Opinion of the Committee of the Regions on the proposal for a Directive of the European Parliament and of the Council on the management of waste from the extractive industries
Date: 2004-02-11
Institutions: European Committee of the Regions
Subjects: environmental protection, mining extraction, prevention of pollution, waste management

30.4.2004

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Official Journal of the European Union

C 109/33

Opinion of the Committee of the Regions on the ‘proposal for a Directive of the European Parlia-
ment and of the Council on the management of waste from the extractive industries’

(2004/C 109/07)

THE COMMITTEE OF THE REGIONS,

HAVING REGARD TO 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));

HAVING REGARD TO the Council's decision of 20 June 2003 to consult it on this subject, under Article
175(1) of the Treaty establishing the European Community;

HAVING REGARD TO its President's decision of 4 December 2002 to instruct the Commission for Sustain-
able Development to draw up an opinion on this subject;

HAVING REGARD TO the Communication from the Commission ‘Safe operation of mining activities: a
follow-up to recent mining accidents’ (COM(2000) 664 final);

HAVING REGARD TO the Resolution of the European Parliament on the Communication from the
Commission ‘Safe operation of mining activities: a follow-up to recent mining accidents’ (COM(2000) 664
final – C5-0013/2001-2001/2005(COS));

HAVING REGARD TO the explanatory memorandum of the Commission regarding adoption of the
amendment to the Seveso II Directive (COM(2001) 624 final)

HAVING REGARD TO 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 Direc-
tive);

HAVING REGARD TO Council Directive 76/464/EEC of 4 May 1976 on pollution caused by certain
dangerous substances discharged into the aquatic environment of the Community;

HAVING REGARD TO Council Directive 80/68/EEC of 17 December 1979 on the protection of ground-
water against pollution caused by certain dangerous substances;

HAVING REGARD TO Council Directive 85/337/EEC on the assessment of the effects of certain public
and private projects on the environment, amended by Council Directive 97/11/EC of 3 March 1997 (EIA
Directive);

HAVING REGARD TO Directive 2003/4/EC of the European Parliament and of the Council on public
access to environmental information and repealing Council Directive 90/313/EEC;

HAVING REGARD TO Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution
prevention and control (IPPC Directive);

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

HAVING REGARD TO Council Directive 75/442/EEC of 15 July 1975 on waste (Waste Framework Direc-
tive), as amended by Council Directive 91/156/EEC;

HAVING REGARD TO Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (Landfill
Directive);

HAVING REGARD TO the judgments of the European Court of Justice of 18 April 2002 (C-9/00) and 11
September 2003 (C-114/01);

HAVING REGARD TO the adoption of the Council Decision on the conclusion of the Convention on the
Transboundary Effects of Industrial AccidentsOJ L 326 of 3.12.1998;

HAVING REGARD TO the Communication from the Commission ‘Promoting sustainable development in
the EU non-energy extractive industry’ (COM(2000) 265 final);

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HAVING REGARD TO the Commission staff working paper of 7 July 2003 ‘Fourth Annual Survey on the
implementation and enforcement of Community environmental law 2002’ (SEC(2003) 804);

HAVING REGARD TO the draft opinion adopted on 12 December 2003 by the Commission for Sustain-
able Development (CdR 330/2003 rev. 1) (rapporteur: Ms Sikora, Member of the North Rhine-Westphalia
Landtag, DE, PES);

unanimously adopted the following opinion at is 53rd plenary session, held on 11 and 12 February 2004
(meeting of 11 February):

1. Views of the Committee of the Regions

The Committee of the Regions

1.1
welcomes in principle the Commission's proposal to
establish a specific legal framework for mining waste with a
directive on the management of waste from the extractive
industries in the EU. It is necessary to fix uniform minimum
standards for waste management for the sake of the environ-
ment and thus for the health and well-being of EU citizens,
especially in view of enlargement;

1.2
is aware that the Directive creates costs for companies
in the extractive industries which may have serious economic
implications. The resultant
impact on citizens and
social
regions must be taken into account;

1.3
notes that it is important to avoid excessive paperwork
and ensuing costs for the authorities of the Member States, as
well as companies;

1.4
considers that in the light of the above points and with
a view to establishing uniform, systematic European rules and
avoiding inconsistencies,

— the Directive should not contain any provisions on matters

already definitively regulated at EU level,

— the definition of waste must be consistent with that set out
in the Waste Framework Directive (75/442/EEC) and with
ECJ judgments to date,

— the principle of sustainable development must be strictly

respected,

— the mineral sector must not be placed at a disadvantage

relative to other waste producers.

2.

Recommendations of the Committee of the Regions

Recommendation 1

Recital 4

Text proposed by the Commission

CoR amendment

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 over-
burden (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).

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, i.e.
waste resulting from prospecting, extraction,
treatment
and storage of raw materials. 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).

Reason

Listing examples of typical mining waste gives the false impression that such deposits are always waste.
This contradicts the definition given in the EU Waste Framework Directive 75/442/EEC (WFD), which also
applies for the purposes of the current Directive (Art. 3(1)), and the restrictive criteria established for
extraction of raw materials by the ECJ in its judgments of 18 April 2002 (C-9/00) and 11 September 2003
(C-114/01). What substances or materials are to be regarded as waste in any given case can only be
decided on the basis of the criteria set out in the WFD with reference to the specific circumstances of that
case. According to the definition in the WFD, waste rock and overburden, and topsoil resulting from
mining operations should not classified as waste if – as is usually the case – they are re-used unaltered
immediately after extraction.

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Recommendation 2

Recital 5

Text proposed by the Commission

CoR amendment

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 waste 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.

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 waste 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. This means waste from
the extractive industries as defined in Article 1(a) of Direc-
tive 75/442/EEC. The definition must take into account
the judgments of the European Court of Justice of 18 April
2002 (C-9/00) and 11 September 2003 (C-114/01).

Reason

The added text is intended to make it clear that in principle the Directive only covers materials which meet
the definition in the WFD. For reasons of legal certainty it is also necessary to mention the most recent
Court of Justice judgments on the question of when rock left over from mineral extraction should be classi-
fied as waste. This is also consistent with the interpretation of the Commission, which in footnote 21 of
the Explanatory Memorandum refers to the first of the above-mentioned ECJ judgments.

Recommendation 3

Recital 8

Text proposed by the Commission

CoR amendment

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 treat-
ment of mineral resources should only be covered by a
limited set of requirements due to its lower environmental
risks.

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 treat-
ment of mineral resources should only be covered by a
limited set of requirements due to its lower environmental
risks. They should not apply either to the activities set out
in Article 11(3)(j) of the EU Water Framework Directive,
which are dealt with definitively in that clause.

Reason

The sentence is added for the sake of clarification. The activities covered by Article 11(3)(j) of the EU
Water Framework Directive do not fall within the scope of this Directive, because they do not concern
waste disposal but re-injection into groundwater of water containing substances resulting from mining
activities.

Recommendation 4

Recital 10

Text proposed by the Commission

CoR amendment

In order to remain true to the principles and priorities
identified in Directive 75/442/EEC and,
in
Articles 3 and 4 thereof, Member States should ensure that
operators engaged in the extractive industry take all neces-
sary 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.

in particular,

in particular,

In order to remain true to the principles and priorities
identified in Directive 75/442/EEC and,
in
Articles 3 and 4 thereof, Member States should ensure that
operators engaged in the extractive industry take all neces-
sary 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,
subject to the requirements of sustainability.

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Under EU law, the objective of the Directive set out in Recital 10 is subject to the three aspects of sustain-
ability. This must be made explicit in the recital.

Reason

Recommendation 5

Article 2(1) (Scope)

Text proposed by the Commission

CoR amendment

Subject to the provisions of paragraph 2, this Directive
covers the management of waste from the extractive
industries, hereinafter ‘extractive waste’,
is to say,
waste resulting from the extraction, treatment and storage
of mineral resources and the working of quarries.

that

Subject to the provisions of paragraph 2, this Directive
covers the management of waste from the extractive indus-
tries, hereinafter ‘extractive waste’, that is to say, waste
resulting from the extraction, treatment and storage of
mineral resources and the working of quarries. This Direc-
tive covers the management of waste from the extractive
is to say
industries, hereinafter ‘extractive waste’,
that
waste resulting from prospecting, extraction,
treatment
and storage of mineral resources and the working of quar-
ries, in accordance with Article 1(a) and Article 2(1)(b)(ii)
of Directive 75/442/EEC.

The purpose is to make it clear that the concept of waste must be consistent with that set out in the Waste
Framework Directive and the ECJ judgments delivered on the basis of that directive.

Reason

Recommendation 6

Article 2(2) (Scope)

Text proposed by the Commission

CoR amendment

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

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

a) waste which is generated by the extraction and treat-
ment 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;

b) waste resulting from the offshore extraction and treat-

ment of mineral resources;

c)

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

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

a) waste which is generated by the extraction and treat-
ment 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 accu-
mulators;

b) waste resulting from the offshore extraction and treat-

ment of mineral resources;

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

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

e) waste from the prospecting of mineral resources.

e) waste from the prospecting of mineral resources.

Reason

(a) Examples should not be listed because the circumstances of each individual case determine whether or
not waste is ‘extractive waste’.

(c) This should be incorporated into Article 2(3) (see relevant reason).

(d) Waste that is taken to another mining site for disposal should also fall within the scope of this directive.
Otherwise the customary central disposal of waste from different mining sites would unjustifiably fall
under the general provisions on waste, whereas waste disposal within the same site would fall under the
present directive. This is not warranted either on technical or environmental grounds.

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The proposed change makes it clear that the intention of the Directive is for mining waste disposed of
outside the extractive industry to fall under the general waste provisions.

(e) For the sake of legal consistency, waste from prospecting should be covered by this specific Directive,
because it is explicitly excluded from the WFD.

Recommendation 7

Article 2(3) (Scope)

Text proposed by the Commission

CoR amendment

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.

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.
The disposal of unpolluted soil and non-hazardous inert
waste from the extraction,
treatment and storage of
mineral resources and the working of quarries does not fall
under the provisions of this Directive.

Unpolluted soil and non-hazardous inert waste are also excluded from the scope of the landfill directive
(1999/31/EC). There is therefore no reason to include such waste in the provisions of the present directive.
In accordance with the subsidiarity principle, such waste should be covered by national legislation.

Reason

Recommendation 8

Article 2(4) (Scope)

Text proposed by the Commission

CoR amendment

4. Without prejudice to other Community legislation,
waste which falls within the scope of this Directive shall
not be subject to Directive 1999/31/EC.

4. Without prejudice to other Community legislation,
waste which falls within the scope of this Directive, or
which in accordance with point 3 of this article is not
covered by
to Directive
1999/31/EC.

shall not be

subject

it,

The phrase must be added because otherwise the landfill directive would cover waste referred to in point
3.

Reason

Recommendation 9

Article 3(12) (Definitions)

Text proposed by the Commission

CoR amendment

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

‘leachate’ means any liquid percolating through the depos-
ited waste and emitted or contained within the waste facili-
tyfrom or contained within a waste facility,
including
polluted drainage, which may adversely affect the environ-
ment if not appropriately treated;

The definition of leachate provided in Article 2(i) of the landfill directive should be used.

Reason

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Recommendation 10

Article 3(13) (Definitions)

Text proposed by the Commission

CoR amendment

‘waste facility’ means any area designated for the accumu-
lation 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 other-
wise 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;

‘waste facility’ means any area designated for the accumu-
lation or deposit of waste, whether in a solid or liquid
state or in solution or suspension, for a period of more
than three years 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;

Reason

The proposed storage period of one year is not adequate. In the case of larger mining operations in particu-
lar, it may make sense, in terms of ensuring a sustainable re-use of mined areas, to store waste for a longer
period and then use it for revegetation. The storage period for mining waste facilities must therefore be at
least three years, as set out in Article 2(g) of the landfill directive with respect to treatment of waste. Other-
wise the implementation of certain measures required under legal provisions or mining requirements will
be unnecessarily hampered or compromised.

Recommendation 11

Article 3(14) (Definitions)

Text proposed by the Commission

CoR amendment

‘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;

‘major accident’means an accident as defined in Article
3(5) of Directive 96/82/ECan occurrence on site,
that
seriously endangers human health or the environment,
whether immediately or over time, on-site or off-site;

This term is already defined in the Seveso II Directive.

Reason

Recommendation 12

Article 3(18) (Definitions)

Text proposed by the Commission

CoR amendment

‘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;

‘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 andor appropriate beneficial uses;

Reason

It is not always possible to restore affected land to its pre-working state or turn it into a natural habitat. A
better alternative is to provide for a form of subsequent use in accordance with land-use planning and indi-
vidual circumstances.

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Recommendation 13

Article 5(2) (Waste management plan)

Text proposed by the Commission

CoR amendment

The objectives of the waste management plan shall be:

Taking environmental, economic and social factors into
account,
the objectives of the waste management plan
shall be:

The objectives set out in Article 5(2) must take into account the principle of sustainability, which requires
that EU law give equal consideration to environmental, economic and social factors.

Reason

Recommendation 14

Article 5(2)(a)(iii) (Waste management plan)

Text proposed by the Commission

CoR amendment

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

iii) placing waste back into the excavation void after
extraction of the mineral, as far as is practicallytechnically
financially viable and environmentally sound,
feasible,
provided this does not conflict with the public interest in
respect of future land use;

It is particularly important that placing waste back into the excavation void be made conditional on the
operation being technical feasible and financially viable.

Reason

The EU principle of ensuring sustainability must also be observed here.

Recommendation 15

Article 6 (Major accident prevention and information)

Text proposed by the Commission

CoR amendment

1. 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.

1. 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.

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

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

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Text proposed by the Commission

CoR amendment

3. 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 peri-
odic 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 acci-
dent.
The competent authority shall draw up an external emer-
gency 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.

3. For the purposes of the requirements under paragraph
2, each operator shall draw up a major-accident preven-
into effect a safety
tion policy for waste and put
management system implementing it,
in accordance
with the elements set out in point 1 of Annex I.As part
of
the operator shall appoint a safety
manager responsible for the implementation and peri-
odic supervision of
the major-accident prevention
policy.

that policy,

The operator shall draw up an internal emergency plan of
the measures to be taken on site in the event of an acci-
dent.
The competent authority shall draw up an external emer-
gency 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) 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;b) to
implement the measures necessary to protect human
health, the environment and property from the effects
of major accidents and other incidents;c)
to communi-
cate the necessary information to the public and to the
to
services or authorities concerned in the area;d)
provide for the rehabilitation, restoration and clean-up
of the environment following a major accident.

4. The emergency plans referred to in paragraph 3 shall
have the following objectives:a)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;b)to
implement the measures necessary to protect human
health, the environment and property from the effects
of major accidents and other incidents;c)to communi-
cate the necessary information to the public and to the
services or authorities concerned in the area;d)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 mini-
mise its consequences for human health and to assess and
minimise the extent, actual or potential, of the environ-
mental damage.

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 mini-
mise its consequences for human health and to assess and
minimise the extent, actual or potential, of the environ-
mental damage.

5. 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.

5. 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 time-
frames and that, in the decision on the external emer-
gency plan, due account is taken of these comments.

Member States shall ensure that the public concerned is
entitled to express comments within reasonable time-
frames and that, in the decision on the external emer-
gency plan, due account is taken of these comments.

6. 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.

6. 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.

That information shall be reviewed every three years and,
where necessary, updated.

Waste management facilities are covered by the provisions
of Directive 96/82/EC,
in so far as they fall within the
scope of that Directive.

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Reason

Article 6 should be recast in order to avoid duplication and legal uncertainty. After long discussions in the
Council and Parliament, the Seveso II Directive has been amended to include the accidents referred to in
this Directive, which means that mining waste disposal sites are now included in the Seveso II Directive.
This means that there is no need for new rules.

Recommendation 16

Article 8 (Public participation)

Text proposed by the Commission

CoR amendment

1. The public shall be informed, by public notices or other
appropriate means, such as electronic media where avail-
able, of the following matters early in the procedure for
granting a permit or, at the latest, as soon as the informa-
tion can reasonably be provided:

1.The public shall be informed, by public notices or other
appropriate means, such as electronic media where avail-
able, of the following matters early in the procedure for
granting a permit or, at the latest, as soon as the informa-
tion can reasonably be provided:

a)

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

a)

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

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

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

c) details of the competent authorities responsible for
taking the decision, those from which relevant infor-
mation can be obtained, those to which comments
or questions can be submitted, and details of the
time schedule for transmitting comments or ques-
tions;

d)

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

c)

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

d)

the nature of possible decisions or, where there is

one, the draft decision;

e) where applicable, the details relating to a proposal
for the updating of a permit or of permit condi-
tions;

e) where applicable, the details relating to a proposal
for the updating of a permit or of permit condi-
tions;

f)

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

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

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

g)

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:

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

a)

b)

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;

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;

in accordance with the provisions of Directive
2003/4/EC of the European Parliament and of the
Council on public access to environmental informa-
tion, 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 accord-
ance with paragraph 1 of this Article.

b) in accordance with the provisions of Directive
2003/4/EC of the European Parliament and of the
Council on public access to environmental informa-
tion, 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 accord-
ance with paragraph 1 of this Article.

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

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

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Official Journal of the European Union

30.4.2004

Text proposed by the Commission

CoR amendment

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

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

5. 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.

5.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.

6. When a decision has been taken the competent
authority shall, in accordance with the appropriate proce-
inform the public concerned and shall make the
dures,
following information available to the public concerned:

6.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)

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

a)

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

b)

the reasons and considerations on which the deci-

sion is based.

b)

the reasons and considerations on which the deci-

sion is based.

Public participation in an authorisation procedure under
Article 7 is governed by the provisions of Directive
2003/4/EC.

Reason

To avoid duplication and legal uncertainty, Article 8 should refer to the provisions of Directive 2003/4/EC
on public access to environmental information, which also includes waste facilities.

Recommendation 17

Article 9 (Classification system for waste facilities)

Text proposed by the Commission

CoR amendment

the

in one of

For the purposes of this Directive, Member States shall
classify waste facilities which are either heaps or engi-
following categories,
neered ponds
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.

For the purposes of this Directive, Member States shall
classify waste facilities which are either heaps or engi-
neered 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.

Reason

The purpose of such a classification system is not clear, especially since the provision chiefly concerns
prevention of major accidents, which is covered in Article 6. Moreover, it is not possible to undertake an
adequate classification based on the criteria set out in Annex III. Since risk to workers can never be
completely eliminated, all facilities would, on the basis of the first criterion, fall into Category A.

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C 109/43

Recommendation 18

Article 10 (Excavation voids)

Text proposed by the Commission

CoR amendment

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

shall ensure that

(1)

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

(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.

Member States shall ensure that the operator, when consid-
ering placing waste back into the excavation voids, takes
appropriate measures in order to:
(1)

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

(2) prevent the pollution of soil and surface and ground-
water in accordance with paragraphs 1 and 2 of
Article 13;

(3) monitor such waste in accordance with paragraphs 4
and 5 of Article 12, if there is a risk of damage to the
biosphere.

Reason

Once mining waste has been filled into excavation voids, it is generally impossible for technical reasons to
monitor it, because the waste is no longer accessible once the operation has been completed. Since it
requires much time and money, regular monitoring is only justified if there is a risk of damage to the
biosphere.

Recommendation 19

Article 13(1)(b) (Prevention of water and soil pollution)

Text proposed by the Commission

CoR amendment

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

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

It is generally impossible to prevent the formation of leachate in practice. Leachate is produced anyway on
heaps just through natural precipitation, and can only be collected and if necessary treated.

Reason

Recommendation 20

Article 13(2) (Prevention of water and soil pollution)

Text proposed by the Commission

CoR amendment

Where, on the basis of an assessment of environmental
risks, taking into account, in particular, Council Directive
76/464/EEC, Council Directive 80/68/EEC 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.

Where, on the basis of an assessment of environmental
risks, taking into account, in particular, and in accordance
with Council Directive 76/464/EEC, Council Directive
80/68/EEC or Directive 2000/60/EC, as applicable,
the
competent authority has decided that collection and treat-
ment 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 are not applicable may
be reduced or waived accordingly.

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Official Journal of the European Union

30.4.2004

Reason

In deciding what requirements must be met by waste management facilities with respect to protection of
surface waters and groundwater, the authority is bound by the provisions of the above-mentioned EU
water directives. The authorities have no latitude in decision-making outside those provisions. As long as
the waste facility poses no risk for soil or water, there is no objective reason for maintaining the require-
ments in paragraph 1(b) and (c).

Recommendation 21

Article 14(1) (Financial guarantee and environmental liability)

Text proposed by the Commission

CoR amendment

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

(a)

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

The competent authority shall, prior to the commence-
ment of any operations involving the deposit into or onto
land of waste, require a guarantee, in the form of a finan-
cial deposit or equivalent, including e.g. in the form of an
industry-sponsored mutual guarantee funds, or any other
equivalent, on the basis of modalities to be decided by
Member States, so that:

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

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

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

Reason

This wording would correspond to Article 8(a)(iv) of the landfill directive (1999/31/EC), on which basis
national decisions have already been taken.

Recommendation 22

Article 14(5) (Financial guarantee and environmental liability)

Text proposed by the Commission

CoR amendment

The provisions of Directive …/…/EC 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.

The provisions of Directive …/…/EC 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.
Environmental damage caused by the operation of an
extractive waste facility falling within the scope of the
present directive is covered by the provisions of Direc-
tive../../EC on environmental
liability with regard to the
prevention and remedying of environmental damage.

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Official Journal of the European Union

C 109/45

Liability for environmental damage caused by waste facilities falling within the scope of the present direc-
tive should be consistent with the provisions of the future environmental liability directive, which is just
awaiting publication.

Reason

Recommendation 23

Article 22 (Transitional provision)

Text proposed by the Commission

CoR amendment

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.

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.which at the date of transposition is already in opera-
tion must comply with the provisions of this Directive
within 10 years of that date, unless this is impossible for a
valid reason or is unnecessary from an environmental
point of view or too costly.

Reason

No retroactivity should be granted for decommissioned facilities authorised under current law. The extrac-
tive industry has existed for hundreds of years in innumerable locations, and the costs of retroactivity
cannot be financed (since incorporating the new Länder, Germany for instance has already spent over
EUR 10 billion on restructuring bismuth and lignite operations).

A longer transition period is needed for transposition to allow for planning and financing, especially since
a substantially longer transition period is provided for in the landfill directive.

Brussels, 11 February 2004

The President

of the Committee of the Regions

Peter STRAUB