Mixed views on the EU’s new Waste Framework Directive

On 17 June 2008, MEPs voted to approve a second-reading deal on new EU waste legislation. The proposed legislation looks to streamline existing waste laws, incorporating existing directives on waste into a revised Waste Framework Directive. The main provisions of the proposed Directive are: (1) the waste hierarchy, (2) the classification of incineration, (3) reinforcement of waste prevention, (4) re-use and recycling targets, (5) the exclusion of by-products and (6) extended producer responsibilities. The proposed Directive is expected to come into force by the end of 2008. The response from industry and lobbyists to the proposals has been both positive and negative, with many arguing that the revisions do not go far enough in tackling Europe’s waste issues.

Waste hierarchy

The idea of a waste hierarchy was first introduced by the Waste Framework Directive 1975 (Council Directive 75/442/EEC of 15 July 1975 on waste). This hierarchy is reiterated and comprehensively set out in the proposed Directive and confirms that the priority remains: prevention, re-use, recycling, other recovery (e.g. energy from waste) and, finally, disposal. When applying the waste hierarchy Member States will have to take measures to encourage the options that deliver the best overall environment outcome. Member States will have to ensure that the development of waste legislation and policy is a fully transparent process, observing existing national rules about consultation and involvement of citizens and stakeholders.

Waste prevention

Parliament’s rapporteur, Caroline Jackson, has said “it proved impossible for the Council and Commission to approve quantitative waste prevention targets”. Instead the proposed Directive will give momentum to develop future policy in this area through an obligation on Member States to establish waste management plans and waste prevention programmes five years after the proposed Directive enters into force. This obligation is a continuation of requirements under the Waste Framework Directive 1975 (implemented in England, for instance, in the form of the Waste Strategy for England 2007). In addition, the European Commission will report on prevention, will set waste prevention objectives for 2020, will create a system for sharing information on best practice regarding waste prevention and will develop guidelines in order to assist Member States in the preparation of the programmes.

Re-use and recycling targets

The proposed Directive sets out targets for Member States to achieve by 2020:

• re-use and recycling of paper, metal, plastic and glass from households and similar waste streams, shall be increased to a minimum of 50% by weight; and

• re-use and recycling of non-hazardous construction and demolition waste, shall be increased to a minimum of 70% by weight.

There is no prescribed method or format for Member States to achieve these targets. Instead, the proposed Directive States that, Member States must take the “necessary measures” to reach the targets.

By the end of 2014 at the latest, the European Commission shall examine these measures and targets with a view to, if necessary, reinforcing the targets and give consideration to setting targets for other waste streams. Member States will be obliged to report to the European Commission every three years on their recycling record. If targets are not met, the Member State must give reasons for this failure and actions that they will take in order to meet the targets.

Incineration

It will be possible for an incinerator to be classified as a recovery operation (as opposed to disposal), provided it meets certain energy efficiency standards (as set out in Annex II of the proposed Directive). According to the European Commission, these criteria will have the effect of ensuring that only the most energy efficient existing municipal solid waste incinerators will be classified as recovery installations. The European Commission hopes that this will be a “positive incentive to incinerator operators to reach high standards”. Six years after the coming into effect of the proposed Directive, the Commission will review the energy efficiency standards and will present a proposal for revision if appropriate (effectively this could mean higher standards if technology develops).

By-products

Historically, controversy has arisen over interpretation of the legal definition of waste. This definition is very wide. Many cases have been brought before national courts and the European Court of Justice where parties have sought to argue that a substance is a useful by-product rather than a waste. In order to clarify the position, the European Commission released a communication in February 2007 (COM (2007) 59 Final on the Interpretive Communication on waste and by-products), which is adopted by the proposed Directive. It provides a clearer distinction between by-products and waste. Under the proposed Directive, a substance or object, resulting from a production process, the primary aim of which is not the production of that item, may not be classified as waste and will therefore be exempt from the waste laws, but only if the following conditions are met:

• further use of the substance or object is certain;

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

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

• further use is lawful i.e. it will not lead to overall adverse environmental or human health impacts.

Extended producer responsibility

The proposed Directive provides a framework power to Member States to take measures to impose upon any person who professionally develops, manufactures, processes, treats, sells or imports products (a “producer”) extended producer responsibility obligations. These measures may include the obligation to provide publicly available information on the extent to which the product is re-usable and recyclable. In addition to this obligation, other potential obligations that may be imposed on producers may include providing take-back facilities for products, or requirements to improve product design to incorporate higher energy efficiency and environment standards (akin to obligations that already exist in respect of certain products under other EU legislation, such as the Waste Electrical and Electronic Directive, the Directive on Packaging and Packaging Waste and the Eco-design of Energy Using Products Directive).

A mixed response

Existing legislation has been criticised as too fragmented and inefficient. The proposed Directive aims to draw together different areas of waste law into a coherent and effective piece of legislation. However, there has been a range of opinions on the potential effectiveness and success of the proposed Directive. The agreed text is a compromise agreement between the Council and Parliament, which according to Parliament’s rapporteur Caroline Jackson is “the best deal available”. However, this compromise has led some MEPs to describe it as “severely weakened” and a “wasted opportunity”.

Industry groups have made a similarly mixed response. There has been widespread approval of the clarification of definitions in the proposed Directive, particularly in helping to distinguish between by-products and waste. The recycling industry says that the revised law recognises the need for higher rates of recovery and recycling in the future, paving the way for resource efficiency and sustainable materials management. Environmentalists have, however, expressed concern that the recycling targets are too low to address the urgency of resource threats. A number of industry groups have commented that the targets lag behind those already in place in some sectors and that the proposed Directive’s wording on these targets is too vague to be enforceable.

Flexibility in the application of the waste hierarchy is welcomed, again, as it is hoped that this will contribute to resource efficiency. However, there has been a less positive response to the waste prevention programmes. There is disappointment that no waste prevention targets have been put in place, but instead only studies into waste prevention will be carried out. The engineering industry has spoken openly about concerns over the effect extended producer responsibility will have on industry, claiming a potential undermining of the coherent approach adopted in the Eco-design of Energy Using Products Directive. Similarly, smaller trade industries fear that the proposed Directive may put too high a burden on smaller enterprises in some countries and sectors such as construction, which may lack the proper facilities to cope with the proposed Directive’s requirements.

Co-author Jessica Chilton can be contacted on +44 (0)207 367 3259 or [email protected]

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