­­­WASTE MOVEMENTS: EC AND OUTSIDE

 

C.H.V. de Villeneuve

 

Commission of the European Communities

200 Rue de Laloi

B-1040 BRUSSEL

 

1.        The waste policy of the Community

 

Waste policy was one of the first fields of action of the Community relating to the environment.  As early as 1975, two Directives were established by the Council: 75/439/EEC on waste oils (1), and 75/442/EEC on wastes (2), the latter creating general rules to be observed by those dealing with wastes: producers, holders, carriers, disposal operators.  They were closely followed by two other Directives, dealing in a more specialized way with specific waste categories offering particular threats to the environment: 76/403/EEC concerning PCB's and PCT's (3), and 78/319/EEC on toxic and dangerous wastes (4).  Inter alia, these Directives submit disposal of the waste to authorization by the public authorities of the Member States.  Uncontrolled discharge is strictly forbidden, on the producer's site or elsewhere.  Disposal plans must be established, and carriers of toxic and dangerous wastes are to be made subject to regular control by the public authorities.  This relatively early interest of the EEC in waste management - the First Environmental Action Program only dating back to 1973 - cannot be considered to be a coincidence.  Scarcely anywhere does the interrelation between environment and common market present itself as clearly as in the waste management field.  As a matter of fact, waste disposal has become a very active source of industrial activity.  Treatment, incineration, transport on the one hand; recovery, re-use and recycling on the other hand.  Community-wide legislation in this field therefore may be considered to be clearly in the interest of both those operators in these branches of industry who are acting in good faith and the environment, even if the accents put are not always the same on both sides.  The waste management policy of the Community, is very transparent, and may be said to be directly based on the EEC Treaty itself since the coming into force of the Single European Act on 1 July 1987.

 

This policy has recently been stated in the Commission's "Community strategy paper for waste management" (5) and was subsequently endorsed by the Environment Council of 22 March by means of a Resolution (not yet published).

 

Firstly:     the creation of wastes should be prevented, if possible (prevention being the first principle of Community action in the field of the environment, according to article 130R, paragraph 2, of the Treaty).  Thus, the development of clean technologies and of clean products is being stimulated actively by the Commission.

Secondly:     existing wastes should be re-used or recycled as much as possible, such as to limit to the utmost the burden on the environment caused by wastes.  In consequence, the Commission also stimulates recovery, re-use and recycling.

Thirdly:     the wastes that nevertheless continue to be created will have to be disposed of in an environmentally sound way.  This means foremost, of course, that adequate disposal facilities should be created.  Preferably, to be sure, as near as possible to the place of generation.  But we must recognize that even if environmentally sound disposal is technically possible, it often is not feasible on the spot, be it for economical or for ecological reasons, and a too large capacity for disposal might serve as a disincentive for prevention and recycling.

Fourthly,      waste to be landfilled should be reduced to the utmost possible by pre­treatment (incineration, physico-chemical treatment etc) before, in order to prevent them from constituting the "burden of the future".

 

Finally, very important: disposal facilities, as well as the shipment of wastes from the producer to the disposal facility, ought to be kept under close scrutiny by the public authorities.

 

To be sure, we continue to speak of "wastes" in case of materials being technically apt for recycling or re-use, as long as their destination is not absolutely sure.  Indeed, wastes may well be re-usable or recyclable without ever being re-used or recycled; for instance, if their market value is not competitive comparing to that of raw materials.  Therefore, until the recycling or re-use of the wastes in question is fully ensured (which amounts to the moment the wastes have reached their destination), they will have to be considered being wastes.

 

If not, a flaw in the legislation would exist.

 

The principles on which the EEC waste management policy are based may thus be

resumed as follows:

 

          1.   The creation of waste has to be prevented;

2.     Unavoidable wastes should be recycled or re-used if possible;

3.     Disposal and transport of wastes can only be allowed if taking place in an environmentally sound way;

4.     The existence of wastes should be controlled from cradle to grave;

5.     Movements of wastes within the Community should not be made subject to quantitative restrictions to export or import or to measures having equivalent effect.

 

The foreseen internal market of course is a very forceful argument for the last principle stated just now.  The removal of internal barriers does not match with Member States following a "neo-protectionistic course" in this field.  Yet, quite a few of them indeed appear rather inclined to follow a policy of closing their frontiers for waste movements.

 

Nevertheless, let us imagine such a policy being adopted within the Community.  This would mean, in fact that each Member State would have to create facilities for all wastes produced on its own territory.

 

Now, we have to recognize that certain types of waste need highly advanced disposal facilities; and that not all Member States have the size, the physical characteristics and the industrial infrastructure that enable them to have their own highly specialized disposal facilities for all categories of waste they produce.  A number of their disposal facilities not being able to work in an economically sound way, the authorities may have to sustain them, thus creating a political involvement in the management of the enterprise which conflicts with the distance needed for effective government control, while at the same time the "polluter pays principle" is being affected.  The alternative, of course, would be to make life impossible for some industrial activities through a lack of outlet for their waste, though meanwhile such activities can continue to take place without any trouble at the other side of the frontier.  Thus, "environmental protectionism" of one Member State in the waste management field would cause the waste burden in other Member States to become much heavier, while at the same time creating unequal conditions of competition.  It would be much better, in such cases, for Member States to share activities and disposal facilities where appropriate, in order to attain community-wide a higher standard of environmental protection, in stead of working towards a limited number of clean islands amidst a polluted, but industrially more competitive surrounding.

 

2.     Directive 84/631/EEC,or the"Post-Seveso-directive"

 

In the little northern Italian locality of Seveso, the soil around a chemical factory had been contaminated most seriously with dioxines.  The consequences of this contamination for public health in the surroundings appeared to be disastrous.  A Directive on major accident hazards of certain industrial activities (82/501/EEC) (6) was established by the EC Council as a reaction to this calamity.

 

But the Seveso incident did not end right there.  A number of barrels with dioxin containing wastes from Seveso were carried abroad, and suddenly disappeared without leaving any trace.  More than half a year later, however, some suspect looking barrels were found in France, and identified as being those same Seveso barrels.

 

The public outcry occasioned by this discovery was huge, international and well founded.  Politicians felt something ought to be done, and within a short period, a Directive was drafted in Brussels, aiming at guaranteeing a cradle-to-grave control for hazardous wastes passing frontiers within the Community.

 

This Directive was adopted by the EC Council on 6 December 1984 under number 84/631/EEC (7).  It was modified in 1986 (directive 86/279/EEC) (8) in order to be equally applicable to movements of hazardous wastes leaving the Community.  The annexes of the Directive have thrice been adapted to technical (and other) progress by the Commission (9).  Familiarly, the Directive continues to be called the "Post­Seveso-directive".

 

In order to prevent misunderstandings, I want to insert here a remark on the legal EC terminology.  An EEC-Directive is not what it suggests to be at first reading: some kind of advice given by the EEC-institutions to the Member States; it is a legal act with a clear-cut binding character for the Member States.  It leaves them, to be sure, the liberty to choose the means for attaining the common purpose, but they have to elaborate their legislation within a time limit fixed by the directive itself.  In case a Directive is sufficiently precise in establishing rules that confer rights on the citizens vis-6L-vis the Member States, such provisions are deemed by the Court of Justice of the EC to be directly enforceable by the national courts, if the time limits have elapsed without implementation having taken place.

 

The Post-Seveso-Directive indeed does not leave much of a margin of appreciation to the Member States.  However, the Council refused to follow the Commission's proposal to have it entitled a Regulation (which would have been directly binding on and conferring rights upon the citizens from the moment of its coming into force, without necessitating an intervention by the national legislative machineries).  This refusal later proved to have complicated very much the implementation of the Directive by the Member States, as we will see.

 

The supervision and control system instituted by the Post-Seveso-Directive can be

roughly described by the following ten characteristics:

1.       All hazardous wastes passing the frontier of a Member State have to be traceable from the moment they left the producer to the moment of their arrival at the disposal facility.  This control is being realized through notification by means of a uniform shipment document.  This document, or copies of it, is to be sent to the competent authorities of all countries concerned by the shipment (be they Member States or not).

2.       The holder of the wastes gives exact information on the document or its Annexes concerning the source and composition of the wastes; the identity of the producer(s); the route of the shipment; the measures to be taken to ensure safe transport; and the contractual agreement with the consignee of the wastes.  This last person must possess adequate technical capacity for the disposal of the wastes in question under conditions presenting no danger to human health and the environment.

3.       No shipment can be undertaken without the prior written consent of the competent authority of the Member State of destination, given on the document itself ("the acknowledgment of receipt").  Even if this authority is formally obliged to react within a month, the non-observance of this time limit does not authorize the shipment to take place.

4.       The competent authorities of the country from which the shipment originates may raise objections against it within 20 days after receipt of the notification on the grounds that it adversity affects the implementation of a waste disposal plan, or that it conflicts with obligations resulting from previously concluded international agreements on the same subject.  But after expiry of these 20 days without objections having been raised, the shipment may proceed.

5.       The competent authorities of the countries of transit and of dispatch may within 15 days lay down conditions in respect of the shipment.  These conditions however are not allowed to be more strict than those laid down in respect of similar shipments taking place entirely within the country in question.  After expiry of these 15 days without any condition having been imposed, the shipment may proceed.

6.       A copy of the document has to accompany the wastes during the entire shipment, and must be signed by all its respective carriers.

7.       upon receipt of the wastes, the consignee shall inform the competent authorities of all countries concerned by means of a copy of the shipment document.

8.       In case of export from the Community, the acknowledgment of receipt is being given in principle by the authority of the country of dispatch.  In case of transit through the Community, this is being done by the authority of the last Member State of transit.  In both cases, this authority has to verify the information given by the holder as to the environmental soundness of disposal, as well as the existence of prior written consent to the shipment by the country of destination.  These dispositions are aimed foremost at protecting the developing countries.

9.       In case of several similar shipments taking place from the same holder to the same consignee via the same customs offices, one notification per annum will suffice.  But each shipment has to be accompanied by a copy of the shipment document.

10.     The procedure is applicable to shipments of all wastes being considered to be toxic and dangerous by the aforementioned directive 78/319, with the exception of solvents, and to PCB's and PCT'S.

 

A simplified procedure may be followed for wastes from non-ferrous metals intended for re-use, regeneration or recycling: only the Member State of destination receives a notification, and the possibility to raise objections or to impose conditions is not foreseen.

 

Other wastes intended for re-use, regeneration or recycling have to follow the

normal procedure.

 

For more details about the rules laid down in the Post-Seveso-Directive I refer to its text.  I just want to mention that the international rules on transport of dangerous goods and the directive are complementary to each other.

 

 

 

3. The implementation and application of the Directive

 

In a burst of boundless optimism, the Council - put under pressure by public opinion, to be sure - fixed the time limit for implementing the Directive on 1 October 1985 (less than a year after its adoption!), and that for its modification on 1 January 1987 (scarcely half a year after its adoption).  Of course, these limits were unattainable.  As I said earlier, the Directive does not leave much room for separate Member State policies.  Nevertheless, its implementation into Member State legislation proved to be particularly difficult.

 

On 1 January 1987, only the FRG had implemented the original Directive, and not a single Member State had implemented its modification.  Only in august 1987 did the first complete legislations to this effect come into force: those of Belgium and Denmark.  Other countries intimated they met difficulties that impeded them from performing their duties.

 

Although belated implementing of EC legislation is nothing new, certainly in the environmental field, in this particular case it proved to be particularly embarrassing.  Indeed, as the Directive usually deals with shipments concerning more than one Member State, its application presupposes the cooperation of all of them.  Implementation by one country does not solve much, as all countries concerned by one shipment will have to use the same shipment document, to observe the same time limits, etc. etc.  Strange as it may seem, the retardation thus only causes further delays, as several Member States were waiting for each other to implement before doing anything themselves, while those who had implemented became increasingly frustrated by the lack of cooperation from authorities of other Member States.

 

Which were the impediments that hampered implementation?  Different reasons

were invoked.  Among them of course some often heard arguments like the intricate internal legislative process, the internal distribution of competences, and conflicting policy priorities.  None of these are valid, by the way, as the Council did legally bind the national governments and even fixed time limits much more stringent than usual.  Note also that these decisions were taken unanimously, and thus supposed to be backed by all governments of the Member States!.

 

To be sure, the implementation of this Directive - which should have been a Regulation, as governmental officials now generally agree upon! - was far from being an easy task.  While on Community level the construction was more or less transparent, the Member States had to elaborate different sets of rules for import, export and transit movements.  As a result, their legislations tended to become intricate and hardly accessible.

 

Another reason, invoked by some Member States, was the alleged vagueness of the definitions of "wastes" and "Hazardous wastes".  To be sure, Directive 78/319 leaves it to the Member States to determine the quantities and concentrations above which the listed wastes are deemed to be hazardous.  But this problem already dated back from 1978, and, was perfectly well known when the Directive was adopted.  Still another reason for the inertia of some Member States was that within the OECD, an agreement was being prepared on the same subject, aiming besides at developing a new definition of the concept of hazardous wastes.  The OECD system would in due time most certainly have led to an adaptation of the Post-Seveso-Directive; maybe some countries even would have preferred to start all at once with a finally accepted OECD-system, leaving aside the Directive...

 

Anyhow, the Commission was heavily displeased about this state of affairs, but decided that it should not merely start infringement procedures against the Member States being remiss.  As a matter of fact, the Commission had just formulated its new policy with respect to the observance of Community environmental law in its Fourth Environmental Action Programme (10).  And one of the methods foreseen there was the intensification of the dialogue with national administrations.

 

Thus in the case of the Post-Seveso-Directive, the Commission organized by the end of 1987 a high-level meeting with Member State officials in order to break through the vicious circle by confronting them with one another and with the Commission itself.  This confrontation appeared to be helpful, as most of the Member States declared themselves ready to intensify their efforts for implementing the Directive.

 

The Commission, on the other hand, promised to discuss the national implementation problems bilaterally with those Member States that expressed their wish to do so.  Quite a number of such discussions has taken place since then.  The results were reasonably satisfactory.  A year later, 10 Member States had passed legislation, and they by now all apply the notification and control system of the Directive.  Only Spain and Portugal have not yet caught up.

 

Of course, even if a Directive has been implemented by all Member States, this will not be the end of it.  In the first place, the adopted legislations have to be verified on their conformity with the Directive (and with Community law in general).  In the second place, the legislation may be perfect, but its application unlawful.

 

As to the first point - the quality of the implementation-, here the intensified dialogue with national officials during the implementation process has proven to be rather fruitful.  Indeed, the bilateral discussions at least contributed to eliminate errors due to carelessness or lack of understanding.  What then remains are intentional divergences from the system of the Directive.  Some of these may be considered to be compatible with the Directive, others as contrary to it.

 

A close scrutiny of the preamble, the explanatory memorandum and the legal and economic context may be necessary to be able to determine if the divergence is compatible or not.

 

Would appear to be contrary to Community law anyhow:

 

-    general import or export bans of waste vis-a-vis fellow EC Member States;

-    specific refusals to admit waste from a fellow EC Member State because of its national origin;

-    specific refusals to ship waste to a fellow EC Member State essentially based on a policy aimed at disposing of hazardous waste at the Member State of production;

-    national definitions of hazardous waste exempting secondary raw materials from the EC notification procedure;

-       modifications introduced to the uniform shipment document, be they but slight (this, indeed, could lead to the refusal of the correct document, in good faith, by authorities of the Member State that modified the document!).

 

As to the application of the Directive, even if it has been not applied for much more than a year's time in by far the largest part of the Community, we can already identify a number of problems that do necessitate the reconsidering of some important aspects of the Directive:

 

*      The actual EC definition for hazardous waste leaves much to be determined by the Member States.  As a consequence, substantial difference among Member States exist as to the wastes subject to the common notification scheme.  This hampers the application of the scheme; moreover, the data collected by the Member States are incomparable.  Therefore, no reliable statistics exist on Community level.

 

*      The additions made to the scope of the scheme by different Member States.  Quite a few include organic solvents; some even include household waste.

 

*      A particular problem has risen concerning waste containing non-ferrous metals destined for re-use, regeneration or recycling.  The Directive provides for a simplified procedure consisting of a notification duty without a possibility for the public authorities to interfere.  But this may give a free hand to shipments to developing countries that burden these countries with important quantities of remaining residues after the recycling operations have been finished.

 

*      Next, the question which person is to be held responsible in case a notification procedure has not taken place appears to lead to some confusion, even if the directive does establish a general responsibility of the waste producer for the lawful and environmentally sound disposal of his waste.

 

*      And, last but not least, the problem raised by the failure of Member States to implement the scheme at the same time.  The Member States who did impose the scheme on their industry did not know to whom the EC form had to be sent, and anyhow, if a form was sent it was not returned.  This of course very much frustrated industry and administration at the same time.

 

4. Future developments

 

The Post-Seveso-Directive treats a subject which enjoys an ever increasing public awareness.  Cases like the salvage of the Herald of Free Enterprise, the Odyssee of Vulcanus III and all subsequent scandals of waste tourism to developing countries catched Community-wide attention and incited European Parliamentarians to formulate caustic questions on the adequacy of the Directive.

 

The OECD Council, as I mentioned before, agreed upon to bring about new common definitions (11) on waste, hazardous waste and disposal (definitions substantially endorsed by the Basel Convention).  The EEC-definition will have to be adapted to this definition, being more precise than the former.  The Connection's proposals to the EC Council in August 1988, containing a wholesale modification of the general waste Directive of 1975 and the hazardous waste Directive of 1978, contains provisions to this effect.

 

The draft OECD-agreement on transboundary movements of hazardous wastes has been mentioned as well.  Eventually, this agreement was not adopted, even if it finally came very close to adoption.  The reason for this was that in the framework of UNEP, the environmental branch of the UN, a world wide agreement in this field, was adopted, taking away the necessity of a system merely covering the OECD countries.  The Basel Convention, which will be dealt with later on by Mrs. Rummel-­Bulska, anyhow necessitates an overall reconsidering of the provisions of the Post­Seveso-Directive, and the Commission's services are giving a very high-ranking priority to the adaptations required.

 

The adaptations will take duly into account at the same time:

-    the Community's commitment, in the framework of the Lom6 IV-Convention, to issue a general ban on the export of hazardous waste to ACP-Countries;

-    the application problems described above;

-    the consequences of the specific position of the Community, gradually establishing an internal market without border controls between Member States.

 

The last two aspects do merit some final remarks.

 

As for the application problems, a number of those will be solved by the implementation of the Basel Convention.  Apart from that, these problems will be likely to be dealt with in the following way:

-      the Directive will be superseded by a Regulation; this will ensure that this time the whole system will be applicable and applied in time and at the same time throughout the Community;

-      the Regulation will in principle be applicable to all wastes, and not only to hazardous wastes: the demarcation line between hazardous and other wastes, indeed, is too vague for to allow for a different treatment of both categories, and at the same time, the problem of longer national lists will be tackled;

-      the simplified non-ferrous metal procedure will be strengthened, by introducing the possibility of a check on the environmental beneficiality of the recycling or re-use operation;

-      the responsibilities of producers, holders and other private operators will be made more transparent.

 

As regards the specific position of the Community, this will have to be seen as one single entity, at least from an external point of view.

 

The most substantial provisions of the Basel Convention, as well as those of the Post-Seveso Directive, make use of classical instruments of external trade (export and import prohibitions, conditions, notifications), which, according to art. 113 of the EEC Treaty, come under the exclusive competence of the Community.

 

While hazardous waste movements between the Community and third countries vice-versa will be strictly subject to the rules of the Basel Convention, waste circulation among EC Member States can be only subject to limitations that are irrespective of internal frontiers.  In its Community strategy for waste management, the Commission opted for the "proximity rule", i.e. that waste should as far as possible be "disposed of in one of the nearest suitable facilities, making use of the most appropriate technologies to guarantee a high level of protection for the environment and public health"; which means, in fact, that objection could only be made on basis of the distance intended to be covered and the means of disposal foreseen, and not on the crossing of borders between Member States.  As concerns waste intended for recycling or re-use, objections could only be made as to the environmental soundness of these activities.

 

CONCLUSION

 

A such EC policy, aiming at self-sufficiency in waste disposal on Community scale and at rational allocation of waste disposal facilities with the Community, has manifold advantages:

1)      creating a buffer zone for waste disposal between the region of production and third countries that renders waste exports from the Community less necessary and less frequent;

2)      short-distance shipments between Member States will not be put at a disadvantage vis-a-vis long-distance shipments within one Member State;

3)      in spite of high treatment or landfill charges, the outlets of new, technologically advanced facilities at a high level of protection will be secured;

4)   increasing the possibility of joint use of scarce resources within the Community;

thus:

a)     regions put at a disadvantage because of particular geological, geohydrological or demographical conditions will be able to make use of other regions' capacities;

b)       a flexible regime for border regions is being ensured -already, with the Commission's assistance, a joint waste disposal plan is being developed in the Saarland-Lorraine-Luxembourg region- comprehending parts of four Member States meeting with very much the same economical and environmental problems;

c)     certain waste streams require a specialized treatment necessitating a combined approach of several Member States;

5)      for waste intended for re-use or recycling, a flexible procedure can be followed, that all the same will be better controllable.

 

Of course, next to this, particular efforts will have to be made:

-    on Community scale, in order to harmonize as soon as possible treatment and disposal standards;

-    on regional or interregional scale, in order to further develop an adequate network of treatment and disposal facilities;

-    on national scale, in order to make sure that the polluter pays principle be fully integrated into treatment and disposal charges, involving all economic, social and environmental costs.  In close relation with the proximity principle, this might eventually prove to be a decisive incentive towards the ultimate objective of waste policy:                   WASTE PREVENTION

 

(1)        OJ Nr.  L 194 of 25.7.75, p. 23, modified by Council Directive 87/101/EEC, OJ Nr.  L 42 of 12.2.87, p. 43

(2)        OJ Nr L 194 of 25.7.75, p. 39

(3)        OJ Nr L 108 of 26.4.1976, p. 41.  An amending Directive was proposed by the Commission, published in OJ Nr C 319 of 12.12.1988, p. 57.

(4)        OJ Nr L 84 of 31.3.1978, p. 43

(5)        Doc.  SEC(89) final of 18 September

(6)        OJ Nr L 230 of 5.8.1982, p. 1, modified since

(7)        OJ Nr L 326 of 13.12.1984, p. 31

(8)        OJ Nr L 181 of 4.7.1986, p. 13

(9)            Commission Directive 85/469/EEC (OJ Nr L 272 of 12.10.1985, p. 1); Council Directive 86/121/EEC (OJ Nr L 100 of 16.04.1986, p. 20); and Commission Directive 87/112/EEC (OJ Nr L 48 of 17.2.1987, p. 31)

 

(10)      OJ Nr C 328 of 7.12.1987, p. 5

 

(11)               Decision C(88)90 (Def.)

 

(12)      OJ Nr C 295 of 19.11.1988, p. 3/8