A European Legal Framework for Enhanced Waste Management

Transcription

1 A European Legal Framework for Enhanced Waste Management John WANTE 1,a1 1 Service Policy Innovation, Department Waste and Materials Management, Flemish Public Waste Agency (OVAM), 2800 Mechelen, Belgium john.wante@ovam.be Abstract Enhanced Waste Management is seen as an essential part of the broader concept of Sustainable Materials Management (SMM). This paper starts with an overview of the basic features of Sustainable Materials Management. Subsequently it goes into more detail in how the new Waste Framework Directive and the existing European legal framework for waste and materials management in general accommodate for SMM and what are the elements that are still missing. The paper concludes that European waste policies are moving towards material policies in which waste is seen as a resource for a new application rather than as something that is to be discarded in an environmentally sound way. However, there is still a long way to go if we want to develop a fully integrated European SMM policy. Introduction Enhanced Waste Management (EWM) and Enhanced Landfill Mining (ELFM) are new developments. This means that there is still uncertainty about the conditions that need to be fulfilled for these activities to be environmentally beneficial, economically feasible and legally compliant. In this paper we will investigate how existing European waste legislation is adapted to an Enhanced Waste Management and an Enhanced Landfill Mining approach. To what degree is the existing framework a stimulus for EWM or ELFM? And what is still missing? For that reason we will first try to sketch some of the principles that should lie at the basis of legal provisions for ELFM, EWM or SMM in general. We will then compare these with the basic principles of the European waste legislation, in particular the Waste Framework Directive (WFD), as this directive lays down the basis of European waste policy. We will also look at the wider picture of existing waste and material legislation, as this is relevant if we want to evolve to EWM or SMM. Finally, we will suggest further improvements to European measures that can put us on track to more EWM and SMM. Basic Features of SMM, EWM and ELFM SMM is quite new as an approach in policymaking and there are no clear guidelines available that show us what a legal framework should look like to be SMM compliant. An OECD survey 1 showed that national authorities have little experience with implementing an SMM approach, although many of them acknowledge the importance of it. At best, existing policies are in a transition towards SMM. What are the main features of SMM? The term Sustainable Materials Management is in itself already hinting at some basic features. Materials have not been defined in European legislation. The OECD describes materials as all those extracted or derived from natural resources, which may be either inorganic or organic substances, at all points throughout their life-cycles. 2 In the draft Flemish decree on the sustainable management of material cycles and waste (the successor of the current waste decree) materials have been defined as any a1 Paper presented by Luc Umans (OVAM) 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 1

2 substance that is mined, recovered, harvested, produced, distributed, used or discarded or any object that is derived thereof. In both cases materials have been defined in a very broad way that overarches the concept of waste. Actually, a material can be anything from a primary raw material, an object in use, waste, to a recycled secondary material. In an SMM approach these are all regarded as materials sitting in a different phase of a common life cycle or material cycle. This is one important element of SMM: it starts from a life cycle perspective. From an end-of-pipe approach where the central question is how we can get rid of waste in an environmentally sound way, SMM moves policies into an integrated approach where the main question is how we can make the best possible use of finite materials for delivering the services we need. Waste in an SMM approach is no longer something to get rid of, but is a resource for a new application. The word management indicates that an active intervention is needed. Indeed, the way materials are handled in one phase of the life cycle determines the way they can be handled in the following phase. For instance, the design of products will have an effect on the environmental impact during the production and consumption phase and will determine the recyclability of a product. The separate collection of preconsumer and postconsumer waste will for a large part determine the possible waste treatment options. The quality of the waste treatment will determine the reuse of the recycled waste in a new application. An SMM policy takes into account the different phases of a life cycle and treats them as inextricably linked with each other. All materials in a cycle need to be managed so as to obtain the optimum result as seen over the complete life cycle. The word sustainable has not been defined. In its most elementary form, sustainable management means that the material cycles are managed in such a way that they can render the services we need for a high quality of life for ages to come. This means that material cycles have evolved into a steady state. Renewable material stocks that get lost are replenished in time so that they do not get depleted. Non renewable material stocks are kept in closed cycles so that there is no need for replenishment. The environmental impact of material use, for instance on climate change or on biodiversity, is kept so low that there is no loss of biodiversity or significant climate change. This means that SMM is not only about closing the loop, but also about limiting the flow of materials through those loops to a level that is sustainable. A study performed for the OECD 3 identified the following four key principles for SMM: preserve natural capital; design and manage materials, products and processes for safety and sustainability from a life cycle perspective; use the full suite of policy instruments to stimulate and reinforce sustainable economic, environmental and social outcomes; and engage all parts of society to take active, ethically based responsibility for achieving sustainable outcomes. The first key principle reflects the need for environmental sustainability. The second principle stresses the need for a life cycle approach aimed at achieving this sustainability. The third and fourth principles stress the need for actively managing material streams. This management is a shared responsibility by governments (that need to deploy a diverse range of policy instruments) and several other actors in society. There is a strong connection between energy production and consumption on the one hand and the use of materials on the other hand. The processing, transportation and use of materials require energy. Materials can also be used as a source of energy. The use of certain materials, for instance used for insulation, can realise energy savings. In an SMM approach we strive for making the best possible use of materials seen over their complete 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 2

3 life cycle. This is not an easy exercise as many factors influence the best choice. SMM touches upon energy policies as it goes down to the question how materials management influences the energy that is required to keep an economy running. Globalisation, the steep growth of new economies like those in India and China and growing consumption levels in all industrialised countries are leading to more concerns about future availability of certain resources. The Raw Materials Initiative 4 of the European Commission addresses this problem. The strategy consists of three pillars: ensure access to raw materials from international markets; set the right framework conditions within the EU in order to foster sustainable supply; boost overall resource efficiency and promote recycling to reduce the EU s consumption of primary raw materials and decrease the relative import dependence. This shows that SMM is not only an environmental issue. It goes down to the heart of economic processes, to the question how to create wealth for 7 billion people with material cycles that inevitably have a limited capacity to render services for creating this wealth. This is another feature that makes SMM clearly distinct from the more classical environmental policies: SMM stands on the crossroads of ecology and economy. Finally, there is an important social aspect connected with SMM. Materials are processed and produced under a wide range of different labour conditions, their handling provides a livelihood to people all over the world and their use has positive and negative effects on people s quality of life. Similarly to environmental impacts, a decision made in one phase of the life cycle may bring about large social impacts in another phase of the life cycle on the other side of our planet. The UNEP has started work on this issue and produced guidelines 5 for social life cycle assessments. Hence, SMM is also standing on the crossroads of ecology and social issues. EWM is an essential part of SMM. It focuses on the waste phase of the life cycle. The difference with classical waste management is that waste is seen as a material that needs to be prepared for a new application, instead of something that is simply to be discarded and treated in an environmentally sound way. Transposing above SMM principles into the field of EWM, may bring us to the following non exhaustive list of elements that characterise a transition from waste management to Enhanced Waste Management: non-renewable waste materials are kept in closed loops as much as possible; only a 100% recycling rate can guarantee sustainability; this means their quality is not downcycled as this will lead to their final disposal; this will require extensive efforts in separate collection and improving recycling techniques; this will also require products to be designed in such a way that at least their non-renewable parts are fully recyclable; renewable waste materials are recycled to such a degree that the environmental impact that is caused by recycling them is lower than the environmental impact caused by renewing them; the cooperation between different actors in a material cycle intensifies; on the one hand producers learn to design their products and their distribution and logistical systems not only with the aim to provide an optimum service for the end-user but also with the aim to keep the environmental impact of the complete material cycle as low as possible; on the other hand waste handlers learn to see themselves as raw material suppliers; some are even transforming themselves from waste problem solvers into life cycle managers that assist producers in developing low impact material cycles; 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 3

4 the distinction between waste policy, energy policy, product policy and other material related policies is becoming more and more vague; waste/non-waste discussions are becoming irrelevant as they are all part of the same material cycle; different policy frameworks for primary materials, products, waste materials and their management are merging into one comprehensive framework for material cycles as a whole; ELFM is one specific element of EWM. Landfills are transformed into temporary stocks of discarded materials, waiting to be recycled as soon as the technology and their quantity allows their upgrade to new raw materials under economically viable conditions. Existing European waste legislation and SMM, EWM and ELFM The WFD 6 forms the legal basis of European waste legislation. The original Directive dates from 1975 and was thoroughly revised in This revision served several purposes. First of all, the revision was part of the process of better regulation in which existing environmental legislation is screened on potential simplification and clarification, without lowering the level of environmental protection. The new Directive clarifies frequently used concepts in waste policy, such as recovery and disposal. Secondly, the WFD translates the objectives of the thematic strategy on waste prevention and recycling 7, such as evolving towards a recycling society, into legal terms. Thirdly, the WFD tries to contribute to levelling the playing field in the EU. How are above SMM features and principles accommodated for in the WFD? Waste hierarchy and life cycle thinking The waste hierarchy, laid down in the WFD, has been turned into a five step hierarchy (prevention, preparation for reuse, recycling, other recovery and finally disposal) and has become a legal requirement for all Member States to base their waste policies on. The terminology used in the hierarchy has been defined. The definition for recovery no longer uses the outdated annex with R codes as the main reference. There is now a stand alone definition that takes the replacement of primary materials by waste as the main criterion to judge whether a waste treatment is to be considered as recovery. This was taken from former jurisprudence of the European Court of Justice. Remarkably, reference is made to the primary result and not to the primary objective of the treatment, in contrast to former court cases. This will make it more objective to judge whether a treatment is to be regarded as recovery, as the intention no longer counts. However, there is still some room for interpretation as disposal has been defined as any waste treatment that is not recovery, even if there is a replacement of primary materials, be it as a secondary consequence. The efficiency by which the replacement is taking place will determine the difference between recovery and disposal. Recycling has been defined as any recovery operation by which waste materials are reprocessed into products, materials or substances whether for the original or other purposes. It includes the reprocessing of organic material but does not include energy recovery and the reprocessing into materials that are to be used as fuels or for backfilling operations. So recycling is any waste treatment that keeps waste in a closed cycle. Energy recovery or the transformation of waste into fuels (even if they have lost their waste status) are not considered as recycling. The same applies to waste treatments that are similar to landfilling, such as backfill operations in old mines. In this way, recycling is clearly distinguished from the two lower steps of the hierarchy. The hierarchy is not to be applied as a dogma. We always have to strive for the best environmental outcome, seen from a life cycle perspective, also taking into account economic and social aspects. This means that we have to deviate from the hierarchy if it is demonstrated that this is actually better for the environment based on life cycle thinking. The 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 4

5 WFD does not specify how this life cycle thinking needs to be implemented. It can mean that if we want to compare recycling to energy recovery, we do not only have to look at the environmental impacts that occur during the recycling or incineration itself, but also have to take into account the impacts that are avoided by replacing primary materials by recycled materials or fuels by waste. It can also mean that we have to examine whether mixed waste can be separated at source so as to avoid that we end up with a waste stream that can only be incinerated. One can go further and look at possibilities to design products in such a way that they are better reusable or recyclable and look at logistical systems that guarantee that the product is actually returned for reuse or recycling once it has become waste. The WFD translates the general principles of the hierarchy into concrete recycling targets for household and construction and demolition waste and a recommendation for the separate collection of biowaste. Working with the hierarchy and with life cycle thinking will be a learning process. Anyone who has tried to perform a life cycle thinking exercise, knows how difficult it is to mark the system barriers, to formulate the right questions and presumptions and to gather the necessary data. Engaging the right stakeholders to evaluate what are the best options and organising consultation with different parties, is another difficult task. However, it is a process policy makers will have to go through if they want to formulate a more integrated, efficient and effective, scientifically underpinned policy that is also socially accepted. The introduction of the five step hierarchy as a legal requirement in combination with a life cycle approach and a stricter definition for recycling will lead to more attention for closing material cycles, although the Directive is vague in how life cycle thinking should be implemented and considerable room is left to national authorities to make these concepts work in practice. Unfortunately, the WFD fails in transcending waste policy by limiting the hierarchy to waste streams, although the same kind of reasoning may be applied to materials that are non-waste, for instance in cases where a primary material can be used for different applications (both energy and non-energy applications) and a choice has to be made for the option with the lowest life cycle impact. Connecting the world of waste with the world of non-waste The waste definition in the WFD remains unchanged as any substance or object that the holder discards, intends to discard or is obliged to discard. The waste definition is quite subjective because it refers to the intention of the holder. In the past, the waste definition has led to a lot of different interpretations in particular cases. The new WFD has tried to clarify the distinction between waste and non-waste by devoting more attention to end of waste and by-products and to delineating which materials fall under the scope of the Directive. There is an article that clarifies when a waste ceases to be waste. End of waste criteria will be laid down in a Technical Committee and implemented via regulation. The WFD explicitly foresees the possibility for Member States to lay down end of waste criteria on a case by case basis for those waste streams for which no European end of waste criteria exist. The attention for European end of waste criteria acknowledges that waste can be turned into a resource and will bring us closer to markets for recycled materials with common European standards. However, there is no mechanism that guarantees that primary materials will be treated in the same way as secondary materials. End of waste criteria may be stricter or less strict than criteria for products made of primary materials, even for materials that have a comparable chemical composition or technical characteristics. For instance, the WFD does not exclude that materials can be classified as by-products although the same material would not fulfil end of waste criteria. 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 5

6 REACH is an important step towards more SMM as it is improving the information on safety and environmental characteristics of materials throughout the chain. However, when REACH was designed the use of recycled materials was insufficiently taken into account. The result is that producers/suppliers of recycled materials have to follow procedures that were designed for primary materials and that are not always practicable for end of waste materials. We should gradually work towards one regulatory framework for waste and non-waste materials. In a recycling society the difference between waste and non-waste becomes irrelevant and so is the difference between waste policies and product policies. What really matters is that at all stages of the life cycle environmental protection is guaranteed: we need appropriate standards controlling emissions in every phase of the life cycle and quality standards that materials need to fulfil when they move up to the next phase in the life cycle. Prevention programs Member States need to lay down prevention programs that contain targets and benchmarks and that have to contribute to more resource efficiency, with the ultimate aim to decouple environmental impact of waste generation and treatment from economic growth. An annex to the Directive describes examples of measures Member States need to consider. It consists of a wide range of measures, such as communication campaigns, green public procurement, waste prevention requirements in environmental permits and market based instruments for steering consumer behaviour. The obligation for laying down prevention programs will urge Member States to go beyond classical waste treatment policies and put resource efficiency higher on the agenda. However, the discussions we had between the Council and the European Parliament on the introduction of quantifiable waste prevention targets shows how difficult it is to reach an agreement on putting an absolute cap on the amount of materials that are wasted. The lack of targets on resource use in general shows the difficulties not only in finding the right scientifically underpinned targets, but also in finding political support for them. Extended Producer Responsibility and Polluter Pays Principle The WFD lays down Extended Producer Responsibility (EPR) as a general policy instrument. It describes the measures that can be taken under an EPR scheme: acceptance obligations, allocating financial or organisational responsibilities to the original producer or laying down information or ecodesign requirements. In principle, it can be imposed on any product or waste stream. EPR can be imposed not only on the producer of the original product, but also on other actors in the same material chain, such as designers or distributors. The Polluter Pays Principle foresees the possibility to allocate the costs of waste management to different actors in a material chain. EPR schemes and the Polluter Pays Principle stress the need for envisioning the life cycle as a whole and allocating financial and operational responsibilities to the most appropriate actors in the life cycle. However, there is still a wide range of economic instruments that could be used, not only on a national level, but, preferably, on a European scale to stimulate recycling and efficient use of energy and materials, such as taxes or trade in recycling certificates. When introduced on a European scale these measures would be more effective as material streams cross national borders. Unfortunately, there is a lack of political support inside the EU for developing strong economic instruments on a European scale. Materials and energy The WFD contains a formula for calculating the energy efficiency of waste facilities dedicated to the incineration of solid municipal waste. The energy efficiency determines the recovery status of the installation. However, energy efficiency requirements have not been laid down in a uniform manner for primary fuels and waste. For instance, if waste is co-incinerated with 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 6

7 primary fuels other rules apply. The emission standards for incineration facilities differ from those for large combustion plants. There is a lot of political attention for mitigating climate change. Schemes have been set up that stimulate the use of alternatives for fossil fuels. However, the greenhouse gas savings that can be obtained by recycling materials due to avoiding energy use for the processing of primary materials are often forgotten. In some cases there is even a direct competition between recycling and the use as an energy source. We should strive for a more comprehensive material/energy framework that: guarantees the same high level of environmental protection when materials are used as an energy source, regardless whether they are waste or non-waste, primary or secondary fuel; takes into account the emission of greenhouse gas emissions over the complete life cycle and provides the right economic stimuli accordingly. ELFM and the WFD The concept of landfills as temporary storage sites for waste materials (see paper by Jones et al. in this volume), awaiting recovery at some indefinite time in the future, does not exist in the current legal framework. Landfills are considered as final disposal sites. The provisions foreseen in connection with temporary storage are not suitable for ELFM. The WFD considers temporary storage either as preliminary storage of waste for the purposes of transport (as part of the waste collection and transport to a waste treatment facility, for instance temporary storage in a port for waste that is to be shipped overseas) or as preliminary storage prior to recovery (with the code R13), in which case storage should be limited to three years, as stipulated in the Landfill Directive. This means that ELFM sites need to comply with the rules stipulated in the Landfill Directive 8 and that the storage of waste in ELFM sites needs to be considered as disposal, when storage exceeds a period of three years. According to the hierarchy, this means that other options (immediate recycling or incineration with energy recovery) need to get priority over temporary storage. Unless it can be demonstrated that, based on life cycle thinking, it is better to store the waste awaiting better recovery options in the future. It is advisable to set up a special legal framework for temporary landfills that guarantees: a high level of environmental protection during temporary storage; that waste will be recovered as soon as the proper technology is available and that there is no risk for sham recovery. The mining of old existing landfills seems to be less problematic from a legal point of view. Although no specific provisions have been foreseen for this kind of activity, there are no specific barriers in the WFD preventing Member States from doing it. However, it is advisable to develop a specific framework of environmental conditions or BAT that can be used as a basis for granting environmental permits. This is to avoid that ELFM is prohibited because there is no suitable legal framework available or because it has to comply with inappropriate rules. Conclusions EWM and ELFM need to be placed in the broader picture of SMM. In an SMM approach the central policy question is how to design material cycles in such a way that they will render the services we need for a high quality of life not only today, but also for future generations. EWM plays an essential role in this. The new WFD has moved into the direction from an end- 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 7

8 of-pipe approach to a more integrated SMM approach, with its greater attention for closing the loop, life cycle thinking and resource efficiency. However, there is still a lot of work to do in developing a legal framework that brings the world of waste together with the world of nonwaste. 1 st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 8

9 References 1. Working Group on Waste Prevention and Recycling, Report of the 2nd Survey on SMM Related Activities in OECD Countries, OECD, ENV/EPOC/WGWPR(2008)3/FINAL, Working Group on Waste Prevention and Recycling, Outcome of the First OECD Workshop on Sustainable Materials Management, OECD, ENV/EPOC/WGWPR/RD(2005)5/FINAL, L. Heine, M. Major, Policy Princples for Sustainable Materials Management, OECD, ENV/EPOC/WGWPR(2009)12, Commission of the European Communities, Communication from the European Commission to the European Parliament and the Council The Raw Materials Initiative Meeting Our Critical Needs for Growth and Jobs in Europe, Brussels, COM(2008) United Nations Environment Programme, Guidelines for Social Life Cycle Assessments of Products, UNEP/SETAC Life Cycle Initiative, Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives, Official Journal of the European Union, L 312/3-30, Commission of the European Communities, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Taking sustainable use of resources forward: A Thematic Strategy on the prevention and recycling of waste, COM(2005)666/F. 7. Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, Official Journal of the European Communities, L 182/1-19, st Int. Symposium on Enhanced Landfill Mining Houthalen-Helchteren 4-6/10/2010 9