Proposal for a Directive of the European Parliament and of the Council on the management of waste from the extractive industries
Date: 2003-06-02
Institutions: European Commission
Subjects: environmental protection, metallic ore, mining extraction, non-ferrous ore, prevention of pollution, toxic substance, waste management

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 2.6.2003
COM(2003) 319 final

2003/0107 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the management of waste from the extractive industries

(presented by the Commission)

EXPLANATORY MEMORANDUM

1.

POLICY CONSIDERATIONS

Waste  from  the  extractive  industries  represents  a  large  waste  stream  in  the  EU.  It  involves
materials  that  must  be  removed  to  gain  access  to  the  mineral  resource,  such  as  topsoil,
overburden  and  waste  rock,  as  well  as  tailings  remaining  after  minerals  have  been  largely
extracted from the ore.  It  is estimated  that such waste amounts to about 29% of  total  waste
generated in the EU each year, with an annual volume in excess of 400 million tonnes.1

Some of these wastes are inert and hence not likely to represent a significant pollutant threat
to the environment save for smothering of river beds and possible collapse if stored in large
quantities.  However,  other  fractions,  in  particular  those  generated  by  the  non-ferrous  metal
mining industry, may contain large quantities of dangerous substances, such as heavy metals.
Through the extraction and subsequent mineral processing, metals and metal compounds tend
to become chemically more available, which  can  result  in  the generation of acid or  alkaline
drainage.  Moreover,  the  management  of  tailings  is  an  intrinsically  risky  activity,  often
involving residual processing chemicals and elevated levels of metals. In many cases tailings
are stored on heaps or in large ponds, where they are retained by means of dams. The collapse
of  dams  or  heaps  may  have  serious  impacts  on  environment  and  human  health  and  safety.2
Examples  of  this  are  the  accidents  in  Aberfan  (Wales,  1966),3  Stava  (Italy,  1985),4
Aznalcóllar  (Spain,  1998),5  Baia  Mare  and  Baia  Borsa  (Romania,  2000).6  Other  likely
significant impacts  relate to the  physical  footprints  of  waste  disposal  facilities  and  resulting
loss of land productivity, effects on ecosystems, dust and erosion.

These  impacts  can  have  lasting  environmental  and  socio-economic  consequences  and  be
extremely  difficult  and  costly  to  address  through  remedial  measures.  Wastes  from  the
extractive industries have therefore to be properly managed in order to ensure in particular the
long-term  stability  of  disposal  facilities  and  to  prevent  or  minimise  any  water  and  soil
pollution arising from acid or alkaline drainage and leaching of heavy metals.

These  matters,  namely  stability  and  water  and  soil  pollution,  are  already  regulated  in  most
Member  States.  However,  the  variety  of  controls,  as  well  as  the  diversity  of  the  extractive
industry,  ranging  from  very  large  facilities  of  multi-national  companies  to  SMEs,  call  for
minimum  requirements  to  be  put  in  place  via  Community  rules.  This  should  allow  a  level-
playing field to be established in the area of management of waste produced by the extractive

1

2

3

4

5

6

EEA at http://themes.eea.eu.int/Environmental_issues/waste/indicators/generation/index_html.
It should be borne in mind that throughout the world tailings dams have failed at an average rate of 1.7
per year over the past 30 years (see A D M Penman, Risk analyses of tailings dams constructions, paper
presented  at  the  Seminar  on  “Safe  Tailings  Dams  Constructions”  held  on  19-21  September  2001  in
Gaellivare (Sweden), http://europa.eu.int/comm/environment/waste/mining_dams_seminar.pdf).
The  worst ever accident in the UK happened because of the collapse  of  a  heap  of  inert  waste  from  a
coal mine in the town of Aberfan (Wales) in 1966. It caused the death of 144 people, mainly children.
On 19 July 1985 in Stava (Trento, Italy), a fluorite tailings dam failed and released 200,000 m³ of inert
tailings. This resulted in the killing of 268 people and the destruction of 62 buildings.
This accident involved the release into the Guadiamar river of 2 million m³ of tailings and 4 million ³ of
water contaminated by heavy metals in an area close to the Doñana Natural Park in South Andalusia.
In Baia Mare a tailings pond burst led to approximately 100,000 m³ of waste water containing up to 120
tonnes  of  cyanide  and  heavy  metals  being  released  into  the  Lapus  River,  then  travelling  downstream
into the Somes and Tisa rivers into Hungary before entering the Danube. In Baia Borsa 20,000 tonnes
of tailings were released into the Novat River, a tributary of the Viseu and Tisa rivers.

2

                                                
industry,  by  specifying  and  improving  requirements  on  the  design,  operation,  closure  and
after-care  of  waste  management  facilities.  This  is  particularly  important  in  view  of  the
prospective  EU  enlargement,  given  the  number  of  extractive  industrial  locations  in  several
Candidate Countries and the need to raise standards.

On the legal side,7 waste from extractive industries is subject to the general provisions of the
Waste  Framework  Directive  (75/442/EEC),  as  long  as  it  is  not  covered  by  other  specific
Community legislation. The fact that Directive 75/442/EEC explicitly allows for an exclusion
of this waste stream, and that it offers the possibility for specific rules on particular categories
of waste, advocates in favour of a customised legal instrument on the management of waste
from the extractive industries. More importantly, facilities for the disposal of waste from the
extractive  industries  are  also  covered  by  the  Landfill  Directive  (1999/31/EC).  The  latter
contains provisions which are not always adapted to this waste stream (in particular, a ban on
the disposal of liquid waste into landfills, a general ban on co-disposal of non-hazardous with
hazardous waste, and a requirement to install a barrier and a liner under a landfill) and which,
if applied in full, are likely to bring several extractive activities to a halt. In order to address
this unacceptable situation, it is therefore necessary to create an appropriate legal framework
that  would  exempt  waste  from  the  extractive  industries  from  the  provisions  of  the  Landfill
Directive and establish tailor-made rules.

This Proposal has its origins in a Communication issued by the Commission in October 2000
entitled  “Safe  operation  of  mining  activities:  a  follow-up  to  recent  mining  accidents”.8  The
Communication was prompted by the above-mentioned recent mining accidents in Spain and
Romania and identified the need for a review of Community environmental policy in relation
to the management of mining and quarrying waste.

The Communication sets out three priority actions intended to improve the safety of mining
waste  management.  These  are:  a)  an  amendment  to  the  Seveso  II  Directive9  to  bring  the
processing of mineral ores and mine waste management under the scope of the Directive; b)
an  initiative  to  promote  a  new  Directive  on  the  management  of  waste  from  the  extractive
industries  (this  Proposal);  and  c)  the  production  of  a  best  available  techniques  (BAT)
Document  covering  the  management  of  waste  rock  and  tailings  in  mining  activities.  The
approaches of the Communication were endorsed by the international Task Force established
to  assess  the  Baia  Mare  accident.10  The  European  Parliament’s  Resolution  in  200111  also
welcomed the Communication and strongly supported the need for a Directive on waste from
the extractive industries.

This Proposal for a Directive on the management of waste from extractive industries aims to
establish a specific legal framework in respect of this particular waste stream, with a view to
complementing  the  other  two  priority  actions.  It  contains  certain  provisions  designed  to
honour  the  pledge  made  by  the  Commission  at  the  time  it  adopted  the  Proposal12  for  an

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8

9

10

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12

These matters are set out in detail in section 5 of the Explanatory Memorandum.
COM(2000)664 final.
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).
Report of the International Task Force for Assessing the Baia Mare Accident, December 2000.
European  Parliament  resolution  on  the  Commission  communication  on  safe  operation  of  mining
activities: a follow-up to recent mining accidents, A5-0214/2001 of 19 June 2001.
COM(2001)624 final.

3

                                                
amendment of the Seveso II Directive in December 2001 to include certain mining activities
within the scope of the Directive.13

A  document  on  best  available  techniques  (BAT)  for  the  management  of  waste  rock  and
tailings is currently being prepared by the European IPPC Bureau in Seville, Spain, with the
active participation of representatives of the Member States and the industry. It is expected to
be completed by the end of 2003.14

2.

OBJECTIVES AND MAIN ELEMENTS OF THE PROPOSAL

This Proposal seeks 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 and disposal phases of such waste. By
encouraging waste recovery in particular, the Proposal aims to contribute to the conservation
of resources in serving to reduce pressure on the exploitation of virgin natural materials. The
promotion of recovery could also reduce overall environmental impact by lessening the need
to open new mines.

The  Proposal  covers  waste  coming  from  all  sectors  of  the  extractive  industry.  However,  its
provisions  are  expected  mainly  to  affect  those  sectors  most  likely  to  be  the  cause  of
significant  environmental  and  health  hazards  or  major  accidents  (such  as  metal  mining,
especially if it involves the use of dangerous substances). With a view to avoiding duplication
and  invoking  proportional  administrative  requirements,  it  excludes  from  its  scope  waste
which  represents  a  low  environmental  risk,  such  as  unpolluted  soil  and  waste  from  the
exploration  of  mineral  resources,  while  inert  waste  is  covered  with  a  limited  set  of
requirements.  It  also  excludes  waste  which,  although  generated  in  the  course  of  mineral
extraction or treatment operations, is inappropriate to be managed under the provisions of this
Proposal, such as food waste or waste from offshore operations.

The Proposal contains the objectives and the basic requirements for waste management in the
main  body  of  the  text.  Three  annexes  complete  the  legal  provisions  with  technical
requirements that can be adapted to scientific progress via comitology, taking into account the
results of the BAT Document on the management of tailings and waste rock.

Specifically, the Proposal focuses on the following aspects:

– 

– 

– 

13

14

operational issues connected with waste management,

prevention of soil and water pollution, and

ensuring stability of waste management facilities (in particular tailings ponds).

The Explanatory Memorandum of the Seveso II amending Proposal states: “The Commission is aware
of  the  fact  that  its  Proposal  might  not  cover  tailings  disposal  facilities  used  in  connection  with
mechanical  processing  operations,  and  that  do  not  contain  any  other  hazardous  substances  than  those
naturally present in the ground or subsoil, such as heavy metals. It proposes therefore to cover the safety
aspects of such tailings disposal facilities through the initiative on the management of mining waste”.
For more information on the BAT Document, see http://eippcb.jrc.es/pages/FActivities.htm.

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The Proposal contains:

– 

– 

– 

– 

– 

– 

a  range  of  conditions  to  be  attached  to  operating  permits:  this  is  to  allow  for
sufficient  environmental  and  safety  measures  when  authorising  waste  management
facilities. The requirements laid down should strike an appropriate balance between,
on  the  one  hand,  the  amount  of  administrative  burden  falling  on  operators  or
competent  authorities  when  applying  for  or  delivering  a  comprehensive  waste
management  permit  and,  on  the  other  hand,  the  benefits  arising  in  terms  of
environmental protection and accident prevention;

a range of general obligations covering waste management: the purpose is to ensure
that,  prior  to  commencing  extraction  operations,  an  operator  duly  considers  and
accounts for the amount of waste that is going to be generated, its characteristics and
best practice tools to deliver appropriate safe management of waste;

the  obligation  to  characterise  waste  before  disposing  of  it  or  treating  it:  this  is  in
order  to  ensure  that  waste  management  methods  are  tailored  to  the  particular
characteristics of the waste, in particular with a view to ensuring long-term stability
of any heaps or ponds involving the permanent storage of large amounts of waste;

measures  to  ensure  the  safety  of  waste  management  facilities:  these  provisions  are
similar to the relevant measures contained in the Seveso II Directive: major-accident
prevention policy, safety management system, adequate information provision to the
public.  Such  measures  would  apply  to  waste  management  facilities  that  present  a
high  risk  and  are  not  going  to  be  included  in  the  scope  of  the  revised  Seveso  II
Directive;

a requirement to draw up closure plans for waste management facilities: this is a key
provision  to  ensure  that  closure  operations  form  an  integral  part  of  the  overall
exploitation plan of the operator;

an obligation to provide for an appropriate level of financial security: the aim of this
provision is to reinforce the "polluter-pays" principle and ensure that sufficient funds
are available to leave waste sites in a satisfactory state after closure, for example, in
the  event  of  the  company  going  into  administration,  becoming  insolvent  or  even
engaging in asset-stripping practices (the so-called “walk away” practices). This is in
line with a similar requirement in Article 8(a)(iv) of the Landfill Directive.

3.

ENVIRONMENTAL PROBLEMS ADDRESSED IN THE PROPOSAL

3.1.

Overview of waste generated by extractive operations

Extractive operations often generate large volumes of waste due to the normally high waste-
to-product  ratios.  These  wastes,  which  may  be  major  sources  of  pollution,  include  topsoil,
overburden, waste rock and tailings.

Topsoil is the upper layer of the ground and is usually stored on site and used for revegetation
once  the  extraction  has  finished.  Overburden  and  waste  rock  are  the  rock  that  extractive
operations move during the process of  accessing  an ore  or  mineral  body.  They  also  include
rock removed while sinking shafts, and accessing or exploiting the ore body and rock bedded
with the ore. The size of the waste rock ranges from small particles to boulders. Waste rock
can  be  used  as  backfill  in  previously  excavated  areas  or  transported  off  site  and  used  in

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construction project work. However, in practice most of the waste rock currently generated is
deposited in piles near the mine site.

Tailings are the waste solids that remain after the mineral processing of ore carried out by a
number of techniques. After the ore has been extracted from the mine, the first step in mineral
processing is generally crushing and grinding. The fine ores are then concentrated to free the
valuable  mineral  from  the  less  valuable  rock.  Mineral  processing  includes  physical  and/or
chemical  separation 
techniques  such  as  gravity  concentration,  magnetic  separation,
electrostatic  separation,  flotation,  solvent  extraction,  electrowinning,  leaching,  precipitation,
and amalgamation. Conventional mineral processing generates tailings, which either leave the
mineral  processing  plant  in  the  form  of  a  slurry  consisting  of  15-60%  solids  or  as  coarse
tailings (more or less dry). Coarse and fine tailings can be used to backfill mines. Most mine
tailings are deposited in on-site impoundments, such as tailing ponds or heaps.

3.2.

Environmental impacts associated with waste from extractive industries

The  range  of  environmental  impacts  associated  with  waste  management  facilities  includes
issues  related  to  land  take,  surface  and  groundwater  quality,  physical  stability,  dust  and
erosion, as well as terrestrial and aquatic habitat/ecosystem quality. The major issues amongst
these, namely water pollution and stability, are described below.

3.2.1. Water pollution15

Water  pollution  may  appear  at  different  stages  in  the  management  of  waste  from  the
extractive industries. For example, failure to control discharges may cause spills and damage
the surrounding environment. Moreover, rain and water resulting from the extraction process
may  create  leachates  when  seeping  through  tailings  (essentially  in  respect  of  tailings  from
ferrous and non-ferrous ores). The creation of leachates gives rise to sulphide oxidation and
potential  acid  generation,  production  of  soluble  salts  and  heavy  metal  migration  to  the
surrounding  environment,  as  well  as  leaching  of  residual  process  chemicals  in  the  tailings
such as cyanides, acids, alkalis.

These can also result from seepage through and below impoundment walls, percolation to the
subsoil and groundwater or overflow of the dam walls or spillways.

The  most  serious  and  pervasive  environmental  problem  related  to  mining  waste  is  acid
drainage  (AD).  Acid  generation  occurs  when  sulphide-rich  materials  in  waste  rock  and
tailings  are  exposed  to,  and  react  with,  oxygen  and  water  to  form  sulphuric  acids.  This  can
also be a natural process, but, by exposing these materials and breaking them up, mining can
greatly accelerate the rate at which these reactions take place.

AD is characterised by depressed pH values and elevated concentrations of  dissolved heavy
metals. The sulphuric acid, which is generated easily, dissolves metals such as iron, copper,
aluminium, and lead. One of the most serious aspects of acid drainage is its persistence in the
environment. An acid-generating mining waste facility has the potential for long-term, severe
impacts on surface and groundwater and aquatic life. Once the process of acid generation has
started,  it  is  extremely  difficult  to  stop.  The  combination  of  acidity  and  dissolved
contaminants is known to kill most forms of aquatic life, rendering streams nearly sterile and
making water unfit for human consumption.

15

This  section  is  largely  based  on  excerpts  from  the  report  of  the  “Mining,  Minerals  and  Sustainable
Development” project, supported by the World Business Council on Sustainable Development.

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Furthermore,  particular  care  needs  to  be  taken  for  the  fine-grained  nature  of  many  tailings
deposits (and of fine-grained sediments released by abrasion and weathering of shaley waste
rock).  In  both  of  these  cases  and  in  addition  to  the  risk  to  human  life  posed  by  mud  flows
caused by accidents, this inert waste can also destroy aquatic life by simple smothering, even
though it might be chemically non-reactive.

3.2.2.

Stability16

The shifting of large volumes of rock,  cyanide, acid and other hazardous reagents may  well
encounter  accidents.  At  global  level,  the  greatest  single  concern  is  the  failure  of  tailings
storage  facilities.  Since  1975,  tailings  storage  facility  failures  have  accounted  for  around
three-quarters  of  all  major  mining-related  environmental  incidents  worldwide.  Major
accidents seem to occur on average once a year and they can have devastating consequences
for the environment, human health and property.

The  physical  properties  of  fine-grained  mine  waste  particles  are  frequently  such  that  (when
saturated  with  water  and  subjected  to  stress)  they  tend  to  behave  thixotropically,  in  some
cases giving rise to devastating mud flows, such as those already mentioned at Aberfan and
Stava which claimed 412 human lives between them.

Considering that tailings storage facilities are built over long periods, the first priority should
be  to  ensure  that  all  facility  designs  are  based  upon  the  highest  possible  safety  standards.
However, they require not just good design but also close, consistent and routine monitoring
and supervision over a long period. Having adequately qualified persons in charge with clear
authority is an  absolute requirement from a safety  perspective. Periodic review and  audit of
safety  conditions  is  necessary.  Personnel  with  the  correct  training  are  needed  to  ensure  that
each  extraction  company  carries  out  any  necessary  adjustments  to  design  requirements  as
conditions change. Ongoing stewardship by skilled staff on behalf of competent authorities is
also necessary to monitor conditions or intervene without delay if problems arise.

4.

CURRENT MANAGEMENT OF WASTE FROM THE EXTRACTIVE INDUSTRIES

17

Some  examples  of  practice  applied  in  Member  States  and  Candidate  Countries  are  given
below:

Overburden and waste-rock management

–  In certain lignite mines18 the ratio of overburden to lignite is around 5:1. That means that in
the case of the largest lignite site about 200 million tonnes of overburden is removed every
year  in  order  to  extract  some  40  million  tonnes  of  lignite.  The  overburden  is  directly
transported via conveyor belts to the mined-out part of the pit and backfilled.

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18

Ibid.
Summary of technical information and examples for this section are mainly taken from the first draft of
the BAT Document on “Management of tailings and waste rock in mining activities” drawn up by the
European IPPC Bureau located at the IPTS in Seville, September 2002. This section only gives a broad
and simplified overview of the situation.
This example is taken from www.rheinbraun.de.

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–  In open cast metal mines the waste rock is piled up in large heaps beside the mining pit. In
some  cases  the  acid  drainage  generating  waste  is  piled  separately.  In  a  particular  metal
mine the waste rock heaps cover an area of 400 ha with a rate of 25 million tonnes of waste
rock being generated each year

Tailings management

–  Many  coal  mines,  as  well  as  certain  iron  mines  generate  two  types  of  tailings:  a  coarse
fraction which is piled up in heaps, and a fraction of fine tailings. In the latter case, tailings
are either directly discharged into ponds or are to a large extent filtered and only the very
fine material is stored in ponds while the filtered material is dumped onto the heaps.

–  Most  non-ferrous  metal  mines  generate  wet  tailings  in  a  slurry  form  which  are  stored  in
ponds. Sometimes these ponds are lined with synthetic material to avoid seepage into the
ground.  If  the  tailings  have  acid  drainage  generation  potential,  they  may  be  discharged
subaqueously  to  avoid  oxidation.  Often  the  coarse  fraction  is  used  as  backfill  in
underground  excavations.  Gold  mines  use  cyanide  to  recover  the  fine  gold  through  a
leaching process carried out in tanks. Before these tailings are discharged into the pond the
cyanide  is  mostly  destroyed.  At  a  copper  mine  the  tailings  pond  currently  contains
330 million m3 of tailings covering 1 400 ha, while in another 18 million tonnes of tailings
are generated each year.

–  In the  extraction of  so-called industrial  minerals many variations of tailings  management
facilities are used, such as large ponds comparable to the ones at metal mines, small ponds
(swimming  pool  size),  large  heaps  (a  potash  heap  can  be  up  to  240m  high  and  contain
130 million tonnes of tailings), backfill, dried tailings backfilled together with waste rock
in mined-out parts of pits and quarries.

The  amount  of  waste  generated  varies  quite  significantly  between  extraction  operations.
Where only a pure vein is mined almost no waste may be produced. In the case of coal about
75%  of  the  extracted  material  is  coal  and  the  other  25%  are  tailings.  This  means  that  in
Europe (EU-15 and Candidate Countries), where yearly 220 million tonnes of marketable coal
are produced, a total of about 70 million tonnes of tailings are generated each year. Gold ore
contains only  a  few  grams  of  gold  (Au)  per tonne  of  mined  material,  e.g.  a  gold  content  of
5 g/t means that in order to extract a tonne of gold about 200 000 t of ore have to be mined
with it and will end up as tailings in the pond.

Upon  closure  of  an  operation  the  waste  material  is  usually  covered  with  topsoil  and
revegetated. If the waste has the potential to generate  acid drainage then it is either covered
with a more or less impermeable layer or permanently covered with water.

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5.

5.1.

LEGAL SITUATION AT EU LEVEL

Council  Directive  75/442/EEC  of  15  July  1975  on  waste  (Waste  Framework
Directive)19

The Waste Framework Directive lays down general provisions and principles for the handling
of  waste,  as  defined  in  Article  1(a)  of  the  Directive.  Article  2(1)(b)(ii)  of  the  Directive
establishes that waste resulting from prospecting, extraction, treatment and storage of mineral
resources  and  the  working  of  quarries  will  be  excluded  from  the  scope  of  Directive
75/442/EEC where they are already covered by other legislation.20 As already clarified by the
Commission  in  its  Communication  on  “Safe  operation  of  mining  activities:  a  follow-up  to
recent mining accidents”, at present there is no specific Community legislation on this type of
waste and, therefore, Directive 75/442/EEC applies to waste from the extractive industries21.

The  qualified  nature  of  the  exemption  in  Article  2(1)(b)(ii)  of  the  Waste  Framework
Directive, as introduced by Council Directive 91/156/EEC which amended the original 1975
version of the Waste Framework Directive, suggests that the Community legislature had the
intention of regulating the waste from the extractive industries with a specific instrument to be
developed at a later stage. Bearing in mind that framework legislation on waste management
at  Community  level  only  establishes  the  basic  requirements  to  ensure  the  protection  of  the
environment, it has been recognised, in particular since the adoption of the 5th Environmental
Action  Programme  in  1992  and  the  Community  Waste  Strategy22  that  was  revised  in  1996,
that  customised  Community  action  had  to  be  taken  for  certain  waste  streams  which  posed
particular  risks  or  had  a  higher  environmental  impact  due  to  either  their  volume  or
hazardousness.  The  waste  stream  approach  is  in  line  with  Article  2(2)  of  the  Waste
Framework Directive, which explicitly refers to the possibility of laying down specific rules
through Directives concerning the management of particular categories of waste, and has the
advantage of providing tailor-made measures to reduce the environmental impacts of certain
sectors and enhance the recycling and recovery of particular waste streams.

This Proposal establishes customised minimum requirements for an industrial activity, which,
in  the  light  of  the  significant  volumes  of  waste  involved  and  their  high  potential  for
environmental  and  health  hazards,  cannot  be  properly  addressed  through  the  general  Waste
Framework  Directive  alone.  Once  this  Proposal  is  adopted  it  will  be  complementary  to

19

20

21

22

OJ L 194, 25.7.1975, p. 39. Directive as amended by Council Directive 91/156/EEC of 18 March 1991
(OJ L 78, 26.3.1991, p. 31).
Currently, there is a request for a preliminary ruling pending before the ECJ (C-114/01 Avesta Polarit)
as to whether mining activities should be considered to be outside the scope of Directive 75/442/EEC as
amended.  The  Commission,  as  well  as  the  Finnish  authorities,  have  submitted  that  the  reference  to
“other legislation” in Article 2(1)(b)(ii) of Directive 75/442/EEC as amended means “other Community
legislation”,  which  would  confirm  that  the  Directive  applies  to  the  mining  sector,  given  no  relevant
Community  legislation  on  waste  from  the  extractive  industries  exists  at  the  moment.  In  contrast,
Germany and the UK argue that the reference to “legislation” means both national and EU legislation.
The  effect  of  their  interpretation  would  mean  that  the  mining  sector  is  excluded  from  the  scope  of
Directive  75/442/EEC  (given  that  a  considerable  amount  of  national  legislation  already  exists).  The
latter  argument  would  go  against  the  spirit  and  purpose  of  the  Directive  (as  revised  in  1991),  which
includes  the  achievement  of  a  common  Community  definition  of  waste  and  a  high  level  of
environmental  protection  throughout  the  EU.  The  opinion  of  the  Advocate-General,  delivered  on  10
April 2003, confirms the interpretation of the Commission.
In the light of the ECJ judgement in case C-9/00 (Palin Granit Oy), material such as topsoil, waste rock,
overburden or tailings from extraction activities are waste when they fulfil the definition in Article 1(a)
of Directive 75/442/EEC.
COM(1996)399 final.

9

                                                
Directive 75/442/EEC. The complementarity will be based both on Article 2(2) of Directive
75/442/EEC and on a cross-reference made to that Directive, specifying that, unless otherwise
stated, the new Directive will supplement the provisions of the Waste Framework Directive.

5.2.

Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (Landfill
Directive)23

Waste  from  the  extractive  industries  is  generally  covered  by  the  provisions  of  the  Landfill
Directive, the principal exception  being  “the  deposit  of  unpolluted  soil  or  of  non-hazardous
inert  waste  resulting  from  prospecting  and  extraction,  treatment,  and  storage  of  mineral
resources  and  the  working  of  quarries”  (Article  3(2),  fourth  indent).24  In  respect  of  waste
generated  from  the  extractive  industries,  the  Landfill  Directive  therefore  covers  both
hazardous  waste  and  non-hazardous  waste  that  is  not  inert.  Given  that  certain  fractions  of
waste from the extractive industry are hazardous and are in practice often mixed together with
non-hazardous and inert waste elements, the Landfill Directive also applies to the latter.

The  Landfill  Directive  is  designed  to  cater  for  general  and  common  aspects  of  landfill
management that could arise in connection with the deposition of  municipal, commercial or
industrial  waste  in  a  typical  landfill,  with  a  view  to  reducing  their  negative  environmental
effects.  Some  of  its  provisions  are  thus  not  tailored  to  accommodating  best  management
practice or dealing with management challenges specific to the extractive sector. In particular,
the Landfill Directive contains the following provisions that are problematic in this regard for
the management of waste from the extractive industries:

– 

– 

23

24

25

A  ban  on  the  disposal  of  liquid  waste  into  landfill.  This  renders  the  operation  of
tailings ponds illegal. In fact, tailings ponds are an essential feature of certain mining
operations  (such  as  in  the  metal  mining  sector  and  certain  coal  extraction
industries).25  The  prohibition  of  the  disposal  of  liquid  waste  under  the  Landfill
Directive would stop this disposal practice.

A general ban on the co-disposal of non-hazardous with hazardous waste (with very
limited  exceptions  that  could  also  apply  to  mining  waste)  or  with  inert  waste.  In
mining operations, the waste that is generated (i.e. overburden, waste rock, tailings)
may well consist of hazardous, non-hazardous and inert materials, all mixed together.
In  practice,  this  mixed  waste  is  usually  disposed  of  into  the  same  engineered  infill
structure, as these wastes originate from the same extraction site. It would therefore
make  neither  economic  nor  environmental  sense  to  take  them  to  different  disposal
sites.

OJ L 182, 16.7.1999, p. 1.
Member States may also declare that they wish to take advantage of the option in the Landfill Directive
to  reduce  the  range  of  obligations  that  apply  under  that  Directive  in  relation  to  the  permanent
underground storage of waste in deep geological cavity such as a salt or potassium mine (see Articles
2(f) and 3(5) of the Directive). However, this option is likely to be of practical benefit only to  mines
that  have  deep  underground  and  impermeable  corridors/shafts,  and  would  not  be  of  use  to  open  cast
type operations.
Tailings ponds are large earth-fill dams containing the residue (tailings) of the milling process to extract
metals  from  mined  ores.  To  obtain  the  valuable  materials,  the  rock  is  ground  into  fine  particles  and
mixed with water and chemicals to help them float out. The resulting fine slurry has the consistency of
sand, clay and silt. It may contain sulphides which, when mixed with water in air, form acid.

10

                                                
– 

A requirement to install a barrier and a liner to be put under a landfill site in order to
prevent  groundwater pollution.  In terms of  the  extraction of  mineral  resources,  this
particular  requirement  is  not  necessary  and  not  even  advisable  for  certain  types  of
waste heaps (for example, where the presence of a liner might well cause a slippage
of  the  heap  with  subsequent  risk  of  collapse  of  the  installation).  It  is  therefore
questionable whether the insertion of a barrier and liner in facilities containing waste
from the extraction industries would produce a net environmental benefit.

Therefore, it is evident that some of the provisions of the Landfill Directive are not the most
suitable  way  of  ensuring  the  safe  management  of  waste  generated  from  mineral  extraction
operations.  Instead,  appropriately  tailored  controls  need  to  be  introduced  in  respect  of  the
management of such waste, also bearing in mind that the Landfill Directive does not contain
adequate  provisions  to  prevent  accidents,  in  particular  relating  to  the  stability  of  dams  in
tailings ponds.

5.3.

Council  Directive  96/61/EC  of  24  September  1996  concerning  integrated
pollution prevention and control (IPPC Directive)26

All installations covered by Annex I to the IPPC Directive are required to obtain an operating
permit from the competent authorities in the Member States. Permits  must contain emission
limit  values  or  equivalent  parameters.  These  must  be  based  on  the  use  of  best  available
techniques (or “BAT”). Under this Directive, permits must include provisions that deal with
aspects other than normal operating conditions, such as relating to start-up, leakages or other
malfunctions,  momentary  stoppages  and  definitive  cessation  of  operations,  where  there  is  a
risk that the environment may be affected. The IPPC Directive addresses the overall impact of
the  production  process  on  environmental  media.  For  example,  it  covers  air,  water  and  soil
pollution, the generation and handling of process residues, and the use of energy.

Extraction activities as such are not specifically addressed by the  IPPC  Directive. However,
certain metallurgical activities,  mineral processing  activities, chemicals production  activities
and  landfill  activities  (involving  waste  other  than  inert  waste)  fall  within  the  scope  of  the
Directive.  Thus,  if  extraction  is  carried  out  as  a  “directly  associated  activity”  to  any  of  the
activities listed in Annex I to the IPPC Directive, it must be covered by an IPPC permit.

5.4.

Council  Directive  96/82/EC  of  9  December  1996  on  the  control  of  major-
accident hazards involving dangerous substances (Seveso II Directive)27

The Seveso II Directive aims to contribute to the prevention of major accidents which involve
dangerous substances. In addition, it seeks to limit the adverse consequences of such accidents
on  human  health  and  the  environment,  with  a  view  to  ensuring  high  levels  of  protection
throughout the Community in a consistent and effective manner. It provides in particular for
Safety Management Systems to be put into effect, including a detailed risk assessment using
possible  accident  scenarios.  Operations  typically  addressed  by  this  Directive  are  chemical
plants and storage facilities in which dangerous substances are present in sizeable quantities.

26

27

OJ L 257, 10.10.1996, p. 26.
OJ L 10, 14.1.1997, p. 13.

11

                                                
Article  4(e)  of  the  Seveso  II  Directive  excludes  from  its  scope  the  main  activities  of  the
extractive  industries,  namely  the  prospecting  for  and  exploitation  of  minerals  in  mines  and
quarries or by means of boreholes. Moreover, Article 4(f) excludes “waste land-fill sites”. The
Proposal  to  amend  the  Seveso  II  Directive28  suggests  recasting  Articles  4(e)  and  (f)  of  the
Seveso II Directive in such a way as to ensure that the chemical and thermal processing and
related storage  involving  dangerous  substances  as  well  as  tailings  disposal  facilities  used  in
connection  with  these  operations  fall  within  the  scope  of  the  Directive  and  are  no  longer
excluded.

5.5.

Directive  2000/60/EC  of  the  European  Parliament  and  of  the  Council  of
23 October 2000 establishing a framework for Community action in the field of
water policy (Water Framework Directive)29

The  Water  Framework  Directive  establishes  a  general  framework  for  the  protection  of  all
waters (rivers, lakes, coastal waters and groundwaters). It aims to prevent pollution at source
and sets out control mechanisms to ensure sustainable management of all pollution sources. A
key  requirement  of  the  Directive  is  the  setting  up  of  river  basin  management  plans  which
specify  how  the  objectives  set  for  the  river  basin  (ecological  status,  quantitative  status,
chemical status and protected area objectives) are to be achieved within the timescale set.

Article  5  of  the  Directive  requires  the  characterisation  of  pressures  and  impacts  in  a  river
basin by 2004 and Article 8 provides for the establishment of a monitoring network by 2006.
Although not explicitly mentioned, point sources of water pollution, such as any acid drainage
generated by tailings ponds, mine waste heaps or mine voids, will have to be included in the
characterisation  of  pressures  and  impacts  in  a  river  basin.  The  combination  of  the  above-
mentioned requirements established by the Water Framework Directive has also the potential
to  ensure  that  pollution  originating  from  abandoned  waste  management  facilities  of  the
extractive industries is properly addressed.

5.6.

Council Directive 85/337/EEC30 on the assessment of the effects of certain public
and  private  projects  on  the  environment,  as  amended  by  Council  Directive
97/11/EC of 3 March 199731 (the EIA Directive)

The Environmental Impact Assessment Directive as amended provides that projects which are
likely  to  have  significant  effects  on  the  environment  are  made  subject  to  an  environmental
impact  assessment  (EIA)  prior  to  development  consent  being  given.  This  EIA  must  cover,
inter  alia,  effects  from  waste  and  include  a  description  of  measures  to  prevent,  reduce  or
offset any significant adverse effects. Information gathered under the EIA process has to be
taken into consideration by the competent authority when granting development consent.

The extractive industry is included in the Annexes of the Directive, which list those activities
which are likely to have significant environmental impacts and are to be subject to an EIA. In
particular, quarries, open-cast and underground mining and drillings are included in the scope
of the Directive.

28

29

30

31

COM(2001)624  final  of  10.12.2001.  This  proposal  is  currently  proceeding  through  the  legislative
process  in  the  Council  and  the  European  Parliament.  An  amended  proposal  has  been  adopted  by  the
Commission and political agreement has now been reached in the Council on a Common Position on it.
OJ L 327, 22.12.2000, p. 1.
OJ L 175, 5.7.1985, p. 40.
OJ L 73, 14.3.1997, p. 5.

12

                                                
6.

LEGAL SITUATION IN THE MEMBER STATES AND CANDIDATE COUNTRIES

The extractive industries are one of the oldest sectors of industry in the EU. In recent decades
the bulk of the extractive industries have moved away from smaller underground operations to
larger mining in open-cast pits. This type of operation has resulted in larger amounts of waste
being generated, because the often unwanted topsoil and  overburden  have to  be  removed in
order to gain access to the mineral ore. In many cases the amount of overburden that has to be
transported is many times more than the tonnes of ore that are extracted. This has also led to
the fact that mining has become a more capital-intensive business, where it takes many years
before investment sees a financial return through the marketing of extraction products, which
are typically the concentrates.

6.1.

Legal situation in the Member States

Due  to  the  large  body  of  regulations  that  apply  to  the  extractive  industries,  an  exhaustive
presentation  of  the  legislation  relative  to  mining  and  quarrying  in  the  Member  States  is  not
possible in the context of this Explanatory Memorandum.32

As  a  general  rule,  Member  States  have  regulated  the  activities  of  the  extractive  industries
from the viewpoint of security of supply (metals, strategic minerals) or energy policy (lignite,
coal,  oil)  with  laws  in  certain  cases  dating  back  centuries.  The  environmental  aspects  have
been dealt with more recently, including within the context of EU legislation.

Legislation  governing  the  extractive  industries  has  grown  over  the  years,  often  following  a
major event or disaster which has led to  calls  for specific legislation to  control  or  eliminate
certain operations within the industry. Until recently, legislation was mainly concerned with
the working environment of pits or quarries, and relatively little attention has been directed to
the environmental consequences of mining.

The  scope  and  application  of  environmental  legislation  vary  in  the  different  Member  States
and waste generated from the extractive industries is sometimes subject to markedly different
rules. In particular, the issue of closure and rehabilitation of a waste management facility and
its monitoring over time are  addressed in a way that does not always  ensure a level playing
field across the internal market and the relevant costs may fall on the taxpayer if no financial
guarantee is requested.

6.2.

Legal situation in Candidate Countries for EU Accession33

In  many  Candidate  Countries  mining  waste  is  included  to  varying  degrees  in  the  scope  of
waste legislation. Whilst national provisions on hazardous waste generally apply to hazardous
mining  wastes,  none  of  the  candidate  countries  has  adopted  any  specific  measures  for  the
handling  of  hazardous  mining  wastes.  In  some  of  these  countries  the  Landfill  Directive
(1999/31/EC) has not yet been transposed.

32

33

For more detailed information, see Annex 7 of the report “Management of mining, quarrying and ore-
processing  waste  in  the  European  Union”,  BRGM,  December  2001,  prepared  on  behalf  of  DG
Environment and available at http://europa.eu.int/comm/environment/waste/0204finalreportbrgm.pdf.
This  section  is  based  on  the  draft  report  of  the  PECOmines  project  (“Inventory,  regulation  and
environmental  impact  of  toxic  mining  wastes  in  pre-Accession  Countries”)  drawn  up  by  the
PECOmines team in the Soil and Waste Unit at the JRC in Ispra: Tamás Hámor, Legislation of mining
waste  management  in  Central  and  Eastern  European  Candidate  Countries,  Ispra,  March  2002
(unpublished).

13

                                                
Countries  with  long-standing  underground  mining  traditions  and  significant  production
figures have  detailed  regulations  on  mining  safety.  However,  tailings  ponds  safety  does  not
seem  to  be  considered  a  priority  policy  issue.  Legislation  does  exist,  though,  in  a  few
Candidate  Countries,  whilst  in  others  specific  regulations  on  tailings  are  being  drafted.
Closure is not regulated in as much detail as is the case in  respect of  the  opening of mines.
While  in  most  Candidate  Countries  specific  provisions  exist  concerning  site  remediation
requirements  during  the  operational  lifetime  of  a  mine,  this  is  not  the  case  for  the  post-
operational (after-care)  phase.  The  indefinite  or  definitive  cessation  of  extraction  operations
are critical issues, as many abandoned mines are left without closure and remediation controls
and  safeguards  in  place,  often  with  no  operator  or  successor  (orphan  mines).  This  state  of
affairs presents a high risk to the environment and health, but also to the taxpayer who may
have to bear the relevant costs.

In most of the Candidate Countries, mining royalties are paid to local and central government.
In principle, environmental funds can be used to finance remediation operations in respect of
extraction sites. In one country, mining waste generation is subject to payment of fees, except
for the overburden from lignite (brown coal) mining.  The  fee  is  variegated  according to the
hazardousness and/or difficulty in handling and treating the waste (e.g. sand from processing
of natural  aggregates is cheaper than  waste from  metal  ore  processing),  its  quantity  and  the
period of storage.

7.

LEGAL BASIS

The Proposal is based on Article 175(1) of the EC Treaty, which is the specific legal basis for
the Community’s policy in the field of the environment. Accordingly, the relevant legislative
procedure  to  be  followed  is  co-decision,  as  set  out  in  Article  251  of  the  EC  Treaty,  after
consulting the European Economic and Social Committee and the Committee of the Regions.

8.

SUBSIDIARITY AND PROPORTIONALITY

8.1.

Subsidiarity

There  is  already  an  extensive  body  of  national  legislation  that  traditionally  covers  the
economics and strategic aspects of the extractive industries. Over the last thirty to forty years,
environmental  aspects  have  also  been  taken  into  account  in  laying  down  requirements  for
preventing  accidents  and  serious  environmental  consequences  from  the  handling  of  mineral
resources.  This  was  often  a  result  of  growing  public  concern  over  the  effects  of
mismanagement of waste  from the extractive industries,  especially  after the occurrence of  a
number of serious accidents.

The  Commission  considers  that  a  legislative  framework  covering  the  management  of  waste
from the extractive industries is the appropriate tool, setting minimum requirements to secure
much  needed  improvements  in  terms  of  the  environmental  performance  of  this  particular
industrial  sector.  This  sector  is  a  predominant  source  of  waste  generation  with  attendant
environmental protection challenges and, thus far, has only been subject to a relatively narrow
range  of  EU  legislation  with  respect  to  health  and  safety  at  work  and  security  of  energy
supply issues.

14

The  corporate  organisational  structure  of  the  extractive  industrial  sector  varies  between  the
Member  States,  ranging  from  large  multinational  companies  to  small  and  medium-sized
enterprises (SMEs). In addition, there are considerable disparities between Member States at
national,  regional  or  local  levels  with  respect  to  the  type,  degree  and  efficacy  of  safety
controls applicable to waste management facilities servicing the extraction industries.

A common set of rules at EU level would help establishing a level playing field in terms of
minimum administrative control and supervision in this area. This is important in the context
of  extending  the  internal  market  dimension  to  mineral  resource  extraction  within  the  EU,
namely  ensuring  that  the  internal  market  is  not  arbitrarily  compartmentalised  according  to
national boundaries.

Furthermore,  negative  environmental  consequences  flowing  from  mismanagement  of
extractive industry waste may be transboundary in nature, as clearly highlighted by the recent
accidents in Spain and Romania. In those cases, the environmental pollution to water and soil
directly affected more than one regions or countries and this highlights the need for putting in
place systems that will allow appropriate transboundary cooperation in case of emergency.

Most sectors of the extractive industries operate at a multinational level, competing in global
markets. This Directive could provide useful guidance to third  countries  wishing to develop
analogous standards for the extractive industries operating on their territory.

8.2.

Proportionality

The  present  Proposal  takes  the  form  of  a  Directive  in  order  to  leave  Member  States  ample
room  for  manoeuvre  and  enable  them  to  adopt  the  most  appropriate  measures  to  reach  the
objectives  laid  down.  Certain  elements  of  a  technical  and  more  prescriptive  nature  (such  as
content  and  scope  of  the  waste  management  plan,  threshold  limits  for  cyanide  and  cyanide
compounds in tailings ponds and measures for reducing water pollution) have been introduced
in order to ensure both a high level of environmental protection and a harmonised approach to
waste management controls across the EU, as mandated by the EC Treaty.34

The  Proposal  tackles  only  those  aspects  that  need  to  be  regulated  at  EU  level  in  order  to
ensure  that  the  objectives  of  the  EC  Treaty  are  met.  Most  of  the  measures  to  be  taken  are
subject to further specific deliberation by the relevant national  competent authority,  account
being taken of the prevailing local conditions. Specific exemptions are introduced so that the
administrative  requirements  laid  down  are  proportionate  to  the  environmental  hazards
involved.

Furthermore,  the  wording  of  the  Proposal  is  sufficiently  flexible  to  allow  existing  good
practices  and  procedures  applied  at  Member  State  level  to  continue  without  the  need  to
introduce additional administrative burdens.

34

See in particular Articles 2, 6 and 174-176 TEC.

15

                                                
9.

CONSISTENCY WITH OTHER COMMUNITY POLICIES

The  extractive  industries  are  subject  to  certain  Community  rules  in  the  field  of  health  and
safety of workers by virtue of 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  (eleventh  individual  Directive  within  the
meaning  of  Article  16(1)  of  Directive  89/391/EEC)35  and  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  (twelfth
individual Directive within the meaning of Article 16(1)  of  Directive  89/391/EEC).36  These
Directives lay down minimum requirements for the health and safety of workers  engaged in
the  surface  and  underground  mineral–extractive  industries.  Certain  measures  that  operators
have  to  take  for  the  protection  of  workers  will  also  be  relevant  from  an  environmental
protection  standpoint.  This  Proposal  is  therefore  consistent  with  earlier  health  and  safety
legislation,  and  even  adds  to  it  since  an  enhanced  level  of  environmental  protection  would
also entail further improvement in workers’ protection.

The  security  of  energy  supply  within  the  EU  will  not  be  unduly  affected  by  this  Proposal,
because the Proposal limits itself to those measures that are strictly necessary in order to fulfil
the objectives of EU environmental policy. The vast majority of the measures contained in the
Proposal are already now best practice and often a statutory requirement at national level.

This  Proposal  is  in  line  with  industrial  policy,  including  policy  applying  to  SMEs.
Accordingly, it contains only those measures that are necessary to reach the set objectives. In
particular, the exclusion of inert non-hazardous waste from most of the provisions means that
this Proposal will not affect the quarrying sector of the extractive industries to any significant
extent. This sector is mainly composed of SMEs across the EU.

In terms of competitiveness and competition, the present Proposal sets a level playing field
across the EU, thus helping to avoid distortions in the production of raw materials needed for
manufacturing  purposes.  Consequently,  it  is  consistent  with  Community  policies  on
competition and the internal market.

The minimum requirements laid down in the Directive could also be of use in assessing the
environmental  compatibility  of  extraction  projects  in  third  countries.  For  instance,  this
instrument could become a useful tool to check that projects receiving Community funding in
the context of development aid include the necessary measures to prevent or reduce as far as
possible  negative  effects  on  the  environment  of  third  countries37.  It  could  also  constitute  a
useful benchmark for European companies with respect to their  extraction  activities in third
countries,  especially  in  developing  countries,  by  promoting  the  implementation  of  best
practices to operations carried out outside the EU territory.

35

36

37

OJ L 348, 28.11.1992, p. 9.
OJ L 404, 31.12.1992, p. 10.
Commission Communication (COM (2000)424 final) providing a compendium of policy guidelines in
specific  areas  or  sectors  of  co-operation  establishes,  in  its  section  2.4  on  "Mineral  resources
development",  that  the  sustainable  development  of  the  mineral  sector  relies,  inter  alia,  on
technical/financial  assistance  for  "development  of  environmental  regulatory  frameworks  and  their
enforcement".

16

                                                
10.

CONTENT OF THE PROPOSAL

Article 1 sets out the objective of the Proposal.

Article 2 defines the scope of the Proposal.

The Proposal covers waste, i.e. topsoil, overburden, waste rock and tailings, generated within
the context of land-based extraction and/or treatment of mineral resources, with the exception
of wastes that are not specific to the extractive industries. These other wastes, e.g. household
waste,  waste  oils,  spent  batteries,  end-of-life  vehicles,  will  continue  to  be  covered  by  the
relevant provisions of the  Waste  Framework  Directive  (75/442/EEC), the  Landfill  Directive
(1999/31/EC)  or  other  specific  EU  legislation,  depending  on  the  objective  and  scope  of  the
particular waste management operation.

The scope is phrased in such a way as to coincide with the exemption under Article 2(b)(ii) of
the Waste Framework Directive in order to ensure legal clarity.

Waste  from  the  offshore  extractive  industries  is  excluded  from  the  proposed  Directive’s
material scope because the nature of these operations makes the technical measures contained
in  this  Proposal,  which  are  designed  for  land-based  minerals  extraction,  impracticable  to
apply.  This  waste  will  continue  to  be  covered  by  the  provisions  of  the  Waste  Framework
Directive.

The  Proposal  excludes  from  its  scope  unpolluted  soil  and  makes  inert  non-hazardous  waste
subject to a limited set of requirements, given the relatively reduced risks associated with their
management.  This  is  in  line  with  the  similar  exclusion  from  the  scope  of  the  Landfill
Directive. The Commission is of the opinion that in this way it is possible to strike a balance
between  legal  requirements  on SMEs,  which usually  generate such  waste,  and  protection  of
the environment.

Waste  from  extraction  and/or  treatment  of  mineral  resources  that  is  transported  outside  the
area where it is generated (e.g. drill cuttings from borehole drilling consigned to a third party
contractor  for  disposal)  is  also  excluded  from  the  scope  of  this  Proposal  and  remains  only
subject  to  the  provisions  of  the  Landfill  Directive.  This  is  to  avoid  any  loophole  in  EU
legislation in respect of those waste management operations not carried out on site.

As  for  prospecting,  given  the  small  quantity  of  waste  involved  and  in  order  to  avoid  any
unnecessary burdens on the extractive industry, the Commission proposes to leave the current
legislative  regime  unchanged.  This  in  practice  means  that  the  provisions  of  Directive
75/442/EEC apply, in particular the requirements of Articles 4 and 8 thereof.

The  Commission  is  of  the  opinion  that  waste  from  the  extractive  industries  has  certain
peculiarities and properties that make the application of the Landfill Directive unsuitable. It is
for  this  reason  that  the  Proposal  exempts  waste  covered  by  it  from  the  requirements  of  the
Landfill Directive.

Article 3 contains the definitions for the purposes of this Directive.

Inert waste is defined in Article 3(2) in the same way as it is defined in the Landfill Directive.

The  definition  of  mineral  resource  (Article  3(3))  contains  a  non-exhaustive  list  of  minerals
and  organic  and  inorganic  compounds  that  are  regarded  as  being  part  of  the  economic
activities of the extractive industries.

17

The  definition  of  extractive  industries  (Article  3(4))  is  sampled  from  a  similar  definition
contained in Directives 92/91/EEC and 92/104/EEC. In this context, the use of terms such as
“mine”  and  “quarry”  has  been  avoided  in  order  to  clarify  that,  despite  the  legal  differences
that may exist in Member States according to the type of mineral extracted and/or treated, this
Proposal is about waste coming from all types of extractive sectors.

Treatment  is  defined  in  Article  3(5)  in  such  a  way  as  to  specify  that  smelting  and/or
metallurgical  operations  involving  the  use  of  thermal  processes  are  not  concerned  by  this
Proposal.  On  the  contrary,  the  definition  includes  waste  generated  from  the  treatment  of
minerals which are treated in a different location from where they were extracted (e.g. bauxite
imported from third countries that generates red mud once treated for producing alumina).

Article  4  establishes  a  general  requirement  for  the  safe  management  of  extractive  waste.
Measures  to  be  taken  are  to  be  based  on  best  available  techniques  as  defined  in  Directive
96/61/EC.  These  techniques  are  being  drawn  up  by  the  European  IPPC  Bureau  in  Seville,
Spain,  and  will  be  published  in  the  form  of  a  BAT  (Best  Available  Technique)  Document
shortly.  Through  this  method,  the  Commission  is  of  the  opinion  that  the  best  level  of
environmental  protection  can  be  guaranteed  in  a  manner  that  gives  legal  certainty  and  does
not create an unnecessary burden for the industry.

Article 5 provides for the production of a waste management plan on the part of the operator.
This provision, in connection with Article 7(2)(c), will ensure that the operator provides the
competent authority with all the information needed relating to preventing or minimising the
impacts of waste management on the environment.

By way of cross-reference with Articles 11 and 12 and Annex II, the waste management plan
and its content play a pivotal role in the Proposal. The Commission is of the opinion that such
a waste management plan will be an invaluable tool for the operator and will allow due and
early planning of waste management options with a view to minimising waste production and
its harmfulness whilst also encouraging recovery and beneficial reuse of extracted material.

Article  5(6)  provides  for  the  explicit  possibility  of  merging  the  content  of  this  waste
management  plan  with  other  similar  instruments  developed  on  the  basis  of  national  or
Community legislation of relevance. This will avoid unnecessary duplication of efforts on the
part of the operator and the competent authority.

Article  6,  in  connection  with  Annex  I,  contains  one  of  the  key  elements  of  this  Proposal,
namely  the  obligation  for  an  operator  to  prevent  major  accidents  and  their  negative
consequences  for  humans  and  the  environment.  In  order  to  avoid  any  duplication  of
legislation,  waste  facilities  subject  to  the  requirements  of  Directive  96/82/EC  as  amended
(Seveso II) will not be covered by the measures laid  down  in this Article.  The Commission
takes the view that in this way it will honour the pledge it made when adopting the Proposal
for the amendment to the Seveso II Directive and ensure that all waste sites in the extraction
industries  that  have  the  potential  to  cause  a  major  accident  are  made  subject  to  sound
management  practices,  in  particular  periodic  inspections  by  the  competent  authority  and
notification to the public.

The Safety Manager to be appointed by the operator for the daily supervision of the accident
prevention  policy  does  not  need  to  be  a  different  individual  from  the  actual  operator.
However,  the  Commission  is  of  the  opinion  that,  by  highlighting  the  need  for  such  a
professional  figure  to  be  present  and  responsible  for  accident-prevention  policy,  more  care
and attention will be paid to the everyday operations involved.

18

The  remit  of  this  Article  is  limited  to  high-risk  waste  facilities  (category  A),  because  in
principle these facilities are more likely to cause serious accidents. Indeed, the criteria defined
in Annex  III of  the  Proposal  will  ensure  that  all  waste  facilities  likely  to  constitute  a  major
threat to the environment and human health will be classified as belonging to category A.

In  accordance  with  the  provisions  of  the  Aarhus  Convention,38  as  signed  by  the  European
Community, and in particular Article 7 thereof, Article 6(6) requires Member States to ensure
that  the  public  concerned  are  given  early  and  effective  opportunities  to  participate  in  the
preparation or review of the external emergency plan.

Article 7  requires Member States to ensure that operators  hold  permits  and  specifies  which
elements have to be part of the permit itself. The cross-reference made to Articles 5, 6 and 14
ensures that all the relevant provisions of the Proposal in terms of  environmental  protection
are  in  fact  considered  in  the  application  and  eventually  in  the  permit  itself.  In  this  way  the
operator will have to provide the competent authority with all the information needed for an
appropriate  assessment  of  the  application.  The  contents  of  the  permit  will  allow  due
enforcement of the provisions of this Proposal.

Article  8  allows  scrutiny  of  the  permit  by  the  public  in  accordance  with  the  principles  and
obligations  contained  in  the  Aarhus  Convention.  The  Commission  is  of  the  opinion  that
giving such a possibility to the public will help to shed transparency on the process and favour
the  extractive  industries  in  their  attempts  to  gain  public  confidence  in  their  business.  The
wording of this Article is in line with Article 6 of the Aarhus Convention and allows for the
information of the public at large of the application for a permit and the participation of the
public concerned in the decision making process.

Article  9,  in  conjunction  with  Annex  III,  provides  for  a  classification  system  of  waste
facilities that takes into account the likely effects that an accident involving the release of the
waste contained in the facility may have. The criteria for classifying the facilities will have to
be further developed via comitology, as the matter is highly technical in nature and requires
ad hoc studies.

Article 10  provides  for  certain  measures  pertaining  to  backfilling,  i.e.  waste  placed  back  to
the excavation void.  While encouraging  this method,  the Commission is of the  opinion  that
backfilled  waste  needs  nevertheless  some  attention  in  order  to  ensure  its  stability,  prevent
water pollution and allow for adequate monitoring.

Article 11 establishes general requirements and objectives in respect of the construction and
maintenance of waste facilities. The Proposal does not enter into the details of the engineering
techniques  to  be  used,  as  this  was  not  felt  to  be  appropriate  for  such  an  instrument.  The
Commission is of the opinion that the competent authority is in a better position to evaluate
whether the operator follows the guidance given on the matter by the BAT Document.

Article 12 provides for measures to ensure proper closure and monitoring of waste facilities.
It lays down the tasks that have to be carried out by the operator and the role of the competent
authority in supervising closure and aftercare procedures. The Commission aims in this way
to  stop  any  “walk  away”  practices  on  the  part  of  unscrupulous  operators  or  in  the  event  of
extraction  companies  falling  into  insolvency,  through  measures  that  are  in  line  with  the
polluter pays principle and do not constitute an unnecessary burden on the industry.

38

United Nations Convention of 25 June 1998 on Access to Information, Public Participation in Decision-
making and Access to Justice in Environmental Matters.

19

                                                
Article 13 contains measures of a general nature in order to prevent waste that is deposited in
a  waste  facility  from  causing  any  negative  effects  on  the  environment,  notably  on  water
and/or soil. It makes an appropriate link with existing Community legislation in  the  field of
water, in order to avoid any duplication of requirements.

In  particular,  this  article  includes  a  specific  provision  on  the  sensitive  issue  of  cyanide
management in the extractive industry. The upper limit value introduced for the concentration
of  free  cyanide  and  cyanide  compounds  in  tailings  ponds  of  50ppm  of  WAD  (weak  acid
dissociable)  cyanide  has  been  suggested  by  the  International  Cyanide  Management  Code39
developed under the auspices of the United Nations Environmental Programme (UNEP) and
the International Council on Metals and the Environment (ICME). It is the understanding of
the Commission, as confirmed  by  representatives  of  the  industry  (Euromines),  that  the  gold
extraction plants in the EU and Candidate Countries for EU accession are able to comply with
this  limit  value  without  any  doubt.  However,  the  Commission  is  of  the  opinion  that
technological  progress  in  this  field  should  be  stimulated  in  order  to  reduce  even  further  the
potential  negative  consequences  on  the  environment  from  a  cyanide  spill.  To  this  effect,  a
limit  value  of  10  ppm  WAD  cyanide,  to  be  achieved  in  two  steps  within  ten  years  of  the
transposition date of the Directive, seems perfectly achievable (it is already achieved today in
certain  gold-processing  plants).  Member  States  are  free  to  adopt  stricter  environmental
protection measures that those prescribed in this legislative initiative.

Article 14 provides for the  establishment of a  financial  guarantee system on the  part of  the
operator prior to the beginning of disposal operations. Such a guarantee is meant to cover any
expenses that a third party would incur in rehabilitating the site in case of insolvency or “walk
away” practice of the operator and can include schemes based on compliance with a corporate
financial  test.  The  text  of  this  Article  has  been  carefully  worded  in  order  to  avoid  any
unnecessary burden on the industry while still achieving its important objective.

Article 14(5) clarifies that, in accordance with the polluter pays principle and in line with the
provisions on environmental liability with regard to waste management set out in the Proposal
for  a  Directive  on  environmental  liability  with  regard  to  the  prevention  and  remedying  of
environmental  damage,40  operators  engaged  in  the  extractive  industries  are  subject  to
appropriate liability cover in respect of environmental damage or imminent threat of damage
caused  by  their  operations.  Annex  I  to  the  above-mentioned  Proposal  covers  “waste
management  operations,  including  the  collection,  transport,  recovery  and  disposal  of  waste
and hazardous waste, including the supervision of such operations and after-care of disposal
sites,  subject  to  permit  or  registration  in  pursuance  of  Council  Directive  75/442/EEC  of
15 July  1975  on  waste41  and  Council  Directive  91/689/EEC  of  12  December  1991  on
hazardous waste.42 Those operations  include,  inter  alia,  the  operation  of  landfill  sites  under
Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste43 and the operation of
incineration  plants  under  Directive  2000/76/EC  of  the  European  Parliament  and  of  the

39

40

41

42

43

to 

http://www.cyanidecode.org/.
Directive …/…/EC of […] of the European Parliament and the Council on environmental liability with
regard 
the  prevention  and  remedying  of  environmental  damage  (Commission  Proposal
COM(2002)17 final, 23.1.2002).
OJ L 194, 25.7.1975, p. 39. Directive as last amended by Commission Decision 96/350/EC of 24 May
1996 adapting Annexes IIA and IIB thereto (OJ L 135, 6.6.1996, p. 32).
OJ  L  377,  31.12.1991,  p.  20.  Directive  as  amended  by  Council  Directive  94/31/EC  of  27  June  1994
(OJ L 168, 2.7.1994, p. 28).
OJ L 182, 16.7.1999, p. 1.

20

                                                
Council of 4 December 2000 on the incineration of waste44”. As explained in section 5.1 of
this  Explanatory  Memorandum,  such  waste  includes  waste  from  the  extractive  industries.
Hence,  the  latter  is  already  subject  to  the  provisions  of  the  proposed  Directive  on  the
prevention and remedying of environmental damage.

Article 15 establishes a procedure for consultation among neighbouring countries in order to
exchange  information  and  ensure  that  the  public  is  properly  informed  about  waste  facilities
that could have negative consequences on their environment.

Article 16 lays down one of the key measures of the Proposal, namely the obligation for the
competent  authority  to  inspect  any  waste  management  facilities.  The  experience  gained  in
recent  years  with  the  serious  accidents  of  Aznalcóllar  and  Baia  Mare  has  prompted  the
Commission  to  indicate  that  a  strong  enforcement  regime  is  necessary  if  serious  negative
consequences on the environment have to be avoided.

Article  16(2)  requires  the  operator  to  keep  records  on  the  construction  and  further
development of the waste facility, and to ensure their appropriate handover in the event of a
change of operator. Again, the Commission is of the opinion that such a sound practice could
avoid  serious  accidents  and  limit  their  consequences,  as  the  lack  of  transfer  of  information
about facilities that may have been in existence for tens of years is an important factor in their
mismanagement.

Article 17 stipulates that Member States have to provide the information needed to assess the
effectiveness of this legislation and to estimate the future accrual of waste from the extractive
industries. Information on accidents and near accidents is in particular required, so that it can
then be made usefully available to Member States concerned.

Article  18  requires  Member  States  to  lay  down  penalties  applicable  to  breaches  of  the
national provisions adopted pursuant to this Directive in order to ensure proper dissuasion of
inappropriate behaviour by undertakings.

Article  19  provides  for  an  exchange  of  information  on  methods  of  carrying  out  inventories
and  rehabilitating  closed  waste  facilities  that  are  a  cause  of  serious  pollution  to  the
environment.  This  will  contribute  towards  reducing  environmental  pressures  from  a
significant "burden of the past".

It also provides for dissemination of information on best available techniques. As a matter of
fact,  since  2001  the  Commission  has  been  organising  an  exchange  of  information  on  best
available  techniques  on  the  management  of  waste  in  the  extractive  sector  between  Member
States and the organisations concerned and plans to publish the results of this work in 2004.
This  information  should  thus  be  taken  into  account  by  the  Member  States  when  they
implement this Directive.

Article  20  sets  out  implementing  and  amending  measures  to  be  taken  by  the  Commission
with  the  assistance  of  the  Committee  provided  for  in  Article  21.  This  Committee  is
established under Directive 75/442/EEC and will involve experts designated by the Member
States with the necessary competence on the management of waste from extractive industries.

Annex  I  contains  a  list  of  elements  that  have  to  be  considered  when  drawing  up  a  major-
accident prevention policy as well as the items that have to be made public.

44

OJ L 332, 28.12.2000, p. 91.

21

                                                
Annex II provides for the parameters to be analysed in the context of the procedure of waste
characterisation.

Annex  III  lays  down  the  criteria  to  be  used  in  determining  the  risk  category  of  a  waste
facility.

11.

11.1.

IMPACT  ASSESSMENT  FORM:  THE  IMPACT  OF  THE  PROPOSAL  ON  BUSINESS  WITH
SPECIAL REFERENCE TO SMALL AND MEDIUM-SIZED ENTERPRISES (SMES)

Taking  account  of  the  principle  of  subsidiarity,  why  is  Community  legislation
necessary in this area?

Article  2  of  the  Waste  Framework  Directive  states  that  “waste  resulting  from  prospecting,
extraction, treatment and storage of mineral resources and the working of quarries” has to be
excluded from the Directive’s provisions if it is “already covered by other legislation”. It also
provides that “specific rules for particular instances or supplementing those of this Directive
on the management of particular categories of waste may be laid down by means of individual
Directives”.

In  the  light  of  disparities  of  rules  at  national  level  and  the  transboundary  nature  of
environmental impacts from extractive industry waste, it is necessary to lay down minimum
requirements  at  EU  level  in  order  to  improve  the  environmental  and  safety  aspects  of  the
management of waste disposal facilities.

The  proposed  Directive  is  seen  as  being  the  best  way  to  restore  clarity  concerning  the
management of waste from the extractives industries, and to set a framework for action which
enjoys  the  support  of  both  the  Commission,  the  Member  States  and  the  industry  itself.  The
advantages of having a common set of rules across the whole of the EU is seen as a positive
factor, adding further support to the concept of EU legislation rather than a range of national,
regional and local controls of varying efficacy.

11.2. What are the main aims of the proposed Directive?

The proposed Directive seeks to set a framework within which operators from the extractive
industry  and  Member  States  can  agree  on  appropriate  actions.  It  specifically  seeks  to  avoid
being  over-prescriptive  in  an  industrial  sector  that  is  characterised  both  by  facilities  which
may remain operational over hundreds of years, and by rapid technical change.

The two main technical aims of the proposed Directive are:

– 

– 

to  minimise  the  adverse  effects  of  polluted  drainage  from  waste  management
facilities,  which  have  the  potential  to  create  very  long-term  environmental  impacts
persisting  well  after  both  the  facility  and  the  associated  mine  or  quarry  have  been
closed; and

to prevent, or minimise the impacts of, accidents, and in particular to ensure the long-
term stability of tailings dams and ponds, given that dam bursts have the potential to
create widespread environmental damage, including threats to human life.

22

The main administrative procedures set out in the proposed Directive concern:

– 

– 

– 

the  planning,  licensing  and  eventual  closure  of  waste  management  facilities
associated with the extractive industry, with particular measures applicable to those
facilities with the potential to create transboundary impacts;

mechanisms for dealing with major accidents and unexpected events;

the  introduction  of  mechanisms  for  guaranteeing  that  all  operators  from  the
extractive  industry  put  (and  keep)  in  place  sufficient  financial  guarantees  to  ensure
the eventual full reinstatement of the waste management facilities for which they are
responsible,  whatever  their  status  or  financial  health  at  the  time  when  such
reinstatement falls due.

11.3. Who will be affected by the proposed Directive?

11.3.1. Sectors of business

From the business sector, all (or virtually all) operators of mines and quarries will be affected
by  the  proposed  Directive,  as  will  all  on-shore  oil  and  gas  operators.  In  this  context,
‘operators’ include those parties involved in the extraction, treatment and storage of ores and
minerals.  There  will  also  be  impacts  on  national,  regional  and  local  government
administrations,  including  autonomous  and  semi-autonomous  statutory  regulators  and  other
competent authorities.

The extent of regulatory impact will vary widely, depending on the nature and volume of the
wastes  that  each  operation  generates,  and  the  nature  of  the  licensing  regimes  under  which
their operators currently work. The operations likely to face the lowest impacts as a result of
the proposed Directive are those that satisfy all of the following criteria:

– 

– 

– 

– 

those that produce an ore or mineral that is wholly or substantially inert, and do so
without using either water or chemicals; and

those  that  use  open-pit  mining/quarrying  techniques,  replacing  their  topsoil,
overburden and waste rock in the worked-out area; and

those  that  work  entirely  above  the  water  table  with  no  (or  minor)  risk  of  flooding;
and

those  that  are  already  licensed  and  regulated  on  matters  of  environmental
performance and safety.

Although the proposed Directive makes no distinction between waste facilities located above
and below the water table (third indent above), it is clear that those which produce inert waste
only  (first  indent  above),  and  are  not  flooded  on  a  regular  or  permanent  basis,  will  have
simpler waste management plans and risk assessments. These will in turn be both simpler to
implement and cheaper to produce. This judgement does not extend to facilities disposing of
non-inert waste, which can pollute groundwater via leachate, whether the waste sits within or
above an aquifer.

23

The  operations  likely  to  face  the  highest  impacts  are  those  that  meet  any  of  the  following
criteria  (unless  they  are  already  licensed  and  regulated  in  some  detail  on  matters  of
environmental performance and safety):

– 

– 

– 

– 

those that  produce  an ore,  mineral  or  waste  that  is  hazardous  (or  chemically  active
under “normal” circumstances) in its own right; and/or

those that produce an ore or mineral from an ore body with the potential to generate
acid or alkaline pollution; and/or

those that use water to process their ore or mineral, or to store their waste; and/or

those that use chemicals (such as cyanide or xanthates) to process their ore.

11.4. What will businesses have to do to comply with the proposed Directive?

11.4.1. Overview

Operators  from  the  extractive  industry  will  face  a  range  of  tasks  as  a  consequence  of
transposition  of  the  proposed  Directive.  For  many  operators  -  particularly  those  in  current
Member States - these tasks will not be wholly new, since the  extractive industry is already
widely  regulated,  and  most  operators  already  have  policies  and  mechanisms  in  place  to
address the issues raised by the proposed Directive.

A  permit  is  already  required  under  the  terms  of  the  Waste  Framework  Directive,  so  the
marginal  impact  of  the  proposed  Directive  should  be  limited.  Many  of  the  obligations  (and
their associated costs) might be made easier to meet by greater clarity at the level of operators
and competent authorities. The BAT Document can be expected to provide some clarity, but
at national level Member States could help further by developing and publishing model plans,
policies and technical guidance to which operators and individual officials can refer as a way
of avoiding having to solve each challenge from first principles.

11.4.2. When costs may arise

The new obligations  (and  additional costs)  that  mineral  extraction operators are expected  to
face can be grouped under three headings:

– 

– 

– 

one-off costs arising directly from the need to adapt a current or proposed facility to
the regulatory and operating regime created by the proposed Directive;

additional annual costs applicable during the operational phase of the facility;

additional annual costs applicable during the after-care phase of the facility.

Articles  5-13  inclusive  of  the  Proposal  are  likely  to  create  some  one-off  costs  for  many
operators, though some operators will not be directly affected by some  Articles. The largest
costs  are  likely  to  be  those  associated  with  Articles  11  (construction  and  management  of
waste  facilities)  and  13  (prevention  of  water  and  soil  pollution).  Articles  5,  6  and  12-13
inclusive  are  likely  to  create  some  additional  annual  operational  phase  costs  for  many
operators. Articles 12 (closure and after-care) and (to a lesser extent) 13 (prevention of water
and  soil  pollution)  are  likely  to  create  some  additional  after-care  phase  costs  for  most
operators.

24

Bearing in mind that the cost of establishing a financial guarantee is quite distinct from other
costs  and  is  expected  to  contribute  a  significant  share  of  the  total  costs,  Article  14  is
considered in more detail. Article 14 seeks to address the risk that an operator might declare
bankruptcy  during  or  at  the  end  of  the  operational  phase,  leaving  no  resources  to  cover  the
closure and after-care phases. It does this by requiring operators to establish an upfront stand-
alone  financial  guarantee  of  sufficient  value  to  cover  all  such  costs.  Ireland  and  Canada
operate  a  system  comparable  to  the  one  provided  for  in  Article  14.  The  normal  forms  of
financial guarantee are either cash, letters of credit or bank guarantees, insurance surety bond
guarantees,  and/or  financial  guarantee  insurance.  Cash  is  not  a  realistic  option  for  most
companies,  and  nor  would  it  be  an  economically  efficient  mechanism  unless  the  company
concerned  had  access  to  an  excess  of  capital.  Letters  of  credit  and  bank  guarantees  come
straight “off the top” of a company’s overdraft facility. They reduce by an equivalent amount
the  capital  which  can  be  borrowed,  and  may  well  add  to  the  overall  cost  of  the  company's
borrowing. Companies without a credit rating of ‘AA’ or better would be unlikely to find this
a  practical  (or  affordable)  option.  That  leaves  bonds  and  similar  guarantee  mechanisms
(which  may  be  ‘conditional’  or  ‘on  demand’).  Such  guarantees  are  normally  arranged  by  a
specialised  intermediary,  and  unless  the  operator’s  debt  is  rated  as  ‘investment  grade’,  the
guarantee  is  likely  to  have  to  be  secured  against  some  form  of  collateralised  counter-
indemnity  arranged  by  the  operator.  Operators  with  an  established  track  record,  and
particularly  those  with  a  diversified  and  strong  parent  company,  can  secure  their  bonds
against their balance sheet (i.e. the cost of the collateral is the same as their marginal cost of
capital). Less robust and lesser known companies may well struggle to arrange the necessary
guarantees.  Reports  from  Ireland  put  the  annual  cost  of  the  necessary  financial  guarantee
(bond) at between 0.5 and 0.75% of the value of the bond. Reports from Canada suggest that
the  cost  is  more  like  1.0%.  For  every  €1  million  of  bonded  guarantee,  1.0%  amounts  to
€10,000 per year.

11.5. What  will  national,  regional  and  local  administrations  have  to  do  to  comply

with the proposed Directive?

National  administrations  will  have  to  create  (or  adapt)  and  then  maintain  regulatory,
inspection and enforcement systems capable of meeting the obligations established for them
by  the  proposed  Directive.  The  extent  to  which  some  of  these  obligations  are  delegated  to
regional  and/or  local  administrations  will  in  some  cases  be  influenced  by  the  country’s
geology,  which  in  turn  determines  whether  (and  how  widely)  commercially  viable  mineral
extraction operations can be supported.

Most  of  the  additional  costs  that  will  fall  on  administrations  will  be  related  to  the  cost  of
employing additional technical and administrative staff.  After the  first 5-10  years,  by  which
time  the  new  regulatory  regime  should  be  “bedded  in”,  these  costs  should  decline.  The
number of additional staff needed, and the technical qualifications that they will require, will
vary from country to country to reflect the number and type of closed, current and potential
future mines, quarries and other extractive industry facilities that they have. One five-person
unit at national government level plus a matching five-person unit in the competent authority
might  be  expected  to  cost  slightly  less  than  €1  million  per  year  (salaries,  other  costs  of
employment,  office  space  and  other  necessary  facilities).  Additional  administrative  capacity
could be needed at the regional or local level.

25

11.6. What economic effects is the proposed Directive likely to have?

It  is  important  to  note  that  the  cost  estimates  set  out  below  are  based  on  the  fact  that  the
Landfill  Directive  (1999/31/EC)  is  currently  not  applied  to  waste  management  facilities
associated with the extractive industry. In the light of the potential implications of the Waste
Framework and  Landfill Directives, it can reasonably be argued that, were the provisions of
these Directives to be applied in full to waste from extractive industries, the incremental cost
of applying the provisions of this Proposal would be marginal.

According to the findings of an evaluation carried out on behalf of the Commission,45 the Net
Present Value46 (NPV) of the total cost flow is just under €670  million, of which the major
shares  are  expected  to  be  borne  by  the  construction  aggregates  sector  (50%),  the  deep  coal
mining sector (21%), the deep metal mining sector (12%) and the special clays and gypsum
sector (9%). These estimates cover both the 15 existing Member States and the 10 Applicant
Countries,  and  are  based  on  the  assumption  that  many  existing  facilities  will  have  to  adapt
their waste management practices to some degree.

The evaluation suggests  that  the  NPV of  the  costs  associated  with  deep  metal  mines  over  a
40-year  life would be about  €83  million.  To  put  this  into  context,  with  metal  production  of
around  2  million  tonnes  per  year  (in  very  rough  terms),  and  therefore  of  80  million  tonnes
over 40 years, this would equate to approximately €1 per tonne of metal mined. Although the
figures on which the evaluation is based are subject to considerable uncertainty, the outcome
cited above suggests that - in percentage terms - the additional costs that would be absorbed
by the consumers or passed on to the consumers of metals would be small.

A  study  in  2001  on  "Costs  of  improving  the  management  of  mining  waste"47  used  a  small
sample of mines to estimate the overall cost of waste management in metal mines. The cost
was reckoned to be just under €15 per tonne of metal mined for zinc mines, and about twice
that for copper mines.

Combining the output from that study with the estimate cited above (of €1 per tonne of metal
mined  for  new  waste  management  measures),  it  appears  that  the  rise  in  waste  management
costs  resulting  from  this  Proposal  would  fall  within  a  range  of  5-10%  of  current  waste
management costs for many mines.

For  construction  aggregates  the  high  contribution  to  the  overall  cost  is  a  reflection  of  the
relatively  very  large  number  of  quarries  (20,000  in  the  present  15  Member  States  and  an
estimated 5,000 in the Applicant Countries, most of them small and medium enterprises). The
NPV of the costs associated with construction aggregates has been estimated at €335 million
(i.e.  €33.5  million  a  year  when  spread  over  a  typical  10-year  quarry  operating  life).  This

45

46

47

Financial  evaluation  of  a  Proposal  for  a  Directive  on  waste  from  the  extractive  industry,  Symonds
Group,  November  2002.  The  cost  estimates  cited  in  the  text  above  come  from  an  updating  exercise
undertaken in April 2003 based on the revised Proposal for a Directive.
The concept of Net Present Value is widely used by financial analysts to compare different cash flows
(i.e.  sequences  of  costs  and/or  receipts  spread  over differing  periods  of  years).  It  calculates  a  sum  of
today’s money which represents a specified cash flow at a specified rate of interest. It therefore takes
into account the cost of borrowing and/or using  money, and the  fact that a Euro in the hand is  worth
more than a promise of a Euro at some future point.
A study  on  the  costs  of  improving  the  management  of  mining  waste,  Symonds  Group,  October  2001
(available  at  http://europa.eu.int/comm/environment/waste/studies/mining/mining_cost.pdf).  The  costs
assumptions  made in this  study  considered  the  situation  in  the  extractive  industry  sectors  prior  to  the
entry into force of the provisions of the Landfill Directive.

26

                                                
compares with  a  sector turnover (in the 15  present Member  States  only) of  €35,000 million
and  production  of  around  2,650  million  tonnes  of  construction  aggregates  a  year48.  The
additional costs would therefore be equivalent to approximately 0.1% of turnover and €0.01
per tonne of aggregate sold. Additional costs for small and medium quarries are expected to
be  limited  to  around  €425  per  year  during  operation,  and  €625  per  year  during  the  after-
closure phase.

11.7.

Does  the  proposed  Directive  contain  measures  to  take  account  of  the  specific
situation of Small and Medium-sized Enterprises (SMEs)?

Although no exemptions from the obligations created by the proposed Directive are offered to
SMEs per se, those exemptions which are allowed will apply primarily to SMEs in practice.
First  and  foremost,  unpolluted  soil  is  beyond  the  scope  of  this  Proposal.  Furthermore,  inert
waste is only subject to a limited set of requirements. Most of the SMEs that could have been
potentially  affected  by  this  Proposal  (e.g.  quarries  of  ornamental  stone,  industrial  minerals,
etc.)  would  only  generate  non-hazardous  inert  waste  and  unpolluted  soil.  Thus,  either  they
will not be concerned by the measures of this proposed Directive or they will be concerned by
a limited  number  of measures. Moreover, Article 6  (dealing with  major  accident  prevention
and the provision of information to the public) applies only to facilities classified as Category
A. The same applies to Article 15 (dealing with transboundary effects). Although some mines
and quarries operated by SMEs will be classified in Class A, it would be difficult to argue that
such an SME should be held to a lower standard of public safety than its peers.

12.

CONSULTATION WITH STAKEHOLDERS

To  ensure  the  broadest  consultation  possible  on  the  potential  scope  and  content  of  this
Proposal,  the  Environment  Directorate-General  of  the  Commission  organised  a  number  of
meetings, workshops and technical seminars, launched a number of studies and set up a web
page49 on the initiative.

A study on the “Costs of Improving the Management of Mining Waste” was completed by the
Symonds  Group  consultancy  in  October  2001  and  considered  the  economic  implications  of
implementing  waste  management  measures.  A  second  study  on  the  technical  aspects  of
mining waste management (“Management of Mining, Quarrying and Ore-Processing Waste in
The European Union”) by the BRGM consultancy was published in April 2002 and reviewed
waste  quantities  and  management  practices  within  the  EU.  Both  studies,  upon  finalisation,
were made available on the aforementioned web page of DG ENV.

Three working documents have also been drawn up to serve as a basis for ad hoc discussions
with all stakeholders (Member States, Accession Countries, different sectors of industry and
NGOs). The results of the aforementioned studies have been used in drafting these working
documents. These working documents have also been made available on the web page, along
with  the  written  comments  of  the  consultees.  An  e-mailbox  has  also  been  set  up  for  the
submission of comments by various bodies or persons interested.

The positions of the consultees (Member States, Accession Countries, industry, NGOs) can be
summarised as follows:

48

49

www.uepg.org
http://europa.eu.int/comm/ environment/ waste/ mining.htm.

27

                                                
12.1. Member States and Candidate Countries

Three meetings with representatives of the Member States and the Candidate Countries were
held.

Most  countries  welcome  the  European  Commission's  initiative  of  proposing  a  Directive
designed to improve the management of waste from the extractive industries. The Proposal is
also  seen  as  an  opportunity  to  establish  a  comprehensive  legal  framework  for  this  waste
stream, bearing in mind that the provisions of the Landfill Directive are deemed unsuitable for
it.

Major suggestions made and concerns expressed addressed the following issues:

– 

– 

– 

– 

The scope of the Directive should focus on mining waste with the highest potential
for environmental damage and avoid, for example, putting an unnecessary burden on
the management of inert non-hazardous waste or waste from prospecting operations.
It  is  also  argued  that  certain  requirements  were  overly-prescriptive  and  that  many
issues  should  rather  be  left  to  be  dealt  with  at  Member  State  level  or  in  the  BAT
document.

The  classification  of  waste  facilities  is  a  crucial  matter  since  it  determines  the
application of important provisions of the Directive. A flexible classification scheme
is  favoured,  which  takes  full  account  of  the  operating  conditions  and  is  therefore
based on a risk assessment process.

The  Technical  Annexes  need  not  be  too  detailed  and  it  is  considered  more
appropriate to deal with such technical matters in the BAT reference document. To
that effect, it is also suggested that the Directive make sufficient references to BAT.

The requirement to draw up  an inventory of  abandoned mining  waste facilities  and
the resulting obligations for rehabilitation are regarded as a cumbersome task which
should not be regulated at EU level.

12.2.

Industry

Several  business  organisations  were  consulted  and  made  comments  during  2001  and  2002.
They include:

IMA (Industrial Minerals Association) – Europe
EAA (European Aluminium Association)
UK Coal
Euromines (European Association of Mining Industries, Metal Ores & Industrial Minerals)
British Aggregates Association
Bundesverband Baustoffe Steine+Erden e.V. (German Building Materials Association)
CBI (Confederation of British Industries)
CEAMIM (Comité de las Empresas Andaluzas de Minería Metálica)
CECSO (European Solid Fuels Association)
CEPMC (Council of European Producers of Materials for Construction)
CERAME-UNIE (Liaison Office of the European Ceramic Industry)
CLC (Cobre Las Cruces S.A.)
FEAD (European Federation of Waste Management and Environmental Services)
OGP (International Association of Oil and Gas Producers)
RNGM (Rio Narcea Gold Mines S.A.)

28

The BANKS Group (UK opencast coal producers)
The Mining Association of the United Kingdom
UEPG (European Aggregates Association)
WVB (Wirtschaftsvereinigung Bergbau e.V.)

Their positions are summarised below:

– 

– 

– 

Several  organisations  agree  with  the  initiative  of  establishing  a  specific  EU  legal
framework  dealing  with  waste  from  the  extractive  industries,  while  a  few  others
question  this  need.  Concerns  are  expressed  as  regards  the  potential  impact  of  the
Proposal  on  the  competitiveness  of  businesses  and  the  additional  administrative
burden that may arise. It is considered necessary to clarify the links of the Proposal
with the Waste Framework Directive, as well as with other relevant EU legislation,
existing or under preparation, and it is suggested that the proposal avoid duplicating
existing requirements, especially as regards permitting procedures.

Regarding the scope of the Proposal, it is suggested that the term “waste” be properly
defined, taking into account current practices in the extractive industry. It is argued
in  particular  that  materials  such  as  topsoil,  overburden  and  inert  waste  should  be
excluded from the scope of the Proposal or treated according to their potential risk.
Certain consultees also argue that provisions on major accidents should be left out of
the Proposal and be dealt with only by the Seveso II Directive.

As  regards  the  content  of  the  Proposal,  it  is  considered  that  the  Proposal  must  be
flexible  and  not  too  prescriptive,  and  its  requirements  should  be  proportionate  to
environmental  problems  likely  to  arise.  Most  consultees  support  the  need  for  a
classification scheme of waste facilities based on risk assessment. The arrangements
for  financial  guarantees  should  leave  sufficient  room  for  decision  to  the  Member
State authorities. It is also requested that  sufficient reference  to  the BAT  document
be made throughout the text.

12.3.

NGOs

The following environmental NGOs were involved:

EEB (European Environment Bureau)
Minewatch
WWF (World Wide Fund for Nature)

Their responses to consultation can be summarised as follows:

– 

– 

The  Commission’s  initiative  for  a  specific  legal  framework  on  mining  waste  is
welcomed.  They  stress  the  need  for  a  sufficiently  comprehensive  Proposal,  which
should  be  clearly  results-orientated  and  not  rely  too  much  on  BAT.  It  should  in
particular  adequately  cover  inert  waste,  which  may  have  significant  pollution
potential,  as  well  as  other  important  aspects  such  as  mine  voids  and  liability
insurance.

Unambiguous  wording  of  the  Proposal  is  favoured,  including  a  more  explicit
definition of “waste” and direct cross-references to other relevant EU legislation. It is
argued  that  the  inventory  of  closed  waste  facilities  would  be  less  cumbersome  to
carry  out  if  it  focused  on  significant  impacts  recorded  and  it  is  suggested  that  the
classification of facilities should draw clearly on environmental considerations.

29

12.4. Others

Comments were also received from the following:

EFG (European Association of Geologists)
Madrid School of Mines
SHCMOEI (Safety and Health Commission on the Mining and Other Extractive Industries)

With the exception of SHCMOEI, they state their support for a Proposal on the management
of  waste  from  the  extractive  industries.  The  role  of  the  competent  person  in  relation  to
accident  prevention  is  highlighted.  Other  comments  and  suggestions  made  are  broadly
reflected in the views of the Industry and NGOs set out above.

Relevant scientific and technical advice and information has also been provided by the project
'ERMITE'  (Environmental  Regulation  of  Mine  waters  In  The  EU),  funded  under  the
5th Research Framework Programme (contract no. EVK1-CT-2000-078).

30

2003/0107 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the management of waste from the extractive industries

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,50

Having regard to the opinion of the European Economic and Social Committee,51

Having regard to the opinion of the Committee of the Regions,52

Acting in accordance with the procedure laid down in Article 251 of the Treaty,53

Whereas:

(1)

The  Communication  of  the  Commission54,  entitled  “Safe  operation  of  mining
activities: a follow-up to recent mining accidents” sets out as one of its priority actions
an initiative to regulate the management of waste from the extractive industries. This
action  is  designed  to  complement  initiatives  relating  to  the  envisaged  amendment  of
Council  Directive  96/82/EC  of  9  December  1996  on  the  control  of  major-accident
hazards involving dangerous substances55 as well as the production of a best available
technique document covering waste rock and tailings from mining activities under the
auspices of Council Directive 96/61/EC of 24 September 1996 concerning integrated
pollution prevention and control.56

(2)

In  its  Resolution  of  19  June  2001  concerning  that  Communication  the  European
Parliament  strongly  supported  the  need  for  a  Directive  on  waste  from  the  extractive
industries.

50

51

52

53

54

55

56

OJ C …, …, p. …
OJ C …, …, p. …
OJ C …, …, p. …
Opinion  of  the  European  Parliament  of  [  ],  Council  common  position  of  [  ]  and  Decision  of  the
European Parliament of [ ].
COM(2000) 664 final.
OJ L 10, 14.1.1997, p. 13.
OJ L 257, 10.10.1996, p. 26.

31

                                                
(3)

(4)

(5)

(6)

(7)

Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July
2002 laying down the Sixth Community Environment Action Programme57 set as the
objective for wastes that are still generated that the level of their hazardousness should
be reduced and that they should present as little risk as possible, that preference should
be given to recovery and especially to recycling, that the quantity of waste for disposal
should  be  minimised  and  should  be  safely  disposed  of,  and  that  waste  intended  for
disposal  should be treated as  closely  as  possible  to  the  place  of  its  generation  to  the
extent  that  this  does  not  lead  to  a  decrease  in  the  efficiency  of  waste  treatment
operations.  Decision  No  1600/2002/EC  also  prescribes  as  a  priority  action,  with
reference  to  accidents  and  disasters,  the  development  of  measures  to  help  prevent
major  accident  hazards,  with  special  regard  to  those  arising  from  mining,  and  the
development of measures on mining waste. Decision No 1600/2002/EC also sets as a
priority action the promotion of sustainable management of extractive industries with
a view to reducing their environmental impact.

In  accordance  with  the  objectives  of  Community  policy  on  the  environment,  it  is
necessary to lay down minimum requirements in order to prevent or reduce as  far as
possible  any  negative  effects  on  the  environment  or  on  human  health  which  are
brought about as a result of the management of waste  from the  extractive industries,
such as tailings (i.e. the solids that remain after the treatment of minerals by a number
of techniques), waste rock and overburden (i.e. the material that extractive operations
move  during  the  process  of  accessing  an  ore  or  mineral  body),  and  topsoil  (i.e  the
upper layer of the ground).

Accordingly,  this  Directive  should  cover  the  management  of  waste  from  land-based
extractive  industries.  However,  such  provision  should  reflect  the  principles  and
priorities  identified  in  Council  Directive  75/442/EEC  of  15  July  1975  on  waste58
which, in accordance with Article 2(1)(b)(ii) thereof, continues to apply to any aspects
of the management of waste  from the extractive industries which  are  not covered  by
this Directive.

In  order  to  avoid  duplication  and  disproportionate  administrative  requirements,  the
scope of this Directive should be limited to those  particular operations considered to
be a priority for the purposes of meeting its objectives.

Accordingly, the provisions of this Directive should not apply to those waste streams
which, albeit generated in the course of mineral extraction or treatment operations, are
not  directly  linked  to  the  extraction  or  treatment  process.  Where  such  waste  is
deposited  into  or  on  to  land,  the  provisions  of  Council  Directive  1999/31/EC  of
26 April 1999 on the landfill of waste59 will apply, as in the case of waste generated at
an extraction or treatment site and transported to another location for the purposes of
its deposit into or on to land.

57

58

59

OJ L 242, 10.9.2002, p. 1.
OJ L 194, 25.7.1975, p. 39. Directive as last amended by Commission Decision 96/350/EC (OJ L 135,
6.6.1996, p. 32).
OJ L 182, 16.7.1999, p. 1.

32

                                                
(8)

(9)

(10)

(11)

Nor should the provisions of this Directive apply to waste resulting from the offshore
extraction  and  treatment of  mineral  resources,  to  the  deposit  of  unpolluted  soil  or  to
waste  from  the  prospecting  of  mineral  resources,  while  non-hazardous  inert  waste
from  the  extraction  and  treatment  of  mineral  resources  should  only  be  covered  by  a
limited set of requirements due to its lower environmental risks.

Moreover,  while  covering  the  management  of  waste  from  the  extractive  industries
which may be radioactive, this Directive should not cover such aspects as are specific
to radioactivity.

In  order  to  remain  true  to  the  principles  and  priorities  identified  in  Directive
75/442/EEC  and,  in  particular,  in  Articles  3  and  4  thereof,  Member  States  should
ensure that operators engaged in the extractive industry take all necessary measures to
prevent  or  reduce  as  far  as  possible  any  negative  effects,  actual  or  potential,  on  the
environment  or  on  human  health  which  are  brought  about  as  a  result  of  the
management of waste from the extractive industries.

These measures should be based on the concept of best available techniques as defined
in Directive 96/61/EC and, when applying such techniques, it is for the Member States
to  determine  how  the  technical  characteristics  of  the  waste  facility,  its  geographical
location  and  local  environmental  conditions  can,  where  appropriate,  be  taken  into
consideration.

(12) Member  States  should  ensure  that  operators  in  the  extractive  industry  draw  up
appropriate  waste  management  plans  for  the  treatment,  recovery  and  deposition  of
mining waste. Such plans should be structured in such a way as to ensure appropriate
planning  of  waste  management  options  with  a  view  to  minimising  waste  generation
and  its  harmfulness,  and  encouraging  waste  recovery.  Moreover,  waste  from  the
extractive industries should be characterised with respect to its composition in order to
ensure that, as far as possible, such waste reacts only in predictable ways.

(13)

In order to minimise the risk of accidents and to guarantee a high level of protection
for  the  environment  and  human  health,  Member  States  should  ensure  that  each
operator adopts and applies a major-accident prevention policy for waste. In terms of
preventive  measures,  this  should  entail  the  delivery  of  a  safety  management  system,
emergency plans to be used in the event of accidents and the dissemination of safety
information  to  persons  likely  to  be  affected  by  a  major  accident.  In  the  event  of  an
accident, operators should be required to provide the competent authorities with all the
relevant information necessary to mitigate  actual or potential environmental damage.
These  particular  requirements  should  not  apply  to  those  waste  facilities  from  the
extraction industries falling within the scope of Directive 96/82/EC on the control of
major-accident hazards involving dangerous substances.

(14) Because  of  the  special  nature  of  the  management  of  waste  from  the  extractive
industries,  it  is  necessary  to  introduce  specific  application  and  permit  procedures  in
respect of all classes of waste facilities used to receive such waste. Those procedures
should be consistent with the general permitting requirements laid down in Article 9 of
Directive 75/442/EEC.

33

(15) Member  States  should  be  required  to  ensure  that,  in  accordance  with  the  United
Nations  Convention  on  Access  to  Information,  Public  Participation  in  Decision-
making  and  Access  to  Justice  in  Environmental  Matters  of  25  June  1998  (Århus
Convention), as signed by the European Community, the public are informed about the
application  for  a  waste  management  permit  and  the  public  concerned  are  consulted
prior to the granting of a waste management permit.

(16)

(17)

It  is  necessary  to  indicate  clearly  the  requirements  with  which  waste  facilities
servicing  the  extraction  industries  must  comply  as  regards  location,  management,
control, closure and preventive and protective measures to be taken against any threat
to  the  environment  in  the  short  as  well  as  the  long-term  perspective,  and  more
especially against the pollution of groundwater by leachate infiltration into the soil.

It  is  necessary  to  define  clearly  the  classes  of  waste  facilities  used  to  service  waste
from  the  extractive  industries,  taking  into  account  the  likely  effects  of  any  pollution
resulting  from  the  operation  of  such  a  facility  or  from  an  accident  in  which  waste
escapes from such a facility.

(18) Waste  placed  back  into  the  excavation  voids  needs  also  to  be  subject  to  certain
requirements in order to protect surface and groundwater, secure the stability of such
waste, and ensure appropriate monitoring upon cessation of disposal activities.

(19) With  a  view  to  ensuring  the  proper  construction  and  maintenance  of  waste  facilities
servicing waste from the extraction industries, Member States should take appropriate
measures  to  ensure  that  the  design,  location  and  management  of  such  facilities  is
carried out by technically competent persons. It is necessary to ensure that the training
and  knowledge  acquired  by  operators  and  staff  afford  them  the  necessary  skills.  In
addition, competent authorities should satisfy themselves that operators ensure suitable
arrangements with respect to the construction and maintenance of a new waste facility
or  to  any  extension  or  modification  of  an  existing  facility,  including  after-closure
following closure of a facility or of extraction operations.

(20)

It  is  necessary  to  define  when  and  how  a  waste  facility  servicing  the  extractive
industries should be closed and to set out the obligations and responsibilities to be met
by the operator during the after-closure period.

(21) Member  States  should  require  operators  of  the  extractive  industries  to  apply
monitoring and management controls in order to prevent water and soil pollution and
to identify any adverse effect that their waste facilities may have on the environment
or  on human health.  In  addition,  for the purposes  of  minimising  water  pollution,  the
deposition  of  waste  into  any  receiving  body  of  water  should  be  in  compliance  with
Directive  2000/60/EC  of  the  European  Parliament  and  of  the  Council  of  23  October
2000  establishing  a  framework  for  Community  action  in  the  field  of  water  policy60.
Furthermore, concentrations in tailings ponds of cyanide and cyanide compounds from
certain  extraction  industries  should,  in  view  of  their  harmful  and  toxic  effects,  be
reduced  to  the  lowest  possible  levels,  using  best  available  techniques.  Maximum
concentration thresholds should be set accordingly to prevent such effects.

60

OJ L 327, 22.2.2000, p. 1. Directive as amended by Decision No 2455/2001/EC (OJ L 331,15.12.2001,
p. 1).

34

                                                
(22)

(23)

(24)

The operator of a waste facility servicing the extractive industries should be required
to  lodge  a  financial  deposit  or  equivalent  by  way  of  an  adequate  guarantee  ensuring
that  all  the  obligations  flowing  from  the  permit  will  be  fulfilled,  including  those
relating to the closure and after-closure of the site. The financial guarantee should be
sufficient  to  cover  the  cost  of  rehabilitation  of  the  site  by  a  suitable  qualified  and
independent third party. It is also necessary for such a guarantee to be provided prior
to  the  commencement  of  deposition  operations  in  the  waste  facility  and  to  be
periodically  adjusted.  In addition, in  accordance  with  the  polluter  pays  principle  and
the  Council  on
with  Directive  …/…/EC  of 
environmental liability with regard to the prevention and remedying of environmental
damage61, it is important to clarify that operators engaged in the extractive industries
are subject to appropriate liability in respect of environmental damage caused by their
operations or the imminent threat of such damage.

the  European  Parliament  and 

In the case of the operation of waste facilities in the extractive industries that are likely
to have significant adverse transboundary effects on the environment in the territory of
another  Member  State,  there  should  be  a  common  procedure  in  place  to  facilitate
consultation  among  neighbouring  countries.  This  should  be  done  with  a  view  to
ensuring  that  there  is  an  adequate  exchange  of  information  between  authorities  and
that  the  public  are  duly  informed  about  any  such  facilities  that  could  have  negative
consequences for their environment.

It  is  necessary  for  Member  States  to  ensure  that  competent  authorities  organise  an
effective  system  of  inspections  or  equivalent  control  measures  in  respect  of  waste
facilities servicing the extraction industries. Without prejudice to the obligations of the
operator under the permit, prior to the commencement of deposition operations there
must be an inspection to check that the permit conditions have been complied with. In
addition,  Member  States  should  ensure  that  operators  and  their  successors  maintain
up-to-date records relating to such waste facilities and that operators transfer to their
successors information concerning the state of the facility and its operations.

(25) Member States should send regular reports to the Commission on the implementation
of this Directive, including information on accidents or near-accidents. On the basis of
those  reports,  the  Commission  should  report  to  the  European  Parliament  and  the
Council.

(26) Member States should lay down rules on penalties  for  infringement of  this Directive
and  ensure  that  they  are  implemented;  those  penalties  should  be  effective,
proportionate and dissuasive.

(27)

The  Commission  should  ensure  an  appropriate  exchange  of  scientific  and  technical
information  on  how  to  carry  out  an  inventory  of  closed  waste  facilities  at  Member
State  level  and  on  the  development  of  methodologies  to  assist  Member  States  in
complying  with  Article  4  of  Directive  75/442/EEC  when  rehabilitating  closed  waste
facilities.  Moreover,  an  exchange  of  information  should  be  ensured  within  and
between Member States on the best available techniques.

61

Directive …/…/EC of […] of the European Parliament and the Council on environmental liability with
regard 
the  prevention  and  remedying  of  environmental  damage  (Commission  Proposal
COM(2002) 17 final of, 23.1.2002).

to 

35

                                                
(28)

(29)

(30)

The objective of this Directive, that is to say, improving the management of waste from
the  extractive  industries,  cannot be sufficiently achieved  by  the  Member  States  acting
alone  because  the  mismanagement  of  such  waste  may  cause  pollution  of  a
transboundary  nature.  Under  the  polluter  pays  principle  it  is  necessary,  inter  alia,  to
take into account any damage to the environment caused by waste from the extractive
industries, and different national applications of that principle may lead to substantial
disparities in the financial burden on economic operators. Moreover, the existence of
different national policies on the management of waste from the extractive industries
hampers the aim of ensuring a minimum level of safe and responsible management of
such waste and maximising its recovery throughout the Community. Therefore, since
by  reason  of  the  scale  and  effects  of  the  proposed  action,  it  can  be  better  achieved  at
Community level, the Community may adopt measures in accordance with the principle
of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of
proportionality,  as  set  out  in  that  Article,  this  Directive  does  not  go  beyond  what  is
necessary in order to achieve the objective.

The measures necessary for the implementation of this Directive should be adopted in
accordance with Decision 1999/468/EC of 28 June 1999 laying down the procedures
for the exercise of implementing powers conferred on the Commission.62

The  operation  of  waste  facilities  existing  at  the  moment  of  transposition  of  this
Directive  should  be  regulated  in  order  to  take  the  necessary  measures,  within  a
specified period of time, for their adaptation to the requirements of this Directive,

HAVE ADOPTED THIS DIRECTIVE:

Article 1
Subject matter

With a view to the continuous and consistent application of the principles and priorities laid
down in Directive  75/442/EEC  on  waste  and,  in  particular,  in  Articles  3  and  4  thereof,  this
Directive  provides  for  measures,  procedures  and  guidance  to  prevent  or  reduce  as  far  as
possible  any  adverse  effects  on  the  environment,  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  the  provisions  of  paragraph  2,  this  Directive  covers  the  management  of
waste  from  the  extractive  industries,  hereinafter  “extractive  waste”,  that  is  to  say,
waste resulting from the extraction, treatment and storage of mineral resources and the
working of quarries.

2.

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

(a) 

waste which is generated by the extraction and treatment of mineral resources,
but which does not  directly  result  from  those  operations,  such  as  food  waste,
waste oil, end-of-life vehicles, spent batteries and accumulators;

62

OJ L 184, 17.7.1999, p. 23.

36

                                                
(b) 

(c) 

(d) 

waste  resulting  from  the  offshore  extraction  and  treatment  of  mineral
resources;

the  deposit  of  unpolluted  soil  resulting  from  the  extraction,  treatment  and
storage of mineral resources and the working of quarries;

waste  generated  at  an  extraction  or  treatment  site  and  transported  to  another
location for the purposes of its deposit into or on to land;

(e) 

waste from the prospecting of mineral resources.

3.

4.

The  deposit  of  non-hazardous  inert  waste  shall  only  be  subject  to  the  provisions  of
Article 5 paragraphs 1 and 2, Article 11(2) points (a) to (e) and Article 13(1) points (a)
to (c) of this Directive.

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:

(1) 

‘waste’ is as defined in Article 1(a) of Directive 75/442/EEC;

(2) 

(3) 

(4) 

(5) 

(6) 

63

‘hazardous  waste’  is  as  defined  in  Article  1(4)  of  Council  Directive  91/689/EEC  of
12 December 1991 on hazardous waste;63

‘inert waste’ means waste that does not undergo any significant physical, chemical or
biological transformations. Inert waste will not dissolve, burn or otherwise physically
or chemically react, biodegrade or adversely affect other matter with  which  it comes
into  contact  in  a  way  likely  to  give  rise  to  environmental  pollution  or  harm  human
health. The total leachability and pollutant content of the waste and the ecotoxicity of
the leachate must be insignificant, and in particular not endanger the quality of surface
water and/or groundwater;

‘mineral resource’ or ‘mineral’ means a naturally occurring deposit in the earth’s crust
of  an  organic  or  inorganic  compound,  such  as  oil,  bituminous  shale,  coal,  lignite,
metal, stone, slate, clay, gravel or sand, including natural gas, but excluding water;

‘extractive  industries’  means  all  establishments  and  undertakings  engaged  in  surface
or  underground  extraction  of  mineral  resources,  including  extraction  by  drilling
boreholes or treatment of the extracted material;

‘treatment’  means  the  mechanical,  physical  or  chemical  process  or  combination  of
processes  carried  out  on  mineral  resources  with  a  view  to  extracting  the  mineral,
including size reduction, classification, separation and leaching, and the re-processing
of previously discarded waste, but excluding thermal processes;

OJ  L  377,  31.12.1991,  p.  20.  Directive  as  amended  by  Council  Directive  94/31/EC  of  27  June  1994
(OJ L 168, 2.7.1994, p. 28).

37

                                                
(7) 

(8) 

(9) 

(10) 

(11) 

(12) 

(13) 

(14) 

(15) 

‘tailings’  means  the  waste  solids  that  remain  after  the  treatment  of  minerals  by
separation processes (e.g. crushing, grinding, size-sorting, flotation and other physico-
chemical techniques) to remove the valuable minerals from the less valuable rock;

‘heap’ means an engineered facility for the disposal of solid waste on the surface;

‘dam’  means  an  engineered  structure  designed  to  retain  or  confine  water  and  waste
within a pond;

‘pond’  means  a  natural  or  engineered  facility  for  disposing  of  fine-grained  waste,
normally  tailings,  along  with  varying  amounts  of  free  water,  resulting  from  the
treatment of mineral resources and from the clearing and recycling of process water;

‘weak  acid  dissociable  cyanide’  means  cyanide  and  cyanide  compounds  that  are
dissociated with a weak acid at a defined pH;

‘leachate’ means any liquid percolating through the deposited waste and emitted from
or contained within a waste facility, including polluted drainage, which may adversely
affect the environment if not appropriately treated;

‘waste facility’ means  any  area  designated  for  the  accumulation  or  deposit  of  waste,
whether in a solid or liquid state or in solution or suspension, for a period of more than
one year, and being deemed to include any dam or other structure serving to contain,
retain,  confine  or  otherwise  support  such  a  facility,  and  also  to  include,  but  not  be
limited  to,  heaps  and  ponds,  but  excluding  excavation  voids  into  which  waste  is
replaced after extraction of the mineral;

‘major accident’ means an occurrence on site, that seriously  endangers human health
or the environment, whether immediately or over time, on-site or off-site;

‘dangerous substance’ means a substance, mixture or preparation within the meaning
of  Council  Directive  67/548/EEC64  and  Directive  1999/45/EC  of  the  European
Parliament and of the Council65;

(16) 

‘best available techniques’ is as defined in Article 2(11) of Directive 96/61/EC;

(17) 

(18) 

‘receiving body of water’ means surface waters as defined in Article 2(1) of Directive
2000/60/EC,  groundwater  as  defined  in  Article  2(2)  of  Directive  2000/60/EC,
transitional  waters  as  defined  in  Article  2(6)  of  Directive  2000/60/EC,  and  coastal
water as defined in Article 2(7) of Directive 2000/60/EC;

‘rehabilitation’ means the treatment of the land affected by a waste facility in such a
way as to restore the land to a satisfactory state, with particular regard to pre-working
soil quality, wild life, natural habitats, freshwater systems, landscape and appropriate
beneficial uses;

(19) 

‘the  public’  means  one  or  more  natural  or  legal  persons  and,  in  accordance  with
national legislation or practice, their associations, organisations or groups;

64

65

OJ P 196, 16.8.1967, p. l.
OJ L 200, 30.7.1999, p. 1.

38

                                                
(20) 

(21) 

(22) 

(23) 

(24) 

(25) 

1.

2.

1.

2.

‘the public concerned’ means the public affected or likely to be affected by, or having
an interest in, the environmental decision-making under Article 5 and Article 6 of the
present Directive; for the purposes of this definition, non-governmental organisations
promoting environmental protection and meeting any requirement under national law
shall be deemed to have such an interest;

‘operator’  means  the  natural  or  legal  person  responsible  for  the  management  of
extractive  waste,  in  accordance  with  the  national  law  of  the  Member  State  in  which
waste management takes place,  including  in  respect  of  the  operational  and  the  after-
closure phases;

‘waste holder’ means the producer of the waste or the natural or legal person who is in
possession of it;

‘competent  person’  means  a  natural  person  who  has  the  technical  knowledge  and
experience,  as  defined  by the  national  law  of  the  Member  State  in  which  the  person
operates, to carry out the duties arising from this Directive;

‘competent  authority’  means  the  authority  which  a  Member  State  designates  as
responsible for performing the duties arising from this Directive;

‘site’ means all land at a distinct geographic location under the management control of
an operator.

Article 4
General requirements

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

The measures referred to in paragraph 1 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

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

The objectives of the waste management plan shall be:

(a)

to  prevent  or  reduce  waste  production  and  its  harmfulness,  in  particular  by
considering:

(i) waste management in the design phase  and  in the choice of the method

used for mineral extraction and treatment;

39

(ii)

the  changes  that  the  waste  may  undergo  in  relation  to  an  increase  in
surface area and exposure to conditions above ground;

(iii) placing  waste  back  into  the  excavation  void  after  extraction  of  the
mineral, as far as is practically feasible and environmentally sound;

(iv) putting topsoil back in place after the closure of the waste facility or, if

this is not practically feasible, reusing topsoil elsewhere;

(v)

using less dangerous substances for the treatment of mineral resources;

(b)

to  encourage  the  recovery  of  waste  by  means  of  recycling,  reusing  or
reclaiming such waste, where environmentally sound.

3.

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

(a)

(b)

(c)

(d)

(e)

waste  characterisation  in  accordance  with  Annex  II  and  the  estimated  total
quantities of waste to be produced during the operational phase;

a  description  of  the  operation  generating  such  waste  and  of  any  subsequent
treatment to which it is subject;

a  description  of  how  the  environment  or  human  health  may  be  adversely
affected by the disposal of such waste and the preventive measures to be taken;

the proposed control and monitoring procedures pursuant to Article 11(2)(c);

the proposed plan for the closure and after-closure procedures and monitoring
provided for in Article 12;

(f)

measures for the prevention of water and soil pollution pursuant to Article 13.

The  waste  management  plan  shall  provide  sufficient  information  to  enable  the
competent  authority  to  evaluate  the  operator’s  compliance  with  the  requirements  of
this Directive.

4.

5.

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

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.

40

Article 6
Major-accident prevention and information

1.

2.

3.

The provisions of this Article shall apply to Category A waste facilities, as defined in
Article 9 save for those waste facilities falling within the scope of Directive 96/82/EC.

Without prejudice to other Community legislation, and in particular Council Directive
92/91/EEC66  and  Council  Directive  92/104/EEC67,  Member  States  shall  ensure  that
major-accident hazards are identified and the necessary features are incorporated into
the  design,  construction,  operation  and  maintenance  of  the  waste  facility  in  order  to
prevent such accidents and to limit their adverse consequences for human health and
the environment, including any transboundary impacts.

For the purposes of the requirements under paragraph 2, each operator shall draw up a
major-accident  prevention  policy  for  waste  and  put  into  effect  a  safety  management
system implementing it, in accordance with the elements set out in point 1 of Annex I.

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 operator shall draw up an internal emergency plan of the measures to be taken on
site in the event of an accident.

The competent authority shall draw up an external emergency plan for the measures to
be taken off site in the event of an accident. 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:

(a)

(b)

(c)

(d)

to  contain  and  control  major  accidents  and  other  incidents  so  as  to  minimise
their  effects,  and  in  particular  to  limit  damage  to  human  health  or  to  the
environment and property;

to implement the measures necessary to protect human health, the environment
and property from the effects of major accidents and other incidents;

to communicate the necessary information to the public and to the services or
authorities concerned in the area;

to  provide  for  the  rehabilitation,  restoration  and  clean-up  of  the  environment
following a major accident.

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.

66

67

OJ L 348, 28.11.1992, p. 9.
OJ L 404, 31.12.1992, p. 10.

41

                                                
5.

6.

1.

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 timeframes and that, in the decision on the external emergency plan,
due account is taken of these comments.

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 point 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

In  accordance  with  Article  9  of  Directive  75/442/EEC,  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  and  shall  clearly  indicate  the
category of the facility according to the criteria set out 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.

2.

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

(a)

(b)

(c)

(d)

the identity of the operator;

the  proposed location of the  waste  facility,  including  any  possible  alternative
locations;

the waste management plan pursuant to Article 5;

where applicable, a document demonstrating that a major-accident prevention
policy and a safety management system for implementing it have been put into
effect in accordance with Article 6(3);

(e)

adequate arrangements by way of a guarantee, as required under Article 14.

3.

Member States shall take appropriate measures to ensure that the public are informed
about the application for a waste management permit in accordance with Article 8(1)
and that the public concerned are given early and effective opportunities to participate
in  the  procedure  for  the  granting  of  a  waste  management  permit  in  accordance  with
Article 8 paragraphs 2 to 6.

42

4.

The permit shall be granted only if the application shows that:

5.

1.

(a)

(b)

the operator complies with all requirements under this Directive;

the management of  waste is in line with the relevant waste management plan
or plans referred to in Article 7 of Directive 75/442/EEC.

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,  shall  not  be
made public.

Article 8
Public participation

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:

(a) 

(b) 

(c) 

the  application  for  a  permit  or,  as  the  case  may  be,  the  proposal  for  the
updating of a permit in accordance with Article 7;

where applicable, the fact that a decision is subject to consultation between the
Member States in accordance with Article 15;

details  of  the  competent  authorities  responsible  for  taking  the  decision,  those
from which relevant information can be obtained, those to which comments or
questions  can  be  submitted,  and  details  of  the  time  schedule  for  transmitting
comments or questions;

(d) 

the nature of possible decisions or, where there is one, the draft decision;

(e) 

(f) 

(g) 

where applicable, the details relating to a proposal for the updating of a permit
or of permit conditions;

an  indication  of  the  times  and  places  where,  or  the  means  by  which,  the
relevant information will be made available;

details  of  the  arrangements  for  public  participation  and  consultation  made
pursuant to paragraph 5.

2.

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

(a)

in accordance with national legislation, the main reports and  advice  issued to
the  competent  authority  or  authorities  at  the  time  when  the  public  were
informed in accordance with paragraph 1;

43

(b)

in  accordance  with  the  provisions  of  Directive  2003/4/EC  of  the  European
Parliament and of the Council on public access to environmental information68,
any  information  in  addition  to  that  referred  to  in  paragraph  1  of  this  Article
which is relevant for the decision in accordance with Article 7 of this Directive
and which only becomes available after the time the public have been informed
in accordance with paragraph 1 of this Article.

3.

4.

5.

6.

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

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

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.

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:

(a)

(b)

the content of the decision, including a copy of the permit;

the reasons and considerations on which the decision is based.

Article 9
Classification system for waste facilities

For  the  purposes  of  this  Directive,  Member  States  shall  classify  waste  facilities  which  are
either  heaps  or  engineered  ponds  in  one  of  the  following  categories,  depending  on  their
hazard potential:

(1) 

Category  A:  a  waste  facility  whose  failure  or  incorrect  operation  would  present  a
significant accident hazard;

(2) 

Category B: any waste facility not included in Category A.

The criteria for determining the classification of a waste facility in Category A are set out in
Annex III.

68

OJ L 41, 14.2.2003, p. 26.

44

                                                
Article 10
Excavation voids

Member States shall ensure that the  operator, when  considering  placing  waste back  into the
excavation voids, takes appropriate measures in order to:

(1) 

(2) 

secure the stability of such waste in accordance with Article 11(2);

prevent the pollution of surface and groundwater in accordance with paragraphs 1 and
2 of Article 13;

(3)  monitor such waste in accordance with paragraphs 4 and 5 of Article 12 .

1.

2.

Article 11
Construction and management of waste facilities

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.

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

(a) 

(b) 

(c) 

(d) 

(e) 

the  waste  facility  is  suitably  located,  taking  into  account  in  particular
geological, hydrogeological and geotechnical factors, and is designed so as to
meet the necessary conditions for preventing pollution of the soil, groundwater
or  surface  water  and  ensuring  efficient  collection  of  contaminated  water  and
leachate as and when required under the permit;

the waste facility is suitably constructed, managed and maintained to ensure its
physical  stability  and  to  prevent  pollution  or  contamination  of  soil,  surface
water or groundwater;

there  are  suitable  arrangements  for  monitoring  and  inspection  of  the  waste
facility  by  competent  persons  and  for  taking  action  in  the  event  of  results
indicating instability or water or soil contamination;

suitable  arrangements  are  made  for  the  rehabilitation  of  the  land  and  the
closure of the waste facility;

suitable arrangements are made for the management of the waste facility after
operations have ceased.

Records  of  the  monitoring  and  inspections  referred  to  in  point  (c)  shall  be  kept  to
ensure the appropriate hand-over of information.

3.

The  operator  shall,  without  unnecessary  delay,  notify  any  events  likely  to  affect  the
stability of the 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  and  follow  any  other  instruction  from  the
competent authority as to the corrective measures to be taken.

45

The operator shall meet 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 behaviour.

Article 12
Closure and after-closure procedures for waste facilities

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

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

(a)

(b)

the relevant conditions stated in the permit are met;

authorisation  is  granted  by  the  competent  authority,  at  the  request  of  the
operator;

(c)

the competent authority issues a reasoned decision to that effect.

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.

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,  the  operator  shall
be responsible  for  its 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.

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:

(a)

all the structures  pertaining  to  the  facility  are  monitored  and  conserved,  with
control and measuring apparatus always ready for use;

(b)

where applicable, overflow channels and spillways are kept clean and free.

1.

2.

3.

4.

5.

46

6.

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

The operator shall meet 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 behaviour.

Article 13
Prevention of water and soil pollution

1.

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

(a) 

(b) 

(c) 

evaluate the leachate generation potential of the waste disposed of during both
the operational and after-closure phase of the waste facility and determine the
water balance of the waste facility;

prevent  leachate  generation  and  surface  water  or  groundwater  from  being
contaminated by the waste;

treat contaminated  water and  leachate  collected  from  the  waste  facility  to  the
appropriate standard required for their discharge.

Where, on the  basis of an  assessment  of  environmental risks, taking  into account, in
particular,  Council  Directive  76/464/EEC,69  Council  Directive  80/68/EEC70  or
Directive  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  points  (b)  and  (c)  of  paragraph  1  may  be  reduced  or  waived
accordingly.

Member States shall make the disposal of extractive waste, whether in solid, slurry or
liquid  form,  into  any  receiving  body  of  water  conditional  upon  compliance  by  the
operator with the relevant requirements of Directive 2000/60/EC.

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, 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  [transposition  date],
25 ppm  as  from  [transposition  date  +  five  years]  and  10  ppm  as  from  [transposition

2.

3.

4.

69

70

OJ L 129, 18.5.1976, p. 23.
OJ L 20, 26.1.1980, p. 43.

47

                                                
date + ten years].

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 could not be further lowered.

Article 14
Financial guarantee and environmental liability

1.

The competent authority shall, prior to the commencement of any operations involving
the deposit into or onto land of waste, require a  guarantee, in the form of a  financial
deposit or equivalent, including industry-sponsored mutual guarantee funds, so that:

(a)

(b)

all  obligations  under  the  permit  issued  pursuant  to  this  Directive,  including
after-closure provisions, are discharged;

there are funds readily available at any given time for the rehabilitation of the
land affected by the waste facility.

2.

The calculation of the guarantee referred to in paragraph 1 shall be made according to:

(a)

(b)

the likely environmental impact of the facility, taking into account in particular
the category of the facility, the characteristics of the waste  and the future use
of the rehabilitated land;

the assumption that independent and suitably qualified third parties will assess
and perform any rehabilitation work needed.

The size of the guarantee shall be periodically adjusted according to the rehabilitation
work needed to be carried out on the waste facility.

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.

The provisions of Directive …/…/EC71 on environmental liability with  regard  to  the
prevention  and  remedying  of  environmental  damage  shall  apply  mutatis  mutandis  in
respect  of  environmental  damage  caused  by  the  operation  of  any  extractive  waste
facility,  as  well  as  in  respect  of  any  imminent  threat  of  such  damage  occurring  by
reason of the operation of any such a facility.

Directive …/…/EC of […] of the European Parliament and the Council on environmental liability with
regard 
the  prevention  and  remedying  of  environmental  damage  (Commission  Proposal
COM(2002) 17 final of 23.1.2002, OJ C 151 E, 25.6.2002, p.132).

to 

48

3.

4.

5.

71

                                                
1.

2.

3.

1.

2.

1.

Article 15
Transboundary effects

Where  a Member State is  aware  that  the  operation  of  a  Category  A  waste  facility  is
likely to have significant adverse effects on the environment of 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.

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.

Member States shall ensure that, in the event of an accident involving a waste facility
as referred to in paragraph  1,  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 16
Inspections by the competent authority

Prior  to  the  commencement  of  disposal  operations  and  at  regular  intervals  to  be
decided  by  the  Member  State  concerned,  the  competent  authority  shall  inspect  any
waste facility covered by Article 6 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.

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 facility.

Article 17
Obligation to report

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  21(2).  The  report  shall  be  transmitted  to  the
Commission within nine months of the end of the three-year period covered by it.

49

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.

Article 18
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 19
Exchange of information

1.

The Commission, assisted by the Committee referred to in Article 21, shall ensure that
there  is  an  appropriate  exchange  of  technical  and  scientific  information  between
Member States, with a view to developing methodologies relating to:

(a)

(b)

the  drawing-up  of  inventories  of  closed  waste  facilities.  Such  methodologies
shall  allow  for  the  identification  of  closed  waste  facilities  and  their
classification, according to the degree of their impact on human health and the
environment,  in  two  tiers:  an  upper  tier  including  closed  waste  facilities
causing  serious  negative  environmental  impacts  or  having  the  potential  to
become  a  serious  threat  in  the  near  future  to  human  health,  the  environment
and/or  property;  and  a  lower  tier  including  those  waste  facilities  with  no
significant  negative  environmental  impacts  and  no  potential  to  become  a
serious  threat  in  the  future  to  human  health,  the  environment  and/or  to
property;

the rehabilitation of those closed waste facilities classified in the upper tier of
the  inventory  in  order  to  satisfy  the  requirements  of  Article  4  of  Directive
75/442/EEC. Such methodologies shall allow for the establishment of the most
appropriate risk assessment procedures and remedial actions having  regard to
the variation of geological and hydrogeological characteristics across Europe.

2.

3.

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

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.

50

Article 20
Implementing and amending measures

1.

Within  three  years  of  the  date  of  entry  into  force  of  this  Directive,  the  Commission
shall  adopt,  in  accordance  with  the  procedure  referred  to  in  Article  21(2),  the
provisions necessary for the following:

(a)

(b)

(c)

(d)

(e)

(f)

(g)

the  harmonisation  and  regular  transmission  of  the  information  referred  to  in
Articles 7(5) and 12(6) of this Directive;

the implementation of Article 13(4), including technical requirements relating
to  the  definition  of  weak  acid  dissociable  cyanide  and  its  measurement
method;

technical  guidelines  for  the  establishment  of  the  financial  guarantee  in
accordance with the requirements of Article 14(2);

technical guidelines for inspections in accordance with Article 16;

completion of the technical requirements  for  waste characterisation contained
in Annex II;

definition  of  the  criteria  for  the  classification  of  waste  facilities  according  to
Annex  III,  including  any  threshold  concentrations  for  hazardous  waste  and
dangerous substances;

determination of any harmonised standards for sampling and analysis methods
needed for the technical implementation of this Directive.

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 21(2).

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

Article 21
Committee

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

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.

2.

1.

2.

51

Article 22
Transitional provision

Member States shall ensure that any waste facility which has been granted a permit or which
is already in operation before or on [date of transposition] complies with the provisions of this
Directive within  four  years  after  that  date,  save  for  those  set  out  in  Article  14(1)  for  which
compliance must be ensured within six years after that date.

Article 23
Transposition

1.

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative
provisions necessary to comply with this Directive not later than on [date of entry into
force + 18 months]. They shall forthwith inform the Commission thereof.

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official
publication. Member States shall determine how such reference is to be made.

2.

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

Article 24
Entry into force

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

Article 25
Addressees

This Directive is addressed to the Member States.

Done at …………

For the European Parliament
The President

For the Council
The President

52

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:

(1) 

(2) 

the  major-accident  prevention  policy  should  include  the  operator’s  overall  aims  and
principles of action with respect to the control of major-accident hazards;

the  safety  management  system  should  include  the  part  of  the  general  management
system  which  includes  the  organisational  structure,  responsibilities,  practices,
procedures,  processes  and  resources  for  determining  and  implementing  the  major-
accident prevention policy;

(3) 

the following issues shall be addressed by the safety management system

(a) 

(b) 

(c) 

organisation  and  personnel  —  the  roles  and  responsibilities  of  personnel
involved in the management of major hazards at all levels in the organisation;
identification  of  training  needs  of  such  personnel  and  the  provision  of  the
training  so  identified;  and  involvement  of  employees  and,  where  appropriate,
subcontractors;

identification and evaluation of major hazards — adoption and implementation
of procedures for systematically identifying major hazards arising from normal
and abnormal operations and assessment of their likelihood and severity;

operational  control  —  adoption  and  implementation  of  procedures  and
instructions  for  safe  operation,  including  maintenance  of  plant,  processes,
equipment and temporary stoppages;

(d)  management  of  change  —  adoption  and  implementation  of  procedures  for

planning modifications to, or the design of, new waste facilities;

(e) 

(f) 

planning  for  emergencies  —  adoption  and  implementation  of  procedures  to
identify  foreseeable  emergencies  by  systematic  analysis  and  to  prepare,  test
and review emergency plans to respond to such emergencies;

monitoring performance — adoption and implementation of procedures for the
ongoing  assessment  of  compliance  with  the  objectives  set  by  the  operator’s
major-accident  prevention  policy  and  safety  management  system,  and  the
mechanisms  for  investigation  and  taking  corrective  action  in  case  of  non-
compliance.  The  procedures  should  cover  the  operator’s  system  for  reporting
major  accidents  of  near  misses,  particularly  those  involving  failure  of
protective  measures,  and  their  investigation  and  follow-up  on  the  basis  of
lessons learnt;

53

(g) 

audit  and  review  —  adoption  and  implementation  of  procedures  for  periodic
systematic  assessment  of  the  major-accident  prevention  policy  and  the
effectiveness and suitability of the safety management system; the documented
review  of  performance  of  the  policy  and  safety  management  system  and  its
updating by senior management.

2.

Information to be communicated to the public concerned

(1) 

Name of operator and address of the waste facility.

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Identification, by position held, of the person providing the information.

Confirmation that the waste facility is subject to the regulations and/or administrative
provisions  implementing  this  Directive  and,  when  applicable,  that  the  information
relevant to the elements referred to in Article 6(2) has been submitted to the competent
authority.

An explanation in clear and simple terms of the activity or activities undertaken at the
site.

The  common names  or  the  generic  names  or  the  general  danger  classification  of  the
substances and preparations involved at the waste facility as well as waste which could
give  rise  to  a  major  accident,  with  an  indication  of  their  principal  dangerous
characteristics.

General  information  relating  to  the  nature  of  the  major-accident  hazards,  including
their potential effects on the surrounding population and environment.

Adequate information on how the surrounding population concerned are to be warned
and kept informed in the event of a major accident.

Adequate information on the actions the population concerned should take, and on the
behaviour they should adopt, in the event of a major accident.

Confirmation that the operator is required to make adequate arrangements on site, in
particular  liaison  with  the  emergency  services,  to  deal  with  major  accidents  and  to
minimise their effects.

(10)  A reference to the external emergency plan drawn up to cope with any off-site effects
from  an  accident.  This  should  include  advice  to  co-operate  with  any  instructions  or
requests from the emergency services at the time of an accident.

(11)  Details  of  where  further  relevant  information  can  be  obtained,  subject  to  the

requirements of confidentiality laid down in national legislation.

54

ANNEX II

Waste characterisation

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

(1) 

(2) 

(3) 

description of expected physical chemical and radiological characteristics of the waste
to be disposed of;

classification  of  the  waste  according  to  the  relevant  entry  in  Commission  Decision
2000/532/EC72, with particular regard to its hazardous characteristics;

description  of  the  chemical  substances  to  be  used  during  treatment  of  the  mineral
resource and their stability;

(4) 

description of the method of deposition;

(5) 

waste transport system to be employed.

72

OJ L 203, 28.7.2001, p. 18.

55

                                                
ANNEX III

Criteria for determining the classification of waste facilities

A waste facility shall be classified in category A if:

–  in the event of a breach or failure the loss of human life cannot reasonably be excluded on
the basis of a risk assessment taking into account factors such as the size, the location and
the environmental impact of the waste facility, or

–  it  contains  waste  classified  as  hazardous  under  Directive  91/689/EEC  above  a  certain

threshold, or

–  it contains substances or preparations classified as dangerous under Directives 67/548/EEC

or 1999/45/EC above a certain threshold.

56