A few weeks ago, the European Commission issued an official mandate to the European Chemicals Agency (ECHA) to prepare a restriction dossier for two chromium(VI) substances (chromium trioxide and chromic acid). The "authorization of chromium(VI)" drama could be coming to an end. In view of the enormous effort and costs for companies caused by the regulation, relief could now be on the way.
This is because, based on previous experience, a restriction would be a very constructive, fact-based procedure. If the authority recognizes that the use of a substance poses risks in production or application, restrictions can be imposed in certain cases, subject to appropriate evidence. In principle, the use of a restricted substance remains permitted - apart from precisely those exceptions that are restricted. The justification for the restrictions must be objectively proven - by the authorities.
Proposal regarding PFAS destroys confidence in restriction procedures
The news could therefore trigger enthusiasm. However, this would probably be premature, as insiders warn that the EU Commission is not being guided by insight into the numerous fundamental errors in the authorization procedure that began in 2013 with the inclusion of chromium trioxide in Annex XIV, which are undisputed among experts. Instead, indications give rise to fears that the ECHA is seeking a restriction procedure with a reversal of the burden of proof in order to reduce its own workload. In this way, a substance ban could be enforced in a similar way to an authorization, but without equivalent control bodies. This would allow the authorities to decide and ban quickly and without being able to demand accountability and justification. The burden and problems would have to be borne by the companies alone, without being able to exert any kind of influence. One reason for this assessment is the recently presented restriction proposal regarding PFAS, in which the substance group is de facto banned and only exceptions are permitted, which are also limited in time. Nevertheless, this restriction proposal could serve as a blueprint for chromium trioxide. And then the users of chromium(VI) could be in an even worse position than in the authorization procedure. Even if, according to experts, the rules and regulations laid down in REACH do not actually permit such a procedure in legal terms, this does not seem to impress the ECHA very much.
Authorization in force until the final decision
It is also important to mention that authorization will continue for companies until a final decision on the restriction issue, which is planned for 2026, i.e. applications must be submitted and processed. It is not yet clear to what extent this new decision will affect the CTAC application, which has been reverted to its 2017 status. According to the court ruling, the Commission would have to make a new decision by April 2024. If it were to rule against the application, this would mean an immediate production stop for all companies that refer to the application and have not completed a successful individual authorization by then. Even an ongoing application would not help, as it was submitted after the sunset date. Such a decision by the Commission would be highly irresponsible, especially if new framework conditions could be created in the foreseeable future through a restriction procedure, which in retrospect would make such existentially drastic measures appear to be unduly harsh.
Compared to the beginnings of the authorization procedure well over ten years ago, the associations and companies are highly sensitized by the drama of the last few years and are accordingly trying with great commitment to constructively enable an appropriate and mutually acceptable implementation of the restriction. ECHA intends to submit the restriction proposal on chromium(VI) by October 4, 2024. This is the period in which important decisions will be made for the future of chromium trioxide in Europe. As the ECHA and the Commission have so far shown little openness to factual arguments, all those affected are advised to fight for their own interests through intensive public relations work and, if necessary, in court. Despite all the uncertainty, this change of direction by the EU Commission represents a new opportunity that should not be wasted.