COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the Proposal for a European Parliament and Council Directive on the incineration of waste

1998/0289 (COD)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the

Common Position of the Council on the Proposal for a European Parliament and Council Directive on the incineration of waste

1. Procedure

The Proposal (COM(1998)558 final - 1998/0289(SYN) of 7 October 1998, OJ C 372 of 2 December 1998) was forwarded to the Council on 29 October 1998 in accordance with the co-operation procedure pursuant to Article 130 S §1 of the EC Treaty.

The Economic and Social Committee gave its Opinion on 25 February 1999 (OJ C 116 28 April 1999 p. 40) and on the Proposal amending Council Directive 94/67/EC on 25 April 1998, OJ C 214 of 10 July 1998.

The Committee of the Regions gave its opinion on 10 March 1999 (OJ C 198 14 July 1999 p. 37).

The European Parliament gave its Opinion at the first reading in session on 14 April 1999 (OJ C 219 30 July 1999 p. 249).

The European Parliament confirmed as its first reading under the codecision procedure its vote of 14 April 1999 (OJ C 279 1 October 1999 p. 274).

Following the opinion of the European Parliament and pursuant to Article 250 (2) of the EC Treaty the Commission adopted an Amended Proposal (COM(1999)330 final) on 12 July 1999.

The Council Common Position was adopted on the 25 November 1999.

2. Purpose of the Directive

The proposed Directive will contribute to the protection of human health and the environment as required by Article 174 and Article 152 of the Treaty.

It seeks to integrate the technical progress that has been made in the control of incineration processes and to extend the scope of existing Community measures to combat the pollution of air, water and land caused by the incineration and co-incineration of waste. The aim is to prevent harmful effects on the environment and human health and, where this is not possible, to reduce these effects as far as possible. The key objectives therefore are to:

- reduce substantially emissions of several key pollutants to air and control releases to water and land;

- provide a major contribution to the achievement of the Fifth Environment Action Programme. The target is to reduce emissions of dioxins and furans from known sources by 90% between 1985 and 2005, with a specific objective to introduce standards for dioxin and furan emissions for waste incineration;

- contribute to a reduction in releases of heavy metals. This is in accordance with the Fifth Environment Action Programme's objective of eliminating exceedances of critical loads and levels;

- provide a coherent methodology for the regulation and operation of non-hazardous waste incineration and co-incineration.

The central elements of this future Directive include:

- the extension of the scope of Community legislation to cover the incineration of non-hazardous, non-municipal waste, as well as hazardous wastes excluded from Council Directive 94/67/EC on hazardous waste incineration, in order to fill the existing gap in Community legislation;

- the introduction of emission limits for plants that co-incinerate waste;

- the updating of emission limits applicable to municipal waste incineration plants and the addition of limits on releases to water. This will substantially reduce the environmental impact of incineration and contribute to emission reductions and air quality targets, while preventing a transfer of pollutants to water;

- the requirement that heat generated in the incineration process shall be recovered as far as possible and that residues shall be prevented, reduced or recycled as far as possible.

3. Commission Comments

3.1. General Comments

The Commission accepted totally, partially or in principle eighteen of the fifty amendments proposed by the European Parliament in the first reading. They were incorporated into the amended Proposal COM(1999)330 Final of 12 July 1999. Seventeen of these amendments and six additional amendments of the European Parliament have been incorporated in the common position totally, partially or in principle.

The Commission accepted all amendments which aim at merging the Commission Proposal on incineration of waste with Directive 94/67/EC on the incineration of hazardous waste. The Council followed the lead of both the Parliament and the Commission and also accepted an alignment of the standards for hazardous and non-hazardous waste, which will make the existing standards of Directive 94/67/EC more rigorous.

The Commission considers that the Common Position does not alter the basic technical approach and aims of the Proposal and indeed clarifies and strengthens some aspects.

3.2. Detailed Comments

3.2.1. Parliamentary amendments accepted by the Commission in its amended Proposal and incorporated in full or in part in the common position

Amendments related to the merger

Amendment 7, here the principle was accepted in recital 20, which introduces a statement concerning the merger of the Proposal and Directive 94/67/EC.

Amendment 9 has three elements, the first of which has been incorporated in Article 2 (2) (a). The exclusion of plants only treating waste falling within the scope of Directive 94/67/EC has been removed.

Amendments 15 and 18 introduce specific requirements for hazardous waste. The text has been rearranged in order to clarify the new Articles 4 and 5.

Amendment 19 modifies Article 6 on operating conditions. The proposed higher temperature for some hazardous waste containing chlorine is necessary to destroy organic pollutants.

Amendment 50 is necessary for the merger. It repeals Directive 94/67/EC in Article 18 after the proposed new Directive becomes applicable to existing plants.

Amendment 56 concerns the deletion of Article 7 (5) and (6). These two paragraphs were only necessary when the incineration of hazardous and non-hazardous waste was regulated in two different texts. However, the proposed new paragraph, which adds the 40 % threshold of Directive 94/67/EC for co-incineration plants to the text, was not incorporated in the amended Proposal, but is included in the common position. This 40 % threshold was part of the approach for co-incineration applied in 94/67/EC. It is not justified in the context of the approach used in the Proposal on incineration, since incineration and co-incineration plants in principle have to comply with the same level of requirements.

Amendment 60 which concerns standardisation, has been accepted in principle by the Council and the Commission. The common position repeats in Article 11 (8) the exact wording of Directive 94/67/EC and limits the application to hazardous waste only.

Other amendments

Amendment 1 calls attention to the waste hierarchy and is reflected in recital 8.

Amendment 4 introduces a recital stressing that the protection of health must be given priority over economic considerations. This consideration is partly reflected in recital 5 of the common position.

Amendment 10 broadens the definition of co-incineration plants. The original wording implied that only recovery operations were within the scope of the definition. The amended Proposal of the Commission accepted this definition in total whereas the common position applied a different approach in Article 3 (5) which can be regarded as a compromise. The common position has adjusted the definition of co-incineration plant by adding the element of thermal treatment for the purpose of disposal.

Amendment 19 modifies Article 6 on operating conditions. It adds a figure for the loss on ignition, as an alternative to the TOC-value. Council and Commission accept this alternative but regard 5 % for loss on ignition (instead of 6% as proposed by the Parliament as equivalent to 3 % TOC and therefore changed the figure).

Amendment 24 consists of 4 elements. The first element which was partly accepted changes numbers in paragraph 1 of Article 11 in order to clarify that the obligation of paragraph 17 of Article 11 to inform the competent authorities if emission limit values are exceeded, also addresses water emissions.

Amendment 28 supports the intention of the Commission to cover not only incineration plants but also co-incineration plants in Article 11 (10). The paragraph was reworded in order to clarify the text.

Amendment 33 corrects a typing error in Article 16.

Amendment 35 clarifies the definition of Cwaste in Annex II.

The first part of Amendment 37 includes smaller combustion plants (< 50 MWth) in the tables of Annex II.2 for fixed Cproc values for combustion plants. As a consequence the word "large" is deleted in the heading of Annex II.2. As opposed to the Commission, the Council accepted this extension only for dust and not for NOx and SO2.

The first element of Amendment 56 puts paragraphs 2 and 3 of article 7 in a more logical order and improves the wording. In order to make it even clearer, the amended Proposal as well as the common position add the words "determined according to or" before "set out".

Amendment 59 improves the quality of the drafting of article 9 and is therefore fully reflected in the common position.

3.2.2. Parliamentary amendments accepted by the Commission in the amended Proposal, but not included in the common position

The last element of Amendment 24 is part of the merger, since it carries forward, with similar wording, part of Directive 94/67/EC. It introduces a requirement to carry out periodic measurements under the least favourable conditions in Article 11 (2) (c). Since heavy metals and dioxins are only being measured twice a year, it is necessary that the competent authorities ensure that periodic measurements are only done when operating conditions and waste input are representative for all possible situations. In order to clarify this intention the Commission has reworded the text of the amendment in its amended Proposal.

Amendment 64 proposes to provide for C values for HCl, HF, TOC and NH3. This was accepted by the Commission in its amended Proposal for HCl and HF in Annex II in principle. As a consequence the total emission limit values for these pollutants no longer have to be determined according to the mixing rule.

3.2.3. Changes made by the Council to the amended Proposal

Recitals

The order of some recitals has been changed so as to reflect the order of the corresponding Articles and new recitals have been introduced to reflect new requirements in the text.

Amendment 16 of the Parliament, aiming at ensuring that environmental quality standards are respected, is reflected in recital 13 of the common position. This recital stresses that compliance with Directive 96/61/EC may involve more stringent emission limit values than those envisaged by this Directive.

Article 1 (Objectives)

Minor drafting changes were made to Article 1 in order to clarify the objectives of the proposed legislation. Furthermore, a sentence was added stating that the aims of the Directive shall be met by "also meeting the requirements of Directive 75/442/EEC".

Article 2 (Scope)

In addition to the exemptions from the scope foreseen in the amended Proposal, the common position exempts cork waste as well as vegetable waste from the food industry. The addition of cork waste is fully in line with the intention to exclude waste with similar properties to fossil fuels and which can be regarded as CO2 neutral, such as vegetable waste from forestry as well as wood. The exclusion of vegetable waste from the food processing industry is different. On the one hand this type of waste has similar properties to other vegetable waste, but on the other hand it is very often wet and is of no energetic value. Therefore, the Commission would rather limit this exclusion to wastes with an energetic value which would allow heat recovery.

Article 3 (Definitions)

Most modifications of the definitions aim either at improving the drafting or at clarifying the concepts. The main modifications relate to the following items:

- Definition of "hazardous waste": For certain hazardous wastes the specific requirements of the proposed Directive for hazardous waste shall not apply. This provision reflects the definition of hazardous waste in Directive 94/67/EC. For the sake of clarity and enforceability, the Commission would prefer to keep the definition of "hazardous waste" as proposed in the amended Proposal.

- Definition of mixed municipal waste: Article 7 (4) sets up a specific requirement for the co-incineration of municipal waste. Taking into account the impact of that requirement it was necessary to define the scope of application by introducing a definition of municipal waste.

- Definition of nominal capacity: Annex V distinguishes between incineration plants with a nominal capacity below and above 6 tonnes per hour. As a consequence different emission limit values for nitrogen oxides have to be applied. The new definition clarifies how these values have to be calculated.

Article 4 (Application and permit)

This Article has mainly been modified in order to present obligations in a more structured way. In paragraph 4 (a) the Commission would prefer either to delete the words "if possible" or to clarify the intention of this wording, since it can be interpreted in such a way as to suggest that the application of the EWC is not obligatory.

Article 5 (Delivery and reception of waste)

No relevant changes compared with the amended Proposal.

Article 6 (Operating conditions)

The provisions of Article 6 of the amended Proposal have been strengthened along the following lines:

- In paragraph 2 a sentence has been added which requires that the temperature has to be raised from 850°C to 1.100°C in co-incineration plants using hazardous waste.

- According to the new paragraph 7 infectious clinical waste should be placed directly in the furnace in order to prevent direct handling.

- Paragraph 8 requires the management of a plant to be in the hands of a competent natural person.

Furthermore an exemption clause for existing bark boilers was added in paragraph 4. This addition is justified and therefore supported by the Commission

Article 7 (Air emission limit values)

Apart from the addition of the "40% rule", which is in line with amendment 56 of the European Parliament , this Article remains unchanged in substance.

The provision that Annex V has to be applied if more than 40 % of the heat release comes from hazardous waste, has to be seen in the context of the definition of hazardous waste and the general approach used for co-incineration in Annex II. Since the Common Position no longer distinguishes between hazardous and non-hazardous waste and since the requirements for co-incineration are as demanding as for incineration plants, a special threshold for hazardous waste is not justified.

The Commission would therefore prefer to maintain the approach proposed in the amended Proposal, that is, to define "hazardous waste" in Article 2 without any exemptions and to delete the "40% rule".

Article 8 (Water discharges from the cleaning of exhaust gases)

The structure of Article 8 remains unchanged. However two important clarifications have been introduced.

It has been made clear that Article 8 deals only with waste water from the cleaning of exhaust gases. The intention of the Commission had been to avoid the transfer of pollutants from the flue gas into the waste water. Other waste water flows from incineration and co-incineration plants are irrelevant in the context of the Proposal on the incineration of waste.

One major point of concern has always been the possible dilution of waste water for the purpose of complying with the emission limit values set in Annex IV. The Council, with the support of the Commission, has therefore reworded paragraph 5 and added one sentence to paragraph 4 in order to prevent such misuse of the proposed Directive. These changes reflect amendment 57 of the European Parliament.

In addition to these clarifications, the Council has added the pH value to the list of control parameters which have to be set in the permit, which is in line with one element of amendment 58 of the European Parliament.

Article 9 (Residues)

Minor drafting changes were made to this Article and the requirement to prevent residues from the operation of incineration and co-incineration plants has been deleted. This is justified since the objective of the incineration process is to concentrate the pollutants contained in the waste into the residues.

Article 10 (Control and Monitoring)

In agreement with the Commission a requirement to calibrate automatic measurement systems every three years has been added.

Article 11 (Measurement requirements)

The most important change made in relation to the amended Proposal of the Commission is the introduction of an exemption clause for periodic measurements in paragraph 7. This exemption clause allows competent authorities to authorise a reduction in the frequency of periodic measurements for heavy metals and dioxins and furans, but only under limited and strict conditions. After 2005 such a derogation is only possible if the emissions resulting from incineration or co-incineration are below 50% of the relevant emission limit values of the Proposal, and if specific criteria are developed and available in accordance with the procedure laid down in Article 17. The Commission does not object to this new paragraph as it allows a reduction in the frequency of measurements and costs. Since the Commission controls the development of the criteria for such derogations, no misuse of that provision should be possible.

In paragraph 2 (a) the addition of "provided that emission limit values are set" is superfluous, since an emission limit value for NOx is set for all processes.

In paragraph 10 the introduction of a 97%-compliance value for the emission limit value of CO in Annex V is justifiable from the Commission point of view.

Paragraph 16, together with Annex IV, allows a choice to be made between two emission limit values for suspended solids and two corresponding compliance figures. This constitutes an alignment with the approach and limit values applied in the Urban Waste Water Directive and is acceptable to the Commission.

Article 12 (Access to information and public participation)

The requirements concerning access to information have been reinforced in line with amendment 30 of the European Parliament by obliging for operators of plants burning more than 3 tonnes per hour to provide an annual report on the functioning and monitoring of the plant.

Article 13 (Abnormal operating conditions)

The Council clarified that the 60 hour duration for breakdowns in paragraph 3 apply to those lines in the plant which are linked to one single flue gas cleaning device.

Article 14 (Review clause)

The permit review clause has been moved to Article 4 and the Council has instead created a review clause for the future Directive. According to this clause the Commission shall submit a report to the Council and the European Parliament before the end of 2008. This report will be based on experience of the application of the future Directive and on the progress achieved in emission control techniques.

Article 15 (Reporting)

Minor drafting changes were made to this Article.

Article 16 (Future adaptation of the Directive)

The Council did not accept the Proposal of the Commission that all emission limit values can be adapted with the committee procedure. The Commission understands the Council's argument. However it would prefer to be able to adapt Annex II.3 with comitology. This Annex deals very generally with co-incineration plants other than cement kilns or combustion plants, and the committee procedure would allow the commission to react immediately if new co-incineration sectors become relevant.

Article 17 (Committee)

This paragraph has been adapted to the Council Decision laying down the procedures for the exercise of implementing power conferred on the Commission.

Article 18 (Repeal) and Article 19 (Penalties)

Minor drafting changes were made to these Articles.

Article 20 (Transitional Provisions)

The Council clarified in paragraph 3 that production plants which are in operation and have a permit in accordance with existing Community legislation are to be regarded as existing co-incineration plants if they start co-incinerating waste no later than four years after the Directive comes into force. Compared to the amended Proposal of the Commission this period is reduced by one year, which is acceptable to the Commission.

Article 21 (Implementation), Article 22 (Entry into force) and Article 23 (Addresses)

Only the title of Article 21 has been changed.

Annex I

No changes.

Annex II (Determination of air emission limit values for the co-incineration of waste)

The Council has modified several parts of this Annex in order to clarify its purpose. In substance the approach proposed by the Commission remains unchanged. The Council accepted the same standards for hazardous and non-hazardous waste after 2007. However, some exemptions were introduced for certain existing plants, taking into account the specific problems of some processes. The exemption for wet process kilns is in line with amendment 43 of the European Parliament

The Commission supports this approach, in particular since the exemptions are limited until January 2008 which is an increase of only two years compared to other existing installations.

Annex III (Measurement techniques)

Minor drafting changes were made to this Annex.

Annex IV (Emission limit values for discharges of waste water from the cleaning of exhaust gases)

The sum parameters for heavy metals were changed by the Council in single emission limit values for all relevant heavy metals. The emission limit value for dioxins and furans was tightened and the emission limit value for suspended solids was weakened compared to the Commission Proposal. The Commission supports these changes as well as the proposed exemption clause for suspended solids. The new emission limit value for suspended solids is justified since it is in alignment with the approach applied in the Urban Waste Water Directive.

Annex V (Air emission limit values)

Annex V remained in principle unchanged. However, some exemption clauses for specific pollutants were added for existing plants and as regards the NOx parameters the capacity for small incineration plants was increased from 3 to 6 tonnes per hour with the effect that plants below that threshold need to comply with a more lenient emission limit value. The Commission can accept these limited changes which are technically justified.

Annex VI (Formula to calculate the emission concentration at the standard percentage oxygen concentration)

This new annex was added to clarify the calculation of the emission concentration at the standard percentage oxygen concentration according to Article 11 (8).

4. Conclusion

The changes introduced by the Council in general act to clarify and strengthen the text of the proposed Directive. The Commission therefore supports the Common Position.