EU Legislation and Good Practice Guides of Relevance for the EU Extractive Industry

Transcription

1 EU Legislation and Good Practice Guides of Relevance for the EU Extractive Industry Dr. H. Hejny 1, Dr. C. Hebestreit 2 1 Dr, Horst Hejny Consulting, Hünxe, Germany 2 Euromines, Brussels, Belgium Presentation at the TAIEX Workshop on EU Legislation as it Affects Mining, Tallinn, Estonia, 30 th November 2 nd December 2006 Introduction Today there is a lot of European legislation that affects the extractive industries directly or indirectly in one or the other way. E-PRTR BAT Note (BREF) EIA Directive NATURA 2000 HABITAS & BIRDS Directives Mining Waste Directive REACH NATURAL RESOURCES STRATEGY WASTE & RECYCLING STRATEGY GROUND WATER DIR. WATER FRAMEWORK Directive AMBIENT AIR QUALITY SEVESO II ENVIRONMENTAL LIABILITY SOIL PROTECTION AMBIENT AIR STRATEGY SURFACE WATER DIR. MARINE STRATEGY Figure 1: European Policies Figure 1 shows the most important regulations and policies that are dedicated to the extractive sector in one or the other way. On the left hand side those are listed that are already in force and which are on the way of being transferred to national regulations and law in each Member State of the European Union. You see there among others the Mining Waste Directive, the Water Framework Directive and the Seveso II Directive. The regulations on the right, like REACH or the Groundwater Directive, are not finally decided yet. They are still in the negotiation process at different stages and at least to some of them we still have the chance to influence the process. In order to limit the size of this paper only some examples of both groups of regulations, of those already in force and those still under negotiation will be presented.

2 The Mining Waste Directive The main driver for this directive was the pollution of the Danube River caused by a cyanide spill following a dam burst of a tailings pond in Baia Mare/Romania in the year 2000 and an accident that occurred in 1998 in Aznalcóllar/Spain where a dam burst poisoned the environment of the Coto Doñana National Park. These events have increased public awareness of the risk for environmental and safety hazards of mining activities. These accidents, like other similar ones, have in particular illustrated the significant environmental and health risks associated with the management of mining waste as a result of their volume and pollution potential. Further to its Communication of 3 May 2000 on "Promoting sustainable development in the EU non-energy extractive industry", the Commission adopted on 23 October 2000 a Communication on the "Safe operation of mining activities: a follow-up to recent mining accidents". This Communication recapitulated the current situation at that time with regard to existing Community environmental legislation applicable to mining activities, and set out three priority actions envisaged to improve the safety of mines: An amendment of the Seveso II Directive to include in its scope mineral processing of ores and, in particular, tailings ponds or dams used in connection with such mineral processing of ores; a Best Available Techniques Reference document (BREF) describing the Best Available Techniques of waste management to reduce everyday pollution and to prevent or mitigate accidents in the mining sector; and a legislative initiative on the management of mining waste in order to help prevent environmental damage. The Directive was published in the Official Journal on 11 April 2006 and entered into force on 01 May The Member States must implement and operators must comply with the rules by 01 May Financial guarantees are to be provided by 01 May It has to be mentioned that the future EU Member States Romania and Bulgaria have issued a Joint Declaration to say they intend to implement the Directive also by these dates also. The Directive provides measures, procedures and guidance to protect the environment and human health from damage resulting from the management of waste from the extractive industries. It amends Annex III of the Directive on Environmental Damage Liability to clarify that an operator of a waste facility in the extractive industry is liable for environmental damage caused as a result of its operations. It also includes the CEN Standard on the characterisation of wastes. It requires the Member States to ensure operators produce waste management plans to prevent or reduce waste production, to encourage the recovery of extractive waste when possible, and to ensure the short and long-term safe disposal of such waste. These plans are reviewed and amended every 5 years. It provides for the identification of major-accident hazards by Member States in the design, construction, operation and maintenance, closure and afterclosure of waste facilities. Member States must draw up major-accident prevention policies. It requires and lays down rules for waste facility operators to obtain a compliance permit granted by the competent authority. It provides for information on permit applications to be

3 made available to the public and allows for public participation when operators submit a permit application. It also provides procedures for closure and after-closure of waste facilities. When placing extractive waste back into extractive voids, operators must monitor the waste and the void and must prevent or minimise water status deterioration and soil pollution when flooding voids. Operators must provide financial guarantees for the rehabilitation of land damaged by its waste facility. And it requires Member States to establish a penalty system for infringements to these rules. Member States must draw up a risk-based inventory of closed waste facilities including abandoned facilities. Here especially the new Member States in Eastern Europe as well as the accession countries Romania and Bulgaria are supported through the PECOMINES project. The main objective of PECOMINES is to involve these countries in an EU research action on the environmental impact of mining waste in collaboration with DG Environment and EEA. REACH The next heavily discussed policy is REACH, currently a proposal for a Regulation of the European Parliament and of the Council concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals. The original planning was to adopt the regulation by end of 2005, which obviously was a little bit too optimistic. In the original proposal ores and concentrates should have been matter of registration and authorisation, later only of authorisation. Now the Environmental Committee called for an exemption of ores and concentrates from the authorisation process. There is a rapporteur's working document on the REACH 2 nd reading available. Except from the exemption of ores and concentrates from the authorisation the Environmental Committee voted for some general things as the substitution principle, the duty of care principle, non animal testing, support to SMEs, nanoparticles under authorisation, all authorisations limited to 5 years, and all substances of very high concern to be listed before authorisation. The Commission and the Members of the European Parliament already discussed the Council's compromise amendments. The Council suggests mandatory substitution of substances when identified suitable alternatives exist; an extra time limit for threshold substances which are "adequately controlled" before using alternatives. This extra time limit is criticised especially by environmental NGOs. The 2 nd reading of the regulation will be in December 2006 and there will surely be some new information soon. After the 2 nd reading in the Parliament there will be a 2 nd Council reading as well as probably a following conciliation procedure. The adoption of REACH is currently expected in the 1 st Quarter of In preparation of the implementation of REACH some so-called REACH Implementation Projects (RIP) will be carried out. Three of them that might be also related to the extractive industries should be mentioned. It is first the RIP 3.10 dealing with the identification of relevant substances. Further is RIP 3.6 in order to classify and label the related substances under the GHS, which stands for Global Harmonised System or sometimes also called REACH Global. Finally there is a project RIP

4 3.5.2 to identify the downstream user requirements, which may cause some trouble depending on the substances due. European Pollutant Release and Transfer Register (E-PRTR) This policy has been set in force end of February The formal adoption was in December The first reporting year will be 2007 with a first report likely issued in The regulation will succeed the European Pollutant Emission Register (EPER) and the instrument of the Integrated Pollution Prevention and Control (IPPC) from 2009 onwards and establish an integrated Pollutant Release and Transfer Register at EU level. It will be a publicly accessible electronic database and will include information on the releases of certain pollutants, off-site transfers of waste, pollutants in waste water and releases of pollutants from diffuse sources. It requires data to be presented in both aggregated and non-aggregated forms and requires operators undertaking specified activities to report the amounts of releases per year to the competent authority in the Member States. Member States then need to provide this data to the Commission, who will then incorporate it into the European PRTR. The policy requires Member States to set rules on penalties regarding possible infringements of the Regulation. An EU Guidance note has been published in September 2006 and is available on the web under It has to be mentioned that on-site transfers of material is not reportable whereas dust really is reportable. The OECD is also running a PRTR project which is accessible on the web under The OECD suggest in contrast to the EU regulation that on-site disposal of waste should be reported as a loss to the environment. There will probably be international pressure to change the European regulation but this is an ongoing process which we have to carefully regard. Waste Framework Directive In principle the negotiation process for this Directive just started. The Commission issued their first proposal in December 2005 and the first reading in the Parliament has just taken place. A final adoption is expected not before So there is a lot of time left to try to influence the procedure by using suitable means. The directive would amend and repeal the former Waste Framework Directive and would repeal the Directive on the disposal of waste oils as well as the Directive on hazardous waste and integrate their provisions into the new Waste Framework Directive. It would set environmental standards for recycled waste to be reused as secondary raw material. It also set material-specific long-term recycling targets and clarifies the meaning of recovery and disposal operations. It would also clarify when waste becomes a product or non-waste (the socalled "end-of-waste" term). It would introduce mandatory national waste prevention programmes. The directive would exempt radioactive waste, waste from prospecting, extraction, treatment and storage of mineral resources and quarry working, faecal matter and other natural, non-dangerous farming wastes, waste waters, decommissioned explosives, and unexcavated contaminated soil. It would also not cover animal by-products. But it would require the Commission to establish a list of wastes and clearly define the terms byproducts and end-of-waste. There will be interfaces with REACH.

5 The Members of the European Parliament discussed proposed compromise amendments internally before the Environmental Committee voted on 28 November The Rapporteur, Mrs Caroline Jackson, has tabled a number of compromise amendments, like explicit reference in the text to the 5-point waste hierarchy to be used as a "guiding principle", with deviation from the hierarchy only allowed via a life-cycle analysis. The Member States would be called on to take necessary action to prevent waste and recital to ask the Commission to develop guidelines on when by-products are not waste, instead of including a specific definition on by-products. There is a call for end-of-waste to be determined by co-decision rather than comitology and prioritisation of regeneration of waste oils, contrary to the wishes of European Commission. Groundwater Directive Groundwater acts as a reservoir from which good quality water can be abstracted for drinking and for use in industry and agriculture. It is also important for maintaining wetlands and river flows, acting as a buffer through dry periods. In addition, groundwater provides base flow to surface water systems, feeding surface water systems all through the year. Thus groundwater quality has a direct impact on the quality of those surface waters as well as that of associated aquatic and terrestrial ecosystems. The existing EU groundwater policy, that is Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances, has been aimed at protecting groundwater from direct and indirect discharges of a number of pollutants. But this Directive does not set any clear quality objectives nor does it require comprehensive monitoring. As a result, there is not much data available about the quality of groundwater in Europe. The proposed Directive will change this situation. The first proposal of the Commission was launched back in For example chloride and sulphate show the results of the negotiation process during the past years with some positive results for the extractive industries. Chloride and sulphate went from threshold level to indicator only. The conciliation process after the second reading of the directive started in October 206 and the adoption can be expected in early As already mentioned, the new directive would repeal the old one on groundwater protection against pollution by dangerous substances. It would explicitly make reference to the exemptions in the Water Framework Directive for mining. The Member States would assess groundwater quality. "Good" water would contain max 50mg/l of nitrates and 0.1 micrograms (µg) of pesticide active ingredients. The Member States would set limits for substances that threaten "good" groundwater in their territory. Indirect discharges of organohalogen, organophsophorous, and organotin compounds, carcinogens, mutagens, endocrine disruptors, persistent hydrocarbons, bioaccumulable organic toxic substances, and cyanides would be banned, metals, arsenic, biocides, materials in suspension, nitrates/phosphates, and substances which affect oxygen would be controlled. The Members of the European Parliament do not seek to impose single standards for all countries, except for nitrates and pesticides. They have reintroduced the concept of deterioration of water quality, as measured against baseline concentrations of pollutants. The European Parliament has also sought to harmonise sampling methods for pollutants. The Finnish EU Presidency (until 31 December 2006) has indicated in a draft position that the Council will reject the concept of deterioration, the definition of background concentrations of

6 pollutants, and the Commission monitoring of Member State measurement methods, all these among other EP amendments. The conciliation procedure was formally opened on 17 October Agreement has now been reached - a single limit value for nitrates will apply. The requirement to prevent input of hazardous substances into groundwater will be mandatory, while some European Parliament amendments on preventing deterioration of water quality were dropped, although reference to deterioration remains. More information and guidelines will be available online once made public. Surface Water Directive The Commission launched a proposal for a new Directive on environmental quality standards and pollution controls in the field of water policy. Compared to the existing directive the Commission proposes a change to a total risk approach. The proposal was launched in July 2006 and the related Committee debate is expected to take place in December In parallel the Council is also expected to have the first discussion on 18 December Regarding the normal procedures for such directives the final adoption will not be before the second half of It could be even later if a conciliation process will be held after the second reading. The new directive would amend the Water Framework Directive and would set environmental quality standards (EQS). It would establish a series of limits for concentrations in surface water of 41 substances (or substance groups), including pesticides, heavy metals and biocides. These limits would have to be met by substances are designated priority substances, and 13 are designated priority hazardous substances - the latter would be subject to stricter limit values. Discharges of priority hazardous substances into water would have to cease altogether by The directive also is in consistency with the Water Framework exemptions for mining. It has to be noted that the change to the total risk approach implies EU-wide limits for the substances. There will definitely be some discussions on that issue. Finally the proposal for the directive will reduce the transition areas for exceedance, which also will have some impact. Conclusions and next steps It can be seen from the shown few examples of European legislation already in force or under preparation that the extractive industries have to deal with a lot of new and upcoming regulations affecting among other issue mainly the competitiveness of the sector. Therefore the initiative of the EU DG Enterprise staff to draft a working paper on the competitiveness of the European non-energy extractive industry is highly supported. Euromines provided substantial input and comments to this initiative. Final comments could have been provided until 18 November So the paper is now going to be finalised. It will provide a characterisation of the EU non-energy extractive industry and an assessment of its markets and main competitors. As one main thing it will provide an assessment of major factors impacting on the sector. The paper will serve for further discussions in the High Level Group on Competitiveness, Energy and the Environment established by Commissioner

7 Verheugen and there in the working group 9 on Access to Natural Resources. The objectives of the HLG are among others to foster closer coordination between policy and legislative initiatives and the development of an integrated approach as well as to contribute to creating a more stable and predictable regulatory framework. These objectives are most welcome. It is clear that people representing the extractive sector in Europe say that the sector is important for Europe. But obviously there are some other parties supporting this statement. This importance requires improved legal and economic framework conditions because numerous interacting factors impact on the performance and competitiveness of our sector. Besides the legislative framework conditions we sincerely believe that research and innovation are vital if the EU industry is to remain competitive in a global marketplace. This is a message which is very difficult to communicate especially to the DG Research of the Commission. But in the frame of the ETP SMR, the European Technology Platform on Sustainable Mineral Resources, we will further try to get the message across and to raise a certain amount of funding for research and innovation for the sector. What happens next? We first are awaiting the publication of the DG enterprise staff working paper which will likely be published in January 2007 for public consultation. This will be very important to track in order to secure the competitive position of the extractive industry. And second we expect some positive impact from the discussion in the High Level Group working group 9 on Access to Natural Resources which will start in February 2007 with the final report expected for mid Two company representatives have been nominated for this group: Mr Colson from Lafarge and Mr Vidalis from S&B. We sincerely hope that they can influence the discussion into our direction.