REACH as a basis for safe Coal Combustion Products management

1. State regulation measures to encourage increase in coal ash utilization in Poland and European trends in coal ash utilization – REACH as a basis for safe Coal Combustion Products management AndrzejJagusiewicz, Przemysław Olszaniecki Chief Inspectorate of Environmental Protection, Warsaw, Poland

2. The main question for the companies dealing with Coal Combustion Products is…. • What CCPs are according to European legislation? • Are they waste or substances or…maybe something between?

3. Types of EU legislation • Directives – operates through national legislation – must be transposed to national legislation • Regulations – are directly applicable in all Member States – do not need to be transposed to national legislation – Member States provide a system of official controls (enforcement) and lay down the provisions on penalties applicable for infringement of the provisions of the Regulation

4. LEGALISSUES – WASTEDIRECTIVE • Directive 2008/98/EC of the European Parliament and of the Council • of 19 November 2008 • on waste and repealing certain directives (Official Journal of the European Union L 312, 22November 2011) http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2008:312:0003:0030:en:PDF

5. LEGALISSUES – WASTEDIRECTIVE The definition of waste in the directive is: ‘waste’ means any substance or object which the holder discards or intends or is required to discard; In article 4 a waste hierarchy is pointed. According to it, the following shall apply as a priority order in waste prevention and management legislationand policy: (a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, e.g. energy recovery; and (e) disposal.

6. LEGALISSUES – WASTEDIRECTIVE Opportunities to treat some resources (having handled as waste so far) as non- waste. The first step is to benefit from the new concept of Waste directive presented in: Article 5 “By-products” „A substanceorobject, resultingfrom a productionprocess, theprimaryaimofwhichis not theproductionofthat item, may be regarded as not being waste referred to in point (1) of Article 3but as being a by-product only if the following conditions are met:

7. LEGALISSUES – WASTEDIRECTIVE (a) furtheruseofthesubstanceorobjectiscertain (b) thesubstanceorobjectcanbeuseddirectlywithoutanyfurtherprocessingotherthan normal industrialpractice (c) thesubstanceorobjectisproducedas an integral partof a productionprocess;and (d) Further useislawful, i.e. the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts.

8. Polish law on waste • In Poland we have additional legal conditions for treating a resource as a by-product. • According to the Polish Act from 14.12.2013 on waste, a manufacturer of an article or substance is obliged to submit to the competent authority (a marshal from the voivodshipwhere the production is conducted), an application for recognition of an article or substance as a by-product.

9. Polish law on waste • Application for recognition of an article or substance as a by-product includes: • the name or business name and address of the residence or business; • tax identification number (NIP) and the entrepreneur’s registration number (REGON), if one has been ascribed; • the place of production of an article or substance provided for recognition as a by-product; • an indication of an article or substance provided for recognition as a by-product, and their weight; • a description of the manufacturing process of an article or substance, and the process in which they will be used.

10. Polish law on waste – (2) • Recognition of an article or a substance as a by-product occurs if the voivodship marshal does not oppose by decision within three months from the date of submitting an application. • The minister responsible for the environment may determine, by regulation, the detailed criteria for the recognition of an article or substance as a by-product in the interest of the environment, human life or health. By now Minister of Environment has not issued the mentioned regulation.

11. WFD -Conclusions • There is a measure in European and Polish legislation to go out from waste legislation with CCPs: • to treat them as by-products and consequently not to store them on landfills

12. WFD-Conclusions (2) • It may be very profitable • Costs of placing the CCPs on landfills are very high – approximately 50 PLN/Mg = 12 €/Mg. • Operation of coal-fired power plants is influenced by other European Directives (IPPC, LCP, IED) and Decisions which aim at reduced emissions into the environment. Fulfilling all these duties generates another costs • It is better to balance it with earning moneyon CCPs selling.

13. WFD-REACH - LINK • However, if CCPs are not treated by the owner as waste, they are considered in the REACH’s light as substances. • But placing ashes on a landfill is complexly much more expensive than meeting REACH main obligation – registration. • And an establishment producing CCPs becomes a MANUFACTURER in REACHsystem. It generates costs, but lower thanplacing CCPs on a landfill.

14. 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) (Official Journal of the European Union L 136, 29 May 2007) • http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2006R1907:20120601:EN:PDF

15. REACH came into force on 1st June 2007 and replaced a number of European Directivesand Regulations (about 40 pieces of legislation) with a streamlined, single system.

16. Other legislation regulating chemicals (e.g. on cosmetics, detergents) or related legislation (e.g. on health and safety of workers handling chemicals, product safety, construction products) not replaced by REACH will continue to apply. • REACH has been designed not to overlap or conflict with the other chemical legislation.

17. Why REACH hasbeencreated? • In the former system for the control of chemicals in the European Union there were separate rules for "existing" and "new" substances. • “Existing substances” – all substances that were present at the EU market in the period 1971-1981 • "New substances” – all substances, thatappeared on the EU market after 19 September 1981

18. Why REACH has been created? • no adequate information was available on the vast majority of substances presented in the EU market • no sufficient data about the effects of most substances on human health and the environment

19. REACH amends this situation • There is no more division on "new" and "existing" chemicals - they are both covered by the REACH system. • The responsibility for carrying out a risk assessment and testing of the substance has been moved from the authorities to the industry.

20. Aims of REACH • To improve the protection of human health and the environmentthrough increasing knowledge about substancesmanufactured/used/marketed in the EU.

21. Aims of REACH • To make the people who place chemicals on the market responsible for understanding and managing the risks associated with their use.

22. Aims of REACH • Progressive substitution of the most dangerous chemicals if suitable alternatives have been identified.

23. Aims of REACH • Reduce to a minimum research on vertebrate animals • Promote the use of alternative methods for the assessment of the hazardous properties of substances, e.g. quantitative structure-activity relationships (QSAR) and read across.

24. Aims of REACH • This Regulation is based on the principle that it is formanufacturers, importers and downstream users to ensure thatthey manufacture, place on the market or use such substancesthat do not adversely affect human health or the environment.Its provisions are underpinned by the precautionary principle (from RIO). • Opposite to previous system – everything what was not forbidden was permitted

25. Why REACH isbetterthanWFD? • Companieshave to: • identify and manage the risks linked to the substances they manufacture and market in the EU. • demonstrate to European Chemical Agency (ECHA) in Helsinki how the substance can be safely used • communicate the risk management measures to the users. • To do it they charge a set of analysis and on that basis they prepare a very comprehensive registration dossier. It is much more reliable than documentation under waste legislation. • So, it is obviously safer for people and environment to treat CCPs as substances rather than waste.

26. REACH – who is concerned? • REACH creates direct obligations only to physical and legal persons established in the European Union • There is no direct obligation for any person from outside of the EU • However, indirectly REACH affects to a great extent all enterprises exporting chemicals (and not only chemicals) to the European Union

27. Basic elements of REACH • Registration – all substances produced or imported above 1 tone yearly must be registered • Evaluation – it is the duty of Member States • Authorisation – new requirement – will eliminate some substance from the use • Restriction - regulate the manufacture, placing on the market or use of certain substances if they pose an unacceptable risk to health or environment

28. Some important definitions • placing on the market: means supplying or making available,whether in return for payment or free of charge, to athird party. Import shall be deemed to be placing on the market Imported substances must be registered

29. Substance in the meaning of REACH • A chemical element and its compounds in the natural state… • … or obtained by any manufacturing process,

30. Substance in the meaning of REACH • including any additive necessary to preserve its stability and any impurity deriving from the process used, • but excluding any solvent which may be separated without affecting the stability of the substance or changing itcomposition. substance may consist of manychemical compounds

31. Mixture • If two or more substances are mixed together without chemical reaction, the term „mixture" is used.

32. Article(or products?) • An object which during production is given a special shape, surface or design which determines its function to a greater degree than does its chemical composition

33. Actors There are three main types of actors involved in the REACH processes: • Industry • Authorities • Third Parties (e.g. theonlyrepresentatives)

34. Industry • The role of companies under REACH is determined by the activity they carry out with a substance. The following types of industry actors can be distinguished: • Manufacturer of substance • Producer of articles • Importer • Downstream user • Distributor

35. Manufacturer of a substance • Any natural or legal person established within the EU who manufactures a substance in one or more Member States.

36. Importer (of substance / article) • Any natural or legal person established within the Community who is responsible for import. • Importing means the physical introduction into the customs territory of the European Union.

37. Downstream user • Any natural or legal person established within the EU other than the manufacturer or the importer, who uses a substance, either on its own or in a mixture, in the course of his industrial or professional activities. • It may be any industrial user of chemicals, whether formulators of mixtures (e.g. paint producers). • A distributor or a consumer is not a downstream user.

38. Authorities The authorities having obligations and rights in the REACH processes are: • European Chemicals Agency(ECHA) in Helsinki, Finland (specifically set up for REACH) • Member States Competent Authorities • European Commission

39. The role of Authorities • To carry out the evaluation, authorisation and restriction processes of REACH • To provide helpdesk assistance • To ensure enforcementunder REACH

40. Third parties under REACH • Any private and public organisation (e.g. private individuals, public authorities, non-governmental organisations, and non-EU countries).

41. Establishing national helpdesk Each country of the European Economic Area(EEA) has established a national REACH and CLPhelpdesk to provide information on REACH andCLP obligations. List of national helpdesks (Member States helpdesks) http://echa.europa.eu/help/nationalhelp_contact_en.asp

42. Aim of Registration • REACH requires manufacturers and importers of chemical substances (≥1 tonne/year) to obtain information on the physicochemical, health and environmental properties of their substances and use it to determine how these substances can be used safely.

43. Which actor has obligation to registration? • Registration is compulsory only for certain actors in the supply chain. • Each “legal entity” established within the Community manufacturing or importing a substance is required to submit its own registration. • EU manufacturers and importers of substances on their own or in mixtures • EU producers and importers of articles meeting the criteria explained in thearticle 7 of REACH Regulation. • “Only representatives” established in the EU and appointed by a manufacturer, formulator or article producer established outside the EU to fulfill the registration obligations of importers. • The “non-Community manufacturer” or supplier who is exporting a substance or mixture has no responsibilities under REACH.

44. Registration Article 5 No data, no market • … substances on their own, in mixtures or in articles shall not be manufactured in the Community or placed on the market unless they have been registered in accordance with the relevant provisions of this Title where this is required.

45. Exemptions fromREACH obligation • Thereare many exemptionsfrom: • Somepartlyexclusions (fromsomeduties) • Completeexemptions for substances’groupsorindividualsubstances

46. Exemptions from registration obligation • Substance recovered (as defined in the Waste Framework Directive 2008/98/EC)and recycled in the CommunityArticle 2 (2) (providing certain conditions): • - the same substance must have already been registered at manufacturing or import stage, either by a registrant in the same supply chain or by a registrant in another supply chain. • If not, the substance must be registered following the recovery operation and • before being put to a new use. • the substance must be the same, i.e. have the same chemical identity and • properties, as the substance already registered • the legal entity that did the recovery must ensure that information on the registered substance is available. If not, the substance must be registered. • The problem with ashes is simple in the above context of exemption… they are not produced intentionally by anybody… only in combustion plants as by-products.

47. Registration Registration and notification of substances in articles • 1. Any producer or importer of articles shall submit a registration to the Agency for any substance contained in those articles, if both the following conditions are met: • (a) the substance is present in those articles in quantities totalling over one tonne per producer or importer per year; • (b) the substance is intended to be released undernormal or reasonably foreseeable conditions of use.

48. When registration has to be submitted? • Normally, the registration must be done before a substance can be manufactured, imported or placed on the market. • But there are several registration deadlines depending basically on the substance being a phase-in or a non phase-in one, and on the tonnage band and hazard. Phase-in substance: If a manufacturer/importer pre-register them, he can then undergo registration in different phases over time (by 30 Nov 2010, 31 May 2013 and 31 May 2018)

49. Registration till 1 December 2010 • phase-in substances manufactured in the Community or imported, in quantities reaching 1 000 tonnes or more per year per manufacturer or per importer, at least once after 1 June 2007; • phase-in substances classifiedas carcinogenic, mutagenic or toxic to reproduction, category 1 or 2, in accordance with Directive 67/548/EEC and manufactured in the Community or imported, in quantities reaching one tonne or more per year per manufacturer or per importer, at least once after 1 June 2007; • phase-in substances classified as very toxic to aquatic organisms which may cause long-term adverse effects in the aquatic environment (R50/53) in accordance with Directive 67/548/EEC, and manufactured in the Community or imported in quantities reaching 100 tonnes or more per year per manufacturer or per importer, at least once after 1 June 2007.

50. Registration till 1 June 2013 • phase-in substances manufactured in the Community or imported, in quantities reaching 100 tonnes or more per year per manufacturer or per importer, at least once after 1 June 2007.