On 15 March 2006, the European Parliament and Council adopted Directive 2006/21/EC dealing with the management of waste from extractive industries such as mining and quarrying (the “Directive”).
The Directive seeks to establish measures, procedures and guidance to prevent or reduce the adverse effects on the environment and human health that can be caused by the management of waste from extractive industries. Member States have until 1 May 2008 to transpose the Directive into national law.
The Directive covers the management of waste resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries. This type of waste is described as “extractive waste” by the Directive.
Waste generated by these activities but which does not directly result from mining and quarrying is not covered by the Directive. For example, soil and rock extracted from a quarry would be covered by the Directive, whereas waste oil and spent batteries used during the extraction process would not (although they would be covered by the normal waste regulation regime).
Significantly, waste resulting from offshore mineral extraction is not covered by the Directive.
This Directive is significant because “extractive waste” is defined in it by reference to the broad definition of “waste” contained in the Waste Framework Directive (now 2006/12/EC) as interpreted by the European Court of Justice. The wide interpretation given to the term “waste” in the Palin Granit Oy case (C-90/00), where the ECJ decided that “waste is what falls away when one processes a material or an object and is not the end-product which the manufacturing system directly seeks to produce”, means that this Directive has far reaching implications for the extractive industry.
Member States must ensure that operators take all measures necessary to prevent or reduce as far as possible any adverse effects on the environment and human health resulting from extractive waste. The duty imposed on operators will apply during the operation of a mine/quarry where extractive waste is either accumulated or deposited (an “extractive waste facility”) and for an appropriate period after its closure.
Measures to be adopted by operators must be based on “best available techniques”, a principle already heavily used in, for example, the Integrated Pollution Prevention and Control Directive (96/61/EC).
The Directive imposes a number of more specific requirements on operators.
- Waste management plans (WMPs). Operators will be required to draw up plans for the prevention or minimisation, treatment, recovery and disposal of extractive waste. WMPs will need to consider extractive waste management in the design phase, as well as the possibility of putting extractive waste back in the excavation void and the changes that extractive waste may undergo above ground. WMPs will also need to consider the long and short term safe disposal of the extractive waste, as well as the opportunities for the waste to be recycled.
- Major accident prevention policies (MAPPs) and internal emergency plans (IEPs). The most high risk extractive waste facilities will, under the Directive, be classed as a “Category A” facilities. These facilities will, before starting operations, have to draw up a MAPP and put into effect an IEP. The IEP will aim to contain and control major accidents and to implement measures necessary to protect human health and the environment. The IEP will set out the measures to be taken on site in the event of an emergency. Running parallel with this will be an external emergency plan (EEP) prepared by the national regulatory authority, which will specify the measures to be taken off site in the event of an emergency.
- Application for a permit. Extractive waste facilities will not be allowed to operate without first obtaining a permit from the national regulator. In light of the recent joint DEFRA (Department for the Environment, Food and Rural Affairs), Environment Agency and Welsh Assembly Government consultation on environmental permitting, it is possible that the Directive will simply be “bolted on” to the proposed core application/procedural provisions. (For further information on this consultation, refer to our client briefing entitled “Environmental Permitting Programme – a better regulation initiative”.)
- Financial guarantee. Prior to the commencement of any operations involving the accumulation or deposit of extractive waste, the national regulator must require a financial guarantee to be put in place by the operator so that there are funds available for the cleaning up of any land affected by the facility and so as to ensure that all obligations prescribed by the relevant permit are discharged.
- Closure and after closure procedures. The closure procedures applying to extractive waste facilities will be similar to those which operate under the Landfill (England and Wales) Regulations 2002 (the “2002 Regulations”). As under the 2002 Regulations, the operator will be responsible for the maintenance, monitoring, control and any necessary corrective measures in the after-closure phase for as long as the national regulator deems reasonably necessary.
Despite the fact that the deadline for transposition of this Directive is just under 18 months away, the British Government has not, at the moment, given any indication of when it will be publishing its first consultation on implementation of the Directive. However, we understand that DEFRA is currently working on a number of possible implementation options which will form the basis of the consultation document. Given the need, under the Directive, for a number of plans and policies to be drawn up by operators, there is likely to be detailed non statutory guidance to assist the extractive industry. This will, no doubt, be the subject of lengthy consultation. Operators will have until either 1 May 2012 or 1 May 2014 to comply with the Directive, with the actual date depending on the particular circumstances.