EUROPEAN COMMISSION

Brussels, 28.10.2021

SWD(2021) 300 final

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT REPORT

Accompanying the document

Proposal for a Regulation of the European Parliament and of the Council

amending Annexes IV and V to Regulation (EU) 2019/1021 of the European Parliament and of the Council on persistent organic pollutants

{COM(2021) 656 final} - {SEC(2021) 379 final} - {SWD(2021) 299 final} - {SWD(2021) 301 final}

Table of contents

1.    Introduction: Political and legal context    

1.1.    Main elements of the impact assessment    

1.2.    Policy context    

1.3.    Legal context    

1.3.1.    International context – the Stockholm Convention    

1.3.2.    International context – The Basel Convention    

1.3.3.    Regulation (EU) 2019/1021 on Persistent Organic Pollutants    

1.3.4.    Other relevant EU legislation    

1.3.5.    Enforcement:    

1.4.    Economic context    

1.5.    Public context    

2.    Problem definition    

2.1.    What are the problems?    

2.1.1.    Pollution by POPs    

2.1.2.    POPs can be present in recycled materials    

2.1.3.    We are immersed in a climate emergency    

2.2.    What are the problem drivers?    

2.2.1.    Some waste contains POPs    

2.2.2.    The POPs Regulation contains no limit values or these are inadequate    

2.2.3.    There are insufficient means for sorting and decontaminating POP waste    

2.2.4.    Deficiencies in the interaction between the legislation on chemicals, products and waste    

2.3.    How will the problem evolve?    

2.4.    Who is affected and how?    

3.    Why should the EU act?    

3.1.    Legal basis    

3.2.    Subsidiarity: Necessity of EU action    

3.3.    Subsidiarity: Added value of EU action    

4.    Objectives: What is to be achieved?    

4.1.    General objectives    

4.2.    Specific objectives    

4.3.    Hierarchy of objectives    

5.    What are the available policy options?    

5.1.    What is the baseline from which options are assessed?    

5.2.    Methodology to set the limit values    

5.2.1.    Setting the limit values    

5.2.2.    The precautionary principle and the principle of proportionality    

5.3.    Policy options    

5.3.1.    Description of the policy options    

5.3.2.    Summary of policy options – Annex IV    

5.3.3.    Annex V values    

5.4.    Options discarded at an early stage    

6.    Impacts of the policy options and how they compare    

6.1.    Polybrominated diphenylethers (PBDEs)    

6.1.1.    What are they and why are they a problem?    

6.1.2.    Baseline    

6.1.3.    Impacts of the policy options    

6.1.4.    Conclusion on preferred policy option    

6.2.    Hexabromocyclododecane (HBCDD)    

6.2.1.    What is it and why is it a problem?    

6.2.2.    Baseline    

6.2.3.    Impacts of the policy options    

6.2.4.    Conclusion on preferred policy option    

6.3.    Dioxins and furans (PCDD/Fs)    

6.3.1.    What are they and why are they a problem?    

6.3.2.    Baseline    

6.3.3.    Impacts of the policy options    

6.3.4.    Conclusion on preferred policy option    

6.4.    Dioxin-like PCBs    

6.4.1.    What are they and why are they a problem?    

6.4.2.    Baseline    

6.4.3.    Impacts of the policy options    

6.4.4.    Conclusion on preferred policy option    

6.5.    Short-chain chlorinated paraffins (SCCPs)    

6.5.1.    What are they and why are they a problem?    

6.5.2.    Baseline    

6.5.3.    Impacts of the policy options    

6.5.4.    Conclusion on preferred policy option    

6.6.    Perfluorooctanoic acid (PFOA), its salts and PFOA related compounds    

6.6.1.    What are they and why are they a problem?    

6.6.2.    Baseline    

6.6.3.    Impacts of the policy options    

6.6.4.    Conclusion on preferred policy option    

6.7.    Perfluorohexane sulfonic acid, its salts and related compounds (PFHxS)    

6.7.1.    What are they and why are they a problem?    

6.7.2.    Baseline    

6.7.3.    Impacts of the policy options    

6.7.4.    Conclusion on preferred policy option    

6.8.    Pentachlorophenol and its salts and esters (PCP)    

6.8.1.    What are they and why are they a problem?    

6.8.2.    Baseline    

6.8.3.    Impacts of the policy options    

6.8.4.    Conclusion on preferred policy option    

6.9.    Dicofol    

6.9.1.    What is it and why is it a problem?    

6.9.2.    Baseline    

6.9.3.    Impacts of the policy options    

6.9.4.    Conclusion on preferred policy option    

7.    How do the options compare?    

8.    Preferred option    

8.1.    Summary of preferred options (for all substances)    

8.2.    Regulatory burden and simplification    

8.3.    Future proofing    

8.4.    International competitiveness    

8.5.    REFIT (simplification and improved efficiency)    

9.    How will actual impacts be monitored and evaluated?    

Glossary

1.Introduction: Political and legal context

Persistent Organic Pollutants (POPs) are chemicals that persist in the environment, bio-accumulate and pose a risk of causing significant adverse effects to human health or the environment. If released, these pollutants are transported across international boundaries far from their sources and even accumulate in regions where they have never been used or produced. POPs pose a threat to the environment and to human health all over the globe, with the Arctic, Baltic and the Alpine regions being examples of EU sinks of POPs.

At the EU level, significant progress has been made towards the elimination of POPs. Manufacture and use of all POP chemicals is prohibited with some minor exemptions, limited in time, after which they are phased-out. A main challenge for the EU is to eliminate POPs and remaining stockpiles from the waste cycle as these still represent a major emission source.

This impact assessment deals with POPs in waste and with their potential presence as legacy substances. More specifically it covers the threshold values set in Annexes IV and V of the POPs Regulation. These values determine how the waste is to be treated, including whether it can be recycled, or whether it should be destroyed or irreversibly transformed. This impact assessment does not cover any other aspects of the POPs Regulation nor specifically addresses contamination of environmental compartments (e.g soil, water, air) by POP substances.

As indicated in the EU Chemicals Strategy for Sustainability 1 certain chemicals, including some POPs, can cause cancer, affect the immune, respiratory, endocrine, reproductive and cardiovascular systems, weaken human resilience and capacity to respond to vaccines and increase vulnerability to disease. By way of example, findings in a recent report by the Nordic Council of Ministers 2 indicate that the annual health-related costs associated to certain perfluorinated substances known collectively as PFAS is estimated to be 52 – 84 billion EUR per year for all EEA countries. Another study 3 providing overall estimates of the cost of illness related to negative effects of exposure to endocrine disruptors on human male reproduction in the Nordic countries, concluded on costs estimates ranging from 59 – 1,200 million EUR per year, extrapolated to the EU28.

The European Green Deal 4 (EGD) puts forward the objective of achieving climate neutrality in Europe by the year 2050 and to implement a new Circular Economy Action Plan 5 (CEAP) to stimulate the development of lead markets for climate neutral and circular products in the EU and beyond. Focus is placed on resource-intensive sectors such as textiles, construction, electronics and plastics. As also announced in the EGD and subsequently laid out in its Communication on a Zero Pollution Action Plan 6 , the EU has defined a zero pollution vision for the year 2050, whereby air, water and soil pollution is reduced to levels no longer considered harmful to health and natural ecosystems and that respect the boundaries our planet can cope with, thus creating a toxic-free environment.

Matters relevant to the management of POP-containing wastes should be analysed within the broader EU policy context set by the Green Deal objectives and the commitments made in the new CEAP. These include:

·the prioritisation of waste prevention and reuse;

·the recovery of economic value from waste that cannot be avoided, with minimal impact on climate change, the environment and human health;

·the strengthening of secondary raw material markets, in particular through the establishment of mandatory recycled content targets for secondary raw materials and green public procurement targets;

·the zero-pollution ambition and the objective of achieving “toxic-free” material cycles.

Consequently a key challenge in defining policy actions relative to waste that contains POP substances is that of achieving an optimum balance between the overarching objective of eliminating POP substances from the environment and from new material cycles while at the same time increasing recycling and circularity and reducing greenhouse gas emissions 7 associated to these actions.

Main elements of the impact assessment

Scope: 

·This proposal aims to ensure the environmentally sound management of waste that contains POP substances, ensuring emissions to the environment are minimised, with a view to eliminating them as soon as possible. This IA relates to nine specific POP substances or families of substances.

·The limit values for POPs in waste determine the way in which POP waste can be treated, resulting in waste containing POP substances above certain limit values, following any necessary pre-treatment, generally having to be destroyed (and therefore making recycling impossible).

·As such the limits discussed do not determine whether secondary materials recovered from waste can be placed on the market. This is regulated by conditions and limits fixed for some POP substances in Annex I of the Regulation. These are out of the scope of the current proposal.

Relation to relevant international conventions:

·The Stockholm Convention addresses the harmful effects of human health and the environment brought about by POP substances and seeks their phase-out. The Basel convention addresses trans-boundary shipment of hazardous waste and certain other wastes and seeks to ensure their environmentally sound management. The EU is a party to both conventions, as are the large majority of its Member States 8 .

·Any changes in the list of POP substances in Annexes A, B and C of the Stockholm Convention have to be taken up 9 under the EU POPs Regulation in its Annexes I, II or III as well as in its Annexes IV and V. Only changes to Annexes IV and V of the POPs Regulation, dealing with POP waste, are within the scope of this impact assessment.

·The need to review Annexes IV and V of the POPs Regulation, only two years after its recast, arises from the listing of new POP substances under the Stockholm Convention in 2019, as well as from specific review obligations for some flame retardant substances, imposed upon the Commission by the co-legislator.

·As further explained under section 3.1, the Commission has to propose the listing of POP substances identified under the Stockholm Convention into Annex IV (on waste) of the POPs Regulation. This is because such listing triggers the obligations defined in Article 7 of the Regulation which enables the Union to comply with its obligation, under the Stockholm and Basel Conventions, to manage POP waste in an environmentally sound way.

·Under the Basel Convention, limit values (or ranges of limit values), applicable to waste, for each POP substance listed in the Stockholm Convention, are agreed upon as a result of political negotiation and published in so-called POP Waste General Technical Guidelines, which are reviewed periodically and are not binding to the Parties of the Basel Convention.

·These values have been taken into consideration when defining the options considered in the impact assessment, but other considerations, resulting from a previous study by Ramboll (2019) are also relevant (e.g. information on analytical limits or existing limit values in the POPs Regulation).

·The maximum values defined under Annex V of the POPs Regulation do not have an equivalent under the Convention, but are part of the control system defined by the Regulation. Consequently the Commission also has to propose to list into this Annex V any substance identified as a POP under the Stockholm Convention.

·For POP substances listed in Annexes IV and V, the Commission has discretion, based on its assessment, on proposing specific limits values (for both new listings and for reviews of pre-existing values).   

Hierarchy of objectives:

·As described throughout the impact assessment report, the limit values defined for POPs in waste in Annex IV of the POPs Regulation determine the proportion of POPs containing waste that has to be destroyed versus the fraction that can be managed via non-destructive treatments (e.g. landfilled). To a greater or lesser extent, for all POP waste that is not destroyed, the risk remains that some of the POP substances they contain may be released to the environment (even if this risk, depending on the precise disposal option, may be very small).

·Subject to also complying with limit values in Annex I this waste can also potentially be recycled and the resulting material placed back on the market as a product.

·The overarching objective of the POPs Regulation is protection of human health and the environment against POP substances and, for waste, the objective is elimination or at least the minimisation of emissions. Consequently, this impact assessment attributes the greatest weight to this consideration, as compared to any others.

·As required by the POPs Regulation and described in the Communication from the Commission on the precautionary principle 10 , this principle is taken into account in the methodology used to derive the values in Annex IV. It is applied to lower the proposed values as far as possible, down to the highest of the  lower limitation criteria, even if lower than the values that could de determined to protect human / environmental health 11 . This has been the case for PBDEs, HBCDD, PCDD/Fs, SCCPs and dicofol.

·The POPs Regulation also requires consideration of proportionality 12  and, for example, economic impacts on the different operators (such as higher waste management costs, loss or revenue from recyclate sold, etc) could lead to higher Annex IV values being proposed.

·There are also environmental trade-offs in lowering POP limit values for waste. Doing so may reduce the release of POPs into the environment, but destructive treatment is associated with increased greenhouse gas emissions.

·As there are trade-offs between the different objectives, a certain level of discretion and judgement is required from the assessor (the Commission) in determining what represents, for instance, an acceptable trade-off between economic impacts for a group of stakeholders and health or environmental impacts. This is considered as part of an established methodology, which allows for a structured consideration.

Methodology:

·The methodology used to determine the values proposed for Annex IV and Annex V values is well established. It was developed in the context of prior work commissioned by the European Commission to develop these limit values, following the adoption of the former POPs Regulation in the year 2004. 

·It should be noted that this methodology is as such unrelated to the criteria and the process used to identify and list POP substances under the Stockholm Convention.

·The methodology determines for each substance a set of lower and upper limitation criteria based on technical, practical and economic criteria and which takes into account the application of the precautionary principle.   

·The range is subsequently narrowed down to a single specific value. Consideration is given in particular to the precautionary principle, which by itself leads to as low a value as possible. However, other criteria can lead to higher values reflecting the trade-offs based on further assessment and (duly justified) policy choices. Further details are provided in section 5.2 and in Annex IV. 

·The methodology also takes account of existing limit values, where the weighting of the different criteria have passed political scrutiny and often are the result of a negotiation (previously under comitology and currently under the ordinary legislative procedure). The values proposed by the Commission in this impact assessment will be examined under the ordinary legislative procedure, where the application of the criteria, the extent of application of the precautionary principle 13 and the assessment of proportionality will be either validated or modified.  

·This methodology has since its development been included as reference in the General Technical Guidance on POP Waste as non-binding guidance, under the Basel Convention. Assessment reports supporting limits on waste, done by the EU using this methodology, are largely appreciated internationally and provide a very significant contribution to such discussions under the Convention. This same methodology has also been used, in this same context, in a study by commissioned by Germany 14 .

·The report by consultants used by the Commission in support of this impact assessment (which makes use of this methodology), as well as previous related studies of 2005, 2011 and 2019, are not subject to peer review, but are considered to be robust as they are based on hundreds of peer reviewed studies and publications and are subsequently assessed by the Commission. As indicated, these studies are widely considered and appreciated in the international context, under the Basel Convention, and have been the basis of former reviews of the POP waste annexes.

Policy context

The primary purpose of this initiative is to implement, for the substances concerned, the EU’s international obligations under the Stockholm and Basel Conventions and, more specifically, those derived from the POPs Regulation. Therefore protecting human health and the environment from the adverse effects caused by POP substances and eliminating or minimising emissions of POPs from waste are at the core of this impact assessment. This assessment builds upon and is linked to the European Green Deal, its objectives and the initiatives that stem from it.

The table below presents an overview of the substances for which threshold values are proposed in this impact assessment, plus a short description of the use of the substances and the materials in which they are found. Most of the uses described are historic uses 15 , now banned or severely restricted, but they are relevant in terms of waste arising from these products when they are disposed of.

Table 1: Substances in scope of the impact assessment, uses and relevant waste streams

The EGD states that creating a toxic-free environment requires more action to prevent pollution as well as measures to clean and remedy it. The Commission has also committed to consider legal requirements to boost the market of secondary raw materials, including setting targets for mandatory recycled content, and to ensure that all EGD initiatives achieve their objectives in the most effective and least burdensome way possible, living up to a green oath to ‘do no harm’. In this context, the Commission adopted in May 2021 an EU Action Plan “Towards Zero Pollution for Air, Water and Soil” 17 .

The 2015 Communication on a Circular Economy Action Plan 18 called for the promotion of non-toxic material cycles and better tracking of chemicals of concern in products as a way to facilitate recycling and improve the uptake of secondary raw materials.

Subsequently, the Communication of January 2018 on the interface between chemical, product and waste legislation 19 laid down a general ambition to achieve materials that are safe, fit-for-purpose, designed for durability and recyclability and that have a low environmental impact. For those materials not yet fulfilling this overarching vision, it invited to a reflection on the appropriate balance between the benefits from circular use of a material and the health and environmental concerns relating to substances present in those materials.

The new Circular Economy Action Plan includes numerous policy guidelines, relevant to waste streams and materials addressed by this initiative such as:

·putting in place measures to reduce waste and ensure that the EU has a well-functioning internal market for high quality secondary raw materials;

·a Sustainable Product Policy legislative initiative, setting out sustainability principles to regulate product durability, reusability, upgradability and reparability, addressing the presence of hazardous chemicals in products (including POPs), and increasing their energy and resource efficiency;

·increasing recycled content in products, while ensuring their performance and safety;

·enabling remanufacturing and high-quality recycling and reducing carbon and environmental footprints;

·increasing the uptake of recycled plastics and contributing to the more sustainable use of plastics, including proposing mandatory requirements for recycled content and waste reduction measures for key products such as packaging, construction materials and vehicles

·boosting the sorting, re-use and recycling of textiles;

·revising the Construction Product Regulation, including the possible introduction of recycled content requirements for certain construction products, taking into account their safety and functionality;

The Chemicals Strategy for Sustainability, adopted in October 2020, states that in order to move towards toxic-free material cycles and clean recycling it is necessary to ensure that substances of concern in products and recycled materials are minimised. It also states that, as a principle, the same limit values for hazardous substances should apply to both virgin and recycled materials. However, it also recognises that there may be exceptional circumstances where a derogation to this principle may be necessary, subject to conditions such as that the use of the recycled material is limited to clearly defined applications where there is no negative impact on consumer health and the environment. The use of an exemption for a recycled material, as compared to virgin material, should be justified based on a case by case analysis.

The European Parliament has in its resolutions on resource efficiency, on the Interface between chemical, products and waste legislation and on the Green Deal, shown consistent and strong support for increasing resource efficiency and the creation of markets for secondary raw materials. This includes setting of targets for recycling and mandatory recycled content. It has also been strongly supportive of the climate neutrality objectives put forward by the Commission and, in terms of waste management policy, calls for a strong reduction in incineration and landfilling.

At the same time, throughout these communications it has firmly advocated for non-toxic material cycles, where the presence of legacy substances should not be perpetuated. Although the EP has stated that resource efficiency must also consider and be coherent with broader sustainability concerns, including environmental, ethical, economic and social dimensions, no particular directions are provided on how this balance should be struck. Recent resolutions 20 , such as the objection to the Commission’s proposed measure under REACH to regulate legacy lead content in recovered PVC, and that on the Chemicals Strategy for Sustainability 21 indicate a very clear position towards the prevalence of non-toxic cycles as a leading policy objective.

The European Council has issued a number of relevant Conclusions such as those on “Delivering on the EU Action Plan for the Circular Economy”, which specifically look at the “Interface” Communication, on a “Sustainable Chemicals Policy Strategy” and on “More circularity - Transition to a sustainable society”. In all of them there is clear support for the objectives of resource efficiency, circularity, greenhouse gas emissions reduction, promotion of markets for high-quality and safe secondary materials, tracking of substances of concern and non-toxic material cycles.

Legal context

International context – the Stockholm Convention

The Stockholm Convention on POPs was adopted in 2001 and entered into force in 2004. The overall objective of the Stockholm Convention is to protect human health and the environment from POPs. It promotes global action on these substances and requires Parties to take measures to eliminate or reduce the release of POPs into the environment. Specific reference is made to a precautionary approach as set forth in Principle 15 of the 1992 Rio Declaration on Environment and Development.

Identification of POP substances

POPs are identified based on characteristics and screening criteria listed in Annex D to the Convention. This requires providing evidence related to the persistence, bioaccumulation, long-range transport and adverse effects associated to any proposed substance. The POP Review Committee (POPRC), established under the Convention and composed by experts from all regions of the world, is responsible for assessing proposals for the listing of new substances. It examines proposals sent to the Secretariat of the Convention, develops risk profiles and risk management evaluations for substances under consideration and makes recommendations for listing the substance in Annexes A, B, and/or C of the Convention 22 . The decisions on the listing, including on any specific exemptions or acceptable purposes that may be granted are adopted by the Conference of the Parties (CoP) which meets every two years.

The text of the Convention envisages generic exemptions from the ban on production and use allowing laboratory-scale research, use as a reference standard and the presence as unintentional trace contaminants in products and articles. Articles containing POPs manufactured or already in use before the date of entry into force of the relevant prohibition or limitation are also subject to an exemption, provided that Parties submit information on the uses and a national plan for waste management for such articles to the Secretariat of the Stockholm Convention.

Stockpiles and waste

The Convention also envisages identification and safe management of stockpiles containing or consisting of POPs. Waste containing, consisting of or contaminated with POPs shall be disposed of in such a way that the POP content is destroyed or irreversibly transformed so that it does not exhibit POP characteristics.

Where this does not represent the environmentally preferable option or where the POP content is low, waste shall be otherwise disposed of in an environmentally sound manner. Disposal operations that may lead to recovery or re-use of POP substances are explicitly forbidden. With regard to shipment of wastes, relevant international rules, standards and guidelines, such as the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal have to be taken into account.

Effectiveness

Article 16 of the Convention requires that the effectiveness of the measures adopted by the Convention is evaluated at regular intervals 23 . The objective of such effectiveness evaluation is assessing whether the Stockholm Convention is an effective tool to protect human health and the environment from persistent organic pollutants. The main conclusion from the latest evaluation, published in 2017, is that the Convention provides an effective and dynamic framework to regulate POPs throughout their lifecycle, addressing the production, use, import, export, releases, and disposal of these chemicals worldwide. However, inadequate implementation 24 is the key issue identified in this evaluation 25 .

International context – The Basel Convention

The Basel Convention entered into force on 5 May 1992 and has been ratified by all EU Member States. It aims to protect human health and the environment against the adverse effects resulting from the generation, management, transboundary movements and disposal of hazardous and other wastes. It does this via a set of provisions on the transboundary movement of wastes and their environmentally sound management (ESM). In particular, the Basel Convention stipulates that any transboundary movement (export, import or transit) of wastes is permissible only when the movement itself and the planned disposal of the hazardous or other wastes are environmentally sound.

Table 2 in Section III of the Basel “General technical guidelines on the environmentally sound management of wastes consisting of, containing or contaminated with persistent organic pollutants” contains a list of “provisional definitions” for “low-POP content” which conceptually are equivalent to the limits in Annex IV of the POPs Regulation. For some substances such as PBDEs and dioxins the guidelines contain a range of values, rather than a single value (reflecting the lack of consensus on a single value).

These values are discussed, introduced and sometimes modified, in the context of the review of the referred technical guideline. The guidelines themselves, and the values therein, are not legally binding but have international policy relevance and are intended to assist Parties to achieve environmentally sound management of these wastes. Under Article 15(2) of the POPs Regulation, the Commission must where appropriate, propose to adapt Annexes IV and V of the Regulation to technical progress, but there is no obligation to align to the values in the Basel guideline, or to do so in a defined timeframe.

It is to be noted that, as further explained in the following section, the listing of newly identified POP substances under the Stockholm Convention in Annex IV of the POPs Regulation is, in practice, considered mandatory in order to meet the commitments of the EU under the Basel Convention. As regards Annex V values, neither the Basel nor the Stockholm convention have provisions on a “maximum POP content limit”, in the sense used in the POPs Regulation. However, given that the options to manage POP waste under the EU POPs Regulation are determined by establishing limit values both in Annex IV and V, establishing a limit value in both these annexes for newly listed substances, is also mandatory for the Commission.

For substances newly listed in Annexes IV and V, the actual value that is introduced for the first time, or its review, for listed substances which already have a value, remains at the discretion of the Commission and is carried out “where appropriate”, as indicated in Article 15(2), based on the assessment made.

Regulation (EU) 2019/1021 on Persistent Organic Pollutants

As signatory to both the Stockholm Convention and the UNECE Protocol on POPs 26 , the European Union created Regulation (EC) No 850/2004 on persistent organic pollutants (the “POPs Regulation”) to uphold the aims of the Convention and the Protocol at EU level.

This Regulation entered into force on 20 May 2004 and was directly applicable in all Member States, including those which are not yet Parties to the Stockholm Convention or the UNECE POP Protocol 27 . That Regulation has been repealed and replaced by Regulation (EU) 2019/1021 on persistent organic pollutants on 15 July 2019 28 . The POPs Regulation ensures a coherent approach in the transposition of obligations under these international Conventions in the EU (as opposed to this being done by each Party at the national level).

The POPs Regulation contains provisions regarding manufacturing, placing on the market and use of chemicals, management of stockpiles and wastes and measures to reduce releases of unintentionally produced POPs. Exports of POPs are regulated under Regulation (EU) No 649/2012 concerning the export and import of hazardous chemicals. The exemptions to the prohibitions under the POPs Regulation are limited to a minimum. As indicated above, POPs are identified according to procedures defined under the Convention and are introduced in its relevant annexes by decisions adopted by the Conference of the Parties.

The POPs Regulation has the following Annexes, which are mentioned frequently throughout the text of this impact assessment:

·Annex I: lists substances for which their manufacture, placing on the market and use (on their own, in mixtures or in articles) is prohibited.

·Annex II: lists substances for which their manufacture, placing on the market and use is restricted (this annex is currently empty).

·Annex III: lists unintentionally produced POP substances subject to release reduction provisions.

·Annex IV: lists substances that are subject to the waste management provisions defined in Article 7 of the Regulation.

·Annex V: provides a list of disposal and recovery operations permitted for waste which meet or exceed the Annex IV limit value (Part 1). It also defines a list of waste types which may be exempted from being treated according to Part 1, defines a maximum concentration of the POP in waste (Annex V limits) up to which the exception may apply, and defines the allowable alternative waste disposal options (Part 2).

The POPs Regulation contains provisions requiring the setting up of emission inventories for unintentionally produced POPs, national and EU implementation plans and monitoring and information exchange mechanisms. Notably the POPs Regulation includes the development of thresholds for POPs in waste, which are detailed in Annexes IV and V of the Regulation 29 . The main focus of this Impact Assessment is on the Annex IV thresholds: when these are exceeded, the waste cannot be recycled and should be treated in a way that the POP content is irreversibly transformed or destroyed. Annex V provides exceptions from Annex IV provisions for certain wastes, but is rarely used.

Producers and holders of waste are obliged to undertake measures to avoid contamination of waste with POP substances. Waste with a POPs content higher than the lower (stricter) POP limits (under Annex IV) must generally be disposed of or recovered in such a way that the POP content is destroyed or irreversibly transformed. Certain specified wastes containing POPs above the limit in Annex IV, but below the limit in Annex V, may be otherwise dealt with without destructive treatment, subject to conditions (resulting in these waste being permanently disposed in hazardous waste landfills or in underground storage facilities). Neither of these values, applicable to waste, should be confused with the “unintentional trace contaminant limit” values set in Annex I, which apply to products placed on the market.

The POPs Regulation has been amended several times to take into account changes in the annexes of the Convention and the Protocol as well as changes in other related EU legislation such as the REACH Regulation. The POPs Regulation underwent a recast in the year 2019 with the main purpose of aligning the POPs Regulation with the Lisbon Treaty and the general chemicals legislation. The scope and other substantive provisions were not changed as it was considered that the legislation operates in a satisfactory manner. Prior to this recast the Commission adopted amendments of the limit values in Annexes IV and V via implementing acts in accordance with the regulatory procedure with scrutiny referred to in Article 17(3) of Regulation (EC) No 850/2004. Such amendments were supported by studies carried out by external consultants, but without an impact assessment.

Consequently, this impact assessment supports measures that target only the introduction or revision of limit values in Annexes IV and V of the Regulation and not any other aspect of the functioning of the Regulation.

As detailed further in section 3.1. of this report the international obligations of the Union under the Stockholm Convention, implemented by the POPs Regulation, require that when new POP substances are identified and listed in Annexes A, B and C of the Convention, the Commission has to amend annexes I, II and /or III of the Regulation, accordingly.

As regards Annex IV, on waste, listing of new POPs in this annex is the only way of ensuring the wastes containing these substances will be covered by the control and management regime defined in Article 7 of the Regulation. Therefore, listing in Annex IV, as well as in Annex V, becomes obligatory, in order to implement the control system defined in that article and thereby comply with the requirement under the Stockholm and Basel Conventions to ensure the environmentally sound management of POP waste.

Other relevant EU legislation

Information on other relevant EU legislation is contained in section 5.3. of Annex V of the present impact assessment.

Enforcement:

Enforcement of new of revised limit values for POP substances in waste requires that analytical methods are available, affordable and have sufficient sensitivity to check compliance. These conditions are met for all the substances in scope although the cost per analysis of some of the substances concerned (e.g. PCDD/Fs or PFOA) may exceed 400 €/ sample.

The tightening or introduction of new limit values for some wastes, resulting in an increased amount of material requiring destructive treatment, may induce an increase in the amount of waste submitted to “informal” or outright illegal treatment or disposal (as further discussed for WEEE).

Article 7(6) of the POPs Regulation imposes on Member States traceability and control obligations on all wastes containing POPs. The set-up of electronic registers for hazardous waste (and potentially other wastes), required under Article 35(4) of the Waste Framework Directive, is expected to play a relevant role in achieving this objective.

The risk of increased illegal management of waste, which occurs whenever additional requirements are imposed in waste legislation, can be addressed by Member States in the context of, for example, cooperation under the existing IMPEL network 30 and the control mechanisms in the Waste Shipment Regulation, currently under review.

Economic context

Most POP substances listed in Annex I of the POPs Regulation are banned and not manufactured or used in the EU, sometimes already for many decades. Some of them are subject to exceptions which allow a restricted number of uses, in most cases for a limited period of time.

Article 7(3) of the POPs Regulation prohibits recovery operations that may lead to recycling, reclamation or re-use on their own of substances listed in Annex IV of the Regulation. According to Article 7(2) waste containing or contaminated with POP substances in concentrations equal or above the limits defined in Annex IV of the Regulation have to be treated in such a way as to ensure that the POP content is destroyed or irreversibly transformed.

However, prior to such destruction of the POPs in waste, such waste can be subjected to pre-treatment operations (described in Part 1 of Annex V to the Regulation) to separate them from the waste or to separate the parts of the waste that contain POPs from those that do not (or do so below the Annex IV concentration).

One of the issues at stake when defining the Annex IV concentration limits is how this affects the amounts of waste that can be recycled, rather than being disposed of using a treatment that will destroy it, together with the POPs it contains. The possible trade-offs in terms of emissions reduction and human and environmental health protection also need to be considered. Depending on the limit value chosen for a POP substance listed in Annex IV, and the specific waste streams concerned, the amount of waste that can be recycled will vary and a stricter limit could result in the cessation of recycling altogether.

Such a situation may have important economic consequences for operators engaging in recycling and waste disposal operations, for users of secondary materials recovered from waste that contains POPs and for other actors in the waste treatment and secondary material supply chain.

Lowering Annex IV values, thereby impeding that greater amounts of material containing legacy POPs are recycled and are re-introduced into the market also has potential favourable economic effects that can materialise in a reduction in healthcare costs, environmental remediation costs and other indirect costs associated to these impacts, for instance, on services provided by ecosystems (e.g. pollination, nutrient cycling, etc.). These impacts are substance and waste stream specific and are analysed in detail in other sections of this report.

Annex V limit values are of very limited practical and economic relevance given they only determine the maximum POP concentration, applicable to a restricted list of waste types, up to which derogations from being subjected to destructive treatment applies. Notwithstanding, exceeding the Annex V limit value generally will only imply that, subject to authorisation by the competent authorities, the waste may be disposed of in a permanent underground storage facility for hazardous waste (rather than in a hazardous waste landfill) 31 .

Public context

According to a Eurobarometer survey 32 of the year 2016, approximately two-thirds of EU citizens are concerned about being exposed to hazardous chemicals in their daily life, and this includes a quarter who are ‘very much’ concerned. At least half the citizens in every Member State are concerned.

An extensive open public consultation on the core societal concern relative to the presence of legacy chemicals in recycled materials, relevant to this assessment, was carried-out in the context of the Commission Communication on the interface between chemical, product and waste legislation adopted in January 2018. This consultation ran from 23 July to 29 October 2018 and received 461 valid responses from a wide variety of stakeholders including individual citizens 33 . The outcome of this consultation has fed into this report.

2.Problem definition

International concern regarding the global pressures caused by the manufacture, use and release of POP substances into the environment, with severe, long-lasting trans-boundary effects on human health and on that of ecosystems led to the creation of the Stockholm Convention. The Convention, with a strong focus on the precautionary principle, was brought into EU law by the first regulation on persistent organic pollutants, recast in 2019.

The purpose of this assessment is not to analyse the global problems associated with POPs or the overall effectiveness of existing policies. Rather it looks at these problems in the context of addressing specific substances and setting possible limit values for waste, all under the light of the current EU policy context.

What are the problems?

The problems caused by POP substances, including those subject to this assessment, are related to their intrinsic physical and chemical properties, to how and where they have been used and to the effects that their progressive release has on the health of human beings and of the ecosystems and the services these provide.

In one way or another all POP substances are recognised to have adverse, generally long-term, effects upon living organisms. They persist for a very long time in the environment and in our bodies and can be transported unchanged to almost any remote point of the globe, far away from where they were produced or used.

The figure below shows the “problem tree” which links problem drivers, problems and consequences associated to POPs subject to the measure under consideration.

Figure 1: Problem tree

Pollution by POPs

Persistent organic pollutants, including those in scope of this measure are found in water, sediments and soil, in waste and accumulating in the bodies of living organisms, including human beings. These cause different and often substance-specific adverse effects on human health and on ecosystems including on reproduction, sexual development, growth or on learning and neurological development, to name just a few. Pollution by POPs thereby results in human disease and mortality and in the degradation of ecosystems and the services they provide.

In Europe, several past and on-going large-scale bio-monitoring programs have investigated the presence of POPs used as pesticides or flame retardants and of other hazardous chemicals in human body fluids such as blood or urine. Two of the most relevant EU projects are DEMOCOPHES 34 and the on-going HBM4EU 35 with the participation of 30 countries, the European Environment Agency and the European Commission. In 2004, a study by the WWF attracted high media attention when it revealed the presence of numerous hazardous chemicals, including POPs, in the blood of EU citizens 36 . More recently, a study 37 done in 2014 on the Flemish population has revealed that 77% of 50-65 year olds had PFOS and PFOA levels in their blood that exceeded reference values for absence of risk.  Evidence from these and other sources points to significant environmental exposure to some POPs.

Pollution by these substances spreads throughout the globe, does not disappear naturally (or does so only very slowly) and can exert its effects for decades to come. It is extremely difficult to clean-up or to otherwise address pollution by these substances which makes substitution and elimination of POPs, together with tight control on their emissions, the only appropriate approach to their management.

POPs can be present in recycled materials

Having established that POPs are present in certain wastes it is easy to conceive that some of these POP substances will be recycled together with the materials in which they are contained (e.g. plastic, wood, paper) and be introduced back into the economy as products containing recycled materials. This is particularly relevant when contaminated materials are used to produce products for consumers, including for children and other vulnerable populations, with the resulting risk of exposure. According to EEB 38  and as further mentioned on the “interface” Communication 39 , POPs have appeared in consumer products containing recycled materials such as toys, food containers and kitchen utensils.

The staff working document 40 to the referred Communication provided an overarching vision regarding the presence of substances of concern (including POPs) in recycled materials:

Materials should be safe, fit-for-purpose and designed for durability, recyclability and low environmental impact. These materials and the articles made from them should, to the extent possible, be designed, manufactured, traded and recycled free from substances of concern. The reason being that they may be reused and eventually disposed of in a way that maximises the materials’ economic benefits and utility to society while maintaining a high level of human health and environmental protection. For materials not fulfilling this overarching vision, the policy options in this document aim to launch a reflection on the appropriate balance between the overall long term benefits from circular use of a material and the overall long term health and environmental concerns relating to substances present in that material.

This vision has been further developed under the Chemicals Strategy for Sustainability and clearly reflects the challenges faced to deal with, and ideally remove, all POP substances from recycled materials, ensuring they are safe, while at the same time striving to preserve the value of materials in the economy for as long as possible.

The presence of POPs in recycled materials represents a potential risk to the users of these materials 41 , reduces the confidence of supply chain operators (e.g. plastic converters) and of consumers in recycled materials. Consequently, a successful circular economy with well-functioning markets for secondary materials can ideally only be based on safe, toxic-free materials. All POP substances have been phased out or are heavily restricted. For other substances of concern whose use continues and are essential for society, appropriate risk management measures have to be in place.

Keeping this very clearly in mind, the challenge addressed in this report lies is determining maximum levels of POP contamination that can be tolerated in waste that will not be subjected to destructive treatment, including, potentially,  being recycled 42 (Annex IV limits). Waste that exceeds such limits, set under the POPs Regulation, will be subjected to destructive treatment, generally incineration, or to another environmentally sound disposal option, such as landfilling in a hazardous waste landfill or underground storage facility. This will inevitably lead to the elimination, not only of the POP substance, but also to the loss of all the material associated to it and, very often, to an increase in CO2 emissions.

This happens because once a material becomes contaminated with a POP substance it is usually very difficult to remove it or to separate clean from contaminated material. This loss of potentially recyclable material could in some cases have an effect on the supply of relevant materials, for instance secondary technical plastics obtained from waste electrical and electronic equipment (which would be relevant, for instance, if mandatory recycled content targets were to be introduced).

We are immersed in a climate emergency

The world is in the midst of a climate crisis as repeatedly confirmed by reports by the UN Intergovernmental Panel on Climate Change (IPCC) and fully backed and recognised as a key political priority by the EU. Putting in place a more circular economy is a fundamental step towards achieving climate targets 43 .

As stated in the referred report by the Ellen McArthur Foundation, the greenhouse gas emissions causing climate change are a product of our ‘take-make-waste’ extractive economy, which relies on fossil fuels and does not manage resources for the long-term. The circular economy can contribute to emissions reduction by transforming the way we make and use products. The referred publication states that applying circular economy strategies in just five key areas (cement, aluminium, steel, plastics, and food) can eliminate almost half of the emissions from the production of goods – 9.3 billion tonnes of CO2eq in 2050 – equivalent to cutting current emissions from all transport to zero.

In industry, this transformation can be partly brought about by recycling the materials used to make goods and assets. This reduces the demand for virgin materials such as steel, aluminium, cement, and plastics, and the emissions associated with their production.

To a greater or lesser extent, recycling of the materials containing POPs addressed in this report can contribute to this effort by reducing the emissions resulting from the production of their substitute primary materials and, potentially, by avoiding net emissions from their incineration (even if these can be at least partially off-set by emissions avoided by not burning fossil-fuel).

What are the problem drivers?

Some waste contains POPs

POP substances in scope of this initiative have been used in industry for many decades to manufacture products. In many cases the functionalities sought are associated to the chemical nature of these substances and is what actually makes them “POP substances”. Examples of these are perfluorinated substances used to provide water repellence to clothes, to make anti-stick polymers for cookware or to provide better extinguishing properties to fire-fighting foams. A similar situation exists with members of a family of large bromine-containing organic molecules, known as PBDEs, used to make materials such as plastics and textiles fire-resistant.

Therefore, waste sometimes contains POP substances. This is the consequence of our industrial history and, even though these substances may today be banned or restricted, some still appear in waste, and will do so for many years to come. This is particularly true for waste from products that have long life-cycles, such as materials used in construction, in vehicles and certain types of electrical and electronic equipment.

The POPs Regulation contains no limit values or these are inadequate

For substances that have been recently listed under the Stockholm Convention, such as the pesticide dicofol or the perfluorinated substance known as perfluorooctanoic acid (PFOA), its salts and related compounds, there are currently no limit values in Annexes IV and V of the POPs Regulation. For other substances limit values exist but may have become outdated due to scientific and technical progress or some actors find them not protective enough and consider they should be modified (reduced). The purpose of the initiative supported by this impact assessment is to amend Annexes IV and V of the POPs Regulation to list substances that have been recently listed by the Convention and to, as appropriate, introduce new or revise existing limit values for POP substances, applicable to waste. Section 6.2 of Annex VI of this impact assessment contains further information about the substances in scope.

In practical terms, concerns about the value of the limits in Annex IV of the POPs Regulation translates into concerns about the environmentally sound management of POP waste. In general, wastes containing listed POP substances at concentrations equal to or above the limit have to be subjected to destructive treatment, preceded by any necessary pre-treatment to separate waste that contains POPs from that which does not (or does so below the limit value). Waste below that limit can be recovered or disposed of by other means, including recycling (subject to limits in Annex I) or landfilling in a non-hazardous waste landfill.

For a limited number of waste streams, possible recovery operations, as defined in Annex II of the Waste Framework Directive, permitted below the Annex IV value, include operations R5 “recycling/reclamation of other inorganic materials” 44 and R10 “Land treatment resulting in benefit to agriculture or ecological improvement”.

These operations are relevant only to a few waste streams containing relevant concentrations of POP substances in scope of this study. As further explained under the relevant substance sections in section VI, and in the description of the methodology in Annex IV of this report, such specific waste treatments are generally better addressed separately via dedicated legislation (e.g. via EU and/ or national sewage sludge legislation, EU and national legislation dealing with fertilisers).

There are insufficient means for sorting and decontaminating POP waste

Once problematic substances such as POPs are introduced into materials, for instance flame retardants in plastics or the biocide pentachlorophenol in wood, it is very difficult to remove them without destroying those materials. This often jeopardises any future recycling of the material based on technical or economic feasibility 45 .

To a lesser extent, the same happens with attempts to separate waste parts or fragments containing POP substances (or POP substances above a certain concentration) from those that do not. This situation presents itself when dealing with waste from the collection and sorting of materials, complex articles and other products where the presence and amount of the relevant POP substance is variable and results in some being contaminated, and some not. Examples of this are shredded plastics from the treatment of end-of-life vehicles, from the treatment of electrical and electronic equipment, or insulation material or wood from the demolition of buildings.

Therefore, one crucial element in the assessment of how to deal with POPs in waste is having a sound understanding of the state-of-the-art in sorting and decontamination technologies, that could be applicable and economically feasible to treat any given waste. The availability of technologies and treatments to extract POP substances from materials or to separate contaminated from clean material, enables the production of clean (or cleaner) materials from POP waste and contributes to increase recycling rates. This also potentially enables the setting of lower annex I and IV limit values, reducing the likelihood of having an impact on recycling rates.

The relevance of this is recognised in the new Circular Economy Action Plan that states that to increase the confidence in secondary raw materials the Commission will, among other actions:

“support the development of solutions for high-quality sorting and removing contaminants from waste, including those resulting from incidental contamination”.

Furthermore, the Chemicals Strategy for Sustainability indicates that:

“Regulatory actions need to go hand-in-hand with increased investments in innovative technologies to address the presence of legacy substances in waste streams, which could in turn allow to recycle more waste.”

Unfortunately, proven and effective industrial scale decontamination technologies are extremely limited and applicable detection and sorting technologies, relevant to the POP substances and waste types under discussion are still also quite scarce.

In light of the above, it seems clear that sorting and decontamination technologies have a key role to play in achieving more abundant and cleaner flows of recycled materials. A number of relevant projects are currently underway, financed by Horizon 2020 46 . New funding opportunities are available in calls for proposals under the current programme 47 and will soon also be available under Horizon Europe 48 .

Deficiencies in the interaction between the legislation on chemicals, products and waste

The Commission Communication on the interface between the legislation on chemicals, products and waste 49 identified four main issues that are a barrier to the implementation of a more circular economy in Europe:

1.lack of information about the presence of substances of concern (including POPs) in articles;

2.lack of agreed methodologies to support decisions on how to deal with such substances in recycled materials;

3.uncertainties about when a material is waste or not; and

4.Inconsistencies and implementation problems in the way we classify waste as hazardous waste (as compared to how we classify substances and mixtures).

All these issues can be relevant in dealing with waste streams containing POPs and can lead to highly granular impacts which are associated to specific substances and waste streams. An example of this are the diverging national / regional ways of implementing waste classification rules that make certain plastic waste containing flame retardants (PBDEs) at or above the Annex IV limits be considered hazardous waste in some regions but not in others (as reported by some stakeholders 50 ). This in turn has an influence on the cost and administrative burden associated to moving this waste across Europe (for recycling) and on the operational costs and permit requirements for the treatment installations.

Such aspects, which are not a direct consequence of the limit values to be determined are discussed in the relevant sections, in particular for WEEE plastics containing PBDEs, but there is not enough information to quantify their (possible) additional impact nor to propose specific measures to address it. Further actions to address these problems are taking place in the context of the new Circular Economy Action Plan and the Chemicals Strategy for Sustainability as well as under the on-going amendment of the Waste Shipment Regulation where the issue of the cross-border movement of wastes, the nature of the notification requirements for waste and the associated procedures are regulated.

How will the problem evolve?

In very general terms the baseline is expected to result in maintaining the current emission levels of POPs to the environment, leading to increased pressures on the environment and on human health which is already largely impacted by the presence of hazardous chemicals in the environment 51   52 .

The evolution of the problems outlined above, in a business-as-usual scenario, is nonetheless rather case specific and depends on the waste streams concerned, the current practice, specific legal requirements and the status of the relevant treatment technologies. On the one hand, for substances that have not been in use in the EU for years, sometimes decades, such as the pesticide dicofol, the amount of waste that remains to be generated is very small and, consequently so is the impact and their contribution to the overall problem.

On the other hand, other waste streams are expected to become more important in terms of both the volumes generated and the time over which this will happen (Ramboll, 2019). This includes waste from electrical and electronic equipment (that may contain certain brominated flame retardants) - one of the fastest growing waste streams in the EU - or from long life-cycle materials, such as expanded polystyrene insulation panels used in buildings (that may contain another POP-listed flame retardant, HBCDD).

As detailed in section 2.2, action will be taken on problem drivers to improve the interaction between chemicals, product and waste legislation, including on the better tracking of substances to support the development of sorting and decontamination technologies. This will allow for better identification and management of waste that contains POPs, ensuring its sound environmental management in a manner that maximises elimination of the POP substances and the recovery of materials.

For some of these waste streams the development of novel sorting or decontamination technologies could have a profound impact on the treatment and potential recovery of material from POP-contaminated waste. A promising example of this is the PolyStyreneloop project 53 for the treatment of polystyrene insulation foams, partially funded through the LIFE program and currently being implemented in a demonstration industrial plant under construction in the Netherlands.

Further analysis of each of these cases is provided in the relevant substance chapters of supporting study by RPA (2021) [Study to support the assessment of impacts associated with the review of limit values in waste for POPs listed in Annexes IV and V of Regulation (EU) 2019/1021. European Union 2021. ISBN 978-92-76-41943-3].

Who is affected and how?

Society as a whole: (people): Human health and environmental burdens associated to emissions resulting from insufficient management of POP waste, including from recycling POP-contaminated materials into new products, have environmental, social and economic consequences that are often not well accounted for. The positive impacts associated to enhanced recycling, including the avoidance of greenhouse gas emissions and the reduction in the use of primary raw materials, also have to be factored in.

EU consumers: EU consumers currently do not have sufficient, reliable and comparable information on the possible presence of POP substances in recycled materials or how this can relate to the articles they buy. Their safety and confidence in recycled materials can consequently be affected. The provision of different types of product-related information is within the scope of actions under the Sustainable Products Initiative, currently being developed by the Commission.

Non-EU consumers: Imposing new or more demanding limits on the POP content of certain wastes, and setting limitations to their recycling in Europe, may lead to increased shipments of waste (particularly of illegal shipments) for recycling or disposal in other parts of the world with lower treatment and consumer protection standards than in Europe. Whether these shipments take place also largely depends on the classification of wastes as hazardous or not 54 and on the specific applicable provisions for the shipment of waste to the receiving countries.

Recyclers: Recycling companies, such as those processing waste electrical and electronic equipment can be impacted by changes in limit values that reduce the amount of waste that can be ultimately recycled. Reductions in Annex IV limit values can decrease, at least in the short term, the amount of recyclable material and, potentially, also their revenue. Additionally, higher waste management costs associated to treatment of non-recyclable fractions can be expected 55 . Additional impacts in terms of the logistics of collection, transport and operation of recycling installations is also likely if changes in Annex IV values would result in the classification of the waste as hazardous waste 56 .

Other waste operators: Waste operators other than recyclers will potentially benefit from the diversion of previously recyclable material to other treatments, such as incineration, landfilling or physical-chemical treatments. These flows may originate from recyclers, having to dispose of greater fractions of their incoming waste or directly from waste producers. Therefore, some of the costs identified in this impact assessment are distributional costs.

Waste producers: Producers of waste may lose revenue and even incur in additional waste management costs due to having to dispose of waste subjected to stricter requirements that require disposal rather than recycling, or having to bear additional sorting and pre-treatment costs.

Users of secondary raw materials: Reduced availability of recycled materials and the consequent need to source primary materials may have a negative impact on the supply secondary materials and a negative economic impact upon their users, therefore also undermining the trust in secondary raw materials markets. The reduction in availability of material for recycling can have impacts on the ability to ensure compliance with mandatory recycling targets for the affected materials / product categories where such requirements are set or may be set in the future 57 . On the other hand, reduced POP concentrations in secondary materials result in greater customer confidence on their quality and safety which, next to supply issues, is a key factor to establish trust and consequently uptake of secondary raw materials.

Public authorities: Public authorities are responsible for implementing the relevant EU acquis and, as regards waste, for ensuring that waste is managed in an environmentally sound manner, without overall adverse effects on human health and the environment. The introduction of new or stricter limits affecting waste streams has as an immediate effect on control and enforcement activities, which can require increased inspection, analytical or enforcement work as well as vigilance of potential increase in illegal waste management and shipment.

In the particular case of domestic incineration ashes contaminated with dioxins and furans, analysed in this impact assessment, additional costs could apply derived from the need to establish separate collection systems for new streams of hazardous household waste (further information provided in section 6.3).

3.Why should the EU act?

Legal basis

Pursuant to Article 192(1) of the Treaty on the Functioning of the European Union, the European Parliament and the Council of the European Union adopted the Regulation (EU) 2019/1021, of 20 June 2019, on Persistent Organic Pollutants (recast). The initiative is in an area of shared competence, but its necessity and its EU-added value have been clearly recognised throughout the years. The risk that POP substances may be introduced into products via recycled materials is addressed in the basic act and for specific chemicals listed in the Stockholm Convention. Therefore, it is necessary to establish concentration limits as a management measure to ensure that the amount of POPs in waste that is to be recycled into such materials is low.

Article 3(6) of the POPs Regulation determines that waste consisting of, containing or contaminated “by any substance listed in Annex IV”, is regulated by Article 7. That article determines how POP waste should be controlled and managed in the Union. Together with Annexes IV and V, Article 7 provides the framework to implement the obligation of ensuring environmentally sound management of waste, established under the Stockholm 58 and Basel 59 Conventions.  

Article 15(2) on amendment of Annexes of the Regulation specifies that:

“The Commission shall keep Annexes IV and V under constant review and shall, where appropriate, make legislative proposals to amend these Annexes in order to adapt them to the changes to the list of substances set out in the Annexes to the Convention or the Protocol or to modify existing entries or provisions in the Annexes to this Regulation in order to adapt them to scientific and technical progress”.

All aspects regarding the general motivation to act, the instrument chosen and similar considerations were addressed and validated by the co-legislator during the recast of the POPs Regulation in the year 2019. In revising Annexes IV and V the Commission has limited room of manoeuvre. In practice the Commission has to propose the listing of new substances identified as POPs under the Stockholm Convention in Annex IV and V (to meet its international commitments 60 under the Convention). For substances listed in Annex IV (and V) the Commission has discretion on the choice of the numerical values that will be proposed (in establishing a value for the first time or in deciding to review it), given that the “low POP content” values provisionally listed in Table 2 of the General POPs Technical Guidelines developed under the Basel Convention are not legally binding. These define the different options considered in the current impact assessment.

Further information on legal aspects relative to POP substances is provided in Annex V to this impact assessment report.

Subsidiarity: Necessity of EU action

Pollution by POPs cannot be solved by the Member States acting alone. The chemical substances considered are transported across internal EU boundaries far from their sources. Avoiding releases from waste is a priority in this respect. The protection of the environment and of human health through a system that guarantees the sound management of POP waste can only be efficient if common rules are defined and established at the EU level. This matter is further explained in section 2.1. on “problem definition”, in section 2.2.4 as regards the interface between chemical, product and waste legislation and is further illustrated by the reported implementation issues described in footnote 50 and in section 6.1.3, relative to PBDEs, of this impact assessment.

Consequently the measure supported by this impact assessment addresses at an EU level wastes containing newly listed POP substances under the Stockholm Convention, adapting to technical progress, as appropriate, the limit values of some substances already listed. Such obligations arise as a consequence of the implementation of the POPs Regulation, adopted in the year 2004 and recently recast in the year 2019.

No further considerations, regarding subsidiarity of this initiative, to specifically amend the waste annexes of the POPs Regulation, are considered necessary as these obligations stem from the existing legal framework. Further information on the processes of the Stockholm Convention, its Parties and on the operation of the POPs Regulation are provided in the introduction, in section 1.3 and in Annex V of this impact assessment report.

Subsidiarity: Added value of EU action

If national regulations were in place, cross-border effects could appear such as imbalances in the level of treatment of POP waste and there would be a risk of fragmentation of the Internal Market for the associated waste and recovered materials leading to unfair competition and uneven protection of human health and the environment, that should be avoided (see sections 2.1 and 2.2).

Following a similar reasoning, providing common limits and treatment standards for POP waste, including those that enable the recycling of certain materials from POP waste, provide legal certainty and thereby contribute to enhancing the recycling of materials from waste, for instance from WEEE, and the uptake of secondary raw materials in the EU.

4.Objectives: What is to be achieved?

The aim of this regulatory intervention is to update the threshold values set in Annexes IV and V of the POPs regulation, which determine how waste is treated, particularly whether waste can be recycled or it should be destroyed or irreversibly transformed. The POPs Regulation's overarching objective is the protection of human health and the environment against POP substances.

General objectives

Taking into account the overarching objective of the POPs Regulation, the general objectives of this initiative are to ensure – to the extent possible – an optimal balance with the European Green Deal's ambitions related to toxic-free material cycles, increasing recycling and circularity and reducing GHG emissions.

Figure 2: Objectives tree of the measure.

Transition to high-quality, toxic-free material cycles

As indicated the main objective of the POPs Regulation is the protection of human health and the environment against the adverse effects caused by POP substances. This overarching objective is embodied in this first general objective whereby management of POP waste, including is recycling where this is possible, should be carried out in an environmentally sound manner, with a minimal impact on human health and the environment. The resulting secondary materials should always be safe and fit-for-purpose and, to the greatest extent feasible, free of toxic substances. It will also reduce the extent of leaching of toxic substances to the environment, and thus contribute to the Zero-Pollution Ambition by reducing environmental and health impacts 61 . In order to achieve this, suitable, state-of-the art sorting and decontamination technologies must be available.

Increase circularity and recycling

It is essential to boost the production and uptake of secondary raw materials and to support the creation of a well-functioning internal market for them. This is one important part of the way towards a more circular economy, where the value of products, materials and resources is maintained in the economy for as long as possible, and the generation of waste minimised. This is also an essential contribution to the EU's efforts to develop a sustainable, low carbon, resource efficient and competitive economy.

A transition towards secondary materials of comparable quality and composition to primary materials must be ensured to strengthen their supply chain and the confidence of consumers in recycled materials and in products made from them.

Reduce Greenhouse Gas Emissions

All policy actions should to the extent possible contribute to the overarching objective of making the EU a carbon-neutral economy by 2050, as well as to meeting intermediate greenhouse gas emission reduction targets. Consequently the net greenhouse gas emissions resulting from the policy options chosen, taking into account the full life-cycle of associated materials and products, should not run counter to this objective.

Specific objectives

In very specific terms the objective of the measure is to list in the POPs Regulation new substances listed under the Stockholm Convention and to introduce or revise the limit values in its Annexes IV and V, for a defined set of substances, ensuring that the best possible balance is achieved in fulfilling the three general objectives listed above, taking into account the hierarchy of objectives described below.

Hierarchy of objectives

The objective of protection of transition to high quality, clean (toxic-free) material cycles captures the importance attached to human health and the environment and the precautionary principle. Therefore this objective is given a greater weight in the methodology used to propose limit values for POPs in waste, which is described in further detail in section 5.2 below and in Annex IV of this report.

In addition to including a human / environmental health benchmark values for each substance, associated to risks that may occur during waste disposal / recovery, the method applies a so called “target function” as an approach to apply the precautionary principle. This approach is further explained and illustrated in Annex IV, but in practice it results in proposing values which are as low as possible, limited only by analytical, practical or proportionality limitations. The proposed value is thereby usually the highest of the lower limitation criteria values determined.

The POPs Regulation also requires consideration of proportionality. The principle of proportionality is laid down in Article 5 of the Treaty on European Union. It seeks to set actions taken by EU institutions within specified bounds. Under this rule, the action of the EU must be limited to what is necessary to achieve the objectives of the Treaties. In other words, the content and form of the action must be in keeping with the aim pursued (in this case protection of human health and the environment). Article 5 of Protocol number 2 to the Treaty, on the application of the principles of subsidiarity and proportionality, further indicates that “draft legislative acts shall take account of the need for any burden, whether financial or administrative, falling upon the Union, national governments, regional or local authorities, economic operators and citizens, to be minimised and commensurate with the objective to be achieved”.

Article 7(1) of the POPs Regulation requires that producers and holders of waste undertake reasonable efforts to avoid contamination of waste with POP substances and recital 34 of the Regulation also recalls the principle of proportionality. Consequently, although the overarching objective of the limit values proposed in the impact assessment is human health and environmental protection, the Commission is still required to assess aspects associated to the other Green Deal objectives and aspects included in the methodology, such as economic feasibility or disposal capacity, in order to get to a balanced and proportionate proposal for the preferred policy option.

5.What are the available policy options?

What is the baseline from which options are assessed?

The baseline describes a situation where no changes would be introduced in Annexes IV and V to the POPs Regulation. This means that newly listed substances under the Convention would not be included in the relevant Annexes 62 . In the case of substances for which limits have already been set under the POPs Regulation, and for which scientific and technical progress advises that the values be reviewed, this change would also not happen.

In all of these cases, and beyond the fact that such inaction would mean, in the first case, failing to implement its obligation to ensure environmentally sound management of waste under both the Stockholm and Basel Conventions 63 , the result would be that the existing situation is maintained. Given that all options considered comprise the introduction of new limit values for newly listed substances or the tightening of existing ones, a general consequence can be deduced: under the baseline scenario waste containing the different POP substances would continue being managed as usual and less POP-containing waste would be destroyed than under the other options.

Any situation that does not lead to destruction or irreversible transformation of the POP substances is a potential source of future emissions. This can happen by reintroduction into the economy in products (which may result in exposure and emissions during their service life and upon becoming waste) or as leakage into the environment as a result of non-destructive waste management options (e.g. landfill, disposal on land for agricultural purposes, etc.). To a greater or lesser extent this unavoidably contributes to increased pollution by POPs, resulting in additional pressures on the environment and in the associated adverse impacts on human health, ecosystems and biodiversity.

The precise baseline is different for each substance and its related waste streams. A summary of the baseline and of the impacts associated to the options is provided in sections 6 and 7 of this report and further supporting information can be found in Annex VI to this report and, particularly, in the individual substance chapters in the support study by RPA(2021) 64 .

Methodology to set the limit values

The approach used to set the limit values is based on an established methodology. This methodology was originally developed in a study by BiPRO (2005) and subsequently used in further studies in support of the review of limit values for waste under the POPs Regulation done by ESWI (2011) and Ramboll (2019). Consequently this methodology was developed and promoted by the European Commission and has been subsequently introduced in guidance 65 issued at the international level under the Basel Convention. This methodology has been used in support of all previous amendments of annexes IV and V of the POPs Regulation (since 2004) and is, to our knowledge, broadly accepted by stakeholders.

The Commission considers the technical studies underpinning this assessment to constitute the best available evidence base. It takes account of hundreds of peer-reviewed and non-peer reviewed reports. The Commission services have reviewed the support studies and these are subject to quality control by the consultants that developed them. The Commission’s analysis is highly valued by members of the international community and are one of the few detailed inputs into the discussions on low-POP content limit values under Basel. The Commission is not aware of similar reports by other Parties that aggregate and analyse published information about POP substances in waste for proposing limit values in waste (other than a report published by Germany in 2015 in the context of the POPs Regulation).

This section summarises the key elements of this methodology. Further details can be found in Annex IV of this impact assessment.

Setting the limit values

The basic principle of the method to determine the Annex IV values is based on establishing the concentration range for a possible limit value for each of the relevant substances by means of a set of different lower and upper limitation criteria 

To determine the range of possible limit values for every substance, four lower and two upper limitation criteria are applied. The actual range is determined by the highest of the lower limitation criteria and the lowest of the upper limitation criteria.

The lower limitation criteria are the following:

·Analytical potential (A): It must be possible to control limit values analytically. Values presented in Annex VI correspond to quantification limits achievable in most laboratories, for unfavourable waste matrices and therefore are not the most sensitive quantification limit possible. This explains why for some substances these reported values are higher than reported background values. 

·Background contamination (B): Limit values should be above existing environmental background contamination.

·Disposal and recovery capacities (C): Limit values should be established in a way that the (new) required capacities for waste recovery and disposal are realistically available.

·Economic feasibility (D): costs to economic operators should not be disproportionate.

In addition, where a relevant unintentional trace contaminant (UTC) value has been defined in Annex I of the POPs Regulation, this value is also used as a lower limitation criteria. It is not considered proportionate to impose a stricter limit for the purpose of waste management that for the placing on the market of products.

The upper limitation criteria are the following:

·Risks (Y) (possible adverse effects on human health and the environment): Limit values should be established in a way that adverse effects on human health and the environment are avoided and human health and the environment are protected from persistent organic pollutants as far as possible.

·Existing limit values (Z) agreed at Union level: Limit values should not conflict with existing limit values (e.g. by exceeding them).

Figure 3: Methodology: lower and upper limitation criteria (ESWI 2011).

To reduce the range that results from these limitation criteria to a specific POP concentration limit the methodology applies two “target functions”:

·Target function I: "Reduce results for different waste matrices to the most unfavourable waste matrix". This function refers to the analytical potential criterion and ensures that a value is selected that is feasible and implementable for all relevant waste streams.

·Target function II: “Reduce the limit value to the lowest limit value within the feasible range of options” in the final decision on an Annex IV limit proposal in the range between upper and lower limitation criteria. This function contributes to ensuring the highest level of protection to human health and the environment via the application of the precautionary principle (referred to as “criterion X” in ESWI (2011).  See for instance the limitation criteria diagrams for HBCDD and SCCP in Annex VI where, in application of this criteria, and to take due account of difficulties in determining reliable health based limit values for some substances (see footnote 11 and Annex IV, section 4.3), the values proposed are lowered from the health based / existing limit value (upper limitation criteria to the highest of the lower limitation criteria.

The precautionary principle and the principle of proportionality

The precautionary principle is detailed in Article 191 of the Treaty on the Functioning of the European Union (TFEU). It aims at ensuring a higher level of protection through preventative decision-taking in the case of risk. It is also included in the Stockholm Convention (Articles 5-7). This is done in this impact assessment through "Target function II" of the methodology (cfr above), which puts the limit values at the lowest possible values.

As already indicated in section 1 (see footnote 11) for many POP substances, due to the non-threshold nature of some of their effects and because of their extreme persistency, it is not possible to scientifically define safe, no-effect limit values, at least for some of their adverse effects. This report compiles and uses such limits, where it has been possible to determine them, but the referred target function II, which implements the precautionary approach, takes this element of uncertainty into account by reducing the limit values proposed, to the extent feasible.

It flows from the Union principle of proportionality and from the specific reference to ‘reasonable efforts’ by producers and holders of waste in Article 7(1) of the POPs Regulation that, in implementing the POPs Regulation, the precautionary principle is to be applied in a proportionate manner. The principle of proportionality, set out in Article 5 of the Treaty on European Union, and recalled in recital 34 of the POPs Regulation, has been upheld in this impact assessment in three ways. First, in the methodology to set the limit values, "Target Function I" ensures that limit values are feasible and implementable for all relevant waste streams (cfr above)..

Furthermore, when assessing the proportionality of the proposed limit values, an assessment of economic feasibility for the main operators affected is carried-out. For transparency, diagrams provided in Annex VI for each substance provide, where relevant, several benchmarks for economic feasibility, associated to the different options under consideration (e.g for PBDEs and PCDD/Fs). Each assessment is case-specific and made, to the best judgement of the assessors in the responsible Commission service, on the basis of available information. Aspects such as the number, size and nature of stakeholders affected and their estimated capacity to absorb additional costs and investments, are taken into account, normally based on a qualitative analysis.

Second, as explained in Sections 4 and 6, the assessment of the impacts of the different options not only takes into account health and environment considerations, but also the Green Deal's objectives of toxic-free material cycles, increasing recycling and reducing GHG emissions

Third, a policy choice has been made as regards waste treatments that result in application on land, which avoids double regulation. This is done by leaving the regulation of limit values for POP substances associated very specific and sensitive waste treatment operations 66  to existing specific legislation, where relevant. This includes Directive 86/278/CEE (the Sewage Sludge Directive), currently under review and where limits are being considered for relevant organic pollutants; and Regulation (EU) 2019/1009 on EU fertilising products where limits for relevant organic substances are set for waste derived materials incorporated into fertilisers (which are applied on land).

Policy options

Description of the policy options

Given the existing provisions under the Stockholm Convention and the POPs Regulation, the Commission has no discretion regarding the choice of instrument or the substances to address. Consequently, the policy options considered in this impact assessment to support the initiative are exclusively linked to the precise limit values to be proposed for each substance concerned 67 and, potentially to the time for entry into application and the transitional periods.

As discussed in the problem definition section nine substances or substance groups are addressed in this impact assessment. They are all in the scope of the proposed amendment to adapt entries in Annexes IV and V of the POPs Regulation to changes in the substances listed in the Annexes to the Convention. The initiative also seeks to modify existing entries in these Annexes to adapt them to scientific and technical progress.

The obligations of the Commission regarding each of the substances in scope are summarised in the table below:

Table 2: Summary of reason to act, per substance in scope.

Policy Option 1: Baseline

Assuming no change under the baseline, the following would be the situation for the different substances or substance groups:

New Substances (for which there is no value in Annexes IV or V)

·Perfluorooctanoic acid (PFOA), its salts and PFOA-related compounds and dicofol – these are newly listed substances under the Stockholm Convention, and have to be included in the POPs Regulation with new limit values set for them for the first time. Under the baseline, this would not happen and the EU would be in breach of its international obligations.

·Perfluorohexane sulfonic acid (PFHxS), its salts and PFHxS-related compounds - these are envisaged to be listed by the Stockholm Convention in 2022 68 . At this point, and based on the current assessment, the Commission 69  together with the European Parliament and the Council 70  will need to include them in the proposal to amend Annexes IV and V of the POPs Regulation.

·Pentachlorophenol (PCP), its salts and esters – these substances were listed in annexes A and C of the Stockholm Convention in May 2015 and were introduced in Regulation (EC) No. 850/2004 in the year 2019. Due to administrative and procedural reasons these values could not be included in the POPs recast and consequently are currently not listed in Annexes IV or V of the POPs Regulation. A proposal has to be made to introduce this substance in Annexes IV and V of Regulation (EU) 2019/1021 (after it repealed the previous Regulation).

POPs listed in the POPs Regulation for which limit values are already set

·PBDEs, HBCDD, SCCP, Dioxins & Furans (PCDD/Fs) – these are already listed substances so under the baseline they would remain at their current limit values because their review is not considered appropriate (e.g. because of disproportionate impacts or no benefits expected). 

·Dioxin-like PCBs – These are currently addressed by the existing “group” entry for polychlorinated biphenyls (PCBs) in Annex IV which covers all 209 congeners (variants) of this substance. This report assesses the option of addressing a subgroup of 12 PCBs, known as dioxin-like PCBs, that closely resemble the toxic properties of dioxins and furans. Two approaches are possible, dealing with them on their own, as a separate group of substances, or together with dioxins and furans. Under the baseline, dioxin-like PCBs would not be addressed specifically (but only in a limited way under the current group value covering all PCBs).

Policy Option 2 – Medium value

In Policy Option 2, new limit values under Annex IV are established for the new substances and limit values are tightened for certain listed POPs where this could be justified. The former is the case for the newly listed substance PFOA, its salts and PFOA-related compounds as well as for PFHxS, its salts and PFHxS-related compounds, which are expected to be listed in the face-to-face segment, planned for June 2022, of the 10th meeting of the Conference of the Parties of the Stockholm Convention.

Exceptions where no medium level values are considered are:

·the new substance dicofol, because introducing a lower (stricter) limit value aligned with that of other listed organochlorine pesticides would be effective and have no measurable economic impact. Therefore only a single (lower) policy option is considered, captured under “option 3”.

·the pesticide PCP, which had been listed under the previous POPs Regulation and for which such value had already obtained political agreement in 2019. Therefore only a single (lower) policy option is considered, captured under “option 3”.

For the remaining existing substances in scope – PBDEs, HBCDD, SCCPs and dioxins & furans (including dl-PCBs) a middle limit value is considered in the impact assessment.

Policy Option 3 – Low value

Under Policy Option 3, stricter limit values under Annex IV are established for eight substances 71 . In the case of PBDEs Option 3 is analysed as two sub-options whereby Option 3a results in implementing the lower limit value immediately (estimated in 2021 for the purpose of calculations) and Option 3b with delayed implementation in 2027 (with Option 2 being implemented in the interim). 

In the case of PCDD/Fs, as explained also for option 4 below, an additional sub-option applicable only to direct application of waste on land was analysed, with a value based upon risk estimates of dioxins via the food-chain done by BiPRO in 2005.

Policy Option 4

A fourth policy option with an additional lower value, has been considered for dioxins and furans (PCDD/Fs). The reason for this additional option is to assess the proposal made by some NGOs to set a lower Annex IV value for these substances, as well as the additional sub-option to set a lower specific value to be used only as a limit for untreated waste applied directly on land (e.g. in agricultural applications).

It should be noted that for most substances and related waste streams in scope of this report, application on land (e.g. for agricultural purposes) is not relevant or the establishment of a single limit value protective of human / environmental health is possible, without causing a conflict between the upper and lower limitation criteria (e.g. where by setting a very low limit to mitigate specific risks associated to application on land would not at the same time create disproportionate economic impacts due to the associated impossibility to dispose of waste via a much lower risk disposal operation such as non-hazardous waste landfill, to which the same limit would apply).

When such conflict occurs, as in the case of PCDD/Fs, and as further explained section 6.3 and in Annex IV, a general limit is proposed, based on the health-based criterion associated to landfill disposal, and not that for land application.

Summary of policy options – Annex IV

Given that the scope, in terms of substances concerned, stems from the obligation to consider introducing or amending limit values for POP substances in waste, as required by Article 15(2) 72 of Regulation (EU) 2019/1021, the options analysed in this impact assessment are limited to the precise value to be set for the nine different substances of this initiative. In the case of dioxin-like PCBs, the assessment is done under the working hypothesis that, if the scientific-soundness of dealing with them specifically is confirmed 73 , they would be addressed via their possible incorporation into the group value for dioxins and furans.

The following table presents a range of values (policy options) for Annex IV for each substance / substance group considered:

Note: No baseline value is available for PFOA, PFHxS, dicofol and PCP given these are newly listed substances.

Table 3: Policy options for substances in scope of the impact assessment (except PCDD/Fs)

Table 4: Policy options for PCDD/Fs

*: The appropriateness of including dioxin-like PCBs in the group value for dioxins & furans is also assessed.

+/++: For dioxins and furans, Options 3 and 4 define a generally applicable value to all waste management operations. They each include a possible sub-option which would include an additional specific limit value (in brackets) that would apply only for application of waste on land.

#: This sub-option is studied under the hypothesis that it may be appropriate to define a separate limit value in Annex IV that would be only applicable to certain waste management operations involving the application of the POP waste on land (e.g. spreading of sewage sludge or ashes on land for agronomic purposes). It would apply in addition to a “general value”, listed in the top row, applicable to all waste. This sub-option is considered in the impact assessment, regardless of other legal or practical considerations regarding whether separate waste-treatment specific values, can be listed in Annex IV of the POPs Regulation.

Annex V values

Annex V values are referred to in Article 7(4)(b) of the POPs Regulation and are also known as “maximum POP concentration limits” (MPCLs). They define the maximum concentration limit in waste to which exemptions from destructive treatment apply for waste listed in part 2 of Annex V (and which meet or exceed the Annex IV value). Furthermore, footnote 1 of the table in Part 2 of Annex V of the Regulation also specifies that, for the specific wastes listed in part 2 of Annex V, disposal in a permanent underground storage facility for hazardous waste is permitted 75 , even in the maximum value in Annex V is exceeded.

Annex V values are very rarely used, have no influence on the recycling of waste and only determine a specific aspect of the final disposal of a limited set of waste types. Contrary to Annex IV values, Annex V values do not have an equivalent in the Stockholm Convention or in the technical guidelines developed under the Basel Convention. Further information is provided in section 4.1 of Annex IV to this impact assessment report.

Annex V values are considered and proposed for: PFOA, PFHxS, Pentachlorophenol and dicofol for which currently no values have been determined. In addition, a proposal is made to include the substance decaBDE into the Annex V group value for the other PBDE flame retardants. This is done for consistency reasons given the other listed PBDEs already have a group limit value in Annex V, but when decaBDE was first listed in Annex IV in 2019, such a change was not introduced in Annex V.

Options discarded at an early stage

The substance dicofol has been assessed but has not been subjected to a detailed impact assessment nor included in the support study (RPA(2021)). According to the information available from a previous study 76 there is sufficient evidence to conclude that waste streams containing this substances are no longer relevant in the EU. Hence, a limit is proposed to be set in Annex IV in line with the Union’s international commitments but will probably not have any significant impact on the ground in relation to waste streams.

The substance hexachlorobutadiene (HCBD) was initially assessed in the Ramboll (2019) study because of its inclusion in 2017 into Annex C of the Stockholm Convention (which lists unintentionally produced POPs which are subject to measures to reduce or eliminate releases from unintentional production). A value in Annex IV for HCBD already exists and HBCD is listed in Annex III of the POP Regulation (which addresses substances in Annex C of the Convention). Consequently, considering that the listing of the substance in Annex C of the Stockholm Convention does not require changes in the current Annex IV or V values, no further action is envisaged and this substance was excluded from the scope of this proposed amendment.

6.Impacts of the policy options and how they compare

The impacts of the policy options (Annex IV limits) 77 for each of the substances have been analysed based on the main problems and drivers identified (see Section 2) and on the general objectives (see Section 4). More specifically the focus of the analysis was to determine the following environmental, social and economic impacts associated to the different options, for each of the substances and related waste streams:

·Changes in the mass flows of POPs – how much is removed / destroyed?

·Estimated health and environmental benefits associated to the reduction in POPs emissions (e.g. in terms of reduced healthcare costs incurred). Reduction in emissions as proxy. Impacts on workers’ health and on the general population (consumers).

·Effectiveness of the measure. How do emission reductions projected compare to other existing emissions / sources of exposure? To what extent does the measure contribute to addressing the problem of exposure to the relevant POPs? Would other measures / instruments be better suited?

·Changes in the amounts of waste directed to different treatment options (recycling, incineration, landfill, etc.).

·Costs and benefits for waste producers and waste operators (especially for SMEs) resulting from the different treatment outcomes. This includes investment costs in equipment as well as additional monitoring / operational costs (e.g. analytical costs). Impacts on employment.

·Changes brought about in the availability / implementation of technologies – e.g. waste sorting and decontamination technologies.

·Administrative burden for both operators and public administrations. Need for additional controls, differences on permitting, administrative costs, enforcement costs.

·Indirect impacts brought about by changes in limit values – differences in national / regional implementation of rules on waste classification (hazardous – non-hazardous) and on waste shipments. Impact on customer perception and behaviour to recycled material.

·Changes in the amount of available secondary material resulting from recycling. Impacts on supply and quality of secondary materials including impact on users of secondary material. Impact on competitiveness and trade.

·Changes in greenhouse gas emissions associated to the different options.

Information on the identity of waste streams concerned, mass-flows, treatments and on the different types of impacts listed above have been obtained via desk research and stakeholder interviews carried out in the two main studies supporting this impact assessment [Ramboll (2019), RPA (2021)]. Information on stakeholder consultation and its outcome is provided in Annex II of this report with further details provided in the relevant sections of the two supporting studies.

Estimation of direct and indirect human health and environmental impacts, and allocation of these to the specific policy options is extremely challenging and in most cases impossible to do in a quantitative manner. This is due to the lack of specific information on exposure associated to specific substances and waste streams, the lack of specific health and environmental impact information associated to specific substances or even of agreed methodologies to quantify and monetise these. Risk profiles and risk management profiles for the different substances concerned, developed under the Stockholm Convention as part of the process to list the substances have been examined. Unfortunately, specific cost-benefit information associated to the restriction of the substance is scarce and when available are related to substitution costs for manufacturers and users of the substance, rather than to broader health and environmental impacts or aspects specifically related to POP waste.

Where quantitative information cannot be provided, assumptions are made based on broader impact studies and qualitative assessments. The underlying rationale is that any reduction in the emission of POPs will bring about a reduction in exposure and in overall environmental burden and, therefore, will be beneficial from the point of view of protection of human health and of the environment. This is underpinned by the application of the precautionary principle, one of the key elements considered in the development and implementation of the Stockholm Convention. The preferred policy option is determined, applying the methodology outlined in Annex IV to this impact assessment report, taking into account all elements, including information on estimated socio-economic impacts.

The consideration of CO2 emissions associated to the different policy options and their contribution to climate impacts is considered in this report for the first time and is addressed separately in the impact assessment by providing an estimate of the emissions. Figures used to assign an economic value to every tonne of emissions avoided, in terms of CO2 equivalents, are those published in the Handbook on the External Costs of Transport published by DG MOVE 78 . These values are based on mitigation modelling estimates. 

Finally, the COVID-19 pandemic has resulted in unprecedented global economic impact, including on commercial and industrial activity. Although, generally, the waste management sector has continued its operations, often recognised as an “essential service” by many countries, the pandemic has also brought about some changes. As reported by the International Finance Corporation 79  industrial and commercial waste production fell drastically, medical waste increased by up to 40%, recycling of plastic products slowed down substantially, disposal at landfills increased and use of single use plastics is increasing, largely driven by the use of personal protective equipment. Although none of these aspects are directly linked to the substances or policy options assessed, they describe a situation of high economic uncertainty that impacts on all activities 80 . This has been considered in defining the preferred policy option for some of the substances, where a cautious approach to mitigate impacts on the operators concerned is proposed.

Polybrominated diphenylethers (PBDEs)

What are they and why are they a problem?

Polybrominated diphenyl ethers (PBDEs) are a family of substances which are added to plastics and textiles and to a lesser extent to adhesives, sealants and coatings to make it more difficult that they catch fire and to slow down its propagation (these substances are known as flame-retardants). This impact assessment addresses five specific members of the PBDE family of brominated flame-retardants which are listed in Annex IV of the POPs Regulation: tetraBDE, pentaBDE, hexaBDE, heptaBDE and decaBDE.

Most PBDEs are not used or have been banned in the EU under the POPs Regulation for over a decade, although other brominated flame retardants such as decabromodiphenyl ethane (EBP) or TBBPA remain in use. DecaBDE was only banned, with some exceptions, in 2019 although its use as a flame-retardant in Europe was declining years before the ban. Under Directive 2011/65/EU (the RoHS Directive), PBDEs in electrical and electronic equipment should account for no more than 0.1% (1,000 mg/kg) by weight in homogenous material.

PBDEs can end up in the food and the water that we consume. They are persistent and accumulate in the bodies of animals and humans. In doing so they exert adverse effects on the organisms in which they accumulate. Exposure to PBDEs brings about disruption in the thyroid gland in humans and is associated with neurodevelopmental deficits, reproductive changes and cancer. The most significant known impact of PBDE exposure is the effect on neuropsychological development of children. From the environmental impact point of view PBDEs are endocrine disruptors and affect neurological and thyroid activity of many species and have potential impacts on population size and resilience.

Widespread contamination by PBDEs is estimated 81  to have human health costs in the EU of around €10 billion / year.

Baseline

PBDEs are found in plastic and textile waste from electrical and electronic equipment (WEEE) and end-of-life vehicles (ELV) as well as in some plastic construction and demolition waste and in other textiles such as the upholstery of furniture. In most of its applications in articles the substance is used at high concentrations (usually from several percentual units up to 15%) so that individual parts of the waste and waste fragments usually either contain a lot or very little, depending on whether they originate from treated or untreated articles (or parts of articles).

According to the available information 82 , obtained from 37 published studies between 2011-2018, at least 60-85% of WEEE plastics, 55%-80% of ELV plastics, 70-99% of construction & demolition (C&D) waste plastics and 60-95% of textile waste can be expected to contain less than 200 mg/kg PBDEs. In terms of their current and possible future recycling, WEEE and ELV plastic waste are the most important fractions. Demolition plastics containing PBDEs do not currently seem to be a very relevant waste stream but amounts generated will increase in the future. Very limited information is available on textile waste other than from ELV. Most is landfilled or incinerated and has a relatively short lifetime. It is envisaged that most remaining textile waste treated with PBDEs (e.g. upholstered furniture) will become waste in the decade of 2020 and will be disposed of (textile recycling is currently very limited).

WEEE and ELVs are currently recycled by undergoing a sequence of pre-treatments and treatments which generally imply limited manual separation of the most problematic (batteries, cathode ray tubes, etc) or economically relevant components (such as printed circuit boards containing valuable metals). This is followed by shredding into small fragments and separation of the different components via a number of automated processes. For smaller equipment, shredding often occurs without any prior treatment.

Mixed plastic fragments from WEEE and ELV are usually delivered in bulk to a limited number of specialised treatment facilities (some 30 are estimated to exist in the EU) where, by using different technologies, mixed plastics are separated into different types of plastic (e.g. ABS, HIPS, PP, etc.). The sorting process generally relies on the different densities of the plastics that contain PBDEs and other brominated flame retardants (which are heavier than plastics that do not contain them as additives) and results in a “high-bromine” heavier fraction and a “low-bromine” lighter fraction being ultimately produced 83 .

Currently the high bromine fraction contains about 92% of all the PBDEs in the incoming mixed plastic and after sorting it is disposed of, generally via incineration. For WEEE treatment facilities implementing CENELEC standards (series EN 50625 on WEEE treatment), the remaining PBDEs in the “low-bromine” fraction must comply with the depollution requirements according to which the “low-bromine” fraction must contain no more than 2,000 mg/kg of bromine. This value was, at the time 84 , demonstrated via sampling and analysis to statistically ensure that by meeting said bromine content limit value, the plastic waste complied, on average, with the limit of 1,000 mg/kg for the sum of listed PBDEs established in Annex IV of the POPs Regulation.

Currently about 1,300,000 t of WEEE plastics are separately collected every year in the EU resulting in 560,000 t of plastic being recycled (still containing some 60 t of PBDEs). The rest is mostly incinerated resulting in the destruction of some 730 t of PBDEs with another 25 t ending up in landfills. As regards ELV plastics, some 350,000 t are collected which results in some 100,000 t being recycled, together with 19 t of PBDEs. The rest of the material is landfilled (19 t PBDEs) or incinerated (13 t PBDEs). ELV textiles and other textiles represent a much smaller stream and are either not recycled or recycled to a rather small extent. Construction & demolition plastics are rarely separately collected (other than to some extent PVC) and are therefore currently subject to very limited recycling. It is estimated that 10,000 – 60,000 t of plastic C&D waste that contains PBDEs are generated each year and are mainly landfilled or incinerated.

According to Sofies (2020) 85 a very substantial amount of WEEE plastic generated in the EU is either unaccounted for (some 775,000 t), recycled via alternative sub-standard processes (307,000 t) or wrongly discarded as mixed municipal waste (226,000 t). A fraction of the first two is exported. This situation will continue to occur regardless of which of the policy options discussed in this study is adopted and represents a relevant source of pollution that has to be addressed by other means (e.g. by increasing separate collection rates, enforcement and tighter controls on waste exports).

Impacts of the policy options

Three options are considered for the Annex IV value for the sum of the 5 listed PBDEs:

·Option 1 is leaving the current baseline value of 1,000 mg/kg untouched;

·Option 2 is lowering to 500 mg/kg as requested by the co-legislator 86 during the recast of the POPs Regulation (and also equivalent to current UTC value in Annex I); and

·Option 3 represents the lower value option, decreasing the limit to 200 mg/kg, which is the lower limit proposed in Ramboll (2019) based on the methodology described in Annex IV of this report. Two sub-options are considered: immediate implementation 87 and delayed implementation in 2027.

In terms of its current recycling, the most relevant waste stream under consideration is plastic waste from EEE and from ELV. These are the waste streams for which more information is available and where impacts are expected to be greater. Consequently the impact assessment focuses on them. Further detailed supporting information on PBDEs can be found in annex VI of this impact assessment and, particularly in chapters 3, 11 and Annex 1 of RPA(2021).

Information on PBDE concentrations and arisings of PBDE-containing waste from construction and demolition and from textiles is very limited. RPA(2021) estimates that a relatively small amount of between 10,000 and 60,000 t of plastic C&D waste that contains PBDEs is generated every year and is either landfilled or incinerated. These amounts are expected to increase and plateau in 2040-2060. Some 190,000 t of ELV textiles are estimated to be generated every year, 92% of which is either incinerated or landfilled, mostly together with the shredder light fraction from ELV treatment. No information is available on the amounts of other textile waste currently generated that may contain PBDEs (e.g. from the upholstery of furniture).

The information available suggests that the impacts of Option 3 on C&D plastics and on textiles are likely to be very limited given their very low current recycling rates and, in the case of textiles, the relatively quick envisaged disappearance of PBDEs from the waste stream (shorter service life due to limited durability of textile material). These textile streams may deserve a more detailed assessment in the context of the upcoming Textiles Strategy.

The amounts of material diverted to different waste treatments under Options 2 and 3 over the period 2021-2035 have been estimated based on information on the distribution of concentrations of PBDEs in WEEE and ELV waste obtained from studies analysed by RPA (2021). No change with respect to the baseline is expected for Option 2. Two scenarios have been calculated for Option 3, one assuming implementation of the measure in 2021 and another where Option 2 would be implemented first, followed by Option 3, that would be implemented in the year 2027. The expected amounts are summarised in the table below.

Table 4 Impact on final treatment – tonnes diverted from recycling or landfilling over 2021-2035

No additional EEE or ELV waste is expected to be diverted to incineration under Option 2 (500 mg/kg). Under Option 3 it is estimated that 1% of EEE plastic waste and 2% of ELV plastic waste that are currently recycled or landfilled would be diverted to incineration 88 . Under Option 3 (200 mg/kg), a total of 83,200 tonnes is expected to be additionally incinerated over 2021-2035. This value is reduced to 38,900 t if the implementation of the measure is delayed to 2027 89 . 

Analytical results obtained from relevant articles and from EEE and ELV plastic waste fractions described in a number of studies [(further information in Annex VI and in RPA(2021)] 90 indicate that a large part of the sorted, low bromine fraction of WEEE and ELV waste already meets the 200 mg/kg limit. Given there are some uncertainties about the representativeness of these values to the whole industry and the influence of different input materials (such as highly brominated CRT 91 plastic), a typical value of 350 mg/kg, obtained from Sofies (2020) 92 , is taken as a realistic average concentration value, generally achievable today, for the listed PBDEs in sorted plastics from WEEE and ELV. 

This decrease in concentration of listed PBDEs is the result of previous upstream bans on these substances in products. Their concentrations in sorted WEEE plastics are expected to reach levels below 200 mg/kg in the mid-2020s whereas for sorted ELV plastics average concentrations of PBDEs are expected to remain of the order of 350 mg/kg until the early 2030s (due to the longer lifetimes of vehicles) and are envisaged to drop to below 200 mg/kg in the mid-2030s.

There is little doubt that the limit of 500 mg/kg can be met today as an average value for a homogeneous sample of sorted WEEE or ELV plastic waste given that recyclers confirm they are complying with the limit in Annex I of the POPs Regulation (established in 500 mg/kg since 2019). This limit applies to the plastic recyclate that recyclers place on the market, which is obtained by melting, homogenising and extruding the sorted low-bromine plastic waste fraction into pellets.

For WEEE and ELV plastic recyclers the diversion from recycling to incineration under Option 3 is estimated to result in a loss of revenue of 11 M€ plus additional waste management costs (incineration) of 7 M€, over the period 2021-2035 leading to maximum annual net losses of 3 M€ 93 for the sector. If option 2 is implemented first, followed by Option 3 applicable as of the year 2027, these costs would be reduced, amounting, respectively to 4 M€ and 2,5 M€ in that period and maximum annual net losses for recyclers of 1.1 M€ in 2027.

Some waste which is currently sent to landfill 94 would also have to be sent to incineration resulting in a decrease in revenue of 6 M€ for landfill operators (or 3 M€ if implementation is delayed to 2027). It is not clear which actors would bear the additional cost of 10 M€ (or 4 M€) resulting from incinerating waste that was being previously landfilled but this report assumes that this would also be borne by waste treatment operators (recyclers) in several of the steps of the WEEE/ELV treatment process. It is unclear whether part of the costs borne by recyclers are effectively covered by the producers of those products under Union and national extended producer responsibility systems (EPR) mandated by Directives 2000/53/EC (ELV) and 2012/19/EU (WEEE) and, ultimately to consumers 95 . 

In the same period operators of incinerators are envisaged to experience an increase in revenue of 17 M€ (or 7 M€ in the delayed implementation scenario) as a result of dealing with the waste than can no longer be recycled or sent to landfill under stricter Option 3 values. As can be seen, most of these economic impacts are distributional where the decrease in revenue by landfill operators results in an increase by incinerators and where a decrease in revenue for recyclers from the sale of recovered materials results in an increase in the revenue of producers of primary plastics.

In addition, in order to be able to systematically meet the limit in Option 3 some specialised WEEE/ELV plastic recyclers will need to invest in improving their sorting efficiency. Based on the assumption of 30 specialised facilities 96 in the EU, of which 50% would have to invest in improvements, this would result in a one-off capital expenditure of 7,5 – 15 M€ for the sector or of 500,000 – 1,000,000 € per company. If option 3 is implemented only in 2027 these costs would be reduced to a maximum of approximately 800,000 € per company. 

Impacts on operators of waste incineration plants have also been estimated. Under Option 2 no impacts are expected but under Option 3 a total of 33,500 t of secondary plastic that could be recycled under current limits would be diverted to incineration in the 2021-2035 period. This figure would be reduced to 14,400 t in the event of delayed implementation and would affect only ELV plastics. Given the amounts of waste deviated are relatively modest it is expected that the waste incineration industry will be able to absorb this additional material without any major problems.

Based on the above figures for Option 3 the maximum amount of WEEE plastic waste diverted from recycling in a given year has been estimated to be 2,800 tonnes, which would have a negligible impact on WEEE plastic recycling rates 97 . This impact would be even smaller on the overall WEEE recycling rates and therefore also on the achievement of the WEEE recycling targets set out in the WEEE Directive.

Producers of articles having to substitute this recycled material by primary (virgin) plastic would incur increased cost of 17 M€ over this period (due to higher price of primary plastic) which would be reduced to 6 M€ in the event of delayed implementation in 2027. According to the predictions of the model the costs per year start at €3.1 million in 2021 and decline to €0.2 million in 2035. Given this impact would be spread over many companies it is estimated it would be very small per individual company.

No significant impacts on the market or on employment are expected from the introduction of Option 2 given that WEEE and ELV recyclers in the EU already produce recyclate compliant with this limit, obtained from the sorted low-bromine plastic waste fraction 98 . As indicated above, a limited impact is expected from Option 3, especially on smaller recyclers, which would have to bear losses of revenue, additional waste management costs and potentially one-off expenses in improvement of their sorting equipment. This impact would be reduced in the event of delayed implementation.

It is important to note that stakeholder associations representing WEEE and ELV recyclers, a majority of which are SMEs, have indicated that both Options 2 and 3 would cause significant disruptions in recycling. A number of reasons have been given for this including concerns that the required limits cannot be achieved in a consistent manner with the current technology in place and that the available analytical method to check compliance with the limit values on-site is not validated to reliably measure these values. In addition, these stakeholders consider that revising the limit value for PBDEs, which were reviewed already in 2019, introduces uncertainty and does not promote investment in upgrading existing installations or investing in new ones. These stakeholders call for stability and legal certainty and consider themselves to be over-regulated, not only by the POPs Regulation but also by other relevant legislation such as REACH, the WEEE Directive and the RoHS Directive.

The information available regarding concentrations of PBDEs in sorted and unsorted WEEE/ELV plastics, although subject to some uncertainty about its representativeness for the whole recycling sector, do not support the first claim. This is especially so for Option 2. There are indications that Option 3 values are also often already be met but may still require a number of years, together with the introduction of improved sorting equipment, to be systematically achieved by a majority of recyclers 99 .

The second claim, regarding the lack of a validated analytical method is not supported by the operating range reported in the relevant European standard 100  , nor its underlying validation data which includes samples below 100 mg Br/kg 101 . Other stakeholders, including NGOs and managers of hazardous waste, do not support these claims. Regardless of this, given that according to Sofies (2020) available statistical information indicates that currently the measured bromine concentration in WEEE/ELV plastic correlates with 1/6 of this value expressed as content in listed PBDEs. Therefore, measuring 1000 mg/kg bromine will enable detecting 170 mg/kg of listed PBDEs. This is below the Option 3 limit and, therefore, measurable within the claimed validated interval 102 .

The discussion on the analytical method is complicated by the difference between what actually is being measured with the mentioned standard method (Br content) and the basis of the legal requirement (content of 5 listed PBDEs). The future reliability and performance of the EN standard method in terms of the required limit for PBDEs depends on the evolution of the fraction of Br in plastic that comes from listed PBDEs in comparison with the fraction of the Br in plastic that comes from other Br-containing substances. Assuming that the use of the listed PBDEs will decrease faster than the use of other Br-containing substances, the current (indirect) PBDE-detection limit would decrease over time. It is important to observe this trend in the coming years.

The same stakeholders, representing WEEE and ELV recyclers, have also expressed concern that the lowering of Annex IV limits to Option 2 and 3 values will have an impact on the classification of the plastic waste as hazardous. This in turn would increase waste transport and management costs and create additional barriers to the shipment of these waste within the EU resulting in greater costs, administrative burden 103 and reduced availability of material for recycling. They also consider that by making it more difficult that WEEE/ELV waste reaches authorised operators like themselves there is a high likelihood that larger amounts of these wastes will be exported, recycled under sub-standard conditions or directly disposed of in landfills or dumped illegally.

In this regard it is important to recall that meeting or exceeding Annex IV values for PBDEs does not determine, according to current EU waste legislation, whether waste will be classified as hazardous or not, so lowering these values should, as such, have no impact on the classification of plastic WEEE/ELV waste as hazardous 104 . It is acknowledged that, based on stakeholder reports, there may be national / regional implementations of the Waste Framework Directive that result in WEEE/ELV plastic waste being classified as hazardous waste 105 , or being subjected to additional provisions 106 and that this may cause disruptions in the availability and trade of these wastes. It has not been possible to confirm or determine the magnitude of these potential impacts 107 which, in any event, seem difficult to address in the context of this impact assessment, given they do not result from any legal obligation under the EU legislation associated to the options being considered.

It would seem that any potential impacts that may arise from the referred national / regional implementations should be addressed, as appropriate, together with Member States, in the context of the implementation of the Waste Framework Directive and of the Waste Shipment Regulation (currently under review).

The different options considered also have an impact on CO2 emissions associated to waste management. These occur due to 1) displacement of recycled plastics with virgin plastics; 2) direct emissions from incineration; and 3) transport emissions. It has been estimated that Option 2 has no impact and that implementing Option 3 would result in additional CO2 emissions of approximately 153,000 t over the period 2021-2035. These emissions are relatively minor representing 0.004% of the total GHG generated by households and industry in the EU-27 in one year (4 billion tonnes of CO2 equivalents in 2018 108 ). If implementation of Option 3 is delayed to 2027 the additional emissions would be of about 74,000 t CO2 equivalents over the period 2027-2035. 

In addition to CO2 emissions, polybrominated dibenzo-p-dioxins and dibenzofurans (PBDDs/PBDFs) can be generated from combustion and incineration of waste containing PBDEs. These substances are thought to have similar toxicity to dioxins and furans although no toxicity equivalence factors have been assigned to these by the WHO. The additional incineration of WEEE/ELV plastic waste resulting from Option 3 could result in the emission of additional amounts of PBDDs/PBDFs to the atmosphere. It has not been possible to estimate the amount of these emissions nor the magnitude, if any, of its effects. If incineration is carried out according to technical standards currently specified in the Industrial Emissions Directive it is expected that these emissions will be very small.

Conclusion on preferred policy option

As described in the limitations criteria table and diagram in section 6.6 of the Annex to this report, the highest of the lower limitation criteria is determined by the current unintentional trace contaminant limit of 500 mg/kg, below which PBDEs can be placed on the market in mixtures and articles. This corresponds to Option 2 in this impact assessment.

In view of all the above it seems clear that Option 2 is already being achieved by WEEE and ELV recyclers and therefore any impacts, both positive or negative will only result from the implementation of Option 3. However, given that:

1.there is some uncertainty about the capacity of specialised WEEE and ELV plastics recycling facilities to be able to consistently produce a low-bromine plastic fraction that would meet the Option 3 limit and;

2.some years would be required to carry out and implement the necessary investments to improve sorting equipment, as well as take advantage of the naturally declining concentrations of PBDEs in this type of waste;

3.some uncertainties exist as regards indirect impacts, unrelated to the measure itself, but associated to a) national / regional implementation of rules on hazardous waste classification and their relation with Annex IV limits and b) revised waste shipment rules for plastic waste, which may require further consideration by the Commission together with Member States;

4. considering that the current limit in Annex I of the Regulation, applicable to products placed on the marker is set at 500 mg/kg (subject to review);

it is concluded that it would be appropriate to define Option 3 (200 mg/kg) as the preferred policy option but delaying its implementation by 5 years after the adoption of the Regulation amending Annexes IV and V of the POP Regulation (estimated in 2021/2). This option is consistent with the application of the methodology described in Annex IV of this report (where after the UTC lower limitation criterion, the following lower limiting criteria are economic criteria E1 (200 mg/kg) and E2 (350 mg/kg), having different economic impact levels. The preferred policy option is consistent with the methodology outlined in Annex IV, given the proposal for a lower limit value to be applied five years after adoption is made under the assumption that the UTC value of 500 mg/kg, which currently is the highest of the lower limitation criteria, will have been reduced by then, with values E1 and the closely related A2 (170 mg/kg) becoming the new lower limitation criteria (rounded to 200 mg/kg).

Consequently, and based on the proportionality and effectiveness considerations outlined above, reduction in two steps of the Annex IV limit for PBDEs is proposed.

This translates into the initial application of Option 2 (500 mg/kg) and its subsequent automatic lowering to 200 mg/kg 5 years after entry into force 109 of the initial measure (i.e Option 3 limit would apply approximately in the year 2027). This is consistent with the fact that, currently, the limit in Annex I of the POP regulation is set at 500 mg/kg 110 (as it does not seem appropriate to set a stricter limit to regulate waste management than to enable the placing on the market as a product). To take this into account, a provision should be included in the measure to alternatively set the limit value to the value for PBDEs in Annex I at that time, if this is higher than the value of 200 mg/kg proposed for Annex IV.

As regards the Annex V limit, it is proposed to follow the recommendation in Ramboll (2019) to integrate decaBDE into the PBDE group value in Annex V of the POPs Regulation which is already established to 10,000 mg/kg. As indicated in section 4.3, no reliable applicable health-based reference value could be determined for decaBDE. Given that an agreed Annex V value already exists for the sum of the other PBDEs of higher toxicological concern, and considering that a (rough) estimate of a possible health-based Annex V value based on a typical concentration of decaBDE in sediments would largely exceed the current value, it is proposed to maintain the limit for the sum of PBDEs at 10,000 mg/kg, integrating decaBDE into the existing sum value.

As explained in section 5.3.3 no impacts, and therefore no costs, are expected from changes proposed to Annex V. This is because such limits are very rarely applied and, in practice, would only result in some waste being (potentially) directed for disposal to underground storage in a hazardous waste facility rather than being disposed in a hazardous waste landfill. In the specific case of WEEE/ELV plastics containing PBDEs exceeding the Annex IV limits, these are currently already largely sent to incineration facilities and the Annex V value is not applied.

Hexabromocyclododecane (HBCDD)

What is it and why is it a problem?

Hexabromocyclododecane 111 (HBCDD) entered the world market in the late 1960s and since then was used as a flame retardant in insulation boards in the construction sector. The main use of HBCDD in the EU (90 %) was in expanded and extruded polystyrene (EPS and XPS) used in this type of insulation. Approximately 6% of HBCDD was used in EPS packaging and about 2% of the total consumption of HBCDD was in high impact polystyrene (HIPS), a plastic used in electronic products and articles. Another 2% was used in textile coatings. Ramboll (2019) estimated that between 1988 and 2017 almost 222,000 t of HBCDD have been used in the EU in the different applications of which 193,000 t still had to become waste in 2017 (i.e. were still in service life).

HBCDD was listed in 2013 under Annex A of the Stockholm Convention, where parties must take measures to eliminate their production and use (from 2014). The substance is listed in Annex IV of the POPs Regulation since March 2016 with a concentration limit of 1,000 mg/kg. The Annex IV value for HBCDD was subject to be reviewed by the Commission by 20 April 2019 112 .

The consumption/demand of HBCDD in EPS/XPS outside the construction industry stopped in 2014. In the EU, HBCDD was used in EPS and XPS in construction until 2017 in typical functional concentrations of 0.7 and 1.5%, respectively. Today there is no more production, trade or use of HBCDD in the EU. Unintentional traces of the substance below 100 mg/kg are tolerated under Annex I of the POPs Regulation, including HBCDD present as a legacy additive in secondary raw materials.

HBCDD has a strong potential to bioaccumulate and biomagnify. It is persistent in the environment and has a potential for long-range environmental transport. It is very toxic to aquatic organisms. Information on the human toxicity of HBCDD is to a great extent lacking but vulnerable groups could be at risk, particularly due to the observed effects on development and on the neuroendocrine system.

Baseline

The most relevant waste streams due to historic use, imports or cross-contamination are: (1) EPS in construction, (2) XPS in construction and (3) EPS in packaging. HBCDD in waste streams containing HIPS from the electronics sector is still relevant at low levels but will decrease from the beginning of the 2020s. The relevance of HBCDD in textile waste is also already decreasing.

HBCDD has not been used in packaging since 2016 (or earlier) and, due to the nature of use of packaging, has short lifetimes. This suggests that most packaging with HBCDD should have already disappeared from waste streams. In addition, where it has been recycled, the trace contaminant limit in Annex I of the POPs Regulation (100 mg/kg) should ensure low levels of HBCDD in new products. There are however some concerns due to HBCDD being detected in consumer products/packaging, and about potential cross-contamination of packaging EPS/XPS as a result of being collected / mixed with insulation material coming from demolition. Furthermore, a small part of the goods imported from Asia into the EU may still contain packaging with HBCDD (Ramboll, 2019). About 390,000 t of EPS/XPS packaging were generated in the EU in 2017.

Given the expected low average concentrations of HBCDD in WEEE and textile waste, these two waste streams are not considered further and focus is placed on insulation boards used in construction and on packaging.

Based on very limited information RPA(2021) estimates that there could be approximately 100 recyclers, most probably SMEs, dedicated to EPS/XPS packaging in the EU, although this figure is highly uncertain. The number of recyclers that specifically deal with EPS/XPS insulation panels in the EU is unknown. There are an estimated 1,000 – 4,000 companies recycling construction and demolition waste in the EU of which the vast majority are micro or small companies. However many of these surely do not recycle insulation panels. According to material flows developed by Ramboll (2019) about 99,000 t and 33,000 t of EPS and XPS insulation waste were generated in the EU, respectively, in 2017.

EPS/XPS insulation used in construction comes in several forms the most relevant being the so-called “external thermal insulation composite systems” (ETICS) and flat roof and floor insulation. The former contain about 10% of insulation foam, which is tightly adhered to the mineral material (bricks, concrete, etc.), the latter are relatively easy to disassemble and separate. The issue at hand is that for proper treatment the insulation material has to be segregated and separately collected. This is very often not the case. In the case of ETICS the insulation is tightly bound to the mineral material, making it very difficult to separate and all generally ends up crushed and mixed with mineral demolition waste. This material will be usually either recycled as aggregate 113 or disposed of in non-hazardous or inert waste landfills.

There are both field and analytical methods that can be used to measure and detect HBCDD in materials, although these are not specific for waste and some are not validated below the current Annex IV value. As discussed for PBDEs, there is a field method using XRF hand-held equipment that can detect bromine (which is used as a proxy given bromine is present in HBCDD). This method is however not specific and, although currently detecting bromine is an almost certain indication of the presence of HBCDD in insulation, the recent substitution of this substance by a polymeric brominated compound, suggests that in the future this will no longer be conclusive. A somewhat more complex field method is available, which requires prior extraction and XRF detection of bromine, which allows distinguishing between the two additives. It can quantify HBCDD above 50 mg/kg but the method seems to have only been tested at concentrations above 6,500 mg/kg (which is the lower end of the functional concentration in EPS). Finally there is a laboratory method 114 for electrotechnical equipment the development of which is currently being finalised. This method is expected to be able to quantify HBCDD above 150 mg/kg, but it seems to only have been tested to measure concentrations above 1,000 mg/kg. Other methods are available in the scientific literature 115 .

Given the past almost universal use of HBCDD in EPS/XPS insulation material, some stakeholders representing former producers and users of HBCDD in the polystyrene insulation foam sector 116  argue that there is no point in analysing or attempting to sort EPS/XPS demolition waste given that it will always exceed the current limit. However, other sources indicate that HBCDD-containing insulation material was 0% until the end of the 1970s, increased to 75% in the early 1980s and rose steadily to 95% in 2002-2014, but never reached 100% (Conversio, 2020). The HBCD Industry Group noted that in 2018 approximately 80kt (~57%) of European EPS/XPS demolition waste contained HBCDD and Ramboll (2019), quoting Giraf (2018), concluded that 70% of EPS/XPS from C&D waste contained HBCDD in concentrations above 1,000 mg/kg.

The treatment of EPS/XPS waste varies widely between EU countries. Conversio (2020) 117 estimates the following distributions:

Figure 4: Distribution of EPS/XPS waste treatment between EU countries.

On average, according to figures quoted in RPA(2021) 78% of this waste is incinerated, 21% landfilled and 1% recycled (mechanically). If post-industrial EPS/XPS is taken into account the incineration figure decreases and landfill increases.

As regards EPS/XPS packaging, recycling, landfill and incineration are evenly distributed. Currently EPS/XPS obtained from packaging generally has very low concentrations of HBCDD which only increase if the material is contaminated due to mixing with demolition EPS. Some introduction of HBCDD into the EU in imported packaging is also possible (although not allowed).

A recycling plant for compacted HBCDD-EPS and XPS that uses the CreaSolv® decontamination process is under construction in the Netherlands by the consortium PolyStyreneLoop. According to them, 1 tonne of reusable polystyrene (with HBCDD content <UTC of 100 mg/kg) can be obtained from every 1.1 tonnes of waste polystyrene. In the process, HBCDD is separated and bromine is recovered by incineration of HBCDD for reuse by the bromine industry 118 . It is envisaged that in its third year of operation this demonstration plant will be able to process 3,000 t/year. This is clearly a small part of EPS/XPS insulation waste produced but may become a promising alternative to recycle the increasing amounts of this waste that will continue to be generated well up to the year 2070 (peaking in the 2050s). A study carried out by Conversio (2020) shows that approximately 30% of the EPS/XPS waste containing HBCDD has a potential to be recycled by PolyStyrene Loop.

Impacts of the policy options

Three options for an Annex IV value are considered in this impact assessment:

1,000 mg/kg (Option 1) – current baseline. Value in Annex IV.

500 mg/kg (Option 2) – Intermediate value between the baseline and the current UTC value, corresponding to mid-range resulting from Ramboll (2019) assessment.

100 mg/kg (Option 3) – Current UTC value in Annex 1. Lower end of the range considered by Ramboll (2019) applying the “methodology” described in Annex IV of this report. This value is also advocated by some NGOs (eg. IPEN).

Based on available information and comparison with the current situation, it is expected that Options 2 or 3 would not result in a significant diversion of waste from recycling to disposal or there is insufficient information to assess whether waste diversion would occur:

·EPS/XPS insulation panels have functional concentrations above Option 1 and the vast majority of end-of-life EPS/XPS insulation panels currently contain HBCDD – thus no change is expected under any of the options. The situation is expected to change in the future when non-HBCDD EPS/XPS insulation panels (containing alternative polymeric flame retardant) increasingly become waste. Mixing of HBCDD-containing and non-containing insulation panels cannot be ruled out in the future (although should be avoided). In such instances, reducing the Annex IV value to Option 2 (500 mg/kg) and furthermore to 3 (100 mg/kg) might have an impact, in terms of diversion of material from mechanical recycling to incineration, which the supporting studies have not been able to estimate.

·Almost all EPS/XPS packaging that contains HBCDD is expected to already have become waste. Current average concentrations have been estimated to be very low, suggesting no impact on final treatment outcomes from Options 2 or 3. However, cross-contamination between EPS/XPS packaging and EPS/XPS demolition waste can cause the average concentrations to increase. Furthermore, it cannot be ruled out that some imported packaging may contain HBCDD.

EPS/XPS insulation panels in mixed demolition waste

Although there is no information available on the concentration of HBCDD in mixed demolition waste, it cannot be ruled out that Options 2 (500 m/kg) or 3 (100 mg/kg) would have an impact on mixed C&D waste that contains fragments of EPS/XPS insulation panels that have not been segregated into a separate waste stream 119 . This fraction is expected to be landfilled (or processed for recycling into aggregate). 

Available information suggests that, in order to exceed Option 1, insulation panels would have to account for approximately 10% of the weight of the mixed mineral C&D waste fraction. This seems highly unlikely.

However, it is hypothesised that under Options 2 and 3, EPS/XPS contamination would need to account for only 5% and 1% by weight (respectively) of the mixed fraction for the Annex IV limit value to be exceeded. It is therefore more likely that waste would be diverted from being disposed of in a non-hazardous landfill to incineration or disposal in a hazardous waste landfill (or from recycling into aggregates) under Option 2 (500 mg/kg), and especially Option 3 (100 mg/kg), than under Option 1 (1,000 mg/kg). Given the comparably much lower density of EPS/XPS as compared with, e.g. concrete, the likelihood of exceeding 5% by weight seems however small (or indicative of poor sorting).

Due to the size of this waste stream 120 , it is expected that there would be insufficient capacities to incinerate the diverted waste. It is noted that other options such as disposal in a hazardous landfill or underground storage can be authorised for several categories of C&D waste up to the Annex V value, in accordance with Part 2 Annex V of the POPs Regulation. There is a risk of high economic impact due to the high costs of depositing waste in a hazardous waste landfill or underground hazardous waste storage facilities. There is currently not enough information to estimate such impacts with certainty.

Several industrial stakeholders have indicated they expect that lowering the Annex IV values to either Options 2 or 3 would be negative for demolition companies and recyclers as this would increase the testing costs 121 for demolition companies dealing with EPS/XPS insulation waste and, in the future for the PolystyreneLoop consortium itself. Although this cannot be ruled out, the rationale for this is not clear given that currently the vast majority of EPS/XPS insulation waste already largely exceeds the baseline limit value. On the other hand, the majority of packaging waste has concentrations largely below the lowest of the options considered (and therefore no changes are expected). 

The need for testing, both now and in the future may however arise if clean and contaminated insulation waste, or insulation and packaging waste, become mixed during waste collection and treatment. Approaches to minimise this risk exist, such as improved sorting during demolition 122 and maintaining waste streams separated during collection and treatment in accordance with Article 11(1) of the Waste Framework Directive.  

It has not been possible to estimate these testing costs. By way of reference, field analytical techniques for bromine / HBCDD are reported to have a cost per sample of 10-20 € and require an initial investment in portable XRF equipment of the order of 30,000 € per company 123 . If samples have to be sent for analysis to a laboratory the costs are estimated to range from 200 – 300€ per sample and require a few days for the result to be delivered. Some of these testing costs could be avoided if in future new insulation materials would be marked or labelled as “HBCDD-free”.

Given some EPS/XPS still remains in the mixed mineral demolition waste that is landfilled or recycled, impacts from Option 2 or Option 3 might occur. There is insufficient information to quantify the extent of this diversion but two hypothetical scenarios can be formulated:

·1% of all mixed non-hazardous C&D waste (3.2 million tonnes per year) is diverted from a non-hazardous to a hazardous landfill under Option 3 (100 mg/kg); 

·0.2% (640,000 t / year) is diverted under Option 2 (500 mg/kg).

According to EUROSTAT, 27.15 Mt of hazardous waste were landfilled in the EU27 in 2018. The potential amount of waste sent to hazardous waste landfill under Option 2 represents 2.36% of this amount and considered within what could reasonably be absorbed by current landfill capacity (max increase estimated to be 5%). That would be largely exceeded by Option 3. The additional costs of landfilling in a hazardous waste landfill would be of 635 M€ and 135 M€, respectively. This estimation is however highly uncertain. Producers and recyclers of mixed C&D waste would potentially also potentially incur in high testing costs for HBCDD in order to check compliance with the new limit value.

Finally, as in the case of PBDEs in WEEE/ELV plastic waste, it cannot be ruled out that differing national / regional implementations of the waste legislation could result in that waste exceeding Annex IV limits would be classified as hazardous waste. It should be noted however that according to the limits set in Annex III of the Waste Framework Directive, waste containing HBCDD should only be classified as hazardous waste above a concentration of 2,500 mg/kg 124 and therefore, should be unaffected by all options under discussion. These possible effects cannot currently be quantified and, if they exist, will differ widely between Member States and even between regions in Member States.

EPS/XPS Packaging

The information available suggests that the current concentrations of HBCDD in packaging waste are likely to be relatively low but some end-of-life products may contain significant HBCDD concentrations. Whether companies involved in the recycling of EPS packaging would be impacted depends on whether further testing would be required. Given that testing of the final recycled material that is placed on the market is already required to meet the UTC of 100 mg/kg it is not envisaged such testing would result in significant additional obligations.

CO2 emissions

Building on estimates by BIR (2020) 125 and Deloitte (2017) 126 additional CO2-eq emissions are expected to arise as a result of potential diversion of EPS/XPS packaging from recycling or landfill to incineration. Approximately 50% of the EPS/XPS packaging waste that would have to be additionally incinerated would be diverted from recycling and approximately 50% would be diverted from landfill. The same division is assumed for C&D waste containing EPS/XPS insulation panels. For every tonne of EPS/XPS recycled 20.9 t CO2e are offset. If the material is incinerated an additional 0.9 t of direct CO2 emissions per tonne of the material are generated.

Given the very limited quantitative information available, it is not possible to carryout reliable estimations of waste diverted from one treatment to another under Options 2 or 3. Consequently, it is also impossible to estimate benefits to human health or the environment in a quantitative manner. Any increase in the amount of HBCDD diverted to destructive treatment (normally incineration) will result in a reduction of the overall stock of HBCDD in waste and consequently a reduction in the risk of HBCDD being emitted to the environment and impacting the health of humans (via the environment) or of ecosystems.

Conclusion on preferred policy option

It is expected that Option 2 (500 m/kg) and Option 3 (100 mg/kg) would have only limited impact on the final treatment of HBCDD-containing waste and on the operators handling it, with the exception of mixed mineral C&D waste with HBCDD-containing EPS/XPS present as an impurity, where these effects cannot be ruled-out.

The key waste stream (separated EPS/XPS insulation in C&D waste) is already effectively directed towards incineration (or, perhaps in the future, to recycling) by the current Annex IV limit of 1,000 mg/kg. This is because HBCDD-containing EPS/XPS insulation panels already now generally contain more than 1,000 mg/kg HBCDD. In the future however, some 25 – 50 years from now, there will be a mixed generation of insulation panel demolition waste containing either HBCDD or the (alternative) polymeric flame retardant. In such a situation, having lower annex IV values may become an incentive to ensure more effective segregation and sorting of contaminated panel waste for elimination (or decontamination and recycling if suitable technologies are then in place).

Given that in the short/medium term there seem to be limited benefits in lowering the HBCDD values in Annex IV and that considerable uncertainties remain about the economic impacts on recycling and disposal of mixed demolition waste, which could potentially be very substantial, some caution seems warranted as regards proposed preferred policy option.

Therefore, it is proposed that policy Option 2, which has a lower risk of adverse direct economic impacts, is followed. This limit could be considered for future reassessment once more information is available on the presence, amounts and treatment of EPS/XPS insulation material bound to demolition waste. In addition such a delay would allow the further development of both improved field and laboratory analytical methods and in particular, their validation to the desired, lower analytical limits.

This proposal is consistent with the application of the methodology described in Annex IV of this report and further illustrated in section 6.6.2 of Annex VI. The upper limitation criterion is defined by the estimated health based criterion (1,000 mg/kg) which, following its rounding down, coincides with the current Annex IV limit value. The lower limitation criterion, based on disposal capacity to hazardous waste landfill (DR1 in the limitation criteria diagram Annex VI) and potentially also on economic concerns associated to the management of mixed demolition waste is of 500 mg/kg. Based on the methodology described, and following the application of target function II, the value proposed is the highest of the lower limitation criteria.

An additional argument in support or adopting a cautious approach and not lowering the value in Annex IV to the lower Option 3 is that mineral construction & demolition waste is the largest waste stream in the EU and is one of the priorities for action both in the CEAP as well as in the Waste Framework Directive. In the latter, the introduction of material-stream specific recycling targets for C&D waste has to be considered by the Commission by the end of 2024. Introducing lower Annex IV limits that may impact the waste management of large amounts of construction and demolition waste, without having sufficient information on the impact, or on how the problem could be addressed (if it really exists), is considered not to be justified in view of the, a priori, very limited benefits to be obtained.

Further information on this matter will become available through an on-going project being carried out for DG Environment by the JRC which specifically investigates the feasibility of developing recycling targets for specific streams of C&D waste, including insulation waste.

Finally, it should be stressed that, particularly in the case of this substance, the impact of changing values in Annex IV on the quality of recycled materials re-entering the market is questionable, given this is already determined by the Annex I value, which is set at 100 mg/kg (equivalent to the Option 3 value).

There is no reason to review the Annex V value for HBCDD currently established at 1,000 mg/kg. With the current value most HBCDD-containing insulation waste exceeding the Annex IV limit, would also exceed the Annex V limit. In the event of a national derogation from being subjected to a destructive treatment this waste could only be allowed to be disposed in a permanent underground storage installation for hazardous waste.

Dioxins and furans (PCDD/Fs)

What are they and why are they a problem?

Polychlorinated dibenzo-p-dioxins (PCDDs, dioxins) and polychlorinated dibenzofurans (PCDFs, furans) are two families of substances that consist of 75 and 135 members (congeners) respectively. They differ widely in chlorine content and toxicity. 13 dioxins and 4 furans are included in Annexes III, IV and V of the POPs Regulation. A full list of the substances covered can be found in the relevant chapter in RPA(2021).

PCDDs and PCDFs are formed as by-products in combustion processes in incinerators (especially from burning of waste) and other installations where organic material is burnt (including smelters). They are also produced unintentionally in the manufacture of some pesticides and other organic substances that contain chlorine. These substances are therefore not produced intentionally and are not placed on the market or used for any purpose (other than as analytical standards). Consequently, they are not listed in Annex I of the POPs Regulation.

However, they can be found in the ashes of combustion processes and, despite strict controls, some amounts are released to the atmosphere via emissions from stacks (air pollution). Dioxins and furans are highly toxic and are also persistent and bioaccumulative. They tend to concentrate in fatty tissues and enter the food chain, for instance, through plants grown in contaminated soil and via animals feeding on them. Soil can be contaminated through the deposition of material released to the air or by the intentional or accidental introduction of ashes or other dioxin-containing waste into soil.

Dioxins and furans are subject to monitoring of emissions and release reduction provisions under the Stockholm Convention and the EU POPs Regulation. They are highly regulated substances in the EU with limits existing in water, foodstuffs and cosmetic products, among others. From the toxicological point of view dioxins and furans are known to cause cancer in humans, produce reproductive and developmental disorders and affect immunity, among other effects. They are also highly toxic for aquatic and terrestrial organisms.

Baseline

An exhaustive compilation of information on wastes that can contain dioxins and furans is included in RPA(2021) and is summarised in Annex VI of this report, together with their typical concentrations. In terms of tonnages produced in the EU the most important wastes are construction and demolition mineral waste, agricultural compost and digestate and coal power plant fly ashes. All of them are generated in amounts exceeding 50 Mt/year. Other activities generating ashes or slags in the millions of tons per year include municipal, healthcare and hazardous waste incineration, biomass-based power production, steel production and copper, zinc, iron and lead smelting. Sewage sludge from municipal wastewater treatment plants is also know to contain measurable concentrations of PCDD/Fs.

A detailed review of the current waste management baseline for different waste streams relevant to this assessment is provided in RPA(2021). Vary large waste streams such as coal-fired power plant ashes (over 64 Mt/year generated) and mineral construction and demolition waste are to a great extent used in construction and geotechnical applications, although large amounts are also landfilled. About 25 Mt of bottom ashes from municipal solid waste incineration (MSWI) are generated each year in the EU of which some 15 Mt are used in construction and 10 Mt are disposed of in non-hazardous waste landfills. About 2.5 Mt of fly ashes from the same source are also generated in the EU of which about 2 Mt are sent to hazardous waste landfills and some 500,000 t are used in construction (mostly in the Netherlands and Belgium).

A fraction of bottom ashes from biomass power production (10%), of fly-ash from coal-fired power plants (0.2%) and of ashes from domestic burning (20%) are also used for soil improvement purposes in agriculture. In total this amounts to a maximum of 1 Mt/year in the EU.

In some countries such as France, fly ashes from MSWI are classified as hazardous waste by default but can be disposed of in non-hazardous landfills. In contrast, in the Netherlands and Belgium fly ash is used extensively as a raw material for composite asphalt fillers subject to approval and testing requirements 127 . Bottom ashes from MSWI are far more extensively used in construction and geotechnical applications, with large amounts of ashes generated being recycled into these uses in Belgium, Denmark, Finland, France, Germany, Italy, the Netherlands, Poland, Portugal and Spain.

Sensitive standardised laboratory-based analytical methods exists to analyse PCDD/Fs in solid waste at all the concentrations considered as policy options in this impact assessment. In addition there are a number of bioassay-based screening tests for these substances. None of them are however suitable for informing any rapid detection and sorting system that could be put in place at a production or treatment site.

One important consideration in relation to waste contaminated with PCDD/F is that, contrary to the rest of substances considered in this assessment, exceedance of the Annex IV value in the POPs regulation will immediately classify the waste as hazardous waste under EU legislation 128 , resulting in important limitations to the shipment of the concerned waste and to its applications. Such classification also results in a substantial increase in waste management costs.  

Impacts of the policy options

The different options considered result from options for Annex IV limits for PCDD/Fs originally assessed in BiPRO (2005) and those reviewed in Ramboll (2019). According to the latter and based upon economic considerations related to the use of MSWI fly-ash as a filler in asphalt and other construction uses, a limit of between 0.005 – 0.010 mg/kg was recommended in that study. In addition, the former study also considered the option to set a limit of 0.001 mg/kg based on human health concerns.

The NGOs IPEN and Arnika, as well as others, have advocated for a lower general limit of 0.001 mg/kg (with the main purpose of limiting movements of such wastes) and a lower specific limit of 0.00005 mg/kg for the application of untreated (unsolidified) waste on land surfaces. The latter results from estimations, developed by the referred organisations, of transfer of PCDD/Fs from contaminated soil to the human food chain, in particular through chicken’s eggs. In order to take all these considerations into account the following options have been considered in this impact assessment:

Table 5 – Policy options for dioxins & furans (PCDD/Fs)

Figure 5 below shows typical and maximum concentration ranges of PCDD/Fs in different waste streams. In the absence of detailed data on the distribution of concentrations in waste, RPA(2021) has made some assumptions [(further detailed in RPA(2021)] regarding the amount of waste that, under each of the policy options, would be diverted from recycling and/or non-hazardous waste landfilling to hazardous waste landfill or underground storage 130 .

Under Option 2 the only waste impacted would be soot and ashes from domestic burning of wood and coal. It is estimated that between 36,000-72,000 t would no longer be allowed to be used in agriculture and between 181,000-361,000 t would be diverted to hazardous landfill with additional costs estimated in 40 – 79,5 M€.

Under Option 3 the amounts of soot and ashes from domestic burning no longer allowed in agriculture and of total material directed to hazardous waste landfill would increase to 36,000-145,000 t and 181,000-723,000 t, respectively. Estimated waste management costs are of 40 – 159 M€ per year. Under such as option municipalities would have to include this type of waste in their hazardous household waste separate collection schemes (which have to be implemented in the EU by December 2024). According to BiPRO(2005) 131 domestic burning is the largest (75%) source of PCDD/F emissions to the air, although it only represented about 1% of emissions to waste.

Also under Option 3 significant amounts of fly ashes generated from power production using biomass would no longer be used in agriculture or construction (8,000 – 33,000 t) and large amounts currently sent to non-hazardous waste landfills would have to be managed in hazardous waste landfills or sent to underground storage (27,000 – 110,000 t). The estimates waste management costs for these biomass ashes is estimated to amount to 6 – 24,8 M€. Overall additional waste management costs arising from Option 3 for both waste streams amounts to 46 – 184 M€ per year 132 . 

Under Option 3+land and Option 4 up to 128,000 t of MSWI fly-ashes would no longer allowed to be used in construction and would be diverted to non-hazardous waste landfills, in the case of Option 3+, or to hazardous waste landfills, in the case of Option 4. The use of fly ashes in construction is mostly limited to Belgium and the Netherlands. There is no evidence of agricultural use of MSWI ashes in the EU but, as indicated above and reported in RPA(2021) this is estimated to happen for a fraction of ashes from domestic burning and of biomass ashes 133 . Overall waste management (landfill) costs of Option 3+ would amount to 52 – 224 M€ and those of Option 4 to 52 - 263 M€. Given that according to Eurostat a total of 27.15 Mt of hazardous waste were landfilled in the EU27 in 2018, even if the top range estimate under option 4 was to be all sent to hazardous waste landfill, this would result in about 1.2 Mt waste / year which is less than 5% of yearly disposal of waste in hazardous waste landfills. It seems plausible that this additional amount could be absorbed by the current hazardous waste landfill capacity.

Figure 5 – Maximum and typical concentration ranges of PCDD/Fs in relevant wastes

Finally, under the strictest of options considered, which would include a specific supplementary limit of 0.00005 mg/kg for recovery and disposal operations involving application of (untreated) waste to land, several high volume waste streams would be affected. In addition to all other impacts described under the other options, Option 4+land would result in up to 60 Mt agricultural digestate, up to 116 Mt C&D waste and up to 7.4 Mt MSWI bottom ash not being recycled every year into materials or used in agriculture, in construction materials or in geotechnical applications. They would be diverted to non-hazardous waste landfills.

Other wastes such as coal power production fly ash and coking ash would also be affected, requiring increased testing (given greater likelihood of exceeding limits) and some increased diversion to landfill. Overall additional waste management costs (landfilling) estimated for Option 4+ range from 1,897 – 9,484 M€ per year, to be absorbed by the different producers of the waste, including public authorities. The latter represents between 37 - 184 Mt of waste /year that would mostly go to non-hazardous waste landfills. Given that according to Eurostat, in 2018 the EU-27 Member States landfilled 134 806 Mt of non-hazardous waste, absorbing this waste, in a worst case diversion estimate 135 , would represent almost a 23% increase in landfill / year. It is likely this amount would cause serious capacity problems to landfill operators.

Finally, although in general PCDD/F concentrations in sludge from municipal waste water treatment plants seem to be lower than the Option 4+land limit it cannot be ruled out that in some cases this limit would be exceeded. It is uncertain to what extent this would result in some sludge used in agriculture being diverted to incineration or landfilling. Certainly additional testing costs would be likely.

Figure 6: Impacts of different policy options for PCDD/Fs are shown in a cumulative manner, indicating which waste streams are impacted under the different options. .

RPA(2021) has estimated additional costs to users of materials coming from the different waste streams that would have to pay extra for substitute primary material (be it aggregate, concrete, lime, etc.). Total estimated additional yearly substitution costs to be borne by the different users of waste material (especially ashes) are: Option 2 432 – 864 k€; Option 3 0,5 – 2,1 M€; Option 3+land 0.6 – 3.1 M€; Option 4 0.6 – 3.1 M€; Option 4+land 380 – 2,308 M€.

Options 2 and 3 are not expected to have significant adverse impacts on employment, however Option 3+land and Option 4 are expected to impact construction companies using MSWI fly ash as composite asphalt filler in Belgium and the Netherlands, potentially affecting employment. No figures could be estimated for the potential loss of employment or for the number of employees affected.

All options impact public authorities, especially due to the need to address the separate collection as hazardous ashes from domestic burning of wood and coal from households. It is challenging to estimate the additional cost to public authorities of implementing / adding this waste stream to the existing collection schemes, given the variety of systems and combinations of collection systems in place 136  and their possible combinations. A recent study by EY 137 reports costs for the collection of household hazardous waste streams, based on good practice examples, in different EU countries.

According to this report, the separate collection of hazardous household waste in Odense (Denmark) has a cost of 3.3 € / inhabitant. This cost would in most cases be borne by municipalities and, ultimately, by tax-payers, in line with the polluter pays principle enshrined in the TFEU and the Waste Framework Directive Article 14. Additional landfill disposal costs due to the management of these ashes are provided above. For all other options public authorities may need to incur higher costs associated to monitoring / enforcement, but no cost estimate can be provided.

According to preliminary discussion held with Member States, the separate collection of domestic burning ashes as hazardous waste, or otherwise, does not seem to take place (or happens only very rarely). Concerns have been expressed about the proportionality and practicality of such a measure, as well as about the possibilities to enforce it. In most Member States these ashes are either deposited together with residual waste (and subsequently incinerated in a MSW incinerator or landfilled in a MSW landfill) or, quite frequently, disposed of in gardens / vegetable gardens.

The extent of domestic fuel burning, disposal practices, the nature of the fuel (wood, coal) and the type of appliances to burn the fuel (from open fireplaces to modern pellet boilers) vary widely among Member States and regions, resulting in a highly granular and diverse situation where, potentially, only a fraction of domestic burning ashes will exceed the limit value proposed.

In addition, doubts have been raised about whether the exceedance of the Annex IV limit values in domestic biomass burning ashes, and for biomass ashes from biomass power plants, would lead to classification of such waste as hazardous. The underlying reasoning in that there are no applicable hazardous waste codes in the European List of Waste 138 . Regardless of this, the Commission considers a priority to address, and limit, the application of biomass ashes exceeding the proposed limit value for PCDD/Fs, in vegetable gardens and other agricultural applications that can lead to human exposure to dioxins via the food chain.

In terms of benefits to human health and to the environment, RPA (2021) has estimated the overall reductions in PCDD/F emissions to the environment (especially to land) resulting from the different policy options. All policy options other than Option 4+land result in relatively modest reductions in emissions of PCDD/Fs from waste ranging from dozens to a few hundred grams (expressed as toxicity-equivalents to the reference dioxin TCDD). Option 4+ would result in a more substantial reduction of between 2 - 10 kg per year (central estimate 6 kg).

Finally, diverting material (such as fly or bottom ashes or C&D waste) from recycling to disposal results in these materials having to be substituted by primary material. The estimated adverse effect in terms of negative CO2e balance was calculated by RPA (2021). For Options 2 to 4 the overall impact in terms of additional CO2 emissions generated (not avoided) ranges from a few thousand to about 120,000 t/year. Due to the comparatively much larger tonnages of waste involved, only Option 4+land would result in significant adverse impacts, leading to CO2 emissions of between 18 and 91 Mt/year.

Conclusion on preferred policy option

In view of the above it seems apparent that all options result in impacts due to diversion of different waste streams from recycling to disposal. In this assessment it is assumed that landfilling will be the dominant final disposal option, given most wastes concerned are listed in part 2 of Annex V of the POPs Regulation and could, subject to Member State authorisation 139 , be disposed in a hazardous waste landfill or permanent underground storage facility. 

The setting of treatment-specific limits under Annex IV, as proposed by stakeholders such as IPEN/Arnika and other NGOs is not envisaged under the POPs Regulation. A detailed discussion regarding the approach to set Annex IV limit values for PCDD/Fs, and how different waste treatments are taken into account, is provided in section 4.3 of Annex IV of this impact assessment. In summary, two health based values (R) have been considered for PCDD/Fs, one relevant to spreading of untreated waste on land (relevant particularly to agricultural use of sewage sludge and ashes) and another for other uses, which largely refers to disposal in non-hazardous waste landfills (and some uses of solidified ashes in construction).

The use of one health-based value or another has implications on the outcome of applying the methodology described in section 4.2 of Annex IV to this report. The choice of the stricter value, relevant only to land-spreading applications, would result in the impossibility of safely disposing large amounts of waste in non-hazardous waste landfills, where the resulting risks are lower and the level of containment higher than that which results from direct application of the waste on soil.

As further explained under the referred section 4.3 of Annex IV of this report, the policy choice has been made not to base the proposal for the limit value for PCDDs in the waste annexes of the POPs Regulation, on a land application health-based value (R1). This is justified on the basis that it would cause a disproportionate impact on other waste disposal options (which would be regulated by the same Annex IV value) and is also supported by the argument that such applications are better addressed by existing Regulations at EU and Member State level. These arguments are further described below:

·The limit in Annex IV covers spreading on land of sewage sludge, as well as all other non-destructive treatment options. Spreading of sludge on land for agricultural purposes is specifically regulated by the Sewage Sludge Directive (currently under review). Setting a limit for PCDD/Fs specific for this waste disposal operation can be better considered and established in that Directive.  

·The Commission envisages to adopt, by the summer of 2021, a Commission Delegated Regulation amending Annexes II, III and IV to Regulation (EU) 2019/1009 for the purpose of adding thermal oxidation materials and derivates as a component material category in EU fertilising products. Therein a strict limit of 20 ng WHO toxicity equivalents of PCDD/F /kg dry matter (equal to 0.00002 mg TEQ/kg) is set. This value is slightly below that proposed by IPEN and defined for Option 4+land (0.00005 mg/kg) and will apply to ashes and slags used as constituents of CE fertilising products. Those Member States and regions authorising the spreading on land of (certain) waste ashes for agricultural purposes, which still do not have national measures for this purpose, will in the future have as a reference the value determined for CE-marked fertilising products.

·There is no evidence that fly-ashes from municipal solid waste incineration are used in agriculture in Europe. The use of fly ashes in construction (e.g. as asphalt binder), which are ultimately applied on land, seems to be limited to two Member States in the EU (Belgium and the Netherlands) and regulated specifically under national legislation.

Consequently, as shown in the limitation criteria figure VI-7 in section 6.6.3. of Annex VI of this report, the proposed value results from applying the precautionary criterion on health based limit value R2 (which coincides with current limit value in Annex IV) and lowering to the highest of the upper limitation criteria which, in this case is limited to a certain extent by disposal capacity (if considered together with other waste streams, see section 8.2) and more importantly by economic feasibility criteria, as estimated in the assessment made by the Commission.

 Option 4+land, which is the only option that would bring about an important reduction in the amount of PCDD/Fs released to land, has been dismissed due to the disproportionately high economic impacts which could affect up to 180 Mt of waste /year, including compost and digestate, bottom ashes from municipal waste incineration and construction and demolition waste. Disposal of such large amounts of waste also cause concern in terms of available landfill capacity.

Option 4, setting a limit of 0.001 mg/kg is not considered appropriate due to its impact on the use of fly-ashes in construction in two EU MS, increased diversion to hazardous waste landfill and the higher economic impact on municipal waste incinerators. It is expected these will have a higher likelihood of not being able to meet this limit, resulting in higher waste management costs and testing costs for only a small benefit in terms of avoided PCDD/F emissions. Furthermore, as said above such uses are nationally regulated, supported by leaching tests and risk-based limits.

Option 3 (0.005 mg TEQ/kg) is the preferred policy option for the Annex IV limit value that has a potential impact on two important sources of dioxin-containing waste: ashes from domestic burning of wood and coal and fly ashes from biomass power plants which currently are often disposed of in non-hazardous waste landfills or find their way into agricultural use. This value is broadly in line with the limit of 0.003 mg TEQ /kg established by South Korea 140 and Japan 141 (applicable only to certain wastes).

It should be noted that the analysis by RPA (2021) groups ashes and soot from domestic burning and estimates that 5 – 20% of these would be impacted under Option 3 (0.005 mg TEQ/Kg) based on the reported upper range of the typical dioxin concentration being about 0.01 mg TEQ/kg. This conclusion is however based on the top-range values estimated for soot, which only represents 0.8% of the total waste material. Mixed ashes from coal and biomass burning typically have concentrations at least about 100 fold lower (and representing 99% of the material). On the other hand, the burning of contaminated waste wood or in open fireplaces / boilers with poor combustion conditions results in higher values, also for mixed ashes.

Considering all the above, for the purpose of this impact assessment, the lower range impact estimate (5% of material exceeding limit value) is considered to provide a more realistic estimate of the amount of domestic burning ashes / soot affected.

Costs and impacts are not negligible but these a highly spread over many actors (municipalities, waste operators) and could be seen as proportionate. In addition, the measure is considered to be technically achievable with current best available technology (e.g. for MSW incinerators). As regards ashes from biomass production it should be noted that that generation of this ash is likely to more than double by 2030 as countries transition from coal power production under the European Green Deal policy agenda. This is likely to further increase hazardous landfill and underground storage costs. Costs associated to Options 3+ and 4 have been assessed by the Commission as disproportionate and affecting multiple waste streams (in particular Option 4).

No review of the existing Annex V limit value for PCDD/Fs is proposed as there is no indication that the values currently established are not appropriate. See also further explanations on the very limited relevance of these limit values provided in section 5.3.3 of this impact assessment.

Dioxin-like PCBs

What are they and why are they a problem?

Similarly to dioxins and furans, polychlorinated biphenyls (PCBs) are a family of substances comprising 209 different members (congeners). A dozen of the 209 PCB congeners are considered "dioxin-like" PCBs (dl-PCBs) 142 because their mechanism of toxic action is common to that of the reference dioxin (2,3,7,8-TCDD). WHO has assigned to each of these compounds a toxic equivalency factor (TEF) which indicates their relative toxicity compared to a reference dioxin. The remaining 197 congeners are referred to as non-dioxin-like PCBs (ndl-PCBs).

PCBs have in the past found wide industrial use as heat exchange fluids, in electrical transformers and capacitors, and as additives in paint, carbonless copy paper, and plastics. Production of PCBs began in the 1920s but only reached substantial volumes after 1945, reaching its peak in the 1960s and 1970s. Due to environmental and human health concerns production of PCBs ceased in most countries in the late 1970s or early 1980s.

PCBs are highly regulated, currently banned, chemicals. They are listed in Annexes A and C of the Stockholm convention as well as in Annexes I, III, IV and V of the EU POPs Regulation, with a limit of 50 mg/kg (in both annexes I and IV) for total PCBs 143 . Directive 96/59/EC on the disposal of PCBs and PCTs, as well as its predecessor Directive 76/403/EEC have addressed the issue of safe disposal of PCBs and waste contaminated with PCBs. They also deal with the disposal or decontamination of equipment containing PCBs, such as electrical transformers and capacitors. Under the recast POP Regulation, new provisions were introduced in Annex I to ensure the removal of remaining equipment containing small volumes (over 50 ml) of PCBs no later than by 31 December 2025.

PCBs are toxic to fish, killing them at higher doses and causing spawning failures at lower doses. Research also links PCBs to reproductive failure and suppression of the immune system in various wild animals, such as seals and mink. Exposure of humans to PCBs is known to cause pigmentation of nails and mucous membranes and swelling of the eyelids, along with fatigue, nausea, and vomiting. Due to the persistence of PCBs in their mothers' bodies, children born up to seven years after high exposures to PCBs show developmental delays and behavioural problems. PCBs also suppress the human immune system and are listed as probable human carcinogens. The latter is particularly relevant for dl-PCBs given that due to their common toxicological mode of action with dioxins the concern associated to cancer are greatest.

The reason for addressing dl-PCBs under this assessment are the concerns derived from a study of the Swedish Environmental Protection Agency 144 , and also voiced by NGOs such as IPEN. In these it is claimed that not addressing the specific toxicity concerns due to dl-PCBs underestimates the risks caused by the transfer of pollutants from waste to soils and subsequently into the food chain (eg into vegetables, poultry eggs, etc). Similarly to earlier discussions on dioxins, this is particularly relevant in relation to the application of waste to soil (be it intentional or accidental). Two options to assess this concern are considered here.

Baseline

The current baseline is defined by the current situation where PCBs are already highly regulated as a group but where no specific consideration is in place to address concerns due carcinogenic, dioxin-like PCBs. The study in support of this impact assessment includes an expert assessment regarding the soundness of addressing dl-PCBs using the toxicity equivalence factors derived in 2005 by the WHO. It also assesses whether it makes sense, from the scientific point of view, to group them together with PCDD/Fs, given they act in a similar way. An expert assessment has been done of the robustness and level of scientific reliability of the existing TEF values for these substances. An assessment was also done of the extent to which grouping dl-PCBs and PCDDs, based on their TEF values, is already in place under different EU and international legal provisions.

The conclusion reached by RPA(2021) is that although values derived by the WHO in 2005 for dl-PCBs have some limitations from the scientific point of view, and could benefit from an in depth re-assessment, they are sufficiently robust to be used together with those for PCDD/Fs.

This is confirmed by that fact that decisions to follow this approach have already been taken in the EU in the context of foodstuffs 145 , of water quality 146 and in the field of emissions to the air from waste incineration installations 147 under the Industrial Emissions Directive. Similarly, joint values have also been derived, based on this principle, in the context of water quality in Australia. Such aggregated reference values are also used for the purpose of risk assessment by acknowledged organisations such as the US Environmental Protection Agency, the US Agency for Toxic Substances and Disease Registry, the World Health Organisation or the Dutch National Institute of Public Health and the Environment of the Netherlands (RIVM).

RPA(2021) has reviewed information on PCB concentrations in waste. Information available generally refers to total PCBs and there is very limited specific information on concentrations of dl-PCBs in any waste streams. The most relevant waste streams identified in terms of their possible PCB content are large and small WEEE and shredded ELVs where PCBs can be found, normally at concentrations below 50 mg/kg, for instance in some capacitors. Although in principle these components should be removed, relevant concentrations of PCBs, including dl-PCBs have been found in the vicinity of some shredders in Belgium, resulting probably from deposition of atmospheric emissions released from these installations. Other relevant wastes include certain demolition waste fractions (eg sealants), which are generally separated to the extent possible during demolition and waste oils which are systematically controlled for PCBs under the existing limit (and often lower for the purpose of recycling into base oils). Incineration ashes, compost and sewage sludge are also know to contain generally small but measurable concentrations of PCBs.

Analytical methods for PCBs exist and are extensively used to measure PCBs down to well below the required current limit of 50 mg/kg. Existing laboratory methods for PCBs are relatively inexpensive (about 90 €/sample) and are usually based on analysing a limited set of representative PCB congeners. The issue with setting a specific dl-PCB limit, potentially aggregated with the limit for PCDD/Fs, is that individual PCBs have to be analysed separately and that this limit is much lower than the currently applicable one for total PCBs (see PCDD/F section with options between 0.015 – 0.001 mg/kg under consideration). Therefore, the limits under consideration relevant to dl-PCBs are several thousand times lower 148 than those currently applied to total PCBs. This does not mean that specific analyses for dl-PCBs cannot be done. It is possible using the method currently applied for PCDD/Fs which also allows to quantify individual dl-PCBs. This is however costlier (about 410€/ sample) and requires more expensive and specialised analytical equipment to attain the desired sensitivity and specificity.

Impacts of the policy options

Following from the conclusion that it makes technical and scientific sense to specifically address dioxin-like PCBs, the options under consideration refer rather to whether, based on other impact considerations, this is appropriate or not (Option 1 – baseline implies no action) and how to do it. If the decision is that addressing dl-PCBs is appropriate and justified the options about how to proceed are: 1) to do so by introducing a new, stand-alone specific Annex IV limit for the sum of dl-PCBs (Option 2) or 2) by including dl-PCBs into the existing Annex IV group limit for PCDD/Fs (Option 3).

Given there is very limited analytical information available on the concentration of dl-PCBs in waste, for most waste streams it is not possible to reliably estimate the amounts of waste that would be diverted to different treatments due to the limit value chosen. Considering this scarcity of specific information (which would be needed to set a stand-alone limit) and considering that it was concluded that scientifically it makes sense to group together dl-PCBs with PCDD/Fs, the analysis of options is heavily focused on Option 3. Consequently, this section must be considered together with section 6.3, addressing the limit value for dioxins and furans (PCDD/Fs) and the options for limit values considered therein.

The very limited information available coming from one study on the presence of PCBs in small WEEE points to the dl-PCB content representing 18% of the measured seven indicator PCB congeners. However. this conclusion is highly uncertain given only one dl-PCB congener was analysed. Despite these uncertainties and given the very low toxicity of the specific dl-PCB that was analysed (in comparison with the reference dioxin), the concentration of dl-PCB, expressed as toxic equivalents is very low (0.0000027 mg TEQ/kg). Given that elements containing PCBs should be removed in the treatment  WEEE 149 and ELV, and in view of this result, one could hypothesise that introducing dl-PCB limits for these two waste streams may not result in particularly relevant impacts. This conclusion is however highly uncertain due to limited information.

As regards waste oils there is also very limited information on the presence of dl-PCBs in collected waste oils 150 . Information provided by GEIR, the waste oil recyclers industry association, based on two studies of 2009, suggests that concentrations of dl-PCBs in waste oils are below 0.001 mg TEQ/kg, with only one out of 20 samples analysed slightly exceeding this value (and others being often an order of magnitude of more below). GEIR has indicated that in their view existing controls on PCBs in waste oils are enough to guarantee safe management and therefore do not consider a specific limit for dl-PCBs necessary. In their view a requirement to systematically analyse dl-PCBs in every truck load of oil delivered to a re-refining installation would not be possible to fulfil or practical. According to GEIR, this is limited by their current in-house analytical means that would require investment in new equipment, ranging from 50,000 – 110,000 €. This association has further indicated that even if such investment were to be made, having to engage in routine analysis of dl-PCBs in every load of waste they receive would lead to very important logistic problems. This is explained by the delay in clearing a truck load for treatment that would be extended from the current few hours to one or two days, if high-sensitivity analysis for dl-PCBs has to be carried out. Therefore GEIR claims that any measure that would lead to the need of systemic analysis of dl-PCBs would have a very  high economic impact and bring about a strong disruption in the recycling of waste oils into base oils.

Ashes from municipal waste incineration are in a similar situation. The limited information in studies quoted in RPA(2021) indicate that dl-PCBs represent between 1 – 10% of the total toxicity (in terms of TEQ) of PCDD/Fs and dl-PCBs. Results from a very recent study by the NGO Arnika on concentrations in sediments, taken close to a waste treatment facility (treating incineration ashes) in the Czech Republic, showed that dl-PCBs contributed to 15 – 30% of all dioxin-like toxicity. Considering that different PCB congeners degrade and become distributed in the environment in different ways, these results may not be representative of concentrations in the waste itself.

Similarly to what happens with dioxins, bottom ashes will generally have lower overall concentrations of both PCDD/Fs and dl-PCBs than fly-ashes. Conclusions of a recent JRC report 151 investigating the use of thermal oxidation products from a number of industrial processes, as components for fertilisers, indicate that generally, for this type of waste, there is a good correlation between the concentrations of PCDD/Fs and of dl-PCBs.

An assessment of the likelihood of additional diversion of waste to landfill, for each of the options discussed under section 6.3 (PCDD/Fs) has been made under the assumption that dl-PCBs would be included in the limit for PCDD/Fs. For the purpose of Table 6 below the options considered for the PCDD/F values are referred to as D1 to D4.

Table 6: Likelihood of diversion to landfill as a result of Option 3 (inclusion of dl-PCBs into the TEQ for PCDD/Fs)

Additional estimations made in RPA(2021) suggest that an additional 10% of bottom ashes would be diverted to landfill in the case of Option D4+land. An extra 2% fly ashes would also be diverted to landfill under Option D3+land. In the case of waste oils additional testing costs, due to the need for specific monitoring are considered likely, however no diversion of waste oils from recycling is likely to occur if options D1-D3 are retained. Significant additional costs for users of raw materials (due to substitution costs of primary material) would be incurred in the case of Option D4+land which builds onto the very large costs estimated in the section 6.3.

Conclusion on preferred policy option

Taking into account that PCDD/Fs and dl-PCBs share a common toxicological mode of action and both are associated to cancer in humans it is appropriate to address dioxin-like PCBs separately from the existing limit that covers all PCBs. The limit for total PCB in Annex IV would however be maintained as it is a well-established value, present in several other legislative instruments, which still serves its purpose as regards PCBs as a whole group.

Specifically addressing dl-PCBs via inclusion in the limit value for PCDD/Fs (which would from then on be a limit for the sum of PCDD/Fs and dl-PCBs) is considered to be scientifically sound and is aligned with similar approaches to dl-PCBs under other EU legislation and internationally. Therefore, Option 3 constitutes the preferred policy option.

Defining a stand-alone limit (Option 2) would be difficult due to the very limited information on concentrations of dl-PCBs in waste and, in terms of simplification and regulatory economy, would not seem justified, given a limit for substances with common effects, already exists (for PCDD/Fs).

Finally this option must be seen together with the specific limit in Annex IV, proposed for PCDD/Fs under section 6.3 above, given the inclusion of dl-PCBs in the group limit value for PCDD/Fs will marginally increase the risk of exceeding limits for certain waste streams, depending on the option chosen. From the analysis carried out, and taking into account the many uncertainties that exist due to limited availability of data, it can be estimated that the preferred policy Option 3 for PCDD/Fs can accommodate inclusion of dl-PCBs without major adverse environmental, economic or social impacts associated to any of the waste streams assessed.

In summary, and in view of the analysis made in sections 6.3 and 6.4 the resulting preferred policy option is to set a joint limit for PCDD/Fs and dl-PCBs to be established at 0.005 mg TEQ /kg (see section 6.6.3. in Annex VI of this report for limitation criteria diagram for PCDD/Fs that applies also to the sum of PCDD/Fs and dl-PCBs).

It is proposed that the existing limit for PCDD/Fs in Annex V, already established in 5 mg TEQ/kg, is maintained but that the text associated to it is modified so that it will, as in Annex IV, apply to the sum of PCDD/Fs and dl-PCBs. As explained in previous sections no impacts are expected from changes made to Annex V values.

Short-chain chlorinated paraffins (SCCPs)

What are they and why are they a problem?

Short-chained chlorinated paraffins (SCCPs) are a group of synthetic compounds that have been mainly used in metal working fluids, sealants, as flame retardants in rubbers and textiles, in leather processing and in paints and coatings. SCCPs belong to a larger family of substances known as chlorinated paraffins.

SCCPs are currently listed in Annexes I, IV and V of the POPs Regulation. All substances which meet the definition of SCCPs and other chlorinated paraffins (which might however also cover SCCPs) are listed in the report by RPA(2021). They have been listed as “substances of very high concern” in the REACH “candidate list” since 2008.

The use of SCCPs has been limited in the EU since 2004 under the pre-REACH Directive that imposed restrictions on the marketing and use of certain dangerous substances and preparations 152 . These limitations were subsequently taken up and expanded, initially under REACH and finally under the POPs Regulation from the year 2012. At latest from 2012 there are no intentional uses of SCCPs in the EU with the exception of its allowed presence as an impurity in other substances and mixtures (1%) and in articles (0.15%). The reason for this exception for impurities, defined in Annex I of the POPs Regulation, is that SCCPs are present as impurities is the so-called MCCPs (middle-chain chlorinated paraffins), the use of which is not restricted, and have largely substituted SCCPs. In addition, conveyor belts in the mining industry and dam sealants containing SCCPs already in use before or on 4 December 2015 153 could still be used (until the end of their service life).

SCCPs are persistent, bioaccumulative, and toxic, particularly to aquatic organisms. They have been measured in Arctic organisms at levels comparable to other known POPs, indicating widespread contamination. Upon repeated exposure SCCPs can cause skin and eye irritation in humans. They may also affect the liver, the thyroid hormone system and the kidneys which in the long-term can lead to cancer in these organs. In the EU SCCPs are classified as suspected of causing cancer and are listed as endocrine disruptors according to the former preliminary criteria for prioritisation of potential endocrine disrupting substances (and also under the Water Framework Directive).

Baseline

In 1994, more than 13,000 tonnes of SCCPs were used in EU15 Member States. Following restrictions on their use in leather processing and in metal working fluids, the amounts used in the EU declined to 530 tons in 2009, distributed into sealants (19%), in paints and coatings (31%), as flame retardants in rubbers (6%) and as flame retardants in textiles. Their use from 2012 is banned.

As indicated above, SCCPs are present as impurities in MCCPs and in products containing them. A recent evaluation of MCCPs, done by the UK in the framework of REACH, indicates that concentrations of SCCPs in MCCPs range from 0.1 – 1%, with other sources indicating this is often closer to 0.1%.

Due to the phase-out of SCCPs some historical uses in short-lived articles or applications, such as textiles or leather or in metal degreasing, resulted in waste streams that are no longer generated (and all past waste will already have been disposed of). SCCPs used in certain articles such as sealants, rubber and textiles will still be present and be relevant when these materials become waste.

The following waste streams that may contain SCCPs have been identified as still being relevant:

·Rubber waste from end-of-life conveyor belts used for underground mining, hoses and gaskets. [4,130 t rubber waste estimated generated in the EU in 2020, containing 413 t SCCPs]

·Sealants and adhesives in demolition waste. [486t of SCCPs estimated to be generated in 2,430 t of demolition waste in the EU in 2020. Often mixed with mineral demolition waste].

·Rubber, plastic and textile waste from consumer products (including imports). [No information available about quantities of such products, which will likely be disposed with municipal waste. 119 RAPEX 154 notifications of SCCPs in consumer products were received between 2013-2018]

The most important waste stream identified is rubber from conveyor belts used in mining. This equipment has an estimated average service life of 12.5 years and it has been calculated that 4,130 t of rubber waste containing SCCPs is generated every year. Based on Eurostat data it is estimated that 50,000 t of conveyor belt rubber were disposed of in 2020, which means that SCCPs containing rubber represents 8.2% of the total.

It is estimated that currently 50% of mining conveyor belt waste rubber is incinerated (25,000 t) and 50% is recycled (25,000 t). Based on modelling performed by RPA(2021) it is expected that 78% and 98% of rubber containing SCCPs from conveyor belts still in use in 2020 will have been disposed of by 2025 and by 2030, respectively.

Other related rubber articles containing SCCPs such as gaskets and hoses have shorter service lives (average 7.5 years) and it is assumed that most of them will have already become waste.

The largest separately collected rubber waste stream in the EU is end-of-life tyres (ELTs) which are either recycled into a number of rubber products (rubber tiles, moulded products, rubber asphalt, infill material for sports fields) or sent to energy recovery (incineration). Some 3.6 Mt of tyres are generated in the EU every year. In addition another 2.8 Mt of other rubber waste is generated, including 50,500 t of conveyor belt waste.

According to consultations made with specialised waste managers, tyres have dedicated and very specific collection schemes and generally great care is taken not to mix tyre waste with other general rubber goods. Therefore contamination of the ELT recycled stream (which has no SCCPs), with rubber from other sources contaminated with SCCPs is unlikely. The extent to which conveyor belt rubber becomes mixed with other general rubber goods during collection and treatment is unknown. Under the assumption that all conveyor belt rubber waste is collected together and processed into recycled rubber, the average SCCP concentration therein would be 8,200 mg/kg.

The amount of SCCP in sealants and adhesives waste disposed of in the EU27 was estimated to be 486 tonnes in 2020, which corresponds to around 2,430 tonnes of sealants and adhesives waste containing SCCPs. In terms of waste management the study in support of this impact assessment has assumed that 1/3 of this waste can be collected separately and treated as hazardous waste. The remaining 2/3 is assumed to remain bound to mineral demolition waste (bricks, concrete, etc.) and cannot be separated. It is uncertain whether this fraction of demolition waste would be managed together with other hazardous C&D waste or if it would be mixed and dealt with together with non-hazardous C&D waste. In the first case the average SCCP concentration in the mixed waste is estimated to be 35 mg/kg and in the second case 1 mg/kg, far below any of the options considered in the impact assessment. Demolition waste containing SCCPs, even if only at low concentrations, is expected to be generated well into the decade of 2060.

SCCPs have been detected via market surveillance activities in some consumer products introduced into the EU market. This includes a number of articles containing PVC or EVA foam. This includes power cables, bath toys, bathtub pillows and yoga mats. Between 2013 and 2018 a total of 119 Safety Gate (previously RAPEX) notifications were received for articles exceeding the current limit for SCCPs in Annex I of the POPs Regulation (1,500 mg/kg). It is not possible to determine how much waste containing SCCPs is generated from these imported articles. It is assumed that such waste will be disposed of as municipal solid waste and will be either landfilled or incinerated.

Analysing SCCPs in waste is not easy but it is possible. There are no harmonised laboratory analytical methods which are specific for waste, however methods with sufficient sensitivity exist for other types of samples (such as sediment, sewage sludge or leather) that can be adapted to waste. The cost per analysis, including sample preparation, ranges from 190 – 380 € per sample. There are no readily available field methods to support sorting of SCCP waste on the field or at the recycling plant. Hand-held XRF analysers can be used to detect chlorine within a few seconds but these results are not specific and it is not possible to distinguish, for example, rubber containing SCCPs from that containing MCCPs (which are permitted additives and also contain chlorine). Therefore, the only currently possible approach to sorting is based on manual separation of wastes based on visual inspection of the waste items, potentially supported by information about their origin and date of manufacture (useful for instance for the sorting of conveyor belts manufactured before 2012).

Impacts of the policy options

The different policy options for a (revised) Annex IV limit for SCCPs are:

Option 1: 10,000 mg/kg – current baseline. Same value as the unintentional trace contaminant limit allowed under Annex I for SCCPs in substances and mixtures placed on the market.

Option 2: 1,500 mg/kg – Current UTC limit under Annex I for SCCPs in articles placed on the market. This value was proposed by Ramboll (2019) applying the methodology described in Annex IV of this IA report.

Option 3: 420 mg/kg – Lower limit considered by Ramboll (2019) based on a theoretical concentration of SCCP in a scenario whereby SCCP-containing conveyor belt rubber waste would become mixed with all other rubber waste.

As discussed in the section above, conveyor belt rubber is the key waste stream in which SCCPs were intentionally present and that could be impacted by the policy options under consideration. The analysis of impacts below focuses on them.

Limited information is available on the presence of SCCPs as an impurity in MCCPs. However, the available information suggests that SCCPs account for less than 1% of the paraffins present in MCCPs (but often as low as 0.1%). The Danish EPA notes that in mining applications MCCPs were typically used in concentrations around 2-3% (but as high as 5-10%) – this suggests an SCCP content around 20 mg/kg to 1,000 mg/kg. This, together with the existence of the UTC in Annex I of the POPs Regulation (1,500 mg/kg for articles), suggests that SCCPs present in waste as an impurity of MCCPs are unlikely to be affected by Option 2 (1,500 mg/kg). A similar conclusion cannot be easily reached for Option 3 (420 mg/kg).

As regards imported consumer products, under the assumption that market surveillance is effective in ensuring compliance with Annex I of the POPs Regulation, the waste generated by these should not exceed the Option 2 limit. This would not necessarily be the case for the Option 3 limit value. Given these articles are likely to be disposed of with municipal waste it is likely that the concentration in a mixed waste sample will however also be lower than Option 3.

Table 7: Likelihood of impacts on disposal and recovery methods by waste stream (SCCPs)

An estimate was made, with considerable uncertainty, of the amount of rubber waste from mining conveyor belts that would be diverted from recycling to incineration, under two scenarios. In the first scenario all rubber containing SCCPs is segregated and sent for incineration (e.g. based on information on nature and origin of the conveyor belts). In the second scenario recyclers cannot sort this material out and take a precautionary approach, diverting all mining conveyor belt rubber waste to incineration. This results in:

Table 8: Impact of policy options on final treatment of rubber from conveyor belts used in mining

The available incineration capacities appear sufficient to accommodate the diversion of the relevant conveyor belt rubber waste currently being recycled for both the high and low estimates.

Based on the above figures the loss in revenue and costs for recyclers dealing with conveyor belts, as well as the increase in revenue for waste managers operating incineration plants, can be estimated.

Under Option 2 recyclers / waste generators would incur in total additional waste management costs of between 1.7 M€ and 16.2 M€ over the period 2021-2035 (under low and high scenarios, average cost of hazardous waste incineration: 260€/tonne). There would be equivalent increases in revenue for operators of hazardous waste incinerators treating this material. Not being able to sell the recyclate that would have previously been generated from the rubber diverted to incineration would also lead to a loss in revenue for recyclers of 1.3 – 12.4 M€ over the period 2021-2035 (based on 200 €/tonne estimated average market price of rubber recyclate).

Under Option 3 waste management costs would be of 1.8 – 21.8 M€ over the period 2021 - 2035. There would be equivalent increases in revenue for operators of hazardous waste incinerators. Loss in revenue to recyclers due to diversion of material to incineration over this period would be of 1.4 – 16.8 M€.

The maximum additional destruction of SCCPs over the referred period would be of 690 t (Option 2) and 760 t (Option 3) with maximum annual amounts of 180 t for both options. The actual amount of SCCPs that would be released from the material, during the service life of the articles that would have been made from this rubber, or its actual environmental or human health impact, could not be quantified, but the effect of destruction will be positive, even if probably to a small extent.

Another impact associated to the diversion from recycling of rubber is that a certain amount of CO2e emissions that would have been avoided by the use of the recycled rubber will not be avoided (and generated due to the use of primary rubber). Based on several sources RPA(2021) reports that for every tonne of rubber recycled (based on tyre rubber) 969 kg CO2 are saved. The diversion figures above result in the following (adverse) impact in terms of GHG emissions: Option 2: 6,738 – 67,830 t in total over the period 2021-2035; Option 3: 7,752 – 96,900 t over the same period. These emissions are not negligible but relatively limited in comparison with the total GHG generated by households and industry in the EU-27 (4 billion tonnes of CO2 equivalents in 2018 155 ).

In the event that testing is carried out (especially under the “low” scenario that assumes testing and sorting of rubber batches), testing costs would be incurred by recyclers. Based on a cost per sample of 190-380€, consultants assumed the need to do at least one test per tonne of waste processed, which would result in yearly testing costs of €3.8 and 7.6 million (20,000 tonnes of rubber in end-of-life conveyor belts from mining applications). However, considering the 200 €/t average market price for rubber recyclate (and a 260 €/t incineration cost) such an analytical approach is not considered realistic and considerably lower analytical frequency and total analytical costs, that could not be estimated, are considered likely.

As regards impacts on users of recycled rubber, it is estimated that the policy options under consideration will have limited impact on them given recycled rubber coming from mining conveyor belts is small compared to total amount of rubber recycled. However, if users of such recycled rubber would have to substitute for primary rubber (estimated average additional cost of 500 €/t), then the total additional costs would range from €2.3-26 million over 2021-35.

As noted in Section 4.3.2 of RPA (2021) the available information suggests that, when all rubber waste streams are taken into account, there would be limited impacts on final treatment outcomes. Consequently, limited market and employment effects can be expected.