Gev Eduljee Environmental Resources Management

EUROPEAN UNION WASTE POLICY

The key policy statements on which the present thrust of EU legislation in the waste sector i s founded are the following:

the 'precautionary principle', enshrined in Article 130r of the Treaty of Rome, which states that preventative action should be taken to prevent damage to the environment, and that any such damage should be rectified at source; the 'polluter pays principle', also in Article 130r of the Treaty, which requires that rectification of environmental damage should be borne by the polluter; the 'proximity principle' introduced in A Community Strategy for Waste Management (SEC(89)934 Final) published in 1989, which aims for self- sufficiency in waste treatment and disposal, with waste being disposed of at the nearest suitable facility relative to the source; sustainable resource management, a new strategy introduced in the 5th Environmental Action Programme (COM(92123 Final) published in 1992, which also listed Community actions and targets up to the turn of the century .

In addition to introducing the 'proximity principle' for the disposal of waste, the Community Strategy espoused five guiding principles for waste management within the EU, the first three forming the so-called 'ladder approach' to waste management:

waste prevention, the cornerstone of any strategy for waste management; recycling and reuse, the second level of a waste management strategy' optimisation of final disposal for wastes which cannot be reused or recycled;

regulation of transport of hazardous goods and waste; remedial action relating to environmental damage caused by wastes, in particular the operatian of the 'polluter pays' principle.

It is against this background that present and future EU waste policy i s discussed.

Before discussing specific EU legislative initiatives, two recent

developments that will affect the manner in which legislation i s enacted need to be highlighted. Perhaps the most important of these is the extension of Qualified Majority Voting (QMV). Prior to the enactment of the Maastricht Treaty on 1 November 1993, the bulk of EC legislation had been passed under Article 130s of the Treaty of Rome, which required unanimous agreement amongst Member States. A minority of environmental legislation was based on the application of QMV under Article IOOa, which required that 54 out of a total of 76 votes distributed between the 12 Member States must be cast in favour of a proposal. The voting rules in the Maastricht Treaty now bring virtually the entire spectrum of waste-related legislation within the scope of QMV. The most likely consequence of adopting QMV i s that Member States will need to seek common ground to a far greater

extent during the drafting of legislation, to ensure that a particular view or position i s included in the final Directive or Regulation. The impact of QMV has already been evident in the agreement in principle on an amended packaging Directive, and the outcome of other contentious proposals (for example, the landfill Directive) could also be affected by this voting procedure. Recent discussions between Member States and the Commission have focused on the protection of blocking minorities when the EU i s expanded in 1995.

concerns the role of the European Parliament in influencing the environmental debate. EU Directives are adopted, amended or rejected by the Council of Ministers, following drafting by the Commission. The Single European Act established a new 'co-operation procedure' whereby the Parliament could amend Council and Commission proposals if these related to the internal market. The Maastricht Treaty introducing a 'co-decision' procedure whereby the Council must take account of the Parliament's views in adopting legislation. The amendments proposed by the Parliament to the packaging Directive and the landfill Directive (see below) will provide a test of the procedure, The European Parliament i s set to play an increasingly influential part in EU decision-making.

The second important development

EU legislation can be grouped under three headings, in line with the guiding principles set out above: harmonisation of standards, the proximity principle, and the polluter pays principle.

The Commission saw the need for harmonisation of waste definitions and standards of waste management across the EU as a crucial element of its

-

18 EUROPEAN ENVl RONMENT

strategy, if the Single European Market was to operate effectively and not to the detriment of the environment. Several important initiatives are discussed below.

The European Waste Catalogue: Framework Directive 75/442/EEC, as amended by Directive 914 56/EEC, required that a single definition of waste be adopted throughout the EU to put subsequent waste management initiatives on a common footing and to systematise the collection of waste statistics throughout the EU. Article l a of Directive 75/442/EEC required the Commission to compile a l ist of wastes belonging to categories listed in Annex 1 of the Directive. The final version of the list, termed the European Waste Catalogue (EWC) was formally published in January 1994 (94/3/EC). The EWC comprises a non- exhaustive list of some 600 waste types separated into 20 categories, each waste type being allocated a unique number. Article 18 of the Framework Directive provides a mechanism for adapting the list in the light of scientific and technical progress.

A further provision of Directive 9111 56/EEC and Directive 91/689/EEC on hazardous waste, was to draw up a common list of wastes to be treated as ‘hazardous’ by June 1993. The first draft of the list took as its starting point the Swiss hazardous waste list and, to a lesser extent, the Dutch classification scheme. Lack of agreement between Member States over the criteria for assessing hazard and the wastes to be included has led to the abandonment of this initiative. Instead, in October 1993 a proposed Directive was discussed at the Environment Council, which sought to amend Directive 91/689/EEC by postponing compliance with the latter til l 31 December 1994, and by expediting the establishment of a common list of hazardous waste with the minimum of delay. A draft list based on annexes I and Ill of Directive 91/689/EEC has now been prepared, and wi l l be put before the Council of Ministers.

Priority Waste Streams: In 1990 the Commission proposed a fast track, consensus approach to the formulation of legislation by identifying certain wastes requiring priority attention, and then establishing i ndustry-led discussion groups comprising all interested

parties to arrive at an agreed strategy for that particular waste stream - the approach i s termed ’shared responsi bi I ity’.

identified: used tyres, chlorinated solvents, end-of-life vehicles, healthcare risk (clinical) waste, demolition waste, and electricaVelectronic equipment. The aim i s to develop an integrated waste management strategy for each priority waste stream in line with the ‘ladder approach’, and to set firm implementation targets which are reflected in the 5th Environmental Action Programme. Final proposals for the management of waste tyres were submitted to the Commission in October 1993, and the working party on clinical waste has completed its deliberations.

Six priority waste streams were

Directive on Landfilling of Wastes: In April 1991 the first draft of a proposed Landfill Directive was issued by the European Commission, after a lengthy consultation period. The aim of the Directive is to establish guidelines for the location, design and operation of landfills, to define which wastes can be landfilled and which should be excluded, and to provide a framework for the funding of aftercare following closure of a landfill.

on the draft has been the proposed phasing-out of the practice of co- disposal, by which hazardous wastes are landfilled along with municipal solid waste and other non-hazardous wastes. While the majority view, initiated by Germany, the Netherlands and France, has been to retain the proposed ban on co-disposal after a period of 5 years following the implementation of the Directive, the UK, Eire, Greece and Portugal wish for this practice to be permitted as a legitimate landfilling practice, albeit with appropriate controls. The most recent draft adds a further 5 years to the period allowed for co-disposal of waste.

The proposed Directive has been drafted under Article 1 OOa of the Treaty of Rome, and is therefore subject to the QMV procedure described above. The minority view has yet to muster sufficient votes to block the retention of the ban in the current draft of the proposal, and new changes proposed by Germany, France and the Netherlands are likely to delay further final agreement at the Council of Ministers in June 1994.

A major impediment to agreement

Directives on incineration of Wastes: In 1989 the Commission issued Directives 89/369/EEC and 89/429/EEC to harmonise the design and operation of municipal solid waste (MSW) incinerators. The Directives set emission limits for the majority of combustion products of concern, but regulated dioxin emissions through appropriate control of incinerator design and operating conditions. Recent proposals by the Commission include raising of emission standards for the majority of chemicals emitted, and the introduction of a specific emission limit for dioxins to bring MSW incineration more in line with the Commission‘s proposals for the incineration of hazardous wastes.

been addressed by the Commission in a proposed Directive (COM(9219-SYN 406), originally issued in March 1992 under Article TOOa of the Treaty of Rome. In June 1993 the Council of Ministers changed the legal status of the proposal to Article 130s (thereby establishing the emission standards as the minimum requirements) and reached agreement on several important amendments, the key items being the introduction of separate emission standards for new and existing facilities, a relaxation of daily average emission standard for gases and particulates, lowering of the minimum incineration temperature for halogenated organics from 1,200°C to 1,l OOOC, and agreement to discharge treated liquid effluent. In March 1994 the European Parliament agreed with the revised legal basis of the proposal, but reversed most of the technical changes. In addition, the Parliament added new amendments extending the scope of the Directive to cover clinical waste incinerators, plants co- incinerating hazardous wastes, and animal carcass incinerators. The Council of Ministers wi l l now consider these changes.

Hazardous waste incineration has

The Packaging Directive: In July 1992 the Commission introduced a proposal for a Directive on the management of waste packaging. The proposal included 5-year targets for the recovery and recycling rates of 60% and 40% respectively for each packaging material, and corresponding 10-year targets of 90% and 60% respectively. In March 1994 the Council of Ministers formally adopted, through QMV, a substantially altered proposal in which the 10-year targets

EUROPEAN ENVl RONMENT 19

were removed, and the 5-year targets revised to 50%-65% recovery and 25%-45% recycling for all packaging materials in their totality, with at least 15% of each material being recycled. Germany, Denmark and the Netherlands, all with more stringent recycling and recovery targets, voted against the amendments. Eire, Greece and Portugal were allowed an extended period to reach the targets. In April 1994 the European Parliament’s Environment Committee proposed a number of amendments to the Council‘s common position, ranging from changes to the definitions of packaging, reuse, recovery, etc, the inclusion of a hierarchy of waste treatment options, and a requirement to stipulate minimum levels of recycled materials in new packaging. This vote left the text largely unchanged except that the scope has been extended to include ‘all throw-away items used for the same ends [as packaging]’ and economic instruments can now be adopted at Community level.

Control of transfrontier shipment of wastes formed a critical element of the 1989 Waste Management Strategy, in conjunction with the proximity principle and the harmonisation of waste management standards across the EU. The European Transboundary Waste Movement Regulations (259/93) came into force on 6 May 1994. The Regulations share with an OECD Council Decision of 1992, a list of wastes divided into three categories: green (non-hazardous), amber (hazardous) and red (hazardous), each subject to increasingly stringent control procedures. In March 1994 a meeting held under the Basel Convention agreed a ban on the export of al l hazardous wastes from OECD to non- OECD countries for final disposal, recovery or recycling by 31 December 1997. The EU played a key role in supporting the phase-out date agreed by the Convention. However, the difference in the Convention’s and OECD/EU’s definition of hazardous wastes has resulted in considerable concern within the European Federation of Waste Management (FEAD) and the recycling and secondary hetal industry, as to the potential restriction in trade that the ban may produce. Industry organisations are currently lobbying to

either exclude recyclable materials from the Convention’s ban, or to amend the definition such that legitimate cross-frontier trade between OECD and non-OECD countries can be conducted. Regulation 259/93 will continue to apply to transfrontier shipments between EU Member States. The Nordic Council has agreed a unified hazardous waste management approach whereby Denmark, Finland, Iceland, Norway and Sweden will jointly construct and operate treatment and disposal facilities.

addressed in Euratom Directive 92/3, which came into force in January 1994. The pre-notification procedures parallel those required under Regulation 259/93.

Shipment of radioactive waste was

Following the publication of the Community Strategy for Waste Management, the Commission issued a proposal for a draft Directive on Civil Liability for Damage Caused by Waste (COM(911219 final-SYN 21 7). The main objective was to introduce a strict, no-fault liability regime for damage caused by waste prior to its delivery to a suitably licensed facility. In 1991 an amended proposal was published, but disagreement among Member States as to how this would operate in practice has all but stalled its progress. Instead, in March 1993 the Commission adopted a green paper entitled Repair of Damage Caused to the fnvironment (COM(93)47), which again favoured a system of strict liability, and discussed various mechanisms by which funding for the repair of environmental damage could be raised. In November 1993 a public meeting was organised, which provided a forum for a wide range of interest groups to present their views on the green paper to the Commission. FEAD has expressed opposition to certain aspects of the green papers, but recognises the need for a fund to remedy present and future environmental damage caused by waste, which it suggests could be established on a voluntary basis. At present, Member States are examining the options for funding: the EU has allowed for flexibility in the manner in which each country chooses to address the issue.

Convention i s in preparation, which could impose strict liability for

A draft protocol under the Basel

damage caused by the transfrontier movement of hazardous wastes. l-his development i s also likely to impact on EU legislation in this area.

In the coming months, the EU will continue to carry forward the themes of sustainability, harmonisation and the application of the polluter pays principle. The 5th Environmental Action programme sets out a timetable for the translation of the various initiatives on waste management into Union-wide actions, but many of the original timescales will be subject to slippage due to the contentious nature of some of the proposals currently under consideration, and the difficulty in achieving consensus between the Member States.

An important initiative which will be developed i s the concept of integrated permitting. In September 1993 the EU published a proposal for a Directive on Integrated Pollution Prevention and Control (COM(93) 423 Final) which seeks to establish an integrated, multi-media approach to pollution control, as indicated in the 1989 Waste Strategy. Many Member States, for example the Netherlands and the UK, currently operate some form of integrated permitting.

In 1990 the EC adopted legislation leading to the establishment of the European Environment Agency (EEA), a pan-European organisation with a remit to gather information on the state of the environment to promote harmonisation, and to improve forecasting. After considerable discussion as to the location of the proposed Agency, Copenhagen was selected in October 1993. The EEA will operate through a system of ‘national focal points‘, and Member States were to have nominated appropriate bodies for this function by May 1994. The role of the EEA has yet to be clarified, but it will clearly play an increasingly important part in the implementation and policing of EU legislation.

Cev Eduljee is a consultant with Environmental Resources Management, Eaton House, Wallbrook Court, North Hinksey Lane, Oxford OX2 OQS, UK. Tel: +44 (01865 793004 Fax: +44 (01865 793504.

20 EUROPEAN ENVIRONMENT