Focus on Taxonomy

Dear colleague!
Thank you for the valuable information in the last WtERT newsletter. I really appreciate your contributions to the Taxonomy and the CSR Directive. Please find a comment to ESRS E5 attached. I had not enough time to check also other ESRS drafts – hopefully, these drafts are more qualified. Please feel free to use or publish this comment partially or completely with reference to the source.
Best regards,
Henning Friege
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Comments to ESRS E5 (draft)

ESRS E5 (draft) „Resource use and circular economy“ is a building block of the new nonfinancial reporting system (CSR Directive, under discussion). It is also based on the Taxonomy Regulation (EU 2020/852) and describes a special part of the disclosure requirements focusing on the use of renewable and non-renewable resources and the circular economy strategy. According to the current state of consultations on the CSR Directive, companies will have to prepare their management reports in line with the European Sustainability Reporting Standards (ESRS) from 2025 onwards.
Once the directive has been adopted and transposed into national law, the ESRS will become
very relevant. It is therefore all the more important that they are scientifically sound,
consistent with the regulatory framework and understandable for the companies concerned.
This is not the case with ESRS E5. Definition of “circular economy”: ESRS E5 delivers two definitions, one in para 4 (page 4) and another one on page 11. The latter one is related to ISO and can be used (but see below). The definition given in the chapter “Objective” is scientifically unsound: Resource use can be minimised (this is our intention), but “waste” cannot be completely eliminated due to the second law of thermodynamics even by sophisticated recovery processes, refurbishment etc.1 Furthermore, for all these activities a certain amount of energy is needed that depends on numerous framework conditions that should thoroughly analysed.2 Wording like “waste is eliminated” should not be used. The text of para 4 gives the
impression that "pollution" can be eliminated, i.e. excluded by several provisions. As to the
term “pollution”, ESRS E5 refers to ESRS E2. There, emissions of pollutants to air, water, and
soil are defined according to Art. 2 of the Taxonomy Regulation, but not with respect to
waste. It remains unclear if this definition focuses only on emissions from processes within
the circular economy or also on substances of concern in waste and resources. It should be
clarified in the ESRS that there is no such thing as complete absence of hazardous
substances. There is a cut-off criterion of 0.1% for the information about Substances of Very
High Concern (SVHC) in products (Art. 9 para 2 WFD in conjunction with Art. 33 para 1
REACH); therefore, hazardous substances below this threshold are not disclosed. More
important, our increasing knowledge over time can lead to a much more critical classification
of previously used chemicals turning them into “legacy chemicals” when the product
becomes waste. DEHP, PFAS, PBDE, HBCD are prominent examples of hazardous chemicals in
waste from widely used products. The number of SVHC (Annex XIV to REACH) is steadily
increasing. Thus, hazardous compounds will be part of large waste streams from used products also in the future. Their detection remains difficult despite the reporting obligation
cited above.3

Goal of circular economy: In para 5 (page 4) the goal (“to retain the value of the resources,
products and materials”) is followed by several tools (“innovative business models…”). In
principle, goals and means to achieve them should be listed separately. In the case of para
5, the tools should be dropped, because there are many more activities and means to
enhance resource management besides new business models.
Principles of circular economy: In para 6 (page 4), “three principles” are defined as the basis
of circular economy. This text again refers to an alleged “elimination of waste and pollution”
and should be dropped.

Disclosure requirements – measurable targets: These requirements have to be met in the
non-financial report. They should therefore be clear and measurable. The information
required under para 24 (page 6) should be described more clearly. An example can be
helpful. In para 25 (page 6) “circular material” is mentioned. There is no definition of a
circular material – does this refer to the content of secondary raw material in the material,
to its recyclability or to the actual amount recycled? Generally, the term “circular material”
should be avoided, because it has no scientific evidence, is misleading and can be used for
green-washing.

Disclosure requirements – resource outflows: The undertaking should inform about its
contribution “to circular economy by increasing the durability, reparability, upgradability,
reusability or recyclability of the products and materials” – this is an important target (para
35, Page 8). Since many years, there have already been advertisements for products that are
supposed to be recyclable but are almost never recycled (e.g.: cardboard packaging for liquid
food). Information about the “recirculation in practice” (para 38) should be compulsory,
non-disclosure should be explained.

Disclosure requirement – waste: In para 41 (page 8 and 9), reporting requirements for
waste are described. According to the WFD, a Municipal Solid Waste Incinerator (MSWI) can
be classified as either a recovery operation (R1 - Use principally as a fuel or other means to
generate energy) or a disposal operation (D10 - Incineration on land). Operation of an MSWI
can be classified as R1 only where its energy efficiency (calculated by a given formula) is
equal to or above 0.60 for installations in operation and permitted in accordance with
applicable Community legislation before 1st January 2009 and 0.65 for installations
permitted after 31st December 2008, respectively. It is therefore necessary, to make clear
that “III. other recovery operations” include waste-to-energy operations if the R1 criterion
is met and that “IV incineration” is valid if the MSWI does not fulfil this specification.
Moreover, the word “recovery” in para 41 c should be substituted by “Disposal”.

Appendix A: As far as possible, terms should be taken from EU legislation in order to be
consistent with this frame. Moreover, new definitions give rise to confusion and represent
an additional obstacle for reporting entities. If necessary definitions are not provided by
European Regulations or Directives, international or European standards (ISO, CEN) should
be used. It is incomprehensible that publications are often used in the Appendix that have
not been subjected to peer review. Examples:
· Use the definition of “by-product” provided by the WFD, Art. 5
· Use the definition of “circular economy” provided by the Taxonomy Regulation, Art. 2, para 9.
· Drop the “circular economy principles” (see above)
· Use the European Waste Catalogue (EWC) to differ between hazardous and nonhazardous
waste. The Basel Convention is not completely in line with the EWC.
· Use the R1 criterion to differ between incineration as a recovery or as a disposal
operation (see above)
· Use the definition of landfilling provided by the Landfill Directive.
etc.

Concluding remark: It is recommended to focus on the sustainable management of
resources in the sense of the Taxonomy, because “circular economy” is not an objective in
itself from an ecological point of view. It can be a tool to decrease resource consumption,
but system thinking is necessary to check if “circularity” leads to ecological performance.

Prof. Dr. Henning Friege

1) See for example St. Baumgärtner (2002): Thermodynamics of Waste Generation in K. Bisson and J. Proops
(eds), Waste in Ecological Economics, Edward Elgar, Cheltenham, UK, and Nothampton, MA, USA; J.M.
Cullen (2017): Circular Economy. Theoretical Benchmark or Perpetual Motion Machine? J. Ind. Ecol. 21 (1),
483-486;
2) See for example H. Rechberger, T.E. Graedel (2002): The contemporary European copper cycle: statistical
entropy analysis, Ecological Economics 42, 59–72; O. Ignatenko, J. Van Schaik, M.A. Reuter: Exergy as a tool
for evaluation of the resource efficiency of recycling systems (2007), Minerals Engineering 20, 862–874;
3) See for example N. Johansson, J. Krook (2021): How to handle the policy conflict between resource
circulation and hazardous substances in the use of waste? Journal of Industrial Ecology 25:994–1008; H. Friege,
B. Zeschmar-Lahl, B. Kummer, J. Wagner (2021): The new European database for chemicals of concern: How
useful is SCIP for waste management? Sustainable Chemistry and Pharmacy 21 (2021) 100430

20.10.2022 12:48:28