Amended proposal for a Council Regulation (EC) establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste
COMMISSION OF THE EUROPEAN COMMUNITIES •it <r Brussels, 26. 01. 1998 COM(97) 685 final 95/0029 (ACC) Amended proposal for a COUNCIL REGULATION (EC) establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste ' (presented by the Commission pursuant to Article 189 a (2) of the EC-Treaty) EXPLANATORY MEMORANDUM Background Council Regulation (EEC) No 259/93 of 1 February 1993 sets out asystem of 1. supervision and control to apply to shipments of waste within, into and out of the EC. The Regulation took effect on 6 May 1994. 2. The Regulation implements into EC law two international legal instruments with which the Community has associated itself: the Basel Convention of 22 March 1989 on the control of transboundary movements of hazardous wastes and their disposal; and the OECD Council decision of 30 March 1992 concerning the control of transfrontier movements of wastes destined for recovery operations. 3. Regulation (EEC) No 259/93 makes a distinction between waste which is destined: * for final "disposal" (e. g. landfill, incineration etc. ) and for "recovery" (e. g. recycling, use as a means to generate energy * etc. ) 4. With regard to waste which is destined for recovery, the Regulation makes further distinction between: * * * so-called "green" list waste, listed in Annex II to the Regulation; so-called "amber" list waste,. listed in Annex III; so-called "red" list waste, liste in Annex IV; and "unlisted" waste, i. e. waste which has not (yet) been assigned to * any list. This communication concerns solely shipments of "green" list waste destined 5. for recovery from the EC to third countries. Shipments of "green" list waste for recovery are generally excluded from the 6. scope of the Regulation. This exclusion is based on the OECD Council Decision referred to above. The OECD considers that such shipments should not normally present a risk to the environment if recovered properly in the country of destination. However, the EC did not wish to impose this point of view on third countries. 7. Therefore, Article 17 of the Regulation provides that the Commission communicate with all non-OECD countries notifying them of the "green" list and asking them whether they would accept shipments of such waste for recovery without recourse to one of the control procedures set out in the Regulation, or that they indicate which of these control procedures they require or wish to be applied. 8. Where a country clearly indicates that it requires or wishes one of the control procedures which are provided for in the Regulation to apply to some or all types of "green" list waste, Article 17(3) provides that the Commission determines which control procedure should apply in consultation with the country in question and after having notified the Committee established by Article 18 of Council Directive (EEC) No 75/442. One such Decision was adopted by the Commission on 20 July 1994 (Commission Decision 94/575/EC, OJ No L 220, 25. 8. 94, p. 15). 9. However, a number of countries have either not responded at all to the missives sent out by the Commission (including at least two reminder notes), or have indicated that they do not wish to receive some or all types of "green" list waste for recovery. This is not provided for in Article 17(1) first paragraph. In these cases, the second paragraph of Article 17(1) requires that "the Commission shall make appropriate proposals to the Council". These are contained in the attached proposal for a Council Regulation. Content of the proposal Legal base. The present proposal concerns solely trade with third countries- 10. therefore Article 113 is the appropriate legal base. Countries which do not wish to receive shipments. A number of countries 11. have indicated they they do not wish to receive some or all types of "green" list waste. The Commission has decided after consultation with the European Parliament to respect the wishes of these countries and not to allow exports of "green" list waste for recovery. Countries which have not responded. The general principle established in 12. Regulation (EEC) No 259/93 with regard to exports of "green" list waste for recovery is that of normal commercial transactions unless the country of destination wishes or requires otherwise. It would therefore follow that countries which have not responded to the Commission's notes on the subject should continue to be treated in the light of this general principle, with the addition of a system of prior automatic export licensing which would allow the EC to monitor the level of such exports to these countries. Consequently, it is suggested that the so-called "red" list procedure will be applied to those countries which have not responded. 13. ACP countries. Shipments to ACP countries of those types of waste listed in Annexes I and II of the Basel Convention are prohibited under Article 39 of the Fourth ACP-EC Convention. A very limited number of materials included in the "green" list may be covered by this prohibition. The proposed draft Regulation excludes any such materials from the scope of the Regulation. 14. Review. The Commission proposes that the systems of control established by the proposed draft regulation be subject to a review, reflecting the dynamic nature of waste policy issues in general. A similar review is already provided for in Regulation (EEC) No 259/93 with regard to exports of hazardous waste to non-Parties of the basel Convention. A review of the operation of the current proposal could be carried out in parallel. Simplified amendment procedure. The proposal provides for a simplified 15. amendment procedure which would allow the Commission to decide in consultation with the relevant Committee to change the control procedure applying to one or more of the countries covered by the scope of the proposal. This will cover cases where a response is received after the entry into force of the Council Regulation from a country which ahs not previously responded, or where a country which has indicated a particular position alters that position. It would also allow the EC-where this is deemed appropriate- to take account of other factors, such as a third country treating shipments from the EC in a less favourable manner than shipments from other destinations. For these reasons, the Commission recommends that the Council adopts the 16. proposed Regulation establishing common rules and procedures to apply to (a) those countries which do not wish to receive shipments of "green" list waste for recovery from the EC and (b) those countries which have not responded to the Commission's letters. Amended proposal for a COUNCIL REGULATION (EC) establishing common rules and procedures to apply to shipments to certain non-OECD countries of certain types of waste ' THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 113 thereof, Having regard to the proposal from the Commission,1 Whereas Article l(3)(a) of Council regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community 2, as amended by Commission Decision 94/721/EC 3, excludes from the scope of application of that Regulation shipments of waste destined for recovery only and listed in Annex II thereto, except as provided in, inter alia , Article 17(1), (2), and (3); Whereas in accordance with Article 17(1) of Regulation (EEC) No 259/93 the Commission has notified to every country to which the OECD Council Decision of 30 March 1992 on the control of transfrontier movements of waste destined for recovery operations does not apply the list of waste set out in Annex II to regulation (EEC) No 259/93, and has requested confirmation that such waste is not subject to control in the country of destination or has asked that such countries indicate whether such waste should be subject to the control procedures which apply to waste listed in Annex III or IV to the Regulation, or to the procedure laid down in Article 15 thereof; Whereas certain countries have indicated that such waste should be subject to one or other of those control procedures and the Commission on 20 July 1994, pursuant to the provisions of Article 17(3) of regulation (EEC) No 259/93, took Decision 94/575/EC to determine the appropriate control procedures; A Whereas the second subparagraph of Article 17(1) of regulation (EEC) No 259/93 provides that if such confirmation is not received, the Commission is to make approprite proposals to the Council; whereas it is therefore necessary to establish, on a Community-wide basis, a system to regulate trade in such waste from the Community by establishing the appropriate common rules and procedures relating to exports thereof; Whereas, in the case of countries which have replied that they do not wish to receive some or all types of waste listed in Annex II of regulation (EEC) No 259/93, their will 2 OJ No L 30, 6. 2. 1993, p. l. 3 OJ No L 288, 9. 11. 1994, p. 36; 4O J N o L 2 2 0, 25. 8. 1994, p. 15 has to be respected and therefore these types of waste cannot be exported to those countries: Whereas in the case of countries which have not replied, it is appropriate to adopt a framework in order to enable such countires to evaluate such shipments on a case-by- case basis and whereas it is difficult to imply that silence is equal to consent; Whereas, in the the case of countries which have replied that they do not wish to receive some or all types of waste listed in Annex II or have not replied, the possibility exists that they will change their position, or will reply in the future, and a mechanism must. , therefore, exist within a comitologv procedure, to change this regulation: Whereas Regulation (EC) 120/97 5 prohibits the export of waste for recycling purposes which is considered hazardous and whereas certain categories of waste from Annex II of Regulation (EEC) 259/93 are to be considered hazardous and have to be excluded from the scope of the present Regulation. Whereas the Commission will complete the Annex V of Regulation (EEC) 259/93 with waste categories considered hazardous by the Basel Convention and the Union's hazardous waste list6 and will adapt Regulation (EC) 120/97 accordingly. Whereas with regard to shipments to ACP countries, Article 39 of the Fourth ACP-EC Convention prohibits exports of all waste listed in Annexes I and II of the Basel Convention; whereas, furthermore, certain items of waste may be found in Annex II of Regulation (EEC) 259/93; whereas, in these circumstances and in order to respect the Community's international obligations, it must be clear that such items are excluded from the scope of the Regulation; Whereas the arrangements covered by this Regulation should be subject to periodic review by the Commission; HAS ADOPTED THIS REGULATION: Article 1 The export of waste listed in Annex II to Regulation (EEC) 259/93 and mentioned in Annex A. to countries listed in Annex A shall be prohibited. Article 2 The control procedure applicable to waste listed in Annex IV to Regulation (EEC) 259/93 shall apply to exports to the countries listed in Annex B with respect to waste destined for recovery only and listed in Annex II to Regulation (EEC) 259/93. 5 OJ No L 22, 24. 1. 1997, p. 14 6 OJ No L 377, 31. 12. 1991, p. 20 Article 3 Shipments to ACP countries are permitted only as so far as they are not prohibited bv the Fourth ACP-EEC Convention. Article 4 Upon request by the country of destination or where there is a change of circumstances, the control procedure applicable under this Regulation may be amended. The Commission may determine, after consultation with the country of destination, an in accordance with the procedure laid down in Article 18 of Council •7 Directive 75/442/EEC , which of the procedures shall apply, that is normal commercial transactions with or without a system of prior automatic export licensing as provided for in Article 17(2) of Regulation (EEC) 259/93, or the procedure applicable to Annex III or IV of the same Regulation or the procedure laid down in Article 15 of Regulation (EEC) 259/93. Article 5 The control procedures established by this Regulation shall be subject to periodic review by the Commission and for the first time no later than 31 December 1998, taking into account the experience gained. If the results of the review leads to the conclusion that this would be appropriate, the Commission may, without prejudice to the provisions of Article 4, make new proposals to the Council. The Commission, in accordance with the procedure laid down in Article 18 of Directive 75/442/EEC, shall as soon as possible and at the latest before 1 January 1998, review and amend this Regulation, in order to bring it in line with Regulation 259/93 as modified by Regulation 120/97, and in particular with Annex V of the former Regulation. Article 6 This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, For the Council The President 7 OJ No L 194. 25. 7. 1975. p. 39 ANNEX A Countries and territories which have indicated to the Commission that they do not wish to receive shipments for recovery of certain types of waste listed in Annex II (the "green" list) to Council regulation (EEC) No 259/93. The categories of waste listed in Annex II which are covered are also given. Shipments to these countries and territories of these categories of wastes should be prohibited. ANDORRA: All types in Annex II BAHAMAS: All types in Annex II BARBADOS: All types in Annex II BELIZE: BENIN: BHUTAN: BOLIVIA: All types in Annex II All types in Annex II All types in Annex II All types in Annex II BOTSWANA: All types in Annex II BURKINA FASO: All types in Annex II CAPE VERDE: All types in Annex II CHAD: CHILE: COLOMBIA: All types in Annex II All types in Annex II 1. In section GA ("Metal and metal-alloy wastes in metallic, non-dispersible form") a) the following waste and scrap of non-ferrous metals and their alloys: GA 120 GA 130 G A 140 GA 150 G A 160 GA170 GA180ex G A 190 ex 7404 00 7503 00 7602 00 7802 00 7902 00 8002 00 810191 8102 91 Copper waste and scrap Nickel waste and scrap Aluminium waste and scrap Lead waste and scrap Zinc waste and scrap Tin waste and scrap Tungsten waste and scrap Molybdenum waste and scrap GA 200 ex GA210ex G A 220 ex GA230ex GA 240 ex G A 250 ex GA260ex GA 270 ex GA 280 ex G A 290 ex GA 300 ex GA 310 ex GA 320 ex ex GA 330 GA 340 GA 350 GA 360 GA 370 G A 400 ex GA 410 ex G A 420 ex 8103 10 8104 20 810510 8106 00 8107 10 810810 810910 8110 00 8111 00 8112 11 8112 20 8112 30 8112 40 8112 91 2844 30 2804 50 2805 30 Tantalum waste and scrap Magnesium waste and scrap Cobalt waste and scrap Bismuth waste and scrap Cadmium waste and scrap Titanium waste and scrap Zirconium waste and scrap Antimony waste and scrap Manganese waste and scrap Beryllium waste and scrap Chromium waste and scrap Germanium waste and scrap Vanadium waste and scrap Wastes and scrap of: - Hafnium - Indium - Niobium - Rhenium - Gallium Selenium waste and scrap Tellurium waste and scrap Rare earths waste and scrap 2. In section GB ("Metal bearing wastes arising from melting, smelting and refining of metals"): GB 040 ex 2620 90 Slags from precious metals and copper processing for further refining 3. In section GC ("Other wastes containing metals"): 2619 00 GC 070 ex Slags arising from the manufacture of iron and carbon steel (including low alloy steel) excluding those slags which have been specifically produced to meet both national and relevant international requirements and standards* *This entry covers the use of such slags as a source of titanium dioxide and vanadium 4. 1n section GD ("Waste from mining operations: these wastes to be in non- dispersible form"): GD 040 ex 2529 30 GD 050 ex ex 2529 21 2529 22 Leucite, nepheline and nepheline syenite waste Fluospar waste 5. In section GG ("Other wastes containing principally inorganic constituents, which may contain metals and organic materials"): GG030ex 2621 GG 040 ex GG 060 ex 2621 2803 GG 080 ex 262100 GG 100 Bottom ash and scag tap from coal fired power plants Coal fired power plants fly ash Spent activated carbon, resulting from the treatment of potable water and processes of the food industry and vitamin production Slag from copper production, chemically stabilized, having a high iron content (above 20%) and processed according to industrial specifications (e. g. DIN 4301 and DIN 8201) mainly for construction and abrasive applications Limestone from the production of calcium cyanamide (having a pH less than 9) 6. in section GH ("Solid plastic wastes"): GH013ex 3915 30 GH 015 ex 3915 90 7. In section GJ ("Textile wastes"): GJ 050 ex 5302 90 8. In section GK ("Rubber wastes"): Waste, parings and scrap of plastics of polymers vinyl chloride Waste parings and scrap of plastics of resins or condensation products e„g. - urea formaldehyde resins - phenol formaldehyde resins - melamine formaldehyde resins - epoxy resins - alkyd resins - polyamides Tow and waste (including yarn waste and garnetted stock)of true hemp (Cannabis sativa L. ) GK020 GK 030 ex 4012 20 4017 00 Used pneumatic tyres Waste and scrap of hard rubber (e. g. ebonite) 9. In section GO ("Other wastes containing principally organic constituents, which may contain metals and inorganic materials"): GO 040 GO 050 Waste photographic film base and waste photographic film not containing silver Single use cameras without batteries COMOROS: All types in Annex II COSTA RICA: Ail types in Annex II DOMINICA: All types in Annex II DJIBOUTI: All types in Annex II EGYPT: All types in Annex II FUI: All types in Annex II GAMBIA: All types in Annex II GHANA: All types in Annex II GUYANA: All types in Annex II KIRIBATI: All types in Annex II KUWAIT: All types in Annex II LEBANON: All types in Annex II MALAWI: All types in Annex II MALDIVES: All types in Annex II MOLDOVA: All types in Annex II MONGOLIA: All types in Annex II MOZAMBIQUE: All types in Annex II MYANMAR: AU types in Annex II NICARAGUA: All types in Annex II NIGER: All types in Annex II NIGERIA: All types in Annex II PAKISTAN: 1. In section GK ("Rubber wastes"): GK020 401220 Used pneumatic tyres 2. In section GM ("Waste arising from agro-food industries"): 10 GM 070 ex 2307 Wine lees 3. In section GN ("Waste arising from tanniong and fellmongery operations and leather use"): GN 010 ex 0502 00 Waste of pigs', hogs' or boars' bristles and hair or of badger hair and other brush making hair PAPUA NEW GUINEA: All types in Annex II PERU: All types in Annex II SAO TOME E PRICIPE: All types in section GM ("Wastes arising from agro-food industries") SAUDI ARABIA: All types in Annex II SENEGAL: All types in Annex II SEYCHELLES: All types in Annex II ST. LUCIA: All types in Annex II ST VINCENT AND THE GRENADINES: All types in Annex II WESTERN SAMOA: All types in Annex II TAIWAN: In section GA ("Metal and metal-alloy wastes in metallic, non-dispersible form") GA090 720449 Other ferrous scrap and waste TANZANIA: All types in Annex II TUVALU: UGANDA: All types in Annex II All types in Annex II VANUATU: , All types in Annex II 11 ANNEXB Countries and territories which have not yet responded to the Commission's communications on shipments for recovery of certain types of waste listed in Annex II (the "green" list) to Council Regulation (EEC) No 259/93. Shipments to these countries and territories of these categories of waste should be carried out under the control procedure applying to waste listed in Annex IV (the "red" list) of Regulation (EEC) No 259/93. AFGHANISTAN ALGERIA ANGOLA ANTIGUA and BARBUDA ARMENIA AZERBAIJAN BAHRAIN BANGLADESH BRUNEI BURUNDI CAMBODIA CAMEROON CENTRAL AFRICAN REPUBLIC CONGO CONGO, DEMOCRATIC REPUBLIC OF COTEd'IVOIRE DOMINICAN REPUBLIC ECUADOR ELSALVADOR EQUATORIAL GUINEA ERITREA 12 ETHIOPIA GABON GUATEMALA GUINEA GUINEA-BISSAU HAITI HONDURAS KENYA KYRGYSTAN LAOS LESOTHO MALI MAURITANIA MOROCCO NAMIBIA NEPAL OMAN PANAMA QATAR RWANDA ST. CHRISTOPHER & NEVIS SOLOMON ISLANDS SUDAN SWAZILAND 13 SYRIA TAJIKISTAN TONGA TURKMENISTAN UZBEKISTAN VATICAN CITY VENEZUELA VIET NAM ZIMBABWE 14 ISSN 0254-1475 COM(97) 685 final DOCUMENTS EN 02 10 14 Catalogue number : CB-CO-97-706-EN-C ISBN 92-78-29050-5 Office for Official Publications of the European Communities L-2985 Luxembourg v^