----

----

I Information

Council

----

COMMON POSITION (EC) No 23/2005

adopted by the Council on 12 April 2005

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... on the management of waste from extractive industries and amending Directive 2004/35/EC

(2005/C 172 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

This Directive provides for measures, procedures and guidance to prevent or reduce as far as possible any adverse effects on the environment, in particular water, air, soil, fauna and flora and landscape, and any resultant risks to human health, brought about as a result of the management of waste from the extractive industries.

Article 2

Scope

1.   Subject to paragraphs 2 and 3, this Directive covers the management of waste resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries, hereinafter ‘extractive waste’.

2.   The following shall be excluded from the scope of this Directive:

3.   Inert waste and unpolluted soil resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries and waste resulting from the extraction, treatment and storage of peat shall not be subject to Articles 7, 8, 11(1) and (3), 12, 13(5), 14 and 16, unless deposited in a category A waste facility.

The competent authority may reduce or waive the requirements for the deposit of non-hazardous waste generated from the prospecting of mineral resources, except oil and evaporites other than gypsum and anhydrite, as well as for the deposit of unpolluted soil and of waste resulting from the extraction, treatment and storage of peat as long as it is satisfied that the requirements of Article 4 are met.

Member States may reduce or waive the requirements of Articles 11(3), 12(5) and (6), 13(5), 14 and 16 for non-hazardous non-inert waste, unless deposited in a category A waste facility.

4.   Without prejudice to other Community legislation, waste which falls within the scope of this Directive shall not be subject to Directive 1999/31/EC.

Article 3

Definitions

For the purposes of this Directive:

Article 4

General requirements

1.   Member States shall take the necessary measures to ensure that extractive waste is managed without endangering human health and without using processes or methods which could harm the environment, and in particular without risk to water, air, soil and fauna and flora, without causing a nuisance through noise or odours and without adversely affecting the landscape or places of special interest. Member States shall also take the necessary measures to prohibit the abandonment, dumping or uncontrolled depositing of extractive waste.

2.   Member States shall ensure that the operator takes all measures necessary to prevent or reduce as far as possible any adverse effects on the environment and human health brought about as a result of the management of extractive waste. This includes the management of any waste facility, also after its closure, and the prevention of major accidents involving that facility and the limiting of their consequences for the environment and human health.

3.   The measures referred to in paragraph 2 shall be based, inter alia, on the best available techniques, without prescribing the use of any technique or specific technology, but taking into account the technical characteristics of the waste facility, its geographical location and the local environmental conditions.

Article 5

Waste management plan

1.   Member States shall ensure that the operator draws up a waste management plan for the minimisation, treatment, recovery and disposal of extractive waste.

2.   The objectives of the waste management plan shall be:

3.   The waste management plan shall contain at least the following elements:

The waste management plan shall provide sufficient information to enable the competent authority to evaluate the operator's ability to meet the objectives of the waste management plan as set out in paragraph 2 and his obligations under this Directive.

4.   The waste management plan shall be reviewed every five years and/or amended, as appropriate, in the event of substantial changes to the operation of the waste facility or to the waste deposited. Any amendments shall be notified to the competent authority.

5.   Plans produced pursuant to other national or Community legislation and containing the information specified in paragraph 3 may be used where this obviates the unnecessary duplication of information and the repetition of work by the operator, on condition that all requirements under paragraphs 1 to 4 are met.

6.   The competent authority shall approve the waste management plan on the basis of procedures to be decided by the Member States and shall monitor its implementation.

Article 6

Major-accident prevention and information

1.   This Article shall apply to category A waste facilities, save for those waste facilities falling within the scope of Directive 96/82/EC.

2.   Without prejudice to other Community legislation, and in particular Directives 92/91/EEC and 92/104/EEC, Member States shall ensure that major-accident hazards are identified and that the necessary features are incorporated into the design, construction, operation and maintenance, closure and after-closure of the waste facility in order to prevent such accidents and to limit their adverse consequences for human health and/or the environment, including any transboundary impacts.

3.   For the purposes of the requirements under paragraph 2, each operator shall, before the start of operations, draw up a major-accident prevention policy for the management of extractive waste and put into effect a safety management system implementing it, in accordance with the elements set out in section 1 of Annex I, and shall also put into effect an internal emergency plan specifying the measures to be taken on site in the event of an accident.

As part of that policy, the operator shall appoint a safety manager responsible for the implementation and periodic supervision of the major-accident prevention policy.

The competent authority shall draw up an external emergency plan specifying the measures to be taken off-site in the event of an accident. As part of the application for a permit the operator shall provide the competent authority with the information necessary to enable the latter to draw up that plan.

4.   The emergency plans referred to in paragraph 3 shall have the following objectives:

Member States shall ensure that, in the event of a major accident, the operator immediately provides the competent authority with all the information required to help minimise its consequences for human health and to assess and minimise the extent, actual or potential, of the environmental damage.

5.   Member States shall ensure that the public concerned are given early and effective opportunities to participate in the preparation or review of the external emergency plan to be drawn up in accordance with paragraph 3. To that end, the public concerned shall be informed about any such proposal and relevant information shall be made available, including, inter alia, information about the right to participate in the decision-making process and about the competent authority to which comments and questions may be submitted.

Member States shall ensure that the public concerned is entitled to express comments within reasonable time frames and that, in the decision on the external emergency plan, due account is taken of these comments.

6.   Member States shall ensure that information on safety measures and on the action required in the event of an accident, containing at least the elements listed in section 2 of Annex I, is provided, free of charge and as a matter of course, to the public concerned.

That information shall be reviewed every three years and, where necessary, updated.

Article 7

Application and permit

1.   No waste facility shall be allowed to operate without a permit granted by the competent authority. The permit shall contain the elements specified in paragraph 2 of this Article and shall clearly indicate the category of the waste facility in accordance with the criteria referred to in Article 9.

Subject to compliance with all requirements under this Article, any permit produced pursuant to other national or Community legislation may be combined to form a single permit, where such a format obviates the unnecessary duplication of information and the repetition of work by the operator or competent authority. The details specified in paragraph 2 can be covered by one single permit or several permits, provided that all requirements under this Article are complied with.

2.   The application for a permit shall contain at least the following details:

3.   The competent authority shall only grant a permit if it is satisfied that:

4.   Member States shall take the necessary measures to ensure that competent authorities periodically reconsider and, where necessary, update permit conditions:

5.   The information contained in a permit granted under this Article shall be made available to the competent national and Community statistical authorities where requested for statistical purposes. Sensitive information of a purely commercial nature, such as information concerning business relations and cost components and the volume of economic mineral reserves, shall not be made public.

Article 8

Public participation

1.   The public shall be informed, by public notices or other appropriate means, such as electronic media where available, of the following matters early in the procedure for granting a permit or, at the latest, as soon as the information can reasonably be provided:

2.   Member States shall ensure that, within appropriate time frames, the following are made available to the public concerned:

3.   Member States shall take appropriate measures to ensure that the public are informed, in accordance with paragraph 1 of this Article, of an update of permit conditions in accordance with Article 7(4).

4.   The public concerned shall be entitled to express comments and opinions to the competent authority before a decision is taken.

5.   The results of the consultations held pursuant to this Article shall be duly taken into account in the taking of a decision.

6.   When a decision has been taken the competent authority shall, in accordance with the appropriate procedures, inform the public concerned and shall make the following information available to the public concerned:

7.   The detailed arrangements for public participation under this Article shall be determined by the Member States so as to enable the public concerned to prepare and participate effectively.

Article 9

Classification system for waste facilities

For the purposes of this Directive, the competent authorities shall classify a waste facility as category A in accordance with the criteria set out in Annex III.

Article 10

Excavation voids

1.   Member States shall ensure that the operator, when placing extractive waste back into the excavation voids for rehabilitation and construction purposes, whether created through surface or underground extraction, takes appropriate measures in order to:

2.   Directive 1999/31/EC shall continue to apply to the waste other than extractive waste used for filling in excavation voids as appropriate.

Article 11

Construction and management of waste facilities

1.   Member States shall take appropriate measures to ensure that the management of a waste facility is in the hands of a competent person and that technical development and training of staff are provided.

2.   The competent authority shall satisfy itself that, in constructing a new waste facility or modifying an existing waste facility, the operator ensures that:

Records of the monitoring and inspections referred to in point (c) shall be kept, together with permit documentation, in order to ensure the appropriate hand-over of information, particularly in the event of a change of operator.

3.   The operator shall, without undue delay and in any event not later than 48 hours thereafter, notify the competent authority of any events likely to affect the stability of the waste facility and any significant adverse environmental effects revealed by the control and monitoring procedures of the waste facility. The operator shall implement the internal emergency plan, where applicable, and follow any other instruction from the competent authority as to the corrective measures to be taken.

The operator shall bear the costs of the measures to be undertaken.

At a frequency to be determined by the competent authority, and in any event at least once a year, the operator shall report, on the basis of aggregated data, all monitoring results to the competent authorities for the purposes of demonstrating compliance with permit conditions and increasing knowledge of waste and waste facility behaviour. On the basis of this report the competent authority may decide that validation by an independent expert is necessary.

Article 12

Closure and after-closure procedures for waste facilities

1.   Member States shall take measures to ensure compliance with paragraphs 2 to 5.

2.   A waste facility shall only start the closure procedure if one of the following conditions is satisfied:

3.   A waste facility may be considered as finally closed only after the competent authority has, without undue delay, carried out a final on-site inspection, assessed all the reports submitted by the operator, certified that the site has been rehabilitated and communicated to the operator its approval of the closure.

That approval shall not in any way reduce the operator's obligations under the conditions of the permit or otherwise in law.

4.   The operator shall be responsible for the maintenance, monitoring and control in the after-closure phase for as long as may be required by the competent authority, taking into account the nature and duration of the hazard, save where the competent authority decides to take over such tasks from the operator, after a waste facility has been finally closed and without prejudice to any national or Community legislation governing the liability of the waste holder.

5.   When considered necessary by the competent authority following closure of a waste facility, the operator shall, in particular, control the physical and chemical stability of the facility and minimise any negative environmental effect, in particular with respect to surface and groundwater, by ensuring that:

6.   Following closure of a waste facility, the operator shall, without delay, notify the competent authority of any events or developments likely to affect the stability of the waste facility, and any significant adverse environmental effects revealed by the relevant control and monitoring procedures. The operator shall implement the internal emergency plan, where applicable, and follow any other instruction from the competent authority as to the corrective measures to be taken.

The operator shall bear the costs of the measures to be undertaken.

In cases and at a frequency to be determined by the competent authority, the operator shall report, on the basis of aggregated data, all monitoring results to the competent authorities for the purposes of demonstrating compliance with permit conditions and increasing knowledge of waste and waste facility behaviour.

Article 13

Prevention of water status deterioration, air and soil pollution

1.   The competent authority shall satisfy itself that the operator has taken the necessary measures in order to:

2.   The competent authority shall ensure that the operator has taken adequate measures to prevent or reduce dust and gas emissions.

3.   Where, on the basis of an assessment of environmental risks, taking into account, in particular, Directives 76/464/EEC, 80/68/EEC or 2000/60/EC, as applicable, the competent authority has decided that collection and treatment of leachate is not necessary or it has been established that the waste facility poses no potential hazard to soil, groundwater or surface water, the requirements set out in paragraph 1(b) and (c) may be reduced or waived accordingly.

4.   Member States shall make the disposal of extractive waste, whether in solid, slurry or liquid form, into any receiving body of water other than one constructed for the purpose of disposing of extractive waste conditional upon compliance by the operator with the relevant requirements of Directives 76/464/EEC, 80/68/EEC and 2000/60/EC.

5.   In the case of a pond involving the presence of cyanide, the operator shall ensure that the concentration of weak acid dissociable cyanide in the pond is reduced to the lowest possible level using best available techniques and, in any case, at waste facilities which have previously been granted a permit or have already been in operation on ... (24), that the concentration of weak acid dissociable cyanide at the point of discharge of the tailings from the processing plant into the pond does not exceed 50 ppm as from ... (24), 25 ppm as from ... (25), 10 ppm as from ... (26) and 10 ppm at waste facilities which are granted a permit after ... (24).

If the competent authority so requests, the operator shall demonstrate, through a risk assessment that takes site-specific conditions into account, that those concentration limits need not be further lowered.

Article 14

Financial guarantee

1.   The competent authority shall, prior to the commencement of any operations involving the accumulation or deposit of extractive waste in a waste facility, require a financial guarantee (e.g. in the form of a financial deposit, including industry-sponsored mutual guarantee funds) or equivalent, in accordance with procedures to be decided by the Member States, so that:

2.   The calculation of the guarantee referred to in paragraph 1 shall be made on the basis of:

3.   The size of the guarantee shall be appropriately adjusted in line with the rehabilitation work needed to be carried out on the waste facility.

4.   Where the competent authority approves closure in accordance with Article 12(3), it shall provide the operator with a written statement releasing him from the guarantee obligation referred to in paragraph 1 of this Article with the exception of after-closure obligations as referred to in Article 12(4).

Article 15

Environmental liability

The following point shall be added to Annex III to Directive 2004/35/EC as follows:

Article 16

Transboundary effects

1.   Where a Member State in which a waste facility is situated is aware that the operation of a category A waste facility is likely to have significant adverse effects on the environment of, and any resultant risks to human health in, another Member State, or where a Member State likely to be thus affected so requests, the Member State in whose territory the application for a permit pursuant to Article 7 was submitted shall forward the information provided pursuant to that Article to the other Member State at the same time as it makes it available to its own nationals.

Such information shall serve as a basis for any consultation necessary within the context of bilateral relations between the two Member States on a reciprocal and equivalent basis.

2.   Within the framework of their bilateral relations, Member States shall ensure that in the cases referred to in paragraph 1 the applications are also made available for an appropriate period of time to the public concerned of the Member State likely to be affected so that they will have the right to comment on them before the competent authority reaches its decision.

3.   Member States shall ensure that, in the event of an accident involving a waste facility as referred to in paragraph 1 of this Article, information provided by the operator to the competent authority pursuant to Article 6(4) is immediately forwarded to the other Member State in order to help minimise the consequences of the accident for human health and to assess and minimise the extent of the actual or potential environmental damage.

Article 17

Inspections by the competent authority

1.   Prior to the commencement of deposit operations and at regular intervals thereafter, including the after-closure phase, to be decided by the Member State concerned, the competent authority shall inspect any waste facility covered by Article 7 in order to ensure that it complies with the relevant conditions of the permit. An affirmative finding shall in no way reduce the responsibility of the operator under the conditions of the permit.

2.   Member States shall require the operator to keep up-to-date records of all waste management operations and make them available for inspection by the competent authority and to ensure that, in the event of a change of operator during the management of a waste facility, there is an appropriate transfer of relevant up-to-date information and records relating to the waste facility.

Article 18

Obligation to report

1.   At intervals of three years, Member States shall transmit to the Commission a report on the implementation of this Directive. The report shall be drawn up on the basis of a questionnaire or outline to be adopted by the Commission in accordance with the procedure referred to in Article 23(2). The report shall be transmitted to the Commission within nine months of the end of the three-year period covered by it.

The Commission shall publish a report on the implementation of this Directive within nine months of receiving the reports from the Member States.

2.   Every year, Member States shall transmit to the Commission information on events notified by the operators in accordance with Articles 11(3) and 12(6). The Commission shall make this information available to the Member States upon request. Without prejudice to Community law on public access to environmental information, Member States shall in their turn make the information available to members of the public concerned on request.

Article 19

Penalties

The Member States shall lay down rules on penalties for infringement of the provisions of national law adopted pursuant to this Directive and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

Article 20

Inventory of closed waste facilities

Member States shall ensure that an inventory of closed waste facilities, including abandoned waste facilities, located on their territory which cause serious negative environmental impacts or have the potential of becoming in the medium or short term a serious threat to human health or the environment is drawn up and periodically updated. Such an inventory, to be made available to the public, shall be carried out within four years from ... (28), taking into account the methodologies as referred to in Article 21, if available.

Article 21

Exchange of information

1.   The Commission, assisted by the Committee referred to in Article 23, shall ensure that there is an appropriate exchange of technical and scientific information between Member States, with a view to developing methodologies relating to:

2.   Member States shall ensure that the competent authority follows or is informed of developments in best available techniques.

3.   The Commission shall organise an exchange of information between Member States and the organisations concerned on best available techniques, associated monitoring and developments in them. The Commission shall publish the results of the exchange of information.

Article 22

Implementing and amending measures

1.   By ... (29), the Commission shall adopt, in accordance with the procedure referred to in Article 23(2), the provisions necessary for the following, prioritising (e), (f) and (g):

2.   Any subsequent amendments necessary for adapting the Annexes to scientific and technical progress shall be adopted by the Commission in accordance with the procedure referred to in Article 23(2).

Those amendments shall be made with a view to achieving a high level of environmental protection.

Article 23

Committee

1.   The Commission shall be assisted by the Committee established by Article 18 of Directive 75/442/EEC, hereinafter ‘the Committee’.

2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.   The Committee shall adopt its Rules of Procedure.

Article 24

Transitional provision

1.   Member States shall ensure that any waste facility which has been granted a permit or which is already in operation on ... (30) complies with the provisions of this Directive by ... (31), except for those set out in Article 14(1) for which compliance must be ensured by ... (32) and for those set out in Article 13(5) for which compliance must be ensured in accordance with the timetable laid down therein.

2.   Paragraph 1 shall not apply to waste facilities closed by ... (31).

3.   Articles 5 to 11, 12(1), (2), (5) and (6), 13(4) and (5) and 14(1) to (3) shall not apply to those waste facilities that:

Member States shall notify such cases to the Commission by ... (33) and ensure that these facilities are managed in a way that does not prejudice the achievement of the objectives of this Directive and those of any other Community legislation, including Directive 2000/60/EC.

Article 25

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ... (34). They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

Article 26

Entry into force

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

Article 27

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

----

(1)OJ C 80, 30.3.2004, p. 35.

(2)OJ C 109, 30.4.2004, p. 33.

(3)  Opinion of the European Parliament of 31 March 2004 (OJ C 103 E, 29.4.2004, p. 634), Council Common Position of 12 April 2005 and Position of the European Parliament of ... (not yet published in the Official Journal).

(4)OJ L 345, 31.12.2003, p. 97.

(5)OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regulation (EC) No 1882/2003 of the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1).

(6)OJ C 65 E, 14.3.2002, p. 382.

(7)OJ L 242, 10.9.2002, p. 1.

(8)OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regulation (EC) No 1882/2003.

(9)OJ L 182, 16.7.1999, p. 1. Directive as amended by Regulation (EC) No 1882/2003.

(10)  Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (OJ L 10, 14.1.1997, p. 13). Directive as last amended by Regulation (EC) No 1882/2003.

(11)  Council Directive 92/91/EEC of 3 November 1992 concerning the minimum requirements for improving the safety and health protection of workers in the mineral-extracting industries through drilling (11th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ L 348, 28.11.1992, p. 9).

(12)  Council Directive 92/104/EEC of 3 December 1992 on the minimum requirements for improving the safety and health protection of workers in surface and underground mineral-extracting industries (12th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ L 404, 31.12.1992, p. 10).

(13)OJ L 327, 22.12.2000, p. 1. Directive as amended by Decision No 2455/2001/EC (OJ L 331, 15.12.2001, p. 1).

(14)OJ L 143, 30.4.2004, p. 56.

(15)OJ L 184, 17.7.1999, p. 23.

(16)OJ C 321, 31.12.2003, p. 1.

(17)OJ L 377, 31.12.1991, p. 20. Directive as amended by Directive 94/31/EC (OJ L 168, 2.7.1994, p. 28).

(18)  Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (OJ 196, 16.8.1967, p. 1). Directive as last amended by Commission Directive 2004/73/EC (OJ L 152, 30.4.2004, p. 1).

(19)  Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations (OJ L 200, 30.7.1999, p. 1). Directive as last amended by Council Directive 2004/66/EC (OJ L 168, 1.5.2004, p. 35).

(20)  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ L 175, 5.7.1985, p. 40). Directive as last amended by Directive 2003/35/EC of the European Parliament and of the Council (OJ L 156, 25.6.2003, p. 17).

(21)OJ L 41, 14.2.2003, p. 26.

(22)  Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (OJ L 129, 18.5.1976, p. 23). Directive as last amended by Directive 2000/60/EC of the European Parliament and of the Council.

(23)  Council Directive 80/68/EEC of 17 December 1979 on the protection of groundwater against pollution caused by certain dangerous substances (OJ L 20, 26.1.1980, p. 43). Directive as amended by Directive 91/692/EEC (OJ L 377, 31.12.1991, p. 48).

(24)  Date referred to in Article 25(1).

(25)  Five years after the date referred to in Article 25(1).

(26)  Ten years after the date referred to in Article 25(1).

(27)  OJ L ...’.

(28)  Date referred to in Article 25(1).

(29)  Two years after the date of entry into force of this Directive.

(30)  Date referred to in Article 25(1).

(31)  Four years after the date referred to in Article 25(1).

(32)  Six years after the date referred to in Article 25(1).

(33)  Three months after the date referred to in Article 25(1).

(34)  Twenty four months after the date of entry into force of this Directive.

----

ANNEX I

Major-accident prevention policy and information to be communicated to the public concerned

1.   Major-accident prevention policy

The operator's major-accident prevention policy and safety management system should be proportionate to the major-accident hazards presented by the waste facility. For the purpose of implementing them, account shall be taken of the following elements:

2.   Information to be communicated to the public concerned

----

ANNEX II

Waste characterisation

The waste to be deposited in a facility shall be characterised in such a way as to guarantee the long-term physical and chemical stability of the structure of the facility and to prevent major accidents. The waste characterisation shall include, where appropriate and in accordance with the category of the waste facility, the following aspects:

----

(1)  Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste (OJ L 226, 6.9.2000, p. 3). Decision as last amended by Council Decision 2001/573/EC (OJ L 203, 28.7.2001, p. 18).

----

ANNEX III

Criteria for determining the classification of waste facilities

A waste facility shall be classified under category A if:

----

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

II.   OBJECTIVE

The objective of the proposal is to set minimum requirements in order to improve the way in which waste from the extractive industries is managed by specifically addressing environmental and human health risks that may arise from the treatment, recovery and disposal phases of such waste. To that end the proposal contains the following main elements: conditions for operating permits, general obligations covering waste management, the obligation to characterise waste before disposing of it or treating it, measures to ensure the safety of waste management facilities, a requirement to draw up closure plans and an obligation to provide for an appropriate level of financial security.

III.   ANALYSIS OF THE COMMON POSITION

1.   General

The common position is substantially in accordance with the positions taken by the Commission and the Parliament, insofar as it:

2.   European Parliament Amendments

In its plenary vote on 31 March 2004, the European Parliament, at first reading, adopted 74 amendments to the proposal. The common position incorporates (totally, in part or in principle, by means of identical or similar wording, or in spirit) 43 amendments.

IV.   CONCLUSION

Despite the fact that the Council is not able to accept all the amendments adopted by the European Parliament, it considers that the common position coincides to a large extent with the concerns of the Parliament and is in line with the Commission's amended proposal.

----

(1)  Doc. 10143/03 – COM(2003) 319 final.

(2)OJ C 80, 30.3.2004, p. 35.

(3)OJ C 109, 30.4.2004, p. 33.

(4)OJ C 103 E, 29.4.2004, p. 634.

----

----

COMMON POSITION (EC) No 24/2005

adopted by the Council on 18 April 2005

with a view to adopting Directive 2005/.../EC of the European Parliament and of the Council of ... on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (optical radiation) (19th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC)

(2005/C 172 E/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 137(2) thereof,

Having regard to the proposal from the Commission (1), presented after consultation with the Advisory Committee on Safety and Health at Work,

Having regard to the opinion of the European Economic and Social Committee (2),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

HAVE ADOPTED THIS DIRECTIVE:

SECTION I

GENERAL PROVISIONS

Article 1

Aim and scope

1.   This Directive, which is the 19th individual Directive within the meaning of Article 16(l) of Directive 89/391/EEC, lays down minimum requirements for the protection of workers from risks to their health and safety arising or likely to arise from exposure to optical radiation during their work.

2.   This Directive refers to the risk to the health and safety of workers due to adverse effects caused by exposure to optical radiation to the eyes and to the skin.

3.   Directive 89/391/EEC shall apply fully to the whole area referred to in paragraph 1, without prejudice to more stringent and/or more specific provisions contained in this Directive.

Article 2

Definitions

For the purposes of this Directive, the following definitions shall apply:

Article 3

Exposure limit values

1.   The exposure limit values for non-coherent radiation, other than that emitted by natural sources of optical radiation, are as set out in Annex I.

2.   The exposure limit values for laser radiation are as set out in Annex II.

SECTION II

OBLIGATIONS OF EMPLOYERS

Article 4

Determination of exposure and assessment of risks

1.   In carrying out the obligations laid down in Articles 6(3) and 9(1) of Directive 89/391/EEC, the employer, in the case of workers exposed to artificial sources of optical radiation, shall assess and, if necessary, measure and/or calculate the levels of exposure to optical radiation to which workers are likely to be exposed so that the measures needed to restrict exposure to the applicable limits can be identified and put into effect. The methodology applied in assessment, measurement and/or calculations shall follow the standards of the International Electrotechnical Commission (IEC) in respect of laser radiation and the recommendations of the International Commission on Illumination (CIE) and the European Committee for Standardisation (CEN) in respect of non-coherent radiation. In exposure situations which are not covered by these standards and recommendations, and until appropriate EU standards or recommendations become available, assessment, measurement and/or calculations shall be carried out using available national or international science-based guidelines. In both exposure situations, the assessment may take account of data provided by the manufacturers of the equipment when it is covered by relevant Community Directives.

2.   In carrying out the obligations laid down in Articles 6(3) and 9(1) of Directive 89/391/EEC, the employer, in the case of workers exposed to natural sources of optical radiation, shall assess the risks to health and safety so that the measures needed to minimise these risks can be identified and put into effect.

3.   The assessment, measurement and/or calculations referred to in paragraph 1 and the assessment referred to in paragraph 2 shall be planned and carried out by competent services or persons at suitable intervals, taking particular account of the provisions of Articles 7 and 11 of Directive 89/391/EEC concerning the necessary competent services or persons and the consultation and participation of workers. The data obtained from the assessments, including those obtained from the measurement and/or calculations of the level of exposure referred to in paragraph 1, shall be preserved in a suitable form so as to permit consultation at a later stage.

4.   Pursuant to Article 6(3) of Directive 89/391/EEC, the employer shall give particular attention, when carrying out the risk assessment, to the following:

5.   The employer shall be in possession of an assessment of the risk in accordance with Article 9(1)(a) of Directive 89/391/EEC and shall identify which measures must be taken in accordance with Articles 5 and 6 of this Directive. The risk assessment shall be recorded on a suitable medium, according to national law and practice; it may include a justification by the employer that the nature and extent of the risks related to optical radiation make a further, detailed risk assessment unnecessary. The risk assessment shall be updated on a regular basis, particularly if there have been significant changes which could render it out of date, or if the results of health surveillance show it to be necessary.

Article 5

Provisions aimed at avoiding or reducing risks

1.   Taking account of technical progress and of the availability of measures to control the risk at source, the risks arising from exposure to optical radiation shall be eliminated or reduced to a minimum.

The reduction of risks arising from exposure to optical radiation shall be based on the general principles of prevention set out in Directive 89/391/EEC.

2.   Where the risk assessment carried out in accordance with Article 4(1) for workers exposed to artificial sources of optical radiation indicates that the exposure limit values may be exceeded, the employer shall devise and implement an action plan comprising technical and/or organisational measures taking into account in particular:

3.   Where the risk assessment carried out in accordance with Article 4(2) indicates a risk for workers exposed to natural sources of optical radiation, the employer shall devise and implement an action plan comprising technical and/or organisational measures in order to reduce the health and safety risks to a minimum.

4.   On the basis of the risk assessment carried out in accordance with Article 4, workplaces where workers could be exposed to levels of optical radiation from artificial sources exceeding the exposure limit values shall be indicated by appropriate signs in accordance with Council Directive 92/58/EEC of 24 June 1992 on the minimum requirements for the provision of safety and/or health signs at work (9th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (11). The areas in question shall be identified, and access to them limited where this is technically possible and where there is a risk that the exposure limit values could be exceeded.

5.   If, despite the measures taken by the employer to comply with this Directive in respect of artificial sources of optical radiation, the exposure limit values are exceeded, the employer shall take immediate action to reduce exposure below the exposure limit values. The employer shall identify the reasons why the exposure limit values have been exceeded and shall adapt the protection and prevention measures accordingly in order to prevent them being exceeded again. In any event, workers shall not be exposed above the exposure limit values.

6.   Pursuant to Article 15 of Directive 89/391/EEC, the employer shall adapt the measures referred to in this Article to the requirements of workers belonging to particularly sensitive risk groups.

Article 6

Worker information and training

Without prejudice to Articles 10 and 12 of Directive 89/391/EEC, the employer shall ensure that workers who are exposed to risks from optical radiation at work and/or their representatives receive any necessary information and training relating to the outcome of the risk assessment provided for in Article 4 of this Directive, concerning in particular:

Article 7

Consultation and participation of workers

Consultation and participation of workers and/or of their representatives shall take place in accordance with Article 11 of Directive 89/391/EEC on the matters covered by this Directive.

SECTION III

MISCELLANEOUS PROVISIONS

Article 8

Health surveillance

1.   Without prejudice to Article 14 of Directive 89/391/EEC, Member States shall adopt provisions to ensure the appropriate health surveillance of workers where the outcome of the risk assessment provided for in Article 4 of this Directive indicates a significant risk to their health. Those provisions, including the requirements specified for health records and their availability, shall be introduced in accordance with national law and/or practice.

2.   Member States shall establish arrangements to ensure that, for each worker who undergoes health surveillance in accordance with paragraph 1, individual health records are made and kept up to date. Health records shall contain a summary of the results of the health surveillance carried out. They shall be kept in a suitable form so as to permit consultation at a later date, taking into account any confidentiality. Copies of the appropriate records shall be supplied to the competent authority on request, taking into account any confidentiality. Individual workers shall, at their request, have access to their own personal health records.

3.   Where, as a result of health surveillance, a worker is found to have an identifiable disease or adverse health effect which is considered by a doctor or occupational health-care professional to be the result of exposure to optical radiation at work:

Article 9

Penalties

Member States shall provide for adequate penalties to be applicable in the event of infringement of the national legislation adopted pursuant to this Directive. These penalties must be effective, proportionate and dissuasive.

Article 10

Technical amendments

1.   Any modification of the exposure limit values set out in the Annexes shall be adopted by the European Parliament and the Council in accordance with the procedure laid down in Article 137(2) of the Treaty.

2.   Amendments to the Annexes of a strictly technical nature in line with:

shall be adopted in accordance with the procedure laid down in Article 11(2).

Article 11

Committee

1.   The Commission shall be assisted by the Committee referred to in Article 17 of Directive 89/391/EEC.

2.   Where reference is made to this paragraph, Articles 5 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.

The period laid down in Article 5(6) of Decision 1999/468/EC shall be set at three months.

3.   The Committee shall adopt its rules of procedure.

SECTION IV

FINAL PROVISIONS

Article 12

Reports

Every five years Member States shall provide the Commission with a report on the practical implementation of this Directive, indicating the points of view of the social partners.

Every five years the Commission shall inform the European Parliament, the Council, the European Economic and Social Committee and the Advisory Committee on Safety and Health at Work of the content of these reports, of its assessment of developments in the field in question and of any action that may be warranted in the light of new scientific knowledge.

Article 13

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by ... (12). They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the provisions of national law which they adopt or have already adopted in the field covered by this Directive.

Article 14

Entry into force

This Directive shall enter into force on the day of its publication in the Official Journal of the European Union.

Article 15

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

----

(1)OJ C 77, 18.3.1993, p. 12 and OJ C 230, 19.8.1994, p. 3.

(2)OJ C 249, 13.9.1993, p. 28.

(3)  Opinion of the European Parliament of 20 April 1994 (OJ C 128, 9.5.1994, p. 146) confirmed on 16 September 1999 (OJ C 54, 25.2.2000, p. 75), Council Common Position of 18 April 2005 and Position of the European Parliament of ... (not yet published in the Official Journal).

(4)OJ C 260, 15.10.1990, p. 167.

(5)OJ L 177, 6.7.2002, p. 13.

(6)OJ L 42, 15.2.2003, p. 38.

(7)OJ L 159, 30.4.2004, p. 1, as corrected in OJ L 184, 24.5.2004, p. 1.

(8)OJ L 183, 29.6.1989, p. 1. Directive as amended by Regulation (EC) No 1882/2003 of the European Parliament and the Council (OJ L 284, 31.10.2003, p. 1).

(9)OJ L 184, 17.7.1999, p. 23.

(10)OJ C 321, 31.12.2003, p. 1.

(11)OJ L 245, 26.8.1992, p. 23.

(12)  Four years after the entry into force of this Directive.

----

ANNEX I

NON-COHERENT OPTICAL RADIATION

The biophysically relevant exposure values to optical radiation can be determined with the formulae below. The formulae to be used depend on the range of radiation emitted by the source and the results should be compared with the corresponding exposure limit values indicated in table 1.1. More than one exposure value and corresponding exposure limit can be relevant for a given source of optical radiation.

Numbering (a) to (o) refers to corresponding rows of table 1.1.

For the purposes of this Directive, the formulae above can be replaced by the following expressions and the use of discrete values as set out in the following tables:

Notes:

Table 1.1

Exposure limit values for non-coherent optical radiation

Table 1.2

S (λ) [dimensionless], 180 nm to 400 nm

Table 1.3

B (λ), R (λ) [dimensionless], 380 nm to 1 400 nm

----

ANNEX II

LASER OPTICAL RADIATION

The biophysically relevant exposure values to optical radiation can be determined with the formulae below. The formulae to be used depend on the wavelength and duration of radiation emitted by the source and the results should be compared with the corresponding exposure limit values indicated in the tables 2.2 to 2.4. More than one exposure value and corresponding exposure limit can be relevant for a given source of laser optical radiation.

Coefficients used as calculation tools within the tables 2.2 to 2.4 are listed in table 2.5 and corrections for repetitive exposure are listed in table 2.6.

Notes:

Table 2.1

Radiation hazards

Table 2.2

Exposure limit values for laser exposure to the eye — Short exposure duration < 10 s

Table 2.3

Exposure limit values for laser exposure to the eye - Long exposure duration ≥ 10 s

Table 2.4

Exposure limit values for laser exposure of skin

Table 2.5

Applied correction factors and other calculation parameters

Table 2.6

Correction for repetitive exposure

Each of the following three general rules should be applied to all repetitive exposures as occur from repetitively pulsed or scanning laser systems:

----

(1)  If the wavelength of the laser is covered by two limits, then the more restrictive applies.

(2)  When 1 400≤λ<105 nm: aperture diameter = 1 mm for t ≤ 0,3 s and 1,5 t0,375 mm for 0,3 s < t < 10 s; when 105≤λ<106 nm: aperture diameter = 11 mm.

(3)  Due to lack of data at these pulse lengths, ICNIRP recommends the use of the 1 ns irradiance limits.

(4)  The table states values for single laser pulses. In case of multiple laser pulses, then the laser pulse durations of pulses falling within an interval Tmin (listed in table 2.6) must be added up and the resulting time value must be filled in for t in the formula: 5,6 · 103 t0,25

(5)  If the wavelength or another condition of the laser is covered by two limits, then the more restrictive applies.

(6)  For small sources subtending an angle of 1,5 mrad or less, the visible dual limits E from 400 nm to 600 nm reduce to the thermal limits for 10s≤ t<T1 and to photochemical limits for longer times. For T1 and T2 see Table 2.5. The photochemical retinal hazard limit may also be expressed as a time integrated radiance G = 106 CB [J m-2 sr-1] for t > 10s up to t = 10 000 s and L = 100 CB [W m-2 sr-1] for t > 10 000 s. For the measurement of G and L γm must be used as averaging field of view. The official border between visible and infrared is 780 nm as defined by the CIE. The column with wavelength band names is only meant to provide better overview for the user. (The notation G is used by CEN; the notation Lt is used by CIE; the notation LP is used by IEC and CENELEC.)

(7)  For wavelength 1 400 — 105 nm: aperture diameter = 3,5 mm; for wavelength 105 — 106 nm: aperture Diameter = 11 mm

(8)  For measurement of the exposure value the consideration of γ is defined as follows: If α (angular subtense of a source) > γ (limiting cone angle, indicated in brackets in the corresponding column) then the measurement field of view γm should be the given value of γ. (If a larger measurement field of view is used, then the hazard would be overestimated).

If α < γ then the measurement field of view γm must be large enough to fully enclose the source but is otherwise not limited and may be larger than γ.

(9)  If the wavelength or another condition of the laser is covered by two limits, then the more restrictive applies.

----

STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

On 8 February 1993 the Commission submitted to the Council, on the basis of Article 118a of the Treaty establishing the European Community, a proposal for a Council Directive on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents.

The proposal was intended to supplement Directive 89/391/EEC by explaining the way in which some of its provisions were to apply in the specific case of exposure to physical agents.

The European Parliament and the Economic and Social Committee delivered their opinions on 20 April 1994 and 30 June 1993 respectively. The European Parliament confirmed its first reading on 16 September 1999 (1).

The Commission submitted an amended proposal on 8 July 1994.

Following the entry into force of the Amsterdam Treaty, the legal basis changed from ex-Article 118a to Article 137(2), which provides for codecision with the European Parliament and consultation of the Economic and Social Committee and the Committee of the Regions.

The Committee of the Regions stated in a letter dated 13 January 2000 that it would not be submitting an opinion on the proposal for a directive.

The main feature of the proposal was that it combined in a single instrument four types of physical agents (noise, mechanical vibration, optical radiation and electromagnetic fields), each of which would have been the subject of a separate annex.

Given the very different characteristics of the four physical agents, it was decided in 1999 to proceed on the basis of separate Directives. The Directives on vibration, noise and electromagnetic fields have already been adopted. The Council then decided to concentrate on optical radiation, the fourth and last element.

The Council adopted a Common Position on 18 April 2005, in accordance with the procedure laid down in Article 251 of the Treaty.

II.   OBJECTIVE

The proposal for a Directive, following the splitting of the original proposal, aims to help improve protection of the health and safety of workers from risks arising from exposure to optical radiation.

III.   ANALYSIS OF THE COMMON POSITION

1.   General observations

According to Article 137(1) of the Treaty ‘the Community shall support and complement the activities of the Member States in (...) improvement in particular of the working environment to protect workers' health and safety;’ etc.

Article 137(2) of the Treaty states that the Council: ‘may adopt, by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States’.

The Council Common Position is in accordance with the objectives of Article 137(2) of the Treaty in the area covered, since it is designed to introduce minimum requirements to protect the health and safety of workers from the risks arising from exposure to optical radiation.

Furthermore, the Common Position respects the objectives put forward by the Commission and supported by Parliament, despite having a different structure as a result of the original proposal being split. It includes several of the amendments resulting from Parliament's first reading of the Commission's proposal.

2.   Structure and key elements

2.1.   General structure

The general structure of the Common Position, for instance the introduction of exposure limit values, the articles on worker information and training, consultation and participation and the miscellaneous provisions, closely follows the provisions of the Directives on vibration, noise and electromagnetic fields. This is also in line with the general structure of the Commission's amended proposal.

According to Article 1, the Common Position refers to risks to the health and safety of workers due to adverse effects caused by exposure to optical radiation to the eyes and to the skin. No distinction is drawn between long-term and short-term effects, since the scope of the Directive covers both acute and chronic adverse health effects. For example, this reflects the reality that excessive exposure to ultraviolet radiation can cause long term effects, such as skin melanomas.

2.2.   The exposure limit values

The Common Position is based on the introduction of exposure limit values (ELVs) as defined in Article 2 and set out in the tables in the Annexes according to Article 3. These values are essentially based on the recommendations established by the International Commission on non-ionising radiation protection (ICNIRP). In the domains where no values have been drawn up by ICNIRP, values established by the International Electrotechnical Commission (IEC) were used. These scientifically-based guidelines, which are conservatively based, are designed to prevent the acute and long-term effects to the eyes and the skin that can occur at extremely high levels of exposure. The ELVs prescribed in the ICNIRP Guidelines correspond to those developed by other independent scientific advisory bodies that work in this area, notably the American Conference of Governmental Industrial Hygienists (ACGIH), the (UK) National Radiological Protection Board (NRPB) and the Health Council of the Netherlands (Gezondheidsraad).

The ELVs for non-coherent radiation, other than that emitted by natural sources of optical radiation, are as set out in Annex I and the ELVs for laser radiation are as set out in Annex II.

The application of ELVs and engineering controls are not deemed appropriate in the case of exposure to natural sources of optical radiation, and therefore preventive measures, including information and training for workers, are critical in the assessment of risk and the reduction of exposure risks due to natural sources of optical radiation (sun, volcanic activity, natural fires, lightning, etc.).

2.3.   Determination of exposure and assessment of risks

Key elements of the Common Position are the provisions on the determination of exposure and assessment of risks in Article 4. Important elements of the risk assessment to which the employer shall give particular attention are, inter alia, workers belonging to particularly sensitive risk groups and multiple sources of exposure (Article 4(4)).

Article 4(1) stipulates that the employer shall assess and, if necessary, measure and/or calculate the levels of exposure to optical radiation. The article includes instructions concerning the methodology to be applied: if available, the standards and recommendations of IEC, CIE or CEN (2) should be used and, if these are not available, national or international science-based guidelines should be followed. In order to avoid unnecessary repetition, the assessment may take account of data provided by the manufacturers of the equipment where it is covered by a relevant Community Directive.

2.4.   Action to be taken when a risk has been established

The aim of the Common Position is to eliminate or reduce to a minimum risks arising from exposure to optical radiation. Article 5(2) refers to workers exposed to artificial sources of optical radiation and Article 5(3) to workers exposed to natural sources of optical radiation. In both cases, the employer shall devise and implement an action plan comprising technical and/or organisational measures.

In case of artificial sources, Article 5(2) refers, inter alia, to other working methods, the choice of equipment, technical reduction methods or the design and layout of workplaces as particular elements of such an action plan. Following on from the concept of exposure limit values, Article 5(5) clearly states that workers shall not be exposed above the ELVs. If the ELVs are nevertheless exceeded, the employer shall take immediate action to reduce exposure below them, identify the reasons why the ELVs have been exceeded and shall amend the protection and prevention measures in order to prevent any re-occurrence of such an incident.

A further obligation that arises when a risk has been established is the identification, indication by appropriate signs and limitation of access to the areas concerned (Article 5(4)).

Compliance with the exposure limit values in respect of artificial optical sources and a systematic observance of a precautionary approach to natural sources are likely to provide a high level of protection against any possible adverse effects.

2.5.   Main differences from the Commission's amended proposal

The main differences between the Common Position and the Commission's amended proposal concern:

3.   The European Parliament's amendments in first reading

As the Common Position only covers optical radiation, several of the European Parliament's amendments do not fall into this context. Therefore only the following amendments had to be taken into consideration before the Common Position was adopted: 1, 4 to 21, 25, 27, and 34 to 36.

3.1.   European Parliament amendments adopted by the Council

Amendments 1, 5, 9, 14, 16 and 25 were taken up in their entirety, if not word-for-word at least in spirit, in the Common Position.

In addition, Amendment 4 was partly taken up in Article 2(e). However, instead of the text of Amendment 4, the Council preferred to state that compliance with the exposure limit values will ensure that workers are protected against all known adverse health effects.

Amendment 10 is reflected in spirit in the text of Article 5(6), even though the Council did not consider it appropriate to refer to an exclusive aim of preventive measures for particularly sensitive risk groups.

Amendment 12 was accepted in spirit in Article 5(1), where the Common Position now refers to the elimination or reduction to a minimum of the exposure.

Amendment 13 was partly accepted in Article 5(5). The Council saw no need to refer specifically to collective measures, as the employer has to take into account all possible prevention measures when he takes action to reduce exposure below the exposure limit values.

Amendment 17 was accepted in spirit in Article 4(4)(f), which includes a list of a variety of possible indirect effects of exposure to optical radiation.

3.2.   European Parliament's amendments not adopted by the Council

The Council did not consider it advisable to include amendments 6, 7, 8, 11, 15, 18, 19, 20, 21, 27, 34, 35, and 36 in its Common Position, for the following reasons:

IV.   CONCLUSION

The Council considers that, as a whole, the Common Position is in line with the fundamental objectives of the Commission's amended proposal. The Council also considers that, having regard to the preparation of separate texts in respect of each of the four physical agents, it has taken account of the principal objectives pursued by the European Parliament in its amendments to the original Commission proposal.

----

(1)OJ C 54, 25.2.2000, p. 75.

(2)  IEC: International Electrotechnical Commission

CIE: International Commission on Illumination

CEN: European Committee for Standardisation

----