WRITTEN QUESTION E-0402/02

by Monica Frassoni (Verts/ALE) to the Commission

(21 February 2002)

Subject: Excavated waste and filling of quarries

Italian law No 443 of 21 December 2001 (recovery of industrial production) prohibits excavated earth from being defined as waste, even if it is contaminated. Article 1 of the law says

that paragraph 3(b) of Article 7 and paragraph 1(fa) of Article 8 of Legislative decree No 22 of 1997 is to be interpreted as meaning that borrow (earth and rock), even from tunnels, does not constitute waste and is therefore excluded from the scope of application of the legislative decree even if it has been contaminated during the production cycle as a result of the excavation, drilling or construction work, provided that the average concentration of contamination in the total mass does not exceed the maximum limits laid down by the legislation in force (paragraph 17)(1). In contrast to earlier waste legislation (decree law 22/1997), all borrow which, despite being contaminated, is to be used for in-filling of pits or quarries, etc., or in any industrial production cycle, basically no longer constitutes waste (and is no longer subject to all the checks and provisions of the waste legislation).

On 29 September 1997 (Note No 6465) the European Commission initiated infringement proceedings against Italy for improperly transposing European waste legislation in decree law 22/1997.

It should be noted that this relaxation of the law in fact results in the immediate termination of all criminal proceedings started anywhere in Italy for the many unauthorised dumps created in recent years by the high-speed train construction sites to dispose of borrow material, frequently contaminated as a result of the construction operations(2).

Can the Commission give an assurance that Community law on waste is being complied with and that excavated earth is again to be regarded as waste?

(1) Article 1 adds that compliance with the limits referred to in paragraph 17 is to be enforced by on-site checks on the excavated material. The maximum acceptable limits are set out in Annex 1, Table 1, Column B, of the Environment Ministry decree No 471 of 25 October 1999, as subsequently amended, except where the use requires a lower limit (paragraph 18); it also states that as far as borrow material referred to in paragraph 17 is concerned, effective use for filling, embankments and grindings also means in different industrial production cycles, including in-filling of worked quarries and transfer to other sites authorised on whatever grounds by the relevant administrative authority, provided that the limits referred to in paragraph 18 are complied with and the transfer is carried out in accordance with the environmental rehabilitation rules for the area concerned (paragraph 19).

(2) This assumption is clearly confirmed by the fact that Law 443/01 expressly added the clause even from tunnels to the earlier version of the legislation reading excavated earth and rock, and at the same time took care to impose verification standards that would encompass even contaminated material from the high-speed train construction site in the exemptions.

Answer given by Mrs Wallström on behalf of the Commission

(2 April 2002)

Council Directive 75/442/EEC of 15 July 1975 on waste(1), as amended by Council Directive 91/156/EEC of 18 March 1991(2), aims to protect human health and environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste. The definition of waste is fixed in Article 1 a) of Directive 75/442/EEC as any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.

Excavated earth is waste for the purposes of the Waste Framework Directive (Directive 75/442/EEC), Article 1a). It falls within the concept of discard. This is so even if the excavated earth is inert and/or (as would be hoped and expected) is to be reused later. It is important to note that excavated earth without proper management does present actual or potential environmental adverse impact in terms of disruption of soil base, potential dangers of mound slides etc.

The Commission, acting in accordance with the procedure laid down in Article 18 of Directive 91/156/EEC, has drawn up a list of wastes belonging to the categories listed in Annex I (European Waste Catalogue (EWC)). Chapter 17 of Commission Decision 2001/118/EC of 16 January 2001, amending Decision 2000/532/EC as regards the list of wastes(3), is entitled: Construction and demolition wastes (including excavated soil from contaminated sites). Soil and stones containing dangerous substances and soil and stones other than those containing dangerous substances are included in this chapter (EWC codes 17 05 03 and 17 05 04).

In 1997, the Commission already challenged Italian legislation which excluded, at Article 8, paragraph 2, letter c, of Decreto Legislativo 5 febbraio 1997 No 22 (first version) transposing waste Community directives, the non hazardous materials derived from digging activity from the scope of application of Italian waste legislation. This exclusion has then been repealed by the next version of the Italian decree.

In the light of the above, the Italian law No 443 of 21 December 2001, which prohibits excavated soil and stones from being defined as waste, even if it is contaminated, could be in breach of the Community waste legislation.

The Commission will take the appropriate steps in order to verify the compliance with Community law in the specific case. Should the Commission identify a breach of Community law, it would not hesitate, as the guardian of the EC Treaty, to take all necessary measures conferred on it by the EC Treaty, including infringement procedures under Article 226 of the EC Treaty, in order to ensure the compliance with relevant Community law.

(1) OJ L 194, 25.7.1975.

(2) OJ L 78, 26.3.1991.

(3) OJ L 47, 16.2.2001.