In November, the European Commission adopted three legislative initiatives seeking to implement the aims of the European Green Deal. They include a proposal for a new regulation on shipments of waste.
The need to revise the rules on transboundary shipments of waste has been repeatedly raised in documents evaluating the current legislation, as well as in the EU’s new Circular Economy Action Plan of 11 March 2020. During the public consultations in connection with review of the current Waste Shipment Regulation ((EC) 1013/2006), particular attention was drawn to the ineffectiveness of the current rules implementing a circular economy based on more efficient use of raw materials and treating waste as secondary raw materials.
The current wording of the regulation is seen more as an obstacle to achieving the aims of the circular economy than as an instrument for implementing it. Complex procedures, paper-based workflows, high legal uncertainty, non-uniform interpretation and implementation across various member states, and ineffectiveness at preventing illegal waste shipments make it difficult to achieve high recycling rates and discourage businesses interested in carrying out shipments of waste for the purpose of recycling. Hence the call to simplify the circulation of secondary raw materials within the European Union and to introduce measures to prevent illegal exports of waste out of the EU. The expected changes are at least partly reflected in the draft presented by the Commission.
Waste shipments an instrument to support the circular economy
A careful reading of the proposal reveals a significant systemic change in the approach to waste shipment procedures. The current regulation indicates that its main objective and subject matter is environmental protection. Supervision and control of shipments of waste must be organised and regulated in such a way as to take account of the need to preserve, protect and improve the quality of the environment and human health. And although not expressly stated, the structure of the current regulations means that control of waste shipments is directed almost exclusively at ensuring that they do not cause any negative effects for the environment. Achieving high recovery rates and more efficient and environment-friendly waste management are rather side issues and sometimes just an afterthought. The practice of implementation and application of the regulation in individual member states has sometimes clearly revealed this line of interpretation. One reason for this state of affairs is that the current regulation was adopted before the concept of the circular economy became widespread in EU policies.
The proposed regulation recognises that at the EU level, provisions are needed to protect the environment and human health from the harmful effects of waste shipments, but at the same time, to promote the environmentally sound management of the generated waste, in line with the hierarchy expressed in the Waste Framework Directive (2008/98/EC). According to the waste treatment hierarchy, the priority is to prevent waste generation, followed by preparation for reuse, recycling, other recovery methods and, finally, as the least desirable waste management method, disposal. The new rules are intended to reduce the impact of the use of raw materials and encourage their more efficient and economical use. As a result, international shipments of waste should be facilitated and improved, as long as this is done with a view to preparing for reuse or recycling. The draft new regulation recognises that for a circular economy, it is necessary to create a properly functioning market in secondary raw materials processed in modern facilities, and this is to be achieved by user-friendly regulations on waste shipments.
However, the regulation currently in place is not at all opposed to such purposes, as often seems to be overlooked. Rather, it is the practice of its application that limits the implementation of the concept of a circular economy. The current regulation deals very broadly with protection of the environment and human health from the adverse effects of waste, and defines the concept of environmentally sound management of waste. After all, waste shipments and waste treatment are very much in line with environmental protection objectives.
Restriction of waste exports from the European Union
At the EU level, the new measures implement the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal of 22 March 1989, also taking into consideration the amendment banning the export of certain hazardous wastes outside EU and OECD countries. The draft provisions, like those currently in force, also take into account the OECD decision on the control of transboundary movements of wastes destined for recovery operations.
The draft regulation further restricts the possibility of exporting wastes outside the European Union. As it is assumed that the solution to the problem of waste should not be to dispose of it from EU territory, and, moreover, a significant part of the waste may be successfully used in a circular economy, export of wastes is sometimes undesirable.
In the current legal state, the disposal of waste from the “green” list for recovery in countries to which the OECD decision does not apply is in principle allowed. The draft regulation would introduce a general ban on exports of waste from the European Union to such countries. An exception would be made for exports of waste to states included in a list established for this purpose. The conditions for entry will be the notification of intention to accept such waste, and:
- Having a comprehensive waste management plan covering the entire country
- Having a legal framework for waste management
- Being a party to multilateral environmental agreements and performing obligations related to their implementation
- Presenting a strategy for enforcement of national legislation on waste management and waste shipments, including control and monitoring measures.
Although shipments of waste from EU member states to states where the OECD decision applies would still be allowed, there are some new developments in this area as well. The Commission is to monitor the level of waste exports from the EU, in particular with a view to preventing serious damage to the environment or human health. If the Commission has doubts whether a state to which waste is shipped is in a position to carry out environmentally sound recovery, it will be able to request information from the authorities of that state on the conditions under which recovery takes place. Further, the Commission could ban the export of waste to that state.
Additionally, the draft regulation assumes that entities exporting waste outside the EU will assume part of the responsibility for correct and sustainable management of the waste. These entities will be required to undergo an independent audit to verify whether the waste processing facility in the state of destination meets the criteria set out in the proposed regulation. Audits would be repeated at least once every three years from the start of exports, and each time credible information is received that the operator of the facility is no longer complying with the conditions set forth in the provisions.
Prevention of illegal shipments of waste
In the course of public consultations, most of the commenters raised the problem of illegal shipments of waste. The regulation currently in force provides for the possibility for member states to carry out inspections on shipments of waste or related recovery or disposal. The checks may take place at the place of origin or destination, at the EU borders, and during transit through EU territory.
The European Commission proposes to clarify the relatively laconic regulations, among other things by defining a procedure for verifying whether a transported object or substance is waste, if substances or objects that have not been classified as waste by the participants in such trade are transported. The body will be able to request the person organising the transport to produce documents proving the origin and destination of the substance or object and a document certifying that it does not consist of waste. If evidence is not provided within the time limit, the body may find that the waste has been shipped illegally. Therefore, although addressing shipments of waste, the proposed provisions may be of significant for trade in other goods.
Also, the new regulation would oblige member states to take measures to combat illegal shipments of waste. The member states would be required to establish and regularly update inspection plans, drawn for example from information on planned activities and the resources allocated for their implementation.
Currently, the member states are required to lay down the rules on sanctions for infringement of the regulation and to undertake all measures necessary to ensure that they are implemented. The sanctions must be effective, proportionate and dissuasive.
The draft imposes an obligation on the member states to take into account additional criteria to determine the nature and amount of the fine. These criteria include the type, nature and duration of the infringement, but also the culpability and financial situation of the infringer, the environmental damage caused, previous infringements, and the economic benefit derived from the infringement. The proposed regulations assume that the catalogue of sanctions will include not only fines, but also forfeiture of benefits, suspension or withdrawal of waste management permits, and exclusion from public procurement.
Clarification of the regulation on pre-consented authorisations
Another institution affected by the proposed amendments is permits issued to “pre-consented recovery facilities.” So far, this mechanism has not been widely used in most of the member states, mainly due to the rudimentary regulation, the lack of uniform criteria for issuing such permits, and the unclear role of the permits themselves.
In its draft of the new regulation, the Commission proposes to clarify these provisions and to facilitate shipments of waste to such facilities under a fast-track procedure, whereby individual decisions by the authorities are to be taken within very short time limits. Among other things, the new regulation indicates the entities entitled to submit an application for a preliminary permit and its mandatory elements. However, additional requirements for operators of facilities and those interested in obtaining pre-consent may make it more difficult to obtain. Also, the draft provides for a time limit for the authority to consider the application (45 days) and the period for which the permit will be issued (seven years). A relatively important change is the extension of the validity of the consent for shipment of wastes to a facility for which pre-consent has been issued to three years.
Strengthened international cooperation
So far, the regulation has not generated much information on international cooperation in its implementation. The draft new regulation requires each member state to identify permanent staff members responsible for cooperation between them. They will form part of the Waste Shipment Enforcement Group proposed by the Commission. The remaining members will be a representative of the Commission in the capacity of chairperson and, optionally, further representatives of the competent authorities of each state.
The main task of the group will be to coordinate the cooperation between member states in preventing and detecting illegal shipments of waste. It would meet at least twice a year, and the work results are to be reported to the committee assisting the Commission in carrying out duties under the Waste Framework Directive. As the regulation concerns cross-border shipments, efforts to enhance international cooperation are necessary and should be assessed positively.
The proposal also contains other changes, largely of a practical nature. Among other things, it modifies the length and method of calculating the time limits provided for in the regulation. For example, the 30-day period necessary e.g. for actual start of the shipment of wastes for recovery would run from the date of notification and not, as now, from the date of transmission of the acknowledgement of receipt by the competent authority of destination. In addition, the competent authorities, the notifier, the recipient and the operator of the facility receiving the waste would be required to retain documents relating to the shipment for five years (now three years).
Digitalisation of these procedures is also a significant change. The current practice is to submit most documents relating to international waste shipments, such as notification of a planned shipment or consent to a notified shipment, in paper form. The proposal includes the rule of exchange of information by electronic means. Documents are to be submitted via the Commission’s central system or systems set up optionally by member states and linked with the central system.
The purpose of the new waste shipment regulation is to create a stable market for secondary raw materials in the European Union. This presents a clear systemic change in the approach to this issue in the spirit of the concept of the circular economy. The proposal attempts to reconcile seemingly contradictory goals. On one hand, it is intended to facilitate the movement of waste for recovery, thus making the circular economy a reality. On the other hand, by introducing numerous restrictions, control instruments and strict enforcement of the law, it aims to eliminate the problem of illegal shipments of waste. Many solutions will probably be shaped by practice, which will have to wait. Currently, the draft is pending before the European Parliament and the Council of the European Union, and, if passed, the date when it would enter into force is not yet known.
Agata Matysiak, Dr Dominik Wałkowski, adwokat, Environment practice, Wardyński & Partners