Introduction
'Lifecycle' thinking
Material management hierarchy
'End-of-waste' phase and byproducts
Operational requirements for material use
Increased producer responsibility
Material register
Comment
In December 2008 the European Parliament and European Council adopted the new Waste Framework Directive, which had to be implemented into Belgian regional law by December 12 2010. However, none of the three regions of Belgium implemented the directive by this deadline.
With regard to the Flemish region, the delay was mainly due to the fact that the Flemish legislature attempted to regulate the entire lifecycle of materials, rather than limiting itself to mere waste management.
This resulted in the Flemish decree of December 23 2011 on sustainable management of material cycles and waste materials. The Flemish government further implemented the decree by an executive order of February 17 2012. The new decree and its executive order entered into force on June 1 2012.
This update highlights some of the decree's significant consequences on the operation of businesses in Flanders.
The new decree is applicable to materials covering all substances that have been mined, extracted, grown, processed, produced, divided, commissioned, decommissioned or reused, including waste materials produced during these operations. In essence, the applicable materials include all material substances used in the Flanders economy. In other words, all waste streams are materials, but not all materials are waste.
The introduction of the term 'materials' is a consequence of the 'lifecycle' thinking of the Flemish legislature, which attempted to create a regulatory framework covering all consecutive operations throughout a lifecycle or substance flow, ranging from mining and extraction to the moment that such operations produce waste material that is unavailable for reuse. As a consequence, materials can progress through the lifecycle multiple times if they are reusable.
In order to produce sustainable material cycles, the Flemish legislature has revised the hierarchy for material management. Whereas the old waste hierarchy covered three levels of management, the new hierarchy consists of five levels:
- waste prevention and more efficient, less environmentally harmful consumption of materials through changes in production and consumption patterns (this occurs before the waste phase);
- preparation of waste for reuse;
- recycling of waste materials and use of materials in closed material cycles;
- other uses of waste materials, such as energy recovery and use of materials as a source of energy; and
- removal of waste materials, with dumping as a last resort – incineration with low waste recovery is considered waste removal.
This hierarchy is relative, not absolute. The underlying idea is that only the options that produce the best overall result for the environment and human health should be encouraged. Therefore, exemptions from the hierarchy may be requested from the Flemish government for certain materials. If granted, the exemption will be valid not only for that specific material stream, but also for equivalent material streams.
'End-of-waste' phase and byproducts
The introduction of 'lifecycle' thinking with respect to substances includes more than merely regulating the waste phase. Nevertheless, it is important to know when the waste phase commences, since this will encourage compliance with specific obligations (eg, waste registers, waste removal permits and preparatory actions for removal).
The waste phase of a material commences when the holder disposes, intends to dispose or must dispose of it. This is a question of fact.
With regard to the end of the waste phase, the new decree foresees a dual regime. On the one hand, there is a legal basis for the transposition of EU-level 'end-of-waste' criteria (eg, for aluminium); on the other, it provides a legal basis for the Flemish government to determine specific criteria for particular waste streams that are not regulated at EU level.
A similar regime has been established to determine when a substance or object that is the result of a production process – but was not primarily intended to be produced – will be regarded as a byproduct of the production process rather than as waste.
Where the criteria for 'end-of-waste' or byproducts have been met, the materials will be regarded as resources that can be reused in a material cycle. The Flemish government may require that specific waste streams be issued a resource certificate by the Flemish Waste Management Agency (OVAM) before a material can be regarded as 'end-of-waste' or a byproduct. Such a certificate will demonstrate compliance with EU and Flemish criteria.
Operational requirements for material use
Since the objective of the new decree is the creation of sustainable material cycles, the Flemish government is entitled to establish requirements for the use of particular materials. The executive order implementing the decree contains provisions for the management of specific materials that cannot be regarded as waste (eg, the use of rubber granulates originating from recycled tyres in artificial grass turf). In addition, OVAM will be able to suggest specific conditions for the use of particular materials in the advice that it issues for environmental permit procedures.
Increased producer responsibility
Another measure that is intended to create sustainable material cycles is the expansion of the producer's responsibilities. The new decree provides a legal basis to impose measures to foster the prevention, reuse, recycling and other use of waste on a legal person that professionally develops, manufactures, processes, treats, sells or imports products (ie, the producer). The Flemish government will determine which products or waste streams will be subject to this increased producer responsibility. The Flemish government is already making use of this provision: of particular note is the upcoming introduction of an acceptance duty for discarded photovoltaic cells.
At present, a natural or legal person that manages waste is obliged to keep a chronological waste register that lists, among other things, the incoming and outgoing quantities and origin of waste. In addition to the existing waste registers, the new decree provides a legal basis for the Flemish government to determine the specific materials for which a material register must be kept in order to monitor efficient and lawful use of reusable materials (which must not be registered in the waste register).
The adoption of the new decree on sustainable management of material cycles and waste materials has once again reaffirmed Flanders's top spot in Europe with regard to waste management. However, the transition from a waste management policy to a sustainable material management policy is an ongoing process that must be realised step by step. The new decree has provided the legal basis for this transition; it will be interesting to see how the Flemish government further implements it. Companies are advised to consider the extent to which the new decree will affect their business.
For further information on this topic please contact Dominique Devos at DLA Piper UK LLP by telephone (+32 2 500 1500), fax (+32 2 500 1600 ) or email ([email protected]).