EU LEGISLATION ON WASTE 2011- European Commission WORKSHOP ON EU LEGISLATION WASTE © 2010 Microsoft Corporation. All rights reserved. The EU Waste Framework.

EU LEGISLATION ON WASTE

2011- European Commission

WORKSHOP ON EU LEGISLATION

WASTE

© 2010 Microsoft Corporation. All rights reserved.

The EU Waste Framework Directive




1. Introduction2. Definition of waste3. Differentiation waste - by-products4. Waste hierarchy 5. Producer responsibility and waste prevention6. Differentiation waste recovery / waste disposal7. National waste management structures8. Waste recovery requirements9. Targets for Re-use and Recycling10. Waste management planning11. Hazardous waste

The EU-Waste Framework Directive Outline

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Community Waste StrategyCOM (2003)301, 27 May 2003

Waste Framework Directive(Dir. 2006/12/EC)

Waste Streams

Waste Treatment Operations

Landfill(99/31/EC)

Sewage Sludge

Dir. 86/278/EEC

Batteries and Accumulators

Directive2006/66/EC

Packaging and

Packaging Waste

Dir. 94/62/EC

PCBsDir.96/59/EC

End-of-life VehiclesDir 2000/53 EC

Hazardous Waste DirectiveDir.91/689/EEC

Waste Shipment Regulation(Reg. No 1013/2006)

Framework Legislation

Incineration2000/76/EC

Mining Waste

Com (2003)319

Waste oils

Dir 75/439/EEC

Titanium Dioxide

Dir 78/176/EEC

Waste electric

and electronic equipment

Dir.2002/95EC

Restriction of

HazardousSubstances

Dir.2002/95EC

The legal framework until 12.12.2010

IPPC (2008/1/EC)

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Waste Framework Directive(Dir. 2008/98/EC)

Waste Streams

Waste Treatment Operations

Landfill(99/31/EC)

Sewage Sludge

Dir. 86/278/EEC

Batteries and Accumulators

Directive2006/66/EC

Packaging and

Packaging Waste

Dir. 94/62/EC

PCBsDir.96/59/EC

End-of-life VehiclesDir 2000/53/EC

Waste Shipment Regulation(Reg. No 1013/2006)

Framework Legislation

Mining Waste

Dir. 2006/21/EC

Waste electric

and electronic equipment

Dir.2002/95/EC

Restriction of

HazardousSubstances

Dir.2002/95/EC

The legal framework after 12.12.2010

Community Waste StrategyCOM (2003)301, 27 May 2003

IPPC (IED)(2008/1/EC)

Incineration (?)2000/76/EC

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Which Directive?

COUNCIL DIRECTIVE of 15 July 1975 on waste

(75/442/EEC)

DIRECTIVE 2006/12/EC OF THE EUROPEAN

PARLIAMENT AND OF THE COUNCIL of 5 April 2006 on

waste

DIRECTIVE 2008/98/EC OF THE EUROPEAN PARLIAMENT AND

OF THE COUNCIL of 19 November 2008 on waste and

repealing certain Directives

In force since 17.5.2006

In force since 12.12.2008

Repealed with effect from 12.12.2010

Transposition by Member States by

12.12.2010

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The state of transposition

Source: EU-Commission, COM(2009) 633 final, 20.11.2009

• In 2009, 11 cases for structural and wide-spread failure to address illegal waste dumping,

• 10 for bad application,

• 4 related to waste planning, and

• 3 on non-conformity of national laws with directive 2006/12/EC were still pending.

• In 2006, the environment sector accounted for about one fifth of the total number of open cases concerning non-compliance with Community law under investigation by the Commission and remains the sector with the highest number of open cases.

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What is waste?

• Why is the definition relevant in practice?• Keystone of all sectoral regulation• Application of administrative obligations relating to

collection, sorting, storage, transportation, treatment methods, recovery, disposal and international transfer depend on the definition of waste

• Penal sanctions!

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What is waste?

DIRECTIVE 2006/12/EC

‘waste’ shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard;

DIRECTIVE 2008/98/EC

‘waste’ means any substance or object which the holder discards or intends or is required to discard;

• Discards

• Intends to discard• Is required to discard

Subjective and

objective elements

• The concept of „discard“

Teleological interpretation: broadly, „high level of protection“, principles of precaution and preventive action, effectiveness

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What is waste?

• A is transporting used dilute hydrochloric acid on behalf of third parties without obtaining prior authorization. He is prosecuted for illegal transport of waste according to the national waste act.

• In his defence, A maintains, first, that the substances transported do not constitute waste within the meaning of the national waste Act which defines waste as including "any substance or object produced by human activity or natural processes which is, or is intended to be, abandoned." A is claiming that in this case the substances transported were capable of economic reutilization and were not therefore abandoned or intended to be abandoned.

• Is A right?

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What is waste?

• 9 The answer (...) must therefore be that the concept of waste (...) is not to be understood as excluding substances and objects which are capable of economic reutilization.

• ECJ, C-206/88, 28.3.1990 „Vessosso and Zanetti“

• 13 The answer (...) must therefore be that national legislation which defines waste as excluding substances and objects which are capable of economic reutilization is not compatible with Council Directives 75/442 and 78/319 .

• Case C-359/88 Zanetti and Others.

• 31 Finally, it should be borne in mind that the Court has already held that the definition of waste in Article 1 of Directive 75/442, as amended, is not to be understood as excluding substances and objects which were capable of economic reutilization.

• 32 It follows from all those considerations that substances forming part of an industrial process may constitute waste within the meaning of Article 1(a) of Directive 75/442, as amended.

• Case C-129/96 Inter-Environnement Wallonie.

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Contaminated soil – waste?–Facts of the case–The Brussels‑Capital Region owns a building in which it had undertaken reno-vation measures. The renovation had to be halted on 18 January 1993 as the result of the discovery that water saturated with hydrocarbons was leaking into the cellar of the building from the wall which separates that building from the adjacent building, where a Texaco service station was at that time located. The hydrocarbon leak was the result of defects in the service station’s storage facilities.

–The Brussels‑Capital Region took the view that decontamination measures should be paid by Texaco.

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Contaminated soil – waste?

–Proceedings were brought inter alia against Mr Van de Walle, Texaco’s managing director, before Criminal Courts. The Brussels‑Capital Region claimed damages in those proceedings. The court of appeal took the view that the national law in force imposed penalties under the condition that the actions of the accused constitute abandonment of waste. The court was in doubt, however, as to whether subsoil contaminated as the result of an accidental spill of hydrocarbons could be considered waste and stated that it doubted that that classification was possible, since the land in question had not been excavated and treated. It also pointed out that legal opinion differs as to whether the accidental spill of a product which contaminates soil is comparable to the abandonment of waste.

–How would the ECJ decide?

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Contaminated soil – waste?52 The same classification as ‘waste’ within the meaning of Directive 75/442 applies to soil contaminated as the result of an accidental spill of hydro-carbons. In that case, the hydrocar-bons cannot be separated from the land which they have contaminated and cannot be recovered or disposed of unless that land is also subject to the necessary decontamination. That is the only interpretation which ensures compliance with the aims of protecting the natural environment and prohibiting the abandonment of waste pursued by the Directive.

Case C-1/03, van de Walle.

• Article 2• Exclusions from the scope

• 1.The following shall be excluded from the scope of this Directive: (...);(b) land (in situ) including unexcavated contaminated soil and buildings permanently connected with land;

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Waste or by-product?

• Facts of the case• ARCO Chemie Nederland Ltd (hereinafter ARCO) applied to the competent

authority) for authorisation to export to Belgium 15 000 t of LUWA-bottoms. LUWA bottoms are one of the by-products of the manufacturing process used by ARCO. In addition to propylene oxide and tertiary butyl alcohol, that manufacturing process produces a flow of hydrocarbons containing molybdenum. The molybdenum comes from the catalysts used to produce propylene oxide. The molybdenum is extracted from the flow of hydrocarbons in a dedicated plant and the process produces the substance which ARCO describes as LUWA-bottoms. Those LUWA-bottoms, which have a calorific value of between 25 and 28 MJ/kg, are destined for use as a fuel in the cement industry.

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Waste or by-product?• ARCO states that in its view LUWA-bottoms are not

waste. Because the fact that a substance is recovered in an environmentally responsible manner and without substantial treatment constitutes a cogent argument that the substance in question is not waste. It states that LUWA-bottoms, whose calorific value is comparable to that of first-grade coal compounds, can be used as to 100% as fuel without further treatment. Their use in the cement industry is an environmentally responsible option, since in that case the molybdenum has no negative effects on the environment but during the process is immediately and completely immobilised and bound up in the cement.

•

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• The competent authority stated that the LUWA bottoms constituted waste and that ARCO would need to notify the shipment under the WSR. ARCO lodged an appeal against that decision before the Court. The Court is unsure as to whether the shipment of LUWA-bottoms to Belgium is covered by the Waste Shipment Regulation, because the Court doubts whether that substance constitutes waste for the purposes of the Regulation.

• What du you think?

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• 64 (...), the method of treatment or use of a substance does not determine conclusively whether or not it is to be classified as waste. What subsequently happens to an object or a substance does not affect its nature as waste, (...)

• 65 (...) the concept of waste is not to be understood (...) as excluding substances and objects which are capable of being recovered as fuel in an environmentally responsible manner and without substantial treatment.

• 66 The environmental impact of the processing of that substance has no effect on its classification as waste. An ordinary fuel may be burnt without regard to environmental standards without thereby becoming waste, whereas substances which are discarded may be recovered as fuel in an environmentally responsible manner and without substantial treatment yet still be classified as waste.

Case C-418/97 and C-419/97 ARCO Chemie.

ECJ

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• A substance or object, resulting from a production process, the primary aim of which is not the production of that item, may be regarded as not being waste referred to in point (1) of Article 3 but as being a by-product only if the following conditions are met:

• (a) further use of the substance or object is certain;

• (b) the substance or object can be used directly without any further processing other than normal industrial practice;

• (c) the substance or object is produced as an integral part of a production process; and

• (d) further use is lawful, i.e. the substance or object fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts.

Art. 5

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• Criteria• Integral part of the production process• Further use is certain • without further treatment „other than normal industrial practice“

what does this mean?• Further use is lawful• Relevance of economic value?

– Economic value as such does not exclude waste ( standing jurisprudence since Vessoso and Zanetti)

– But: The absence of economic value is an argument in favour of waste ( case van de Walle: „a burden which the holder seeks to discard“)

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When does waste cease to be waste?

• 94 (...) even where waste has undergone a complete recovery operation which has the consequence that the substance in question has acquired the same properties and characteristics as a raw material, that substance may none the less be regarded as waste if, in accordance with the definition in Article 1(a) of the directive, its holder discards it or intends or is required to discard it.

• 95 The fact that the substance is the result of a complete recovery operation for the purposes of Annex IIB to the directive is only one of the factors to be taken into consideration for the purpose of determining whether the substance constitutes waste and does not as such permit a definitive conclusion to be drawn in that regard.


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• 96 If a complete recovery operation does not necessarily deprive an object of its classification as waste, that applies a fortiori to an operation during which the objects concerned are merely sorted or pre-treated, such as when waste in the form of wood impregnated with toxic substances is transformed into chips or those chips are reduced to wood powder, and which, since it does not purge the wood of the toxic substances which impregnate it, does not have the effect of transforming those objects into a product analogous to a raw material, (...)


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The waste hierarchy

Prevention

Recovery

Disposal

Prevention

Re-use

Recycling

Other recovery

Disposal

Art. 3 (1) (old) Art. 4 new

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The waste hierarchy

• Is the waste hierarchy legally binding?

Arguments in favor Arguments against

Wording of Art. 4: The following waste hierarchy shall apply as a priority order in waste prevention and management legislation and policy

Consideration 7:

„(...) re-use and material recycling should be preferred to energy recovery from waste, where and insofar as they are the best ecological options.“

Art. 4 (2)

See also Art. 10 (2), 11 (2) principle of proportionality

23



• Aim:• European recycling

society with a high level of resource efficiency

collection

recycling

disposalraw materials production

production

use

„European recycling society“

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Extended Producer Responsibility

• Aim: • Strengthen the re-use and

the prevention, recycling and other recovery of waste

• Legislative and non-legislative measures:

• Acceptance of returned products

• Financial responsibility• Design of products (reduce

impact, suitable for multiple use, technically durable etc.)

25



Prevention

• Report on prevention by the end of 2011• Action plan for ruther support measures• By the end of 2014: Waste prevention and decoupling

objectives for 2020• Waste prevention programmes established by MS (Art.

29)

Art. 9

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Recovery or disposal?

• Is coprocessing of waste in cement kilns to be regarded as a recovery or a disposal activity?

What do you think?

27




• The combustion of waste constitutes a recovery operation under point R1 (…) where its principal objective is for the waste to fulfil a useful function as a means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function.

28




• In particular, the use of waste as a fuel in cement kilns may be classified as a recovery operation if the main purpose is to enable the waste to be used as a means of generating energy, it takes place in conditions which give reason to believe that it is indeed a means to generate energy, the greater part of the waste is consumed during the operation and the greater part of the energy generated is recovered and used.

29




Art. 6 (1) Dir 2008/98/EC

„certain specified waste“,

criteria:

Comitology procedure

Art. 6 (4) Member States may decide case by case

(a) The substance or object is commonly used for specific purposes;

(b) a market or demand exists for such a substance or object;

(c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and

(d) the use of the substance or object will not lead to overall adverse environmental or human health impacts.

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• It follows that, where the use of waste as a fuel meets the conditions laid down in point R1 of Annex II B to the directive, it must be classified as a recovery operation, without the need to take into consideration criteria such as the calorific value of the waste, the amount of harmful substances contained in the incinerated waste or whether or not the waste has been mixed.

•(see paras 41-47 C-228/00, Com / Germany)

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• Is waste that ist deposited in a former salt-mine to secure hollow spaces (mine-sealing) to be regarded as a recovery or a disposal activity?

• 69 „However, it does follow from Article 3(1)(b) and the fourth recital of the Directive that the essential characteristic of a waste recovery operation is that its principal objective is that the waste serves a useful purpose in replacing other materials which would have had to be used for that purpose, thereby conserving natural resources.“

• ECJ, Case C-6/00, 27 February 2002.

What do you think?

Are Annexes I an II of some help?

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• Incineration of municipal solid waste – recovery or disposal?

37 The combustion of waste therefore constitutes a recovery operation where its principal objective is that the waste can fulfil a useful function as a means of generating energy, replacing the use of a source of primary energy which would have had to have been used to fulfil that function.

44 The Commission has not adduced any evidence in the context of its action which shows that, the principal objective of the operation in question was the recovery of waste. (...) such as the fact that the waste in question was intended for a plant which, unless it was supplied with waste, would have had to operate using a primary energy source, (...)

•ECJ, Case C-458/00, 13 February 2003

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• Incineration of municipal solid waste – recovery or dispoal?

Annex II, R 1 energy efficiency criteria applicable for incineration facilities of municipial solid waste, not applicable for hazardous waste incinerators adaptation to technical process may be done in comitology procedure,Art. 38 (1).

Art. 3

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National waste management structures

• Including Municipal waste incinerators in the recovery concept may have an impact on national waste management structures.

• Municipal waste free movement of goods, but: Art. 3 (5) Waste shipment Regulation!

Art. 16 WFD: Principles of self-sufficiency and proximity• Mixed municipal waste Art. 16• Sorted waste Art. 106 II TFEU (former 86 II EC-Treaty)

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• Art. 106 TFEU (former Art. 86 EC)

• 2. Undertakings entrusted with the operation of services of general economic interest or having the character of a revenue-producing monopoly shall be subject to the rules contained in this Treaty, in particular to the rules on competition, insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them. The development of trade must not be affected to such an extent as would be contrary to the interests of the Community.

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• 52 In this case it is undeniable that the removal and treatment of household refuse may be regarded as constituting a need in the general interest. Since the degree of satisfaction of that need considered necessary for reasons of public health and environmental protection cannot be achieved by using disposal services wholly or partly available to private individuals from private economic operators, that activity is one of those which the State may require to be carried out by public authorities or over which it wishes to retain a decisive influence. Case C-360/96, Gemeente Arnhem/BFI Holding

37



Waste recovery requirements

• Recovery operations must be in accordance with Art. 4 and 13

• Responsibility for waste management Art. 15

• Permit requirements Art. 23

• Minimum standards for the protection of human health and the environemet Art. 27 comitology procedure

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Targets for Re-use and Recycling

• High quality separate collection• By 2015: at least paper, metal, plastic and glass• Targets:• By 2020: a minimum of overall 50% by weight of paper,

metal, plastic and glass from household shall be re-used and recycled

• By 2020: non-hazardous construction and demolition waste 70%

Art. 11

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Waste Management Planning

• Waste management plans• Waste prevention programmes• Evaluation• Public participation• Cooperation

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• Waste management plans shall• cover the entire territory of the MS• provide analysis to current situation• contain measures for improvement• content at least Art. 28 para 3 a) - e).

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• Waste prevention programmes• Shall be integrated into WMP or other programmes or

may stand as separate programmes• Objectives• Measures Annex IV• Benchmarking and monitoring

„The aim of such objectives and measures shall be to break the link between economic growth and the environmental impacts associated with the generation of waste.“ (Art. 29 para 2 (2)).

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Hazardous waste

Directive 2006/12/EC of 5

April 2006

Council Directive 91/689/EEC on

hazardous waste

Directive 2008/98

43



Hazardous waste

• Definition: Art. 3 (2), Annexe III; list of hazardous waste, Art 7 decision 2000/532/EC update comitology-procedure

• General provisions:Art. 17-21

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Hazardous waste

• Control of hazardous waste (Art. 17)– Production, collection, transportation, storage,

treatment Art. 13– Traceability from production to final destination

chronological record (Art. 35)• Hazardous waste should not be mixed (Art. 18)• Labelling, packaging, identification document

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More information

Further references:N. de Sadeleer, EC Waste Law or How to Juggle with Legal Concepts, Journal for European Environmental & Planning Law 6/2005, 458.

N. de Sadeleer, Case van de Walle, Common Market Law Review 43: 207-223, 2006.

Carlos da Silva Campos, Waste, Product and By-produt in EU Waste Law, ELNI-Review 2/2007, 28.

Frank Petersen, Entwicklungen des Kreislaufwirtschaftsrechts, Neue Zeitschrift für Verwaltungsrecht 17/2009, 1063.

G. Roller, Amended Comitology Decision, ELNI-Review 1/2007,39.

G. Roller, Comitology in Environmental Policy, in: H. Hofmann and A.Türk (eds.), EU Administrative Governance, Edward Elgar, Cheltenham, UK, 2006,115 ff.

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EU LEGISLATION ON WASTE 2011- European Commission WORKSHOP ON EU LEGISLATION WASTE © 2010 Microsoft Corporation. All rights reserved. The EU Waste Framework.

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