Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the Common Position of the Council on the adoption of a Directive of the European Parliament and of the Council on the management of waste from the extractive industries
Date: 2005-04-27
Institutions: European Commission
Subjects: environmental protection, metallic ore, mining extraction, non-ferrous ore, prevention of pollution, toxic substance, waste management

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 27.4.2005 
COM(2005) 170 final 

2003/0107 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on the management of waste from the extractive 
industries 

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   EN 

 
 
 
  
 
 
2003/0107 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

Common Position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on the management of waste from the extractive 
industries 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM(2003)319 final – 2003/0107 COD): 

2 June 2003 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

11 December 2003. 

Date of the opinion of the European Parliament, first reading: 

31 March 2004. 

Date of adoption of the common position: 

12 April 2005. 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The objective of the Proposal is to establish minimum requirements in order to improve the 
way in which waste from the extractive industries is managed. The two main technical aims 
of the proposed Directive are: 

•  to minimise the environmental and human health effects of polluted drainage from waste 
management  facilities  (heaps  and  tailings  ponds),  which,  due  to  the  large  volumes  and 
characteristics of waste involved, have the potential to create very long-term environmental 
impacts persisting well after both the facility and the associated mine or quarry have been 
closed; and 

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

The objectives of the Proposal are to be achieved through measures based on Best Available 
Techniques  and  covering  the  planning,  licensing,  operation  and  eventual  closure  and  after-
care of waste management facilities associated with the extractive industry, with a particular 
emphasis on the stability of such facilities and the prevention of water and soil pollution. 

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3. 

COMMENTS ON THE COMMON POSITION 

3.1 

General comments 

The  Commission  accepted  in  full,  in  part  or  in  principle  46  of  the  74  amendments 
proposed  by  the  European  Parliament  at  its  first  reading.  41  of  these  amendments 
have now been incorporated, either verbatim or in spirit, in the common position. 

The  Commission  accepted  all  the  amendments  that  offer  better  legal  clarity  to  the 
text,  improve  the  scope  of  the  Proposal  in  terms  of  the  range  of  materials  covered, 
promote long-term safe operation of waste facilities by tightening up in particular the 
closure and after-care provisions, and address pollution from historic sites. 

The Commission rejected in particular amendments that are overly prescriptive and 
detailed or extend significantly the scope of the Proposal. 

The  Council  has  to  a  large  extent  taken  account  of  the  Parliamentary  amendments 
and  has  made  a  number  of  further  changes.  Whereas  the  Commission  would  have 
preferred  a  broader  scope  for  the  Directive,  avoiding  several  possibilities  for 
derogations  in  particular  insofar  as  non-hazardous  non-inert  waste  is  concerned,  it 
considers  that  the  Common  Position  does  not,  as  a  whole,  alter  the  approach  and 
aims of the Proposal and can thus support it. 

3.2 

Detailed comments 

3.2.1.  Parliamentary amendments accepted by the Commission and incorporated in full, in 

part or in principle in the common position 

The following amendments that were accepted by the Commission in full, in part or 
in principle, are also to be found in the common position: Amendments 2, 3, 5, 6, 7, 
11, 12, 13, 14, 16, 17, 21, 25, 27, 28, 29, 30, 31, 32, 35, 37, 39, 44, 47, 50, 51, 52, 57, 
59, 60, 63, 66, 67, 70, 71, 72, 75, 76, 86, 93, 98. 

3.2.2.  Parliamentary  amendments  rejected  by  the  Commission  and  the  Council  and  not 

incorporated in the common position 

Amendments 4 and 8 propose to delete text that provides useful clarifications. It was 
therefore necessary to maintain this text. 

Amendments  9,  90,  24,  38,  53,  61  and  64  propose  additions  that  were  felt  to  be 
unnecessary  as  most  of  them  are  covered,  explicitly  or  implicitly,  by  provisions 
elsewhere in the current text. 

Amendments 20 and 88 are of a linguistic nature and were not considered necessary. 

Amendments  22,  34,  40,  41,  48,  55,  56  and  74  proposed  additions  that  were 
considered too detailed to be included in a directive. 

Amendments  43,  45  and  65  extend  provisions  addressing  backfilled  waste  to  the 
excavation void itself, which falls outside the scope of the Proposal. 

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Amendments  58,  62  and  73  add  references  to  other  Community  legislation  which 
applies anyhow as appropriate. 

Amendment  69  modifies  the  wording  taken  from  the  UN  Convention  on 
Transboundary Environmental Impact Assessment (Espoo Convention). 

3.2.3.  Parliamentary  amendments  accepted  in  full,  in  part  or  in  principle  by  the 

Commission but not incorporated in the common position 

Amendment 19 was considered to be of a linguistic nature. 

Amendment 26 puts emphasis on options for the management of waste that need to 
be considered in the waste management plan. Although the Commission felt that the 
suggested addition would add clarity to the text, the Council found that this would be 
too prescriptive to include. 

Amendment 42 suggests that provisions applying to waste placed back in excavation 
voids  should  also  cover  other  production  residues.  The  Commission  accepted  this 
addition, with a slightly different wording, in order to avoid any legal uncertainty for 
backfilled material. However, the Council considered this as being a non-waste issue 
and therefore falling outside the scope of this Proposal. 

Amendment  46  identifies  protected  areas  as  an  important  factor  to  be  taken  into 
account when determining the location of a waste facility. However, the Community 
requirements  on  nature  protection  areas  have  anyhow  to  be  taken  into  account  as 
appropriate. 

Amendment  54  specifies  that  measures  to  be  taken  for  closed  waste  facilities  will 
aim at compliance with Community environmental standards. Such standards apply 
however anyhow and this addition was not considered necessary. 

3.2.4.  Parliamentary  amendments  not  accepted  by  the  Commission  and  incorporated  in 

full, in part or in principle in the common position 

The  Council  considers  Amendments  36  and  68  to  be  reflected  in  the  common 
position. The Commission did not consider it necessary to accept these amendments 
as it believes that their content was already included in the Commission’s proposal.  

3.2.5.  Additional changes made by the Council to the Proposal 

Recitals 

Several  changes  aim  at  adjusting  the  text  to  reflect  the  various  changes  made 
throughout the articles. Furthermore, the following changes are highlighted: 

In Recital 4 it is clarified that waste produced during the pre-production development 
stage is also to be covered by the waste definition. 

In Recital 6 a reference to the definition of extractive waste is added. 

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In  Recital  8  it  is  clarified  that  other  waste  legislation  shall  apply  as  appropriate  to 
non-extraction related waste generated, as well as to extractive waste transported to a 
location that is not an extractive waste facility. 

New Recital 11 was added to clarify that waste from the extraction of materials used 
for their radioactive properties is not covered by the Directive if it is already covered 
by  legislation  under  the  Euratom  Treaty.  The  Commission  highlights  that  the 
combined reading of Recital 10 and 11 implies that such waste is not to be covered 
by this Directive insofar as there is other Community legislation adopted pursuant to 
the  Euratom  Treaty  that  pursues  the  same  environmental  objectives  and  properly 
covers the aspects dealt with by this Directive. 

New  Recital  16  was  added  to  clarify  that  the  classification  of  waste  facilities  into 
Category  A  is  not  to  be  made  solely  on  the  basis  of  risks  to  health  and  safety  of 
workers since this issue is covered by other relevant Community legislation. 

New Recital 23 was added to emphasise the need for setting an appropriate after-care 
period for monitoring and control of Category A facilities. 

New  Recital  37  was  added  to  encourage  Member  States  to  show  the  correlation 
between the Directive and their national implementing measures. 

Articles 

In Article 1 emphasis is added to the protection of water, fauna, flora, soil, air, and 
landscape. 

In  Article  2  the  injection  of  water  and  re-injection  of  pumped  groundwater  were 
exempted from the scope in an analogous way to Directive 2000/60/EC. The limited 
provisions applying to inert waste (and which now, following Amendment 98, cover 
also unpolluted soil and waste from prospecting operations) were extended to include 
the full provisions of Article 5. Waste from peat extraction was also made subject to 
these limited provisions. However, it was specified that Category A facilities of such 
waste  shall  be  subject  to  the  full  provisions  of  the  Directive.  The  possibility  was 
given  to  competent  authorities  to  reduce  requirements  applying  to  non-hazardous 
waste from prospecting, as well as to unpolluted soil and waste from peat extraction. 
Furthermore,  a  new  category  of  non-hazardous  non-inert  waste  was  created  and 
Member  States  may  exempt  it  from  provisions  on  financial  guarantees  (Article  14) 
and on notification of events affecting stability (Art. 11(3) and 12(5) and (6)), unless 
in a Category A facility as above. 

In  Article  3  definitions  of  ‘unpolluted  soil’,  ‘off-shore’,  ‘prospecting’  and 
‘substantial  change’  were  added.  Partially  drawing  on  Amendment  21,  a 
differentiated  approach  to  the  definition  of  ‘waste  facility’  according  to  risks 
involved  by  each  type  of  waste  was  introduced,  while  it  was  specified  that  this 
definition  also  includes  excavation  voids  into  which  waste  is  replaced  for  reasons 
other than rehabilitation or construction. It was specified that the responsibility of an 
operator also covers the temporary storage of waste. 

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In  Article  4  the  general  requirements  were  extended  to  cover  all  management  of 
waste,  including  during  temporary  storage,  and  the  full  Article  4  of  Directive 
75/442/EEC was incorporated. 

In  Article  5  the  requirements  on  classification  of  waste  facilities  were  moved  from 
Article 7 to become part of the waste management plan. A new paragraph was added 
requiring approval of the plan by the competent authority. 

In Article 6 it was specified when the various major-accident arrangements need to 
be available. 

In  Article  9  the  classification  system  for  waste  facilities  was  simplified  and  the 
relevant  criteria  set  out  in  Annex  III  were  adjusted  to  the  definition  of  ‘major 
accident’. 

In Article 11 several other elements to be taken into account for the location of waste 
facilities were added. 

In Article 13 the Cyanide concentration limit values for new facilities were reduced 
to the most stringent level. 

In  Article  14  it  was  specified  that  the  financial  guarantees  may  also  include 
equivalent systems. The Commission highlights that any such system, whatever form 
it takes, should ensure the availability of adequate funds at any given time to carry 
out the necessary rehabilitation work in case of insolvency or “walk away” practice 
of  the  operator.  The  Environmental  Liability  requirements  were  included  in  a 
separate  article  which  specifies  that  the  provisions  of  the  relevant  directive  shall 
apply to all management of extractive waste. 

In Article 20 priorities were set for the tasks to be developed through commitology 
and the interpretation of the definition of inert waste was added to these tasks.  

In  Article  22  a  new  provision  was  added  for  waste  facilities  that  have  stopped 
receiving waste on the date of transposition of the Directive but have not completed 
their closure procedures yet. 

Annexes 

In  Annex  III  the  first  indent  has  been  reworded  to  establish  a  direct  link  to  the 
definition of ‘major accident’ as set out in the Proposal. 

4 

CONCLUSION 

The changes introduced by the Council help to clarify the terms of the Proposal and, 
while also restricting its scope to some extent, do not detract from its overall thrust. 
The Commission can therefore support the Common Position. 

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