IPEN says lead chromates authorisation is 'unlawful'
Chemical Watch - Global Business Briefing, 13 December 2016 | Sara Brosché - Global lead paint elimination project manager, IPEN
Lead is one of the most well-researched toxic substances known to man, causing significant harm at exceedingly low levels of exposure. Therefore, many European countries took early preventative measures, by banning the use of white lead pigments in paint under the white lead Convention almost 100 years ago. This was soon followed by progressive bans on use of leaded compounds in paint, for decorative purposes and other consumer products.
When lead chromates were finally destined to a complete phase-out for all uses in the EU under the REACH Regulation, European manufacturers successfully substituted them with safer alternatives and technologies in good time, ready for the sunset date in May 2015. Viewing the use of hazardous leaded compounds an obsolete technology, they looked forward to a safer and more environmentally sound lifecycle of these products. However, a recent decision by the European Commission has instead disregarded these forward-thinking companies and outraged governments, major paint manufacturers, industry associations, civil society organisations and other stakeholders.
In 2013, Canadian pigment producer and one of the world’s largest suppliers of lead chromates, Dominion Colour Corporation (DCC), applied through its Dutch subsidiary DCC Maastricht BV for authorisation to continue to use lead sulfochromate yellow and lead chromate molybdate sulfate red in the production of industrial paint, plastic applications and road markings in the EU.
A recommendation by Echa in 2014 to approve these applications was followed by a long period of strong opposition from EU-based industry stakeholders, governments and civil society, which provided detailed information about the suitable alternatives available for these uses. However, the Commission recently announced that they had decided to approve DCC´s applications, based on “the difficulties in fully ascertaining the lack of technically feasible alternatives for the entire scope of the uses covered by the application”. The company is now allowed to continue to use lead chromates for a wide range of uses in industrial paint and plastic applications, for seven years, and in road markings, for four years.
This approval includes products both for use within the EU and for export, including to countries where there is no or little control over where these products end up.
The latter is especially troubling, since reports from low- and middle-income countries show that all kinds of products will finish up on the consumer market irrespective of their intended use. People around the world were also shocked by the European Commission´s decision. If the EU cannot take a firm stance to completely ban the use of leaded pigments, what message does that send to low- and middle-income countries, struggling to put effective and meaningful restrictions on lead paint?
Also, this strongly underscores the growing criticism of the implementation of the REACH restriction and authorisation process. REACH, with the precautionary principle as its firm foundation and an emphasis on manufacturer accountability, was once envisioned to be the most progressive law in the world but now seems to be completely undermined by the misuse of the authorisation process. The process was included to allow for special circumstances. It seems rather to have become a loophole for companies, using substances of very high concern (SVHCs), to continue with “business as usual”. As reported by the European Environmental Bureau (EEB), this does not only concern lead chromates. In fact, the European Commission has granted all applications seeking authorisation for continued use of SVHCs, as recommended by Echa. However, few cases are so clear cut as the feasibility of substituting lead chromates, where the EU-based industry stakeholders also supported a rejection of the authorisation application.
Dismayed by the authorisation decision, and the questionable grounds on which it was taken, civil society organisations, Client Earth, EEB, ChemSec and Ipen utilised their rights under the Aarhus Regulation to submit a request for internal review to the EU Commission. The request provides evidence that the Commission´s authorisation decision violates the REACH Regulation, breaches the treaty and general principles of EU law, and is incompatible with the EU´s commitment to the Dubai Declaration on International Chemicals Management. Details of these claims are provided below.
The authorisation decision was recently further contested, when the Swedish government announced that they consider the authorisation to be a breach of REACH and that it creates an unfair competitive disadvantage for the EU-based companies that have already replaced lead chromates. As a result they have decided to refer the Commission’s decision to the Court of Justice of the European Union for a preliminary ruling.
International pushback
Ipen is an international network of civil society organisations, from all regions of the world, working to establish and implement safe chemicals policies and practices to protect human health and the environment. It is a member of the Advisory Group of the Global Alliance to Eliminate Lead Paint (Gaelp), established under the Strategic Approach to International Chemicals Management (Saicm), and hosted by the United Nations Environment Programme (Unep) and the WHO.
EU member states have expressed their commitment to achieve the Saicm goals, including elimination of lead in paint, through the Dubai Declaration. This has been reaffirmed through their support of resolutions at the second, third and fourth International Conference on Chemicals Management (ICCM), welcoming the work and progress towards Gaelp’s goal, to phase out lead in all paint in all countries by 2020. The authorisation of continued use of lead chromates is clearly not compatible with this commitment.
After conducting research in more than 45 low- and middle income countries, Ipen has concluded that where no regulations are in place to restrict the use of lead in paint or where the regulations are weak and poorly enforced, paint with high levels of lead will be widely available on the market. Through the work of Gaelp and its partners, many countries are now moving towards enacting regulations, restricting the use of lead in all paints. The continued use of lead chromates in products used in the EU, as well as products exported from the region, completely undermines this progressive global movement.
Apart from the moral obligation of the EU member states to follow through on their commitments, the submitted request for internal review provides evidence that this authorisation is a breach of the EU regulations.
The European Commission now has the opportunity to take decisive action in response to these challenges to its decision, and change the troubling path that the authorisation process seems to have taken.
Firstly, the Commission needs to retract its decision to authorise continued use of lead chromates. The applications should be rejected on the grounds of information already submitted, but the applicant should, as a minimum, be required to amend the former to fulfil the REACH requirements of detailed information about specific uses, and the technical requirements crucial to them. The applications’ claims must also be properly assessed, and not just accepted as the case, by actively seeking out the wealth of information on technically feasible alternatives, already developed by EU-based manufacturers.
Secondly, the Echa expert committees must be clearly assigned responsibility to thoroughly investigate the claims, to actively seek information providing insights into them, and to promote substitution.
Thirdly, Echa must be given clear authority to only recommend authorisation for specific, well-documented and well-justified applications and to reject those for broad uses of SVHCs, at the conformity check stage.
1. The applications failed to provide the information required and did not prove that feasible alternatives were not available
The approved applications did not specify uses beyond broad categories, such as professional, non-consumer application of paints on metal surfaces (for example, machines, vehicles, structures, signs, road furniture etc), and failed to specify what technically required performance characteristics the lead chromates provide that are vital for these. This consequently lead to a failure to conduct and provide a meaningful analysis of alternatives. These shortcomings in the applications were also acknowledged in the authorisation decision itself.
2. The applications fail to provide a complete assessment of risk to human health and the environment
The risk assessment, provided in the applications for authorisation, only focused on the two hazards that were the basis for its restriction: carcinogenic and toxic for reproduction. It ignored the risk through exposure from paint degrading with time or due to heat and excluded hazards to the aquatic environment, despite their CLP classifications. This, in spite of stipulations in REACH that the risk assessment for such applications should cover all relevant hazardous properties of a substance.
Action by Sweden
The Swedish government says the European Commission “broke the rules” when it authorised the continued use of the two lead chromate pigments in the EU. Stockholm is now referring the Commission’s decision to the European Court of Justice (ECJ) for a preliminary ruling. It says the decision is bad for people’s health and distorts competition for responsible businesses that have stopped using the substances.
3. The decision did not take relevant contributions about available suitable alternatives into account
Submissions, during the public consultation period, from major and credible actors in the paint and pigment sector in the EU, such as the British Coatings Federation, Akzo Nobel, BASF and others, all provided detailed information about suitable alternatives to lead chromates. These clearly showed that technically and economically feasible alternatives are available on the market, and have been for years. In addition, the fact the use of lead chromates in road markings is already prohibited, in some member states, should have been evidence enough that suitable alternatives are available for this use.
4. The authorisation lacks logic and contains internal inconsistencies but also violates the precautionary principle
It is difficult to comprehend how the Commission could conclude that, despite the “uncertainties” and “difficulties in fully ascertaining the lack of technically feasible alternatives” mentioned in the decision, authorisation could still be granted. Since REACH prescribes that it is for the applicants to demonstrate that no suitable alternatives exist for all the uses they applied for, this approach undermines the entire authorisation procedure.
Finally, the decision was adopted in breach of the precautionary principle that underpins the REACH Regulation and may be invoked when a product, for example, has a dangerous effect, as identified by a scientific and objective evaluation and the risk cannot be determined with sufficient certainty.
The views expressed in contributed articles are those of the expert authors and are not necessarily shared by Chemical Watch.
https://chemicalwatch.com/51625/ipen-says-lead-chromates-authorisation-is-unlawful
