31/1/2018

Comments of the Netherlands on JIS document Subgroup 5 ‘CENTC approach to dangerous substances’/ SCC document CPR 13-13 ‘Current situation on how to treat Dangerous Substances in hENs’

Introduction

The Netherlands has notified Dutch legislation which covers BWR 3/DS (Dangerous Substances) for the use of stony building materials in housing and infrastructure. This legislation covers building materials that can be in contact with rainwater, surface water of groundwater and uses validated Dutch standards. Laboratories must be accredited by a specific document to get a notification by the Dutch government. The Dutch government and the Dutch producers of building materials have used the knowledge they have acquired over the years in their input on the development of the European standards and the discussions in the SCDS and SCC. It’s important that the transition from Dutch legislation to European legislation is as smooth as possible. For this transition not only the document that was published by JIS#5 and the document which was discussed in the SCC (CPR 13-13) is relevant, but also the discussion on the AVCP level. So two discussions are very important:

1. The discussions on the AVCP level for BWR3
2. And the discussion around the document which, to our surprise, was published by JIS#5 and CPR 13-13, which proposes to use the unvalidated TS documents in the harmonized product standards for BWR3. We would like to emphasize that our comments below are relating both to the quality of testing of building materials on dangerous substances AND to the legal aspect of implementing the resulting hEN’s in national legislation.

In both discussions the position of the Dutch government is that the notified Dutch legislation should be taken in account, as has always been common practice in the development of the European standards for the CPR.

Position of the Netherlands on the development of the standards for Dangerous Substances BWR3.

General considerations:

1. The Dutch government wants the notified Dutch Legislation to be seriously considered in the discussion. This is of the utmost importance to the Dutch environment and the producers of building materials that already participate on the Dutch market. These are not only Dutch producers.
2. The Dutch legislation has already been operational for more than ten years and has support from producers, consumers, builders and local governments. In this legislation all buildings are treated in the same way. Waste materials can be re-used as building materials, which fits in the principles of the Circular Economy.
3. Dutch producers fear a serious drop in the quality of the testing of their products and the products of other producers. In the Netherlands the testing for Dangerous Substances of building materials is not just one test but a process of multiple test during longer periods of time.
4. Because of the difference in heterogenity of Dangerous Substance in the different building materials the use of sound statistics is very important in the assessment of the characteristics of building materials for BWR3. In the report CEN/TR 16797-1:2015 of CEN/TC351/TG7 “Construction products: Assessment of release of dangerous substances — Guidance on the statistical assessment of declared values — Part 1: Principles and rules of application” the principles of statistics are made operational. This should made operational in the AVCP discussion and the adjustments of the mandates for BWR3.
5. The Dutch have the highest recycling rates for building wastes and there is almost no landfill by demolition waste. This is already functional part of the Circular Economy and in line with the proposal of the Commission for an Action Plan for a Circular Economy.
6. Reuse of waste materials and especially the acceptance by builders and consumers is facilitated by reliable and trustworthy testing and FPC procedures which are used by accredited laboratories and certification bodies with approved experience on DS.

Specific comments on documents JIS#5 and CPR 13-13:

1. The Commission should give a clear statement on the legal consequences of the proposal of JIS#5/CPR13-13.
   1. Is the Dutch legislation considered to be non-compliant if TS are put in the harmonized product standards? And should the Netherlands therefore consider an article 18 procedure?
   2. What will the AVCP level for TS in the product standards be?
   3. The publication of a TS is not enough for the withdrawal of a full national standard, but national legislation would still have to be changed because of the adoption of document CPR13-13. How does the Commission view this situation?
   4. The Vademecum on European Standardisation in support of Union legislation and policies says in:

2.8.3. Guidance for selecting normative references in harmonised standards

When selecting normative references for use in a harmonised standard, the ESOs should always try to achieve limited and controlled reference chains. Normative references form an integral part of a harmonised standard, but do not need to be harmonised standards or even requested by the Commission. For that reason, the ESOs should pay particular attention to evaluating the suitability of each normative reference, by considering its availability at national level, for example — including the possibility of having national language versions.

For harmonised standards, the following principles are important in order to avoid the risk of normative references leading to non-compliance with the initial request:

1) As a general rule, reference should be made to EN or ISO/IEC standards;

6) All normative references should be publicly available when a harmonised standard is published. If this is not possible, the relevant ESO should delay submission of the references of that harmonised standard to the Commission until they are publicly available;

2. The field of environmental testing is very complex, as the Netherlands has experienced in the past. To use draft standards as part of a system for implementing CE-marking would, in our opinion, harm the trust in the CE-marking. It contradicts the new “Goods Package” which aims to enhance the trust in CE-marking.

3. Is the Commission aware of the extra costs for producers of building materials when introducing new standards in a relatively short period of time? This will mean at least two transitions for all producers (from zero to TS and from TS to EN), and for the Dutch producers even three: from zero to NEN, form NEN to TS and from TS to EN. This will mean a lot of investments in measurements that potentially will be useless with every change in the standards.

Regarding the AVCP:

1. Will the Commission take in account that the Dutch have notified legislation which has a high “national AVCP level” whereas the other member states have not ?
2. When will there be a decision?