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Environmental Sciences  Tricky Relationships: Chemicals, Waste and Product Legislation 

Editor: Ahlam Rais

The European Commission pursues in its 7th environmental programme key objectives in dealing with substances and materials known under the catchwords ‘non-toxic environment’ and ‘circular economy’. These target areas have numerous interfaces in waste, chemicals and product law, resulting in multiple conflicting goals. A total of five experts with many years of experience have dealt intensively with this topic and presented solutions. 

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The European Commission targets two essential goals in the handling of substances and materials known by the buzzwords ‘non-toxic environment’ and ‘circular economy’.
The European Commission targets two essential goals in the handling of substances and materials known by the buzzwords ‘non-toxic environment’ and ‘circular economy’.
(Source: Deposit Photos)

Brussels/Belgium – The European Commission targets two essential goals in the handling of substances and materials known by the buzzwords ‘non-toxic environment’ and ‘circular economy’.

There are numerous interfaces in product, waste and chemicals legislation in these two areas. This leads to conflicting objectives, e.g. with regard to the classification of waste in analogy to chemicals as well as at the border between waste and secondary raw materials that are further processed into products.

First of all, it should be noted that neither the one nor the other objective can be completely achieved, and certainly not in combination: The ‘Reach’ regulation does not know the term ‘non-toxic’. The Waste Framework Directive (WFD) does not define the terms ‘circular Economy’ or ‘material cycles’. It is not possible to dispense completely with hazardous substances.

In many cases, the hazard (e.g. corrosive, oxidising or flammable properties) is closely linked with the intended function of a substance. Moreover, an environment without any toxins is not realistic because of naturally occurring toxicants. From a scientific perspective, material cycles cannot be closed completely due to the second law of thermodynamics.

Most products are not pure but ‘contaminated’ for technical reasons with various substances, such as alloy components, stabilisers, plasticisers, colorants, etc. Moreover, the components or materials of many products cannot be easily disassembled because they are irreversibly bonded. This may require a higher energy input for recycling or prevent it completely for chemical reasons.

No doubt: we must strive to keep hazardous chemicals out of consumer products and also massively reduce the depletion of primary resources! So far, we agree with the EP’s and the

Commission’s remark: “…it is necessary to promote measures to reduce the content of hazardous substances in materials and products, including recycled materials, and to ensure that sufficient information about the presence of hazardous substances and especially substances of very high concern are communicated throughout the whole lifecycle of products and materials.

In order to achieve those objectives, it is necessary to improve the coherence among the law of the Union on waste, on chemicals and on products….” (WFD, preliminary note No 38).

A holistic view on the ‘life cycle’ of products is required, from the extraction of raw materials to waste. Since considerably more resources are to be extracted and recycled from waste in the future, limit values for (potentially) hazardous substances are necessary in both primary and secondary materials.

Is such an approach also applicable to waste? How can the interface between product and chemicals legislation and waste management be designed?

The Commission launched a consultation in 2018 on the interfaces between waste, chemicals and product legislation (Communication on the implementation of the circular economy package: options to address the interface between chemical, product and waste legislation as of 16.01.2018. COM (2018) 32 final), the results of which have not yet been published.

We analysed the European legislation (e.g. Reach, WFD), international Conventions (e.g. GHS, Stockholm, Basel), and some interesting national approaches on the basis of our professional experience in waste management, risk assessment of chemicals and consumer protection.

The following considerations might be helpful in order, on the one hand, to take a holistic view of the material flows and, on the other hand, to differentiate at the respective levels so that chemical safety and resource protection can be achieved together in practice.

Chemicals are used in manifold products; manufacturers decide on the type and quantity of materials and chemicals needed for their products. In addition, chemicals, as well as the products into which they have been applied, may be used differently to the intentions of the manufacturers.

Hazard classifications as stipulated by the CLP regulation are therefore unavoidable. Substances are processed with other substances to materials, combined to make products and finally mixed as waste with other used products.

This can also be coupled with material changes due to biochemical or chemical reactions. This means that the properties of a few starting materials are usually irrelevant for waste with the exception of specific pre-consumer wastes (production wastes). Only in these cases is it still possible to classify and label them as hazardous in accordance with the CLP regulation.

For all other types of waste, a risk assessment based on the presence of the substance in the respective product matrix, its physical state and additionally on potential reactions of the waste mixture is required. Therefore, identical classification criteria at each level are not necessary, but maybe even counterproductive.

As re-use and recycling processes should be increased on a major scale to save resources, the flow of information from material and product level to waste management urgently needs to be improved and extended: For the recycling of waste fractions or used goods, information on the presence of substances of concern is needed in order to ensure not only recovery according to the waste hierarchy but at the same time the removal of pollutants and their destruction or transfer to final sinks. However, a database covering only ‘substances of very high concern’ (SVHC) in products foreseen in the new WFD is by no means sufficient.

Information is required for possible re-use (e.g. repair instructions, spare parts) and for material recovery (materials suitable for recycling, materials interfering the recycling process). This is the only chance to introduce highly differentiated ‘used product’ or ‘used material’ types.

This means that an obligatory information transfer on the content of substances of concern and substances which interfere with recycling processes must also cover articles and should reach the waste manager and recycler. Responsibility for this transfer of information must become part of product responsibility and involve all stakeholders in the product chain – manufacturers, retailers, consumers.

Collection systems for specific products with a similar composition for which a recycling process has been established are already a proven solution in some B2B cases and could be extended to consumer products preferably motivated by economic instruments like deposits. However, such systems for ‘pre-sorted’ waste will only work if all parties in the value-added chain (including the waste owner) play their part correctly.

This will be even more successful if ‘design for recycling’ is taken into account in product design. The Ecodesign Directive and other product-related directives (e.g. RoHS, Toy Safety Directive) could therefore be supplemented by substance-related requirements in order to facilitate the dismantling of products after use.

The mere increase of ‘recycling quotas’ will not result in additional material recovery if information is not enhanced and the separation of waste fractions is not enforced. Internationally approved ‘types of used material’, like those for scrap metals and waste paper, would be a major step forward, if the recommended recycling route and a specific spectrum of minor constituents would be introduced to characterise types of used material.

The recycling of materials from waste is challenging, in case certain pollutants cannot be separated from the waste stream. In many cases, these products/waste streams have to be incinerated (with energy recovery, if possible) or otherwise disposed of safely.

Even if there are no toxic but only interfering substances in the secondary material present this usually leads to ‘downcycling’: Products made of secondary material can then only be used for less demanding applications; their further ‘recyclability’ is limited or no longer possible.

Under certain conditions, this can take place in the same way for secondary materials containing hazardous substances, i.e. if there is no relevant risk of carryover of the contaminant into other mass flows and safe disposal of the recycled material in question after further use is possible.

Considering the interfaces and intersections of the regulations mentioned, we conclude:

  • We need clear requirements for the recyclability of products in product legislation. The present delimitation of ‘ecodesign’ to the energy consumption requirement in the use phase must be complemented by ‘design for repair’ and ‘design for recycling’.
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  • Research and development of processes to separate substances of concern from product waste for subsequent recycling should be encouraged.
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  • Substitution of substances in products which interfere technically with recycling processes should be encouraged, too.
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  • In the case of substances that have previously been used but are now banned due to their harmful properties, it must be checked whether corresponding materials are acceptable for lower-quality products (downcycling) and, if necessary, whether exceptions can be granted under ‘Reach’. Safe disposal of such products that cannot be re-used after their ‘second use’ should be mandatory. This should be encouraged by corresponding labelling.
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  • The information system for SVHC in products initiated by the new WFD has a too narrow scope and is therefore not sufficient. This must be supplemented because the recycling of materials depends not only on the presence of SVHC but also of other hazardous substances and compounds that cause technical problems.

The development of guiding principles to clarify these interfaces, based on a challenging mission statement, is an appropriate way forward.

The full paper has been published in Environmental Sciences Europe 31, Article number: 51 (2019). The five experts are Henning Friege, Beate Kummer, Klaus-Günter Steinhäuser, Joachim Wuttke, and Barbara Zeschmar-Lahl.

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