Common Position (EC) No 23/2005 of 12 April 2005 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council on the management of waste from extractive industries and amending Directive 2004/35/EC
Date: 2005-04-12
Institutions: Council of the European Union
Subjects: environmental protection, environmental risk prevention, industrial waste, mining extraction, waste management

12.7.2005

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 23/2005

adopted by the Council on 12 April 2005

with a view to adopting Directive 2005/…/EC of the European Parliament and of the Council of …
on the management of waste from extractive industries and amending Directive 2004/35/EC

(2005/C 172 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European Com-
munity, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of
Regions (2),

the Committee of

the

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

(2)

(3)

Whereas:

(1)

The Communication of the Commission 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
Directive
2003/105/EC of the European Parliament and of the
Council of 16 December 2003 amending Council Direc-
tive 96/82/EC on the control of major-accident hazards

initiatives

pursuant

to

involving dangerous substances (4), as well as the produc-
tion of a best available technique document covering the
management of waste rock and tailings from mining
activities under
auspices of Council Directive
96/61/EC of 24 September 1996 concerning integrated
pollution prevention and control (5).

the

In its Resolution (6) of 5 July 2001 concerning that
Communication,
strongly
supported the need for a Directive on waste from the
extractive industries.

the European Parliament

Decision No 1600/2002/EC of the European Parliament
and of the Council of 22 July 2002 laying down the
Sixth Community Environment Action Programme (7),
sets 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 espe-
cially 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 effi-
ciency 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 promo-
tion of sustainable management of extractive industries
with a view to reducing their environmental impact.

(1) OJ C 80, 30.3.2004, p. 35.
(2) OJ C 109, 30.4.2004, p. 33.
(3) Opinion of the European Parliament of 31 March 2004 (OJ C 103
E, 29.4.2004, p. 634), Council Common Position of 12 April 2005
and Position of the European Parliament of … (not yet published in
the Official Journal).

(4) OJ L 345, 31.12.2003, p. 97.
(5) OJ L 257, 10.10.1996, p. 26. Directive as last amended by Regu-
lation (EC) No 1882/2003 of the European Parliament and of the
Council (OJ L 284, 31.10.2003, p. 1).

(6) OJ C 65 E, 14.3.2002, p. 382.
(7) OJ L 242, 10.9.2002, p. 1.

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(4)

(5)

(6)

(7)

(8)

it

In accordance with the objectives of Community policy
on the environment,
is necessary to lay down
minimum requirements in order to prevent or reduce, as
far as possible, any adverse effects on the environment
or on human health which are brought about as a result
of the management of waste from the extractive indus-
tries, such as tailings (i.e. the waste solids or slurries 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, including during the
pre-production development stage), and topsoil (i.e. the
upper layer of the ground) provided that they constitute
waste as defined in Council Directive 75/442/EEC of 15
July 1975 on waste (1).

In accordance with paragraph 24 of the Johannesburg
Plan of
Implementation on Sustainable Development
adopted within the framework of the United Nations at
the 2002 World Summit on Sustainable Development, it
is necessary to protect
the natural resource base of
economic and social development and reverse the
current trend in natural resource degradation by mana-
ging the natural resource base in a sustainable and inte-
grated manner.

Accordingly, this Directive should cover the manage-
ment of waste from land-based extractive industries, that
is to say, the waste arising from the prospecting, extrac-
tion (including the pre-production development stage),
treatment and storage of mineral resources and from the
working of quarries. However, such management should
reflect the principles and priorities identified in Directive
75/442/EEC, which, in accordance with Article 2(1)(b)(ii)
the
thereof, continues
management of waste from the extractive industries
which are not covered by this Directive.

to apply to any aspects of

In order
to avoid duplication and disproportionate
administrative requirements, the scope of this Directive
should be limited to those particular operations consid-
ered 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, e.g. food waste, waste oil, end-of-life vehicles,
spent batteries and accumulators. The management of
such waste should be subject to the provisions of Direc-
tive 75/442/EEC or of Council Directive 1999/31/EC of

26 April 1999 on the landfill of waste (2), or any other
relevant Community legislation, as is the case for waste
generated at a prospecting, extraction or treatment site
and transported to a location that is not a waste facility
according to this Directive.

(9)

Nor should this Directive apply to waste resulting from
the offshore prospecting, extraction and treatment of
mineral resources or to the injection of water and re-
injection of pumped groundwater, while inert waste,
non-hazardous prospecting waste, unpolluted soil and
waste resulting from the extraction,
treatment and
storage of peat should be covered only by a limited set
of requirements due to their lower environmental risks.
For non-hazardous non-inert waste, Member States may
reduce or waive certain requirements. However, these
exemptions should not apply to Category A waste facil-
ities.

(10) 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.

(11)

(12)

(13)

In accordance with Directive 75/442/EEC and pursuant
to Articles 31 and 32 of the Treaty establishing the
European Atomic Energy Community (Euratom),
the
objective of management of waste generated by the
extraction of materials used for their radioactive proper-
ties is to ensure protection of workers, the public and
the
from
against dangers
ionising radiations. This Directive is not applicable to
the management of such waste where it
is already
covered by legislation based on the Euratom Treaty.

environment

stemming

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,
inter alia, on the
concept of best available techniques as defined in Direc-
tive 96/61/EC and, when such techniques are applied, it
is for the Member States to determine how the technical
characteristics of the waste facility, its geographical loca-
tion and local environmental conditions can, where
appropriate, be taken into consideration.

(1) OJ L 194, 25.7.1975, p. 39. Directive as last amended by Regu-

(2) OJ L 182, 16.7.1999, p. 1. Directive as amended by Regulation (EC)

lation (EC) No 1882/2003.

No 1882/2003.

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(14) Member States should ensure that operators in the
extractive industry draw up appropriate waste manage-
ment plans for the treatment, recovery and disposal of
extractive 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.

(15)

this should entail

In order to minimise the risk of accidents and to guar-
antee a high level of protection for the environment and
human health, Member States should ensure that each
operator of a category A waste facility adopts and
applies a major-accident prevention policy for waste. In
the
terms of preventive measures,
delivery of a safety management system, emergency
plans to be used in the event of accidents and the disse-
mination 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 extractive industries falling
within the scope of Council Directive 96/82/EC (1).

(16) A waste facility should not be classified in Category A
solely on the basis of risks to the safety and health
industries
protection of workers
covered by other Community legislation,
in particular
Council Directives 92/91/EEC (2) and 92/104/EEC (3).

extractive

in the

odically reconsider and, where necessary, update permit
conditions.

(18) Member States should be required to ensure that,

in
accordance with the UNECE Convention on Access to
Information, Public Participation in Decision-making and
Access to Justice in Environmental Matters of 25 June
1998 (Aarhus Convention), the public are informed of
the application for a waste management permit and the
public concerned are consulted prior to the granting of a
waste management permit.

(19)

as

regards

It is necessary to indicate clearly the requirements with
which waste facilities servicing the extractive industries
should comply
location, management,
control, closure and preventive and protective measures
to be taken against any threat to the environment in the
short and long-term perspectives, and more especially
against the pollution of groundwater by leachate infiltra-
tion into the soil.

(20)

It is necessary to define clearly category A 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.

(17)

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 waste facilities used to receive such waste. In
addition, Member States
should take the necessary
measures to ensure that the competent authorities peri-

(1) 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). Directive as last amended by Regulation (EC) No
1882/2003.

(2) Council Directive 92/91/EEC of 3 November 1992 concerning the
minimum requirements for improving the safety and health protec-
tion of workers in the mineral-extracting industries through drilling
(11th individual Directive within the meaning of Article 16(1) of
Directive 89/391/EEC) (OJ L 348, 28.11.1992, p. 9).

(3) Council Directive 92/104/EEC of 3 December 1992 on the
minimum requirements for improving the safety and health protec-
tion of workers in surface and underground mineral-extracting
industries (12th individual Directive within the meaning of Article
16(1) of Directive 89/391/EEC) (OJ L 404, 31.12.1992, p. 10).

(21) Waste placed back into the excavation voids either for
their rehabilitation or for construction purposes related
to the mineral extraction process, such as the building
or maintenance within voids of means of access for
machinery, haulage ramps, bulkheads, safety barricades
or berms, needs also to be subject to certain require-
ments in order to protect surface water and/or ground-
water, secure the stability of such waste, and ensure
appropriate monitoring upon cessation of such activities.
Accordingly, such waste should not be subject to the
requirements of this Directive which relate exclusively to
‘waste facilities’, except for the requirements mentioned
in the specific provision on excavation voids.

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(22) With a view to ensuring the proper construction and
maintenance of waste facilities servicing waste from the
extractive industries, Member States should take appro-
priate measures to ensure that the design, location and
management of such facilities is carried out by techni-
cally competent persons. It is necessary to ensure that
the training and knowledge acquired by operators and
staff afford them the necessary skills. In addition, compe-
tent authorities should satisfy themselves that operators
ensure
to the
construction and maintenance of a new waste facility or
to any extension or modification of an existing waste
facility, including in the after-closure phase.

arrangements with respect

suitable

(23)

It is necessary to establish monitoring procedures during
the operation and after-closure of waste facilities. An
after-closure period for monitoring and control of cate-
gory A waste facilities should be laid down propor-
tionate to the risk posed by the individual waste facility,
in a way similar
required by Directive
1999/31/EC.

to that

(24)

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.

(26)

(27)

(28)

(25) 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 iden-
tify 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
discharge of waste into any receiving body of water
should comply with Directive 2000/60/EC of the Euro-
pean Parliament and of the Council of 23 October 2000
establishing a framework for Community action in the
field of water policy (1). Furthermore, concentrations in
tailings ponds of cyanide and cyanide compounds from
their
certain extractive industries should,
harmful and toxic effects, be reduced to the lowest
techniques.
possible
best
Maximum concentration thresholds
set
accordingly and, in any case, in line with the specific
requirements of this Directive to prevent such effects.

in view of

should be

available

levels,

using

The operator of a waste facility servicing the extractive
industries should be required to lodge a financial guar-
antee or equivalent in accordance with procedures to be
decided by the Member States ensuring that all the obli-
gations
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
suitably 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 with
Directive 2004/35/EC of the European Parliament and of
the Council of 21 April 2004 on environmental liability
with regard to the prevention and remedying of environ-
mental damage (2),
to clarify that an
operator of a waste facility servicing the extractive indus-
tries is subject to appropriate liability in respect of envir-
onmental damage caused by its operations or the immi-
nent threat of such damage.

is important

it

In the case of the operation of waste facilities servicing
the extractive industries that are likely to have significant
adverse transboundary effects on the environment and
any resultant risks to human health, 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 of any such waste facilities that could
have adverse effects for the environment of that other
Member State.

It is necessary for Member States to ensure that compe-
tent authorities organise an effective system of inspec-
tions or equivalent control measures in respect of waste
facilities
servicing the extractive industries. Without
prejudice to the obligations of the operator under the
permit, prior to the commencement of deposition opera-
tions there should 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 waste
facility and its operations.

(1) OJ L 327, 22.12.2000, p. 1. Directive as amended by Decision No

2455/2001/EC (OJ L 331, 15.12.2001, p. 1).

(2) OJ L 143, 30.4.2004, p. 56.

(29) Member States

to the
should send regular
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.

reports

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

should be

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 this objective.

(31)

It is necessary for Member States to ensure that an
inventory of closed waste facilities located on their terri-
tory which cause
environmental
impacts or have the potential of becoming in the
medium or short term a serious threat to human health
or the environment is carried out.

serious negative

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 this Directive
when rehabilitating closed waste facilities. Moreover, an
exchange of information should be ensured within and
between Member States on the best available techniques.

(35)

(36)

(37)

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down
the procedures for the exercise of implementing powers
conferred on the Commission (1).

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.

In accordance with paragraph 34 of the Interinstitutional
Agreement on better law-making (2), Member States are
encouraged to draw up,
for themselves and in the
interest of the Community, their own tables, which will,
as far as possible, illustrate the correlation between this
Directive and the transposition measures and to make
them public,

This Directive could be a useful instrument to be taken
into account when verifying that projects receiving Com-
munity funding in the context of development aid
include the necessary measures to prevent or reduce as
far as possible negative effects on the environment. Such
an approach is consistent with Article 6 of the Treaty,
particularly with regard to integrating environmental
protection requirements into the Community's policy in
the sphere of development cooperation.

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

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
its objective can be better
effects of
achieved at Community level,
the Community may
in accordance with the principle of
adopt measures,

this Directive,

This Directive provides for measures, procedures and guidance
to prevent or reduce as far as possible any adverse effects on
the environment, in particular water, air, soil, fauna and flora
and landscape, 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 paragraphs 2 and 3, this Directive covers the
management of waste resulting from the prospecting, extrac-
tion,
treatment and storage of mineral resources and the
working of quarries, hereinafter ‘extractive waste’.

(1) OJ L 184, 17.7.1999, p. 23.
(2) OJ C 321, 31.12.2003, p. 1.

(32)

(33)

(34)

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The following shall be excluded from the scope of this

2.
Directive:

(a) waste which is generated by the prospecting, extraction and
treatment of mineral resources and the working of quarries,
but which does not directly result from those operations;

(b) waste resulting from the offshore prospecting, extraction

and treatment of mineral resources;

3.

‘inert waste’ means waste that does not undergo any signif-
icant 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 insignifi-
cant, and in particular not endanger the quality of surface
water and/or groundwater;

(c) injection of water and re-injection of pumped groundwater
as defined in the first and second indents of Article 11(3)(j)
of Directive 2000/60/EC, to the extent authorised by that
Article.

Inert waste and unpolluted soil

resulting from the
3.
prospecting, extraction,
treatment and storage of mineral
resources and the working of quarries and waste resulting from
the extraction,
treatment and storage of peat shall not be
subject to Articles 7, 8, 11(1) and (3), 12, 13(5), 14 and 16,
unless deposited in a category A waste facility.

The competent authority may reduce or waive the require-
ments for the deposit of non-hazardous waste generated from
the prospecting of mineral resources, except oil and evaporites
other than gypsum and anhydrite, as well as for the deposit of
unpolluted soil and of waste resulting from the extraction,
treatment and storage of peat as long as it is satisfied that the
requirements of Article 4 are met.

Member States may reduce or waive the requirements of Arti-
cles 11(3), 12(5) and (6), 13(5), 14 and 16 for non-hazardous
non-inert waste, unless deposited in a category A waste facility.

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.

Article 3

Definitions

For the purposes of this Directive:

1.

‘waste’
75/442/EEC;

is

as defined in Article 1(a) of Directive

2.

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

4.

‘unpolluted soil’ means soil that is removed from the upper
layer of the ground during extractive activities and that is
not deemed to be polluted under the national law of the
Member State where the site is located and Community
law;

5.

‘mineral resource’ or ‘mineral’ means a naturally occurring
deposit in the earth's crust of an organic or inorganic
substance, such as energy fuels, metal ores,
industrial
minerals and construction minerals, but excluding water;

6.

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

for commercial purposes,

treatment of

resources

7.

‘offshore’ means that area of the sea and seabed extending
from the low water mark of ordinary or medium tides
outwards;

8.

9.

‘treatment’ means the mechanical, physical, biological,
thermal or chemical process or combination of processes
carried out on mineral
including from the
working of quarries, with a view to extracting the mineral,
separation and
including
leaching, and the re-processing of previously discarded
waste, but excluding smelting,
thermal manufacturing
processes and/or metallurgical operations;

classification,

resources,

change,

size

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

to remove

techniques)

(1) OJ L 377, 31.12.1991, p. 20. Directive as amended by Directive

94/31/EC (OJ L 168, 2.7.1994, p. 28).

10.

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

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11.

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

16.

‘major accident’ means an occurrence on site in the course
of an operation involving the management of extractive
waste in any establishment covered by this Directive,
leading to a serious danger to human health and/or the
environment, whether immediately or over time, on-site or
off-site;

12.

‘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;

13.

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

14.

‘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;

15.

‘waste facility’ means any area designated for the accumula-
tion or deposit of extractive waste, whether in a solid or
liquid state or in solution or suspension, for the following
time-periods:

17.

‘dangerous
substance’ means a substance, mixture or
preparation which is dangerous within the meaning of
Directive 67/548/EEC (1) or Directive 1999/45/EC (2);

18.

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

19.

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

(2),

— no time-period for category A waste facilities and facil-
ities for waste characterised as hazardous in the waste
management plan,

20.

‘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 soil quality,
wild life, natural habitats, freshwater systems,
landscape
and appropriate beneficial uses;

— a period of more than six months for facilities for

hazardous waste generated unexpectedly,

— a period of more than one year for facilities for non-

hazardous non-inert waste,

21.

‘prospecting’ means the search for mineral deposits of
economic value, including sampling, bulk sampling, dril-
ling and trenching, but excluding any works required for
the development of such deposits, and any activities
directly associated with an existing extractive operation;

— a period of more than three years for facilities for
unpolluted soil, non-hazardous prospecting waste,
waste resulting from the extraction,
treatment and
storage of peat and inert waste.

Such facilities are 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, for rehabilitation and construction purposes;

22.

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

(1) Council Directive 67/548/EEC of 27 June 1967 on the approxima-
tion of laws, regulations and administrative provisions relating to
the classification, packaging and labelling of dangerous substances
(OJ 196, 16.8.1967, p. 1). Directive as last amended by Commission
Directive 2004/73/EC (OJ L 152, 30.4.2004, p. 1).

(2) Directive 1999/45/EC of

the European Parliament and of

the
Council of 31 May 1999 concerning the approximation of the laws,
the Member States
regulations and administrative provisions of
relating to the classification, packaging and labelling of dangerous
preparations (OJ L 200, 30.7.1999, p. 1). Directive as last amended
by Council Directive 2004/66/EC (OJ L 168, 1.5.2004, p. 35).

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23.

‘the public concerned’ means the public affected or likely
to be affected by, or having an interest in, the environ-
mental decision-making under Articles 6 and 7 of this
Directive; for the purposes of this definition, non-govern-
mental organisations promoting environmental protection
and meeting any requirement under national law shall be
deemed to have such an interest;

2. Member States shall ensure that the operator takes all
measures necessary to prevent or reduce as far as possible any
adverse effects on the environment and human health brought
about as a result of the management of extractive waste. This
includes the management of any waste facility, also after its
closure, and the prevention of major accidents involving that
facility and the limiting of their consequences for the environ-
ment and human health.

24.

‘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 temporary
storage of extractive waste as well as the operational and
the after-closure phases;

25.

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

26.

‘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 perform the duties arising from this Directive;

3.
The measures referred to in paragraph 2 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

27.

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

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

the minimisation,

28.

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

2.

The objectives of the waste management plan shall be:

29.

‘substantial change’ means a change in the structure or
in the opinion of the
operation of a waste facility that,
competent authority, may have significant negative effects
on human health or the environment.

(a) to prevent or reduce waste production and its harmfulness,

in particular by considering:

Article 4

General requirements

take the necessary measures to
1. Member States shall
ensure that extractive waste is managed without endangering
human health and without using processes or methods which
could harm the environment, and in particular without risk to
water, air, soil and fauna and flora, without causing a nuisance
through noise or odours and without adversely affecting the
landscape or places of special interest. Member States shall also
take the necessary measures to prohibit
the abandonment,
dumping or uncontrolled depositing of extractive waste.

(i) waste management in the design phase and in the
choice of the method used for mineral extraction and
treatment;

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

(iii) placing extractive waste back into the excavation void
after extraction of the mineral, as far as is technically
and economically feasible and environmentally sound
in accordance with existing environmental standards at
Community level and with the requirements of this
Directive where relevant;

(iv) putting topsoil back in place after the closure of the
this is not practically feasible,

waste facility or,
reusing topsoil elsewhere;

if

(v) using less dangerous substances for the treatment of

mineral resources;

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(b) to encourage the recovery of extractive waste by means of
recycling, reusing or reclaiming such waste, where this is
environmentally sound in accordance with existing environ-
mental standards at Community level and with the require-
ments of this Directive where relevant;

The waste management plan shall provide sufficient informa-
tion to enable the competent authority to evaluate the opera-
tor's ability to meet the objectives of the waste management
plan as set out in paragraph 2 and his obligations under this
Directive.

(c) to ensure short and long-term safe disposal of the extractive
waste,
in particular by considering, during the design
phase, management during the operation and after-closure
of a waste facility and by choosing a design which requires
minimal and, if possible, ultimately no monitoring, control
and management of the closed waste facility.

4.
The waste management plan shall be reviewed every five
years and/or amended, as appropriate, in the event of substan-
tial changes to the operation of the waste facility or to the
waste deposited. Any amendments shall be notified to the
competent authority.

The waste management plan shall contain at least the

3.
following elements:

(a) where applicable, the proposed classification for the waste
facility in accordance with the criteria laid down in Annex
III:

5.
Plans produced pursuant to other national or Community
legislation and containing the information specified in para-
graph 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.

— where a category A waste facility is required, a docu-
ment demonstrating that a major-accident prevention
policy, a safety management system for implementing it
and an internal emergency plan will be put into effect
in accordance with Article 6(3),

— when the operator considers that a Category A waste
facility is not required, sufficient information justifying
this,
including an identification of possible accident
hazards;

6.
The competent authority shall approve the waste manage-
ment plan on the basis of procedures to be decided by the
Member States and shall monitor its implementation.

Article 6

(b) waste characterisation in accordance with Annex II and a
statement of the estimated total quantities of extractive
waste to be produced during the operational phase;

Major-accident prevention and information

(c) a description of the operation generating such waste and of

any subsequent treatment to which it is subject;

1.
This Article shall apply to category A waste facilities, save
for those waste facilities falling within the scope of Directive
96/82/EC.

(d) a description of how the environment and human health
may be adversely affected by the deposit of such waste and
the preventive measures to be taken in order to minimise
environmental impact during operation and after closure,
including the aspects referred to in Article 11(2)(a), (b), (d)
and (e);

(e) the proposed control and monitoring procedures pursuant

to Article 10, when applicable, and Article 11(2)(c);

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

(f) the proposed plan for closure,

including rehabilitation,
after-closure procedures and monitoring as provided for in
Article 12;

(g) measures for the prevention or minimisation of water
status deterioration, air and soil pollution pursuant
to
Article 13.

3.
For the purposes of the requirements under paragraph 2,
each operator shall, before the start of operations, draw up a
major-accident prevention policy for
the management of
extractive waste and put
into effect a safety management
system implementing it, in accordance with the elements set
out in section 1 of Annex I, and shall also put into effect an
internal emergency plan specifying the measures to be taken
on site in the event of an accident.

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As part of that policy, the operator shall appoint a safety
manager
the implementation and periodic
supervision of the major-accident prevention policy.

responsible for

6. Member States shall ensure that information on safety
measures and on the action required in the event of an acci-
dent, containing at least the elements listed in section 2 of
Annex I, is provided, free of charge and as a matter of course,
to the public concerned.

The competent authority shall draw up an external emergency
plan specifying the measures to be taken off-site in the event of
an accident. As part of
the
operator shall provide the competent authority with the infor-
mation necessary to enable the latter to draw up that plan.

the application for a permit

information shall be reviewed every three years and,

That
where necessary, updated.

The emergency plans referred to in paragraph 3 shall

4.
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 and the environment;

(b) to implement the measures necessary to protect human
health and the environment from the effects of major acci-
dents and other incidents;

Article 7

Application and permit

1.
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 of this Article
and shall clearly indicate the category of the waste facility in
accordance with the criteria referred to in Article 9.

(c) to communicate the necessary information to the public

and to the relevant services or authorities in the area;

(d) to provide for the rehabilitation, restoration and clean-up

of the environment following a major accident.

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 informa-
tion and the repetition of work by the operator or competent
authority. The details specified in paragraph 2 can be covered
by one single permit or several permits, provided that all
requirements under this Article are complied with.

the operator

Member States shall ensure that, in the event of a major acci-
dent,
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.

immediately provides

the

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 deci-
sion-making process and about the competent authority to
which comments and questions may be submitted.

The application for a permit shall contain at least the

2.
following details:

(a) the identity of the operator;

(b) the proposed location of the waste facility, including any

possible alternative locations;

(c) the waste management plan pursuant to Article 5;

(d) adequate arrangements by way of a financial guarantee or

equivalent, as required under Article 14;

(e) the information provided by the operator in accordance
with Article 5 of Directive 85/337/EEC (1) if an environ-
mental impact assessment is required under that Directive.

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 emergency plan, due account is
taken of these comments.

(1) Council Directive 85/337/EEC of 27 June 1985 on the assessment
of the effects of certain public and private projects on the environ-
ment (OJ L 175, 5.7.1985, p. 40). Directive as last amended by
Directive 2003/35/EC of
the
Council (OJ L 156, 25.6.2003, p. 17).

the European Parliament and of

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The competent authority shall only grant a permit if it is

3.
satisfied that:

(a) the operator complies with the relevant requirements under

this Directive;

(b) the management of waste does not conflict directly or
otherwise interfere with the implementation of the relevant
waste management plan or plans referred to in Article 7 of
Directive 75/442/EEC.

(c) 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;

(e) where applicable, the details relating to a proposal for the

updating of a permit or of permit conditions;

4. Member States shall
take the necessary measures to
ensure that competent authorities periodically reconsider and,
where necessary, update permit conditions:

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

— where there are substantial changes in the operation of the

waste facility or the waste deposited,

(g) details of the arrangements for public participation made

pursuant to paragraph 7.

— on the basis of monitoring results reported by the operator
inspections carried out

to Article 11(3) or

pursuant
pursuant to Article 17,

— in the light of information exchange on substantial changes

in best available techniques under Article 21(3).

5.
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 and the volume of economic mineral reserves,
shall not be made public.

Article 8

Public participation

The public shall be informed, by public notices or other
1.
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 reason-
ably be provided:

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

(a) in accordance with national

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

the European Parliament and of

(b) in accordance with the provisions of Directive 2003/4/EC
of
the Council of 28
January 2003 on public access to environmental informa-
tion and repealing Council Directive 90/313/EEC (1), any
information in addition to that referred to in paragraph 1
of this Article which is relevant for the decision in accord-
ance 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. Member States shall take appropriate measures to ensure
that the public are informed, in accordance with paragraph 1
of this Article, of an update of permit conditions in accordance
with Article 7(4).

The public

4.
entitled to express
comments and opinions to the competent authority before a
decision is taken.

concerned shall be

(a) the application for a permit;

(b) where applicable, the fact that a decision concerning an
application for a permit is subject to consultation between
the Member States in accordance with Article 16;

5.
The results of the consultations held pursuant to this
Article shall be duly taken into account in the taking of a deci-
sion.

(1) OJ L 41, 14.2.2003, p. 26.

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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:

Article 11

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

Construction and management of waste facilities

(b) the reasons and considerations on which the decision is

based.

The detailed arrangements for public participation under
7.
this Article shall be determined by the Member States so as to
enable the public concerned to prepare and participate effec-
tively.

1. 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

2.
in
constructing a new waste facility or modifying an existing
waste facility, the operator ensures that:

satisfy itself

that,

Article 9

Classification system for waste facilities

For the purposes of this Directive, the competent authorities
shall classify a waste facility as category A in accordance with
the criteria set out in Annex III.

Article 10

Excavation voids

1. Member States shall ensure that
the operator, when
placing extractive waste back into the excavation voids for
rehabilitation and construction purposes, whether created
through surface or underground extraction, takes appropriate
measures in order to:

for,

(a) the waste facility is suitably located, taking into account in
particular geological, hydrological, hydrogeological, seismic
and geotechnical factors, and is designed so as to meet the
necessary conditions
in the short and long-term
perspectives, preventing pollution of the soil, air, ground-
water or surface water, taking into account especially Direc-
tives 76/464/EEC (1), 80/68/EEC (2) and 2000/60/EC, and
ensuring efficient collection of contaminated water and
leachate as and when required under the permit, and redu-
cing erosion caused by water or wind as far as it is techni-
cally possible and economically viable;

(b) the waste facility is suitably constructed, managed and
maintained to ensure its physical stability and to prevent
pollution or contamination of soil, air, surface water or
groundwater in the short and long-term perspectives as
well as to minimise as far as possible damage to landscape;

(c) there are suitable plans and arrangements for regular moni-
toring and inspection of the waste facility by competent
persons and for taking action in the event of results indi-
cating instability or water or soil contamination;

1. secure the stability of the extractive waste in accordance,

mutatis mutandis, with Article 11(2);

(d) suitable arrangements are made for the rehabilitation of the

land and the closure of the waste facility;

2. prevent the pollution of soil, surface and groundwater in
accordance, mutatis mutandis, with Article 13(1) and (3);

(e) suitable arrangements are made for the after-closure phase

of the waste facility.

3. ensure the monitoring of the extractive waste in accordance,

mutatis mutandis, with Article 12(4) and (5).

2.
Directive 1999/31/EC shall continue to apply to the
waste other than extractive waste used for filling in excavation
voids as appropriate.

(1) Council Directive 76/464/EEC of 4 May 1976 on pollution caused
by certain dangerous substances discharged into the aquatic envir-
onment of the Community (OJ L 129, 18.5.1976, p. 23). Directive
as last amended by Directive 2000/60/EC of the European Parlia-
ment and of the Council.

(2) Council Directive 80/68/EEC of 17 December 1979 on the protec-
tion of groundwater against pollution caused by certain dangerous
substances (OJ L 20, 26.1.1980, p. 43). Directive as amended by
Directive 91/692/EEC (OJ L 377, 31.12.1991, p. 48).

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Records of the monitoring and inspections referred to in point
(c) shall be kept, together with permit documentation, in order
to ensure the appropriate hand-over of information, particu-
larly in the event of a change of operator.

by the operator, certified that the site has been rehabilitated
and communicated to the operator its approval of the closure.

3.
The operator shall, without undue delay and in any event
than 48 hours thereafter, notify the competent
not
later
authority of any events likely to affect the stability of the waste
facility and any significant adverse environmental effects
revealed by the control and monitoring procedures of
the
waste facility. The operator shall implement the internal emer-
gency plan, where applicable, and follow any other instruction
from the competent authority as to the corrective measures to
be taken.

The operator shall bear the costs of the measures to be under-
taken.

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
the purposes of demonstrating
competent authorities
compliance with permit conditions and increasing knowledge
of waste and waste facility behaviour. On the basis of this
report the competent authority may decide that validation by
an independent expert is necessary.

for

That approval shall not in any way reduce the operator's obli-
gations under the conditions of the permit or otherwise in law.

The operator shall be responsible for the maintenance,
4.
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, 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.

5. When considered necessary by the competent authority
following closure of a waste facility, the operator shall, in par-
ticular, 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;

Article 12

(b) where applicable, overflow channels and spillways are kept

clean and free.

Closure and after-closure procedures for waste facilities

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

A waste facility shall only start the closure procedure if

2.
one of the following conditions is satisfied:

(a) the relevant conditions stated in the permit are met;

(b) authorisation is granted by the competent authority, at the

request of the operator;

(c) the competent authority issues a reasoned decision to that

effect.

3.
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

6.
Following closure of a waste facility, the operator shall,
without delay, notify the competent authority of any events or
developments likely to affect the stability of the waste facility,
and any significant adverse environmental effects revealed by
the relevant control and monitoring procedures. The operator
shall implement the internal emergency plan, where applicable,
and follow any other instruction from the competent authority
as to the corrective measures to be taken.

The operator shall bear the costs of the measures to be under-
taken.

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 and waste facility beha-
viour.

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Article 13

Prevention of water status deterioration, air and soil
pollution

or have already been in operation on … (*), that the concentra-
tion 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 … (*), 25 ppm as from … (**),
10 ppm as from … (***) and 10 ppm at waste facilities which
are granted a permit after … (*).

The competent authority shall satisfy itself

1.
operator has taken the necessary measures in order to:

that

the

the competent authority so requests,

If
the operator shall
demonstrate, through a risk assessment that takes site-specific
conditions into account, that those concentration limits need
not be further lowered.

(a) evaluate

the

leachate

generation potential,

including
contaminant content of the leachate, of the deposited waste
during both the operational and after-closure phase of the
waste facility and determine the water balance of the waste
facility;

(b) prevent or minimise leachate generation and surface water
or groundwater and soil from being contaminated by the
waste;

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

2.
The competent authority shall ensure that the operator
has taken adequate measures to prevent or reduce dust and gas
emissions.

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

in solid, slurry or

4. Member States shall make the disposal of extractive
waste, whether
into any
receiving body of water other than one constructed for the
purpose of disposing of extractive waste conditional upon
compliance by the operator with the relevant requirements of
Directives 76/464/EEC, 80/68/EEC and 2000/60/EC.

liquid form,

5.
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,
at waste facilities which have previously been granted a permit

Article 14

Financial guarantee

1.
The competent authority shall, prior to the commence-
ment of any operations involving the accumulation or deposit
of extractive waste in a waste facility, require a financial guar-
including
in the form of a financial deposit,
antee (e.g.
industry-sponsored mutual guarantee funds) or equivalent,
in
accordance with procedures to be decided by the 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 site.

The calculation of the guarantee referred to in paragraph

2.
1 shall be made on the basis of:

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

(b) the assumption that

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

3.
The size of the guarantee shall be appropriately adjusted
in line with the rehabilitation work needed to be carried out on
the waste facility.

(*) Date referred to in Article 25(1).
(**) Five years after the date referred to in Article 25(1).
(***) Ten years after the date referred to in Article 25(1).

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4. 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 obli-
gation referred to in paragraph 1 of this Article with the excep-
tion of after-closure obligations as referred to in Article 12(4).

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 envir-
onmental damage.

Article 15

Environmental liability

Article 17

Inspections by the competent authority

The following point shall be added to Annex III to Directive
2004/35/EC as follows:

‘13.
The management of extractive waste pursuant to
Directive 2005/…/EC of the European Parliament and of
the Council of … on the management of waste from
extractive industries (*).

(*) OJ L …’.

Article 16

Transboundary effects

1. Where a Member State in which a waste facility is situ-
ated is aware that the operation of a category A waste facility is
likely to have significant adverse effects on the environment of,
and any resultant risks to human health in, 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.

2. 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
to
comment on them before the competent authority reaches its
decision.

they will have the right

3. Member States shall ensure that, in the event of an acci-
dent involving a waste facility as referred to in paragraph 1 of
this Article,
information provided by the operator to the
competent authority pursuant to Article 6(4) is immediately

1.
Prior to the commencement of deposit operations and at
regular intervals thereafter, including the after-closure phase, to
be decided by the Member State concerned, the competent
authority shall inspect any waste facility covered by Article 7 in
order to ensure that it complies with the relevant conditions of
the permit. An affirmative finding shall in no way reduce the
the
responsibility of
permit.

the operator under the conditions of

2. 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
waste facility.

Article 18

Obligation to report

At intervals of three years, Member States shall transmit
1.
to the Commission a report on the implementation of this
Directive. The report shall be drawn up on the basis of a ques-
tionnaire or outline to be adopted by the Commission in
accordance with the procedure referred to in Article 23(2). The
report shall be transmitted to the Commission within nine
months of the end of the three-year period covered by it.

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 Commis-
sion information on events notified by the operators in accord-
ance with Articles 11(3) and 12(6). The Commission shall
make this information available to the Member States upon
request. Without prejudice to Community law on public access
to environmental
in their
turn make the information available to members of the public
concerned on request.

information, Member States shall

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Article 19

Penalties

3.
The Commission shall organise an exchange of informa-
tion between Member States and the organisations concerned
on best available techniques, associated monitoring and devel-
opments in them. The Commission shall publish the results of
the exchange of information.

The Member States shall lay down rules on penalties for infrin-
gement 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 20

Inventory of closed waste facilities

Member States shall ensure that an inventory of closed waste
facilities, including abandoned waste facilities, located on their
territory which cause serious negative environmental impacts
or have the potential of becoming in the medium or short term
a serious threat to human health or the environment is drawn
up and periodically updated. Such an inventory, to be made
available to the public, shall be carried out within four years
from … (*), taking into account the methodologies as referred
to in Article 21, if available.

Article 22

Implementing and amending measures

By … (**), the Commission shall adopt,

1.
in accordance
with the procedure referred to in Article 23(2), the provisions
necessary for the following, prioritising (e), (f) and (g):

(a) the harmonisation and regular transmission of the informa-

tion referred to in Articles 7(5) and 12(6);

(b) the implementation of Article 13(5),

including technical
requirements relating to the definition of weak acid dissoci-
able cyanide and its measurement method;

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

Article 21

Article 17;

(d) technical guidelines for inspections in accordance with

Exchange of information

terisation contained in Annex II;

(e) completion of the technical requirements for waste charac-

The Commission, assisted by the Committee referred to
1.
in Article 23, 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) the implementation of Article 20;

(b) the rehabilitation of those closed waste facilities identified
under Article 20 in order to satisfy the requirements of
Article 4. Such methodologies shall allow for the establish-
ment of the most appropriate risk assessment procedures
and remedial actions having regard to the variation of
geological, hydrogeological and climatological characteris-
tics across Europe.

(f) interpretation of the definition contained Article 3(3);

(g) definition of the criteria for the classification of waste facil-

ities in accordance with Annex III;

(h) determination of any harmonised standards for sampling
and analysis methods needed for the technical implementa-
tion of this Directive.

2.
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 23(2).

2. Member States shall ensure that the competent authority
follows or is informed of developments in best available techni-
ques.

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

(*) Date referred to in Article 25(1).

(**) Two years after the date of entry into force of this Directive.

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Article 23

Committee

Article 25

Transposition

The Commission shall be assisted by the Committee
1.
established by Article 18 of Directive 75/442/EEC, hereinafter
‘the Committee’.

2. 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.

3.

The Committee shall adopt its Rules of Procedure.

Article 24

Transitional provision

1. Member States shall ensure that any waste facility which
has been granted a permit or which is already in operation on
… (*) complies with the provisions of this Directive by … (**),
except for those set out in Article 14(1) for which compliance
must be ensured by … (***) and for those set out in Article
13(5) for which compliance must be ensured in accordance
with the timetable laid down therein.

Paragraph 1 shall not apply to waste facilities closed by

2.
… (**).

Articles 5 to 11, 12(1), (2), (5) and (6), 13(4) and (5) and

3.
14(1) to (3) shall not apply to those waste facilities that:

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before … (*****). They shall
forthwith inform the
Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

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

Article 26

Entry into force

This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.

Article 27

Addressees

— stopped accepting waste before … (**),

This Directive is addressed to the Member States.

— are completing the closure procedures in accordance with
legislation or

the
programmes approved by the competent authority, and

applicable Community or national

— will be effectively closed by 31 December 2010.

Done at …

Member States shall notify such cases to the Commission by
… (****) and ensure that these facilities are managed in a way
that does not prejudice the achievement of the objectives of
this Directive and those of any other Community legislation,
including Directive 2000/60/EC.

For the European Parliament

The President

…

For the Council

The President

…

(*) Date referred to in Article 25(1).
(**) Four years after the date referred to in Article 25(1).
(***) Six years after the date referred to in Article 25(1).
(****) Three months after the date referred to in Article 25(1).

(*****) Twenty four months after the date of entry into force of this

Directive.

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Major-accident prevention policy and information to be communicated to the public concerned

ANNEX I

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) 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;

(2) the safety management system should include the part of the general management system which includes the organi-
sational 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) 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;

(b) 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;

(c) 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) 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;

(f) monitoring performance — adoption and implementation of procedures for the ongoing assessment of compli-
ance 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 or near misses, particularly those involving
failure of protective measures, and their investigation and follow-up on the basis of lessons learnt;

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

(3) 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.

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

(5) 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.

(6) General information relating to the nature of the major-accident hazards, including their potential effects on the

surrounding population and environment.

(7) Adequate information on how the surrounding population concerned are to be warned and kept informed in the

event of a major accident.

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(8) Adequate information on the actions the population concerned should take, and on the behaviour they should

adopt, in the event of a major accident.

(9) 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 cooperate 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.

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ANNEX II

Waste characterisation

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

(1) description of expected physical and chemical characteristics of the waste to be deposited in the short and the long

term, with particular reference to its stability under surface atmospheric/meteorological conditions;

(2) classification of the waste according to the relevant entry in Commission Decision 2000/532/EC (1), with particular

regard to its hazardous characteristics;

(3) 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.

(1) Commission Decision 2000/532/EC of 3 May 2000 replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of
Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article
1(4) of Council Directive 91/689/EEC on hazardous waste (OJ L 226, 6.9.2000, p. 3). Decision as last amended by Council Decision
2001/573/EC (OJ L 203, 28.7.2001, p. 18).

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ANNEX III

Criteria for determining the classification of waste facilities

A waste facility shall be classified under category A if:

— a failure or incorrect operation, e.g. the collapse of a heap or the bursting of a dam, could give rise to a major acci-
dent, on the basis of a risk assessment taking into account factors such as the present or future 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.

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. The Commission submitted its proposal to the Council on 3 June 2003 (1). The proposal is based

on Article 175(1) of the Treaty.

2. The Economic and Social Committee delivered its opinion on 11 December 2003 (2).

3. The Committee of the Regions delivered its opinion on 11 February 2004 (3).

4. The European Parliament adopted its opinion at first reading on 31 March 2004 (4).

5. On 12 April 2005, the Council adopted its common position in accordance with Article 251(2) of

the Treaty.

II. OBJECTIVE

The objective of the proposal is 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, recovery and disposal phases of such waste. To that end
the proposal contains the following main elements: conditions for operating permits, general obliga-
tions covering waste management, the obligation to characterise waste before disposing of it or treating
it, measures to ensure the safety of waste management facilities, a requirement to draw up closure
plans and an obligation to provide for an appropriate level of financial security.

III. ANALYSIS OF THE COMMON POSITION

1. General

The common position is substantially in accordance with the positions taken by the Commission
and the Parliament, insofar as it:

— confirms all the objectives and essential elements of the Commission's proposal which were also

supported by the European Parliament;

— takes the greatest possible account of the opinion of the European Parliament by taking on, in
letter or in spirit, a great number of its amendments. In particular, elements of the amendments
relating to the scope of the Directive, the definition of waste facility, the financial guarantee and
the inventory of closed sites have been accepted in principle by the Council, subject to some
adjustments (see paragraph 2 for specific comments).

2. European Parliament Amendments

In its plenary vote on 31 March 2004, the European Parliament, at first reading, adopted 74 amend-
ments to the proposal. The common position incorporates (totally, in part or in principle, by means
of identical or similar wording, or in spirit) 43 amendments.

(a) The amendments that have been incorporated can be grouped as follows (the amend-

ments are listed below in order of their inclusion in the common position)

19 amendments accepted (almost) literally: 3, 7, 11, 12, 14, 16, 28, 30, 32, 35, 39, 93, 50, 51,
52, 57, 59, 60, 75.

24 amendments accepted in part or in spirit.

(1) Doc. 10143/03 – COM(2003) 319 final.
(2) OJ C 80, 30.3.2004, p. 35.
(3) OJ C 109, 30.4.2004, p. 33.
(4) OJ C 103 E, 29.4.2004, p. 634.

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R e c i t a ls

Amendment 2: it has been clarified that wastes from the extractive industries have to be waste in
accordance with the definition contained in the waste framework Directive in order for the
minimum requirements of this Directive to apply.

Amendment 5: this amendment has been incorporated with some small changes to ensure
consistency.

Amendment 86: this amendment has been accepted in principle (see also amendment 98). In
addition, for non-hazardous non-inert waste Member States would be entitled to reduce or
waive certain requirements. Furthermore, the Council feels that waste resulting from the extrac-
tion, treatment and storage of peat should also only be subject to a limited set of requirements.

Amendment 6: see amendments 71-72.

Ar ti c le s

Amendment 13: the spirit of this amendment has been incorporated in recital 8.

Amendment 98: the European Parliament has proposed that a limited set of requirements apply
to non-hazardous inert waste, unpolluted soil and non-hazardous prospecting waste. The
Council has taken this amendment on board and has clarified that category A waste facilities
should in any case be subject to all the provisions of this Directive. Furthermore, the Council
feels that waste resulting from the extraction, treatment and storage of peat should also only be
subject to this limited set of requirements. In addition, the Council has included the possibility
for Member States to reduce or waive certain requirements for non-hazardous non-inert waste,
unless deposited in a category A waste facility.

Amendment 17: the ‘thermal’ process has been added to the list of processes carried out on
mineral resources with a view to extracting the mineral.

Amendment 21: the European Parliament proposed that no time period apply to storage of
waste before it can qualify as a waste facility. The Council has accepted this approach for all
category A waste facilities and facilities for hazardous waste characterised in the waste manage-
ment plan and has foreseen a more proportionate approach for the less dangerous categories of
waste.

Amendment 25: minimisation of extractive waste has been included alongside treatment,
recovery and disposal.

Amendment 27: the first part of the amendment has been taken on board literally.

Amendments 29: the spirit of this amendment has been accepted; the details have been deleted
as they were considered too specific.

Amendment 31: the amendment has been accepted subject to a slight rewording.

Amendment 36: this amendment was intended to add a requirement to include a safety report
and internal emergency plan in the major-accident prevention policy required under Article
6(3). In the common position the requirement for a safety report and internal emergency plan
is introduced in Article 5(3)(a) along with the major-accident plan, to be included in a document
accompanying the waste management plan for category A waste facilities.

Amendment 37: the spirit of this amendment has been reflected in Article 7(4), where all the
circumstances for reconsideration and, where necessary, updating of permit conditions are
included.

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Amendment 44: the prevention of soil pollution has been included as one of the measures the
operator should take when placing extractive waste back into the excavation voids for rehabili-
tation and construction purposes.

Amendment 47: the request for regular monitoring and inspection of the waste facility has been
taken on board.

Amendment 63: the Council has focused attention on dust and gas emissions.

Amendments 66, 67 and 68: these amendments correspond largely to what the Council has
established in its common position: The procedures for the establishment of a financial guar-
antee shall be decided by the Member States, the Commission shall, to that end, establish tech-
nical guidelines (Article 22(1)(c)) and the commencement of any operations of deposit of waste
in a waste facility is not possible without a guarantee (Article 7(2)(d)). The wording ‘financial
guarantee (e.g. in the form of a financial deposit, including industry-sponsored mutual guarantee
funds) or equivalent’ has been used to take into account the variety of legal systems in the
Member States.

Amendment 70: this amendment has been accepted subject to the safeguard that Community
legislation on public access to environmental legislation is applicable.

Amendments 71 and 72: the Council accepts the spirit of the amendment that an inventory of
closed waste facilities which cause serious negative environmental impacts or have the potential
of becoming, in the medium or short term, a serious threat to human health or the environ-
ment be drawn up. In redrafting the amendment, the Council has tried to reconcile the objec-
tives of a high level of protection of the environment and the minimisation of the bureaucratic
burden resulting from the obligation to draw up such an inventory.

Amendment 76: the first indent of Annex III has been reworded with a reference to ‘major acci-
dent’; the corresponding definition (Article 3(16)) contains the wording suggested by the Euro-
pean Parliament.

(b) The following amendments have not been incorporated:

R e c i t a ls

Amendment 4: the European Parliament proposes to delete this recital which clarifies that the
waste framework Directive continues to apply to any aspects of the management of extractive
waste which are not covered by this Directive.

Amendment 8: the European Parliament proposes to delete a standard provision relating to the
principle of subsidiarity that should apply to this proposal.

Ar ti c le s

Amendments 42, 43 and 45: these amendments go beyond the scope of the proposal. Amend-
ment 42 would include non-waste materials; amendments 43 and 45 would extend measures
aimed at backfilled waste to the excavation void itself.

Amendments 9, 90, 22, 24, 26, 34, 38, 40, 41, 48, 53, 55, 56, 61 and 74: these amendments
contain clarifications which the Council considered too detailed/prescriptive to include in a
directive or which are already included in other articles of the proposal. Amendment 90 has
been included in recital 4.

Amendment 65: the Council considers that this amendment falls outside the scope of this
Directive.

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Amendment 69: this amendment changes the wording taken from the UN Convention on trans-
boundary environmental impact assessment (Espoo Convention).

Amendments 19, 20 and 88: these amendments relate to linguistic or terminological issues that
were not taken on board by the Council to ensure consistency throughout the proposal.

Amendments 46, 54, 58 and 73: these amendments include references to Community legislation
that is in any event applicable; these Community environmental standards have in any case to
be met.

Amendments 62 and 64: Article 13(4) already requires Member States to make the disposal of
extractive waste into any receiving body of water other than one constructed for the purpose of
disposing of extractive waste conditional upon compliance by the operator with the relevant
requirements of Directives 76/464/EEC, 80/68/EEC and 2000/60/EC.

IV. CONCLUSION

Despite the fact that the Council is not able to accept all the amendments adopted by the European
Parliament, it considers that the common position coincides to a large extent with the concerns of the
Parliament and is in line with the Commission's amended proposal.