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Proposed EU Directive on the Management of Waste from the Extractive Industries

ANNEX 1

THE WASTE FRAMEWORK DIRECTIVE

The Waste Framework Directive (75/442/EEC as amended by 91/156/EEC) (‘the WFD’) lays down general provisions and principles for the management²¹ of waste, as defined in Article 1(a) of the Directive. Article 2(1)(b)(ii) of the WFD establishes that waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries will be excluded from the scope of the Directive where they are ‘already covered by other legislation’.

At the time of adoption of the proposal, the Commission was of the view that the term ‘already covered by other legislation’ referred to Community legislation only. The starting position in the Proposal is therefore that waste from the extractive industries is already subject to the general provisions of the WFD, and the current Proposal will provide supplementary provisions.

The UK’s view has been that the term ‘already covered by other legislation’ refers to (a) EU and national legislation already in force prior to 18 March 1991 (the date the amended WFD was adopted); and (b) consolidating or amending legislation which consolidates or amends a legal framework that was in force prior to 19 March 1991 — provided that the changes do not involve any reduction in the level of environmental protection and such legislation provides an effective means of fulfilling the aims of the WFD.

On this basis, the UK has considered that the Town and Country Planning Acts, the Mines and Quarries (Tips) Act and related legislation are ‘other legislation’ for the disposal and recovery of mineral wastes from mining and quarrying. Waste from this sector is therefore excluded from the definition of ‘controlled waste’ (which corresponds to ‘Directive Waste’) by section 75(7)(c) of the Environmental Protection Act 1990 which sets out the main controls on the management of waste.

A request was made to the EUropean Court of Justice (ECJ) for a preliminary ruling on interpretation of Article 2 of the WFD²². The Court issued its judgement on 11 September 2003. In its judgement, the Court stated that "national legislation must be regarded as other legislation within the meaning of Article 2(1)(b) of that directive covering a category of waste mentioned in that provision, if it relates to the management of that waste as such within the meaning of Article 1(d) of Directive 75/442, and if it results in a level of protection of the environment at least equivalent to that aimed at by that directive, whatever the date of its entry into force".

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