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Waste and REACH - an important issue still to be solved

The issue of how to deal with waste under REACH has been up for discussion since the first drafting of the Regulation. The subject of when waste ceases to be waste is, however, far from straightforward. This means that companies have to pay attention to how their waste and by-product streams might be affected by REACH and other product regulations.
The REACH Regulation states that waste as defined in the Waste Directive is not a substance, preparation or article within the meaning of REACH. Therefore, many REACH obligations do not apply to waste. Nevertheless, exposure scenarios should cover the entire life-cycle of the substance, including the waste stage.
Another interesting issue is that of recovery of waste materials. Recovery processes often take place in several steps. The last step of recovery should be considered a manufacturing process whenever it results in the generation of one of several substances that have ceased to be waste. This means that recovered (manufactured) substances in principle are subject to REACH registration requirements, a fact that recyclers of materials may have overlooked. However, article 2(7)(d) of REACH provides criteria for when recovered substances are exempt from registration. In short, the conditions are that the substance must have been registered (at the current stage in time, quite unlikely), the recovered substance must have the same chemical identity and properties as the original one and finally, that the recycler has all relevant information on the substance.
In addition to applying to waste materials that have ceased to be waste, REACH of course applies to by-products. The new EU Waste Framework Directive has cleared up the definitions of by-products and end-of-waste materials. The concept of end of waste means that specific materials cease to be waste once they fulfil certain standards or criteria. End-of-waste criteria have yet to be drawn up for various materials. The first waste materials for which criteria may be drawn up is compost, metal scrap and different aggregates, such as fly ash.
Understanding waste and product legal requirements is not made easier by the fact that definitions and requirements differ greatly in EU member states. All in all, companies producing by-products or recycling waste for different uses, such as compost, should be aware of the legal implications of defining that a certain material is “waste”, “substance/preparation” or “article”. The costs associated with different legal interpretations (waste or product) and uses (landfill, compost, consumer use, etc) vary a great deal.