Recently the European Parliament’s Committee on Industry, Research and Energy (ITRE) voted to amend the European Commission proposal for a new waste framework Directive, taking a step backwards on the road to a harmonised system for chemical safety.
The measures urge a reduction in “the content of hazardous substances in materials and products by setting targets” and also encourage communication on hazardous substances through the supply chain.
It’s true that EU chemical legislation, in the form of REACH and EU waste legislation, the waste framework Directive as well as daughter directives on end-of-life vehicles, batteries, packaging and electronic and electronics, have co-existed. Indeed, waste legislation has been used as a kind of environmental product regulation for a targeted group and for a limited number of substances.
REACH is working
Since 2006, REACH is the world’s most ambitious piece of law dealing with chemicals. It provides for a single, comprehensive, over-arching system of government oversight of all existing and new substances, throughout their entire lifecycle, including design and production, industrial and consumer use, and recycling and reuse. With a few exceptions, REACH has been accepted by politicians, civil servants, users and producers of chemicals as the best mechanism to deal with them.
Some MEPs have voiced concerns about the performance of REACH, and the specific issue of impurities in waste recycling. But discarding or substituting key elements should not be done on a whim.
First, in its 2017 work programme, the Commission is considering this very issue. Addressing the circular economy, it announced that it was working on “an initiative to address legal, technical or practical bottlenecks at the interface of chemical, product and waste legislation”. Any changes that are necessary should be managed in the upcoming REACH Review, or, at the very least, after thorough objective evaluation.
Second, as Echa notes in its recent five-year review, REACH has brought about considerable substitution (around 1,500 new substances), in addition to many substances being removed from the market and facing control by way of restrictions/authorisations. While some may think REACH started too slowly, or has not yet phased out enough substances, the number of chemicals removed and substituted by regulatory action or commercial pressure is accelerating.
Third, such amendments would negatively impact the circular economy. Banning substances from the product stream because of their intrinsic properties, rather than whether the substance use is controlled in the use or waste phase, would set a dangerous precedent.
This debate is happening as if chemicals are not at the heart of delivering a robust circular economy. Nothing could be further from reality. Ultra-light composites for cars and insulation for energy efficient housing all come from chemicals.
It is the chemical industry that makes such things possible by product innovation and large scale investment. Some chemicals may be considered, by some, as SVHCs or hazardous substances. But banning them because of their intrinsic properties, rather than risk during the product’s lifecycle (production, use and waste phase), would be counterproductive in terms of the circular economy.
The targeting by some NGOs and others of certain substances because they are SVHCs or hazardous creates an impossible burden. If this rule is applied, substances on the populist media’s current hate list could be seen as the basis for a ban.
Regulatory overlap a barrier to innovation
We don’t yet know, as a result of this step, how member states might react, but previous experience tells us we will end up with different rules in different countries. We witnessed this with the construction materials Directive, which resulted in varying national legislations.
An earlier Swedish study took an overview of the different national requirements in EU member states on chemicals in construction materials. It is a good example of the type of regulatory fragmentation that can occur. An unpredictable legislative framework is a barrier to innovation. If companies can’t anticipate how a product will be allowed to be used, then they don’t know what to invest in.
How should chemicals in waste streams be managed?
Earlier studies demonstrate a possible way forward. A study in the Netherlands, for example, showed that case-by-case evaluation of managing waste can work.
In a common sense approach, you have to first identify waste containing hazardous substances. Then you ask, are there any ways to use this in a safe manner? If so, then you reduce the need for incineration and landfill, and companies save costs. Only if there is no safe use, should the waste be removed from the cycle.
With this approach, Cefic believes that companies could focus on major waste streams – for example, waste coming from demolition of buildings that could be safely reused in road construction – and make big gains in resource efficiency.
The proposed overhaul seems to ignore the challenging of the current record of many member states on the implementation of waste legislation. Proper implementation of existing REACH and waste laws would be an important pathway to deal with some of the genuine concerns being expressed.
The EU chemical industry believes that EU-wide solutions, based on thorough implementation of REACH and relevant product legislation, are the best tools to ensure high safety and environmental standards across all member states. New challenges, potentially introduced by a circular economy, will need to be dealt with at the EU level.
For this reason, we support the Commission’s action to develop analysis, and a series of policy options on the interface between chemicals, product and waste legislation in 2017, as part of the Circular Economy Action Plan.
If European institutions are serious about moving to a circular economy then its representatives should take care to learn the lessons of history: that one framework is far better than several and well-meaning actions can have unintended consequences for environmental goals.
Moving the regulatory goalposts so often sends a signal that Europe is not open for business. Long-term investments need long-term certainty. We do not want changes that have little public health or environmental benefits, and will hamstring the circular economy.
The views expressed in contributed articles are those of the expert authors and are not necessarily shared by Chemical Watch.