REACH Regulations in Steel Industry

Oleh M. Malskyy

The REACH legislation constitutes a milestone for the European Community. It sets new standards for environmental law, which are becoming the benchmark for many countries and companies around the world. The REACH Regulation which entered into force on 1 June 2007, introduces comprehensive Community-wide legislation for chemical substances, with the aim of ensuring a high level of protection of health for humans and the environment. In prescribing the registration, evaluation, and possibly the authorization and restriction of substances, this legislation has far-reaching consequences for industry, both within Europe and abroad.

This article analyzes application of REACH Regulations in the steel industry.

A system for the Registration, Evaluation, Authorization and Restriction of Chemicals, or the REACH system, which entered into force in June 2007 further to Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals, introduced requirements for a policy on registration of certain chemical ubstances imported into the EU. This article analyzes application of REACH Regulations in the steel industry. A system for the Registration, Evaluation, Authorization and Restriction of Chemicals, or the REACH system, which entered into force in June 2007 further to Regulation (EC) No. 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals, introduced requirements for a policy on registration of certain chemical substances imported into the EU.

REACH does not generally apply to finished articles. Its registration and authorization (prior notification) requirements apply to substances contained in finished articles. Besides, it is not the quantities of supplied finished articles that matter, but the amounts of substances, which are subject to registration and which are contained in such finished articles.

REACH guidance for the European Steel Industry was adopted in January 2009 and directly implements rules on application of REACH to the iron and steel industry.

Under this REACH guidance steel alloys do not conform to either the definition of a substance or preparation. However, REACH recognizes steel and other metallic alloys as ‘special preparations’. In conjunction with special guidance on assessment of preparations and special preparations as well as guidance on grouping of special preparation has been developed though it still has to be completed.

The status as a special preparation means that the substances within steel and ferroalloys need to be registered, not the steels or ferroalloys themselves. In fact, REACH does not permit the registration of alloys. Examples of substances that may require registration by steelmakers and steel importers include: Fe, Si, Mn, P, S Ni, Cr, Mo, Cu, Sn, Al, etc. Most substances that require registration by steel manufacturers and importers will fall into the highest tonnage band (i.e. over 1,000 tonnes per year), which requires full REACH data.

Steel and other semi-finished products, require special consideration in order to define the point at which these products cease to be preparations and become articles. The guidance for substances in articles does not include a definition for semi-finished products. Instead, each industry sector has to apply the REACH definition of an article and additional indicative criteria provided in the official guidance document to determine the point at which its substances or preparation becomes an article.

In addition to the substances in steel, steel producers and importers may have obligations to register other substances.

REACH guidance for the European Steel Industry provides a list of substances that may be required to be authorized in the steel sector:

be authorized in the steel sector:

• Hexavalent chromium (Cr VI) compounds;
• Soluble nickel compounds;
• Benzene and some other coke oven by-products.

In June 2008, ECHA launched a proposal for substances to be included in the first candidate list for Annex XIV substances, which was available by ECHA in October 2008. To date, issues for the steel industry would be: sodium dichromate, short chain chlorinated paraffins, benzyl butyl phthalate.

It may not be obvious to a steel producer or importer that its products contain substances that meets the criteria for authorization under REACH. The relevant question here, therefore, is which potentially controversial substances have been used in the production, how much, and whether or not they are intended to be released upon importation in the EU. Should the answer indicate that these articles are covered by Article 7 REACH, then the substances they incorporate need not be registered (if they were not preregistered, triggering a lighter regulatory regime, before 1 December 2008).

It also should be noted that the imported tonnages of steel products themselves are irrelevant. What is relevant is the annual imported tonnage of the substance these products release, or of the substance of a very high concern they contain by relative weight.

Without registration, such articles can no longer be marketed in the EU.

The REACH Regulation itself prescribes that when finished articles may release chemical substances at some point, or contain so-called substances of very high concern, the importer or EU-based producer needs to register these substances under REACH as stipulated in Article 7.

Therefore, substances contained in finished steel articles are subject to registration if both the following conditions are met:

1) it is assumed that such substances are intended to be released under normal or reasonably foreseeable conditions of use, and

2) they are present in those articles in quantities totaling over 1 tonne per year (To estimate the annual quantities of a substance, control is exercised over the total quantity of such substance contained in all articles produced or imported by the relevant manufacturer or importer).

Also, substances contained in finished steel articles are subject to prior notification to the European Chemicals Agency if all the following conditions are met:

1) these substances meet the criteria for classification as substances having carcinogenic or mutagenic properties or properties which are toxic for human reproduction (CMR), substances with persistent, bioaccumulative (having a tendency to accumulate in biological tissues) or toxic (PBT) properties, or substances with very persistent and very bioaccumulative (vPvB) properties; and

2) the substance is present in those articles in quantities totaling over 1 tonne per producer or importer per year; and

3) the substance is present in those articles above a concentration of 0.1 % weight by weight; and

4) exposure to humans or the environment cannot be excluded.

Some substances are exempt from REACH or from registration under REACH. Substances that are fully exempt from REACH are:

• radioactive substances;
• waste;
• substances which are subject to customs supervision;
• substances used in the interests of defense.

If chemical substances used to manufacture other chemical substances are never separated from the mixture of other substances within a closed system, such substances are fully exempt from REACH (non-isolated intermediaries). Intermediates that are separated out during the production process (isolated intermediates) will have to be registered, but with simplified information requirements commensurate with their lower risk.

Also, there are some exemptions from Registration such as:

• substances occurring in nature (minerals, ores and ore concentrates, cement clinker, natural gas, liquefied petroleum gas, natural gas condensate, process gases and components thereof, crude oil, coal and coke. All these substances do not require registration as long as they are not chemically modified.);
• number of basic chemical substances for which the hazards and risks are well known: hydrogen, oxygen, several noble gases (argon, helium, neon, xenon), and nitrogen.
• substances used in food, medicinal products and plant protection (these substances are regulated in specific legislation).

For the time being polymers are also exempted from registration and evaluation (however, monomers and nanomaterials are included in the scope of REACH).

The central supervisory authority for the implementation of REACH is the European Chemicals Agency (ECHA), a newly created agency with broad supervisory powers. Its headquarters are based in Helsinki. Certain powers may be delegated to other agencies by mutual consent with the ECHA. Such talks (with no final memorandum of understanding having been signed) are already under way between the ECHA and the European Environment Agency and the European Medicines Agency. The European Commission administers and implements REACH.

At the national level, each EU member state designates a competent authority authorized to evaluate substances and set up a national system of controls over compliance with REACH requirements (in particular, to set penalties for failing to comply with REACH requirements). Enforcement issues are generally handled by Member States, are penalties for breaches of REACH. Therefore, the actual impact of REACH on customs procedures depends on the relevant EU member state and the mechanism for integrating the REACH Regulation into its national customs laws. Procedures and the impact can vary.

In general, REACH does not directly apply to non-EU manufacturers. The responsibility for compliance with REACH lies only with those EU-based companies which either manufacture articles or import them into the EU.

However, it should be noted that in the near future compliance with REACH could become an important criterion for the selection of suppliers by any EU-based customer. Unless REACH requirements are met, it will not be possible to place articles on the EU market.

For registration purposes, non-EU suppliers may engage a so-called “only representative”, a legal entity registered in the EU. The supplier’s importers will thus be released from their registration obligations. If registration is carried out by the only representative, its results can be used by several EU-based importers.

Procedures for exercising control over compliance with REACH and imposing specific penalties on EU-based importers are governed by the national laws of each EU member state. In general, unless substances are registered, there can be no access to the EU market and the relevant articles cannot be used within the EU.