ChemRegs Newsletter – August 2017
Prior Informed Consent
The Report of the 8th Meeting of the Conference of the Parties to the Rotterdam Convention on the Prior Informed Consent Procedure is now available online. At this meeting (held in Geneva in May), chrysotile (white asbestos – transport classification UN 2590, Class 9, PG III) yet again failed to be included in the Convention’s list of hazardous substances. Inclusion on this list triggers the Prior Informed Consent procedure (PIC), which restricts and subsequently reduces the amount of trade in hazardous chemicals and pesticides.
The reason behind this is blatantly commercial interest, as the countries that blocked it – India, Kazakhstan, Kyrgyzstan, Russia, Syria and Zimbabwe – account for the majority of white asbestos that is mined and exported. Canada is also a large producer but decided to support the listing of chrysotile in the Convention and is also developing new regulations to prohibit asbestos and products containing asbestos by 2018.
This failure to add chrysotile to the Rotterdam Convention will not have any implications in the EU where it is banned for use. However, it is still found in the waste and transport sectors e.g. asbestos that has been stripped out of a building and is consigned as waste to be transported to a designated landfill site. The Conference of the Parties will next look at chrysotile at the ninth meeting due in two years (2019).
A quick look at the Prior Informed Consent procedure may be useful.
The dramatic growth in chemical production and trade during the previous decades raised concerns about the potential risks posed by hazardous chemicals and pesticides in products. This was a particular problem for emerging economies that did not have the resources to properly determine the negative health effects of some substances.
In response the United Nations Environment Program (UNEP) and United Nations Food and Agriculture Organization (FAO) set up various initiatives, which culminated in 1998 in Rotterdam (Netherlands) where 165 countries adopted the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. This instrument helped to ensure that governments had the necessary information to enable them to assess the risks of hazardous chemicals and to take informed decisions on their future import.
The chemicals covered by the Rotterdam Convention are pesticides and industrial chemicals that have been banned or severely restricted for health or environmental reasons by the Parties to the Convention. The chemicals explicitly identified as subject to Prior Informed Consent under the Rotterdam Convention are listed in Annex III to the Convention.
The Rotterdam Convention is implemented within the European Union by the Prior Informed Consent Regulation (PIC, Regulation (EU) 649/2012), which administers the import and export of certain hazardous chemicals and places obligations on companies who wish to export these chemicals to non-EU countries. It aims to promote shared responsibility and cooperation in the international trade of hazardous chemicals, and to protect human health and the environment by providing developing countries with information on how to store, transport, use and dispose of hazardous chemicals safely.
Furthermore, the EU decided to include a number of additional provisions in the PIC Regulation that go beyond the Rotterdam Convention requirements in order to achieve a higher level of protection of human health and the environment.
Very basically, the PIC procedure is a mechanism for formally obtaining and disseminating the decisions of importing countries as to whether they wish to receive future shipments of hazardous chemicals on a prescribed list. The key principle is that the shipment of those chemicals must not take place without the prior informed consent of the importing country. The export of such chemicals is subject to two types of requirements: export notification and explicit consent.
An exporter based in an EU member state must notify their intention to export certain hazardous chemicals to a country outside the EU. In some cases the recipient country must also approve the export in advance i.e. give their consent.
The PIC Regulation applies to the list of entries (for individual chemicals or groups of chemicals) included in Annex I and to mixtures containing such chemicals in a concentration that triggers labelling obligations under the CLP Regulation (EC) No 1272/2008 (irrespective of the presence of any other substance), as well as to articles containing these chemicals in an unreacted form.
This list is updated regularly as a result of regulatory actions under EU legislation, and developments under the Rotterdam Convention. It is divided into three parts that define the different obligations applied to the chemicals.
Annex V of the PIC Regulation contains a list of chemicals that are banned from export.
The PIC Regulation does not apply to chemicals found in drugs, radioactive materials, wastes, chemical weapons, food and food additives, feeding stuffs, genetically modified organisms, and pharmaceuticals (except disinfectants, insecticides and parasiticides), as these are regulated by other EU legislation.
Furthermore, the PIC Regulation does not apply to chemicals exported or imported for research or analysis provided that the quantities are unlikely to affect human health or the environment and do not exceed ten kilograms from each exporter to each importing country per calendar year.
The PIC Regulation entered into operation in the EU 2014 and the European Chemicals Agency (ECHA) is responsible for the administrative control of the Regulation.
UK Brexit paper ‘positive’ for chemical industry
The UK government has issued a position paper titled ‘Continuity in the availability of goods for the EU and the UK’.
The paper sets out the aim to “ensure a smooth and orderly exit that minimises disruption to citizens, consumers and businesses across Europe in terms of the availability of goods”.
To do this it has set out four principles:
- First, to ensure the continued availability of products on EU and UK markets at the date of withdrawal, goods placed on the Single Market before exit should continue to circulate freely in the UK and the EU, without additional requirements or restrictions.
- Second, to avoid unnecessary duplication of activities and provide legal certainty, where businesses have undertaken compliance activities prior to exit, they should not be required to duplicate these activities in order to place goods on the UK and the EU market after exit. This includes recognising the validity of type approvals, certificates and registrations issued prior to exit.
- Third, to ensure that goods in circulation continue to comply with product legislation, and market surveillance authorities can ensure the necessary action is taken with respect to non-compliant products, the agreement should facilitate the continued oversight of goods.
- Fourth, where goods are supplied with services, there should be no restriction to the provision of these services that could undermine the agreement on goods.
It is the second principal that seems like good news for the chemical industry.
REACH registration has been a considerable investment for chemical companies and avoiding the extra burdens of tariffs and inspection on import will certainly be welcome if it can be agreed.
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