Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Waste and hazardous substances
How is ‘waste’ defined in your jurisdiction?
The Waste Framework Directive (WFD) (2008/98/EC) regulates the management of waste in the European Union. ‘Waste’ is defined in the WFD as “any substance or object which the holder discards or intends or is required to discard”. Guidance on the interpretation of the WFD explains that:
- ‘discard’ includes items thrown into a waste bin or the transfer of material from a company to a waste collector;
- ‘intention to discard’ includes an operating site that indicates that it will send off-site for appropriate disposal or recovery any of its stock of raw materials that cannot be returned; and
- ‘requirement to discard’ includes stockpiles of banned pesticides that must be discarded and therefore must be managed as waste.
The WFD makes certain exclusions from the scope of waste, such as gaseous effluents emitted into the atmosphere, land (in situ) and uncontaminated soil. It also excludes from its scope certain materials to the extent they are covered by other EU legislation, including wastewater, animal by-products and carcasses, and mining waste. By-products of industrial processes also do not constitute waste if:
- further use of the substance or object is certain;
- it can be used directly without any further normal industrial processing;
- it is produced as an integral part of the production process; and
- further use is lawful.
Material ceases to be waste if it meets certain ‘end-of-waste’ criteria, such as whether a market exists for the material, or it has undergone a recovery operation (including recycling). The concepts of recycling and recovery are defined in the WFD. The European Commission has adopted an interpretative communication on waste and by-products to assist with the application of the end-of-waste criteria.
The fundamental obligations on member states in respect of waste under the WFD are twofold. First, they must take measures to ensure that waste management is carried out without endangering human health or without harming the environment. Second, they must take measures to prohibit the abandonment, dumping or uncontrolled management of waste.
What rules and procedures govern the handling of waste, with particular respect to:
The WFD distinguishes between:
- preliminary storage of waste pending collection; and
- storage of waste pending treatment.
The storage of waste pending collection falls under the definition of ‘collection’ of waste. ‘Permanent storage’ is listed in Annex I of the WFD as a disposal operation. These definitions are relevant for the responsibility for waste management (see Article 15 of the WFD).
Special rules apply for the storage of hazardous waste (see Articles 13, 17, 35 and 36 of the WFD).
The storage of waste prior to recovery for a period of three years or longer and the storage of waste prior to disposal for a period of one year or longer are subject to the Landfill Directive (1999/31).
The transport of waste is included in the definition of ‘waste management’ in the WFD. Article 15 of the WFD requires member states to adopt national rules ensuring that undertakings that collect or transport waste on a professional basis shall deliver waste in a manner respecting the conditions of Article 13 on the protection of human health and the environment.
There are specific rules on the shipment of waste, set out in the Waste Shipments Regulation (1013/2006). This regulation applies to shipments of waste within the European Union, as well as into and out of the union. It implements into EU law the provisions of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their disposal (1989) and the Decision of the Organisation for Economic Cooperation and Development on the Control of Transboundary Movements of Waste Destined for Recovery Operations.
The disposal of waste is considered to be a ‘waste management’ operation under the WFD. ‘Disposal’ is defined in Article 3 to mean “any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a non-exhaustive list of disposal operations”. Member states are required to ensure that waste disposal operations meet the provisions of Article 13 on the protection of human health and the environment (see Article 12).
The WFD also establishes an obligation for operations recovering or disposing of waste to have a permit or to be registered (Article 23). (Member states can allow exemptions from the requirement for a permit for the disposal of non-hazardous waste at the place of production and for waste recovery operations.) In accordance with the ‘polluter pays’ principle, the costs of disposing of waste must be borne by the holder of waste, by previous holders or by the producers of the product from which the waste came.
The following legislation also governs the disposal of waste:
- the Industrial Emissions Directive (2010/75/EU) which contains provisions regulating waste incineration plants; and
- the Landfill Directive (1999/31/EC).
The WFD defines the concepts of ‘recycling’ and ‘reuse’ in Article 3. In some situations, waste will cease to be waste where it has undergone recycling operations and also complies with the end-of-waste criteria established in Article 6.
Article 11 requires member states to promote reuse and recycling. It establishes recycling targets for the member states and requires separate collection of at least paper, metal, plastic and glass.
What is the extent of a waste producer’s liability after transferral of waste (eg, to a waste disposal agent)?
In order to determine a waste producer’s liability fully, it is necessary to check national law. Article 15 of the WFD establishes rules at EU level on the responsibility for waste management (which includes the disposal of waste). In particular:
- original waste producers are liable for carrying out the treatment of waste or having treatment handled by a dealer;
- as a general rule, when waste is transferred from the original producer or holder to a dealer or undertaking carrying out waste treatment operations for preliminary treatment, the responsibility for carrying out a complete recovery or disposal operation shall not be discharged; and
- EU member states may adopt national legislation specifying the conditions of responsibility and decide in which cases the original producer is to retain responsibility for the whole treatment chain or in which cases the responsibility of the producer and the holder can be shared or delegated among the actors of the treatment chain.
The Waste Shipments Regulation establishes specific rules on liability for shipments of waste.
Are waste producers bound by any waste recovery obligations?
Some obligations are set out at EU level, but member states have a certain discretion in how they implement the rules.
At EU level, Article 14 of the WFD states that in accordance with the ‘polluter pays’ principle, the costs of waste management (which include recovery and disposal) shall be borne by the original waste producer or by the current or previous waste holders. Member states may decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share these costs.
Article 8 of the WFD allows member states to adopt national legislation establishing extended producer responsibility for natural or legal persons that professionally develop, manufacture, process, treat, sell or import products, to include – for example – obligations to accept returned products.
The following rules establish producer responsibility regimes for specific materials:
- Directive 2012/19/EU on waste electrical and electronic equipment;
- Directive 2006/66 on batteries and accumulators and waste batteries and accumulators;
- Directive 2000/53 on end-of-life vehicles; and
- Directive 94/62 on packaging and packaging waste, as amended.
Waste disposal agents
How are the business activities of waste disposal agents/landfill operators regulated?
Certain rules are established at EU level, but in general regulation is undertaken at national or regional level.
EU rules provide that undertakings that collect or transport waste on a professional basis, as well as waste dealers and brokers, are subject to a registration requirement under the WFD (Article 26). Any undertaking intending to carry out waste treatment must also obtain a permit from the competent authority (Article 23), subject to certain exemptions (Article 24).
Undertakings that collect or transport waste on a professional basis must deliver the waste in accordance with the requirements of Article 13 on the protection of human health and the environment.
What special rules, regulations and safeguards apply to the handling and disposal of hazardous materials?
The WFD contains rules for the control of hazardous waste (which includes waste that is oxidising, flammable, toxic, ecotoxic, carcinogenic, mutagenic, corrosive or infectious). In particular, hazardous waste cannot be mixed or diluted unless:
- the business has a waste management permit;
- the operation conforms to the best available techniques; and
- there is no increased adverse impact on human health or the environment.
The Waste Shipments Regulation also contains specific rules for the shipment of hazardous waste, which is generally subject to notification procedures with the prior written consent of all relevant authorities of dispatch, transit and destination.
Annex III of the WFD sets out the main characteristics for waste to be classified as ‘hazardous’ and Decision 2000/532/EC establishes the classification system for waste, including hazardous and non-hazardous waste.
Click here to view the full article.