A Call to Co-ordinate RoHS and REACH Efforts
Our Founding Fathers clearly understood the inherent unfairness of being put through multiple trials for the same offense. The Fifth Amendment to the U.S. Constitution specifically prohibits what has become known as “double jeopardy,” where a defendant is tried again on the same (or similar) charges after being acquitted the first time. The goal was and is to prevent the government from employing its superior resources to wear down and erroneously convict innocent persons.
But if you are a manufacturer of electronic components or finished electronic equipment and you do business in Europe you have to implement the requirements of both Directive 2011/65/EU on the restriction of the use of certain hazardous substances in electrical and electronic equipment (the so-called Recast RoHS Directive, or “RoHS2”) and Regulation (EC) No 1907/2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) often for the same substances in the same products and processes, resulting in double the administrative burden and costs.
RoHS and REACH are different pieces of legislation with different perspectives but essentially one purpose: environmental protection. RoHS 2 provides rules on the restriction of certain hazardous substances in Electrical and Electronic Equipment (EEE), while REACH is a more general act regulating or restricting chemical substances. RoHS is hazard-based, seeking to have manufacturers use alternatives to hazardous materials. REACH restrictions are based on proven risks to human health or the environment.
One other difference is of vital concern to semiconductor and EEE suppliers. RoHS bans substances present in electrical equipment within the purview of the directive while REACH also includes chemicals used to make this equipment (such as metal alloys solvents, etc.). REACH offers few exclusions and/or exemptions.
Unfortunately, satisfying RoHS2 regulations does not affect the application for REACH authorization and vice-versa, with regard to the restriction of substances. Manufacturers of such equipment therefore have to implement the requirements stemming from both pieces of legislation.
Recently, in a position paper sent to the European Commission entitled “Ensuring a Truly Complementary, Coherent, and Consistent Implementation of REACH and RoHS2,” Orgalime, the European Engineering Industries Association set out the difficulties faced by manufacturers of electrical and electronic equipment in trying to comply with these two legislative acts.
Orgalime speaks for 39 trade federations representing some 130,000 companies in 23 European countries. The Brussels-based engineering organization concluded in its position paper that the EC needs to get rid of increasing legislative overlaps and inconsistencies between REACH and RoHS2 in electrical and electronic equipment. The paper stated: “With the final adoption of the Recast RoHS Directive (“RoHS2”) and the increasing speed of REACH implementation, manufacturers are increasingly faced with legislative overlaps and inconsistencies between these two pieces of legislation, double requirements for the same substance used in the same equipment and the same process. As a consequence, additional administrative burden and costs occur for companies with, in most cases, limited or no environmental benefit”.
The document further suggested that any substance application already exempt under RoHS should not have to go through the REACH authorization process,especially considering the fact that RoHS exemptions are not easy to obtain. The organization also said that to be in a position to ensure full and timely compliance with all applicable requirements on their products and processes due to either regulation, industry needs legal certainty, consistent requirements and fewer redundancies.
Orgalime called on regulators to offer “increased legal certainty for companies on what procedure, process, rules and criteria will apply” in different cases. The document asks for one commonly accepted scientific and technical evaluation per substance that is valid for both REACH and RoHS implementation. It points out that substances mentioned in the RoHS as priority substances for new RoHS2 restrictions are now also included in the list of substances subject to REACH authorization.
Orgalime supports the principle of “a better coordination and structured, continuous communication between the different actors involved in the implementation of both pieces of legislation, including authorities as well as affected stakeholders.”
The same scientific assessment of the uses of chemical substances covered by REACH and RoHS should apply, in the view of Orgalime. The organization noted that since both RoHS and REACH require a “scientifically based, structured preparatory evaluation process before setting any new substance restriction,” these processes should be as closely linked with each other as possible. Orgalime suggested that a common guidance document of all affected European Commission services would be helpful.
A recent REACH review published by the European Commission acknowledged that there was overlap between the two laws. What’s more, article 6 of RoHS2 opens the door to revision as it explicitly requires that the RoHS evaluation methodology “shall be coherent with” REACH and “maximize synergies” between both regulations. Also, Recital 28 of RoHS 2 requires that during the review of the Directive a thorough analysis of its coherence with REACH shall be carried out by the Commission to secure coherence between RoHS 2 and REACH.
Welcoming the Commission’s recognition of possible shortcomings in the REACH review and its commitment to “minimize and avoid overlaps,” Orgalime called on the EC Regulators to make a clear decision clarifying which procedure (REACH restriction, RoHS restriction, REACH authorization, RoHS exemption, measures under other EU environment and waste laws) “will be considered appropriate in which case and consequently, a consistent application of this decision by all regulators involved throughout REACH and RoHS implementation processes.”
Orgalime also wants affected stakeholders to be “involved and consulted in a coordinated, well-structured and continuous manner for the establishment of this guidance document and throughout RoHS and REACH implementation.” Taking into account and seeking the opinions of the REACH Risk Assessment and Socioeconomic Analysis Committees in the preparatory process of potential new RoHS2 restrictions would be a helpful step, according to the document.
Orgalime concludes: “We call upon regulators to urgently develop a common understanding for the implementation of REACH and RoHS2 and a consistent application under both legislative instruments.”
The first review of RoHS 2 is due by July 2014 and will also address the development of a methodology for any future amendments to the list of restricted substances. In the meantime the EC will consider how REACH can exempt uses that have already been considered in another piece of EU environmental legislation by looking at it on a case-by-case basis.