Why is ‘in situ’ nitrogen under scrutiny?
Q&A with Henning Krueger, managing director, Pure Sodium Hypochlorite Biocidal Products Group EWIV
Earlier this year, Chemical Watch reported that EU member states were considering a BPR derogation for in situ-generated nitrogen, following concerns over the substance’s importance for heritage preservation.
Debate on the issue has continued since then. Pest control company Thermo Lignum has argued that there are viable alternatives on the market, while the European Commission recently advised museum associations to apply for a modification of in situ nitrogen’s Annex I entry that would broaden its authorised uses.
The topic will be covered at this year’s Biocides Europe event in December. Henning Krueger, managing director of Pure Sodium Hypochlorite Biocidal Products Group EWIV, will be speaking about the issue at the event, so we asked him to explain the issue in more detail.
Q) For the first time, member state authorities are considering making use of a derogation under the biocidal products Regulation’s (BPR) Article 55(3) for in situ-generated nitrogen to preserve museum artefacts and monuments. Why is this significant?
As we all know, the BPR is very strict regarding the placing on the market and use of biocidal products.
Before a biocidal product can be authorised, it is usually required that the active substance in this product be approved.
The main reason for this two-step process is to have a Europewide, harmonised evaluation of all active substances used in biocidal products.
The BPR only provides for three different cases of derogation, where products can be authorised without an active substance approval. The first case is an imminent threat to “public health, animal health or the environment which cannot be contained by other means”. The second case refers to new active substances that have been evaluated, and where the evaluating competent authority already concluded that the active substance and relevant product fulfil all main requirements of the BPR.
The third derogation is the one aimed at products for the preservation of cultural heritage objects. Under this, the Commission may allow a member state to authorise a biocidal product, although it contains non-approved active substances, if the active substance is essential for the protection of cultural heritage and no appropriate alternatives are available.
This derogation process is highly significant for the application of the BPR, because the clause in Article 55 (3) is very vague on its implementation.
It is completely unclear what makes a substance essential and what is considered an appropriate alternative.
And in addition, this derogation – unlike the other two – does not set a fixed timeframe for it. While Article 55 (1) sets a limit of 180 days, which can be extended and Article 55 (2) sets a limit of three years, Article 55 (3) does not mention a time limit. Therefore, it may be legally possible to have infinite derogations under Article 55 (3).
The outcome of the current discussion may well impact on the interpretation and application of the BPR in the future.
Q) From a legal perspective, to what extent does this derogation apply to in situ-generated nitrogen for preserving cultural heritage? Are there any reasons why it shouldn’t?
In situ-generated nitrogen is very important to many museums in several member states. It is widely used in Germany and Austria.
Nitrogen is easy to apply. Many museums have their own chambers, which are generally uncomplicated to use. It can be used on almost all materials and has no side-effects, unlike many other methods.
Most importantly, it is cheap. Therefore, for many museums it is the main substance used in pest control. Nevertheless, no one has bothered to have the active substance approved for the appropriate use.
Only ex-situ nitrogen was approved for use in canisters. But it is only suitable for smaller objects.
From a legal perspective the main questions are: is nitrogen essential for the preservation of cultural heritage; and are there no appropriate alternatives?
The more interesting of those two questions is the one regarding alternatives, as there are many different methods available to treat cultural heritage.
There are non-biocidal alternatives like low and high temperature methods, humidity controlled warm air method, biological treatments, gammy and microwave radiation.
And then you have biocidal alternatives like phosphine, CO2, sulfuryl fluoride and others. It will be difficult to demonstrate that there are no appropriate alternatives to nitrogen available.
Q) This is the first time a derogation according to Article 55(3) BPR is under discussion. As such, what are some of the open questions on how it would be implemented?
The implementation will be very revealing in terms of the application of the BPR, as Article 55 (3) is rather open on the ‘How’.
Many questions arise. What does an appropriate alternative mean? Is it required to have one method that covers all relevant applications of the nitrogen, or is a combination of alternatives also appropriate?
Are costs a relevant factor? That needs to be taken into account.
And what if there are alternatives for several applications of nitrogen available?
Will the derogation be general or limited to the applications without an alternative?
What about the timeframe? Will derogations according to Article 55 (3) be granted without a time limit? Would that be appropriate?
And who may benefit from such a derogation? Museums? Private collections?
Who may apply for the authorisation? Museum Associations? National institutions or authorities or even private companies offering services in this field?
Will the derogation be limited to cultural heritage objects? And what are these? Is my old furniture cultural heritage?
Q) And why is this issue relevant to enforcement? What conflict are the enforcement authorities finding themselves in, when it comes to in situ-generated nitrogen used to preserve cultural heritage?
The enforcement authorities are in a rift. On the one side, there is the BPR urging them to act.
On the other side, there are the museums, some of them state owned, some of significant importance for the national identity of a member state.
This is a highly political issue. It is a question of responsibilities. Obviously, at some point, responsible persons did not act as was necessary, otherwise we would not have this discussion today.
The question is, who is responsible for this outcome? Is it the competent authorities for agreeing that nitrogen is a biocidal active substance? Or for not informing the museums or the ministries responsible for the preservation of cultural heritage? The museum associations for not being aware or not informing their members? The museums themselves for not being informed?
And the main question in some member states is, how do we circumvent the current state of law?
In Austria, for instance, the competent ministry decided not to enforce the BPR at all regarding in situ nitrogen.
In other member states, the local competent authorities look the other way, without announcing it publicly.
And this reaction can be labelled as typical for the enforcement of the BPR in all cases where national interests are involved, may they be economic, cultural or other.
Q) What does this discussion around in situ-generated nitrogen tell us about the flexibility and implications of the BPR’s derogations?
The derogations according to Article 55 (1) are highly relevant and frequently applied. The clause sets clear requirements and boundaries for such derogations, while leaving room for some flexibility. This makes it easy to apply. The same counts for Article 55 (2). It provides clear requirements and limitations for the authorisation of products with unapproved new active substances and therefore supports innovations in the biocides sector. But Article 55 (3) is vastly unclear on the requirements for its application as well as implementation. It uses open legal terms which must be interpreted and does not lay down specific rules for the scope of authorisations under this. Therefore, we need clear answers to the open questions on its application, to be able to apply it as easily as the other derogations under Article 55.
The views expressed in this interview are those of the interviewee and are not necessarily shared by Chemical Watch.
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Hear from Henning Krueger in person at this year’s Biocides Europe conference:
