Two EU initiatives are on a collision course: recycling more plastic and getting banned chemicals out of circulation.
The EU said in last month’s Plastics Strategy that it wants to boost how much plastic is reused and recycled. It also wants to get dangerous substances out of circulation via chemicals laws already on the books. But recycling older materials produced in times of looser chemical regulation means contending with substances that have since been banned.
A key principle of EU chemicals law is that dangerous substances should be removed from the market. And at the heart of the circular economy is keeping products in use as long as possible.
The issue will be forced in coming months, as the European Chemicals Agency (ECHA), the European Commission and the European Court of Justice each separately tackle the future of one so-called legacy substance called DEHP, used to boost the flexibility of plastics. The Council plans to debate both the Plastics Strategy and chemical legislation during next month’s Environment Council, a Council spokesperson said.
DEHP is also an endocrine disruptor linked to infertility and developmental problems in children.
The challenge of dealing with legacy substances was addressed by the Commission in a communication last month, which was intended to “promote a broad debate, and identify options” about the best way to recycle more materials safely and reduce the amount of such substances in products, a Commission spokesperson said.
It proposes two options: Either all products should be held to the same legal standards — so if a product contains a legacy substance, it can’t be recycled — or decisions could be “substance-specific” and dependent on an analysis of economic factors and potential risk.
If the second option is adopted, according to the communication, “a careful analysis will have to be made, for example, on the trade-off between allowing reparability with spare parts containing substances of concern versus early decommissioning or obsolescence of equipment.”
Without DEHP or a similar chemical to soften them, PVC pipes would be too brittle to be widely used. It also shows up in boots, yoga mats and car interiors, among other plastics.
DEHP is also an endocrine disruptor, however, linked to infertility and developmental problems in children.
ClientEarth sued the Commission last year for granting three recycling companies permission to have DEHP in their recyclables | Emmanuel Dunand/AFP via Getty Images
In 2009, the chemicals agency recommended that DEHP be added to a list of substances which, because of the potential dangers they pose, can be used only in a restricted number of cases by companies that have explicitly received permission and shown that there isn’t a suitable alternative.
Other EU bodies agreed. Companies applied for exceptions in 2013 and 2014, some hoping to continue using the chemical in new plastics and some hoping to keep selling recycled plastics that contain the substance.
The Commission granted the exceptions — but so far, only for recycled plastics. Requests for new production still await a response, and in the meantime the applicant companies can continue using DEHP.
ECHA last year proposed a different plan: Instead of allowing specific exceptions for companies, it suggested restricting the chemical except for industrial use and in products used mostly outdoors.
DEHP’s danger is mostly from consumer exposure, said Matti Vainio, the head of unit at ECHA responsible for authorization applications and risk management, and it’s especially acute when children put a toy or a bottle made with DEHP in their mouths. That likely wouldn’t happen with outdoor products like traffic cones.
“If recycled PVC is used in those types of areas, the risk is so small that making a derogation would make sense compared to the alternative, where you cannot use it at all so you have to burn it or landfill it,” Vainio said.
ECHA is waiting for the Commission to issue a decision on its plan to restrict some uses of DEHP, and also on whether companies that applied can continue using it in new plastics.
Suing and renewing
Some NGOs still have concerns about ECHA’s plan to restrict the chemical’s use.
“What happens when the traffic cone gets to the end of its life?” said Apolline Roger, a lawyer from NGO ClientEarth. “If it’s between incinerating them now and incinerating them in 10 years, we need to decide if that really makes a difference.”
ClientEarth sued the Commission last year for granting three recycling companies permission to have DEHP in their recyclables. One of the central arguments of the lawsuit is that the companies weren’t asking for permission to use DEHP in their manufacturing process — they just wanted to be able to sell material with DEHP in it.
The ClientEarth lawsuit is currently before the European Court of Justice | John Thys/AFP via Getty Images
For these companies, unlike those that wanted to use DEHP in original products, the chemical “does not play any specific functional role for the applicants: It is merely present as a (largely unwanted) impurity in the waste that is collected, sorted, processed and then placed on the market in the form of recyclate,” the lawsuit said.
ClientEarth lawyer Alice Bernard said at the time that “the fact that they won permission highlights major shortcomings in the system supposed to keep us safe.”
The lawsuit is ongoing before the European Court of Justice, with a hearing date not yet set.
The companies that received permission to sell recycled plastics containing DEHP had to submit reviews after four years if they wanted to continue, and two out of three did. Their review reports will be examined by two committees within ECHA, one at the end of this month and one in early March.
“You need to find a good balance when you’re regulating, with chemicals of concern” — Matti Vainio, a head of unit at ECHA
Vainio of ECHA points to this review as proof that “the system itself is working.” Not only did one company decide not to reapply and instead find a substitute, but the other two were more specific in spelling out safety measures for workers handling plastics that contain DEHP.
“The risks related to the use are narrowed down now, and the conditions of use are more precise,” he said. “There’s a virtuous positive circle here.”
The Commission and ECHA hope as more chemicals are regulated, fewer products with dangerous substances will be on the market in the first place, reducing the risk of recycling them.
“You need to find a good balance when you’re regulating, with chemicals of concern,” Vainio said. “The Commission has put the questions quite well and the concerns quite well. Now we just need to work on them.”