Practice note Maintained note (pdf generated on 13 March 2009) New Waste Framework Directive This Practice note explains the principal aims and provisions of the new Waste Framework Directive (2008/98/EC), which was published in the Official Journal on 22 November 2008 and comes into force on 12 December 2008. Member states are required to implement the new Directive into national law by 12 December 2010. BACKGROUND The existing Waste Framework Directive and current waste regime The existing Waste Framework Directive (2006/12/EC) (the existing WFD) consolidated and replaced the Waste Framework Directive (75/442/EEC), which had been amended in 1991, 1996 and 2003. The existing WFD: Provides the overarching legislative framework for the handling of waste in the EU. Defines key concepts, such as waste, recovery and disposal. Puts in place the essential requirements for the management of waste, notably an obligation for waste management operators to have a permit or to be registered. This is regulated by the Environmental Permitting regime in England and Wales (see Practice note, New Environmental Permitting regime (www.practicallaw.com/5-373-5996)). Creates an obligation on member states to draw up waste management plans. Establishes key principles, such as an obligation to handle waste in a way that does not have a negative impact on the environment or human health, and encourages the application of a waste hierarchy. In accordance with the "polluter pays principle", requires that the costs of disposing of waste must be borne by the holder of waste, by previous holders or by the producers of the product from which the waste came. However, the existing WFD does not cover all types of waste or stages in the waste management process. There are separate Directives relating to specific types of waste and stages in the process, notably: Hazardous waste: Directive (91/689/EEC). Waste oils: Directive (75/439/EEC). Electrical and electronic equipment (see Practice note, WEEE regime - Waste electrical and electronic equipment (www.practicallaw.com/7-205-5346)). Packaging waste (see Practice note, Packaging waste regime (www.practicallaw.com/3-241-8976)). Landfilling of waste (see Practice note, PPC - Pollution Prevention and Control regime: Landfills (www.practicallaw. com/7-307-4952)). End-of-life vehicles: Directive (2000/53/EC). Batteries: Directive (2006/66/EC) (see Practice note, Batteries Directive (www.practicallaw.com/0-204-9957)). Why do we need a new Waste Framework Directive? In December 2005, the European Commission published a proposal for a revised Waste Framework Directive, together with a Thematic Strategy on the prevention and recycling of waste (www.practicallaw.com/1-384-3846). The proposal for a revised Waste Framework Directive aimed to: Make the EU a "recycling society". Clarify the definition of waste and, in particular, the distinction between recovery and disposal. While the existing WFD contains a common definition of waste, there has been con-
Environment 2 siderable case law on how the definition should be interpreted (see Defra website: European Court of Justice judgments: the definition of waste (www.defra.gov.uk/environment/waste/topics/pdf/ecjcaselaw20090209.pdf)). Clarify the conditions for the mixing of hazardous waste. Introduce procedures to determine when waste ceases to be waste in certain waste streams (also known as the "end-ofwaste" issue). This has been the subject of considerable recent litigation, notably relating to the recovery of waste oils and the use of recovered waste solvents as fuel. Introduce minimum standards for a number of waste management operations. Prioritise waste minimisation and prevention and reduce the environmental impacts from waste generation and management over the whole life cycle, rather than just at the waste stage. Require member states to develop national waste prevention programmes. Simplify and consolidate related waste legislation into one Directive, in line with the EU's Better Regulation objectives. In February 2007, the European Parliament had its first reading of the proposed new WFD and called for tougher binding recycling (waste prevention) targets. In June 2007, the European Council called for a more flexible approach. In June 2008, a compromise text was agreed. THE NEW WASTE FRAMEWORK DIRECTIVE The aims of the long awaited new Waste Framework Directive (2008/98/EC) (www.practicallaw.com/9-384-2659) (WFD), in line with many of the proposals in the Thematic Strategy, are: To provide a comprehensive and consolidated approach to the definition and management of waste. To shift from thinking of waste as an unwanted burden to a valued resource and make Europe a recycling society. To ensure waste prevention is the first priority of waste management. To provide environmental criteria for certain waste streams, to establish when a waste ceases to be a waste (rather than significantly amending the definition of waste). It is important to note that the WFD incorporates many of the provisions of: The existing WFD (2006/12/EC). The Hazardous Waste Directive (91/689/EEC). The Waste Oils Directive (75/439/EEC). Therefore, environmental lawyers will already be familiar with many of the provisions and concepts in the WFD. Annex V to the WFD contains a table identifying which provisions of the WFD incorporate the respective provisions of those waste Directives. However, the WFD makes some key changes, summarised in Key provisions of the new Waste Framework Directive below. ENTRY INTO FORCE The WFD was published in the Official Journal on 22 November 2008 and comes into force on 12 December 2008. Member states are required to implement the WFD into national law by 12 December 2010. AMENDMENT AND REPEAL OF EXISTING DIRECTIVES From 12 December 2008, the WFD introduces minor transitional provisions amendments to the following waste legislation (Article 41): Articles 1(2), 17 and 18(4) of the existing WFD (2006/12/ EC). Articles 1(4) and 9 of the Hazardous Waste Directive (91/ 689/EEC). Article 10(4) of the Waste Oils Directive (75/439/EEC). From 12 December 2010, the WFD will simplify waste legislation by repealing and replacing three key waste Directives: The existing WFD (2006/12/EC). The Hazardous Waste Directive (91/689/EEC). The Waste Oils Directive (75/439/EEC). Annex V to the WFD contains a table identifying which provisions of the WFD incorporate the respective provisions of those waste Directives.
Environment 3 KEY PROVISIONS OF THE NEW WASTE FRAMEWORK DIRECTIVE Exclusions Article 2 sets out the exclusions from the scope of the WFD. Article 2(1) adds new exclusions for: Land (in situ) including unexcavated contaminated soil and buildings permanently connected with land (Article 2(1)(b)). The express exclusion of unexcavated contaminated soil provides clarification following the European Court of Justice's 2004 decision in Van de Walle et al v Texaco Belgium SA (Case C-1/03) (www.practicallaw.com/5-382-6029), that unexcavated contaminated soil could also be waste (see Legal update, Van de Walle: Defintion of waste (www.practicallaw.com/2-103-0255)). Uncontaminated soil and other naturally occurring material excavated in the course of construction activities where it is certain that the material will be used for the purposes of construction in its natural state on the site from which it was excavated (Article 2(1)(c)). These exclusions will be important to the land remediation and construction industries, and will hopefully minimise their administrative costs and regulatory burdens. Article 2(2) clarifies the exclusions for animal by-products (unless destined for incineration, landfilling or use in a biogas or composting plant) and carcasses of animals that have died other than by being slaughtered. Importantly, Article 2(4) provides that specific rules for the management of particular categories of waste will be introduced by way of individual Directives. These rules will be targeted at the most problematic categories of waste to ensure consistency in the EU. Clarifying the definitions of waste, recovery and disposal Article 3 sets out the key WFD definitions (with the exception of the definition of "by-product", which is set out in detail in Article 5). In particular, the WFD clarifies the definitions of recovery and disposal to make a clear distinction between them. The key definitions, in particular, should be interpreted by reference to the WFD's recitals. This includes introducing an approach that takes into account the whole life cycle of products and materials and not only the waste phase, and focuses on reducing the environmental impacts of waste generation and waste management (Recital 8). The key definitions in the WFD are as follows: Waste means any substance or object which the holder discards or intends or is required to discard. This is similar to the definition in the existing WFD, except that the latter definition refers to the categories set out in Annex I to the existing WFD. Recovery means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. Annex II to the WFD sets out a non-exhaustive list of recovery operations. This is a more detailed definition than the one contained in the existing WFD, which defines recovery by reference to the operations listed in Annex IIB to the existing WFD. Disposal means any operation which is not recovery, even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I to the WFD sets out a non-exhaustive list of disposal operations. This is also a more detailed definition than the one contained in the existing WFD, which defines disposal by reference to the operations listed in Annex IIA to the existing WFD. Hazardous waste means waste displaying one or more of the hazardous properties set out in Annex III to the WFD. A List of Wastes will also be maintained, setting out hazardous wastes, including limit values of hazardous substances where appropriate. Article 3 also introduces new definitions not contained in the Directives (2006/12/EC), (91/689/EEC) and (75/439/EEC), to provide clarification. The new definitions relate to: Biowaste. Dealer. Broker. Separate collection. Prevention. Re-use. Treatment. Preparing for re-use.
Environment 4 Recycling. Regeneration of waste oils. Five-tier waste hierarchy Article 4(1) introduces a more comprehensive waste hierarchy, which is to be treated as a priority order for waste management (on the European Parliament's insistence, as opposed to the Council's preference for the hierarchy to be a "guiding principle"). The order of preference for waste management should be: Prevention. Re-use. Recycling. Recovery. Environmental disposal (as a last resort). Of particular note is that (energy-efficient) incineration of waste is classified as recovery, rather than disposal, in the waste hierarchy. This is intended to promote resource efficiency by encouraging energy recovery by incineration of waste, to reduce consumption of fossil fuels. Member states are required to take measures to encourage options that deliver the best overall environmental outcome. Importantly, it is acknowledged that this may require that certain waste streams depart from the hierarchy where this is justified when considering the whole life cycle of generation and management of such waste (Article 4(2)). Recital 31 of the WFD states that such exceptions to the hierarchy can be justified for reasons of technical feasibility, economic viability and environmental protection. By-product There have been longstanding difficulties in the distinction between by-products and waste. In February 2007, the Commission published an Interpretative Communication on waste and by-products (http://eur-lex.europa.eu/lexuriserv/site/en/com/ 2007/com2007_0059en01.pdf) on the interpretation of the difference between waste and by-products, giving guidance on the principles to apply and related case law. In summary, the Communication recommends a case-by-case analysis, analyses existing case law and provides a decision tree. Article 5(1) goes further by setting out a clearer definition of by-product (as opposed to waste) as a substance or object, resulting from a production process, the primary aim of which is not the production of that item only if: Further use of the substance (or object) is certain. The substance can be used directly without any further processing other than normal industrial practice. The substance is produced as an integral part of a production process. Further use is lawful (that is, the substance 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). The Commission can introduce criteria for certain substances being considered as by-products. End-of-waste The Court of Appeal's 2007 decision in R (OSS Group Limited) v Environment Agency and Others and DEFRA [2007] EWCA Civ 611 highlighted the difficulties in determining when waste ceases to be waste under the existing WFD (see Legal update, Court of Appeal rules on status of waste derived fuels (www.practicallaw.com/1-370-8966)). Article 6 sets out a more detailed definition: that certain specified waste ceases to be waste when it has undergone a recovery, including recycling, operation and complies with specific criteria (which are to be developed). The criteria will be developed in accordance with the following conditions: The substance (or object) is commonly used for specific purposes. A market or demand exists for such a substance. The substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products. The use of the substance will not lead to overall adverse environmental or human health impacts. Article 6 specifically indicates that end-of-waste specific criteria should be considered at the very least for aggregates, paper, glass, metal, tyres and textiles. While potentially providing a degree of clarity, the new definition clearly has potential difficulties, such as interpretation of concepts such as "commonly used" and "overall".
Environment 5 Prevention of waste Article 9 provides that: By 2011, the Commission must provide an interim report on the scope for waste prevention, including a product eco-design policy, with a view to promoting technologies focusing on durable, re-usable and recyclable products. Also by 2011, the Commission must formulate an Action Plan for EU-level support measures. By 2014, the Commission must set waste prevention and decoupling objectives for 2020. Re-use and recycling Article 11(1) requires member states to take measures to encourage re-use and recycling, including use of economic instruments and procurement criteria. Article 11(2) requires that, by 2020, member states must recycle a minimum of: 50% of their household waste. 70% of their construction and demolition waste. Mixing of hazardous waste Article 18 clarifies the general ban on the mixing of hazardous waste. Article 18(1) requires that member states take all necessary measures to prevent the mixing of hazardous waste, even by way of dilution. However, Article 18(2) allows member states to derogate from this ban by allowing mixing, provided: The mixing operation is carried out by an establishment or undertaking that has obtained a permit. Adverse impacts on human health and environment are not increased. The operation conforms to best available techniques. Minimum standards Article 27 allows the adoption of technical minimum standards for waste treatment activities are not covered by the IPPC Directive (96/61/EC). These may be adopted where there is evidence of a benefit in protection of human health and the environment. However, there has been concern at the uncertain costs that such additional regulatory burdens may impose on business. Waste prevention programmes Article 29(1) requires member states to establish waste prevention programmes, setting out objectives and measures, by December 2013. Member states will then have to set benchmarks for the measures and report on their progress. WHY IS IT IMPORTANT TO UNDERSTAND THE NEW DIRECTIVE NOW While member states do not have to implement the new WFD until 12 December 2010, it potentially has immediate impacts on medium and long-term business planning (including any related legal documents and agreements) for: The waste management industry, which needs to understand the effect of the new WFD on their future activities and, in particular, planning of investment. The recycling and by-products industries. The land remediation industry. Local authorities involved in procuring waste management infrastructure, often under PFI. Investors and financiers involved in waste infrastructure investment. Regulators, principally, in England and Wales, the Environment Agency and local waste authorities. Practically for businesses, the likely outcomes of the WFD are: Even less waste going to landfill. More composting and energy recovered from waste. More and better recycling and re-use. A growing emphasis on waste prevention, extending to eco-design of products so that they are re-usable and recyclable and in procurement criteria.