Contribution ID: e0babd4a-8b29-40fc-b02e-590e0b344d63
Date: 26/10/2018 09:22:15

Public consultation addressing the interface between chemical, product and waste legislation


The Commission's Communication on the implementation of the circular economy package: options to address the interface between chemical, product and waste legislation

Introduction
In the Circular Economy Action Plan adopted by the Commission in 2015, the Commission announced its intention to analyse and prepare policy options to address the interface between chemical, product and waste legislation. As part of the Circular Economy Package adopted on 16 January this year, the Commission published the results of its work in this area in the form of a Communication and accompanying Staff Working Document on the Interface.
The Communication addresses four obstacles that impede the safe uptake of secondary raw materials: insufficient information about substances of concern in products and waste; presence of substances of concern in recycled materials and in articles made thereof; difficulties in applying End of Waste criteria and no clear application of EU waste classification methodologies. In addition to the objectives and actions that are set out in the Communication, the Staff Working Document describes the main challenges pertaining to the four issues and proposes options to tackle them.
It is highly recommended that this questionnaire is read in conjunction with the Commission's Communication and Staff Working Document since the main content of the questionnaire relates directly to the Commission's assessment of the Interface as described in those documents. The broad policy questions in the communication and the specific options to address the different challenges outlined in the Staff Working Document are the result of the analysis of all the input received from stakeholders to date [1]. This questionnaire builds upon the Commission's analysis and is directed to both specialists and non-specialists alike with the objective of assessing the reaction to the different options and questions posed in those documents.

[1] Stakeholders provided input in response to the Commission's Roadmap on the Interface, published in January 2017, and a targeted stakeholder consultation that was conducted between April and July 2017.
How to complete the questionnaire

Section A contains questions designed to establish information about you as a respondent.

Section B asks for your positions regarding the options described in the Commission's Staff Working Document and the questions posed in the Communication.

The option of ‘don’t know’ is available for all questions if you believe you are not in a position to answer. In considering the options listed for each of the challenges, indicating your support for one option does not necessarily prevent you from also indicating your support for another option in that challenge. Completing this questionnaire could take up to 45 minutes. Once you start filling in this questionnaire, the maximum time allowed by the system to complete is 90 minutes. Partial responses will not be saved. It is therefore recommended to download the full questionnaire as a PDF and prepare your answers in advance.

A twelve week consultation period is foreseen. A synopsis report, with a summary of all consultation activities' results, will be published on the consultation page.

Your opinion matters to us. Thank you very much for taking the time to contribute to this consultation.

A. Personal information

* 1. In what capacity are you responding to this consultation?

As an individual in a personal capacity
As an individual in a professional capacity
On behalf of an organisation, business or institution
*2. Where are you based?
Belgium
*3. Which category best describes you or the organisation you represent:

Industry or trade association
Business
Non-governmental organisation (NGO)
Trade union
Government or public authority
Intergovernmental organisation
Academic or research institute/educational institution
European institution
International body
Other

* 4. If a business or industry association, please specify the sector (select one or more answers):

Producer of primary raw materials (inorganic)
Producer of primary raw materials (organic)
Importer of raw materials (inorganic)
Importer of raw materials (organic)
Producer of manufactured products (articles)
Importer of manufactured products (articles)
Recycler
Other waste management activities
Other

* If you represent a private company, what size is it?

Micro-enterprises: fewer than 10 persons employed;
Small enterprises:10 to 49 persons employed;
Medium-sized enterprises: 50 to 249 persons employed;
Large enterprises: 250 or more persons employed.

* If responding on behalf of an organisation/association/authority/company/body, please provide the name:

Ecopreneur.eu, European Sustainable Business Federation. We represent over 3000 companies in 7 member states, mainly SMEs

* 5. Please indicate below if you want your contribution to remain anonymous

Please note that contributions from this survey, together with the identity of the contributor, will be published on the European Commission's website, unless the contributor objects to publication of the personal information.

I give my permission for my contribution to be published with my personal information: I consent to the publication of all information in my contribution in whole or in part including my name or my organisation's name, and I declare that nothing within my response is unlawful or would infringe the rights of any third party in a manner that would prevent publication.
My contribution can be published provided that I remain anonymous: I consent to the publication of any information in my contribution in whole or in part (which may include quotes or opinions I express) provided that it is done anonymously. I declare that nothing within my response is unlawful or would infringe the rights of any third party in a manner that would prevent publication.

For further information on how your personal data and contribution will be dealt with, please refer to the privacy statement that is provided on the cover page for this consultation.

* 6. Is your organisation or institution registered on the EU Transparency Register?

Yes
No
Do not know

* If yes, please provide your Register ID number:

495144126378-48

If you wish to view the EU Transparency Register, please refer to the link provided on the cover page for this consultation.

* 7. Please provide us with your full name:

Arthur ten Wolde
*8. Please provide us with your email address:
tenwolde@ecopreneur.eu

B. Questionnaire on the policy options described in the Commission's Staff Working Document
Issue #1: Insufficient information about substances of concern in products and waste

Limited information is available about the presence of substances of concern in articles, waste streams and recycled materials which affects the ability to monitor compliance of recovered materials (and articles produced therefrom) with relevant legislative requirements (including REACH Regulation (EC) No 1907/2006 and CLP Regulation (EC) No 1272/2008, but also product legislation such as RoHS Directive 2011/65/EU, etc). This lack of information hinders the assessment of whether these materials are safe and fit for purpose in relation to their envisaged uses which also increases business risks for recyclers.
Challenge 1: Defining substances of concern

The concept of "substances of concern" is of utmost importance for the scope and implementation of the different options set out in this consultation.

To what extent do you agree with the definitions of the concept of 'substances of concern' proposed in the options below?
Option 1A: substances of concern are all substances identified under REACH as substances of very high concern (‘candidate list substances’) or listed in Annex VI to the CLP Regulation for classification of a chronic effect.
Option 1B: substances of concern are those identified under REACH as substances of very high concern, substances prohibited under the Stockholm Convention (POPs), specific substances restricted in articles listed in Annex XVII to REACH as well as specific substances regulated under specific sectorial/product legislation[2].

[2] Substances which pose technical problems for recovery operations, even if not specifically flagged from the toxicological point of view, could also be considered.
*Challenge 1: Questions
*
Fully agree
*
Mostly agree
*Mostly disagree
*Disagree
*Don't know/No Opinion
*Option 1A
*Option 1B
Challenge 2: Tracking substances of concern

The options to be considered depend on the speed and means by which tracking of substances of concern should be introduced. To what extent do you agree with the following statements on options for tracking such substances:

Option 2A: all substances of concern should be tracked by a set date

Option 2B: sector-specific tracking solutions: information on relevant substances of concern should be available to recyclers in a form commensurate to what is required.

Option 2C: tracking of substances of concern should remain voluntary.

Option 2D: tracking of substances of concern is not necessary or suitable because information on chemicals should be obtained directly by analytical means (incoming waste batches, including imported waste, and outgoing recycled or recovered materials).

*Challenge 2: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*Option 2A
*Option 2B
*Option 2C
*Option 2D
Questions that arise in relation to Issue #1:

In the framework of the on-going ordinary legislative procedure amending Directive 2008/98/EC on waste, it is envisaged that the European Chemicals Agency (ECHA) will establish and maintain a database on substances of very high concern [3] in articles. The questions below refer to other, complementary systems that may be established in addition to the database to be maintained by ECHA as mentioned above.

[3] 'Substances of very high concern' are a group of substances for which strict criteria are set in Article 57 of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (OJ L 396, 30.12.2006, p. 1–849).

* What would be the added value of introducing a compulsory information system in the Union that informs waste management and recover operators of the presence of sustances of concern?

1,000 character(s) maximum
All substances of concern should be tracked by a set date. To achieve this, sector-specific tracking solutions with information on relevant substances of concern should be available to all companies handling secondary raw materials in a form commensurate to what is required. The objective of EU regulation on SVHC is to prevent these substances from being used in products on the EU market. The sooner companies stop using them, the sooner we can create a circular economy, which consists of clean circles. And the sooner companies converting waste into secondary raw materials, or using secondary raw materials, are informed about the presence of SVHC in the input they receive, they can take measures to avoid them in the secondary raw materials used as input for products entering the EU market. N.B. Waste management companies in our membership disagree with Option 2A.

* How should we manage goods imported to the Union?

1,000 character(s) maximum
Connected to Challenge 4: Goods imported into the EU should be managed in the same way as goods traded within the EU. To prevent the import of goods containing unregistered SVHCs, with unreliable paper trails, increased market surveillance of imported goods is urgently needed. We therefore urge the EU to carry out random, unannounced checks on the actual presence of SHVCs in imported goods, in combination with high fines for their presence above legal limits. The fine revenues by each agency should be added to their budget for market surveillance. The same principle should be applied to market surveillance of all environmental regulations in all member states.
Issue #2: Substances of concern in recycled materials

Currently there is no specific framework to deal with the presence of substances of concern in recycled materials and in articles made thereof. Neither is there an agreed methodology to determine the overall costs and benefits for society of the use of recycled materials containing such substances compared to disposal of, or energy recovery from, the waste. The impacts of production of virgin materials in case recycling is prevented must also be considered.

Challenge 3: Level playing field between secondary and primary material

Uptake of secondary raw materials is governed, not only by price considerations but largely by the credibility of the material itself, which may be able to perform similarly to the equivalent comparable grade of the primary material and may ensure safe use. The current technical and economic feasibility of removing substances of concern is very case-dependent. In such cases where the recovered substance cannot fully match the quality of the primary substance, several options on how to proceed are possible.

To what extent do you agree with the statements made in the following options:

Option 3A: all primary and secondary raw materials should be subject to the same rules. For example, under REACH, restrictions and authorisation conditions imposed on primary substances should apply equally to recovered materials. Materials not meeting such requirements cannot be recycled and can only be destined to energy recovery, final disposal or to destructive chemical recycling (feedstock recycling). 

Option 3B: derogations from rules on primary materials could be made for secondary materials, subject to conditions and to review within a defined time period. Such decisions should be substance-specific and based on overall costs and benefits to society according to an agreed methodology. The methodology should include considerations of risk, socioeconomic factors and overall environmental outcome based on the whole life cycle of the material. In some cases, a careful analysis will have to be made, for example, on the trade-off between allowing the repair of equipment with spare parts containing substances of concern versus early decommissioning or obsolescence of that equipment.

*Challenge 3: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*Option 3A
*Option 3B

Challenge 4: Level playing field between EU-produced and imported articles

A very significant proportion of the products that become waste in the EU are imported from outside the EU, where often less restrictive chemical-related requirements apply. The difficulties in ensuring even minimal supply chain communication with non-EU suppliers and the legal impossibility to apply the REACH authorisation obligation to articles containing substances of very high concern manufactured outside of the EU clearly represents a barrier to achieving waste streams without substances of concern.
 

To what extent do you agree with the statements defining the following options:

Option 4A: In the case of REACH, the restriction procedure is the only means to address differences in treatment between imported articles and EU-produced articles [4]. Therefore, we propose to promote the timely use of the restriction procedure under REACH and other product legislation so that EU-produced and imported products are subject to the same rules.

[4] The incorporation of substances of very high concern in imported articles is not subject to the REACH authorisation procedure whereas the use of such substances in EU-produced articles is subject to authorisation.

Option 4B: The enhanced enforcement of existing legislation to prevent the entry of non-compliant products into the EU is necessary, not only to protect human health and the environment, but also to contribute to the availability of high quality material for recycling. Therefore, we propose to promote the enhanced enforcement of chemicals and product legislation at EU borders.

*Challenge 4: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*Option 4A
*Option 4B

Challenge 5: Design for circularity

To what extent do you agree with the statements defining the following options:

Option 5A: use of the Ecodesign Directive, or of other dedicated product specific legislation as appropriate (for example, WEEE or ROHS), to introduce requirements for substances of concern with the purpose of enabling recovery.

Option 5B: make use of the extended producer responsibility requirements under the Waste Framework Directive to promote the circular design of products.

Option 5C: make use of voluntary methods of environmental performance certification (e.g. national or EU Ecolabel of green public procurement) to introduce rules for substances of concern.

Option 5D: make use of voluntary approaches such as value chain platforms for exchange of good practice in the substitution of materials in the design phase.
*Challenge 5: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*Option 5A
*Option 5B
*Option 5C
*Option 5D
*Questions that arise in relation to Issue #2:

How can one reconcile the idea that waste is a resource that should be recycled and, at the same time, ensure that waste that contains substances of concern is only recovered into materials which can be safely used? How do we strike the balance?
1,000 character(s) maximum
Circular design can only be mainstreamed by introducing harmonised differentiated fees for ecodesign in Extended Producer Responsibility (EPR) schemes (5A). Also, the Ecodesign Directive should be extended with minimum requirements for circular design for all end products (5B) to ban the worst products from the market and prevent future problems with legacy chemicals. In addition, voluntary measures and approaches should be pursued as well, but only with ambitious targets, tight deadlines, and a parallel policy trajectory to develop regulations that can be invoked as soon as these approaches fail to do the job. We welcome the larger reflection brought by the EU Product Policy Framework Roadmap and are looking forward to participate in upcoming discussions about EU guidelines for EPR and about the Ecodesign Directive.
*Should recycled materials be allowed to contain chemicals that are no longer permitted in primary materials? If so, under what conditions?
1,000 character(s) maximum
Recycled materials may be allowed to contain chemicals that are no longer permitted in primary materials only if: 1. Decisions are be based on a sound cost-benefit impact and risk analysis including full multiple LCA including health, environmental, social and economic impacts and risks of both options 2. The LCA should include end-of-life negative impacts of waste such as ocean plastics 3. In case of uncertainty about the risks, the precautionary principle is invoked 4. The recycled material cannot be in physical contact with people or the environment during normal use. 5. The products are guaranteed to be disassembled after use in a way that prevents the legacy material to come into contact with people or the environment 6. The part of the product containing the legacy materials will be recycled in a controlled way preventing hazardous contact in next cycles 7. A regular review and automatic transition to option 3A as soon as these strict conditions are not met.
Issue #3: Uncertainties about how materials can cease to be waste

The current differences among the Member States on how and under what criteria waste can cease to be waste generates legal uncertainty for operators and authorities and creates difficulties in the application and enforcement of chemical and product legislation, which requires, as a starting point, to know whether a given material is still subject to waste legislation (either as hazardous or non-hazardous waste) or has ceased to be waste.
Challenge 6: Improving certainty in the implementation of end-of-waste provisions

Option 6A:
take measures at EU level to bring about more harmonisation in the interpretation and implementation by Member States of end-of-waste provisions laid down in the Waste Framework Directive. To what extent do you agree with the following possible actions relating to these options:

i. stepping up work [5] o
n the development of EU end-of-waste criteria [6]. This would ensure that more waste streams are covered by clear EU-wide rules specifying which conditions need to be met to exit the waste regime and introducing support measures that would enable Member States to check compliance by recyclers with the exemption from REACH registration.

[5] When considering this option, as highlighted in the staff working document, resource implications (e.g. in terms of additional staff needed) and challenges related to setting end-of-waste criteria for specific uses of a recovered material need to be borne in mind.
[6] In the framework of the on-going ordinary legislative procedure amending Directive 2008/98/EC on waste it is envisaged that the Commission shall monitor the development of national criteria in Member States and assess the need to develop Union wide criteria on this basis.

ii. removing the registration exemption for recovered substances provided in REACH [7] thus requiring that all recovered substances should be registered under REACH and thereby achieve end-of-waste status;

[7] Article 2(7)(d) of REACH exempts from registration substances which are recovered from waste in the EU, subject to certain conditions being satisfied. However, since this Article does not set any specific provisions on how the use of this exemption is to be monitored by ECHA or by Member States, the practical ability of Member States to assess the effectiveness of, or compliance with, the complex conditions of the exemption is currently quite limited.

iii. where other specific product legislation provide conditions that ensure the safe placing on the market of a substance or mixture, it is proposed to recognise these conditions to be end-of-waste criteria [8] and, where justified [9], introduce a specific exemption from REACH registration.

[8] example of this could be the approach defined in Article 18 of the Commission proposal for a Regulation on Fertilisers, whereby end-of-waste status is recognised via compliance with the recovery rules and product criteria set out for the different constituent material categories in the annex of this draft regulation.
[9] Substances may be exempted from REACH registration requirements if the conditions in Article 2(7)(b) of REACH are satisfied.
*
Option 6A: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*(i)
*(ii)
*(iii)

Option 6B: take measures to ensure more consistency of practices at Member State level. Indicate which of the following approaches would best achieve this purpose:

i. End-of-waste status can only be achieved as a result of an ex-ante decision by a Member State competent authority (i.e. permit);

ii.
A recovery operator can make his own assessment of whether end-of-waste status is achieved. This assessment is subject to an ex-post verification regime by competent authorities; or

iii.
A combination of these approaches, e.g. distinguishing on the basis of the nature of specific waste streams.

*Options 6B: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*(i)
*(ii)
*(iii)
*Questions that arise in relation to Issue #3:

How and for which waste streams (and related to which uses of the recovered material) should the Commission facilitate more harmonisation of end-of-waste rules to improve legal certainty?

 

1,000 character(s) maximum
End-of-waste criteria should be simplified and facilitate recycling. If no EU-wide criteria exist, rather than switching to private schemes, we prefer national governments to make the assessment. Strongly increased political will and clear new ideas are needed to break the deadlock in the endless 20-year discussion about the waste criteria and finally solve this issue, and also to step up market surveillance and introduce higher fines for transgressions. To ensure safe products, all recovered substances should in principle be registered under REACH and thereby achieve end-of-waste status. However to avoid excessive costs and red tape, especially for SMEs, we favour to retain an exemption for goods with relatively small waste stream impacts, i.e. restrict the mandatory registration under REACH to materials recovered from high-impact waste streams such as WEEE, plastics, pharmaceuticals etc. N.B. Waste management companies in our membership favor Option 6Bii if no EU-wide criteria exist.
Issue #4: Difficulties in the application of EU waste classification methodologies and impacts on the recyclability of materials (secondary raw materials)

Inconsistent application and enforcement of waste classification methodologies, leading to waste being misclassified, or classified differently in different Member States or in different regions of the same Member State, may lead to uncertainty about the legality of waste management practices of certain important waste streams containing substances of concern. The situation described has also been reported to lead to uncertainty for operators and authorities in cross-border movement of waste, resulting in delays or even refusal of entry and thereby resulting in an inefficient internal market for waste materials in the EU. Furthermore, in some cases, misclassification of waste could lead to poor management of risks during waste management and to potential risks to human health and to the environment.
Challenge 7: Approximating the rules for classification of chemicals and waste.

To what extent do you agree with the following options:
Option 7A: the rules for classifying waste as hazardous or non-hazardous in Annex III of the Waste Framework Directive should be fully aligned with those for the classification of substances and mixtures under CLP. This should enable a smooth transition and placing on the market of secondary raw materials in full knowledge of their intrinsic properties.
Option 7B: hazardousness of waste should be inspired by the classification of substances and mixtures under CLP, but not fully aligned with it. Specific considerations of each waste stream and its management may allow wastes to be considered as non-hazardous even if the recovered material will be hazardous when placed on the market as secondary raw material.
*
Challenge 7: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*Option 7A
*Option 7B
Challenge 8: Classifying waste taking into account the form in which it is generated.

Like some primary materials, the constituent substances of some types of waste may be retained, to a greater or lesser extent, in a matrix [10]. The issue of the bioavailability/bioaccessibility of such constituent substances and their bearing on the hazard properties of the material is currently being assessed by the Commission. Under product legislation, there is potential for the CLP Regulation to introduce such bioavailabilty considerations in hazard classification of substances and mixtures, although methodologies to assess this are still being developed. The waste legislation only recently provides this option for classifying waste for their ecotoxicity. Given the relevance that proper classification of waste as hazardous or non-hazardous has in its subsequent management and potential for recovery, several options exist to address this issue.

[10] For example, in relative terms, certain plastic matrices could release a given substance more than a glass matrix; this means that the same hazardous substance (e.g. lead in plastics, lead in glass) would be less bioavailable from certain matrices than from others.


To what extent do you agree with the following options:
Option 8A: once the rules have been established under CLP, waste classification should also consider the form in which it is produced, taking account of the bioavailability/bioaccessibility of the substances contained in the waste, subject to reliable scientific information to support claims for reduced hazard classification.
Option 8B: Under Annex III of the Waste Framework Directive, waste should be classified exclusively based on the concentration of hazardous substances it contains, without further consideration of bioavailability or bioaccessibility.
*
Challenge 8: Questions
*Fully agree
*Mostly agree
*Mostly disagree
*Disagree
*Don't know/No opinion
*Option 8A
*Option 8B
*Questions that arise in relation to Issue #4: Are there any other points that you wish to make regarding the application of waste classification rules in the context of the interface between chemicals, products and waste legislation?
1,000 character(s) maximum
Concerning Question 3, we only recommend option 3B provided strict and severe conditions, a short time period to review and an automatic transition to option 3A if these conditions are not met for the goods in question. Otherwise option will provide a loophole in EU legislation of SHVCs.
Contact
EC-CPW-INTERFACE-FEEDBACK@ec.europa.eu