Waste Facility
Waste Management Plans
Major Accident Prevention
Permit
Public Participation
Construction and Management of Waste Facilities
Closure and Afterclosure of Waste Facilities
Financial Guarantee
On June 2 2003 the European Commission published a proposal for a Directive on the Management of Waste from the Extractive Industries [COM (2003) 319].
The variety of controls and the diversity of extractive industry within the European Union are the impetus behind minimum requirements at EU level. The proposal also looks forward to EU enlargement, given the number of extractive industry sites in many candidate countries.
In Ireland, much of the regulatory framework and many of the tools necessary to achieve implementation of the directive are already in place.
The directive focuses on the 'waste facility' and waste management elements of extractive industries (mining and quarrying). In Ireland all significant extractive industries will meet many, if not all, of the requirements without a great deal of regulatory adaptation. This is because of existing controls imposed by a combination of integrated pollution control (IPC)/integrated pollution prevention and control (IPPC) licensing, planning controls, waste legislation and the Seveso II Directive (96/82/EC), where that applies. Licence review or modification may be necessary for some the operations of some existing industries. Competent authorities will have to have regard to the directive, once it is in force, when dealing with the waste management aspects of new extractive industries.
This update examines how some of the proposed directive's main provisions relate to existing Irish licensing arrangements.
A 'waste facility' is any area designated for the accumulation or deposit of waste, whether solid or liquid, or in solution or suspension, for a period of more than one year. While the volumes of extractive waste typically generated mean that most waste facilities are located on the site of extractive operations, the definition appears also to cover off-site waste disposal/storage sites. Where this arises, that aspect of directive implementation is likely to be covered in Ireland by waste licensing requirements and arrangements under the Waste Management Acts 1996 to 2001.
Operators will have to draw up waste management plans for the treatment, recovery and disposal of extractive waste. Any significant extractive operations will already be IPC/IPPC licensed in Ireland, with those licences containing conditions on the handling and storage of extractive waste. Generally, such IPC/IPPC licensed facilities will provide for extractive waste management through environmental management systems (required under the IPC/IPPC licences). It seems that even if an IPC licence addresses all of the formal minimum requirements for a waste management plan set out at Article 5 of the directive, a formal waste management would still have to be put in place.
Waste facilities which are not already covered by the Seveso II Directive, and which are 'Category A' waste facilities within the meaning of the proposed directive, will have to produce a major accident prevention policy with respect to extractive waste produced, and will have to put into effect a safety management system implementing that policy. They must also prepare an internal emergency plan to come into effect in the event of an accident. Category A waste facilities are those where, in the event of a breach or failure, loss of human life cannot reasonably be excluded, or which contain hazardous waste or dangerous preparations over a certain threshold. Significant extractive industries in Ireland not covered by Seveso II will have to apply the criteria set out in Annex 3 to the directive to their operations to determine whether they are required to produce the emergency plans.
The requirement for a permit relates to a 'waste facility' as defined above. It is not entirely clear if an existing Irish IPC/IPPC licence for an extractive industry, with its conditions regarding waste management, would be sufficient to satisfy the requirement for a permit for a waste facility under the proposed directive on mining waste. The wording in Article 7 of the proposed directive excludes "unnecessary duplication of information", but it is not clear from the wording whether an IPC/IPPC licence can take the place of a waste facility permit or can go towards partial satisfaction of the requirement. It is suggested that if an extractive industry is fully compliant with its IPC/IPPC licence, and the IPC licence holder can show that the licence and environmental management system cover all of the minimum requirements to be contained in a waste facility permit (specified at Article 7 of the proposed directive), then the IPC licence can also operate as the waste facility permit required under the proposed directive on mining waste.
A full public participation procedure is provided for in Article 8. This also states that "the detailed arrangements for public participation" are to be determined by member states. It is highly likely that Irish competent authorities will build these requirements into existing land-use planning and IPC/IPPC licensing public participation procedures.
Construction and Management of Waste Facilities
Many of the environmental protection measures of the proposed directive on extractive waste are contained in Article 11. This deals with the construction and management of waste facilities. Member states, and their competent authorities, must ensure that matters such as geological/hydro-geological considerations, groundwater, surface water, rehabilitation, cessation arrangements, stability of ponds and heaps are all properly provided for and taken into consideration. Many of these matters are habitually considered and covered by competent authorities in Ireland, such as planning authorities when dealing with land-use consents for extractive industries and the Environmental Protection Agency when dealing with the IPC/IPPC licence arrangements. Very little, if any, changed arrangements will be required in Ireland to satisfy this aspect of the proposed directive.
Closure and Afterclosure of Waste Facilities
Similarly, the requirement in the proposed directive for member states to ensure that ongoing responsibility after closure for stability of waste facilities, ongoing monitoring, reporting and so on shall all remain with the operator of the facility are easily absorbed into standard aftercare condition imposed as part of industrial licensing in Ireland. Article 12.2 states that a waste facility shall only start the closure procedure if relevant conditions stated in the waste permit are met or if closure is authorized by the competent authority. This encourages the observation of all permit conditions, because if all waste permit conditions are not met, the decision as to formal closure is out of the operator's hands.
Irish industries with significant environmental impact potential (whether extractive or otherwise) have become increasingly familiar with mandatory financial provision to cover environmental impact/aftercare. As presently worded, the financial guarantee obligation will only apply to operations commenced after the directive comes into effect. In Ireland, any new significant extractive industries can expect to have to provide financial guarantee in order to be IPPC-compliant. As to the form of guarantee, the wording speaks of "a financial deposit or equivalent". It is not yet clear whether a bond would be sufficient to comply with this requirement. The answer here depends on what is meant by 'or equivalent'.
For further information on this topic please contact Conor Linehan at William Fry by telephone (+353 1 6395397) or by fax (+353 1 6395333) or by email ([email protected]).