2002/909/EC: Commission Decision of 13 November 2002 on Italian rules waiving permitting requirements for undertakings and establishments recovering hazardous waste under Article 3 of Directive 91/689/EEC on hazardous waste (Text with EEA relevance) (notified under document number C(2002) 4392)
Date: 2002-11-13
Institutions: European Commission
Subjects: Italy, dangerous substance, environmental protection, waste management, waste recycling

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II

(Acts whose publication is not obligatory)

COMMISSION

COMMISSION DECISION

of 13 November 2002

on Italian rules waiving permitting requirements for undertakings and establishments recovering
hazardous waste under Article 3 of Directive 91/689/EEC on hazardous waste

(notified under document number C(2002) 4392)

(Only the Italian text is authentic)

(Text with EEA relevance)

(2002/909/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Directive 75/442/EEC of 15 July
1995 on waste (1), as amended by Directive 91/156/EEC (2),

Having regard to Council Directive 91/689/EEC of 12
December 1991 on hazardous waste (3), and in particular
Article 3 thereof,

Whereas:

(1)

(2)

(3)

Article 3(2) and (3) of Directive 91/689/EEC provide the
conditions that must be fulfilled if in accordance with
Article 11(1)(b) of Directive 75/442/EEC a Member State
wishes to waive the permitting requirement in Article
10 of Directive 75/442/EEC for establishments or under-
takings which recover hazardous waste.

Member States wishing to waive permitting requirements
under Article 3(2) of Directive 91/689/EEC must also
comply with the procedural requirements set out
in
Article 3(4) of that Directive.

On 1 December 1999 and 17 November 2000 Italy sent
to the Commission a draft Decree based on Article 33 of
Decree No 22 of 5 February 1997 setting out conditions
for applying a derogation to the permitting requirement
in respect of the recovery of hazardous waste.

(1) OJ L 194, 25.7.1975, p. 39.
(2) OJ L 78, 26.3.1991, p. 32.
(3) OJ L 377, 31.12.1991, p. 20.

(4)

(5)

(6)

(7)

(8)

(9)

The Commission has consulted Member States on the
rules set out in the draft Decree, and during the consul-
tation phase no Member State has objected to the draft
rules being accepted.

In the light of this consultation, and in view of its own
analysis that the draft rules comply with the require-
the
ments of Article 3 of Directive 91/689/EEC,
Commission proposed that
the draft rules be finally
agreed upon in accordance with the procedure laid
down in Article 18 of Directive 75/442/EEC.

The Committee established by Article 18 of Directive
75/442/EEC gave its opinion on 6 September 2002 in
favour of agreeing upon the rules.

The rules are thus in accordance with the opinion
expressed by the Committee established in Article 18 of
Directive 75/442/EEC.

The rules set out
accordingly be agreed upon.

in the Italian draft Decree should

This agreement relates exclusively to the requirements
pertaining to Article 3(2) to (4) of Directive 91/689/EEC
in conjunction with Article 11(1)(b) of Directive 75/442/
EEC and is without prejudice to the application of other
contained in those Directives or other
provisions
Community legislation to the Italian draft Decree,

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I. PROCEDURE

I.A. Directives 75/442/EEC and 91/689/EEC

Article 9(1) of Directive 75/442/EEC requires that any estab-
lishment or undertaking carrying out disposal operations (listed
in Annex IIA), obtains a permit from the competent authorities.
Such a permit shall cover the types and quantities of waste, the
technical requirements, the security precautions to be taken,
the disposal site and the treatment method.

Article 10 of Directive 75/442/EEC requires also that establish-
ments or undertakings carrying out recovery operations (listed
in Annex IIB), obtain a permit from the competent authorities.

establishments or undertakings

Article 11(1) of Directive 75/442/EEC allows Member States to
from the permit
exempt
requirement imposed in Article 9 or in Article 10, for disposal
operations carried out at the place of production as well as for
recovery operations, only under the following conditions:

— competent authorities have adopted general rules for each
type of activity laying down the types and quantities of
waste and the conditions under which the activity in ques-
tion may be exempted from the permit
requirements
(Article 11(1), first indent), and

— the types or quantities of waste and methods of disposal or
recovery are such that the conditions imposed in Article 4
of the Directive are complied with (Article 11(1), second
indent).

The establishments or undertakings exempted according to
Article 11(1) shall be registered with the competent authorities
(Article 11(2)).

Article 3(1) of Directive 91/689/EEC establishes that the dero-
for establishments or
gation from the permit requirement
undertakings which carry out their own waste disposal, referred
to in Article 11(1a) of Directive 75/442/EEC, shall not apply to
hazardous waste covered by this Directive.

Article 3(2) establishes that a Member State may waive Article
10 of Directive 75/442/EEC for establishments or undertakings,
which recover waste:

— if the Member State adopts general rules listing the type
and quantity of waste and laying down specific conditions
(limit values for the content of hazardous substances in the
waste, emission limit values, type of activity) and other
necessary requirements for carrying out different forms of
recovery, and

— if the types or quantities of waste and methods of recovery
are such that the conditions laid down in Article 4 of Direc-
tive 75/442/EEC are complied with.

The establishments or undertakings referred to in paragraph 2
shall be registered with the competent authorities (Article 3
(3)).

If a Member State intends to make use of the provisions of
Article 3(2), the rules referred to in that paragraph shall be sent
to the Commission not later than three months prior to their
coming into force. The Commission shall consult the Member
States. In light of these consultations the Commission shall
propose that the rules be finally agreed upon in accordance
with the procedure laid down in Article 18 of Directive 75/
442/EEC.

I.B. The measures notified

On 28 August 1997 Italian authorities notified, pursuant to
Directive 83/189/EEC laying down a notification procedure in
the field of standards and technical regulations (1), a draft
Decree setting out the conditions for applying Article 11 of
Directive 75/442/EEC and Article 3(2) of Directive 91/689/
EEC. On 17 October 1997, during a meeting of the Committee
established by Article 18 of Directive 75/442/EEC (the Article
18 Committee), the Italian authorities confirmed that the notifi-
cation was to be intended also as a notification under Article
3(4) of Directive 91/689/EEC. On the same date, the Commis-
sion transmitted a copy of the Italian draft measures to the
other Member States and invited written comments by 15
November 1997, announcing that a Community Decision had
to be taken according to Article 3(4) of Directive 91/689/EEC.
Having assessed that the draft measures did not comply with
the requirements of Article 3(4) of the Directive, the Commis-
sion prepared a draft decision rejecting the measures. This draft
Decision was to be the subject of a vote of the Article 18
Committee on 8 May 1998, however Italy withdrew its draft
measures on the same day. No vote took place.

On 1 December 1999, Italy notified redrafted measures to the
Commission under the auspices of Directive 98/34/EC laying
down a procedure for the provision of information in the field
of technical standards and regulations (2) and Article 3(2) of
Directive 91/689/EEC. In the light of discussion in the Article
18 Committee on 29 March 2000 regarding the redrafted
measures, Italy expressed its intention to amend them further.

On 17 November 2000, Italy notified an amended version of
the
the redrafted measures. According to the Commission,
standstill period for this notification elapsed on 17 February
2001 for the purposes of Article 3(4) of Directive 91/689/EEC.
Subsequent to the request of Member States in the Article 18
Committee of 28 March 2001 to the Commission to provide a
general paper on the conditions applicable to Article 3(2) of
Directive 91/689/EEC, discussion on the specific amended
redrafted measures of Italy was postponed until after dissemina-
tion of the paper. A general paper was prepared and circulated
by the Commission at the meeting of the Article 18 Committee
on 6 July 2001 (3).

(1) OJ L 109, 26.4.1983, p. 8.
(2) OJ L 204, 22.6.1998, p. 37.
(3) Item 3 of Agenda:

‘Information Document (DG ENV Unit A2):
Conditions for the Derogation in Article 3(2) of Directive 91/689/
EEC’.

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II. CONTENTS OF THE MEASURES NOTIFIED

II.B. Summary description of

the measures notified
(limited to the elements which are of interest in the
context of this Decision)

II.A. The Italian legislation on which the notified draft is

based

technical

The notified draft implements Article 33 of Decree No 22 of 5
February 1997. This Article establishes that recovery activities
may be started not earlier than ninety days from the start of
activity communication to the competent Province and on the
condition that
rules had been adopted on the
maximum quantities of waste which can be used, on the origin,
type and characteristics of the waste, on other specific condi-
tions, in particular in order to ensure that the wastes are recov-
ered, in relation to their types and quantities, without danger
for human health and without using processes and methods
which could harm the environment. For hazardous waste the
rules must also contain specific conditions relating to the limit
values for the content of hazardous substances in the waste,
emission limit values for each type of waste, activity and plant
used (taking also into account other emissions produced on
site) and other necessary requirements for carrying out different
forms of recovery.

Following the start of activity communication, the competent
Province shall register the establishment in a specific register
and within 90 days is required to verify the existence of the
prescribed requirements. To this end,
the start of activity
communication shall include a report, which shall prove the
following:

— the respect of the general technical rules and of the above

mentioned specific conditions,

— that the establishment fulfils prescribed subjective require-
ments (financial standing, civil and penal status) for the
management of the wastes,

(nine articles) and three Annexes.

The notified amended redraft of the Italian Decree consists of a
main legislative text
It
provides for specific regulation on the activities relating to the
recovery of certain types of hazardous (Article 1(1)). It refers to
in particular
some 39 different types of recovery activities,
spanning the sectors of non-ferrous metals, precious metals,
smelting slag, sludge, inorganic and organic liquid wastes.

sub-annex 2 prescribes

The amended redraft stipulates a number of specific rules in
respect of recovery activities falling within its scope. It estab-
lishes the types of hazardous waste involved as well as technical
standards and emission and limit values applicable to specific
activities concerning their recovery (Article 1(4), Annex 1).
Annex 1 is divided into two sub-annexes: sub-annex 1 contains
general technical regulations for the recovery of certain mate-
rials from hazardous waste as well as limit values for hazardous
substances;
the limit values and
prescriptions for emissions released into the atmosphere from
hazardous waste recovery activities. The amended redraft also
contains rules prescribing the maximum useable amounts in
respect of the waste types that may be used by plants per year
(Article 5 and Annex 2). In addition, it prescribes specific rules
on methods and standards relating to storage of the hazardous
wastes concerned (Articles 4 and Annex 3), as well establishing
rules on notification of the commencement of activities, waste
sampling and personnel requirements (Articles 6, 7 and 8). At
all times, the recovery operations involved remain subject to a
requirement that neither the environment or human health be
endangered (Article 1(2)). Furthermore, goods and products
obtained from the recovery activities which do not meet the
requirements of the Annexes or are not destined for use in
consumption or production cycles fall outside the scope of the
simplified procedure and thus remain subject to general legisla-
tive rules on hazardous waste.

— the recovery activities which are intended to be carried out,

III. ASSESSMENT

— the establishment, recovery capacity and production or

treatment cycle in which wastes are to be recovered,

III.A. Assessment by the Commission

— the prescribed specifications of the products deriving from

recovery activities.

Whenever the Province establishes that the technical rules or
other requirements are not complied with, it shall prohibit (by
reasoned act) the start or the continuation of the activity, unless
the establishment complies with the relevant provisions within
a deadline set by the administration.

The assessment of draft general rules notified by a Member
State in accordance with Article 3(4) of the Directive is to be
done primarily as regards the compliance with all the require-
ments provided for by Article 3(2) of Directive 91/689/EEC. As
a general observation, it is the opinion of the Commission that,
since the possibility of applying Article 3(2) of Directive 91/
689/EEC is an exception to a general rule, this derogation
should be applied in a restricted manner. The Italian measures
should be considered in light of this general observation in
order to determine if the derogation is too wide.

The communication shall be renewed every five years and in
any case where any substantial modification of the recovery
operations takes place.

the notified redrafted Decree leads

Legal analysis of
the
Commission to conclude that it does not perceive of a reason
to object to the redrafted measures being agreed upon under
the auspices of Article 3(4) of Directive 91/689/EEC.

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The Commission considers that the redrafted measures comply
with the requirements contained in Article 3(2) of Directive 91/
689/EEC. The notified amended redraft constitute general rules
which list the types and maximum quantities of hazardous
waste which fall within the scope of the draft Decree. In addi-
tion, it prescribes specific conditions relating to the recovery
operations involved (including establishing limit values on the
contents of hazardous substances, emission limit values and
type of activity). The typology of the waste involved is appro-
priately identified according to European Waste Catalogue (1)
reference, the EWC enshrining a common list of non-hazardous
and hazardous waste for the Community, to be periodically
updated, as foreseen in Articles 1(a) of Directive 75/442/EEC
and Article 1(4) of Directive 91/689/EEC.
it
enshrines other necessary requirements relating to the carrying
out of
forms of recovery including rules on
storage, notification of commencement of activities, sampling
and personnel. Finally, it stipulates that the types or quantities
of waste and methods of recovery are such that the conditions
laid down in Article 4 of Directive 75/442/EEC are complied
with.

the different

In addition,

The Commission also considers that the registration require-
ment contained in Article 3(3) of Directive 91/689/EEC is satis-
fied. Article 33 of the enabling Decree No 22 of 5 February
1997 requires that activities for the recovery of waste falling
within its scope be registered with the relevant Province. In
addition, the notified amended redraft specifies that the design
and construction of the installations or establishments where
the recovery operations are to be carried must be approved and
authorised (Article 1(3)), and that detailed notification of
commencement of activities has to be carried out (Article 6).

III.B. Consultation of the Member States: summary of the

written and oral comments received

Sweden did not have any substantive comments to make on
the draft rules, and instead enquired about certain procedural
aspects pertaining to Article 3(2) of Directive 91/689/EEC:
namely the implications of any exemption for other Member
States and its relationship with Council Directive 96/61/EC of
24 September 1996 concerning integrated pollution prevention
and control (2).

The United Kingdom in its written comments welcomed the
proposal from Italy. From a general perspective, it considered
that exemptions may encourage the recycling and re-use of
some hazardous waste streams, for example through take-back
schemes operated by the retail sector. It was also of the view
that a requirement to obtain a full permit could discourage
participation and result
in more waste being disposed of
through traditional waste management facilities, such as landfill
or incineration. In addition, it saw the need for a widely under-
stood mechanism for providing exemptions being all
the
greater following the introduction of a new hazardous waste
list, which contains many everyday items such as fluorescent
lamps and personal computer monitors. On the substance,
whilst the United Kingdom did not wish to stand in the way of
agreement to the draft rules, which it viewed as being consis-
tent with the Commissions recent guidance, it did have certain
concerns about
the proposed
the complexity of some of
exemptions. In particular, it was concerned that the costs of
demonstrating compliance could be high. For instance, it was
not clear to the United Kingdom as to what steps would be
required to demonstrate that waste complied with the limits for
hazardous substances. Whilst this would be relatively simple in
the case of homogeneous, consistent waste streams, more vari-
able wastes would, in its view, present difficulties. The United
Kingdom considered that there is a possibility that use of such
exemptions could be at least as costly as obtaining a full permit
and therefore of little practical benefit to recycling organisa-
tions. The United Kingdom was also concerned about the rela-
tionship between the Community's waste framework legislation
and other Community environmental legislation in this matter,
such as Directive 2000/76/EC of the European Parliament and
of the Council of 4 December 2000 on the incineration of
waste (3).

Member States have been consulted for their views, written and
oral on the draft rules. Specifically, on 30 April 2002 Member
States were invited to provide the Commission with written
comments. The Member States were also invited to make oral
representations at the Meeting of the Article 18 Committee
held on 22 May 2002.

At the Article 18 Committee meeting held on 22 May 2002,
no Member State voiced any objection to the draft rules being
agreed upon.

On 16 and 28 May 2002 respectively, Sweden and the United
Kingdom sent in written comments to the Commission.

(1) Commission Decision 2000/532/EC of 3 May 2000 replacing Deci-
sion 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/
404/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) as amended by Commission Decision 2001/
118/EC of 16 January 2001 (OJ L 47, 16.2.2001, p. 1), Commission
Decision 2001/119/EC of 22 January 2001 (OJ L 47, 16.2.2001, p.
32) and Council Decision 2001/573/EC of 23 July 2001 (OJ L 203,
28.7.2001, p. 18).

In the light of this consultation, and in view of its own analysis
that the draft rules comply with the requirements of Article 3
of Directive 91/689/EEC, the Commission proposed that the
draft rules be finally agreed upon in accordance with the proce-
dure laid down in Article 18 of Directive 75/442/EEC. The
Committee established by Article 18 of Directive 75/442/EEC
gave its opinion on 6 September 2002 in favour of agreeing
upon the rules.

(2) OJ L 257, 10.10.1996, p. 26.
(3) OJ L 332, 28.12.2000, p. 91.

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IV. CONCLUSION

HAS ADOPTED THIS DECISION:

The Commission, in the light of the contents of the Italian draft
and of the outcome of the consultation with the Member States
described in the above considerations, concludes that
the
redrafted measures notified by Italy pursuant to Article 3(4) of
Directive 91/689/EEC as at 17 November 2000 should be
accepted and agreed upon as it has been verified that the
requirements set out in Article 3(2) and (3) of that Directive are
fulfilled, namely that:

— the draft rules are general rules listing the type and quantity
of waste and laying down specific conditions (limit values
for the content of hazardous substances in the waste, emis-
sion limit values,
type of activity) and other necessary
requirements for carrying out different forms of recovery,

— the types or quantities of waste and methods of recovery
are such that the conditions laid down in Article 4 of Direc-
tive 75/442/EEC are complied with, and

— the establishments and undertakings concerned are to be

registered with the competent authority,

Article 1

in the Italian draft Decree sent

The rules set out
to the
Commission on 1 December 1999 and as amended on 17
November 2000, based on Article 33 of Italian Decree No 22
of 5 February 1997, pursuant to Article 3(4) of Directive 91/
689/EEC on hazardous waste, are hereby agreed upon.

This Decision is addressed to the Italian Republic.

Article 2

Done at Brussels, 13 November 2002.

For the Commission

Margot WALLSTRÖM

Member of the Commission