Opinion of the European Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council on the management of waste from the extractive industries" (COM(2003) 319 final — 2003/0107 (COD))
Date: 2003-12-11
Institutions: European Economic and Social Committee
Subjects: ESC opinion, mining extraction, waste management

30.3.2004

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the
European Parliament and of the Council on the management of waste from the extractive
industries’

(COM(2003) 319 final — 2003/0107 (COD))

(2004/C 80/10)

On 20 June 2003 the Council decided to consult the European Economic and Social Committee, under
Article 175(1) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Agriculture, Rural Development and the Environment, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 13 November 2003. The
rapporteur was Ms Le Nouail Marlière.

At its 404th plenary session of 10 and 11 December 2003 (meeting of 11 December 2003), the European
Economic and Social Committee adopted the following opinion by 31 votes in favour, 1 vote against
without abstentions.

1.

Introduction

1.1.
The occurrence of several high profile environmental
disasters and mining accidents in recent years underlines the
need to develop a coherent policy at EU level aimed at
preventing these disasters from occurring.

1.2.
The 1998 toxic spill in Spain’s Donana wetlands and
the Baia Mare cyanide spill which polluted the whole of the
Danube River are just two of the more recent examples of
environmental disasters caused by accidents involving the
release of tailings from unstable lagoons storing wet sludge
from mining.

1.3.
Because of its composition or volume and the way it is
stored, waste from extractive industries (mining and quarrying)
can pose a serious threat to the environment and human
health if not properly managed.

1.4. Waste from the extractive industries represents one of
the largest waste streams in the EU, representing approximately
29 % of the total waste generated and an annual volume of
400 million tonnes.

1.5. Mining waste is subject to the general provisions of the
Waste Framework Directive (75/442/EEC) and facilities for the
disposal of waste from extractive industries are covered by the
Landfill Waste Directive (1999/31/EC). It is also covered in
other Directives relating to mining waste more specifically,
including:

— Council Directive 75/442/EEC of 15 July 1975 on waste

(waste framework directive);

— Council Directive 1999/31/EC of 26 April 1999 on the

landfill of waste (landfill directive);

— Council Directive 96/61/EEC of 24 September 1996
concerning integrated pollution prevention and control
(IPPC Directive);

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

— Council Directive 85/337/EEC 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 1997 (the EIA Directive).

These directives are discussed in the explanatory memor-
andum. This analysis shows that the legal provisions contained
in them do not regulate the problems of managing waste from
the extractive industries in an appropriate manner.

2. Gist of the Commission proposal

2.1.
In addition to the revised Seveso II Directive on the
control of major industrial accidents and a Best Available
Techniques (BAT) document on tailings and waste rock, the
Commission proposal seeks to ensure the sound management
of extractive waste throughout the EU.

2.2.
Specifically, it aims to improve the ways in which
waste from the extractive industries is managed, by setting
minimum requirements and addressing the environmental and
human health risks that can arise from the treatment and
disposal of such waste.

The scope of the proposed directive covers waste from
2.3.
all sectors of the extractive industry and focuses on the
operational issues connected with waste management, preven-
tion of soil and water pollution and the stability of waste
management facilities (especially tailings lagoons).

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The proposal

lists conditions to be attached to
2.4.
operating permits in order to ensure that sufficient environ-
mental and safety measures are in place in order for waste
management facilities to receive authorisation. For example:

a) waste has to be classified before disposal;

The Committee applauds the fact that the proposal
3.3.
focuses on the dangers that accidents involving mining waste
can pose not only to the environment and human health, but
also to the economic and social fabric of society. In this way,
the Committee feels that the proposal is consistent with the
three pillars of sustainable development (1).

b)

operators of waste management facilities should draw up
closure plans in order to form an integral part of the
overall operating plan;

c)

effective monitoring is essential during both the oper-
ational and the after-care phases.

3.4. While welcoming the present proposal, the Committee
believes that the Commission should evaluate the reasons why
existing EU legislation on waste has not been successful in
preventing pollution from tailings lagoons and metal mining
activities in general. The Committee welcomes this proposal
for a specific additional instrument and hopes that it will
prevent the same mistakes being made again in an enlarged
EU.

2.5.
The proposal contains an obligation to provide for an
appropriate level of financial security to reinforce the ‘polluter
pays principle’ — this includes ensuring that sufficient funds
are available to leave waste management facilities in a satisfac-
tory state after closure if, for example, a company goes into
administration.

3.5.
The Committee also believes that the legislative frame-
work on the management of waste from extractive industries
should also make use of relevant measures from Community
legislation relating to water protection and
environmental
environmental liability including binding rules on liability for
‘biodiversity damage’ for all activities.

2.6.
Given that many issues related to waste from the
extractive industries are already regulated in most Member
States, the proposal aims to set minimum standards at EU
level, in order to create a level playing field for the management
of extractive industry waste.

3.6.
The Committee welcomes this proposal which consoli-
dates better protection in law and determines the responsibiliti-
es of operators and public authorities.

3. General comments

3.1.
The Committee welcomes the Commission’s attempts
to set EU-wide requirements regarding the safe and sustainable
management of mining waste and agrees that the collapse of
heaps and dams can have a serious impact on both the
environment and human health and safety.

3.2.
The Committee draws attention to the fact that extrac-
tive industries are often located in areas needing industrial
regeneration and therefore draws the Commission’s attention
to the danger that setting stricter standards might have in
making an already weak economic sector even weaker. The
Committee therefore calls on the Commission to assess the
impact on employment not only in terms of additional
constraints, but also in terms of needs generated by the
operation and maintenance of waste management facilities.
The landfill directive lays particular stress on the need to
properly train the staff of landfill operators in closure and
after-care procedures. The Committee calls for the inclusion of
corresponding provisions in this proposal, in line with the
characteristics of the site concerned.

3.7.
The ECSC considers that the analysis of the consistency
of the proposed directive with other EC acts should be a major
part of the directive. The inclusion in Article 3 of the same
definitions as used in Council Directive 75/442/EEC of 15 July
1975 on waste (waste framework directive) and in other
EU acts suggests that the Commission has ensured such
consistency. It would appear that all waste and waste treatment
situations involving the extractive industries will be covered
by Community instruments after the adoption of this draft
directive. However, it would also appear that, as far as waste
from the extractive industries is concerned, the applicable
provisions and their fields of application are scattered across
different instruments, for instance:

— waste framework directive 75/442/EEC;

— Seveso II Directive 96/82/EC, Article 4 e) and f) amended
with regard to chemical and thermal treatment oper-
ations;

(1) The Commission undertook a study on the costs of improving
the management of mining waste, carried out by the Symonds
Group, October 2001, prior to the entry into force of the
provisions of the Landfill Directive.

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— landfill directive 1999/31/EC for inert waste, field of

application Art. 3 (2), indents 2 and 4.

The EESC therefore considers that the analysis of the consist-
ency of the proposed directive with other EU acts should be
both more important and more clear regarding transport (1)
and storage times. (2). Moreover, the proposal should also
cover waste stored during even short periods, but which build
up over time on a single site.

4. Specific comments

4.1. While agreeing that national laws are organised differ-
ently from country to country, some ‘mining codes’ having
evolved historically around the notion that mining is of
strategic importance for the country (coal, oil, etc.) and others
on the basis of environmental legislation, the Committee notes
that a distinction has deliberately not been made between
open quarries and underground extraction sites. The Com-
mittee would, however,
like to see a clearer definition of
stripped soil and topsoil which are to be re-used and for them
to be regarded as non-waste. The Committee has heard the
Commission’s explanation that it does not want to reconsider
the definitions contained in the waste framework directive and
the landfill directive and understands that, since stripped soil
and topsoil are not intended for landfill but for reuse, they are
not defined as waste in the present draft directive, that the
definition of waste is a ‘functional’ definition and not a
‘physical or chemical’ definition (3).

4.2.
According to Article 2 of the proposal (Scope), ‘waste
generated at an extraction or treatment site and transported to
another location for the purposes of its deposit into or on to

land’ is excluded from the scope of this directive. The EESC
has misgivings about this solution. The question is: what
arguments support the thesis that waste of a similar nature
should not be subject to the same legal provisions solely
because it is transported to another site?

4.3.
The Committee agrees with the proposal in Article 5
that operators shall draw up a waste management plan for the
treatment, recovery and disposal of extractive waste, but
underlines the importance of ensuring that both the design
and implementation of such plans are regularly monitored by
the competent authorities in Member States. Such effective
monitoring is central to the successful implementation of this
Directive.

4.4.
The Committee suggests that section 2 of Article 6
make provision to include the closure and post closure
phase in the requirements for major accident prevention and
information. This would be consistent with the general
approach of the proposed Directive.

4.5.
The Committee, while supporting the aims of Article 7
regarding the prerequisite for waste facilities to have a permit
in order to operate, also urges the Commission to signal to
Member States the dangers of applying this article too
arbitrarily or bureaucratically. The Commission should bear in
mind the economic and employment consequences of waste
facilities being closed down in the event of minor infringe-
ments of the permitting requirements.

(1) OJ C 149, 21.6.2002, opinion on the Proposal for a Directive of
the European Parliament and of the Council amending Council
Directive 96/82/EC of 9 December 1996 on the control of major-
accident hazards involving dangerous substances.

(2) Council Directive 1999/31/EC of 26 April 1999. The following

are excluded from the definition of landfill:
— facilities where waste is unloaded in order to permit its
preparation for further transport for recovery, treatment or
disposal elsewhere, and

— storage of waste prior to recovery or treatment for a period

less than three years as a general rule, or

— storage of waste prior to disposal for a period less than one

year.

(3) The definition taken into account for this proposal is the same as
that for the waste framework directive 75/442/EEC of 15 July
1975, based on the concept of ‘discarding waste’, as stated in the
Judgment of the European Court of Justice (Sixth Chamber) of
11 September 2003. Avesta Polarit Chrome Oy. Reference for a
preliminary ruling: Korkein hallinto-oikeus — Finland. C-114/01.

4.6.
The Committee insists that the support of more people
living in the vicinity is necessary to the implementation of the
objectives of Community environmental policy. Although the
draft directive is aimed at preventing the most serious acci-
dents, it must be stressed that the management of the waste of
the extractive industries in both present and future member
countries has wider repercussions. This involves in particular
the social concerns of workers exposed to waste, of inhabitants
living in the vicinity, of people in the regions concerned, and
people further away due to the possible effects of waste on air,
soil and water. The Committee notes the Commission’s desire
to have integrated management and, to this end, thinks that
the directive should explicitly provide for formal consultation
of those NGOs ‘deemed to have such an interest’ which work
for the protection of the environment within the meaning of
Article 2(5) of the Århus Convention adopted on 25 June
1998 and signed by the European Community and the social
partners and workers organisations in particular.

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The Committee takes note of

the Commission’s
4.7.
attempts in Article 10 to provide for certain measures
pertaining to waste placed back in the excavation void, but
believes that the appropriate measures mentioned in this
the operator
Article should be expanded to ensure that
provides the Member State competent authority with infor-
mation on:

— the layout of excavated voids (surface and/or subsurface);

— the quantity and quality of water encountered in the
two years

excavated voids during working (last
minimum);

— predictions of the locations, quantity and impact of any
future polluting discharges from the excavated voids to
groundwaters and surface waters, and plans for miti-
gation/remediation of such discharges;

— proposals for monitoring the process of flooding of the
voids, to provide early warning of the need to instigate
mitigation measures identified under above.

The Committee notes that in the Commission’s pre-
4.8.
paratory work during the drafting and adoption of
the
proposal, a requirement had been included for Member States
to draw up a comprehensive public inventory of abandoned
mining sites, but that this requirement has now been dropped

Brussels, 11 December 2003.

from the proposal, given the added complexity presented by
the accession of 10 new Member States to the EU in 2004 and
the need for in-depth investigation and economic impact
assessment required to implement this requirement feasibly.
While Article 19 of the proposal obliges Member States to
ensure that there is an appropriate exchange of technical and
scientific information between Member States with a view
to developing methodologies regarding the drawing up of
inventories of closed waste facilities and the rehabilitation of
those closed waste facilities, the Committee is not convinced
that this approach is sufficient.

4.9.
The Committee therefore urges the Commission to
urgently establish a provisional list of abandoned mining and
extractive sites that may give rise to health or environmental
risk. This list should also apply to the ten new Member States
and should not be delayed while methodological complexities
are taken into account.

4.10.
The Committee notes that the requirement for the
Member State competent authority to receive a financial
guarantee in Article 14, does not specifically mention who the
guarantee is required from. While the requirement of such a
guarantee from a specific waste facility would help implement
the polluter pays principle, the ability of companies to meet
this guarantee and the impact it may have on insurance
premiums also needs to be more carefully detailed by the
Commission.

The President

of the European Economic and Social Committee

Roger BRIESCH