22 ELR 10106 | Environmental Law Reporter | copyright © 1992 | All rights reserved

The European Community Environmental Legal System

Editors' Summary: Serious environmental problems, rising environmental activism, and growing European Community (EC) power have produced important and ambitious environmental initiatives from the EC, as well as increased attention on the effective application of existing Community environmental law. The 1990 EC Commission report on the application of Community environmental law highlighted the inadequate and erratic implementation by member states of Community environmental law. As the EC moves toward an internal market without frontiers, however, Community-wide environmental law becomes increasingly important, and EC institutions attempt to tighten both EC legislation and member state implementation.

This Article outlines the anatomy of the EC and discusses the basis of EC power to adopt environmental measures. The authors first examine the EC's ability to legislate on environmental issues, the different legislative processes employed, and their effects on member states and implementation. The authors then survey the developing structure of Community environmental law by discussing and assessing the Community regulatory framework, including environmental impact assessment requirements, air protection regulation, water protection requirements, waste management legislation, chemical and dangerous substances regulation, and the quickly evolving civil liability regime in the Community. The authors conclude that Community law cannot be regarded independently of member state law and that growth of the Community environmental framework will continue as the EC moves toward the ideals of an internal common market.

Mr. Smith is the managing partner of the Brussels office of Hunton & Williams; Mr. Hunter is an associate in that office. Mr. Smith has co-edited a book entitled, Understanding U.S. and European Environmental Law — A Practitioner's Guide, and is Associate Editor of the Oxford Journal of Environmental Law. The practices of Messrs. Smith and Hunter focus primarily on advice concerning the effect of environmental law on business transactions and operations in Europe. The authors gratefully acknowledge the careful and intelligent assistance of Martine Blondeau, Law Librarian for the Brussels office of Hunton & Williams.

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I. INTRODUCTION

Environmental issues have become a major political concern in Europe. Over the past 20 years, the European Community (EC or Community) and some member states have generated a substantial amount of environmental legislation. Denmark, Germany, and the Netherlands, and to a lesser degree, France, Luxembourg, and the United Kingdom, have their own national environmental protection programs. The same cannot as easily be said of the other half of the member states. To the extent that they have environmental law, it has been adopted largely pursuant to Community environmental law obligations. Despite the potential importance of Community environmental law in forming an environmental protection framework applicable throughout the Community, Community legislation has, at [22 ELR 10107] least until recently, proved to have limited effect. The Community legislation that has been adopted is sometimes drafted to have limited practical scope. Once adopted, it has in many cases not been implemented into national law. Where formally implemented, it has often not been effectively administered and enforced.¹

The European legal environment is changing quickly. Europe has serious environmental problems, the fruit of a densely populated area with a long history of industrial development. The public, not just environmental groups, is concerned about environmental issues. Concurrent with the rise of environmental concerns, there has been an increase in law-making activity in general by the Community as part of the much discussed "1992 Program" for an internal market without frontiers. The confluence of these two trends — rising environmentalism and growing Community power — has produced important and even more ambitious environmental initiatives and, most recently, increased attention on the effective application of existing Community environmental law.

This Article provides a framework for examining this expanding and increasingly significant body of legislation. Part II of the Article discusses the fundamentals — the Community's structure and legislative process, the effect of Community law and the Community's power to adopt legislative measures relating to the environment. Part III surveys the principal existing Community environmental law.

II. ANATOMY OF THE EC

A. INSTITUTIONS

The European Community, which was created in 1957 by the Treaty of Rome (Treaty),² has four principal institutions: the Commission, the Parliament, the Council of Ministers, and the Court of Justice. In the most basic terms, the Commission initiates legislative proposals and seeks to ensure the application of existing Community law. The Council legislates on the basis of Commission proposals. The Parliament advises by commenting on Commission proposals before the Council decides. The Court interprets Community law.

The Commission, which is based in Brussels, has a monopoly on the initiation of legislation, and is responsible for supervising member state implementation and application of Community law.³ It consists of seventeen Commissioners — two from each large state (Britain, France, Germany, Italy, and Spain) and one from each small state (Belgium, Denmark, Greece, Ireland, Luxembourg, the Netherlands, and Portugal). The Commissioners, who are usually politicians, are nominated by their national governments and appointed to four-year terms by the Council. Each Commissioner has one or more areas of responsibility and the relevant parts of the Commission's bureaucracy report to the Commissioner. Each Commissioner also has a small staff of personal appointees who act as advisors and assistants. The Commission's bureaucracy is segregated into "Directorates-General," each responsible for specified fields. Directorate-General XI (DG XI) has jurisdiction over environmental matters, and the Commissioner with the assigned responsibility as of this writing is Carlo Ripa di Meana of Italy.

The Council of Ministers, the most powerful Community institution, is ultimately responsible for making or adopting laws.⁴ It is composed of representatives of member states, usually the ministers responsible for the subject matter at issue (e.g., if environmental protection is at issue, the national environmental ministers will attend). The chairmanship, or Presidency, of the Council rotates with six-month terms among the member states. The Council is assisted on a daily basis by the Brussels-based Committee of Permanent Representatives (COREPER), which is staffed by officials from national ministries. COREPER continuously negotiates the terms of proposed legislation with the Commission.

The European Parliament consists of popularly elected representatives from the member states. The Parliament is at present an itinerant — its official provisional base and much of its secretariat are located in Luxembourg; its members and their staff have offices in Brussels, where most committee meetings are held; and its monthly plenary sessions take place in Strasbourg in the facilities of another European organization, the Council of Europe. Its role in the legislative process varies depending on the legal basis of proposed legislation. In some cases, the Parliament is merely "consulted" — which means little more than that it is offered an opportunity to comment on proposed legislation. When proposed legislation is a harmonization measure⁵ and is based on Article 100a of the Treaty, the Parliament is afforded greater opportunities to have its views reflected in proposed legislation through a complicated process known as the "cooperation" procedure.⁶

The Court of Justice, which is based in Luxembourg, has jurisdiction in Community law matters.⁷ The Court is composed [22 ELR 10108] of thirteen judges.⁸ The Court is assisted by six advocates-general who make "reasoned submissions" on cases brought before the Court. In each case before the Court, an advocate-general prepares an opinion, which is often relied on heavily by the Court in its judgment and often presents a much more thorough analysis than the cryptic judgments of the Court.⁹ The judges and the advocates-general are nominated by the member states and appointed by the Council of Ministers for renewable six-year terms, with half of the positions being renewed each three years.¹⁰ The Court does not possess the power to impose sanctions — it is limited to declaring that a member state is failing in its obligation under the Treaty.¹¹

B. LEGISLATIVE PROCEDURES

The Community's two legislative processes are the consultation and cooperatin procedures. The legislative procedure used is determined by the legal basis of the proposed legislation — the consultation procedure applies unless the proposal is founded on Article 100a of the Treaty, the harmonization power.¹² When legislation is proposed by the Commission under the consultation procedure, the Parliament is afforded an opportunity to comment on the Commission's proposal. These comments usually take the form of an opinion and a legislative resolution conveying the opinion to the Council and Commission. After the Parliament has been thus "consulted," the Council may, acting unanimously, adopt the Commission's proposal.¹³

When legislation is based on the Article 100a harmonization power, the cooperation procedure applies.¹⁴ The Commission's proposal is sent to the Parliament for a "first reading," at which stage the Parliament must issue an opinion on the proposal. The Commission often makes modifications of varying importance to the proposal in response to the Parliament's opinion. After the Parliament's opinion has issued and the Commission has made any amendments, the Council may then, acting by a qualified majority, reach an agreement or "common position" on the proposal. The proposal, as agreed to by the Council, then returns to the Parliament for a "second reading." At that stage, there are a number of potential outcomes.¹⁵ If the Parliament approves the proposal on the second reading, the Council can adopt it by a qualified majority. If the Parliament rejects the proposal on the second reading, the Council may adopt it only by a unanimous vote. If the Parliament proposes amendments to the proposal, the Commission may reexamine the proposal, incorporate the amendments it thinks appropriate, and send the reexamined proposal to the Council. The Council may then adopt the reexamined proposal by a qualified majority, may modify and adopt the reexamined proposal by a unanimous vote, or may simply fail to act.

C. EFFECT OF COMMUNITY LAW

The two most common forms of Community legislation [22 ELR 10109] are regulations and directives.¹⁶ Regulations become law throughout the Community as of their effective date. Their provisions are directly and generally enforceable in each member state according to their terms; hence, they may create legal rights and obligations without further national legislation.¹⁷ As the Court has said, regulations "have direct effect and are as such, capable of creating individual rights which national courts must protect."¹⁸ Directives, broadly speaking, are not directly and generally enforceable. They set out goals for the member states to achieve through implementing national legislation. Article 189 of the Treaty states that a directive is "binding, as to the results to be achieved, upon each Member State to which it is addressed, but [allows] the national authorities the choice of form and methods." Directives are thus thought to offer a flexible legislative device for setting generic requirements that member states can implement through national legislation in accordance with national institutions and traditions.

* NATIONAL IMPLEMENTATION OF COMMUNITY DIRECTIVES. The Court has rendered a number of opinions on the characteristics of national implementing measures necessary to satisfy the obligations of Article 189 of the Treaty.¹⁹ In implementing a directive, a member state must use national provisions of the same legal status and character as prior laws (e.g., statutes where they are typically used, decrees where they are normally used),²⁰ and must implement a directive "in a way which fully meets the requirements of clarity and certainty in legal situations …."²¹ In many cases, member states have sought, in addressing their implementation obligations, to avoid the need to enact new legislation by relying on administrative practices carried out under existing legislation. The Court has rejected this approach: "Mere administrative practices, which by their nature can be changed as and when the authorities please and which are not publicized widely enough cannot in these circumstances be regarded as a proper fulfillment of the obligation imposed by Article 189 on Member States to which the directives are addressed."²²

* DIRECT EFFECT OF DIRECTIVES. Though in theory only regulations are directly applicable throughout the Community without further national legislation, directives may also, even in the absence of adequate implementing national legislation, create legal rights and obligations — that is, they may, in Community parlance, have "direct effects." The notion is that directives, though not normally directly applicable Community law, are nonetheless binding on member states.²³ A member state should not be able to avoid burdens entailed in properly implementing a directive where the member state itself has failed in its obligations to implement the directive. As the Court stated in PUBLICO MINISTERS V. RATTI:

[where] the Community authorities have, by means of directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such an act would be weakened if persons were prevented from relying on it in legal proceedings and national courts prevented from taking it into consideration as an element of Community law. Consequently a Member State which has not adopted the implementing measures required by the directive in the prescribed periods may not rely, as against individuals, on its own failure to perform the obligations which the directive entails.²⁴

Not every obligation set forth in a directive has direct effects. Only provisions that are "unconditional and sufficiently precise,"²⁵ in that they thoroughly define legal relationships leaving the member state with no room for choice in implementation and application, create legal rights and obligations. As Advocate-General Reischl has argued in RATTI, a directive's provision may have direct [22 ELR 10110] effects if it "does not leave the Member States any margin of discretion in the performance of [their] obligations."²⁶

BECKER V. FINANZAMT MUNSTER-INNENSTADT²⁷ demonstrates what the Court means by sufficiently precise and unconditional. Ursula Becker, a credit negotiator, applied to the German government for exemption from tax on her transactions on the basis of Directive 77/388 on the harmonization of the laws of the Member States relating to turnover taxes.²⁸ Under German legislation, she was subject to a turnover tax on her transactions. Article 13B(d)(1) of the directive provided, "Member States shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of the exemptions and preventing any possible evasion, avoidance or abuse: … (d) the following transactions: (1) the granting and the negotiation of credit …."

In considering whether the exemption provision of the directive satisfied the direct effect conditions so that Becker could rely on it in the face of conflicting German legislation, the Court first considered whether the directive's provision was "sufficiently precise" in defining the legal circumstances. The Court stated, "Inasmuch as [the provision] specifies the exempt service and the person entitled to the exemption, the provision, taken by itself, is sufficiently precise to be relied upon by an individual and applied by a court."²⁹

The issue of whether the provision was "unconditional" was more complicated. The Court pointed out that the provision allows member states to set "conditions" on the exemptions, but noted that these conditions are to be for the purpose of ensuring the correct and straightforward application of the exemptions. According to the Court, a member state may not rely, as against a taxpayer falling within one of the directive's exemption categories, "upon its failure to adopt the very provisions which are intended to facilitate the application of that exemption."³⁰ Moreover, these "conditions" refer to measures to prevent evasion, avoidance, or abuse, and a member state that has failed to take the necessary precautions "may not plead its own omission in order to refuse togrant to a taxpayer an exemption which he may legitimately claim under the directive."³¹ The Court then concluded that the provision was not only sufficiently precise but also unconditional, and thus could be relied on as directly applicable law in a national court by a person falling within the class of exemptions.

A further critical question with respect to the direct effects doctrine is who may be vested with rights against whom. Article 189 of the Treaty makes a directive "binding … upon each Member State to which it is addressed …." On this basis, the Court has concluded that, where a member state has failed to implement adequately a directive or has adopted measures not in conformity with a directive, a person affected by that conduct may rely on the directive as against the member state.³² The Court has rejected (in dicta at least) the contention, however, that a directive may also impose obligations on individuals vis-a-vis other individuals (so-called horizontal effects). In MARSHALL V. SOUTHAMPTON AND SOUTH-WEST HAMPSHIRE AREA HEALTH AUTHORITY,³³ the Court observed that a directive's binding nature exists only in relation to the member states to whom it is addressed. Thus, according to the Court, "a directive may not of itself impose obligations on an individual and … a provision of a directive may not be relied upon as against such a person."³⁴

CONSEQUENCES OF DIRECT EFFECT. It is becoming increasingly clear that Community law, even when not adequately implemented into national law, may have important implications for private parties. A current example is the legal action³⁵ being brought against the British government by Friends of the Earth alleging that the water supplied to the London population by Thames Water Utilities Ltd. does not comply with the quality criteria of the directive on drinking water.³⁶ If successful, this legal action could result in the British government being obliged to require recently privatized Thames Water to comply with the Community standards, [22 ELR 10111] thereby causing Thames Water to make substantial investments in water treatment technology.

Such legal actions are founded on a line of Court of Justice jurisprudence establishing that all national authorities, including regional and local subdivisions of the national governments, and regardless of the national constitutional structure, must implement and apply Community law.³⁷ If there is no national law measure incorporating a Community provision, the national authority must apply the Community provision as if it had been properly incorporated. Where national provisions contradict the Community law, the national provisions must be set aside and the Community requirements applied.³⁸ A national authority must apply the Community law provision even if it may affect the interests of individuals,³⁹ and failure to apply Community provisions may render the national authority's actions unlawful.⁴⁰ Lastly, depending on national law, it may be possible for individuals and interest groups to compel the national authorities to apply the Community provisions, which may in turn affect the interest of, for example, a company holding a permit or seeking a prior authorization.

The significance of these principles in the context of environmental law will perhaps be clearer with a couple of examples. One Community environmental directive that could have direct effects with implications for individual facilities is Directive 80/779.⁴¹ This directive prescribes mandatory air quality standards for sulphur dioxide and suspended particulates. These standards, expressed in numerical criteria set out in an annex, apply across the Community, and member states are allowed no ambit in choosing the areas to which they apply. Article 3 of the directive obligated member states to take measures to comply with these standards by April 1983, and, where there was a risk that compliance would not be achieved by April 1983 despite the measures taken, a member state was to notify the Commission and explain its plans for compliance. The deadline for compliance is April 1993.

Since April 1983, the national governments have been under obligation to take the measures necessary to achieve the standards. Even in the absence of adequate implementing national law measures, industrial facilities emitting sulphur dioxide and suspended particulates could be affected by these Community standards. A regulatory authority, on its own initiative, might impose stricter emission limits in individual permits to attain these air quality standards within a noncomplying zone. The Community air quality standards could also, through the direct effect doctrine, impact industrial facilities. The standards are precise, and will be unconditional as of April 1993, at the latest.⁴² Depending on national law on issues such as standing, it may be possible [22 ELR 10112] for an individual or an interest group to bring an action against the regulatory authority to compel compliance with the air quality standards, which may in turn force the regulatory authority to modify the permit conditions of existing industrial facilities to bring the air quality into compliance.⁴³

A second example of an environmental directive that could have direct effects with implications for businesses is Directive 85/337 on environmental impact assessment.⁴⁴ Much like the U.S. National Environmental Policy Act,⁴⁵ Directive 85/337 requires the preparation of an environmental impact assessment containing prescribed kinds of information for listed projects. With respect to the facilities listed in Annex I, this obligation is unconditional.⁴⁶ Failure to comply fully, either by the developer or the government authority granting the development consent, may render the development consent unsound and put the developer undertaking the project at risk. An affected individual or an interest group may be able to bring an action challenging the lawfulness of the government's grant of the development consent and obtain a rescission of that consent, even where the developer has extended substantial financial resources or has begun construction. In some member states, it may also be possible for an affected individual to obtain a damage award from the government for any harm suffered by, for example, diminution in the value of personal property caused by the development.

D. SUPERVISION OF NATIONAL ENFORCEMENT OF COMMUNITY LAW — COMMISSION AS OMBUDSMAN

Of greater importance to the effective application of Community law than the direct effects of directives is the Commission's role in overseeing member state implementation. The Treaty assigns the primary responsibility to the member states for the application of Community law.⁴⁷ It then assigns the Commission the duty of ensuring that member states properly implement and apply Community law,⁴⁸ and enables the Commission to bring actions against a member state before the Court of Justice for failure in implementing and applying Community law. These actions are called Article 169 proceedings.⁴⁹

* COMMISSION'S 1990 REPORT ON APPLICATION OF COMMUNITY LAW. As neatly organized as that delineation of duties may sound, the application of Community law, and most particularly environmental law, has been erratic. The inadequate implementation of Community environmental law has led the Parliament to adopt resolutions on the need for monitoring the application of Community environmental law,⁵⁰ and the preparation of monitoring reports by the Commission.⁵¹ Even the Council of Ministers, in its June 1990 Dublin "Declaration on the Environment," has called for more effective application of Community environmental law.⁵² Just recently, as part of its annual "Report to the European Parliament on Commission monitoring of the application of Community law — 1990," the Commission has prepared its most extensive and critical report yet on member state application of Community environmental law. This report, entitled "Monitoring of the application of environmental Directives by the Member States" (Environmental Implementation Report),⁵³ promises to heighten the scrutiny and pressure on member states to properly apply Community environmental law.

The Commission recites in the Environmental Implementation Report the inadequacies, nation-by-nation and sector-by-sector, of the application of Community law, and the difficulties, if not obstruction, it has encountered in trying to monitor national implementation. As the Commission explains in its report, the obligations of member states in implementing a directive go beyond formal transposition of the directive into national law. In implementing a directive, a member state must ensure the following:

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(1) the transposition into national law of the directive and communication of the implementing national measures to the Commission;

(2) the complete and correct transposition by the national measures of the directive's obligations; and

(3) the correct application of the implementing national measures.⁵⁴

The Commission recounts at length in the Environmental Implementation Report the failure of member states in each of these obligations.

The Commission observes that timely implementation into national law is "rare,"⁵⁵ and that instances of nonconformity of national law with Community law are "relatively numerous."⁵⁶ Even where member states have communicated to the Commission their implementing national measures, the Commission has had difficulty in verifying that implementation. Environmental directives are often implemented by sundry pieces of legislation, and it can be difficult to determine whether each of a directive's obligations has been implemented. The Commission reports that it has "systematically" requested the member states to supply synoptic tables explaining implementation, but these tables have been provided only "very exceptionally."⁵⁷

The Commission describes in the report its efforts to find other sources of information on implementation.⁵⁸ The Commission has hired private consultants to conduct studies, but, says the Commission, these studies have been of limited value since the consultants have not been able to obtain information in the hands of the national regulatory administrations. The Commission also reports that it has sent letters and questionnaires to member states to obtain more information, but the member states "practically never" respond to these missives.⁵⁹ With meager means for obtaining timely, instructive information on national implementation, the Commission has been relegated to relying on complaints made to it by individuals of failures to respect Community law. Though useful in drawing attention to national failures, these complaints are not, in the Commission's view, sufficient. Complaints do not provide a systematic vehicle for supervision, dependent as they are on serendipity.⁶⁰ The Commission lacks the staff to pursue and analyze thoroughly each of the many complaints it receives.

The Commission reports that in 1990 it undertook other measures to overcome the difficulties encountered in supervising Community environmental law implementation. It proposed a directive to "rationalize" the reports of member states on the implementation of environmental directives.⁶¹ It has also conducted "paquet" meetings with national authorities. During these meetings, complaints and Article 169 proceedings were discussed as a group to clarify the facts and to coax the member states into implementing and applying Community environmental law. In 1990, the Commission had two meetings each with Spain and Greece, and one meeting each with Belgium, Germany, Ireland, the Netherlands, and Portugal.⁶²

As for the future, the Commission states in the Environmental Monitoring Report that it plans to continue these meetings with national authorities on a systematic basis. It also expresses high hopes for the new European Environmental Agency in its role of obtaining useful information on the application of environmental law. It is further considering whether to propose a directive creating a new environmental complaint system under which complaints would be made first to national authorities, with recourse to the Commission only where a national authority's response is not adequate or timely. It goes on to wonder aloud whether environmental protection could not be better obtained by granting a right of standing to environmental groups or individuals.⁶³ In any event, the Commission proposes to continue to publish every year its report on the application of Community environmental law.

* ENFORCEMENT TOOLS — COMPLAINTS AND ARTICLE 169 PROCEEDINGS. As noted above, complaints by individuals to the Commission regarding infringements of Community law are, at present, instrumental in the enforcement of Community law.⁶⁴ To facilitate the lodging of these complaints, the Commission has published a standard complaint form specifying the information necessary for the Commission to undertake an investigation.⁶⁵ These complaints should not, however, be confused with legal actions — they amount to nothing more than a means for individuals to notify the Commission of potential Community law violations.

The administrative procedure for those complaints runs as follows. After the Commission receives a complaint, it informs the complainant, whose identity is confidential, that [22 ELR 10114] the complaint has been entered in the Commission's complaint register, and requests from the member state the factual and legal information necessary to assess the complaint. If the Commission deems it necessary to carry out an inspection, Commission officials, with the consent of the member state officials, make an on-the-spot check. The Commission may obtain its own "experts' opinions" and may request the submission of documents. Once factual issues have been clarified, the Commission decides whether to commence the formalized administrative process leading to an action before the Court of Justice, or to discontinue the investigation. The complainant is notified of the Commission's decision.

Article 169 of the Treaty sets out the formal infringement procedure that may be used by the Commission where a member state has failed in executing its obligations under the Treaty.⁶⁶ The Article 169 procedure has three distinct stages: (1) a letter of formal notice, (2) a reasoned opinion, and (3) an application to the Court of Justice.

If the Commission is of the view that a member state is failing to fulfill its obligations under the Treaty, the Commission may send a formal letter of notice specifying the issues of contention. This first stage of the Article 169 procedure is intended to afford the member state the opportunity to explain its conduct or legislation, and to give the Commission a chance to convince the member state to correct its errors.⁶⁷ The formal letter of notice also defines the issues in dispute, enabling the member state to prepare its defense. The formal letter of notice limits the issues that may subsequently be raised in consequent judicial proceedings; under the Court's rulings, the Commission may not, during the subsequent judicial stages, add to the complaint issues that were not raised in the formal letter of notice.⁶⁸

If the dispute is not resolved to the Commission's satisfaction on the basis of the letter of notice, the Commission may then prepare a reasoned opinion, setting forth definitively its legal position. The reasoned opinion specifies the Commission's views on how Community law is being infringed and sets forth the Commission's rationale — its underlying legal arguments.⁶⁹

Should the dispute still not be resolved to the Commission's satisfaction, the Commission may make an application to the Court of Justice.⁷⁰ The Commission does not need to establish a legal interest "since, in the general interest of the Community, its function is to ensure that the provisions of the Treaty are applied by the Member States and to note the existence of any failure to fulfil the obligations deriving therefrom, with a view to bringing it to an end."⁷¹ At most, however, a judgment by the Court of Justice pursuant to Article 169 may result in a declaration of infringement of Treaty obligations by the member state and an award of legal costs. Ludwig Kramer has observed that "[w]hat conclusions the Member State draws from the judgment and how it complies with the Court's rulings is left to that Member State."⁷²

E. POWER TO ADOPT ENVIRONMENTAL MEASURES

Having discussed the Community's structure, its law-making method and the effect of those laws, we may now shift our attention to the Community's ability to legislate with respect to the environment. Before the incorporation into the Treaty in 1987 by the Single European Act⁷³ of the environment title, Title VII, with its three articles, 130r through 130t, and Article 100a, which specifically addresses environmental matters, the Treaty included no explicit reference to an environmental law power. Since their incorporation, these specific environmental powers have come to serve as the principal bases for new legislation.⁷⁴

The lack of a specific environmental power before the Single European Act did not prevent the Community from venturing into the domain of environmental policy, however. For example, as early as 1967 the Council adopted Directive 67/548 on classification, packaging and labelling of dangerous substances,⁷⁵ and in 1970 the Council adopted directives on noise levels⁷⁶ and on automobile emissions.⁷⁷ This and other early environmental legislation were founded [22 ELR 10115] either on Article 100,⁷⁸ authorizing Community action to harmonize standards, or on Article 100 together with Article 235, the provision enabling the Community to take measures necessary for the achievement of Community objectives. As neither provision referred specifically to environmental protection as a proper field of community action, there was some uncertainty over the Community's competence in this area.

* ARTICLE 100 — HARMONIZATION. Article 100 enables the Community to legislate to achieve the approximation of "such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment or functioning of the common market." There was some question whether it served as an adequate basis for certain Community environmental measures. In 1980 the Court considered, in COMMISSION V. ITALY,⁷⁹ the legal basis of Directive 73/404 on the biodegradability of detergents,⁸⁰ which had been founded on Article 100. Italy had failed to implement the directive. Italy challenged the competence of the Community to adopt this measure as a directive and argued that the measure constituted a convention drawn up in the form of a directive. The Court noted that while the directive was aimed in part at environmental protection, it also fell within the Community's program for the elimination of technical barriers to trade resulting from disparities between national legal provisions. Thus, according to the Court, Article 100 was an adequate legal basis:

[I]t is by no means ruled out that provisions on the environment may be based upon Article 100 of the Treaty. Provisions which are made necessary by considerations relating to the environment and health may be a burden upon the undertakings to which they apply and if there is no harmonization of national provisions on the matter, competition may be appreciably distorted.⁸¹

Thus, it would appear that since national measures designed for environmental and health protection could impinge on intracommunity trade, environmental and health protection are proper domains for "harmonizing" legislation based on Article 100. Little scrutiny seems to have been given to whether there was in fact a DIRECT effect on intracommunity trade — the mere possibility that the environmental and health protection measures "may" affect intracommunity trade was apparently sufficient.

* ARTICLE 235 — NECESSARY FOR A COMMUNITY OBJECTIVE. Where there is not a sufficiently direct effect on the internal market to justify reliance on Article 100, the Commission is able to turn to Article 235. This article authorizes Community action where, although the Treaty provides no specific power, that action is "necessary to attain … one of the objectives of the Community …."⁸² Thus there appears to be two principal preconditions to the use of Article 235: (1) that the measure is aimed at a Community "objective," and (2) that the measure is "necessary" in attaining that objective.

Since the Treaty did not refer specifically to environmental protection as a Community objective, support had to be sought in vague preambulatory articles and in the general language of Article 2 specifying Community tasks. The preamble to the Treaty recites that Community goals include "the constant improvement of living and working conditions," and "harmonious development," and Article 2 states that the Community shall have as "its task" the promotion of "a harmonious development of economic activities, a continuous and balanced expansion, … [and] an accelerated raising of the standard of living …."

Whatever the slimness of support in the Treaty, the Court of Justice concluded in 1985 in its typically summary fashion that environmental protection is one of the Community's "essential objectives."⁸³ As for the requirement of a measure being "necessary" to obtain a Community objective, the adjective "necessary" has unsurprisingly not received rigorous treatment by the Court of Justice. One Commission legal official has gone so far as to assert that, "if the Community by adopting action programs has documented its political view on the measures that are to be the subject of Community legislation, there is no need for further proof of the necessity for Community action."⁸⁴ This may be the result that obtains — a result that is perhaps similar to what the U.S. Supreme Court allows with congressional "findings" of effect on interstate trade when Congress bases legislation on its power to regulate interstate commerce.⁸⁵

* ARTICLE 100A — HARMONIZATION. The Single European Act provided specific Treaty foundations for environmental policy in 1987. In particular, it added Article 100a on harmonization,⁸⁶ which includes a specific reference to environmental [22 ELR 10116] protection, and Title VII on the environment. Article 100a authorizes the Council to act by a "qualified majority" to adopt measures to complete the internal market, including proposals "concerning health, safety, environmental protection and consumer protection." These measures are to take as a base "a high level of protection."⁸⁷ Paragraph 4 of Article 100a provides:

If, after the adoption of a harmonization measure by the Council acting by a qualified majority, a Member State deems it necessary to apply national provisions on grounds of major needs referred to in Article 36, or relating to protection of the environment …, it shall notify the Commission of these provisions.

The Commission shall confirm the provisions involved after having verified that they are not a means of arbitrary discrimination or a disguised restriction on trade between Member States.⁸⁸

What limitations might govern the member state measures? Presumably, this must mean they may apply only stricter measures, as the Commission is to vet them to see if they are really intended to discriminate against intracommunity trade. May a member state apply ANY stricter measures of its choosing, so long as they are not "disguised" protectionist measures? One might assume from the paragraph that the national measures must be based on "major needs" within the meaning of Article 36, or national measures "relating to environmental protection."⁸⁹ One might also assume that the limitations developed in the Court's jurisprudence on Article 36 would apply. That would mean, for example, that the member state must choose the means that would least interfere with intracommunity trade ("the least restrictive means"), and that the means should not have negative effects disproportionate to its objective (the so-called proportionality requirement).⁹⁰

* TITLE VII (ARTICLES 130R-130T) — THE ENVIRONMENT TITLE. Title VII, which includes Articles 130r-130t, is the environmental title of the Treaty. Article 130r addresses the objectives to be pursued by Community "action" relating to the environment: (1) to preserve, protect, and improve the quality of the environment; (2) to contribute toward protecting human health; and (3) to ensure a prudent and rational utilization of natural resources.

The Community is to legislate to the extent that these objectives "can be attained better at Community level than at the level of the individual Member States."⁹¹ The practical significance of this limitation, the so-called subsidiarity principle, is perhaps more political than legal, and is unlikely to operate as a real limitation on legal competence. A plausible case for the superiority of Community action could be made in the case of most any legislative proposal, and it would seem that the Court would be compelled to accept the decision of the member states in adopting the measure that the objectives could in fact be better attained at the Community level.

The policies or "principles" to be followed are that (1) preventive action should be taken; (2) environmental damage should be rectified at the source; and (3) the polluter should pay.⁹² Again, it can be doubted whether these principles will have anything more than political significance. Even in that domain, they have become more shibboleths than policies for action, since they are at best vague generalizations, and are not well suited to strict legal application. For example, with respect to the "polluter pays" principle, [22 ELR 10117] determining who exactly is the polluter may be difficult. Is it the person who creates a product, the production of which results in pollution? Is it the person who uses the product, incidentally causing some environmental harm? Or is it the person who disposes of the waste and releases that waste into the environment? Even if the polluter can be determined, creating a legal regime to ensure that the polluter "pays" may be no easy task.

Community environmental legislation is to take account of such things as "environmental conditions in the various regions," and "the economic and social development of the Community as a whole and the balanced development of its regions."⁹³ On the basis of this provision, it could be argued that the Treaty recognizes that Community legislation may draw distinctions between the various regions, perhaps even in ways conflicting with the principles of freedom of movement of goods and services.

When legislative measures are adopted under the provisions of Title VII, they must be adopted by the Council acting UNINIMOUSLY on a proposal from the Commission and after consulting the European Parliament — i.e., the consultation procedure is used. However, the Council, on a proposal from the Commission and afterconsulting the European Parliament, may "define those matters on which decisions are to be taken by a qualified majority."⁹⁴ Thus, it is possible, though it has not yet been done, for the Council to adopt unanimously a Commission proposal setting aside a category of environmental measures that could subsequently be promulgated by a qualified majority.

Title VII further provides that the "protective measures adopted in common pursuant to Article 130s shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with this Treaty."⁹⁵ This provision should be contrasted with Article 100a, the harmonization provision, which does not admit variant measures, except through the "opting-out" procedure allowing the Commission to vet the national measures to ensure that they are not in fact designed to prejudice intracommunity trade. Under the Title VII provision, member states may adopt measures compatible with the Treaty, which would appear to mean that Title VII does not permit national legislation in conflict with Articles 30 and 36, the principles of free movement of goods and services. In that case, the Title VII test may have much the same effect as the "discrimination" test applied under the Article 100a opting-out procedure, but without the mechanism bringing the variant national measures to the attention of the Commission.

III. Community Environmental Legislation

During the past 15 years, the European Community has adopted a substantial body of environmental legislation. This legislation covers a range of environmental issues with which American practitioners are familiar. It includes legislation dealing with environmental impact assessments of projects, air and water pollution, solid and hazardous wastes, noise pollution, radioactive waste, and conservation of wild fauna and flora. Recent Community legislation deals with issues such as the establishment of a European Environment Agency; freedom of information on the environment; urban waste water treatment; and expanding the framework of waste regulation. Significant pending provisions, some of which would venture beyond areas dealt with in the United States, include the following:

* an "eco-audit" proposal, with external verification and public disclosure requirements for relted "environmental statements";⁹⁶

* an eco-labeling proposal;

* a packaging waste proposal⁹⁷ and a plastic waste proposal;⁹⁸

* a proposed regulation on the shipment of waste that would apply to the shipments of virtually all kinds of wastes and would require advance government consents before undertaking shipment across national and, in many cases, subnational borders;⁹⁹

* a significant expansion of the hazardous waste regulatory framework;

* possible restructuring of air and water pollution control frameworks under the rubric of "integrated pollution control";¹⁰⁰ and

[22 ELR 10118]

* civil liability proposals (one for civil liability for waste,¹⁰¹ analogous to the U.S. Superfund law but covering toxic torts as well, and another more general proposal for civil liability for all types of environmental damage).

This section of the Article examines this developing structure of Community environmental law. While the discussion is not comprehensive (significant areas such as automobile emissions, noise and nature protection, as well as proposed legislation, are omitted), it focuses on the most important elements of the Community environmental legal system. It begins with a discussion of legislation relating to institutional and general matters; it next examines the Community regulatory framework, including preliminary studies requirements, air protection regulation, water protection requirements, and waste management legislation; it then turns to chemical and dangerous substances regulation; and it finishes with a discussion of the important and quickly evolving civil liability regimes in the Community.

A. INSTITUTIONAL AND GENERAL

* THE EUROPEAN ENVIRONMENT AGENCY. In 1990, the Community adopted a regulation creating the European Environment Agency.¹⁰² The Agency is to collect and disseminate information on the environment. The Agency is not, initially at least, to have any enforcement authority. The Community is to reassess by 1993 whether the Agency should play a more substantial role in "the monitoring and implementation of Community environmental legislation."¹⁰³ At present, the Agency is without either a home or a head and is unable to carry out even its limited functions — the determination of the Agency's location and leadership has become entangled with "high" political struggles over the future locations of such Community institutions as the Parliament.

* FREEDOM OF INFORMATION ON THE ENVIRONMENT. The Directive on the Freedom of Access of Information on the Environment¹⁰⁴ requires member states to create procedures for citizens to obtain information related to the environment from public authorities. Under the directive, public authorities must allow access to "information relating to the environment" to any person, without that person having to prove an interest.¹⁰⁵ "[I]nformation relating to the environment" means "any available information in written, visual, aural or data base form on the state of water, air, soil, fauna, flora and natural sites, and on activities … or measures adversely affecting, or likely so to affect these, and on activities or measures designed to protect these …."¹⁰⁶

The directive, however, creates a potentially far-reaching set of exclusions from the obligation to supply information — a set of exceptions that may render the directive of little practical significance. National authorities may refuse to grant an information request where the request may affect, inter alia, foreign relations; national security; public security; commercial and industrial confidentiality, including intellectual property; material supplied by a third party without that party being under a legal obligation to do so; and "material, the disclosure of which, would make it more likely that the environment to which such material related would be damaged."¹⁰⁷ Presumably, it will be the government officials who will determine whether an exception from the obligation to provide access applies. The last exception (i.e., for information that may result in more damage to the environment) seems to be particularly vulnerable to abuse in the hands of government officials who, for whatever reason, are not predisposed to release requested information.

B. REGULATORY FRAMEWORK

* ENVIRONMENTAL IMPACT ASSESSMENT. The Environmental Impact Assessment Directive¹⁰⁸ imposes an environmental impact assessment requirement for certain projects to "identify, describe and assess in an appropriate manner … the direct and indirect effects" on (1) humans, fauna, and flora, (2) soil,water, air, climate, and the landscape, and (3) material assets and the cultural heritage.¹⁰⁹ The directive does not provide substantive environmental protection standards, but instead, like the U.S. National Environmental Policy Act (NEPA),¹¹⁰ erects a procedural structure for the public and official consideration of environmental consequences of certain projects.

The directive's annexes specify categories of projects that fall within the requirements of the directive. Annex I lists projects that must be subjected to EIAs; these include such projects as (1) oil refineries; (2) large thermal and nuclear power stations; (3) iron and steel works; (4) integrated chemical plants; (5) motorways, railways, and airports; and (6) facilities for the incineration, treatment, or land disposal of toxic and dangerous waste. Projects listed in Annex II are to be subjected to environmental impact assessments "where Member States consider [the project's] characteristics require." These Annex II projects are grouped into general headings: agriculture, extractive industry, energy industry, processing of metals, manufacture of glass, food industry, textile, leather, wood and paper industries, rubber industries, infrastructure projects, other projects, and modifications of Annex I projects.

Under the directive, the developer must supply the following to the member state:

* a description of the project, including information on the site, design, processes and wastes;

* "an outline of the main alternatives studied by the [22 ELR 10119] developer and an indication of the main reasons for this choice";

* a description of "the likely significant effects" of the project;

* a description of "the measures envisaged to prevent, reduce and where possible offset any significant adverse effects on the environment"; and

* a nontechnical summary.¹¹¹

The information required varies in an important way from that required under NEPA. NEPA requires that all "reasonable" alternatives to the project, including the alternative of not undertaking the project, be discussed in the assessment.¹¹² This encompassing consideration of alternatives is generally thought to be the core of NEPA, for it sets up and contrasts the choices to be made in deciding whether to undertake the particular project. The directive, by contrast, requires only "an outline of the main alternatives studied by the developer."¹¹³ Thus, a developer need only discuss several alternatives to satisfy this requirement, and the alternatives chosen might well not be the most informative.

The member states' environmental authorities are to have "an opportunity to express their opinion on the request for development consent."¹¹⁴ Any request for development consent and any information gathered pursuant to this directive are to be available to the public, and the "public concerned" (as determined by the member state) is to be afforded "the opportunity to express an opinion before the project is initiated."¹¹⁵ Information generated by the developer, the views of the competent authority, and the opinion of the public concerned "must be taken into consideration in the development consent procedure."¹¹⁶ When a decision has been made by the governmental authority, it shall inform the concerned public of the decision and any conditions, and "the reasons and considerations on which the decision is based where the Member States' legislation so provides."¹¹⁷

* MAJOR ACCIDENT HAZARDS (SEVESO DIRECTIVE). In response to the 1976 industrial disaster involving the release of dioxin in Seveso, Italy, the Community adopted the Directive on Major Accident Hazards of Certain Industrial Activities (the Seveso Directive),¹¹⁸ which is designed to prevent and limit the consequences of major accidents resulting from industrial operations involving dangerous substances. The directive imposes on an "industrial activity"¹¹⁹ a general duty to prevent major accidents and to limit their consequences, as well as more specific notification and reporting obligations.

A "manufacturer" (i.e., a person in charge of an industrial activity) must notify the competent authorities if (1) specified quantities of one or more of the dangerous substances listed in the directive's Annex III are or may be involved¹²⁰ in any operation, transport, or storage carried out in an industrial installation referred to in Annex I, or (2) specified quantities of one or more of the dangerous substances listed in Annex II are stored¹²¹ at installations other than those covered by Annex I. The notification must include information regarding the nature and quantity of the dangerous substance being used, the location and character of the installation engaged in the industrial activity, and emergency plans for use in major accident situations.¹²²

In the event of a "major accident,"¹²³ the manufacturer must notify the authorities immediately and provide them with information regarding the accident and emergency measures taken, along with future measures to be taken to alleviate medium and long-term effects of the accident and to prevent its recurrence.¹²⁴

* AIR POLLUTION. Community air pollution legislation has relied principally on two regulatory methods: air quality objectives and emission limits. The early legislation (i.e., that adopted up until 1985) relied chiefly on air quality objectives for lead, sulphur dioxide, suspended particulates, and nitrogen oxides. Member states were to draw up implementing plans for sources in nonattainment areas. Areas experiencing further development were to be subject to more stringent requirements, and no significant deterioration was to be allowed in attainment areas after implementation of the Community legislation. This early legislative program was not, from the Commission's perspective, successful. The skeletal requirements for ambient air quality monitoring made it difficult for the Commission to ensure compliance,¹²⁵ and member states have never produced the majority of the implementing plans required.¹²⁶ In 1984, the Commission shifted its approach in hopes of achieving a more effective air pollution control system. Since then, it has relied more heavily on permitting requirements and technology-based emission limits. But even this new approach [22 ELR 10120] has, thus far, had limited effect. The permit requirement has been applied only to certain new and modified large industrial sources listed in an annex to framework Directive 84/360 on Air Pollution from Industrial Plants, and the technology-based emission limits have been developed in daughter directives for only two types of plants (i.e., large combustion plants and municipal incinerators).

In addition to these two major lines of legislation, the Community has set product standards with a view to air quality protection. In particular, it has set sulphur content limits for gas oil,¹²⁷ and standards for both leaded and unleaded gasoline.¹²⁸ In addition, the Community has adopted legislation on mobile sources. This section focuses on the principal Community legislation establishing air quality objectives and emission limits. It excludes from discussion the Community's legislation on mobile source emissions, that area being somewhat distinct.

AIR QUALITY STANDARDS. The Community has adopted air quality and limit value directives for (1) sulphur dioxide and suspended particulates,¹²⁹ (2) nitrogen oxides,¹³⁰ and (3) lead.¹³¹ These directives prescribe "limit values," which the member states are to ensure are met,¹³² and they impose sampling and reporting obligations on the member states. The directives on sulphur dioxide and particulates and on nitrogen oxides also provide "guide values," which the member states are urged to try to achieve. The directive on lead does not provide guide values. The obligations on member states to achieve the prescribed air quality standards and to produce and apply implementation plans for nonattainment areas were intended to create a coherent system of air quality based emission standards for air pollution sources at the national level.

Asbestos. Directive 87/217 on Asbestos¹³³ deviates from previous practice in that it regulates both air and water emissions. It requires the member states to ensure that "asbestos emissions into the air, asbestos discharges into the aquatic environment, and solid asbestos waste are, as far as reasonably practicable, reduced at source and prevented."¹³⁴ Where asbestos is used, the national measures are to be based on a requirement of the "best available technology not entailing excessive cost."¹³⁵ The directive also sets limit values for discharges of asbestos fibers into air¹³⁶ and water,¹³⁷ and prescribes monitoring procedures and measuring requirements.¹³⁸

AIR POLLUTION FROM INDUSTRIAL PLANTS. Framework DirectiveE 84/360 on Air Pollution from Industrial Plants¹³⁹ requires prior authorization before commencing operation of new plants of the types listed in Annex I; the authorization must be considered at the "design stage." The directive also requires prior authorization of substantial alteration to types of plants listed in the annex.¹⁴⁰ These Annex I categories [22 ELR 10121] include only certain kinds of facilities (1) in the energy industry, (2) for metal production or processing, (3) for nonmetallic mineral products manufacture, (4) in the chemical industry, (5) for waste disposal, and (6) for the manufacture of paper pulp by "chemical methods."¹⁴¹ Community law does not impose prior authorization requirements for air pollution sources generally.

Authorizations for new or modified Annex I facilities are to be issued only when member states are satisfied that the following conditions have been met:

(1) "all appropriate preventive measures against air pollution have been taken, including the application of the best available technology, provided that the application of such measures it does not entail excessive costs" (BATNEEC);¹⁴²

(2) "the use of the plant will not cause significant air pollution";¹⁴³

(3) none of the "applicable" emission limits will be exceeded;¹⁴⁴ and

(4) all "applicable" air quality limits "will be taken into account."¹⁴⁵

As for existing Annex I sources, the directive states that member states "shall implement policies and strategies, including appropriate measures, for the gradual adaptation" of such sources to best available technology (BAT), "taking into account in particular" the following:

(1) "the plant's technical characteristics";

(2) "its rate of utilization and length of its remaining life";

(3) "the nature and volume of polluting emissions from it"; and

(4) "the desirability of not entailing excessive costs for the plant concerned, having regard in particular to the economic situation of undertakings belonging to the category in question."

For follow-on, article 8 of the directive provides daughter directives setting BATNEEC to be adopted, but only on unanimous voting in the Council. The substantive test for BATNEEC in article 8 is a curious concoction of technology-based and ambient-based concepts. Article 8 states that the Council shall

if necessary, fix emission limit values based on the best available technology not entailing excessive costs, and taking into account the nature, quantities and harmfulness of the emissions concerned.

Having found it too awkward to have BATNEEC standards adopted under article 8, the Commission initiated a new program in 1989 for developing nonbinding BATNEEC standards under the directive's article 7, the provision providing for information exchange among member states. The Commission explained in a memorandum entitled "New Orientations of the BAT Activity" (New BAT Orientations Memorandum) that it intended to identify, using committees of national and industrial representatives, "both BATNEEC and their relevant associated emission values in order to set up limit values for the industrial sectors studied."¹⁴⁶ These emission values are then to "become the principle criteria by which future applications for authorization will be judged by the competent authorities of the Member States."¹⁴⁷ Pursuant to this program, BAT working groups, with the assistance of private consulting firms, have produced Technical Notes (similar in style to U.S. Environmental Protection Agency Development Documents, but without an attempt at rigorous, systematic, data-based derivation for the proposed numerical limits) on the following:

* sulfuric acid production;

* nitric acid production;

* ammonia production;

* manufacture, storage and handling of benzene;

* incineration of toxic/dangerous waste; and

* cement production.¹⁴⁸

A Technical Note on the refining industry is due out in 1991, and the process for developing another on the metallurgical industry is to be initiated in 1991.¹⁴⁹

The Prefaces to these Technical Notes contain important glosses on the conceptual basis of BATNEEC. The Commission says in one preface:

BAT is to be interpreted as the technology (or set of technologies) which operating experience has adequately demonstrated to the best technology commercially available as regards the minimisation of emissions to atmosphere, providing it has been proven to be economically viable when applied to the industrial sector concerned. Applications for authorisation will generally be deemed to meet BAT criteria if the performance of the proposed plant, under normal operating conditions, in terms of emissions to atmosphere, is guaranteed to be equivalent or better than that of the designated BAT. However, the provisions of the Directive also enable Authorisation Authorities to consider whether, because of the individual characteristics of a plant or its local environment, the BAT guidance fully applies and whether the criteria therefore need to be interpreted differently to take account of the particular characteristics of the plant and its environment.¹⁵⁰

[22 ELR 10122]

The New BAT Orientations Memorandum explains that having been unsuccessful in amending framework Directive 84/360 to make Technical Notes legally binding emission limits, without resorting to Council action through the normal daughter directive process, the Commission has institutionalized the article 7 process by changing the name of numerical values in future Notes from "limit values" to "emission values associated to the designated BAT."¹⁵¹ The Commission's memorandum concludes by saying:

The technical notes will not be binding documents for the Commission, neither for the Member States nor for the industry, but will constitute a technical basis for the Commission to prepare:

* sectorial directives on specific industrial sectors,

* annexes containing limit values of air pollutant emissions deriving from specific industries.

The annexes will be inserted in a more global directive prepared by the Commission in the framework of an integrated approach of industrial pollution.

Obviously, a Member State may always decide to give legislative power to the technical notes in its country.¹⁵²

LARGE COMBUSTION PLANTS. The first daughter directive, the Directive on Emissions from Large Combustion Plants,¹⁵³ applies to energy production plants with thermal inputs of 50 MW (megawatts) or greater.¹⁵⁴ In seeking to control air pollution from large combustion plants, the directive imposes permitting and operating requirements on new plants, and requires member states to devise programs for dealing with existing plants.

"New plants" (i.e., those receiving their original construction or operating permits after June 1987) are required to be permitted, and these permits (called "licenses") are to lay down "discharge conditions"¹⁵⁵ and to incorporate the uniform plant emission limit values specified in the annexes for sulphur dioxide and nitrogen oxide.¹⁵⁶ These permits may also include design specifications.¹⁵⁷ Waste gases must be discharged "in a controlled fashion by means of a stack," and the competent authority, in issuing the permit, is to "ensure that the stack height is calculated in such a way as to safeguard health and the environment."¹⁵⁸ Further, the directive imposes certain monitoring and reporting requirements on covered plants.¹⁵⁹

The Large Combustion Plants Directive makes other provisions for existing facilities. The directive requires the member states, by July 1990, to devise plans for addressing air pollution from "existing plants" (i.e., plants that received their original construction or operating permits by the end of June 1987), but specifies total national loading reduction requirements, leaving it up to member states to allocate load reductions among existing sources and to promulgate the necessary plant specific emission limitations. These member state plans are to achieve reduction in "total annual emissions from [all] existing plants" to bring the member states into compliance on a schedule provided by Annexes I and II of the directive (and extending, for sulfur dioxide, in three phases from 1993 to 2003, and for nitrogen dioxide in two phases ending respectively in 1993 and 1998). These plans are to include member state-specific numerical "emission ceilings" (in ktons/year, and applying, essentially, to all existing large combustion sources in the member state taken in the aggregate) and "corresponding percentage reductions" (again, applying to all such sources in a member state in the aggregate) for sulphur dioxide and nitrogen oxide.¹⁶⁰

MUNICIPAL WASTE INCINERATION PLANTS. Two daughter directives address municipal waste incineration plants specifically: one for new plants¹⁶¹ and another for existing plants.¹⁶² These directives provide additional conditions and requirements to be added to the permits required for "municipal waste-incineration plants"¹⁶³ under the framework Directive on Air Pollution from Industrial Plants.¹⁶⁴

The New Municipal Waste Incinerators Directive applies to plants that received their first authorizations after November 1990.¹⁶⁵ This directive (1) sets out a series of emission [22 ELR 10123] limit values for specified pollutants;¹⁶⁶ (2) prescribes design specifications;¹⁶⁷ and (3) imposes monitoring¹⁶⁸ and reporting¹⁶⁹ requirements.

The Existing Municipal Waste Incinerators Directive,¹⁷⁰ pursuant to the framework Directive on Air Pollution from Industrial Plants' requirement of the adaption of existing plants to "the best available technology,"¹⁷¹ imposes a schedule for compliance for existing facilities¹⁷² with the same conditions and technical requirements applicable to new facilities. Large existing plants (i.e., those with nominal capacity of at least six tons of waste per hour) are to meet the standards required of similar new plants by December 1996.¹⁷³ Other existing plants must meet by December 1995¹⁷⁴ the conditions and performance standards¹⁷⁵ provided by the Existing Municipal Waste Incinerators Directive, and must meet by December 2000 the conditions of the New Municipal Waste Incinerators Directive.

IMPLEMENTATION AND ENFORCEMENT. The Commission's Environmental Implementation Report notes the widespread noncompliance with Community air pollution directives. The requirements of the Directive on Large Combustion Plants concerning existing source implementation plans were not implemented on time by the majority of member states.¹⁷⁶ The municipal incinerator directives were not implemented either, with only one member state having notified the Commission of implementation as to one of the directives by the required date.¹⁷⁷ Several member staes have failed to implement air quality limit values through legally binding requirements, but have instead used administrative circulars.¹⁷⁸ Lastly, and most seriously from the Commission's perspective, many member states have not been providing adequate reporting on the basis of the air quality monitoring networks required for defining nonattainment areas and tracking ambient air quality levels, and member states have prepared almost none of the implementation plans required for sources in the defined nonattainment areas.¹⁷⁹

* WATER PROTECTION. Community water pollution control policy has been founded on two basic programs: a water quality program that applies to waters intended for certain uses, and a prior authorization program for the regulation of discharges of two classes of pollutants to surface water. Beyond these two basic programs, the Community has extended similar regulation to groundwater, and has recently adopted legislation on urban waste water.

QUALITY STANDARDS FOR WATERS INTENDED FOR CERTAIN USES. The Community has adopted a series of directives setting mandatory and recommended water quality standards for water intended or used for specified purposes: one prescribes standards for surface water intended or used for the abstraction of drinking water;¹⁸⁰ another sets standards for bathing water;¹⁸¹ and others establish standards for fresh water fish waters¹⁸² and for shellfish waters.¹⁸³ Typically, these directives oblige the member states to designate the water bodies to which they shall apply¹⁸⁴ and to adopt implementing programs (presumably including the point and nonpoint source regulatory systems) that ensure that the quality standards are met in the water bodies within five years of designation.¹⁸⁵ The directives allow the member states significant latitude in determining which water bodies to designate and thus which water bodies and pollutant sources must be regulated pursuant to implementing programs to achieve the water quality standards.¹⁸⁶ This latitude for member states in designating covered water bodies has done much to undermine the effect of these directives.

An important related directive is the Directive 80/778 on the Quality of Water for Human Consumption.¹⁸⁷ This directive sets a series of maximum admissible concentration (MAC) levels for drinking water which member states are to ensure are obtained at the point of consumption.¹⁸⁸ These [22 ELR 10124] MAC levels relate to characteristics such as color, turbidity, odor, and taste, as well as to specific chemical properties.¹⁸⁹ Member states are to ensure "regular" monitoring of drinking water to check compliance with these MAC levels, and ensure that monitoring is at the point the water is made available to the user.¹⁹⁰

PRIOR AUTHORIZATION SYSTEM FOR DISCHARGES TO SURFACE WATER. The Community's permit or prior authorization regulatory program is designed to cover discharges from all sources to surface waters of two classes of pollutants.¹⁹¹ The first class, the more dangerous List I or "blacklist" substances, are supposed to be controlled by "emission standards" based on "best technical means available" (BTMA) limit values. Under a provision incorporated at the behest of the United Kingdom, a country blessed with fast, short rivers, the BTMA emission standards need not be applied if the member state can show that Community water quality objectives set for the particular pollutants are otherwise met. Daughter directives setting BTMA limit values and water quality objectives have been adopted for only a limited number of List I substances. The second class of pollutants, List II or "greylist" substances, are to be regulated by water quality objectives and implementing programs developed by the member states.

Now for specifics. Framework Directive 76/464 on the discharge ofdangerous substances¹⁹² requires member states to regulate the "discharge"¹⁹³ to surface water¹⁹⁴ of List I and List II substances¹⁹⁵ by requiring "prior authorizations"¹⁹⁶ that impose emission standards for the discharge of those substances.¹⁹⁷ Blacklist substances are those "proved" to possess carcinogenic properties or those falling within the broad families of chemical compounds specified in List I: organohalogen, organophosphorus, and organotin compounds, mercury, cadmium, and persistent mineral oils and hydrocarbons of petroleum origin. Greylist substances include the following, inter alia: (1) substances containing specified metals (e.g., zinc, copper, and titanium), (2) substances having a deleterious effect on the taste or smell of water, (3) cyanides and fluorides, and (4) substances which have an adverse effect on the oxygen balance, particularly ammonia and nitrates. For purposes of the permitting and emission standards requirements, a blacklist substance is to be treated as a greylist substance until a daughter directive sets emission standards for it.

Permits for the discharge of blacklist substances are to lay down emission standards, but the framework directive allows the member states a choice in how they go about setting these emission standards. First, the directive provides for the adoption by unanimous voting of daughter directives setting limit values to be incorporated in the permit emission standards.¹⁹⁸ These limit values set the maximum concentrations and quantities of the blacklisted substance permissible.¹⁹⁹ The directive states that these limit values are to be set "mainly" on the basis of the "toxicity," "persistence," and propensity to "bioaccumulat[e]" of the particular substances, and are to be developed "taking into account the best technical means available" (BTMA).²⁰⁰ Member states may, but need not, impose emission standards more stringent than the BTMA limit values warrant where ambient conditions require.²⁰¹

The Commission has succeeded in adopting daughter directives setting limit values for only a limited number [22 ELR 10125] of substances.²⁰² These directives establish limit values, as well as quality objectives discussed below, and deadlines for compliance. They typically apply only to "industrial plants," defined as plants "handling" the particular substances,²⁰³ though they also typically require member states to

draw up specific programmes to avoid or eliminate pollution from significant sources of these substances (including multiple and diffuse sources) other than sources of discharges subject to Community limit value rules or national emission standards.²⁰⁴

These daughter directives distinguish between existing and new sources.²⁰⁵ Typically, they contain an additional requirement that new sources meet standards reflecting BTMA when "necessary for the elimination of pollution" under Directive 76/464, or "for the prevention of distortions of competition."²⁰⁶ This requirement apparently applies without regard to (1) the qualifications included in the substantive test for limit values in Directive 76/464, as the qualifications are not specifically listed, and (2) whether a member state has chosen to regulate by quality objectives rather than limit values.

Secondly, Directive 76/464 creates a mechanism by which a member state may set the emission standards on the basis of the "quality objectives" set in the daughter directives, rather than on the basis of limit values.²⁰⁷ These quality objectives are to be set "principally on the basis on toxicity, persistence, and accumulation of the said substance in living organisms and in sediment, as indicated by the latest conclusive scientific data, taking into account the difference in characteristics between salt-water and freshwater."²⁰⁸ Thus, the framework directive allows member states to make emission standards less strict where the receiving water's quality and its assimilative capacity enable the quality standards to be met. In practice, only the United Kingdom has used this provision.

Because the Community's List I program is pollutant (and to a large degree industry) specific and has been implemented by daughter directives at a lethargic pace, one might expect that the List II regulatory system would be the workhorse of the Community's water pollution control program. Prior authorization is required for "[a]ll discharges" into the waters covered by the framework directive that are "liable to contain any" of the List II substances.²⁰⁹ Member states "shall establish programs [of] … implementation," in which they "shall" fix quality objectives for water and "set deadlines for [program] implementation."²¹⁰ Based on the quality objectives, "emission standards shall be laid down" in the authorizations.²¹¹ Summaries of the programs and their implementation "shall" be communicated to the Commission.²¹² Though lacking in procedural and substantive detail, this basic requirement for ambient water quality regulation of List II substances by member states, subject to Commission supervision, has been clear since 1976. But, as noted below, the program has been stillborn, and the Commission is undertaking Article 169 proceedings against all twelve member states for failure to implement the List II program.

DISCHARGES TO GROUNDWATER. The Groundwater Directive,²¹³ Directive 80/68, seeks to protect groundwater from contamination by blacklist and greylist substances.²¹⁴ It prohibits certain direct discharges of blacklist substances and imposes permitting requirements for other direct and indirect discharges.²¹⁵ Regarding blacklist substances, the Groundwater Directive requires member states to prohibit the direct discharge of these substances to groundwater; however, where groundwater is determined to be "permanently unsuitable" for other uses (especially domestic or agricultural), the member state may authorize direct discharge [22 ELR 10126] with certain safeguarding provisos.²¹⁶ As for the indirect discharge of blacklist substances, authorization is necessary for "any disposal or tipping for the purpose of disposal of [blacklist] substances which might lead to indirect discharge."²¹⁷ With respect to greylist substances, authorization is necessary for both direct discharges to groundwater²¹⁸ and for "the disposal or tipping for the purpose of disposal of greylist substances which might lead to indirect discharge."²¹⁹

Before granting either blacklist or greylist authorization, member states must conduct an investigation of "hydro-geological conditions" and "the risk of pollution and alteration of the quality of the groundwater,"²²⁰ and must ensure that the groundwater will "undergo the requisite surveillance."²²¹ The member state must "establish," as a result of the investigation, whether the discharge constitutes "a satisfactory solution from the point of view of the environment," apparently to be judged in light of the basic substantive obligations of article 3 of the directive.²²²

URBAN WASTE WATER. The Community has recently adopted an Urban Waste Water Treatment Directive.²²³ This directive will require (1) secondary treatment of municipal waste water;²²⁴ (2) prior authorization and pretreatment for industrial waste water discharges to municipal facilities;²²⁵ and (3) compliance of biodegradable industrial waste water discharges going directly to receiving waters with either otherwise applicable rules or applicable permit requirements.²²⁶ Municipalities will be required to establish collecting systems designed according to the "best technical knowledge not entailing excessive costs"; collecting systems of certain sizes will be required to subject to secondary treatment municipal waste water discharged to fresh water or to coastal waters.²²⁷ By 1994, industrial waste water (i.e., waste water "discharged from premises used for carrying on any trade or industry, other than domestic waste water and runoff rain water")²²⁸ entering collecting systems and municipal waste water treatment plants must be subjected to pretreatment requirements imposed either by rule or by specific authorization.²²⁹ These pretreatment requirements are to (1) protect the health of staff working in collecting systems and treatment plants; (2) ensure that treatment plants and associated equipment are not damaged; (3) ensure that the operation of the waste water treatment plant and the treatment of sludge are not impeded; (4) ensure that discharges from the treatment plants do not adversely affect the environment or prevent receiving water from complying with Community water quality standards; and (5) allow sludge to be disposed of safely to other media.²³⁰

IMPLEMENTATION AND ENFORCEMENT. Similar to the area of air pollution control legislation, the Commission's Environmental Implementation Report notes widespread noncompliance with water pollution control legislation.²³¹ The Commission recognizes that the regulatory systems adopted pursuant to Community directives differ among member states, largely because of the imprecise drafting of Community legislation (i.e., leaving much room for interpretation by member states) and the absence of common sampling requirements.

Member states have sought to implement water directives through administrative circulars subject to withdrawal or variance at the administrator's discretion, rather than through binding legal instruments.²³² Further, a number of member states have provided for improper variances or derogations from the requirements of directives, such as those for bathing water and drinking water.

According to the Commission, the most serious problems relate to the effective administration of the required regulatory systems.²³³ The Commission says it has no real information on member state application, and it has had to rely primarily on complaints, which have been particularly numerous regarding the Bathing Water and Drinking Water Directives. The Commission's discussion makes clear that there has been a widespread failure to develop the implementing plans and the necessary water quality standards required by the various water quality directives. The Commission believes that these standards are not being met in many cases. It estimates that 20 percent of those waters properly falling within the Bathing Water Directive do not meet the directive's standards, and notes that the drinking water MACs are not met in many member states. Moreover, the List II ambient water quality regulatory system has been largely ignored — not one member state has sent to the Commission their measures relating to water quality objectives and at least 10 member states have failed to submit their implementing programs. According to the Head of the Legal Unit of DG XI, the Commission is proceeding [22 ELR 10127] against all 12 member states under Article 169 for failure to implement this program properly.²³⁴

* WASTE MANAGEMENT — FRAMEWORK DIRECTIVE ON WASTE. The basic Community legislation on waste, the framework Directive 75/442 on Waste,²³⁵ which was adopted in 1975, has recently been revised substantially and made relatively more rigorous.²³⁶ The new requirements imposed by the directive amending Directive 75/442 on Waste are to be implemented in the member states by April 1993. Until the new requirements are implemented, the requirements of the unamended version of Directive 75/442 on Waste apply. Accordingly, this discussion examines the requirements of both the original and the amended versions.

DIRECTIVE 75/442 ON WASTE — PREAMENDMENT. The original Directive 75/442 on Waste does little more than create a Community framework for national permitting regimes. It creates a limited permitting requirement extending only to those handling the waste of third parties. It does not provide the detailed operational or waste management standards found in the U.S. Resource Conservation and Recovery Act (RCRA).²³⁷ These critical details are left to the member states.

The original directive applies to "waste," defined as a substance that "the holder disposes of or is required to dispose of pursuant to provisions of national law in force."²³⁸ It requires the member states to take "the necessary measures" to ensure that waste is disposed of without endangering health or the environment, and in particular:

* without risk to water, air, soil and plants and animals,

* without causing a nuisance through noise or odors, and

* without adversely affecting the countryside or places of special interest.²³⁹

To ensure compliance with these health and environmental protection measures, the directive imposes limited permitting requirements. Permits are required only for an "installation treating, storing or tipping waste on behalf of third parties …."²⁴⁰ Undertakings that store, tip, or treat their own waste (whether on-site or off-site), and undertakings that collect or transport waste are not required to be permitted, though they are supposed to be "subject to supervision" by national authorities.²⁴¹

The original Directive 75/442 on Waste outlines the following information that permits must include:

* the type and quantity of the waste to be treated,

* general technical requirements,

* precautions to be taken,

* the information to be made available at the request of the competent authority concerning the origin, and

* destination and treatment of waste and the type and quantity of such waste.²⁴²

Beyond this broad-gauged listing of subjects to be covered in a permit, the directive supplies no substantive or technical standards, and no monitoring and reporting requirements.

AMENDED DIRECTIVE 75/442 ON WASTE. The amendments to Directive 75/442 on Waste²⁴³ (1) seek to provide a more specific definition of "waste" in order to bring about more consistent national implementation, and (2) impose relatively more expansive permitting and operational requirements. Still, the amended directive does not go much beyond erecting a more extensive permitting structure, within which the critical elements of operational, technical, monitoring and reporting requirements are left to national determination. It should be noted, however, that the Commission has recently proposed a directive on the landfilling of waste, which, in its present form, would go a long way in imposing operational, technical, monitoring, and reporting requirements on landfilling.²⁴⁴ The amended directive applies to "waste," which is defined as a substance appearing on a list to be prepared by the Commission, and which "the holder [22 ELR 10128] discards or intends or is required to discard."²⁴⁵ In preparing the list of wastes, the Commission is to nominate specific materials from broad categories provided in an annex to the amended directive. The categories from which the Commission may draw include the following, inter alia: (1) production residues; (2) off-specification products; (3) substances that no longer "perform satisfactorily"; (4) spilled materials; and (5) a residual category for "[a]ny materials, substances or products which are not contained in the [other] categories."²⁴⁶ Thus, the field of application of the directive will be determined by the Commission through the listing process.²⁴⁷

As with the original directive, the amendments enjoin the member states to take "the necessary measures" to ensure that waste is recovered or disposed of without endangering health or the environment, and in particular:

* without risk to water, air, soil and plants and animals,

* without causing a nuisance through noise or odors, and

* without adversely affecting the countryside or places of special interest.²⁴⁸

The amendments further require the prohibition of the "abandonment, dumping or uncontrolled disposal of waste."²⁴⁹

The amended directive imposes an expanded permitting requirement for broadly stated undefined categories of disposal and recovery operations, but also creates a mechanism under which member states may exempt facilities handling their own waste disposal on-site and facilities engaged in recovery operations. More specifically, permits are required for disposal operations, such as landfilling, discharge to a "water body,"²⁵⁰ incineration,²⁵¹ and storage ("excluding temporary storage, pending collection, on the site where [the waste] is produced").²⁵² Undertakings that carry out recycling or recovery operations are also to obtain permits.²⁵³ However, the amendments allow member states to exempt from permitting requirements, under certain conditions and pursuant to general rules, (1) "undertakings carrying out their own waste disposal at the place of production," and (2) "undertakings that carry out waste recovery."²⁵⁴ These exempted facilities must be registered with environmental protection authorities. Further, undertakings that "collect or transport waste on a professional basis or which arrange for the disposal or recovery of waste on behalf of others (dealers or brokers)" must also be registered, unless they are already subject to permitting.²⁵⁵

The amended directive, like the original directive, makes some general provisions for the content of permits. The disposal permits are to cover the following:

* the types and quantities of waste,

* the technical requirements,

* the security precautions to be taken,

* the disposal site, and

* the treatment method.²⁵⁶

Oddly, it does not similarly define the content of a recovery operation permit.²⁵⁷ Further, though the amended directive requires that disposal and recovery operations comply with recordkeeping requirements relating to the quantity, nature, origin, destination, and treatment methods employed,²⁵⁸ it does not otherwise provide operational and technical standards.

HAZARDOUS WASTE. Directive 78/319 on Toxic and Dangerous Waste²⁵⁹ applies to waste containing or contaminated by listed substances, in such quantities or concentrations as to constitute a risk to health or the environment. There are 27 substances listed as "toxic and dangerous," including, in particular, asbestos, cadmium, solvents and pharmaceutical products, ethers, mercury, and tars. The directive requires prohibition of the "abandonment and uncontrolled discharge, tipping or carriage of toxic and dangerous waste, as well as consignment to [unpermitted facilities]."²⁶⁰

The directive also establishes a permitting requirement for facilities that carry out, whether for third parties or themselves, the storage, treatment, or deposit of toxic [22 ELR 10129] and dangerous wastes.²⁶¹ These permits are to cover the following:

* the type and quantity of waste;

* the technical requirements;

* the precautions to be taken;

* the disposal site(s); and

* the methods of disposal.²⁶²

The directive provides no further substantive or technical standards for the handling or disposal of toxic and dangerous waste.

The Toxic and Dangerous Waste Directive also creates a manifesting requirement when toxic and dangerous waste is "transported in the course of disposal."²⁶³ The manifest form must contain details on the nature of the waste, the identification of the generator or previous holder, and the location of final disposal.

The Toxic and Dangerous Waste Directive is currently in the process of being amended, or rather replaced, as part of the same legislative effort as the substantial amendments to Directive 75/442 on Waste. A proposed Hazardous Waste Directive,²⁶⁴ which would replace the Toxic and Dangerous Waste Directive, would contain an encompassing definition of "hazardous waste" and would impose more extensive permitting and registration requirements.

POLYCHLORINATED BIPHENYLS (PCBS) & POLYCHLORINATED TERPHENYLS (PCTS). The Directive on the Disposal of Polychlorinated Biphenyls (PCBs) and Polychlorinated Terphenyls (PCTs)²⁶⁵ requires member states to prohibit "the uncontrolled discharge, dumping and tipping of PCB [defined to mean PCBs, PCTs and mixtures of them] and of objects and equipment containing such substance."²⁶⁶ It also requires that member states make compulsory "the disposal of waste PCB and PCB contained in objects and equipment no longer capable of being used."²⁶⁷ It further requires member states to designate the installations "authorized for purposes of disposing of PCB on their own account and/or on behalf of third parties."²⁶⁸ Persons possessing PCB who are not authorized to dispose of it are to "hold it available for disposal" by authorized installations.²⁶⁹

TITANIUM DIOXIDE. Community law also provides special provisions relating to the handling and disposal of titanium dioxide, a material used as a pigment. The Directive on Waste from the Titanium Dioxide Industry²⁷⁰ applies a distinct permitting requirement for waste arising from "the titanium dioxide manufacturing process."²⁷¹ Under the directive, prior authorization is required for the "discharge, dumping, storage, tipping and injection" of titanium dioxide waste; prior authorization must be obtained from both the member state in whose territory the waste is produced and the member state in whose territory the waste is discharged, dumped, stored, tipped, or injected.²⁷² The directive further specifies certain conditions for the granting of an authorization,²⁷³ the contents of authorizations,²⁷⁴ and monitoring requirements.²⁷⁵

WASTE OILS. The Directive on Disposal of Waste Oils²⁷⁶ requires member states to ensure "the safe collection and disposal of waste oils."²⁷⁷ Waste oils are defined as "any mineral-based lubrication or industrial oils which have become unfit for the use for which they were originally intended, and in particular used combustion engine oils, and gearbox oils, and also mineral lubricating oils, oils for turbines and hydraulic oils."²⁷⁸

Member states are to prohibit any discharge of waste oils to sea, surface and ground water and to drainage systems; any deposit or discharge of waste oils "harmful to the soil"; and any air pollution from processing of waste oils that "exceeds the level prescribed by existing provisions."²⁷⁹ To ensure compliance with these requirements, the directive creates registration and permitting requirements. Under the directive, facilities that collect waste oils must be registered,²⁸⁰ and facilities that dispose of waste oils must be permitted.²⁸¹

[22 ELR 10130]

SHIPMENT OF WASTE. The Directive on Transfrontier Shipments of Hazardous Wastes²⁸² regulates the movement of waste by creating prior notification, manifesting, and packaging requirements for hazardous waste shipments crossing member state boundaries.²⁸³ The directive applies to the transfrontier shipment of "hazardous waste," where that term includes PCBs and "toxic and dangerous waste," as defined in the Toxic and Dangerous Waste Directive.²⁸⁴ Prior to shipping hazardous wastes,²⁸⁵ the shipper must, using a "consignment note," notify all member states whose borders are to be crossed during the shipment. The consignment note must provide the member states with "satisfactory information" on the following:

* "the source and composition of the waste, including the producer's identity, and in the case of waste from various sources, a detailed inventory of the waste and, where such information exists, the identity of the original producers";

* "the provision made for routes and insurance against damage to third parties";

* "the measures to be taken to ensure safe transport and, in particular, compliance by the carrier with the conditions laid down by the Member States concerned for the exercise of such transport operations"; and

* "the existence of a contractual agreement with the consignee of the waste, who should possess adequate technical capacity for the disposal of the waste…."²⁸⁶

Before the waste may be shipped, the shipper must receive acknowledgement of receipt of the notification from:

(1) the member state of destination;

(2) in the case of a shipment through the Community, the last member state through which the shipment is to pass; or

(3) in the case of a shipment from within the Community to a third state, the member state of dispatch.²⁸⁷

These member states must either acknowledge the proposal for shipment or object to it.²⁸⁸ If the member state chooses to acknowledge the proposed shipment, acknowledgement is to be entered on the consignment note and the note is to be forwarded to the waste shipper within one month of notification. If the member state chooses to object to the proposed shipment, the objection must be sent to the shipper within one month of notification and must be substantiated on the basis of "laws and regulations relating to environmental protection, safety and public policy or health protection which are in accordance with [Community law] or with international conventions on this subject concluded by the Member State concerned prior tonotification of this directive."²⁸⁹

Once acknowledgement is received, the waste shipper must complete the consignment note and send copies to the member states and third states concerned. The consignment note must accompany the shipment and must be completed and signed by all undertakings subsequently "involved in the operation." Within fifteen days of receiving the waste, the consignee (i.e., the person to whom the waste is shipped for disposal) is required to forward copies of a duly completed consignment note to the shipper, and to the member states and third states concerned.²⁹⁰

Under the directive's packing and labeling requirements, hazardous waste must be "properly packed" and containers [22 ELR 10131] must have "appropriate labels indicating, in addition to the nature, composition and quantity of the waste, the telephone number(s) of the person from whom instructions or advice may be obtained at all times during shipment."²⁹¹ Further, the hazardous waste must be accompanied by instructions to be followed in the event of danger or accident.²⁹²

IMPLEMENTATION AND ENFORCEMENT. Implementation and application of Community waste legislation has been no better than for air and water law. The Commission reports in its Environmental Implementation Report, for example, that the obligations in Directive 75/442 on Waste and in Directive 78/319 on Toxic and Dangerous Waste to prepare waste management plans have largely been ignored. With respect to the Toxic and Dangerous Waste Directive, only three member states have communicated complete plans.²⁹³

Similarly, the obligations in Directives 75/442 (waste), 75/439 (waste oils), 76/403 (PCBs), and 78/319 (toxic and dangerous waste) to send to the Commission reports every three years on national implementation have not been fulfilled. "Almost all of the member states have failed in their obligations to send such reports."²⁹⁴ To obtain information on implementation, the Commission sent a "detailed questionnaire" on these four directives, but only seven member states responded. According to the Commission, it is only through complaints, and sometimes petitions and parliamentary questions, that the Commission learns of national failures. "For example, it is frequently an individual — affected directly by nuisances from a poorly managed discharge or whose favorite bathing spot is polluted — who, frustrated by the inertia of the national administration, finishes by sending a complaint to the Commission."²⁹⁵

The Commission's Environmental Implementation Report concludes that the objectives of the waste directives, the elimination of wastes without risks to health or the environment, "is far from being achieved …. A reinforcement of national and Community control of the application of the Community waste legislation has become inevitable."²⁹⁶

* CHEMICALS. Chemical regulation was one of the first areas of environmental legislation pursued by the Community, though initially the motivations had more to do with the common market than with environmental protection. The first major initiative, adopted in 1967, erected a common Community system for the classification, packaging and labeling of dangerous chemical substances, the object being largely to minimize the impediments to sales of the substances across the Community.²⁹⁷ This basic legislation was modified in 1979 by the so-called Sixth Amendment to impose, as a precondition to the marketing of new "dangerous substances," a prior notification procedure that involves the preparation of technical dossiers to provide information on the substances' characteristics. Pursuant to the Sixth Amendment, the Commission has compiled a list (known as Einecs) of "existing" substances — substances already on the market before September 18, 1981;²⁹⁸ it has also maintained a list (known as Elincs) of "new," notified substances, which classifies the substances according to their risk characteristics.²⁹⁹

The Community adopted, as late as 1988, analogous requirements for the classification, packaging and labeling of dangerous preparations (i.e., mixtures of dangerous substances), and has imposed specific requirements on certain harmful materials, such as solvents, paints, varnishes, printing inks, adhesives, and pesticides. It has recently adopted material safety data sheet rules. It has also extended its regulation to include the marketing and use of certain dangerous substances and preparations. In a related initiative falling beyond the scope of this Article, the Community has recently ventured into the field of biotechnology, with two directives designed to control the handling and release of genetically modified organisms.³⁰⁰

As for the future, while the Community is considering amendments to the legislation on the classification, packaging, and labeling of dangerous substances, which would apply primarily to "new" substances, perhaps the most important proposal relates to "existing" chemical substances, those which were exempted from notification underthe Sixth Amendment. To fill this perceived lacuna in the Community's chemical regulation, the Commission has recently submitted a proposal that would be applicable to these 100,000-odd existing chemical substances listed in Einecs. This proposed regulation would impose on manufacturers and importers of these existing substances significant data reporting obligations for the assessment of risk characteristics of those substances.³⁰¹ The risk characteristic information generated by this proposal would, so it is thought, enable the Commission to propose further legislation within the framework of the existing directive on the marketing and use of dangerous substances and preparations, or other Community legislation.³⁰²

DANGEROUS SUBSTANCES AND PREPARATIONS. Directive 67/548 on Classification, Packaging and Labeling of Dangerous Substances,³⁰³ first adopted in 1967, sets forth the [22 ELR 10132] basis for a group of directives and regulations concerning the marketing and management of dangerous chemicals. The directive establishes a procedure for classifying substances³⁰⁴ by degree of hazard and nature of risk, and establishes requirements for their packaging and labeling.³⁰⁵ Amendments to the directive, specifically the Sixth Amendment to the Directive on Classification, Packaging, and Labeling of Dangerous Substances,³⁰⁶ incorporate elaborate testing and notification requirements for new substances before they can be "placed on the market."³⁰⁷ As implemented, at least in some member states such as the Netherlands, this notification obligation extends to all substances, regardless of degree of danger. The rationale for the encompassing notification requirement is that one cannot know whether a new substance is dangerous until the Sixth Amendment's testing has been carried out.

At least 45 days before a substance is placed on the market, the Community manufacturer or importer of the substance is required to submit a proper notification to the member state in which the substance is manufactured or imported;³⁰⁸ only a manufacturer or importer established in the Community can be the "notifier."³⁰⁹ The member state receiving the notification serves as an agent of the other member states in reviewing the notification, receiving comments on the notification from the other member states, and allowing the substance to be marketed in the Community. Once a substance has been properly notified in the country of origin or first importation, it may be marketed in the other member states.

The notification must include the following: (1) a technical dossier containing information necessary for evaluating foreseeable risks the substance may entail for man and the environment and the results of tests and studies defined in Annex VII of the directive; (2) a declaration regarding the negative effects of the substance for various uses envisaged; (3) the proposed classification and labeling of the substance; and (4) proposals for recommended safety precautions in the use of the substance.³¹⁰ Testing is required to develop the technical dossier of information (called the base set) regarding the chemical's identity, physicochemical properties, potential toxicological and ecotoxicological effects, use, and disposal. The testing requirements are set forth in Annexes VII and VIII of the directive. Annex VII defines the base set of information required for the technical dossier. Annex V sets forth the methods for determining the toxicity, ecotoxicity, and physical chemical properties of the substance.

Member states are required to send a copy or a summary of the notification dossier to the Commission, which must then forward the dossier to the other member states.³¹¹ Member states then have an opportunity to consult either the member state that received the original notification or the Commission regarding specific details of the data in the dossier and to suggest that further information be provided or additional tests performed.

Beyond this vehicle for collaboration between the other national authorities with the notified member state, the other national authorities have only limited recourse should they disagree with the conclusions of the notified member state concerning the classification, packaging and labeling of the notified substance. The directive provides that a member state, where it has "detailed evidence that a substance … constitutes a hazard for man or the environment BY REASON OF ITS CLASSIFICATION, [22 ELR 10133] PACKAGING OR LABELLING," may "provisionally prohibit" the sale of the substance or may subject it to "special conditions" within its territory.³¹² The member state must immediately inform and give reasons for its decision to the Commission and the other member states. At this point, there are two possibilities. The Commission, on consultation with the member states, may take "the appropriate measures."³¹³ Alternatively, if the Commission considers that "technical adaptations" to the directive itself are necessary, those adaptations shall be adopted pursuant to the directive's provisions. In that case, the member state that has imposed the "safeguard measures" may maintain those measures until the technical adaptations enter into force.³¹⁴

Concurrent with this broadly reaching legislative initiative on the classification, packaging, and labeling of dangerous substances, the Community has adopted directives on preparations generally³¹⁵ and on specific preparations. These directives on specific preparations include one on solvents,³¹⁶ one on paint, varnishes, printing inks, and adhesives,³¹⁷ and another on pesticides.³¹⁸

The Community has extended its regulation to include not just the classification, packaging, and labeling of dangerous substances and preparations, but also the marketing and use of dangerous substances and preparations. Directive 76/769 on Marketing and Use of Dangerous Substances³¹⁹ creates a framework requiring member states to restrict or ban the marketing and use of dangerous substances and preparations listed in the directive's Annex I.³²⁰ The Annex I list includes PCBs and PCTs; monomer vinyl chlorides; trichloroethylene, tetrachloroethylene, and carbon tetrachloride; benzene; and asbestos.

SAFETY DATA SHEETS. In March 1991, the Community adopted a directive³²¹ imposing a safety data sheet requirement and providing an unusually narrow window for national implementation. National measures implementing the directive were required as of May 30, 1991, and are to have become effective by June 8, 1991.³²² Although the directive's title and recitals suggest that it applies to dangerous preparations covered by Directive 88/379 on the approximation of laws, regulations, and administrative provisions of the Member States relating to the classification, packaging, and labeling of dangerous preparations,³²³ its scope appears broader — it appears to apply in some respects to both preparations and substances. The directive states, "Any person … responsible for placing a DANGEROUS SUBSTANCE or PREPARATION on the market … shall supply the recipient who is an industrial user of the substance or preparation with a safety date [sic] sheet containing [the prescribed information]."³²⁴ The directive provides an exception to the safety data sheet where the dangerous substance or preparation is "offered for sale to the general public."³²⁵ For this exception to be available, the general public must be "furnished with sufficient information to enable users to take the necessary measures as regards the protection of health and safety."³²⁶ Nonetheless, even where the dangerous substance or preparation is offered to the general public, if an industrial user requests, a safety data sheet must be provided.³²⁷

IMPLEMENTATION AND ENFORCEMENT. While the Commission's environmental Implementation Report reveals the same frustration with a national implementation in the area of dangerous substances as in other domains, the parade of failures is somewhat less extensive. The Commission notes that "several member states have experienced difficulties in following the rhythm of implementation imposed by the different adaptations to technical progress of Directive 67/548 …."³²⁸ The Commission explains, however, that it has made special efforts with [22 ELR 10134] respect to the dangerous substances legislation — it has regularly held meetings with national "experts" during which the practical and legal problems of applying the Community legislation are discussed.³²⁹

I. CIVIL LIABILITY IN THE COMMUNITY

The Community's environmental regulatory system is, through accretion, increasing in sophistication and rigor, and is raising many of the planning and compliance issues faced by businesses operating in the United States. More recently, Community civil liability developments are raising environmental liability risks of the sort U.S. practitioners have come to know since the advent of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA or Superfund).³³⁰ Presently under consideration in the Community legislative process is an amended version of the proposed Directive on Civil Liability for Damage Caused by Waste.³³¹ This proposal would hold "producers" of waste strictly and jointly and severally liable for harms (i.e., personal injuries, property damage, and environmental impairment) arising from the waste until the waste is turned over to an authorized waste disposal installation; at that point, the disposal installation would assume the risk of strict liability. Where the producer cannot be identified, the directive would hold the person in "actual control" strictly liable, thereby creating substantial potential landowner liabilities and reinforcing the need for environmental due diligence investigations in the context of acquisitions. "Common interest groups" would have the right to bring actions to compel cleanup in the case of environmental impairment and, oddly enough, would be able to bring or join in actions for personal injury and property damage. Producers and disposal installations would be required to obtain insurance or other financial security for potential liability under the directive.

The directive's civil liability scheme is intended to be prospective only — the directive, by its terms, does "not apply to damage or injury to the environment arising from an incident which occurred before the date on which its provisions are implemented."³³² There are, nonetheless, serious questions about the retroactivity of the directive, brought about by the construction of the term "incident."³³³ Should "incident" be construed to include leaching long after disposal of waste, much waste produced and disposed of prior to implementation will create "incidents" after implementation of the directive. Even barring the broad construction of "incident," liability may be imposed retroactively on a producer of waste. Because the definition of producer is not limited to a certain time frame, a person who produced and transferred control of the waste before implementation could be liable for harms due to incidents occurring after implementation and during control of the waste by another. This may lead to a slippage between liability and the ability to control the waste. The producer may not know where the waste is and have no ability to avoid an environmental harm, yet may remain liable for harms that the waste may cause. Meanwhile, the person best situated to avert the harm, the one in control of the waste, would escape the directive's liability if the producer can be identified.

While this civil liability proposal would, as a general matter, expand the exposure of manufacturers and landowners in the Community to civil liability, it would not displace existing national civil liability law. Whether or not a person could be liable under the national laws adopted to implement this proposal, civil liability may still apply under other national law provisions — provisions that vary widely from country to country. Indeed, at the national level, there have been important civil liability developments. For example, Germany has recently passed a new liability law, which took effect in January 1991, that covers third-party liability (i.e., it does not apply to on-site cleanup, except to the extent that a subsequent landowner might be able to sue a prior owner of the facility at closure for property damage). Also, German courts have been applying LAND police law powers to create a Superfund-like cleanup liability.

In the Netherlands, the 1982 Dutch Interim Act on Soil Cleanup requires provincial governments to adopt annual cleanup programs for soil that is contaminated to such a degree that serious danger exists for public health or the environment. The 1982 Act empowers the Environment Minister to order the owner of contaminated land to limit, eliminate, or remedy the cause of contamination. Ministerial guidelines issued under the 1982 Act confirm the Environment Minister's authorization to recover cleanup expenses from anyone who, through tortious behavior, caused soil contamination. Further, the 1986 Dutch Act on Soil Protection provides that, by General Order in Council, strict liability for soil damage may be imposed.

In Belgium, the Law of July 22, 1974 on Toxic Wastes, in creating a toxic tort and cleanup liability system, holds strictly liable the producer of toxic wastes for all damages those wastes may cause, even during final disposal, and grants the government the power to undertake cleanup of a contaminated site and to seek reimbursement. Also, under traditional civil code principles, the possessor of land may be held strictly liable for damages to third parties resulting from contamination of the property.

This brief listing of national law civil liability provisions is by no means comprehensive — similar civil liability provisions or proposals can be cited in the U.K. and France, as well as others. Liability may arise under established [22 ELR 10135] common law and civil code principles,³³⁴ and, increasingly, member states are adopting legislation (often strict liability) specifically to address environmental harms.

In light of the rapidly developing body of civil liability law and, in particular, in view of the proposed Directive on Civil Liability for Damage Caused by Waste (which raises some of the same issues for business transactions as Superfund), an objective analysis indicates that environmental risks should now be carefully considered in transactions and operations in Europe. While until recently environmental risks have often not been considered carefully in the context of transactions, this situation appears to be changing; assessment of environmental risks is increasingly an integral part of European business transactions, as it is in the United States. However, this change is developing in Europe differently than it did in the United States.

The need for assessment of environmental risks in business transactions in the United States was brought on suddenly with the 1980 enactment of CERCLA. Superfund, a retroactive civil liability scheme, marked a dramatic departure from the previous situation. It went beyond traditional tort law to hold the owner of property liable for cleanup even if the on-site contamination created no harm to third parties and their property. By changing the duties of ownership and attaching new liabilities to property, the law changed the real value of property. With the enactment of Superfund, contaminated sites across the United States became burdened with potential cleanup liabilities — liabilities that in some instances exceed what would otherwise have been the value of the property. These property value changes in turn required changes in the way business transactions were executed. The full consequences of the change in the legal framework and the resulting commercial implications were not generally understood at the outset, and the market took six years or more to adapt.

By contrast, in Europe, the market may be leading the law in recognizing and reacting to the risks created by environmental problems. Two factors suggest this conclusion. First, market actors in Europe are well aware that the environment is a high profile issue in Europe today and that corporations that ignore environmental issues may do so at their peril. Indeed, many businesses perceive that their "environmentally clean" image is important to their ability to sell their products. Second, businesses in Europe viewing existing and proposed civil liability schemes, including the proposed Directive on Civil Liability for Damage Caused by Waste, have the precedent of the American experience from which to learn. Many businesses, most particularly those with assets in the United States, are sensitive to the nature and size of environmental liabilities and are knowledgeable about means of assessing and minimizing associated risks.

Astute businesses in Europe, recognizing both the public perception that property contamination problems in Europe are significant and the public expectation that these problems must be addressed, are likely to conclude that effective action will, at some point, be taken and that the need for cleanup will ultimately have a very direct effect on property values and thus on company balance sheets. As that recognition occurs, the market may well quickly change and demand assessment of environmental risks in business deals, even if new civil liability laws are not always in place and old ones not yet effectively applied. No purchaser of property or businesses will want to be left "holding the bag" when the law finally does change and forces property devaluation. Further, banks may come to this conclusion even sooner than other businesses, and they may thus force changes in the market through conditions for lending money.

IV. CONCLUSION

As the European Community's environmental protection legislation rapidly becomes more extensive and rigorous, it has become necessary to understand the structure of Community environmental law in order to deal with environmental issues in the member states. Community law cannot be regarded independently of member state law. Unlike in the United States where state environmental law is often a reiteration of independently applicable federal requirements, in the Community there are often wide differences between the Community legislation (which usually does not apply directly to regulated parties) and the directly applicable member state law. Nonetheless, Community law does sometimes impose obligations of real and practical importance independent of national law, and it is increasingly becoming the framework within which member states' systems must fit. Even member states with elaborate existing environmental protection regimes are finding that they must modify their legal systems to conform to the Community structure — for example, the Netherlands has had to recast its water legislation to conform to Community concepts, and Germany has had to reform its plant authorization procedures to comply with the Community's environmental impact assessment directive. This growth of a comprehensive Community environmental framework appears certain to continue, particularly as the Community progresses toward the ideals of integration and an internal common market without frontiers.

1. SEE Huitieme rapport au Parlement Europeen sur le controle de l'application de droit Communitaire — 1990, Annexe C, Controle de l'application des Directives environmentales par les Etats Membres, O.J. C __ (forthcoming 1991) [hereinafter Environmental Implementation Report] (passages cited in this Article have been translated by the authors).

2. Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 11 [hereinafter Treaty].

3. The Treaty provides that the Commission is to

* ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied;

* formulate recommendations or deliver opinions on matters dealt with in this Treaty, if it expressly so provides or if the Commission considers it necessary;

* have its own power of decision and participate in the shaping of measures taken by the Council and by the European Parliament in the manner provided for in this Treaty;

and

* exercise the powers conferred on it by the Council for the implementation of the rules laid down by the latter.

ID. art. 155.

4. ID. arts. 145, 149.

5. Harmonization measures are laws designed to remove the nontariff trade barriers created by inconsistent national standards, the ultimate object of these laws being the establishment of the Community's internal market.

6. SEE Treaty, SUPRA note 2, art. 149, para. 2 (describing the cooperation procedure). See INFRA notes 12-15 and accompanying text for a discussion of the two legislative procedures.

7. SEE ESPECIALLY ID. arts. 169 (Treaty infringement procedures against a member state brought by the Commission), 170 (Treaty infringement procedures against a member state brought by another member state), 173 (actions challenging the competence of Community institutions to act), 177 (preliminary rulings on Community law at the request of national courts).

The Community created in 1988 the Court of First Instance to deal with the burgeoning caseload of the Court of Justice. SEE Decision 88/591 establishing a Court of First Instance of the European Communities, O.J. L 319/1 (Nov. 25, 1988). The Court of First Instance, which consists of 12 judges and sits in chambers of three and five judges, hears cases (1) involving employment issues between Community institutions and their servants; (2) concerning the exercise of specified powers under the European Coal and Steel Community Treaty; and, most importantly, (3) relating to Community competition law decisions addressed to a person or of direct and individual concern to that person. ID. art. 3. Appeals are to the Court of Justice on points of law. Although the Court of First Instance is assuming an increasingly important role in competition matters and may some day have broader jurisdiction, it is presently irrelevant in environmental matters.

8. Treaty, SUPRA note 2, arts. 165-166.

9. ID. It has been explained that "[t]he function of the Advocates-General is modelled on that of the COMMISSAIRE DU GOUVERNEMENT in the French COUNSEIL D'ETAT. The task of the Advocates-General is of great importance, particularly as their impartial submissions on law and on the facts form an extremely valuable basis on which the Court … can arrive at its judgment." P. KAPTEYN & P. VERLOREN VAN THEMAAT, INTRODUCTION TO THE LAW OF THE EUROPEAN COMMUNITIES 145-146 (2d ed. 1989) (citations omitted).

10. Treaty, SUPRA note 2, art 167.

11. For a brief treatment of the failure of member states to implement Community law, the Court's inability to impose sanctions, and proposals to amend the Treaty to enable the Court to impose sanctions, see POLICING EUROPE'S SINGLE MARKET: LAWS UNTO THEMSELVES, ECONOMIST, June 22, 1991, at 84.

12. The choice of legislative basis has of late become an important constitutional question in the ongoing power struggle among Community institutions. Befooe the adoption of Article 100a, which provides qualified majority voting for harmonization measures, the consultation procedure was used for all Community measures. With the adoption of Article 100a, providing for two readings in the Parliament and qualified majority voting in the Council, however, this choice of legal basis has become important politically, since choosing Article 100a increases the power of the Commission and especially the Parliament vis-a-vis the member states in the Council.

It is against this background that the European Court of Justice recently decided the "Titanium Dioxide Case," Commission v. Council, Case 300/89, __ E.C.R. __ (June 11, 1991). In this case, the Commission had proposed a directive intended to regulate environmental aspects of the operation of titanium dioxide plants. It had proposed this directive under Article 100a. The Council, despite the objections of the Commission and the Parliament, changed the basis of the proposed directive to Article 130s (i.e., the environmental protection legal basis requiring the consultation procedure) and adopted the directive in 1989 on a unanimous vote. In a typically allusive and illusive opinion, the Court concluded that the change of legal basis by the Council was improper and annulled the directive.

According to the Court, the choice of the legal basis cannot depend only on the opinion of a Community institution, but must be based on "objective elements susceptible to judicial control." ID. para. 10. Among these elements are the purpose and contents of the legislation. In the instance of the 1989 titanium dioxide directive, the purpose and contents concerned, in an inseparable fashion, protection of the environment and the elimination of disparities in the conditions of competition. ID. para. 13. Thus, it appeared that both Articles 130s on environmental protection and 100a on harmonization were appropriate; but, as the legislative procedures of the two differ, it was not possible to use both legal bases. What appears to have been dispositive to the Court in deciding which basis was appropriate was not so much the purpose and content of the directive, but the "ELEMENT ESSENTIEL" of the Parliament in the cooperation procedure under Article 100a. That is, by changing the legal basis to Article 130s, the Council undermined the Parliament's "essential" role in the legislative process.

It is difficult to assess the full implications of this important but somewhat cryptic decision. At a minimum, it appears to strengthen the role of the Parliament, the "greenest" of Community institutions, at the expense of the Council, often the most reluctant of Community institutions in environmental matters, and may over time result in more extensive Community environmental law.

13. Treaty, SUPRA note 2, arts. 100, 235, 130s.

14. ID. arts. 100a (prescribing the cooperation procedure for measures for the approximation of laws), 149 (describing the cooperation procedure).

15. SEE ID. art. 149, as amended.

16. The Community also adopts decisions, which set out rulings specific to particular member states, companies, and individuals, and are binding on those to whom they are addressed. Further, the Community uses recommendations and opinions for nonbinding Community views, often as a means of encouraging throughout the Community conduct thought to be desirable. SEE ID. art. 189.

17. ID. art. 189 ("A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."). As a practical matter, some national measures may nonetheless be necessary to achieve effective implementation of a regulation, much as administrative regulations often need to be promulgated at the federal level in the United States to give effect to laws passed by Congress.

18. Politi SAS v. Ministry of Finance of the Italian Republic, Case 43/71, 1971 E.C.R. 1039, 1048.

19. SEE GENERALLY Wagenbaur, THE EUROPEAN COMMUNITY'S POLICY ON IMPLEMENTATION OF ENVIRONMENTAL DIRECTIVES, 14 FORDHAM INT'L L.J. 455, 456-61 (1991) [hereinafter Wagenbaur].

Member states, in many instances, have sought to justify their failure to implement on the grounds of constitutional (e.g., national government claiming that it lacks jurisdiction), political (e.g., parliamentary crises preventing adoption of necessary laws) or economic reasons. The Court has consistently rejected these justifications. SEE, E.G., Commission v. Belgium, Case 290/89, __ E.C.R. __ (June 11, 1991) (stating that Belgium could not, because of internal constitutional or economic problems, avoid its obligations to implement Directives 75/440 on the quality required of surface water intended for the abstraction of drinking water, and 79/869 on methods of measurements and frequencies of sampling and analysis of surface water intended for theabstraction of drinking water); Commission v. Belgium, Cases 227 to 230/85, 1988 E.C.R. 1, 11.

20. Commission v. Belgium, Case 102/79, 1980 E.C.R. 1473 (condemning Belgium for failing to implement 12 different directives).

21. ID. at 1486.

22. ID. SEE ALSO Commission v. Germany, Case 361/88, __ E.C.R. __ (May 30, 1991) (declaring that implementation of a directive by way of an administrative circular, which was in itself not obligatory and which could be varied at any time and in individual cases, was not sufficient); Commission v. Germany, Case 59/89, __ E.C.R. __ (May 30, 1991) (same); Commission v. Netherlands, Case 97/81, 1982 E.C.R. 1819, 1833; Commission v. Netherlands, Case 96/81, 1982 E.C.R. 1791, 1804-05.

23. Article 189 of the Treaty specifically states that directives are "binding" on the member states.

24. Case 148/78, 1979 E.C.R. 1629, 1642. In RATTI, Tullio Ratti, who had labeled certain dangerous substances in accordance with the requirements of Community directives, was prosecuted by the Italian government for failing to comply with conflicting Italian legislation. The Court held that Ratti could rely on the Community law in the prosecution against him and that Italy could not apply conflicting national law. In this case at least, the direct effects doctrine was limited to a DEFENSIVE use by an individual in a legal action against him by a national government. No Community law rights of action against member states for failure to implement adequately have yet been established. BUT SEE Lang, THE DEVELOPMENT OF EUROPEAN COMMUNITY CONSTITUTIONAL LAW, 25 INT'L L. 455, 462 (1991) (high ranking Commission official contending that the Court should determine that individuals have a Community law right of action for damages from a member state for injury caused by breach of a directly applicable rule).

25. SEE, E.G., Marshall v. Southampton and South-West Hampshire Area Health Auth., Case 152/84, 1986 E.C.R. 723, 748. See INFRA notes 32-34 and accompanying text for a discussion of MARSHALL.

26. Case 148/78, 1979 E.C.R. at 1651. However, as a legal advisor of the Commission's Legal Services has noted:

Notwithstanding national courts' tendency to recognize a directive's direct effects — with the sole exception of the French Conseil d'Etat — direct effect is not yet taken seriously by a number of administrative bodies in Member States. The direct effect of environmental protection directives has meant little practical improvement in their enforcement.

Wagenbaur, SUPRA note 19, at 458.

27. Case 8/81, 1982 E.C.R. 53.

28. O.J. L 145/1 (1977), as amended by Directive 78/583 on the harmonization of the laws of the Member States relating to turnover taxes, O.J. L 194/16 (1978) (extending from January 1, 1978, until January 1, 1979, the deadline for implementation).

29. BECKER, Case 8/81, 1982 E.C.R. at 71.

30. ID. at 73.

31. ID.

32. SEE Marshall v. Southampton and South-West Area Health Auth., Case 152/84, 1986 E.C.R. 723, 748-49; Commission v. Belgium, Case 102/79, 1980 E.C.R. 1473, 1487; Publico Ministers v. Ratti, Case 148/78, 1979 E.C.R. 1629.

33. Case 152/84, 1986 E.C.R. 723. In MARSHALL, Miss M.H. Marshall had been dismissed after her 62nd birthday pursuant to the Authority's general policy, which provided that women would be dismissed after 60 when they became eligible for a pension and men at 65 when they became eligible for a pension. Miss Marshall asserted that her dismissal at 62 was in violation of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, O.J. L 39/40 (1976), and that the provisions of the directive were directly applicable. The Authority and the British government argued, inter alia, that a directive can never impose obligations directly on individuals and that it can only have direct effect against a member state qua public authority and not against a member state qua employer. As an employer, so the argument ran, a state is no different from a private individual. The Court conceded that indeed "a directive may not of itself impose obligations on an individual and that a provision of a directive may not be relied upon as such against a person." MARSHALL, Case 152/84, 1986 E.C.R. at 749. But the Court went on to state that the capacity in which a member state was acting made no difference, and that "where a person involved in legal proceedings is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether employer or public authority." ID. The Court then concluded that article 5, paragraph 1 of the directive, which prohibits any discrimination on the grounds of sex with regard to working conditions, including conditions governing dismissal, was directly applicable and could be relied on to avoid the application of nonconforming national provisions. ID. at 750.

34. ID. at 749.

35. See Friends of the Earth Sue Over U.K.'s Drinking Water, MEALEY'S EUR. ENVTL. L. REP., June 12, 1991, at 12-13 (discussing Friends of the Earth v. United Kingdom, No. CO 1905/89, High Court).

36. Directive 80/778 relating to the quality of water intended for human consumption, O.J. L 229/11 (Aug. 30, 1980).

37. Costanzo v. Commune di Milano, Case 103/88, 1989 E.C.R. 1839 (local government administration obliged to apply a Community directive on public procurement in the place of conflicting Italian law); Becker v. Finanzamt Munster-Innenstadt, Case 8/81, 1982 E.C.R. 53; Publico Ministers v. Ratti, Case 148/78, 1979 E.C.R. 1629. Of particular importance in this line of jurisprudence is COSTANZO. That case involved Directive 71/305 concerning the coordination of procedures for the award of public works contracts, O.J. L 185/5 (Aug. 8, 1975), which provides certain requirements for public contracts to be awarded on the basis of the lowest price, except in specified circumstances. ID. art. 29. One of the circumstances is where the tender is "obviously abnormally low." Id. art. 29, para. 5. In such an instance the authority must examine the details of the tender and the tenderer may "furnish the necessary explanations." Id. Italian law, however, provided for a mathematical formula to determine when a tender was "abnormally low" and automatically excluded an abnormally low tender without providing a procedure for the tenderer to explain. A bid made by Costanzo under these Italian provisions was excluded because it was too low, Constanzo was not offered an opportunity to explain, and the Milan local authority awarded the contract to another, higher-priced bidder. Costanzo appealed the decision, arguing that the automatic exclusion provision of Italian law was in violation of Community law and that the Milan authority's decision should be set aside. The matter was brought before the Court of Justice for a preliminary ruling.

The Court ruled that the directive's provisions were sufficiently precise and unconditional to have direct effect, and a private party could rely on the directive, not just before national courts, but before all other state bodies, including local authorities. Conversely, all state bodies were obligated to apply the directive on their own initiative. In the Court's words, "administrative authorities, including municipal authorities, are under the same obligation as a national court to apply the provisions of … Directive 71/305/EEC and to refrain from applying provisions of national law which conflict with them." CONSTANZO, Case 103/88, 1989 E.C.R. at 1871.

38. SEE GENERALLY Kramer, THE IMPLEMENTATION OF COMMUNITY ENVIRONMENTAL DIRECTIVES WITHIN MEMBER STATES: SOME IMPLICATIONS OF THE DIRECT EFFECT DOCTRINE, 3 J. ENVTL. L. 39, 48 (1991).

39. CONSTANZO, Case 103/88, 1989 E.C.R. 1839. SEE ALSO Kramer, SUPRA note 38, at 50. According to Dr. Ludwig Kramer, Head of DG XI's Legal Unit, where such cases of damage to the interests of individuals occur, they must be settled in accordance with the principles of state liability, breach of official duty, etc.

40. Kramer, SUPRA note 38, at 52. With respect to liability of the government to an individual for damages resulting from failure to implement and apply Community law properly, Dr. Kramer has observed that:

It is interesting to note in this context that an unlawful administrative measure in Belgium, Greece, Spain, France and Italy constitutes a breach of official duty, regardless of fault. By contrast, negligence of an official has to be proved in Germany, Ireland, Luxembourg, the Netherlands, Portugal and the United Kingdom. Furthermore, it must also be shown in Germany, Greece, Ireland, Italy, Portugal and the Netherlands that the infringed provision was adopted specifically in the interests of an injured party; such proof is not required in the other member states.

ID.

41. Directive 80/779 on air quality limit values and guide values for sulfur dioxide and suspended particulates, O.J. L 229/30 (Aug. 30, 1980), as amended by Directive 89/427, O.J. L 201/53 (July 14, 1989). This directive was the subject of a recent Court of Justice case. In Commission v. Germany, Case 361/88, __ E.C.R. __ (May 30, 1991), the Court condemned Germany for failing to implement the directive by imposing general, legally binding standards to ensure compliance with the directive's mandatory air quality standards. That ambient air quality in fact met the directive's air quality standards in Germany was irrelevant. To satisfy the obligations under the directive, it is necessary to adopt precise, clear and "transparent" legal requirements, so that individuals may know their rights and obligations.

42. A national court might well determine that those standards have been unconditional and hence directly effective since April 1983, where the national government has failed to take adequate implementing measures. The argument for the earlier date of unconditionality would rely on article 3, which obligates member states to take the "appropriate measures to ensure that as from 1 April 1983" take the "appropriate measures to ensure that as from 1 April 1983" the air quality limits will be met. The difficulty with this argument would be that article 3 also recognizes that there may be areas where the standards might not be met, and provides the 1993 date when the standards must be met throughout the Community. More particularly, the directive provides a mechanism for notification of instances in which the air quality standards are exceeded and of "plans for the progressive improvement of the quality of air" in the areas exceeding the standards. It also states that the standards must be met April 1, 1993, "at the latest." The combination of these two provisions suggests that the member states are to take measures to achieve compliance by 1983, but that there may well be areas for which it is not able to attain compliance — i.e., the standards, though precise, might be thought to be conditional (at least where the member state has notified the Commission and submitted the corrective plans). As of April 1993, there can be no doubt about whether they are unconditional.

43. These standards could have a zoning-like implication affecting investment and expansion possibilities in a geographical area. If an area is already possessed of a number of industrial facilities that, pursuant to permits, emit sufficient pollutants to push the limits of the air quality standards, it may become impossible to get the emission permits necessary for a new facility or expansion of an existing facility.

44. Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, O.J. L 175/40 (July 5, 1985).

45. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 003-014.

46. SEE Kramer, SUPRA note 38, at 47 (asserting that "failure to comply with [the environmental impact statement directive's requirements may have] consequences (sanctions) in that the administrative decision on carrying out the project can be contested or declared invalid, or can lead to criminal, disciplinary [or] administrative consequences including liability for damages owing to breach of duty").

47. SEE Treaty, SUPRA note 2, art. 5:

Member States shall take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks.

They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.

48. Though the Treaty imposes on member states the primary responsibility for implementing and enforcing Community legislation, Article 155 also requires the Commission to "ensure that the provisions of this Treaty and the measures taken by the institutions pursuant thereto are applied." Thus, it is the Commission's responsibility to monitor and ensure the application of the Community legislation.

49. Treaty, SUPRA note 2, art. 169 (specifying infringement action procedure). Article 170 of the Treaty grants a similar right of action to member states, but this right is rarely used. Member states find it more politic to leave infringement actions to the Commission and to avoid direct confrontation with other member states.

50. SEE, E.G., Resolution on the implementation of the directive on the conservation of wild birds in the European Community, O.J. C 290/137 (Nov. 14, 1988); Resolution concerning the implementation in the Community of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, O.J. C 290/142 (Nov. 14, 1988); Resolution on the incorporation into national law of Community directives on the improvement of the quality of the air, O.J. C 94/151 (Apr. 11, 1988); Resolution on the implementation of European Community legislation to water, O.J. C 94/155 (Apr. 11, 1988); Resolution on lead in drinking water, O.J. C 94/158 (Apr. 11, 1988).

51. SEE, E.G., Seventh annual report to the European Parliament on Commission monitoring of the application of Community law — 1989, O.J. C 232/1, at 24-25 (Sept. 17, 1990); Report from the Commission on the application by the Member States of Community waste Directives 75/442/EEC, 75/439/EEC, and 78/319/EEC, Sec (89) 1455 final (Sept. 27, 1989) (available through Commission document service).

52. SEE Agence Europe, No. 5281, at 8 (June 23, 1990) and No. 5283, at 5 (June 27, 1990). SEE ALSO Communication from DG XI Commissioner Ripa di Meana to the Commissioner on guidelines for an environmental policy following the Dublin Summit, CAB VIII/69/90 GTD.

53. Environmental Implementation Report, SUPRA note 1.

54. Id. para. 14.

55. ID. para. 91.

56. ID. The Commission discusses the failings of each of the member states in implementing and applying specific Community environmental directives. The discussions of countries such as Spain, Italy, and Greece produce the expected criticisms of failure to implement and apply completely the Community obligations, but they also comment on the inadequacies of the bureaucratic structures assigned environmental responsibilities. Even Germany, which takes pride in the superiority of its environmental program, is criticized. The Commission notes delicately, "Because of its very detailed environmental legislation, the major concern of Germany is to modify that legislation the least possible when implementing Community directives. As a result, some important elements of Community directives are not entirely incorporated." ID. para. 41. The discussion of Germany proceeds to mention specific failures, such as, in the domain of waste, the German differentiation between recyclable wastes and wastes, which does not accord with Community legislation, and, in the area of nature protection, inadequacies in implementation of Community legislation on hunting and on special protection of zones for wild birds. ID.

57. ID.

58. ID. para. 94.

59. ID.

60. ID.

61. ID. (referring to the proposed Directive harmonizing and rationalizing of reports on the implementation of certain Directives relating to the environment, O.J. C 214/04 (Aug. 29, 1990), which would provide a legal basis for member states being required to complete a questionnaire prepared by the Commission).

62. Environmental Implementation Report, SUPRA note 1, para. 97.

63. ID. para. 99 (not indicating whether that standing might be before the national and/or Community judiciaries).

64. L. Kramer, Monitoring the Application of Community Directives on the Environment 8 ("The reasons for this are to be found in the multitude of infringements, the Commission's shortage of staff and money and the realization that the lengthy and cumbersome Article 169 [enforcement] procedure cannot systematically detect and eliminate all infringements of Community environmental Directives.") (unpublished and undated manuscript).

65. Standard complaint form issued by the Commission: "Complaint to the Commission of the European Communities for Failure to Comply with Community Law," O.J. C 26/6 (Feb. 1, 1989). A complaint need not be made out on the standard form, and it is sufficient that a complaint provide the Commission with enough information to identify issues and commence an investigation.

66. Article 169 provides:

If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.

Treaty, SUPRA note 2, art. 169. Individuals cannot compel the Commission to bring Article 169 proceedings. Alfons Lutticke GmbH v. Commission, Case 48/65, 1966 E.C.R. 19, 27.

67. P. KAPTEYN & P. VERLOREN VAN THEMAAT, SUPRA note 9, at 274 (citing Administrazione della Finanze dello Stato v. Essevi SpA, Cases 142 and 143/80, 1981 E.C.R. 1413, 1432-33).

68. Commission v. Italy, Case 51/83, 1984 E.C.R. 2793, 2804; Commission v. Italy, Case 7/69, 1970 E.C.R. 111, 117; Commission v. Italy, Case 31/69, 1970 E.C.R. 25, 33.

69. L. Kramer, SUPRA note 64, at 4 ("Should proceedings be subsequently initiated with the Court of Justice, the facts no longer need to be clarified; the dispute can confine itself to legal issues.").

70. The questions before the Court are usually confined to issues of law. In a preliminary ruling, fact issues are for the national court. In direct actions, the disputes have usually already been narrowed to points of law. As one commentator has noted, "[w]here it has been necessary to evaluate complex economic or accounting arguments, for example in competition cases [before the creation of the Court of First Instance], the Court has sometimes exercised its powers under Article 22 of the Statute of the Court of Justice to call an expert opinion. The same solution may well be adopted in environmental cases …." Minor, THE EUROPEAN COURT OF JUSTICE AS AN ENVIRONMENTAL TRIBUNAL, in CURRENT EC LEGAL DEVELOPMENT SERIES: ENVIRONMENT AND PLANNING LAW 271 (1991). Article 22 of the Statute of the Court of Justice provides: "The Court may at any time entrust any individual, body, authority, committee or other organisation it chooses with the task of giving an expert opinion."

71. Commission v. France, Case 167/73, 1974 E.C.R. 359, 368-69.

72. L. Kramer, SUPRA note 64, at 4.

73. O.J. L 169/1 (June 29, 1987) (adopted 1985, effective July 1, 1987).

74. The Community has on occasion turned to other powers. SEE, E.G., Directive 90/642 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables, O.J. L 350/71 (Dec. 14, 1990) (based on Article 43 of the Treaty); Directive 89/629 on the limitation of noise emission from civil subsonic jet aeroplanes, O.J. L 363/27 (Dec. 13, 1989) (based on Article 84 of the Treaty).

75. O.J. L 196/1 (Aug. 16, 1967).

76. Directive 70/157 on the permissible sound level and the exhaust system of motor vehicles, O.J. L 42/16 (Feb. 23, 1970).

77. Directive 70/220 on air pollution by gases from positive-ignition engines of motor vehicles, O.J. L 76/1 (Apr. 6, 1970).

78. Article 100 of the Treaty provides:

The Council shall, acting UNANIMOUSLY on a proposal from the Commission, issue directives for the approximation of such provisions laid down by law, regulation or administrative action in Member States as directly affect the establishment or functioning of the common market.

The European Parliament and the Economic and Social Committee shall be CONSULTED in the case of directives whose implementation would, in one or more Member States, involve the amendment of legislation.

Treaty, SUPRA note 2, art. 100 (emphasis added.)

79. Case 91/79, 1980 E.C.R. 1099. SEE ALSO Commission v. Italy, Case 92/79, 1980 E.C.R. 1115 (same issues and principles).

80. O.J. L 347/51 (Dec. 17, 1973).

81. Commission v. Italy, Case 91/79, 1980 E.C.R. at 1106.

82. Article 235 of the Treaty provides:

If action by the Community should prove NECESSARY TO ATTAIN, in the course of the operation of the common market, ONE OF THE OBJECTIVES OF THE COMMUNITY and this Treaty has not provided the necessary powers, the Council shall, acting UNANIMOUSLY on a proposal from the Commission and after CONSULTING the European Parliament, take the appropriate measures.

Treaty, SUPRA note 2, art. 235 (emphasis added).

83. Procureur de la Republique v. Association de defense des bruleurs d'huiles usagees, Case 240/83, 1985 E.C.R. 531, 549.

84. L. KRAMER, EEC TREATY AND ENVIRONMENTAL PROTECTION 3 (1990).

85. SEE, E.G., Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 11 ELR 20569 (1981) (upholding the constitutionality of the Surface Mining Control and Reclamation Act under the Interstate Commerce Clause, based on Congress' rational finding that surface mining affects interstate commerce).

86. One can question, in light of the addition of Article 100a, whether Article 100 continues to be of importance. Article 100a (which requires the cooperation procedure and qualified majority voting in the Council) provides that it applies "[b]y way of derogation from Article 100" for achieving the objectives set out in Article 8a, and may be used for adopting "measures" (i.e., directives and regulations) for those objectives. Article 8a, also added by the Single European Act, provides that the Community shall adopt measures "with the aim of progressively establishing the internal market over a period expiring on 31 December 1992 …." Article 100 (which requires the consultation procedure and unanimous voting in the Council) may be used for "directives for the approximation of [national law] as directly affect the establishment or functioning of the common market."

Thus, while Article 100a may be used for directives and regulations, Article 100 is confined to directives. More importantly, the adoption of measures is, from the Commission's perspective, easier under Article 100a, with its qualified majority in the Council, than under Article 100, with its unanimous voting requirement. On the other hand, in contrast to Article 100a, Article 100 does not have an "opt-out" clause for more restrictive national measures, and accordingly may serve as a useful legal basis where the policies to be achieved by the legislation require uniform, Community-wide measures, such as those set forth in Directive 67/548 on classification, packaging and labeling of dangerous substances, SUPRA note 75. It might be noted, however, that as Article 8a is drafted, it could be argued that after December 31, 1992, the Community should no longer be able to use Article 100a to adopt measures for "progressively establishing the internal market …." While the extinction of Article 100a may not have been the intent of drafters and would be a surprising result unlikely to be accepted by the Court of Justice, one could imagine the Council or a national government seeking to raise the argument.

87. Treaty, SUPRA note 2, art. 100a, para. 3.

88. ID. art. 100a, para. 4. A question of potentially great import is whether the opting-out procedure of Article 100a would allow member states to introduce NEW stricter measures, as distinct from continuing to enforce existing stricter measures. Article 100a says that a member state may "apply" national measures. Officials in DG XI's Legal Unit maintain that "apply" indicates that member states may continue to enforce stricter measures existing at the time of a directive's adoption under Article 100a, but may not introduce new measures. These officials draw support from the contrast with the analogous provision in Title VII (discussed INFRA text accompanying notes 91-95), which states that provisions adopted under Article 130s shall not prevent a member state from "maintaining or introducing" more stringent measures. The DG XI officials use the words "maintaining or introducing" to suggest that the drafters were alive to the distinction between existing and new laws. Because the drafters used in Article 100a "apply" only, and not also "introduce," then, so concludes their argument, the legislative intent must be that only existing stricter measures are permissible.

This line of argument may confront the counter-argument that it puts too much stock in the distinction made in Title VII. If the same distinction were to be made in Article 100a, would not the drafters have used "maintain" there also? This would have had the advantage of consistency, and would have made it clear that new measures were not permissible. Instead, the drafters used a different word, and hence a different concept. Indeed, the word chosen, "apply," may extend as easily to new as existing measures.

89. Article 36 of the Treaty provides:

The provisions of Articles 30 and 34 [prohibiting discrimination against trade between the member states] shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.

Treaty, SUPRA note 2, art. 36. Under this article, and within the limits developed in the Court of Justice's jurisprudence, member states may adopt measures to achieve the "major needs" listed in the article (e.g., public morality, public policy, or public health; the protection of health and life of humans, animals, or plants) even though the national measures interfere with the internal market.

90. SEE Commission v. Denmark, Case 302/86, 1988 E.C.R. 4627.

91. Treaty, SUPRA note 2, art. 130r, para. 4.

92. ID. art. 130r, para. 2.

93. ID. art. 130r, para. 3.

94. ID. art. 130s.

95. ID. art. 130t.

96. Although the Commission initially sought to make the audits mandatory for certain categories of industrial facilities, discussion currently focuses on creation of a "voluntary" eco-audit scheme. Recent proposals would require analyses of a facility's environmental performance, its emissions, energy management, raw materials management, production processes, and product planning, i.e., the environmental consequences of the product from its production to its final disposal, and how it could improve in each area.

97. The Commission packaging proposal will likely apply to all packaging waste, which is broadly defined to include glass, plastics, metal, and paper. Similar to the German Topfer law that would require manufacturers and distributors to take back all packaging that they put into circulation, the Commission proposal may result in (1) a requirement at either EC or member state level that industry takeback the packaging of its products, (2) a duty, or the practical need, to use recyclable or refillable packaging, (3) deposit levies at the member state level, and (4) specific targets for recycling and incineration in terms of a percentage of each. See Smith & Bergkamp, PACKAGING WASTE DEVELOPMENTS IN EUROPE, 14 Int'l Env't Rep. (BNA) 522 (Sept. 25, 1991).

98. This proposal would emphasize recycling. Financial incentives for industry cooperation would include value added tax reductions for recycled products and requirements that public procurement be limited to recyclable products.

99. SEE Hunter, PROPOSED EC SHIPMENT OF WASTE REGULATION, Int'l Env't Rep. (BNA) (forthcoming Dec. 1991).

100. According to an early draft of a proposed Integrated Pollution Control Framework Directive, this restructuring would apparently focus on the following, inter alia:

* lead agency permitting;

* integrating air, water, and soil requirements in one permit framework;

* specific permit application requirements, allowing for public access;

* "best available techniques" (BATECHNIQUE, a new form of best available technology (BAT), designed to reach operating methods, housekeeping, staff training and supervision, as well as technology), rather than "best available technology not entailing excessive cost" (BATNEEC) requirements, applied to new or modified plants and to existing plants over time;

* a general duty to employ BATECHNIQUE for all aspects of a plant not covered by specific permit conditions; and

* an annual inventory of discharges and releases from the site, using monitoring information supplied by regulated sources to the member state, with the inventory made available to the public and the Commission.

101. Smith & Hunter, THE REVISED EUROPEAN COMMUNITY CIVIL LIABILITY FOR DAMAGE FROM WASTE PROPOSAL, 21 ELR 10718 (Dec. 1991).

102. Regulation 1210/90 on the establishment of the European Environment Agency and the European environment information and observation network, O.J. L 120/1 (May 11, 1990).

103. ID. art. 20.

104. Directive 90/313 on freedom of access to information on the environment, O.J. L 158/56 (June 23, 1990) (required to be implemented into national law before January 1993).

105. UD. art. 3.

106. ID. art. 2.

107. ID. art. 3, para. 2.

108. Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, SUPRA note 44. It should be noted that the Commission is considering proposing amendments to expand the scope and effect of this directive.

109. ID. art. 3.

110. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 003-014.

111. Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, SUPRA note 44, art. 5, para. 2, Annex III.

112. NEPA § 102(C)(iii), 42 U.S.C. § 4332(C)(iii), ELR STAT. NEPA 003.

113. Directive 85/337 on the assessment of the effects of certain public and private projects on the environment, SUPRA note 44, Annex IlI.

114. ID. art. 6.

115. ID.

116. ID. art. 8.

117. ID. art. 9.

118. Directive 82/501 on the major accident hazards of certain industrial activities, O.J. L 230/1 (Aug. 5, 1982) [hereinafter Seveso Directive], as amended by Directive 87/216, O.J. L 85/36 (Mar. 28, 1987), and Directive 88/610, O.J. L 336/14 (Dec. 7, 1988).

119. "Industrial activity" is defined as "any operation carried out in an industrial installation referred to in Annex I involving, or possibly involving, one or more dangerous substances and capable of presenting major accident hazards, and also transport carried out within the establishment for internal reasons and the storage associated with this operation within the establishment," as well as "any other storage in accordance with the conditions specified in Annex II." Seveso Directive, SUPRA note 118, art. 1, para. 2(a), as amended.

120. ID. art. 5.

121. ID.

122. ID. The manufacturer must describe safety equipment, alarm systems, and resources available for use inside the facility; provide information to enable the authorities to prepare emergency plans for outside the facility; and provide the names of persons authorized to alert the authorities of an accident and set the emergency plans in action.

123. "'Major accident' means an occurrence such as a major emission, fire or explosion resulting from uncontrolled developments in the course of an industrial activity, leading to a serious danger to man, immediate or delayed, inside or outside the establishment, and/or to the environment, and involving one or more dangerous substances." ID. art. 1 (dangerous substances include those substances satisfying the directive's toxicity or flammability criteria, or those listed in the directive's annexes; and one of the annexes sets threshold quantity requirements).

124. ID. art. 10.

125. Environmental Implementation Report, SUPRA note 1, para. 73.

126. ID.

127. Directive 75/716 on the approximation of the laws of the Member States relating to the sulphur content of certain liquid fuels, O.J. L 307/22, art. 2 (Nov. 27, 1975), as amended by Directive 87/219, O.J. L 91/19 (Apr. 3, 1987) (the term "gas oil" is used to describe certain medium distillates usually used for domestic heating and cooking and also for diesel engine vehicles).

128. Directive 85/210 on the approximation of the laws of the Member States concerning the lead content of petrol, O.J. L 96/25 (Apr. 3, 1985), as amended by Directive 85/581, O.J. L 372/37 (Dec. 31, 1985), and Directive 87/416, O.J. L 225/33 (Aug. 13, 1987).

129. Directive 80/779 on air quality limit values and guide values for sulphur dioxide and suspended particulates, O.J. L 229/30 (Aug. 30, 1980), as amended by Directive 81/857, O.J. L 319/18 (Nov. 7, 1981), and Directive 89/427, O.J. L 201/53 (July 14, 1989). SEE ALSO Commission v. Germany, Case 361/88, __ E.C.R. __ (May 30, 1991) (construing the directive's article 3, which makes obligatory the air quality standards listed in an annex, and condemning Germany, which had sought to achieve implementation with an administrative circular, for failure to implement the directive by imposing general, legally binding standards to ensure compliance with the directive's mandatory air quality standards).

130. Directive 85/203 on air quality standards for nitrogen dioxide, O.J. L 87/1 (Mar. 27, 1985), as amended by Directive 85/580, O.J. L 372/36 (Dec. 31, 1985).

131. Directive 82/884 on a limit value for lead in the air, O.J. L 378/15 (Dec. 31, 1982). SEE ALSO Commission v. Germany, Case 59/89, __ E.C.R. __ (May 30, 1991) (construing the directive's article 2 which specifies an obligatory air quality limit for lead, and condemning Germany, which had sought to implement by way of an administrative circular, for failure to implement the directive by imposing general, legally binding standards to ensure compliance with the directive's mandatory air quality standards).

132. Member states are to ensure that sulfur dioxide and suspended particulate limit values are met throughout their territory by April 1983, the lead limit values by five years after notification of the directive (which was adopted on December 3, 1982), and nitrogen oxide limit values by July 1987. Where a member state believed that an area would not meet the limit values by the specified date, it was to notify the Commission and submit the plans for the nonattainment areas to ensure that the limit values were met as soon as possible, but not later than April 1993 for sulfur dioxide and suspended particulates, seven years after notification for lead, and January 1994 for nitrogen oxides. In zones where development is taking place and a member state "considers it necessary to limit or prevent a foreseeable increase in pollution," it "shall" in the case of sulfur oxides and particulate, and "may" in the case of nitrogen oxides, fix values lower thanthe limit values.

Further, an ambiguously phrased "standstill principle" (in essence, a no significant deterioration rule) is included for all four pollutants: "[a]pplication of the measures taken pursuant to this Directive must not bring about a significant deterioration in the quality of the air" where the limit values are already being met (more precisely, where the ambient values are "low in relation to the limit value") "at the time of implementation of this Directive." This standstill principle applies, for nitrogen oxides, to only "outside urban areas." For sulfur oxides and particulates, one commentator says that a minute of a Council meeting provides that it is not to prevent the siting of new sources in attainment areas. N. HAIGH, EEC ENVIRONMENTAL POLICY AND BRITAIN 183 (2d ed. 1987).

133. Directive 87/217 on the prevention and reduction of pollution by asbestos, O.J. L 85/40 (Mar. 28, 1987). This directive applies to asbestos, which is defined to mean "the following fibrous silicates: crocidolite (blue asbestos), actinolite, anthophyllite, chrysotile (white asbestos), amosite (brown asbestos), tremolite." ID. art. 2, para. 1.

134. ID. art. 3, para. 1.

135. ID.

136. ID. art. 4. Specifically, with respect to air emissions, the directive provides that member states are to ensure "the concentration of asbestos emitted through the discharge ducts into the air during use of asbestos does not exceed a limit value of 0.1 mg/m³ (milligrams of asbestos per m³ of air discharged)." However, member states may exempt from the air limit values "plants emitting less than 5,000 m³/hour total gaseous discharges, where the discharge of asbestos into the air is not more than 0.5 grams per hour at any time under normal operating conditions." ID.

137. ID art. 5. With respect to water limit values, the directive states that "the limit value of 30 grams of total suspended matter per m³ of aqueous effluent discharged shall apply," and that this value should be applied at "the point where the waste waters leave the industrial plant." ID.

138. ID. art. 6, Annex.

139. Directive 84/360 on the combating of air pollution from industrial plants, O.J. L 188/20 (July 16, 1984) [hereinafter Directive 84/360].

140. ID. art. 3 (the directive specifically authorizes member states to subject other categories of plants to prior authorization requirements). Also, the directive provides that member states may define "particularly polluted areas" for which more stringent emission limits may be set, and may designate "areas to be specially protected" for which air quality limits and emission limits may be more stringent. ID. art. 5.

141. ID. Annex I.

142. The term "preventive measures" may well extend beyond "end-of-pipe" controls.

143. "Significant" is not defined. Nor is there much guidance with respect to the meaning of "pollution"; no explicit delimitation of the pollutants covered is provided, though eight categories of pollutants listed in Annex II are specifically referenced. These include sulfur dioxide; oxides of nitrogen; carbon monoxide; organic compounds (in particular hydrocarbons, but excluding methane); heavy metals; dust, asbestos (suspended particulates and fibers), glass and mineral fibers; chlorine; and fluorine. In most cases, compounds are included as well. To make matters even more uncertain, compliance monitoring methodologies are left up to the individual member states.

144. Presumably, this includes emission limits adopted solely as a matter of member state initiative, as well as those adopted to implement the three daughter directives, discussed INFRA notes 153-175 and accompanying text. The status of BATNEEC established in Commission Technical Notes (see INFRA note 150 and accompanying text) is not clear, but presumably such limits are not applicable unless member states choose to adopt them as legal requirements.

145. Applications for authorizations (which are to "include a description of the plant containing the necessary information for the purposes of the decision") and the decisions of competent authorities are to be available to the "public concerned." ID. arts. 6, 7.

146. New Orientations of the BAT Activity, DG XI/A/3, at 2 (Jan. 18, 1991) [hereinafter New BAT Orientations Memorandum].

147. ID.

148. ID.

149. ID.

150. E.G., Technical Note on Best Available Technologies Not Entailing Excessive Cost For Ammonia Production, DG XI, at III (EUR 13006 EN, 1990).

151. New BAT Orientations Memorandum, SUPRA note 146, at 2-4.

152. ID. at 4.

153. Directive 88/609 on the limitation of emissions of certain pollutants into the air from large combustion plants, O.J. L 336/1 (Dec. 7, 1988).

154. The directive begins by stating that it applies "to combustion plants, the rated thermal input of which is equal to or greater than 50 MW, irrespective of the type of fuel used (solid, liquid or gaseous)." ID. art. 1. It goes on to state, however, that it applies "only to combustion plants designed for the production of energy with the exception of those which make direct use of the products of combustion in manufacturing processes." ID. art. 2, para. 7 (also providing a list of exclusions for specific kinds of plants). It further states, "Plants powered by diesel, petrol and gas engines or by gas turbines, irrespective of the fuel used, shall not be covered by this Directive." ID.

155. ID. art. 10.

156. ID. art. 4.The directive provides for several derogations from the emission limit values, however. ID. arts. 5, 6, 8. There are special rules relating to evaluating the emissions of plants with multifuel firing units. ID. art. 9.

157. ID. art. 7.

158. ID. art. 10.

159. ID. arts. 8 (reporting in case of breakdown), 13 (member states to ensure monitoring in accordance with Annex IX), 14 (requiring facility operators to report monitoring results), Annex IX (specifying procedures for monitoring, including continuous measurement for certain facilities).

160. ID. art. 3, Annexes I, II.

161. Directive 89/369 on the prevention of air pollution from new municipal waste incineration plants, O.J. L 163/32 (June 14, 1989) [hereinafter New Municipal Waste Incinerators Directive].

162. Directive 89/429 on the reduction of air pollution from existing municipal waste incineration plants, O.J. L 203/50 (July 15, 1989) [hereinafter Existing Municipal Waste Incinerators Directive]. The Commission is preparing a draft directive on hazardous waste incineration that would require prior authorization for these facilities, and impose design, operation, monitoring, and reporting requirements.

163. "'Municipal waste-incineration plant' shall mean any technical equipment used for the treatment of municipal waste by incineration, with or without recovery of the combustion heat generated, but excluding plants used specifically for the incineration of sewage sludge, chemical, toxic and dangerous waste, medical waste from hospitals or other types of special waste, on land or sea, even if these plants may burn municipal waste as well." New Municipal Waste Incinerators Directive, SUPRA note 161, art. 1; Existing Municipal Waste Incinerators Directive, SUPRA note 162, art. 1. "Municipal waste' shall mean domestic refuse, as well as commercial or trade refuse and other waste which, because of its nature or composition, is similar to domestic refuse." New Municipal Waste Incinerators Directive, SUPRA note 161, art. 1; Existing Municipal Waste Incinerators Directive, SUPRA note 162, art. 1.

164. Directive 84/360, SUPRA note 139, art. 4.

165. New Municipal Waste Incinerators Directive, SUPRA note 161, arts. 1, 12.

166. ID. art. 3.

167. ID. arts. 4 (providing general design and performance standards), 7 (requiring auxiliary burners).

168. ID. arts. 5, 6 (setting forth monitoring requirements, methods and periods).

169. ID. art. 8 (requiring reporting where monitoring shows that limit values are exceeded; member states are not to allow continued operation in violation of emission standards).

170. Existing Municipal Waste Incinerators Directive, SUPRA note 162.

171. Directive 84/360, SUPRA note 139, art. 13.

172. "Existing municipal waste-incineration plant' shall mean a municipal waste-incineration plant for which the first authorization to operate is granted before 1 December 1990." Existing Municipal Waste Incinerators Directive, SUPRA note 162, art. 1.

173. ID. art. 2; BUT SEE ID. art. 4 (providing special "combustion conditions" for large existing plants).

174. ID. art. 2.

175. ID. arts. 3, 4, 5 (emission limit values and performance standards), and arts. 6, 7 (monitoring and reporting requirements).

176. Environmental Implementation Report, SUPRA note 1, para. 71.

177. ID.

178. ID. para. 72.

179. ID. para. 73.

180. Directive 75/440 concerning the quality required of surface water intended for the abstraction of drinking water in the Member States, O.J. L 194/26 (July 25, 1975) [hereinafter Abstraction of Drinking Water Directive], as amended by Directive 79/869, O.J. 271/44 (Oct. 29, 1979).

181. Directive 76/160 concerning the quality of bathing water, O.J. L 31/1 (Feb. 5, 1976) [hereinafter Bathing Water Directive].

182. Directive 78/659 on the quality of fresh waters needing protection or improvement in order to support fish life, O.J. L 222/1 (Aug. 14, 1978) [hereinafter Fresh Water Fish Directive].

183. Directive 79/923 on the quality required for shellfish waters, O.J. L 281/47 (Nov. 10, 1979) [hereinafter Shellfish Directive].

184. The Fresh Water Fish Directive and the Shellfish Directive appear to allow unrestrained choice. BUT SEE Commission v. Italy, Case 322/86, 1988 E.C.R. 3995 (discussed INFRA note 186). The Bathing Water and Abstraction of Drinking Water Directives impose certain criteria.

185. E.G., Fresh Water Fish Directive, SUPRA note 182, art. 5.

186. BUT SEE Commission v. Italy, Case 322/86, 1988 E.C.R. 3995 (condemning Italy for, inter alia, failing to designate sufficient numbers of salmonid and cyprind waters for purposes of the Fresh Water Fish Directive).

187. Directive 80/778 relating to the quality of water intended for human consumption, O.J. L229/11 (Aug. 30, 1980) [hereinafter Directive 80/778], as amended by Directive 81/858, O.J. 319/19 (Nov. 7, 1981). This directive regulates the quality of the drinking water itself. The Abstraction of Drinking Water Directive, SUPRA note 180, regulates the quality of surface water used or intended for use as drinking water.

188. ID. art, 4, Annex I. Specific provision is made in the directive for limited derogations from the standards in Annex I. SEE ID. arts. 9, 10. SEE ALSO Commission v. Belgium Case 42/89, __ E.C.R. __ July 5, 1990) (construing the derogation provisions of Directive 80/778, SUPRA note 187, and condemning Belgium for allowing the directive's maximum admissible concentration levels to be exceeded in circumstances other than those provided for in the derogation provisions); Pretura unifacata di Torino v. X, Case 228/87, 1988 E.C.R. 5099, 5122 (Sept. 22, 1988) (holding that the derogation provision of article 10 (1) may be used only in an urgent situation in which national authorities are required to cope with sudden difficulties in the water supply, (2) must be limited to the time normally necessary to restore the quality of the affected water, (3) must not pose "any unacceptable risk to public health," and (4) may be given if the supply of water for human consumption cannot be maintained in any other way).

189. Directive 80/778, SUPRA note 187, Annex I, as amended.

190. ID. art. 12 (the directive also specifies monitoring, sampling, and analytic requirements that the member states are to ensure are applied).

191. There is no prohibition on the discharge of "pollutants" in general.

192. Directive 76/464 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community, O.J. L 129/23 (May 18, 1976) [hereinafter Directive 76/464].

193. "Discharge" is defined as "the introduction into" the surface waters to which the directive applies of any List I or List II substances. No explicit limitation is stated on the types of discharges (e.g., persons, or owners or operators) or sources (e.g., point source, nonpoint source, or both) covered, but "discharges of dredgings," "operational discharges," and "dumping" from ships in territorial waters are excluded. ID. art. 1.

194. The directive applies to territorial waters, internal coastal waters, and inland surface water; inland surface water includes "all static or flowing fresh surface water situated in the territory of one or more Member States." ID. art. 1. Groundwater is also included within the scope of directive 76/464, but the directive states that its provisions "relating to ground water shall no longer apply upon the implementation of a separate Directive on ground water." ID. art. 4. Groundwater is now covered by Directive 80/68 on the protection of groundwater against pollution caused by certain dangerous substances, O.J. L 20/43 (Jan. 26, 1980) [hereinafter Directive 80/68].

195. Directive 76/464, SUPRA note 192, arts. 3, 7.

196. No further guidance is given as to the nature (e.g., construction vs. operating permit), scope (e.g., coverage of point, rainfall runoff, or nonpoint sources) or required functioning (e.g., scope of sampling required for permit application, permit format, permit term, minimum permit monitoring and reporting requirements) of the permit or authorization program, although the first daughter directive requires that authorizations be "reviewed at least every four years." Directive 86/280 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC, O.J. L 181/16, art. 3, para. 3 (July 4, 1986). As discussed SUPRA note 100, the Commission may soon propose an integrated pollution control directive that will include such matters.

197. The directive contains a prohibition on "all acts which intentionally or unintentionally circumvent" its provisions. Also, it contains a form of nondeterioration rule:

The application of the measures taken pursuant to this Directive may in no account lead, either directly or indirectly, to increased pollution of the waters referred to in Article 1.

ID. art. 9. As noted INFRA note 206, the determination whether "pollution" exists turns on the definition of that term and is subjective.

198. Directive 76/464, SUPRA note 192, art. 12, para. 1.

199. ID. art. 5.

200. ID. art. 6, para. 1(b). This substantive test appears to combine elements of ambient- and technology-based concepts without much guidance on how either is to be employed or how they relate to each other. One commentator reports that, as a result of a statement made at the Council meeting of May 4, 1976, "'best technical means available' is to take into account the economic availability of those means." N. HAIGH, SUPRA note 132, at 71.

201. Directive 76/464, SUPRA note 192, art. 5, para. 2. (The exact language is as follows: if "necessary," "taking into account in particular the toxicity, persistence, and bioaccumulation of the substance concerned in the environment into which it is discharged.")

202. SEE Directive 86/280 on limit values and quality objectives for discharges of certain dangerous substances included in List I of the Annex to Directive 76/464/EEC, O.J. L 181/16 (July 4, 1986) [hereinafter Directive 86/280], as amended by Directive 88/347, O.J. L 158/35 (June 16, 1988), and Directive 90/415, O.J. L 219/49 (July 27, 1990) (regulating carbontetrachloride, DDT, pentachlorophenol, aldrin, dieldrin, endrin, isodrin, hexachlorobenzine, hexachlorobutadiene, chloroform, 1-2 dichloroethane, trichloroethylene, perchloroethylene, and trichlorobenzene); Directive 84/491 on limit values and quality objectives for discharges of hecxachlorocyclohexane, O.J. L 274/11 (Oct. 17, 1984); Directive 84/156 on limit values and quality objectives for mercury discharges by sectors other than the chlor-alkali electrolysis industry, O.J. L 74/49 (Mar. 17, 1984); Directive 83/513 on limit values and quality objectives for cadmium discharges, O.J. L 291/1 (Oct. 24, 1983); Directive 82/176 on limit values and quality objectives for mercry discharges by the chlor-alkali electrolysis industry, O.J. L 81/29 (Mar. 27, 1982).

203. E.G., Directive 86/280, SUPRA note 202, art. 2. "Handling of substances" is defined to mean:

any industrial process involving the production, the processing or use of the [relevant] substances …, or any other industrial process in which the presence of such substances is inherent.

ID. art. 2, para. (d).

204. ID. art. 5, para. 1.

205. A "new plant" is typically defined as an "industrial plant" that becomes "operational" more than 12 months after the date of notification of the directive or any amending directive. ID. art. 2, para. (g).

206. ID. art. 3, para. 4. "Pollution" is defined in framework Directive 76/464 to mean "the discharge by man, directly or indirectly, of substances or energy into the aquatic environment, the results of which are such as to cause hazards to human health, harm to living resources and to aquatic ecosystems, damage to amenities or interference with other legitimate uses of water." Directive 76/464, SUPRA note 192, art. 1, para. 2(e).

207. Directive 76/464, SUPRA note 192, art. 6. Quality objectives are set in the directives listed SUPRA note 202. SEE ALSO SUPRA notes 180-190 and accompanying text for a description of directives establishing water quality requirements for waters intended for specific uses.

208. Directive 76/464, SUPRA note 192, art. 6, para. 2.

209. ID. art. 7, para. 2.

210. ID. art. 7, paras. 1, 2, 5.

211. ID. art. 7, para. 2.

212. ID. art. 7, para. 6.

213. Directive 80/68 SUPRA note 194. SEE ALSO Commission v. Germany, Case 131/88, __ E.C.R. __ (Feb. 28, 1991) (condemning Germany for failure to transpose into national law the requirements of Directive 80/68).

214. The blacklist and greylist substances are similar to, but not coincident with, those of Directive 76/464 on discharge of dangerous substances, discussed SUPRA notes 191-213 and accompanying text.

215. Article 3 requires member states to take the necessary into

(1) prevent the introduction of blacklist substances into groundwater, and

(2) limit the introduction of greylist substances "so as to avoid pollution" of groundwater.

Directive 80/68, SUPRA note 194, art. 3. Pollution is defined to mean discharge, "the results of which are such as to endanger human health or water supplies, harm living resources and the aquatic ecosystem or interfere with other legitimate uses of water." ID. art. 1, para. 2(d).

216. ID. art. 4. "Direct discharge" means the introduction into groundwater of blacklisted or greylisted substances "without percolation through the ground or subsoil." ID. art. 1. Groundwater is defined as "all water which is below the surface of the ground inthe saturation zone and in direct contact with the ground or subsoil." ID. Member states may also authorize certain geothermal discharges, and discharges of water pumped from mines, quarries, and civil engineering works. ID. art. 2, para. 3.

217. ID. art. 4. Indirect discharge means the introduction into groundwater of a substance "after percolation through the ground or subsoil." ID. art. 1.

218. ID. art. 5.

219. ID.

220. ID. art. 7.

221. ID. art. 8. SEE Commission v. Italy, Case 360/87, __ E.C.R. __ (Feb. 28, 1991) (holding that article 8 makes an individualized investigation obligatory before the granting of a permit).

222. Since the article 3 obligation for blacklist substances is to PREVENT their introduction into groundwater, any person proposing to dispose or tip blacklist substances would presumably have to show that such acts would not cause the "introduction into groundwater" of those substances.

223. Directive 91/271 concerning urban waste water treatment, O.J. L 135/40 (May 30, 1991).

224. ID. art. 4 (requiring secondary treatment by 2001 or 2006, depending on such factors as the area population and economic activities). There areat present major inland cities in the Community with effectively no waste water treatment.

225. ID. art. 11, Annex IC (prior authorization and/or regulation required before 1994).

226. ID. art. 13 (requirement to be applicable by 2001 for biodegradable industrial waste water from plants belonging to the industrial sectors listed in Annex III of the directive). The final directive deleted the requirement for meeting municipal secondary treatment standards contained in earlier proposals.

227. ID. art. 3, Annex IA.

228. ID. art. 2, para. 3.

229. ID. art. 11, Annex IC.

230. ID. art. 11, para. 2, Annex IC.

231. Environmental Implementation Report, SUPRA note 1, para. 77.

232. ID. para. 78.

233. ID. para. 80.

234. Personal communication from Dr. Ludwig Kramer, Head of Legal Unit, DG XI (Aug. 29, 1991).

235. Directive 75/442 on Waste, O.J. L 194/26 (July 25, 1975).

236. Directive 91/156 amending Directive 75/442 on Waste, O.J. L 78/32 (Mar. 26, 1991) [hereinafter Waste Amendments]. There is a significant chance that this directive will be annulled. It was proposed by the Commission under Article 100a, but, as with the Titanium Dioxide Case, discussed SUPRA note 12, the Council changed the basis to Article 130s. On June 11, 1991, the day the Court rendered judgment in the case, the Commission brought an action against the Council for annullment of this directive. SEE Commission v. Council, Case 155/1991, O.J. C 189/12 (July 20, 1991). SEE ALSO INFRA notes 270-75 and accompanying text.

237. 42 U.S.C. §§ 6901-6992k, ELR STAT. RCRA 001-050.

238. Directive 75/442 on Waste, SUPRA note 235, art. 1 (defining "disposal" as (1) "the collection, storing, transport and treatment of waste as well as its storage and tipping above or under ground," and (2) "the transformation operations necessary for its re-use, recovery or recycling"). SEE Vessoso and Zanetti, Cases 206 and 207/1988, __ E.C.R. __ (delivered Mar. 28, 1990) (ruling that the definition of "waste" in unamended Directive 75/442 includes substances and objects capable of economic re-utilization). As the definition of "waste" under this directive (and thus the scope of the directive) is determined in large part by the determination under national law of what is required to be disposed of, the directive's requirements have not been uniformly applied across the Community. This inconsistent implementation was, in fact, one of the motivations for the recent amendments. SEE Waste Amendments, SUPRA note 236, recital 7.

Also, the directive provides several exclusions from its coverage: "radioactive waste"; mining waste; certain agricultural wastes; "waste waters, with the exception of waste in liquid form" (however one is supposed to draw that line); "gaseous effluents emitted to the atmosphere"; and "waste covered by specific Community rules." Directive 75/442 on Waste, SUPRA note 235, art. 2.

239. Directive 75/442 on Waste, SUPRA note 235, art. 4.

240. ID. art. 8. SEE Ministere public v. Oscar Traen and Others, Cases 372-74/85, 1987 E.C.R. 2141, 2156 (holding that the article 8 permitting requirement "cover[s] all waste-disposal activities and do[es] not lay down any limitation relating to the legal status of the operator or the frequency or purpose of the activities concerned").

241. Directive 75/442 on Waste, SUPRA note 235, art. 10.

242. ID. art. 8.

243. Waste Amendments, SUPRA note 236.

244. Proposals for a Directive on the landfill of waste, O.J. C 190/1 (July 22, 1991). This proposed directive would (1) give form and substance to permits required for landfilling under the Amended Directive 75/442 on Waste (this prior authorization requirement may, depending on whether national law grants an exemption under the Amended Directive 75/442 on Waste, extend to on-site landfills at industrial facilities); (2) provide technical standards for construction, operation, monitoring and closure of landfills; (3) require the landfill operator to undertake cleanup where "adverse environmental effects from the landfill operation are discovered"; and (4) impose strict liability on the operator for personal injury, property damage and impairment of the environment.

245. Waste Amendments, SUPRA note 236, art. 1. The amendments, as with the original directive, provide exclusions for the following:

(a) gaseous effluents emitted to the atmosphere;

(b) where they are already covered by other Community legislation:

(i) radioactive waste;

(ii) [mining waste];

(iii) [certain agricultural wastes];

(iv) waste waters, with the exception of waste in liquid form;

(v) decommissioned explosives.

ID. art. 2.

246. ID. Annex I.

247. SEE ID. art. 18 (creating a "committee procedure" under which the Commission, assisted by member state representatives, can list substances).

248. ID. art. 1.

249. ID.

250. ID. Annex II A, D6 ("water body" is not defined).

251. Also, the recent New Municipal Waste Incinerator Directive requires that its emission standards and testing requirements be incorporated into Waste Directive permits for the operation of "new municipal waste-incineration plants." New Municipal Waste Incinerators Directive, SUPRA note 161.

252. Waste Amendments, SUPRA note 236, Annex II A. It should be noted that the amended directive provides little in the way of definitions for these broadly cast disposal operations. Presumably, the definition of these critical terms affecting the scope of application of the permitting program is left to national law and bureaucratic whim, at least until more specific daughter directives are adopted for the sundry operational categories. SEE, E.G., Proposal for a Directive on the landfill of waste, O.J. C 1990/1 (July 22, 1991) (discussed INFRA note 244 and accompanying text).

253. Waste Amendments, SUPRA note 236, art. 10 (the amendments do not specify the contents for recycling and recovery permits).

254. ID. art. 11. This exemption is to be available only if the following conditions have been met:

* the relevant governmental authorities "have adopted general rules for each type of activity laying down the types and quantities of waste and the conditions under which the activity in question may be exempted from the permit requirements," and

* "the types and quantities of waste and methods of disposal or recovery are such that [health and environmental protection requirements] are complied with."

255. ID. art. 13.

256. ID. art. 9, para. 1, Annex II A.

257. ID. art. 10.

258. ID. art. 14.

259. Directive 78/319 on toxic and dangerous waste, O.J. L 84/43 (Mar. 31, 1978) [hereinafter Toxic and Dangerous Waste Directive]. The directive provides that, inter alia, "hospital waste," "effluents discharged to sewers and water-courses," "emissions to the atmosphere," "household waste," and "other toxic and dangerous waste covered by specific Community rules" are excluded from its scope. ID. art. 3.

260. ID. art. 5, para. 2.

261. ID. art. 9, para. 1. Facilities producing, holding, or disposing of toxic and dangerous waste are required to maintain a record of the quantity, nature, physical and chemical characteristics, and origin of such wastes and of the methods and sites used for depositing of such wastes. ID. art. 14, para. 1.

262. ID. art. 9, para. 2.

263. ID. art. 14, para. 2.

264. SEE amended proposal for a Council Directive on hazardous waste, Council Document 4196/91 ENV 19 (Jan. 22, 1991). The proposed directive would apply to "hazardous waste," which is defined by reference to extensive lists of 41 generic waste types, 51 toxic constituents, and 14 properties considered hazardous, unless the substance can be proved not to possess hazardous characteristics, such as flammability and carcinogenicity.

265. Directive 76/403 on the disposal of polychlorinated biphenyls and polychlorinated terphenyls, O.J. L 108/41 (Apr. 26, 1976) [hereinafter Directive 76/403 on the Disposal of PCBs]. On November 3, 1988, the Commission submitted a proposed directive that would replace the existing PCB directive and would make the requirements applicable to PCBs substantially more rigorous and extensive. Proposal for a Directive on the disposal of polychlorinated biphenyls and polychlorinated terphenyls, O.J. C 319/57 (Dec. 12, 1988).

266. Directive 76/403 on the Disposal of PCBs, SUPRA note 265, art. 2.

267. ID. art. 3.

268. ID. art. 6.

269. ID. art. 7.

270. Directive 78/176 on waste from the titanium dioxide industry, O.J. L 54/19 (Feb. 25, 1978), as amended by Directive 82/883, O.J. L 378/1 (Dec. 31, 1982), and Directive 83/29, O.J. L 32/28 (Feb. 3, 1983). The Council adopted a directive on titanium dioxide plants in 1989 — Directive 89/428 on procedures for harmonizing the programs for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry, O.J. L 201/56 (July 14, 1989). This directive, however, has been annulled by the Court of Justice. SEE Commission v. Council, Case 300/89, __ E.C.R. __ (June 11, 1991) (discussed SUPRA note 12).

271. Directive 78/176 on waste from the titanium dioxide industry, SUPRA note 270, art. 1, para. 2, as amended (waste is defined as "any residue from the titanium dioxide manufacturing process of which the holder disposes or is obliged to dispose under current national legislation"; no further definitions are provided clarifying the scope of the term "titanium dioxide industry").

272. ID. art. 4, as amended.

273. ID. arts. 5 (concerning discharging and dumping), 6 (concerning storage, tipping, and injection), as amended.

274. ID. arts. 5, 6, Annex I, as amended.

275. ID. art. 7, Annex II, as amended.

276. Directive 75/439 on the disposal of waste oils, O.J. L 194/23 (July 25, 1975), as amended by Directive 87/101, O.J. L 42/43 (Feb. 12, 1987).

277. ID. art. 2, as amended.

278. ID. art. 1, as amended.

279. ID. art. 4, as amended.

280. ID. art. 5, para. 4, as amended.

281. ID. art. 6, as amended.

282. Directive 84/631 on the supervision and control within the European Community of the transfrontier shipment of hazardous waste, O.J. L 326/31 (Dec. 13, 1984) [hereinafter Transfrontier Shipment of Hazardous Waste Directive], as amended by Directive 85/469, O.J. L 272/1 (Oct. 12, 1985), Directive 86/121, O.J. L 100/20 (Apr. 16, 1986), Directive 86/279, O.J. L 181/13 (July 4, 1986), Directive 87/112, O.J. L 48/31 (Feb. 17, 1987).

In 1990, the Commission proposed a Regulation on the Shipment of Waste, O.J. C 289/9 (Nov. 17, 1990), which would govern the movements of virtually all waste and create an elaborate prior authorization regime for shipments of waste crossing the boundaries of a "competent authority." These competent authorities, which could even be local governments, would be able to block shipments out of or into their jurisdictions on the grounds that there existed an authorized disposal facility using "suitable technologies" that was nearer to the point of origin than the disposal facility proposed by the waste holder. There is concern that some competent authorities will not be able to act on the requests for permission to ship in a timely fashion, and that bureaucratic delay will result in manufacturers having to store their wastes on-site indefinitely and search for other disposal arrangements. There is also concern that this proposal could enable competent authorities to ensure the viability of their local disposal facilities by objecting to all shipments out of their jurisdictions, thereby creating monopoly market conditions for the local disposal facilities and higher disposal prices for manufacturers. In short, the proposed Shipment of Waste Regulation would increase substantially the risks and costs associated with off-site waste disposal. For an analysis of this legislative proposal, see Hunter, SUPRA note 99.

283. Note that even if member state borders are not crossed, certain manifesting, packaging, and labeling requirements may nonetheless apply under the Toxic and Dangerous Waste Directive. That directive obliges member states to ensure that "toxic and dangerous waste is, where necessary, kept separate from other matter and residues when being … transported …." Toxic and Dangerous Waste Directive, SUPRA note 259, art. 7. Further, member states are to ensure that "the packaging of toxic and dangerous waste is appropriately labelled, indicating in particular the nature, composition and quantity of the waste." ID. Finally, member states are to require that, "[w]hen toxic and dangerous waste is transported during the course of disposal it shall be accompanied by an identification form" listing at minimum the following: the nature, composition, and quantity of the waste; the name and address of the producer or previous holder; the name and address of the next holder or final disposer; and, where known, the site of final disposal. ID. art. 14, para. 2.

284. Transfrontier Shipment of Hazardous Waste Directive, SUPRA note 282, art. 2. Chlorinated and organic solvents are exempt from the scope of this directive, even though they are "toxic and dangerous waste" within the meaning of the Toxic and Dangerous Waste Directive. Waste from nonferrous metals that is intended for reuse, regeneration or recycling on the basis of a contractual agreement is also exempt from the proposition of the Transfrontier Shipment of Hazardous Waste Directive if certain conditions are met. ID. art. 17.

285. The definition of "hazardous waste" includes "toxic and dangerous waste" as defined in the Toxic and Dangerous Waste Directive, SUPRA note 259. However, the definition of "hazardous waste" by reference apparently does not include the exclusions in the toxic and dangerous waste directive of "radioactive waste," "animal carcasses," "emissions to the atmosphere," and "hospital waste." Thus, the reach of the Transfrontier Shipment of Hazardous Waste Directive is apparently not limited by the exclusions in the Toxic and Dangerous Waste Directive.

286. Transfrontier Shipment of Hazardous Waste Directive, SUPRA note 282, art. 3.

287. ID. art. 4. Consignment notes for transfrontier shipments from member states to non-member-third-states must be preceded by an agreement from the third state to accept the waste. ID. art. 3, para. 4.

288. ID. art. 4.

289. ID. art. 4, para. 3. In addition to this ground for objection, a member state of DISPATCH may object to a proposed shipment within 20 days of notification on the ground that it either "adversely affects the implementation of plans" drawn up pursuant to the Toxic and Dangerous Waste Directive or the PCB Directive, or conflicts with obligations resulting from international agreements concluded before notification of the Transfrontier Shipment of Hazardous Waste Directive.

290. ID. art. 6.

291. ID. art. 8.

292. ID.

293. Environmental Implementation Report, SUPRA note 1, para. 85.

294. ID.

295. ID.

296. ID.

297. SEE S. JOHNSON AND G. CORCELLE, THE ENVIRONMENTAL POLICY OF THE EUROPEAN COMMUNITIES 187-208 (1989) (discussing the history of the adoption of chemical regulation in the Community).

298. This listing is known as the European Inventory of Existing Commercial Chemical Substances or "Einecs." SEE Decision 81/437, O.J. L 167 (June 24, 1981) (explaining how the inventory is to be drawn up).

299. This listing is known as the European List of Notified Chemical Substances or "Elincs." SEE Decision 85/71, O.J. L 30 (Feb. 2, 1985) (explaining the contents of this list); Commission Communication, Publication of Elincs, O.J. C 139/1 (May 29, 1991).

300. Directive 90/219 on the contained use of genetically modified micro-organisms, O.J. L 117/1 (May 8, 1990); Directive 90/220 on the deliberate release into the environment of genetically modified organisms, O.J. L 117/15 (May 8, 1990).

301. Proposal for a Regulation on the evaluation and the control of the environmental risks of existing substances, O.J. C 276/1 (Nov. 5, 1990).

302. SEE Opinion on the proposal for a Regulation on the evaluation and the control of the environmental risks of existing substances, O.J. C 102/42 (Apr. 18, 1991).

303. Directive 67/548 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging, and labeling of dangerous substances, O.J. L 196/1 (Aug. 16, 1967), as amended [hereinafter Directive 67/548]. SEE ALSO Commission v. Denmark, Case 278/85, 1987 E.C.R. 4069, 4087 (ruling that with the directive the Community had laid down "an exhaustive set of rules governing the notification, classification, packaging and labeling of substances, both old and new, and that it has not left the Member States any scope to introduce other measures in their national legislation").

Also, the Community has legislation governing trade in dangerous chemicals into and out of the EC. Regulation 428/89 concerning the export of certain chemical products, O.J. L 50/1 (Feb. 22, 1989); Regulation 1734/88 concerning export from and import into the Community of certain dangerous chemicals, O.J. L 155/2 (June 22, 1988).

304. "Substance" is defined to mean "chemical elements and their compounds as they occur in their natural state or as produced by industry, including any additives required for the purpose of placing them on the market." Directive 67/548, SUPRA note 303, art. 2, para. 1(a).

305. The labeling and packaging requirements apply only to such "dangerous" substances. SEE ID. arts. 15, 16. In article 2, Directive 67/548 defines 14 categories of dangerous substances on which the requirements are based, including explosive, oxidizing, extremely flammable, highly flammable, flammable, very toxic, toxic, harmful, corrosive, irritant, dangerous for the environment, carcinogenic, teratogenic, and mutagenic substances. Annex I of the directive contains the list of dangerous substances under their classification categories. ID. art. 14, Annex I.

306. Directive 79/831 amending for the sixth time Directive 67/548 on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging, and labeling of dangerous substances, O.J. L 259 (Oct. 15, 1979).

307. "Placing on the market" is defined as "supplying or making available to third parties." ID. art. 2, para. 1(d).

Certain categories of substances are either totally exempt from the notification requirements or are subject to limited notification requirements. Notification is not required for substances placed on the market before September 18, 1981. Directive 67/548, SUPRA note 303, art. 1, para. 4, as amended. These substances are listed on an inventory established by the Commission known as Einecs, discussed SUPRA note 298. ID. art. 13.

In addition, notification is not required for categories of substances that are "considered as having been notified within the meaning of this Directive." ID. art. 8. These include chemicals marketed in quantities less than one ton per year per manufacturer, most polymers, and substances placed on the market for research and analysis under conditions described in the directive. ID. (the exemption for substances marketed at the research and development stage is limited to one year). A limited "announcement" must be made, however, for both substances marketed in quantities less than one to per year and substances marketed at the research and development stage in quantities greater than one ton per year. The announcement, which must be provided to the authorities of each member state where the manufacture, research, or development takes place, must include the identity of the substance, labeling data and the quantity marketed. In addition, the manufacturer must comply with any conditions the authorities impose.

Lastly, if a substance is already listed in Annex I of the directive, the notifier is not required to submit the declaration concerning its negative effects, the proposed classification or any proposed precautionary measures. The notifier need only submit the technical dossier. Moreover, in the case of a previously notified substance, the competent authority may allow a manufacturer preparing the technical dossier, with the written permission of previous notifiers, to use data submitted in prior notifications. If the prior notification occurred at least 10 years previously, a technical dossier is not required except for the information required in points 1 and 2 of Annex VII of the directive. Community manufacturers and importers, however, have a continuing obligation to inform the competent authority about changes in the annual or total quantities of the substance placed on the market, new knowledge regarding the health and environmental effects of the substance, new uses of the substance and any change in the properties resulting from a modification of the substance. ID. art. 6.

308. ID. art. 6, para. 1.

309. ID. art. 2. para. 1(d).

310. ID. art. 6, para. 1 (also providing special provisions for previously listed or notified substances).

311. ID. arts. 9, 10 (notifiers who provide "full justification," may request that commercially sensitive information be kept secret from all persons other than the competent authorities and the Commission).

312. ID. art. 23, para. 1 (emphasis added).

313. ID. art. 23, para. 2.

314. ID. art. 23, para. 3.

315. Directive 88/379 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the approximation of the laws, regulations, and labeling of Dangerous Preparations, O.J. L 187/14 (July 16, 1988), as amended.

316. Directive 73/173 on the approximation of Member States' laws, regulations and administrative provisions relating to the classification, packaging and labeling of dangerous preparations (solvents), O.J. L 189/7 (July 11, 1973), as amended.

317. Directive 77/728 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labeling of paints, varnishes, printing inks, adhesives and similar products, O.J. L 303/23 (Nov. 28, 1977), as amended.

318. Directive 78/631 on the approximation of the laws of the Member States relating to the classification, packaging and labeling of dangerous preparations (pesticides), O.J. L 206/13 (July 29, 1978), as amended.

319. Directive 76/769 on the approximation of the laws, regulations and administrative provisions of the Member States relating to restrictions on the marketing and use of certain dangerous substances and preparations, O.J. L 262/201 (Sept. 27, 1976), as amended by Directive 79/663, O.J. L 197/37 (Aug. 3, 1979), Directive 82/806, O.J. L 339/55 (Dec. 1, 1982), Directive 82/828, O.J. L 350/34 (Dec. 10, 1982), Directive 83/264, O.J. L 147/9 (June 6, 1983), Directive 83/478, O.J. L 263/33 (Sept. 24, 1983), Directive 85/467, O.J. L 269/56 (Oct. 11, 1985), Directive 85/610, O.J, L 375/1 (Dec. 31, 1985), Directive 89/677, O.J. L 398/19 (Dec. 30, 1989), Directive 89/678, O.J. L 398/24 (Dec. 30, 1989), and Directive 91/173, O.J. L 85/34 (Apr. 5, 1991).

320. Member states are required to take "all necessary measures" to ensure that the dangerous substances and preparations listed in the Annex are placed on the market or used only in accordance with the conditions specified in the Annex. Directive 76/769, SUPRA note 319. The restrictions, however, do not apply to marketingor use for research and development or analysis purposes. ID. art. 2.

321. Directive 91/155 defining and laying down the detailed arrangements for the system of specific information relating to dangerous preparations in implementation of Article 10 of Directive 88/379, O.J. L 76/35 (Mar. 22, 1991) [hereinafter Directive 91/155].

322. ID. art. 5 (also providing special dispensation until June 30, 1993, for members states with "existing information systems of the safety data sheet type").

323. SUPRA note 315.

324. Directive 91/155, SUPRA note 321, art. 1, para. 1 (emphasis added). BUT SEE ID. art. 4 (stating that "implementing provisions for dangerous substances will be laid down later").

With respect to the actual contents of the safety data sheet, the directive requires information on the following, inter alia: (1) the composition and ingredients; (2) hazards identification; (3) first-aid measures; (4) fire-fighting measures; (5) accidental release measures; (6) handling and storage; (7) exposure controls and personal protection; (8) physical and chemical properties; (9) stability and reactivity; (10) toxicological and ecological information; (11) transport and disposal considerations; and (12) "regulatory information." ID. art. 3 (also providing that this information is to be compiled in accordance with the explanatory notes provided in the directive's Annex).

Also, the directive specifically allows member states to require as a precondition of the marketing of a dangerous substance or preparation in their territory that their official language(s) be used for the safety data sheet. ID. art. 2.

325. ID. art. 1, para. 3.

326. ID.

327. ID.

328. Environmental Implementation Report, SUPRA note 1, para. 74.

329. ID. para. 76.

330. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001-075.

331. Amended proposal for a Directive on civil liability for damage caused by waste, O.J. L 192/6 (July 23, 1991) [hereinafter Amended proposal for a Directive on civil liability]. For an analysis of the proposed directive, see Smith & Hunter, SUPRA note 101.

In response to political pressure from a number of sources, most notably the Parliament, the Commission is reportedly also preparing an additional civil liability directive to apply to environmental damage generally, whether arising from waste or not. This second civil liability proposal will likely provide for strict and joint and several liability. It should be noted that civil liability risks might also be created by the Proposal for a Directive on the landfill of waste, SUPRA note 244 (providing in article 12 for liability of the landfill operator for corrective measures where "adverse environmental effects … are discovered").

332. Amended proposal for a Directive on civil liability, SUPRA note 331, art. 13.

333. "Incident" may refer simply to the initial deposit of waste ultimately causing harm or may be construed more broadly to include the continued leaching of the deposited waste to groundwater. The former construction would mean that someone taking an interest in land subsequent to the "incident" would not be subject to liability, while the latter construction would lead to the opposite result.

334. SEE, E.G., Commission Working Paper, CIVIL LIABILITY FOR DAMAGE CAUSED BY WASTE (Aug. 2, 1989) (surveying civil liability laws existing in the several member states).

22 ELR 10106 | Environmental Law Reporter | copyright © 1992 | All rights reserved