EU still undecided over ‘essential’ hazardous materials

Frans Timmermans and Virginijus Sinkevičius during the launch of the Commission's chemicals strategy. [Photo: EC]

This article is part of our special report Chemicals management: What’s at stake.

The European Commission’s new chemicals strategy aims to ditch hazardous and toxic substances in order to protect human health and the environment. But there will be exceptions for applications that are deemed essential and the debate over what that means is still ongoing.

According to a new plan published in October, toxic substances would be banned by default and only approved on a case-by-case basis, as part of the Commission’s quest to meet the ‘zero-pollution’ objective of the Green Deal.

Commission Vice-President Frans Timmermans said at the launch of the strategy that the ‘ban’ would primarily target products like cosmetics, food packaging and children’s toys. However, items like cutlery and electronics could also be impacted.

“The criteria for essential uses of these chemicals will have to be properly defined to ensure coherent application across EU legislation, and will in particular take into consideration the needs for achieving the green and digital transition,” the strategy says.

Commission officials have kicked off the process of writing those criteria and intend to adopt them in 2021 or in 2022. 

A discussion paper published in November goes deeper into the detail of what the essential use criteria might entail and what factors will have to be front and centre when policy-makers submit their findings.

The paper lists several of the advantages that would come with deploying the essential use concept, including quicker authorisation times, progress towards a non-toxic environment and positive impact on the environmental policies of third countries.

But there could also be negative effects. The paper identifies “regrettable substitution or impaired competitiveness and innovation”, as well as the risk of companies relocating to outside the EU and de facto regulation of products or people’s preferences.

Adam McCarthy, president of the Cobalt Institute, told EURACTIV that if the EU backs the essential use concept, it could “have major ramifications for the metals industry”. Cobalt is a major ingredient of batteries and alloys but can be toxic if improper exposure occurs.

“The term ‘essential’ is vague and could be applied very broadly or very narrowly, what is considered ‘essential’ can change from year to year, and what is considered ‘hazardous’ is not always clear cut,” McCarthy added.

Violaine Verougstraete, a chemicals expert with trade body Eurometaux, warned that “over 80% of the metals Europe requires for its green and digital transition have a classifiable hazard of some type, and we should be realistic that here substitution often isn’t feasible.”

“Most metals can be recycled endlessly and are used safely in their products – think of the metals locked in a storage battery, the alloyed steel in a wind turbine, or those in a laptop circuit board,” she added.

The European Environmental Bureau told EURACTIV the Commission should “borrow a hugely positive definition embedded in perhaps the most successful environmental treaty, the Montreal Protocol”. 

The protocol, the only globally-ratified treaty in force, is touted as the gold standard of environmental pacts and is widely credited as having halted major damage to the planet’s ozone layer.

According to the Commission’s discussion paper, the Montreal Protocol’s approach could “assist in developing a similar concept for REACH procedures”, the EU’s comprehensive chemical management regulation.

However, Adam McCarthy warned that “proposed definitions like the Montreal Protocol are ill-fitting for the breadth and complexity for the metals industry, meaning we really don’t know how it would work in practice.”

That scepticism was mirrored by Violaine Verougstraete, who said that Montreal’s “very narrow scope of substances and applications” is not suitable for the EU’s desired application, adding that REACH is “a different level of complexity”.

COVID-19 could also have changed the game, as the Commission paper admits “that the concept of what is considered essential is not necessarily evident and may change over time.”

France Capon, head of the European Precious Metals Federation, also agreed that the “essentiality” element is vague, adding that it would be better to talk about “‘sustainable use’ taking into account different criteria from chemicals management, circularity and climate neutrality perspective”.

Strategic autonomy concerns

As mentioned in the Commission’s discussion paper, the EU executive is aware of the risk to European industry’s competitiveness if the strategy does not strike the right balance between its anti-hazard agenda and what is realistically applicable.

The same concerns have played out in the realm of climate policy-making, where EU legislation has been careful to keep in mind the threat of ‘carbon leakage’ when setting emissions-busting targets and decarbonisation goals.

Industries like steelmakers and car manufacturers have warned that should the EU go too fast on green policies compared to third countries, they might have to consider relocating to regions where regulations are more lax. 

Carbon leakage has so far not happened at any kind of scale that would provoke worries at the European Commission, thanks to the rate climate targets have been tightened and lucrative incentives like free pollution permits.

Adam McCarthy pointed out that, when it comes to chemicals, “if substances are later deemed ‘essential’, the EU will have little or no established manufacturing base as they would, to that point, have been illegal, requiring the EU to rely on international markets for essential substances.”

The Commission has ambitious plans when it comes to sectors like electric vehicle battery manufacturing and it wants to corner a significant chunk of what is already a multi-billion-euro industry.

EU environment chief Virginijus Sinkevičius told EURACTIV that batteries will be essential to the Green Deal. There are hopes that the EU could be self-sufficient in terms of its own EV needs by 2025, before striking on to the global market.

That will all hinge on whether materials like cobalt and lead, currently used extensively in their production, can still be used.

Sinkevičius acknowledged that substances that contribute to green and digital goals will need to be kept on and that “a high level of protection of workers in the battery and chemical industries needs to be guaranteed”.

[Edited by Benjamin Fox]

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