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TALKING POINT

Anne Harrison considers the key implications of proposed changes to the EU Waste Framework Directive.

In October 2006, Defra (Department for Environment Food and Rural Affairs) published a consultation on revisions to the EU Waste Framework Directive. The EIC (Environmental Industries Commission) is engaging with the EU and Defra on how to use the review to tackle some of the barriers to land remediation.

These are the principal changes that could affect the construction and remediation industry, and their potential implications:

Removal of unexcavated contaminated soil from the scope of the Waste Framework Directive regime, once other EU legislation is in place to cover it.

This provision will effectively negate the effect of the Van de Walle judgment that unexcavated contaminated soil is waste - although most EU member states are ignoring this anyway. In practice the 'other EU legislation' means the Soil Framework Directive, also now published in draft by the EU.

However, only unexcavated soils are included and it does not assist with issues relating to the reuse of soils once excavated.

l New article on 'secondary products, materials and substances' setting up a new procedure for guidance to be issued at EU level on when waste can be determined to no longer be considered waste.

The proposal is for guidance to be agreed and issued, via a committee procedure, to dene the point at which specic waste streams have completed a re-use, recycling or recovery operation such that it can be reclassied as a 'secondary product'.

The proof of that pudding will undoubtedly be in the process and composition of the committee, although England's current Waste Protocols project, joint between the Environment Agency and WRAP, is being held out as the beacon project and its early results are already being fed into the centre in Seville tasked with developing the rst guidance.

Also of concern is that the Waste Thematic Strategy (adopted by the European Commission) only identies compost, secondary aggregates and tallow for use as a fuel as the rst three waste streams to go through this process and states that the Commission believes there are only about ve to 10 waste streams that will need to go through this process at all. Given that the EA/WRAP Waste Protocols Project started off by looking at 26 potential waste streams put forward for consideration by industry, there is surely a need for more to be considered.

It is clear the Commission has no appetite for reviewing the denition of waste itself. What is missing from the revised draft directive is clarication on the denition of by-products. This could be achieved with a process similar to the proposed approach for determining when waste ceases to be waste, to provide clarication on whether specic materials are a waste or a by-product.

For now, all that is proposed is for the Commission to publish guidance containing case studies in the hope that it will enlighten those that struggle with the difference. If nothing else, what is surely required is a more user friendly arbitration procedure than having to take legal action to determine whether a material is a by-product or a waste.

For those items still classied as waste, the draft directive seeks to set new minimum standards on waste management permitting and set the equivalent of 'best available techniques' for exemptions.

There should be condence that the waste industry in the UK already meets a high standard and this could be an opportunity for UK industry to export technologies to other member states.

But it should be monitored to ensure they really are minimum standards, and not unnecessarily stringent or narrowly dened criteria that straightjacket the regulator when attempting to exercise discretion and exibility on a risk assessed basis.

Anne Harrison is associate (barrister) at law rm Clarkslegal LLP. She represents the EIC in stakeholder meetings with Defra, and is on the advisory board to the EA/WRAP Waste Protocols project.

EIC was launched in 1995 to give the UK environmental technology and services industry a voice with government.

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