Chemical recycling, pyrolysis, depolymerisation...what about these terms in law and how to apply these processes in practice?

According to experts, the process of chemical recycling is nothing new. However, chemical recycling of waste is not explicitly defined in law (which is also true for a number of activities that can be included under this term) and therefore its permitting regime in terms of environmental law or product legislation raises a number of questions and uncertainties, both on the part of investors and the public. It is therefore desirable to clarify how and whether waste can be used in this way and what law applies to the process. This also involves clarifying what impacts can be expected in the vicinity of a facility using chemical recycling and whether any deterioration in the quality of the environment at the site can be expected. The Ministry of the Environment's guidance document from the end of last year, on which we draw below, is intended to help clarify the status of the chemical recycling process.

First of all, it should be taken into account that chemical recycling is a waste treatment process. It is covered by the currently valid and effective Waste Act, i.e. Act No 541/2020 on waste. From the point of view of the waste management hierarchy, which promotes recycling, it is essential that the term recycling represents the material recovery of waste, where waste is processed into further usable substances or products, but does not include energy recovery and reprocessing into materials to be used as fuel or backfill material.

The output of a chemical recycling facility (i.e. a chemical transformation that achieves different chemical properties and composition compared to the original incoming waste) should be a product that complies with applicable legislation for chemicals (REACH, etc.). All the legal prerequisites must be fulfilled for the termination of the waste regime (i.e. the resulting item: - is normally used for a specific purpose, - is an item for which there is a market or demand, - meets the technical requirements for a specific purpose if they have been established by other legislation or technical standards applicable to products, and - meets the requirements of other legislation and its use will not lead to adverse impacts on the environment or human health; or - is a product for which there is a market or demand, - meets the technical requirements for a specific purpose if they have been established by other legislation or technical standards applicable to products, and - meets the requirements of other legislation and its use will not lead to adverse impacts on the environment or human health; or - is a product for which there is a market or demand. there is an implementing regulation setting out criteria for the termination of waste and its requirements are met), which will be assessed in the permitting procedure under the Waste Act. In other cases, only treated waste may be the output.

In terms of permitting processes, chemical recycling facilities may be subject to an Environmental Impact Assessment (EIA) under Act No 100/2001 Coll. 1 of the Act:

- point 34 Production of chemicals and mixtures and processing of intermediate products from a specified limit, such as pesticides and pharmaceutical products, paints and peroxides,

- point 42 Production or processing of polymers, elastomers, synthetic rubbers or elastomer-based products with a capacity from a specified limit,

- point 55 Facilities for the disposal or recovery of hazardous waste with a capacity from a specified limit,

- point 56 Facilities for the disposal or recovery of other wastes with a capacity from a specified limit, and, where appropriate,

- point 86 Facilities for the storage of petroleum and petroleum products from a specified limit and facilities for the storage of chemicals and mixtures classified as hazardous in accordance with Regulation (EC) No .../... of the European Parliament and of the Council. 1272/2008 on the classification, labelling and packaging of substances and mixtures with a capacity from the specified limit; or

- point 30 Integrated facilities for the industrial production of basic organic and inorganic chemicals and mixtures by chemical transformation (e.g. hydrocarbons, acids, bases, oxides, salts, chlorine, ammonia). The investor must always examine all potential options for inclusion in Annex 1 of the EIA Act, whether by location, technology, input materials or other relevant circumstances, and rank the facilities according to the most stringent criteria.

The EIA process is followed by permitting procedures. In addition to the processes addressed by the Construction Act, we also focus on environmental processes. In the case of chemical recycling, this will include the aforementioned permitting procedure under the Waste Act, as well as the permit for the operation of a stationary source under the Air Protection Act (Act No. 201/2012 Coll.), or the integrated process under the Integrated Prevention Act (Act No. 76/2002 Coll.); we leave out the issue of chemical or product legislation or other areas.

In the area of air protection, the question often arises as to whether chemical recycling processes must be classified as waste incineration plants or waste heat treatment plants and therefore meet all the requirements for this type of plant. The methodology states that classification as an incinerator will always be given if the legal definition is met. According to this, a waste incineration plant is a stationary source intended for the thermal treatment of waste, the main purpose of which is not the production of energy or other products, and any stationary source in which more than 40 % of the heat is generated by the thermal treatment of hazardous waste or in which untreated mixed municipal waste is thermally treated.

With regard to the thermal treatment of waste, the law defines thermal treatment as the oxidation of waste or its treatment by other thermal processes, including the combustion of the resulting substances, where this would result in a higher level of pollution than the combustion of an equivalent quantity of natural gas with the same energy content.

In this context, it is important according to the methodology that in the case of stationary sources that thermally treat waste by means other than oxidation, e.g. pyrolysis or gasification, both the thermal treatment and the incineration parts of the stationary source are considered to be thermal treatment. This also applies where the product of such thermal treatment is incinerated off-site in another stationary source operated by another operator.

For subsequent combustion, the assessment of the quality of the output material and the level of pollution will be crucial. The Methodology explicitly states that, in line with the precautionary principle, a stationary source can only be exempted from the thermal treatment scheme in accordance with Section 2(o) of the Air Protection Act on the basis of the results of pollutant emission measurements carried out at the source in question, in accordance with the relevant technical standards for the measurement of emissions.

In terms of the classification of chemical recycling (typically pyrolysis and gasification) in Annex 2 of the Air Protection Act, this will generally be category 3.6 (gasification or liquefaction of coal, production or refining of gases, mineral oils or pyrolysis oils, production of energy gases). Classification as a listed source of air pollution is linked to the requirement for a permit from the regional authority for their operation, as well as to the requirement for a binding opinion from the air protection authority on their location and on the construction.

It is clear that the permitting regime for installations using the chemical recycling process involves a number of specific steps. The approach of the authorities to the authorisation of waste pyrolysis plants can be seen as rather cautious so far, which may be further changed by the cited methodology. The above-mentioned permitting as well as the procedure under the Construction Act should serve as a space for expressing and dealing with possible negative impacts of newly permitted facilities, objections and comments from the public and the public authorities concerned. Going forward, the environmental impacts of the permitted facility, the specific location of the facility, and whether the project is consistent with the overall context of the circular economy and waste hierarchy will need to be carefully considered in each case.