New waste rules clarify way forward for EU states

Europe’s waste operators should benefit from clearer and simpler rules, following a major overhaul of waste management legislation. Charlie Dunmore looks at the changes and assesses how they will shape future waste policy
When the European commission proposed a revision of the 1975 EU waste framework directive (WFD) at the end of 2005, its chief aim was to clarify and streamline the rules facing Europe’s waste operators.
In preceding years, despite – or in some cases because of – a string of test cases in the European courts, legal uncertainties continued to surround key concepts including waste recovery and even waste itself.
The commission’s proposal did include new EU recycling standards and an obligation for member states to draw up national waste prevention plans. This was a nod to the “recycling society” vision set out in an accompanying thematic strategy on waste prevention and recycling. Yet the dominant philosophy behind the proposed revision was clearly the commission’s ongoing quest for “better regulation”.
But the final say on the revised legislation would be left to MEPs and member states under the EU’s co-decision-making process.
“This is a framework directive and was never supposed to be a cure for all of Europe’s waste problems”, explains Karolina Fras, the official in the commission’s environment department now responsible for the WFD. “Our aim was to clarify for example the definitions without going too much into specifics. But the parliament decided to use the opportunity to add all sorts of detail to the proposal.”
When the parliament and council finally reached a deal in June 2008, they had indeed added many new elements to the revised directive. Among them were the first EU-wide recycling targets for certain household waste streams, as well as for construction and demolition waste.
Yet despite a final text that went way beyond the commission’s proposal, environmental groups accused MEPs and EU governments of missing an opportunity to create a true recycling society in Europe. By contrast, industry generally welcomed the revision (see boxes p. 22).
So has the revision achieved the commission’s original objective of clarifying and simplifying Europe’s waste rules? And what does the new directive tell us about the future direction of EU waste policy?

Clear and simple rules?
One of the most significant innovations in the revised WFD is the inclusion of a clear hierarchy of waste management operations in EU law. Member states will have to promote, in order of priority: prevention, reuse, recycling, recovery and disposal.
Most stakeholders have welcomed the new hierarchy, despite it being more rigid than the three-step approach first proposed by the commission (prevention and reduction; reuse, recycling and recovery; and disposal).
Governments’ acceptance of the five-step approach was largely due to the inclusion of a flexibility mechanism that allows national authorities to depart from the hierarchy “where this is justified by life-cycle thinking on the overall impacts of the generation and management of such waste”.
But how this flexibility mechanism will work in practice is not clear. Member states could well be forced to defend their “life-cycle thinking” in the European courts if challenged.
One certainty is that waste-to-energy incinerators will qualify as recovery operations if they meet efficiency standards specified in the directive. This will allow EU countries to use incineration to meet recovery targets set in secondary legislation, such as the EU packaging waste directive.
This decision has enraged environmentalists, who argue it will delay the development of recycling facilities, particularly in member states that still landfill much of their waste (see figure 1).
But other stakeholders believe the new hierarchy will give sufficient signals to promote recycling. Ross Bartley, environment manager of international recyclers’ group BIR, describes the hierarchy as “practical and pragmatic” and believes it will “encourage the creation of a recycling society in Europe”.
The push for more recycling will be backed by a requirement for member states to set up separate collection schemes for paper, glass, metal and plastic by 2015, he told ENDS.
Also drawing praise is the updated list of definitions contained in the revised text. The commission’s Karolina Fras says clearer definitions of concepts such as recycling and reuse will increase legal certainty for operators and reduce the need for more rulings from the European Court of Justice.
However, “since the framework directive has a very broad scope, it’s inevitable that there will be borderline cases that end up in the courts”, she warns.
Two concepts the revision defines more clearly are industrial by-products and end-of-waste. The new directive contains articles specifically relating to each of them.
As well as specifying general conditions for defining by-products and end-of-waste, the text establishes a mechanism for setting more detailed criteria for specific substances and waste streams via the EU’s comitology procedure.
“This will help many operators avoid the unnecessary burden of having to apply EU waste rules to these materials and substances,” Ms Fras argues.
But Jacques Hoffenberg of Danish waste management association Waste Denmark points out a possible drawback. “All new elements in the directive will call for jurisprudence, and there won’t be complete legal certainty until the commission has taken the implementing decisions on specific materials through comitology,” he told ENDS.

Recycling targets
During the final negotiation stages between the parliament and EU governments, most attention was focused on whether the revised directive would set EU-wide targets for waste prevention and recycling.
In their first reading MEPs insisted on EU recycling targets of 50 per cent for household waste and 70 per cent for industrial, manufacturing and construction and demolition waste by 2020.
EU governments rejected these, arguing that statistical data for these waste streams, particularly for industrial and manufacturing waste, were insufficient to set binding objectives.
A compromise was reached requiring member states to “take the necessary measures designed to achieve” recycling rates of 50 per cent by weight for paper, metal, plastic and glass from household waste by 2020. By the same date countries will also have to recycle 70 per cent of their construction and demolition waste.
Green groups dismissed the targets as too low, pointing out that most EU states already meet these objectives (see figure 2). “They also exclude too many significant waste streams and will be difficult to enforce,” argues Michael Warhurst of Friends of the Earth.
Jacques Hoffenberg of Waste Denmark admits the “current level of ambition in the targets is not that high”. But adds that meeting them will require a significant effort from some member states and points to a review clause in the directive ensuring the targets will be reassessed in 2014 (see figure 3).
“The debate on whether or not to have community recycling targets is now closed. In 2014 the level of ambition could be raised and new material streams in household waste could be included”.
The controversial EU manufacturing and industrial waste targets rejected by governments will also be reassessed in 2014. “By then the new waste statistics regulation will have provided the necessary data, and I do believe the EU will set targets for manufacturing and industrial waste,” Mr Hoffenberg says. He thinks these will initially focus on waste streams that are the most cost effective to recycle.
“Industry could wait until these targets are adopted to react, but those that act now can gain first-mover advantage by, for example, setting up long-term contracts with recyclers. Those that react afterwards could find themselves coming into a saturated market, facing higher costs and bottlenecks in recycling capacity.”

New focus on prevention
A true novelty of the revised directive is its focus on waste prevention, according to the commission’s Karolina Fras. Despite the rejection of the parliament’s proposed target to stabilise EU waste generation levels in 2012, the commission is obliged to consider setting “waste prevention and decoupling objectives” in 2014. Governments will also have to submit their first national waste prevention plans by about the same date.
“Member states already have a lot of policies in place on recycling, but next to nothing on prevention,” says Ms Fras. “They will have to do a lot of work on the issue between now and 2014, and this will certainly have an impact not only on waste operators but also on industry in general.”
She says the commission will “wait and see” whether it will be feasible to set an EU waste prevention target in 2014 and, if so, “how we can make it palatable to member states”. But Ms Fras believes a target will be set in one form or another, “possibly in terms of resource efficiency targets, for example”.
Mr Hoffenberg agrees the waste prevention principle is now an integral part of the waste framework directive. “Anyone involved in regulatory planning and operations will have to constantly take waste prevention considerations into account.”
But not all actors agree the revised directive contains enough to spur efforts in waste prevention. Audrey Martin of the pro-recycling association of European local governments, ACR+, says: “We don’t think there is enough of a signal for public authorities to get going on prevention. There’s not even a mention of stabilising waste generation, and frankly member states are free to put as little as they want into their waste prevention plans.”

How far will member states go?
Transposition and implementation of the new rules by member states is perhaps the greatest source of uncertainty surrounding the new directive’s impact on the waste sector.
The revised rules are based on article 175 of the EU treaty on environmental protection, which obliges governments to meet all the basic requirements set out in the legislation, but also allows them to go further if they choose.
“The final outcome will largely depend on implementation by member states”, agrees Ms Fras. “If they decide to adopt more detailed regulations on a specific waste stream, for example, we can’t really stop them.”
Mr Hoffenberg agrees this is a possibility, but says he doesn’t expect governments to make drastic alterations during implementation. “After all, every member state supported the compromise deal.”
Nevertheless it remains a possibility and the final shape of the rules operators will have to follow will only emerge in 2011 when the transposition deadline has passed.
In the final reckoning, most observers agree the revised directive will indeed clarify many of the uncertainties contained in its predecessor. Inevitably, though, the inclusion of new requirements and definitions opens the way for the introduction of fresh areas of uncertainty.
Whether or not that happens will largely depend on governments’ implementation of the rules. At a national level, those with a stake in the final outcome will have to actively engage with the relevant authorities. At EU level, the commission will have to monitor the process closely to ensure that clarity and common sense prevail.
What the directive has definitely achieved is to set an improved course for EU waste management policy in the coming decades.
Those who accuse today’s policy makers of not going far enough to address Europe’s waste challenges may have a point. The recycling targets adopted may be too low or too narrow in scope.
But these targets will become stricter with time. They will be supplemented with recycling targets for industrial waste and, ultimately, for waste prevention. Achieving the goal of a “European recycling society” is now only a question of time.

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