referring to volumes of fluids containing PCBs.

On regulatory divergence

We carefully considered the one consultation response that commented that the proposed new wording would create divergence from the EU POPs Regulation that triggered the 2020 amendment to the PCBs Regulations. In addition, we considered the comment that this would make the UK’s requirements in the PCBs Regulations much more onerous to comply with than the equivalent EU requirements. We understand that references to volumes in the EU POPs Regulation are intended, and are understood, to apply to volumes of fluids, not pure PCBs. The proposed amendments to the PCBs Regulations will bring them more closely into alignment with the EU POPs Regulation by removing any potential ambiguity which currently exists with references to volumes.

On financial impacts

We have carefully considered the comments received from one respondent that indicated an increase in their costs to decommission PCB-containing equipment due to the proposed amendments to the PCBs Regulations and that the necessary destruction of equipment with residual value would be disproportional to the environmental impact of the equipment. Although respondents were asked to provide specific details regarding any evidence of impacts or costs incurred, minimal information in this regard was available.

Following our consultation, we have engaged with the single respondent who had identified a predicted increase in their compliance costs to help them more accurately identify and refine their initial cost estimates.

In 2020 an Impact Assessment (IA) was carried out which provided a full assessment of the main impacts of the 2020 amendments to the PCBs Regulations. This impact assessment involved a full economic assessment of key monetised and non-monetised costs, and key monetised benefits and non-monetised benefits, of testing, removing and replacing contaminated equipment before the end of their useful life. Key risks, sensitivities and assumptions were also considered, in addition to the impact of the amendment to the regulations on small businesses, public bodies and manufacturers of transformer equipment.

Development of the impact assessment included engaging with stakeholders in order to make a detailed assessment of the costs of compliance with the new requirements proposed in 2020, and those costings quoted in the impact assessment were derived and agreed by officials on the basis of the volume limit being applicable to the volume of fluids containing PCBs, not the volume of pure PCBs. The preferred option from the impact assessment requires holders of transformer equipment to remove units contaminated with PCBs by the 2025 deadline, at their own expense in line with the ‘polluter pays’ principle, to be overseen by the relevant regulator (the Environment Agency in England and Natural Resources Wales (NRW) in Wales). The regulators can agree to the removal of equipment from their inventories of PCBs holdings if they are satisfied that the equipment has been decontaminated or else proved, through analysis, to be free of PCBs.

Having considered the IA, and the additional information and comments received through this consultation, as well as the importance of the PCBs Regulations to prevent harm to human health and the environment, we have concluded that the measures proposed in this consultation are proportionate.

Conclusions

In 2018 the UK government made a commitment in its 25 Year Environment Plan to make sure that chemicals are safely used and managed, and that the levels of harmful chemicals entering the environment are significantly reduced, including by “substantially increasing the amount of Persistent Organic Pollutants (POPs) material being destroyed or irreversibly transformed by 2030” and by “seeking in particular to eliminate the use of polychlorinated biphenyls (PCBs) by 2025, in line with our commitments under the Stockholm Convention.”

In 2023 the UK government also reiterated this goal in its Environment Improvement Plan with a commitment to “seek to eliminate the use of polychlorinated biphenyls (PCBs) by 2025 in line with our commitments under the Stockholm Convention”, and we stated that to deliver this we will “work with industry to register and remove from use all items of equipment that contain polychlorinated biphenyls (PCBs) by 2025.”

The proposed amendments to the PCBs Regulations aim to provide extra clarity and remove any potential ambiguity in the way that the Regulations are interpreted to enable us to meet such commitments and so that businesses and public bodies can continue to manage with certainty their equipment containing PCBs effectively and in line with current legislation.

The significant majority of respondents to the consultation supported our proposals, and did not anticipate any additional financial impacts due to the amendments. We intend to proceed with the proposed changes to the PCBs Regulations for England and Wales as set out in the consultation documents when parliamentary time allows.

Any organisations requiring further information regarding implementation of the requirements under the PCBs Regulations should get in touch with the relevant regulators (Environment Agency in England or NRW in Wales).

Next steps

The UK and Welsh Government will proceed with the proposed changes to the PCBs Regulations for England and Wales as set out in the consultation documents when parliamentary time allows.