Thomas J. de Römph / KU Leuven and UHasselt

8th IGLRC 14-15/04/2014 LEGAL OBSTACLES FOR RECYCLING PLASTICS IN THE EUA review of the REACH Regulation and the Waste Framework Directive in the light of Sustainable Materials Management Thomas J. de Römph / KU Leuven and UHasselt Policy Research Centre for Sustainable Materials Management promotors Prof. dr. G. Van Calster / KU Leuven Prof. dr. B. Vanheusden / UHasselt

Today’s topics 1. Sustainable Materials Management 2. Research question 3. Legal framework 4. Life cycle of plastics 5. Plastic recycling 6. Obstacles 7. Conclusion

1. Sustainable Materials Management • Use of materials • quality of life v. threats environment • EU policy • sustainable green society • Sustainable Materials Management (SMM) • preserves resources + reduces waste + minimizes the environmental impacts of materials = entire life cycle • Art. 191 TFEU • .

2. Research question • Sustainable Materials Management  plastics • Recycling  adds a new life cycle, saves resources and materials • Question ‘Where are the main legal obstacles for plastic recycling deriving from REACH and the Waste Framework Directive?’

3. Legal framework Legal framework • to protect human health and the environment • REACH (Registration, Evaluation, Authorisation and Restriction of Chemicals) Regulation • promote alternatives for hazardous substances through a better and earlier identification, implement risk management measures, free circulation on the internal market  managing chemical substances • Waste Framework Directive • prevent or reduce the adverse impacts generation and management of waste, and reduce overall impacts of resource use and improve the efficiency of such use  managing waste

4. Life cycle of plastics I • Extraction oil • conversion components into monomers by petrochemistry  REACH applicable (Art. 1(2) REACH) • Polymerization  manufacturer (Art. 3(9) REACH) • monomers bonded into chains,polymers, by chemical industry • composition: register the substances, either on their own or in a mixture, in quantities of 1 tonne or more per year  ‘no data, no market’ • hazard profile: report safe use to downstream users  inter aliaSafety Data Sheets • Formulation  downstream user (Art. 3(12) REACH) • polymers blended with additives • Production  downstream user and producer of an article (Art. 3(4) REACH) • substances/mixtures used to make plastic articles

4. Life cycle of plastics II • Retail • (re-)Use  Becomes post-consumer waste WFD applicable (Art. 3(1) WFD) • ‘Waste Hierarchy’ (Art. 4 WFD) • Preparing for reuse  (Art. 3(16) WFD)  back to step 6 • Recycling  (Art. 3(17) WFD)  forward to steps 3/4 (REACH) • Other form of recovery  (Art. 3(15) WFD) end • Disposal  (Art. 3(19) WFD)  end

3. Life cycle of plastics III

5. Plastic recycling • Recycling  (Art. 3(17) WFD)  forward to steps 3/4 (REACH)? • WFD recycling • ‘any recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes (…),’ (Art. 3(17) WFD) • REACH manufacturing • ‘production or extraction of substances in the natural state,’ (Art. 3(8) REACH) = this is not the same in the case of plastic recycling. In other cases it is though! • WFD & REACH = recycling & manufacturing, step 8/2 • for the sake of consistency and enforceability all forms of recovery are considered as a manufacturing process when it results in the generation of substances (in mixtures /articles) that have ceasedto be waste

Question ‘Where are the main legal obstacles for plastic recycling deriving from REACH and the Waste Framework Directive?’

Today’s topics 1. Sustainable Materials Management 2. Research question 3. Legal framework 4. Life cycle of plastics 5. Plastic recycling 6. Obstacles • STATUS: WASTE OR NON-WASTE? • COMPOSITION: REGISTER OR NOT? • PROFILE: RISKS OR NOT? 7. Conclusion

6. Obstacles I STATUS: WASTE OR NOT? • industry decides, using definition of waste • Member State determines criteria (both Art. 6(4) WFD) • but only if no Union-wide End-of-Waste (EoW) criteria (Art. 6(1) WFD) currently no EU criteria for plastic in a EoWRegulation, but in process! • Obstacle  legal uncertainty • Obstacle  REACH and WFD adhere SMM but put emphasis differently: • WFDon resource efficiency (recycling, short-term perspective) • REACHon restrictions on certain substances (high-quality chain, long-term perspective) = contradictory and complementary  find a balance at step 8/2

6. Obstacles II COMPOSITION: REGISTER OR NOT? • Exceptions registration obligation  (Art. 2(7)(d) REACH) • primary registration • sameness • safe use (in Safety Data Sheets) • Two options to obtain the required information on the recycled plastics • by laboratory analysis  in-depth research, high costs, time-consuming, frequency… • by accessing available information  there is NO available information!

6. Obstacles II Post-consumer waste = NO info! • highly varied plastic articles • highly varied sources • daily variation • ‘camouflage’ plastics • no labels • no SDS or other safety information

6. Obstacles III PROFILE: RISKS OR NOT? • Hazardous substances (own/mixtures)  SDS are required! • dangerous substances: not be manufactured unless it complies with the conditions of a restriction(Title VIII, Art. 67(1) and Annex XVII REACH) • Substances of Very High Concern (SVHC): make their use subject to a prior authorisation(Title VII, Art. 55 and Annex XIV REACH)

6. Obstacles IV PROFILE: RISKS OR NOT? How to evaluate and control the hazard profile in EoWcriteria Regulation? • Clear and best processing techniques (WFD) • obstacles  expensive investments + different Member States • No/less hazardous input material (REACH + WFD) • obstacles  information void (see slide 18) = no Safety Data Sheets nor labels • Criteria quality of the recycled material! (EoW Regulation and REACH) • obstacles  • too strict door policy means less recycled plastic + more energy recovery/incineration/landfilling (WFD) • application for authorisation lengthy procedure and very expensive (REACH)

6. Obstacles V PROFILE: RISKS OR NOT? • decisions for authorisation include a time-limited review period and withdrawal if circumstances change or new information on alternatives legal and production uncertainty • ‘legacy additives’! (REACH) • whilst fully complying with the law in force when they were used, they are now restricted or subject to authorisation under REACH all end up at the recycling facility • current lists + ever-increasing • restriction: currently 5 dangerous substances, more being examined • authorisation: currently 151 SVHCs, amended every half a year

7. Conclusion • Recycling is crucial for Sustainable Plastic Management • Objectives of REACH and the WFD are in line with SMM • Yet, REACH and the WFD emphases differently Necessity End-of-Waste criteria • Waste  balance REACH and WFD + legal uncertainty • Composition  plastic recyclers are destined to register themselves • Profile  authorisation/restriction rules lay a heavy burden on plastic recyclers

¿Questions? Fire away! … and/or send an email to thomas.deromph@law.kuleuven.be

Thomas J. de Römph / KU Leuven and UHasselt