The revised Waste Framework Directive (WFD), in force from July 2018, introduced obligations on the European Chemicals Agency (ECHA) to establish a database of products that contain certain hazardous substances and to make that information available to waste treatment operators and consumers. Driven by the EU’s circular economy agenda, the purpose of the database is to encourage the substitution of potentially harmful substances in products and improve the quality of information available to public authorities, waste treatment operators and consumers.
Further details are beginning to emerge, and it is now time for businesses to engage with the practical implications and start preparations. This article considers some potential issues faced by this project and its likely impact.
The extent of the challenge faced by ECHA
The WFD requires ECHA to establish the database by 5 January 2020, and roll out the necessary IT to allow suppliers to submit the required information by 5 January 2021. When the system goes live, ECHA is required to provide access to the database to waste treatment operators and consumers on request.
The drafting of the relevant WFD provisions relies on cross-references to obligations under the REACH Regulation, and as a result, adopts certain REACH definitions. Under REACH, producers or importers of products (articles under REACH) must already notify ECHA if those articles contain potentially hazardous substances (known as substances of very high concern or SVHCs). However, under the REACH regime the producer or importer need only submit one notification for each SVHC for all articles containing that substance. This approach is referred to as substance-centric.
For the development of the new database, ECHA is proposing a different approach, namely an article-centric approach. In this approach, article suppliers would have to submit one notification per article (or per complex object, i.e. objects made of two or more articles). On face value, this looks likely to dramatically increase the number of notifications.
New administrative burdens for product manufacturers
For sophisticated product manufacturers (e.g. multinationals in complex supply chains) this level of compliance reporting may not appear too daunting and may well be in line with current practice for supply chain communication on substances in articles. However, given that the obligation to notify will fall on each supplier of an article containing an SVHC above 0.1%, it seems likely that the number of companies required to make notifications may also increase substantially. For those companies with less experience (e.g. distributors, retailers) or capacity (e.g. SMEs), who have never been subject to such requirements and are not familiar with reporting schemes and tools, this will undoubtedly create challenges.
ECHA has made no secret of the logistical (and funding) challenges presented by this bold new project. While details have begun to emerge, important questions remain unanswered about the how the process will work in practice. For example, ECHA has proposed the use of a unique identifier for each article, to allow for successive submissions of information by the successive actors in a supply chain to be linked and to limit duplication. From a practical perspective, how the unique identifier will be attached or attributed to articles so that it can be used in a meaningful way by consumers or waste operators is not clear.
Impact on the waste sector
It is anticipated that the information to be submitted to ECHA is likely to include safe use information for all lifecycle stages, including (but not limited to):
- discarding of the article by consumers and professional/industrial end-users (e.g. indication of a specific waste stream)
- safe waste (separate) collection, and
- safe treatment at waste stage (e.g. dismantling, preparing for reuse, recycling, recovery and disposal (e.g. incineration and landfill)).
This will no doubt raise eyebrows amongst waste operators. The low (or negative) value of waste streams dictates that processing the waste into more valuable segregated streams is necessarily done at scale and with a degree of tolerance about impurities. Quite simply, the economies of the operation do not allow item-by-item sorting of waste streams. Therefore, such granular, article level information might well be of limited practical use day-to-day. However, the concern might be that the very existence of such information could be used to impose more stringent conditions in relation to waste processing operations. Once the information is available, will there be a creep towards an expectation (and possibly a duty) to consult it?
During the public consultation, ECHA suggested that it may use the collated information to create a set of standardised statements on safe use, and allow for the dissemination of advice statements to waste operators in relation to specific articles, such as ‘Dispose of as hazardous waste’ or ‘Waste incineration is recommended’.
Will the UK go its own way?
It is perhaps unsurprising that, to date, UK government has made no public statement about the extent to which it intends to mirror this model in the UK in the event of Brexit.
We do know that the UK does recognise the challenges arising at the end-of-life of certain products. DEFRA’s Resources and Waste Strategy for England (published December 2018) confirms that UK government is exploring the introduction of product passports to “provide information on disassembly, recyclability, and critical raw material content for relevant products.” This sounds very similar to ECHA’s database, but may also (theoretically) reach wider than articles containing SVHCs.
It should also be noted that even if the UK goes its own way on reporting, those UK companies involved in supply chains containing EU companies will surely find themselves under commercial pressure from those customers to maintain the same level of reporting and prevent a break in supply chain communication.