Today CHEM Trust together with ClientEarth (the environmental law charity) are participating in a public hearing at the Court of Justice of the European Union. Both organisations are supporting the EU Chemicals Agency (ECHA) and the Government of the Netherlands against a challenge by the chemical company Chemours regarding the identification of their compounds, known as GenX[1], as a substance of very high concern (SVHC) under EU chemicals law REACH.
CHEM Trust and ClientEarth support the 2019 EU decision to include GenX in the REACH candidate list based on its persistent and mobile properties and evidence of toxic effects. A listing means manufacturers have a duty to communicate information on the substance’s concerning properties in their supply chain; but it is also a signal to the market to invest in alternatives (alternative chemicals or alternative technologies).
GenX chemicals are part of a large family of per- and polyfluoroalkylated substances, which are commonly known as PFAS. The highly stable carbon-fluorine structure of PFAS mean that they hardly degrade in the environment. PFAS’s extreme persistence has earned them the nickname of ‘forever chemicals’. Results from human biomonitoring studies show that children already have several PFAS chemicals in their bodies. Meanwhile, 5 EU countries have started working on a restriction for the whole group of PFAS.
Worrying GenX properties: ´Dark waters’ continued
GenX chemicals are used as processing aids in the production of fluoropolymer plastics used in applications such as non-stick coatings (eg. TeflonTM). This ‘GenX’ technology was introduced by DuPont (from which Chemours is a spin-off company) in 2009 to replace the use of a different persistent, bioaccumulative and toxic PFAS called PFOA (Perfluorooctanoic acid). PFOA was banned globally under the Stockholm convention in 2019 after decades of delay and intense lobbying. The impact of PFOA contamination on a community in the US was featured in the recent Hollywood film ´Dark Waters´; telling the real life story of how the lawyer, Rob Bilott, took on the chemical company Dupont after discovering the pollution of drinking water with PFOA.
GenX chemicals have been found in drinking water, surface water and seawater in several places in Europe, and their removal during water treatment is difficult and costly. This environmental pollution caused by GenX chemicals has occurred in just a few years, since the use of these chemicals started in Europe. The high persistence of GenX chemicals, combined with their high mobility, means that potential impacts will continue even after cessation of emissions, thus presenting a threat to future generations.
The legal challenge
At the centre of the challenge Chemours vs. ECHA is the question of whether GenX has been rightly identified as a substance of very high concern and therefore included in the REACH candidate list. The identification is based on REACH article 57 which lays out the criteria for identifying SVHCs, including: carcinogens (C), mutagens (M), reprotoxicants (R); persistent, bioaccumulative and toxic chemicals (PBT) and very persistent and very bioaccumulative chemicals (vPvB). GenX was identified in accordance with article 57.f which foresees a case-by-case assessment for substances for which there is scientific evidence of probable serious effects to human health or the environment which give rise to an equivalent level of concern. Chemours seeks to annul this decision.
Persistence and mobility: reasons for concern
Other substances already identified under REACH article 57.f include several endocrine disrupters, respiratory sensitisers and 1,4-dioxane which was added to the list based on its persistent, mobile and toxic properties in June this year.
A recent publication by Hale et al. makes the convincing case that persistent, mobile and toxic (PMT) and very persistent and very mobile (vPvM) substances pose an equivalent level of concern to PBT and vPvB substances from a scientific perspective. For example, the following applies to PBTs/vPvBs as well as PMTs/vPvMs:
- Once in the environment, they are almost impossible to remove;
- There is the potential for serious and irreversible effects to the environment and human health;
- The clean-up of drinking water is very difficult and possible only at a very high cost;
- There is a burden for future generations (as we know from PCBs).
EU policymakers promise action on persistent and mobile chemicals
EU researchers and some regulatory agencies including the German Environment Agency have argued, for many years, for the urgent need to better address persistent and mobile chemicals and have proposed criteria to identify PMT/vPVM substances. In 2020, the EU Commission announced in its Chemicals Strategy for Sustainability that it would propose new hazard classes for persistent, mobile and toxic chemicals under the EU Classification, Labelling and Packaging law (CLP). It also promised the introduction of PMT and vPvM categories as substances of very high concern, which CHEM Trust supported as part of our comments to the REACH revision roadmap.
The EU Commission has started a public consultation on the CLP revision which closes on 15 November. CHEM Trust submitted a response to an earlier consultation on the CLP roadmap in May 2021.
Ninja Reineke, Head of Science, at CHEM Trust said:
`EU policymakers have just started recognising the need to better protect ecosystems, biodiversity and human health from persistent and mobile chemicals. Chemical companies should recognise the new spirit of the EU Green Deal and develop alternatives and downstream users should respond and move away from using these chemicals.
Challenges, such as this, to defend problematic highly persistent and mobile chemicals not only waste resources but prevent a focus on solutions that will protect the environment and human health.’
- A joint media release from CHEM Trust and Client Earth can be found here.
- Update February 2022: Chemours lost their challenge
[1] 2,3,3,3-tetrafluoro-2 (heptafluoropropoxy) propionic acid, its salts and its acyl halides – HFPO-DA
