29 ELR 10297 | Environmental Law Reporter | copyright © 1999 | All rights reserved

European Community Environmental Law: Environmental Legislation

Rod Hunter and Koen Muylle

Editors' Summary: This Article is the second of three parts of a discussion of environmental law in the European Community. The first Article, which was published in the September 1998 edition of ELR's News & Analysis, discussed the evolving European treaties and institutions. This Article delves into the particulars of the European environmental regulatory framework. It begins by covering institutional issues and then moves into an inventory of production-related regulation. The Article covers environmental impact assessments, eco-management and auditing, major accident hazards, industrial emissions, ambient air and water quality, and waste management. The third and last Article in this series will be published in ELR's News & Analysis later this year, and all three Articles serve as the introductory chapterof the Environmental Law Institute's European Community Deskbook, 2nd Edition.

Mr. Hunter is a partner in the Brussels office of Hunton & Williams and heads the firm's European regulatory practice. Mr. Muylle serves as legal advisor to the Beigian Senate and was previously an associate in the Brussels office of Hunton & Williams.

[29 ELR 10297]

Since the first edition of the European Community Deskbook was published in 1992, much has changed at the institutional and regulatory levels within the European Community (EC). The basic European treaties twice have been subjected to what one might fairly call constitutional conventions, creating the so-called Maastricht1 and Amsterdam2 treaties. Both treaties resulted in major, if commonly underestimated, transfers of power from member states to European institutions. The EC also has modified fundamentally its environmental regulatory scheme. In many cases, it has replaced vague existing directives with more prescriptive and enforceable directives and regulations, and in other cases, it has imposed legislation in previously unregulated areas (e.g., product take-back).

This Article examines the EC environmental regulatory framework, in particular regulation focused on manufacturing. Part I reviews institutional and general issues, such as freedom of access to environmental information. And Part II covers production-related regulation, including industrial emissions, ambient quality rules (the Article does not cover mobile source regulation), and waste management.

[29 ELR 10298]

Institutional and General

European Environment Agency

In 1990, the Community adopted a regulation creating the European Environment Agency (the Agency).3 The establishment of the Agency was famously delayed because member states could not agree on sites for this and other EC agencies. It was not until October 1993, when a compromise was struck, that the Agency was sited in Copenhagen, Denmark.4 It began operating on October 31, 1994.

The Agency does not have the broad rule-making, enforcement, and inspection powers of the U.S. Environmental Protection Agency.5 Its main tasks are to collect and disseminate information on the environment. It carries out its tasks in cooperation with a European environment information and observation network (EIONET), a system of national monitoring and other authorities that help the Agency gather environmental information. The Agency publishes every three years an assessment of Europe's environment,6 as well as reports on topical issues such as air emissions and quality, biodiversity, and the marine environment.

Freedom of Information

The Directive on Freedom of Access to Information on the Environment7 requires member states to create procedures for citizens to obtain from public authorities information related to the environment. 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.8 "Information relating to the environment" means "any available information in written, visual, aural or database form on the state of water, air, soil, fauna, flora and natural sites," as well as on activities or measures that adversely affect, are likely to adversely affect, or are designed to protect them.9 The obligation to provide access to information applies to public authorities, that is, "any public administration at national, regional and local level with responsibilities and possessing information relating to the environment," including "bodies with public responsibilities for the environment and under the control of public authorities."10

The directive, however, creates potentially far-reaching exclusions from the obligation to supply information — a set of exceptions that may weaken the directive's practical significance. National authorities may refuse to grant an information request when the request may affect, among other things, foreign relations, national defense, 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."11 The last exception (for information that may result in more damage to the environment) may be particularly vulnerable to abuse in the hands of government officials who, for whatever reason, are not predisposed to release requested information.12

The directive requires that if a person believes that his or her request for information has been rejected unreasonably, then he or she must be able to appeal the public authority's refusal. Some countries, such as France and Portugal, have created a special administrative tribunal to deal exclusively with appeals in cases concerning access to information. In other countries, the general rules concerning judicial review of administrative decisions apply.13

The directive applies to member states, not to the European Union (EU) institutions. However, the Council and the Commission adopted in 1993 a Code of Conduct granting a general right of public access to Council and Commission documents, including those relating to environmental matters.14 A decision of March 21, 1997, granted access to documents held by the Agency.15 Pursuant to these decisions, [29 ELR 10299] anyone has, in principle, access to the documents held by the Council and Commission. However, exceptions similar to those laid down in Directive 90/313 for information held by member states apply to this right to access to Council or Commission information. The Council and Commission may refuse access to a document if disclosure could undermine protection of the public interest (i.e., public security, international relations, monetary stability, court proceedings, inspections, and investigations),16 the protection of a person's privacy, commercial and industrial secrecy, the financial interests of the Community, or if the documents are provided by a third party. The decisions add that the Council or Commission may also refuse access in order to protect the confidentiality of their proceedings. The Council and Commission, therefore, have broad latitude in determining whether or not to allow access to particular documents.17 In WWF v. Commission,18 the Court of First Instance held that these exceptions must be construed narrowly so as not to defeat the general principles enshrined in the decision.19 When refusing access to a document, the Council and Commission must — at least for each category of documents concerned — give the particular reasons that disclosure of the requested documents falls within one of the exceptions.20

Production-Related Regulation

Environmental Impact Assessment

The Environmental Impact Assessment Directive21 imposes an environmental impact assessment (EIA) requirement for certain projects to "identify, describe and assess in an appropriate manner … the direct and indirect effects" of the project on (1) humans, fauna, and flora; (2) soil, water, air, climate, and the landscape; (3) material assets and the cultural heritage; and (4) the interaction between all these elements.22 The directive does not provide substantive environmental protection standards, but instead, like the U.S. National Environmental Policy Act (NEPA),23 erects a procedural structure for 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 the following projects: oil refineries; large thermal and nuclear power stations; iron and steel works; integrated chemical plants; motorways, railways, airports, and ports; facilities for the incineration, treatment, or land disposal of toxic and dangerous waste; large waste water treatment plants; and nuclear reprocessing plants. Projects listed in Annex II are to be subjected to EIAs when they exceed nationally set thresholds or criteria, or when the national authority decides on a case-by-case basis that the characteristics and location of the project and the potential impact of the project require assessment.24 These Annex II projects are grouped into the following general headings: agriculture; extractive industry; energy industry; production and processing of metals; mineral industry; chemical industry; food industry; textile, leather, wood, and paper industries; rubber industries; infrastructure projects; other projects; tourism and leisure; and modifications of Annex I projects.

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

* a description of the project, including information on the site, design, processes, and wastes25

* "an outline of the main alternatives studied by the developer and an indication of the main reasons for his choice"26

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

* a description of "the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects" on the environment27; and

* a nontechnical summary of the project.28

The information required varies in an important way from that required under NEPA, which mandates that all "reasonable" alternatives to the project, including the alternative of not undertaking the project, be discussed in the assessment.29 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 or not to undertake the particular project. The directive, by contrast, requires only "an outline of the main alternatives studied by the developer."30 Thus, typically, a developer need discuss only several alternatives to satisfy this requirement, and the alternatives he or she chooses to discuss might not be the most informative.

National authorities are to have "an opportunity to express their opinion on the request for development consent."31 Any request for development consent and any information [29 ELR 10300] gathered pursuant to this directive is 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 development consent is granted."32 If a project is likely to have significant effects on the environment in another member state, that state has to be informed of the description of the project and has to be offered the opportunity to participate in the EIA procedure.33 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."34 When a decision has been made by the governmental authority, it shall inform the public of the decision and any conditions and "the main reasons and considerations on which the decision is based."35

Eco-Management and Auditing

Council Regulation 1836/93 allowing Voluntary Participation in an Eco-Management and Audit Scheme36 (EMAS Regulation) establishes an environmental management and auditing system for industrial facilities. Participation in this program entitles a company to register a participating site on an EC-authorized list of participating sites and to use an EC-approved statement of participation and graphics to publicize participation in the program. To participate, a company must implement the following requirements:

* An environmental policy, including a commitment to legal compliance and to "continuous improvement of environmental performance"37

* An environmental management system covering the particular site and including (1) a definition of management responsibilities, (2) preparation of an environmental effects register, (3) establishment of organizational structures and operating and record-keeping procedures, and (4) periodic audits38; and

* Verification by an external auditor (the "verifier") of the company's environmental management system, and creation of a public environmental statement noting "significant environmental issues" and including an emissions register.39

Participation is voluntary, though member states are free to make the scheme mandatory for particular industrial sectors, and the Commission was to reconsider the regime by July 1998.40

Environmental Policy and Program

Participating companies must adopt an environmental policy "in accordance with" the regulation.41 The policy is critical, as it is the principal vehicle by which substantive standards are incorporated in the EMAS system. As discussed in more detail below, the policy must (1) provide for "compliance with all relevant regulatory requirements regarding the environment," (2) make "commitments aimed at the continuous improvement of environmental performance," and (3) be based on "good management practices."42 The regulation goes on to require that the policy must address some 12 broadly cast issues, including (1) assessment, control, and reduction of environmental impact, (2) energy and raw material management, (3) waste management, (4) production process changes, (5) "product planning (design, packaging, transportation, use and disposal)," and (6) "environmental performance and practices of contractors, subcontractors and suppliers."43

The policy must be adopted at the "company" level,44 and this company-level policy is to be reduced to an "environmental program" for the particular participating site. The program shall include the company's "specific objectives and activities to ensure greater protection of the environment at a given site, including a description of the measures … envisaged to achieve such objectives and where appropriate the deadlines set for implementation …."45

[29 ELR 10301]

Environmental Management System

The environmental management system is defined as "that part of the overall management system which includes the organizational structure, responsibilities[,] practices, procedures, processes and resources for determining and implementing the environmental policy."46 The environmental management system must meet a series of requirements set out in the regulation's annexes that cover, among other things, organization and training, preparation of registers on environmental effects and on environmental law, and recordkeeping. This management system must then be complemented by periodic auditing.

[] Organization and Training. The company must define and document "responsibility, authority and interrelations of key personnel who manage, perform and monitor work affecting the environment."47 It must appoint a "management representative" with "authority and responsibility for ensuring the management system is implemented and maintained."48 It must also train workers and set up internal and external communication procedures.49

[] Registers. First, the company must examine the environmental effects of its activities and compile a register of effects identified as "significant."50 In preparing that register, the company must consider (1) "controlled and uncontrolled" releases to air and water, (2) solid and hazardous wastes, (3) "contamination of land," (4) natural resource use, and (5) "discharge of thermal energy, noise, odor, dust, vibration and visual impact."51 The company is also to consider, with some repetition, effects arising from (1) normal and abnormal operating conditions, (2) incidents, accidents and emergencies, and (3) "past activities, current activities and planned activities."52 Second, the company is to maintain a register including all legal and policy requirements applicable to its activities, products, and services.53

[] Documentation and Recordkeeping. A participating company must establish records "to demonstrate compliance with the requirements of the environmental management system" and to document the extent to which the company's environmental objectives are obtained.54

[] Reviews and Audits. At the outset, a company must conduct for a participating site an initial audit or "review," which is defined as the "initial comprehensive analysis of the environmental issues, impact and performances related to activities at a site."55 The information generated by the review is then to be used in developing the details of the environmental management system and in preparing the site's first environmental statement. The company must then periodically conduct an audit, which is defined as a "management tool comprising a systematic, documented, periodic and objective evaluation of the performance of the organization, management system and processes designed to protect the environment with the aim of … assessing compliance with company environmental policies."56 These reviews and audits may be conducted by either in-house personnel or external auditors.

The audits must assess the management system and determine conformity with the environmental policy and site program. Audits are to include an "assessment of the factual data necessary to evaluate performance."57 They are to cover (1) control of the activities' environmental impact; (2) energy and raw material management; (3) waste management; (4) noise; (5) new products and processes; (6) environmental [29 ELR 10302] performance of suppliers; and (7) accident planning and prevention.58

With regard to auditing standards, the regulation incorporates through the "environmental policy" the substantive standards that auditors and their verifiers are to use to evaluate participating companies. The environmental policy must (1) provide for "compliance with all relevant regulatory requirements regarding the environment"59; (2) include "commitments aimed at reasonable continuous improvement of environmental performance, with a view to reducing environmental impacts to levels not exceeding those corresponding to economically viable application of best available technology"60; and (3) be based on "good management practices."61 "Good management practices" are defined to include the following:

* assessment in advance of the "environmental impact of all new activities, products and processes";

* assessment and monitoring of environmental impacts of current activities;

* execution of "measures necessary to … reduce pollutant emissions and waste generation to the minimum and to conserve resources … taking account of possible clean technologies";

* implementation of "measures necessary to prevent accidental emissions of materials or energy";

* establishment of "monitoring procedures … to check compliance with the environmental policy and, where these procedures require measurement and testing, [establishment of] records of the results"; and

* provision of information to the public and "appropriate advice" to customers on "relevant environmental aspects of the handling, use and disposal of the products made by the company."62

As for auditors' written reports, they must "provide management with information on the state of compliance with the company's environmental policy and the environmental progress at the site," and "demonstrate the need for corrective action, where appropriate."63 These reports may turn out to be sensitive documents, and the way they are prepared will be important to the audited companies, particularly in the event of litigation.

[] Certification Under Recognized Standards. The regulation provides a means for companies, following the International Organization for Standardization (ISO) 9000 model, to have these environmental management and auditing systems certified. First, the Commission may recognize national, European (i.e., Comite Europeen de Normalisation (CEN)), or international (i.e., ISO) standards on environmental management systems and auditing if those standards include all of the corresponding elements of the EMAS Regulation.64 In that regard, the Commission recognized in 1997 the international environmental management standard ISO 14001 as covering some requirements of the EMAS Regulation.65 ISO requirements considered equivalent to EMAS include the obligation (1) to introduce an environmental program and an environmental management system applicable to all activities at the site; (2) to carry out an environmental audit; and (3) in the light of the findings of the audit, to set objectives "at the highest appropriate management level, aimed at the continuous improvement of the environmental performance."66

Second, a company whose environmental management and auditing systems have been certified by an accredited body pursuant to recognized standards "shall be considered as meeting the corresponding requirements of this [29 ELR 10303] Regulation."67 The arrangement does not relieve the company of obligations under the EMAS Regulation. It merely allows for a certification of the management and auditing systems, though it may, as is discussed in the Environmental Statements and Validation section below, simplify the verification process. Nonetheless, the substantive standards still apply.

Environmental Statements and Validation

The key to the effectiveness of the EMAS system as an enforcement tool is the public environmental statement validated by the external auditor, the verifier.

[] Environmental Statement. The regulation provides for full and simplified statements. A full statement is to be prepared after the initial review and each subsequent audit. A simplified statement, which is verified at the end of the audit cycle, is generally prepared annually in intervening years and includes a summary of figures on raw material, energy and water consumption, and noise.68 A full statement shall include, in addition to a description of activities, the following items:

* "an assessment of all the significant environmental issues of relevance to the activities concerned";

* "a summary of the figures on pollutant emissions, waste generation, consumption of raw material, energy and water, noise and other significant environmental aspects"; and

* "other factors regarding environmental performance."69

The first bullet requires the inclusion of "significant environmental issues" and thus, presumably, disclosure of the "significant" items noted in the environmental effects register, such as soil and groundwater contamination, as well as instances of noncompliance. Clearly there will be questions of thresholds (i.e, whether an isolated violation is "significant" and thus merits disclosure, or whether only persistent noncompliance problems need to be disclosed).

The second bullet is, in effect, an emissions register on a plant basis. Thus, although the Commission's efforts to adopt a toxic emissions register modeled on the U.S. Toxic Release Inventory attracted much criticism from industry, a potentially broader emissions register (applicable to "pollutant," not just "toxic," emissions) is already incorporated in the EMAS Regulation. The scope of this "pollutant emissions" register remains unclear. Should it include figures on permitted emissions only or others as well? Should it include only point-source emissions or fugitive emissions too? If fugitive emissions are included, how should they be calculated? Here again, it seems that verifiers should have broad discretion in determining how much information needs to be supplied.

The third bullet — "other factors regarding environmental performance" — is a catchall. In contrast to the first bullet, there is no requirement that matters be "significant." This heading enables verifiers to go beyond matters that need to be recorded in the effects register and require disclosure of essentially anything the verifier deems noteworthy.

[] Verification and Validation. The verifier's role is the most sensitive aspect of the regulation. Verifiers must check compliance with the regulation of environmental policies, programs, management systems, audit procedures, and environmental statements. The verifier must "investigate in a sound professional manner, the technical validity of the environmental review or audit or other procedures carried out by the company, without unnecessarily duplicating those procedures."70 In addition, the verifier must check whether the information in the environmental statement is "reliable" and whether the statement "adequately covers all the significant environmental issues" regarding the site.71 The verifier must then prepare a report for management, which must specify (1) cases of noncompliance with the regulation; (2) technical defects in the environmental management system, auditing, etc.; and (3) points of disagreement with the draft statement and amendments.72 Once the verifier is satisfied that the environmental management and auditing systems comply with the regulation and the statement adequately reflects all significant issues, he or she may validate the environmental statement, thereby allowing the company's participation in the EMAS system with regard to the site.73

The Commission is working on a guidance document elaborating in more detail the verifier's role. A recently published draft of the guidance document seeks to describe the verifier's responsibilities. The draft guidance document essentially restates the contents of the EMAS Regulation when it states that "the aim of the verification is not to substitute, repeat or complement the company's environmental audit assessment or any internal monitoring procedures, but rather, to confirm their validity." The draft guidance document opines that the verifier's function should be limited to (1) checking compliance with EMAS requirements; (2) verifying data found in the environmental statement; and (3) ensuring that the statement covers all significant environmental issues.74

In prognosticating on the way verifiers will over time fulfill their tasks, it is also worth considering the prior experience [29 ELR 10304] of the firms that will act as verifiers and the specter of liability for verifiers. The financial accounting firms are among the group of consultants who compete to act as verifiers. Indeed, the chairman of the ISO working group on environmental auditing standards was an employee of one of the big accounting firms. These consultants will likely bring to the environmental area their financial accounting methodology and mind-set.

Prudent verifiers likely will be influenced by potential liability exposure. Consider, for example, a company that succeeds in convincing a verifier to validate its environmental statement even though the statement does not note extensive soil and groundwater contamination or reveal a serious compliance problem that would have been discovered had the verifier investigated the statement's assertions in a "sound professional manner." If another company buys the equity of the first company and, in making its bid, relies on the clean bill of environmental health validated by the verifier, when the cleanup costs or the penalties are assessed, the second company may seek from the verifier compensation for the financial harm it suffered by relying on the verifier's validation of the statement.

These liability risks could be greater for verifiers when validated statements are relied on by insurers or lenders. Self-serving language inserted by verifiers that third parties should not rely on their work may provide verifiers little protection, especially since the purpose of the EMAS system is to provide third parties with information on the "environmental performance" of participating companies.

Some in industry argue that if a company has certified management and auditing systems, the verifier's role is reduced to little more than checking that the systems are indeed certified and that the statement's assertions appear plausible. The regulation provides that a company that has certified management and auditing systems in place "shall be considered as meeting the corresponding requirements of this Regulation." The verifier is to check (1) compliance with the regulation of the environmental management system; (2) the auditing system's technical validity, "without unnecessarily duplicating those procedures"; and (3) the reliability of the environmental statement's information. Thus, the mere fact that the company's management and auditing systems are certified indicates that those parts of the regulation have been satisfied. Extensive checks of the auditing system would "unnecessarily" duplicate the certified auditing and other procedures, and information generated by certified systems is presumptively "reliable."

While that line of argument may have its attractions, verifiers may be reluctant to validate statements — and assume liability risks — without first satisfying themselves as to the adequacy of the statements by checking underlying data. Besides, certification of management and auditing systems establishes presumptively only that those elements of the regulation are satisfied. The verifier must, in any event, check whether the environmental statement is "reliable" and "adequately covers all the significant environmental issues."75

Major Accident Hazards

In response to the industrial disaster involving the release of dioxin at Seveso, Italy, in 1976, the Community adopted in 1982 the Directive on Major Accident Hazards of Certain Industrial Activities76 (the Seveso Directive). This directive was replaced in 1996 by Directive 96/82 on the Control of Major-Accident Hazards Involving Dangerous Substances77 (Seveso II).

Directive 96/82, which is intended to prevent and limit the consequences of major accidents involving dangerous substances, sets up two tiers of regulatory control, depending on the presence78 of certain threshold amounts of specifically or categorically named substances. First, the directive's general requirements apply to establishments when thresholds set in Column 2 of Annex I, Parts 1 and 2 are met. An "operator"79 of such an establishment is obliged to take "all measures necessary" to prevent major accidents and to limit their consequences.80 The operator must provide the authorities with, inter alia, the following information:

* the nature, quantity, and physical form of the dangerous substances or category of substances involved;

* the activity or proposed activity of the installation or storage facility;

* the immediate environment of the establishments (elements liable to cause a major accident or to aggravate the consequences of such an accident).81

In the case of "new establishments," notification is required "a reasonable period of time before the start of construction or operation."82 For "existing establishments," the notification requirement applies as of February 2000. The operator must also inform the authorities of "any significant change in the nature, quantity or physical form of the dangerous substance present" and of "the permanent closure of the installation."83

In the event of a "major accident,"84 the operator must notify authorities immediately and provide them with information regarding the circumstances of the accident, the dangerous [29 ELR 10305] substances involved, and emergency measures taken, including future measures to be taken to alleviate medium and long-term effects of the accident and to prevent its recurrence.85

Second, the directive imposes extensive safety reporting obligations on establishments meeting higher thresholds, which are set out in Column 3 of Annex I, Parts 1 and 2. Operators of new establishments are required to draw up a safety report "a reasonable time prior to the start of construction or operation" and an internal emergency plan "prior to commencing operation."86 Operators of existing establishments previously covered by the Seveso Directive must submit a safety report and an internal emergency plan by February 2001.87 And operators of existing establishments not previously covered by the Seveso Directive must submit a safety report and an internal emergency plan by February 2002.88 Furthermore, operators of establishments meeting the higher thresholds must provide authorities with the "necessary information" to enable authorities to draw up external emergency plans.89

Safety reports are to demonstrate that (1) a major accident prevention policy and a safety management system have been put in place; (2) major accident hazards have been identified and measures have been taken to prevent them and to limit their effects; (3) adequate safety measures have been incorporated into the design, operation, and maintenance of the installation; and (4) internal emergency plans have been drawn up.90 A safety report contains "an updated inventory of the dangerous substances present in the establishment" and must also provide sufficient information to authorities to enable them to make informed decisions concerning the siting of new activities or developments around existing establishments.91 National authorities may "prohibit the use or continued use" of an establishment if they find the safety report to be insufficient.92

The internal emergency plans must contain information such as the names of responsible persons who set the emergency procedures into motion and liaise with authorities, actions to be taken to control the event and to limit its consequences, procedures for warning persons on- and off-site, and the extent to which staff have been trained in the duties they will be expected to perform.93

The safety report is to be made available to the public.94 The operator of an establishment where dangerous substances are present must also inform "persons liable to be affected by a major accident" and the public at large of "safety measures" and "the requisite behavior in the event of an accident."95 That information includes, inter alia, "an explanation in simple terms of the activity … undertaken at the establishment," the common or generic names of dangerous substances used, and "adequate information" on how the population concerned will be warned and kept informed in the event of a major accident, as well as on the actions the population concerned should take.96

The directive requires authorities to organize systematic inspections or controls of establishments where dangerous substances are present.97 Inspectors have to ensure that operators have taken appropriate measures to prevent major accidents and, in cases where major accidents do occur, to limit their consequences. They also verify whether data or information in the safety report or other reports submitted by the operator adequately reflects the conditions in the establishment. If those inspections show that the measures taken by the operator for prevention and mitigation of major accidents are "seriously deficient," authorities may prohibit the use of the establishment.98

Industrial Emissions

Integrated Pollution Prevention and Control

The Integrated Pollution Prevention and Control Directive (IPPC Directive),99 which regulates emissions to air, water, and land from a broad range of new and existing industrial facilities, must be implemented by member states by November 1999. The IPPC Directive will be the keystone of the European industrial pollution control scheme and will be the vehicle used to apply new and strengthened air and water quality programs to a wide range of industrial facilities.


The directive applies to new and existing listed installations. Though new installations fall subject to permitting obligations by November 1999, existing facilities fall subject(1) in the event of a "substantial change," or (2) in any event, within eight years of the directive's implementation, at the [29 ELR 10306] latest.100 The list of installations101 is broad and covers specific groups of facilities designated under the following headings:

* energy industry;

* production and processing of metals;

* mineral industry;

* chemical industry;

* waste management;

* other activities, inter alia:

* production of pulp and paper;

* pretreatment and dyeing of textiles;

* treatment and processing for food products;


* installations for surface treatment using organic solvents, having a capacity to consume more than 150 kilograms (kg)/hour or 200 tons/year of solvents.102

An installation covered by some, but not all, of these rubrics is subject to meeting specified thresholds for production capacity or outputs.

Some of the listings, such as the "waste management" rubric, are broad. The directive requires an IPPC permit for the recovery or disposal of "hazardous waste" when the installation has a capacity of more than 10 tons/day. Under the vague EC "waste" and "hazardous waste" definitions, byproducts and secondary raw materials may arguably be classed as waste or hazardous waste.103 So, if a facility burns hazardous waste (say, perhaps, a chemical byproduct) in on-site industrial boilers, and those boilers have the capacity to burn 10 tons/day, IPPC permitting obligations would be triggered.104

The organic solvents category could have an even broader field of application. Facilities for surface treatment that have a capacity105 to consume more than 150 kg/hour or 200 tons/year of organic solvents will be covered by the directive. These thresholds turn (1) on solvent consumption or usage, rather than solvent emissions, and (2) on the facility's capacity, rather than actual usage. This entry, hence, apparently covers semiconductor manufacturing facilities and many other basic manufacturing operations.

"Existing installations" are to fall subject to the directive by November 2007 and are subject to the directive sooner in the event of a "substantial change." "Existing installations" are defined by the following terms:

(1) facilities in operation as of the directive's implementation date, or

(2) facilities

(a) already permitted, or

(b) having been, "in the view of the competent authority, the subject of a full request for an authorization," provided that the facility is operating within a year of the directive's implementation date.106

New installations (those not classed as "existing") are subject to the directive's permitting and other obligations from the directive's implementation date.

The directive creates broad notification obligations in the event of facility modifications and grants permitting officials broad discretion in deciding whether to require a permit. First, operators of new and existing installations must report a change of the "nature or functioning, or an extension of the installation which may have consequences for the environment."107 Given that even the change of solvents used for cleaning tools may have environmental consequences, it would seem that this notification obligation is extremely broad (and would apply even to changes with positive environmental consequences). Second, a "substantial change" may not be undertaken without a permit. "Substantial change" is defined as "a change in the operation which, in the opinion of the competent authority, may have significant negative effects on human beings or the environment."108 Thus, the determination of whether a notified change triggers the time-consuming permitting process is left entirely to the permitting official's unguided, and effectively unchallengeable, judgment.109

Member states are to "periodically reconsider, and, where necessary, update permit conditions."110 Although the IPPC legislation requires that permits be revisited when, for instance, "substantial changes in the best available techniques make it possible to reduce emissions significantly without imposing excessive costs,"111 the directive sets no finite deadline for permit reevaluation.112


Permit application requirements are substantially broader than any previous requirements in EC environmental law. In addition, they are more ambitious than preexisting national [29 ELR 10307] law in many member states. Permit applications must include descriptions of the following:

* the installation and its activities;

* raw materials, other substances, and energy used and produced by the installation;

* the condition of the installation's site;

* the nature, quantity, and sources of "foreseeable" emissions, as well as an identification of "significant" environmental effects;

* the technology and techniques foreseen for minimizing and monitoring emissions; and

* measures for preventing and recovering waste.113

The directive goes on to provide for public disclosure of permit applications. Permit applications for new installations and for substantial changes must be made "available for an appropriate period of time to the public, to enable it to comment on them before the competent authority reaches its decision."114 Resulting decisions, as well as a copy of the permit and all subsequent modifications, must also be made available to the public.

Permit Conditions

The permit must include emission limits for "pollutants" that are "likely to be emitted from the concerned installation in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another (water, air and land)."115 Emission limit values are to be set on the basis of the best available technology (BAT) and are to ensure compliance with EC ambient standards.

[] BAT-Based Standards. In prescribing how emission limits are to be set for particular facilities, the directive begins by stating that these limits must be based on BAT, "taking into account the technical characteristics of the installation concerned, its geographical location and local environmental conditions."116 The directive provides a complex and confusing definition of BAT, which allows member states a good deal of latitude in interpretation. BAT is defined as "the most effective and advanced stage in the development of activities and their methods of operation" that indicates the practical suitability of particular techniques to serve as the basis for emission limit values designed to minimize "emissions and the impact on the environment as a whole."117 The directive then provides several sub-definitions.

* "Techniques" are defined as "technology used and the way in which the installation is designed, built, maintained, operated and decommissioned."118

* "Available" means those techniques:

developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator.119

* "Best" is defined as the "most effective in achieving a high general level of protection of the environment as a whole."120

The directive goes on to state that in selecting BAT, "special consideration" is to be given to a series of items listed in an annex to the directive.121 That annex begins by stating that in selecting BAT, the "likely costs and benefits of a measure and the principles of precaution and prevention" should be taken into account.122 The annex then lists the following items to be taken into account when determining BAT:

* use of "low-waste technology";

* use of less dangerous substances;

* development of recovery techniques and recycling of substances emitted and used in the process and wastes;

* technological advances and changes in scientific knowledge;

* nature, effects, and volume of emissions;

* commissioning dates for new and existing installations;

* length of time needed to introduce the BAT;

* consumption and nature of raw materials (including water) and energy efficiency;

* need to prevent or reduce the overall impact of the emissions on the environment and the risks to it;

* need to prevent accidents and to minimize the environmental consequences; and

* information published by the Commission and international organizations on BATs.123

Given the broadly phrased considerations listed in the sub-definitions and the annex, it is difficult to predict how BAT will be interpreted in particular cases. The drafters did not provide guidance on how the considerations are to be [29 ELR 10308] balanced. For example, the annex tells us that in selecting BAT "costs and benefits" are to be considered,124 but so are the "principles of precaution and prevention."125 The practical consequence is to leave to national officials a broad ambit of discretion. Scandinavian countries, the Netherlands, and Germany will continue to impose their relatively strict interpretations of BAT,126 while southern European countries keen on industrial development will be free to proceed with less exacting interpretations.

[] EC-Set Standards. The directive states that the Council will set emission limit values for listed installations and listed substances for which "the need for Community action has been identified …."127 In the absence of such EC BAT-based emission limit values, applicable emission limit values set in existing EC legislation on air and water emissions shall apply to the listed facilities as base limit values.128

[] BAT Information Exchange. Of greater practical significance, the directive instructs the Commission to "organize an exchange of information between the Member States and the industries concerned on best available techniques, associated monitoring, and developments in them."129 While this information exchange mechanism will not itself result in emission limit determinations binding on member states, the Commission expects that information generated on BAT will be influential with national permitting officials drafting permit conditions in particular cases.

The Commission has established a system for developing so-called BAT Reference Documents (BREFs). The Commission has created an IPPC Bureauat its Joint Research Center — the Institute for Prospective Technological Studies (IPTS) — in Seville, Spain. The IPPC Bureau organizes and coordinates the information exchange network, in particular the work on BREFs of committees of experts called Technical Working Groups (TWGs). Draft BREFs generated by TWGs and the IPPC Bureau are then commented on in the more openly political Information Exchange Forum (IEF), which consists of industry, environmental, and national representatives. Though the IEF will not have rulemaking authority (this elaborate system is being created merely in the name of "information exchange"), it will serve an important policy role in shaping the form and content of BREFs.130

As for the BREF work program, the Commission intends to produce BREFs covering all IPPC sectors by the year 2002. The first BREFs are expected to appear early in 1999.131 The 57 types of industrial activities covered by the directive have been grouped into 30 sets of similar or linked processes to be covered by BREFs. Under current plans, two further BREFs will be developed for "horizontal issues" such as emissions from storage and from vacuum/cooling systems. In the meantime, the IPPC Bureau is finalizing a pilot study on the ammonium sector.

[] Ambient Standards. The directive states that if an air or water quality standard requires conditions more strict than those attainable by use of BAT, the additional conditions will be required in the permit.132 The EC is currently overhauling its ineffective air and water quality legislation. With the phase in of the new rules and their detailed monitoring and public participation provisions, this element of the IPPC permit scheme will likely assume greater importance. In areas where air and water quality conditions are poor, manufacturers may find permitting officials imposing increasingly strict emission requirements, which may, in turn, have a zoning effect for industrial operations.

[] Monitoring and Reporting. IPPC permits must contain "suitable" release monitoring requirements specifying measuring methodology, frequency, procedure, and evaluation. Permitting authorities are to make the monitoring results available to the public.133 Also, the directive requires the installation's operator to inform the competent authority, [29 ELR 10309] "without delay[,] of any incident or accident significantly affecting the environment."134 No definitions or thresholds are provided to define what types of incidents or accidents "significantly" affect the environment, however.

"Integrated" Permit

Although initial IPPC Directive proposals would have required integration of national administrative structures to ensure a more integrated permitting process,135 the directive as adopted is much weaker. It leaves the choice of administrative structure to member states and merely orders them to ensure that the "conditions of, and procedure for the grant of, the permit are fully coordinated where more than one competent authority is involved …."136 Further, earlier versions of the proposal would have required permitting authorities to "describe how integrated considerations of air, water and land have been taken into account," and to explain the reasoning underlying permit conditions.137 The current version of the directive is devoid of such detailed obligations for permitting officials. Though the IPPC Directive may result in the issuance of single permits covering releases to air, water, and land, there is no assurance that the various environmental authorities will work together to produce a coherent permit in which cross-media trade offs have been considered.138

Polluting Emissions Register

The IPPC Directive provides that the Commission will publish every three years an inventory of the "principal emissions and sources responsible."139 This inventory is to be based on information supplied by member states. This register will be confined to data reported to member states from installations permitted pursuant to the directive (e.g., it will not include data from existing facilities not yet subjected to IPPC permits). Further, given that the register is dependent on member states transferring data to the Commission, and given the uninspiring record of member states in complying promptly with reporting obligations, it is doubtful that this register will provide timely information for policymakers and the public.

Air Emissions

Air Pollution From Industrial Plants

Directive 84/360 on Air Pollution From Industrial Plants140 requires the prior authorization of new plants of the types listed in Annex I before commencing operation (the authorization must be considered at the "design stage"). The directive also requires prior authorization in the case of substantial alteration of existing plants that belong to the categories that are listed in the annex or that, as a result of the alteration, will fall within those categories.141 Authorizations are to be issued only when member states are satisfied that (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 does not entail excessive costs"142; (2) "the use of the plant will not cause significant air pollution particularly from the substances"143 listed in Annex II of the Directive 84/360; and (3) none of the applicable emission and air quality limit values would be exceeded.

Directive 84/360 requires member states for existing Annex I sources to "implement policies and strategies, including appropriate measures, for the gradual adaptation" of such sources to BAT, "taking into account in particular" the following items:

— the plant's technical characteristics;

— its rate of utilization and length of its remaining life;

— the nature and volume of polluting emissions from it; and

— 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.144

The directive provided moreover, in Article 8, that the Council — voting unanimously — would adopt daughter directives that will set emission limit values for specific categories of industrial plants based on the BAT not entailing excessive costs (BATNEEC). Such limit values have been established for a limited number of categories of industrial plants.145

[29 ELR 10310]

Large Combustion Plants

The first daughter directive of Directive 84/360, the Directive on Emissions from Large Combustion Plants,146 applies to energy production plants with thermal inputs of 50 megawatts or greater.147 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.

The Large Combustion Plant Directive imposes on new plants (those receiving their original construction or operating permits after June 1987) uniform plant emission limit values for sulfur dioxide (SO2), dust, and nitrogen oxide (NOx).148 The emission limit values become stricter as the size of the installation (in terms of quantity of fuel consumed) increases.149 The limit values have to be included in all permits (called licenses) for the construction or operation of new plants. The permits are also to lay down discharge conditions and may include design specifications.150 Further, the directive imposes certain monitoring and reporting requirements on covered plants.151 As noted, the emission limit values for SO2, dust, and NOx will continue to apply to new installations authorized pursuant to the IPPC Directive.152

The directive requires member states, by July 1990, to devise plans for addressing air pollution from existing plants (plants that received their original construction or operating permits by the end of June 1987).153 The directive 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"154 in order to bring the member states into compliance on a schedule provided by Annexes I and II of the directive (and extending, for SO2, in three phases from 1993 to 2003 and, for NOx, in two phases ending respectively in 1993 and 1998). The reductions to be achieved by each member state differ. Each member state has to meet specific numerical "emission ceilings" (measured 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 SO2 and NOx.155

Municipal Waste Incineration Plants

Two daughter directives address municipal waste incineration plants specifically, one for new plants156 and another for existing plants.157 The new municipal waste incinerators directive provides emission limit values for municipal waste incineration plants158 that receive their first authorizations after November 1990.159 This directive (1) sets out a series of emission limit values for specified pollutants160; (2) prescribes design specifications161; and (3) imposes monitoring162 and reporting163 requirements. Member states are not to allow continued operation in violation of emission standards and must take the necessary measures to ensure that a plant exceeding the emission limits is modified or shut down completely.164

The existing municipal waste incinerators directive165 imposes a schedule for existing facilities166 to comply with the same conditions and technical requirements applicable [29 ELR 10311] to new facilities. Large existing plants (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 1996.167 Other existing plants must meet by December 1995168 the conditions and performance standards169 provided by the existing municipal waste incinerators directive and must meet by December 2000 the conditions of the new municipal waste incinerators directive.

In October 1998, the Commission proposed a directive on the incineration of waste that would ultimately replace Council Directives 89/369 and 89/429.170 The proposed directive covers both incineration and co-incineration plants.171 Incineration plants treating only hazardous wastes that fall within the scope of Council Directive 94/67 on the Incineration of Hazardous Waste172 are excluded from the proposed directive. The proposal would limit the emissions of dangerous pollutants, in particular dioxins, furans, and heavy metals, from nonhazardous waste, bringing them broadly into line with limits set for hazardous waste. Moreover, the proposed directive would set strict operational conditions concerning the level of incineration, water discharges, and residues. Incineration plants are to achieve a level of incineration such that the total organic carbon (TOC) of the slag and bottom ashes is less than 3 percent of the dry weight of the material.173 The proposed directive imposes a permit requirement for any water discharged from an incineration or co-incineration plant. Wastewater from the cleaning of exhaust gases may be discharged after separate treatment, on the condition that the concentrations of polluting substances in the wastewater do not exceed the emission limit values laid down in Annex IV.174 Residues from the incineration of waste are to be recycled "as far as possible directly in the plants or outside" in accordance with relevant community legislation.175

Hazardous Waste Incineration

Directive 94/67 on the Incineration of Hazardous Waste176 regulates the incineration of solid and liquid hazardous waste as defined in Directive 91/689 on Hazardous Waste, Article 1(4).177 The hazardous waste incineration directive applies to dedicated hazardous waste incineration plants, incinerator plants that are only occasionally fed with hazardous waste,178 and plants that burn such waste as fuel for any industrial process.179 The directive requires "new"180 and (as of July 2000) "existing"181 hazardous waste incineration plants to meet operation conditions and not exceed emission limit values laid down in the directive.182 Operators must have, prior to accepting the waste at the incineration plant, a description of the waste, including its composition and the hazardous characteristics of the waste.183 Hazardous waste incineration plants must achieve a level of incineration as complete as possible.184 The directive sets out half-hourly and daily emission limit values for dust, organic substances, hydrogen chloride, hydrogen fluoride, and SO2, and halfhourly to eight-hourly limit values for cadmium, thallium, mercury, lead, chromium, and other heavy metals.185 The emissions of dioxins and furans must be minimized by the most progressive techniques. However, for these two substances, the directive sets only a guide value.186 Operators have to monitor emissions using measurement techniques that meet the standards laid down in the directive's Annex III. Should the measurements show that the emission limit values have been exceeded, the incineration plant must temporarily cease to burn hazardous waste until the competent national authority authorizes the resumption of the incineration.187

Directive 94/67 also regulates wastewater discharges from hazardous waste incineration plants and the disposal of waste residues. Wastewater may be discharged only after separate treatment and only as long as the mass of heavy metals, dioxins, and furans contained in the wastewater does not exceed the limits for emissions into the air.188 The Community will set specific limit values for wastewater discharges from incineration plants.189 Residues must be recovered or disposed of in accordance with Directives 75/442190 and 91/689,191 which may require pretreatment of residues.192

[29 ELR 10312]

Volatile Organic Compound (VOC) Emissions From Solvents

In March 1999, the Council adopted a directive "on the limitation of emissions of volatile organic compounds due to the use of organic solvents in industrial activities."193 The legislation, which is meant to avoid or reduce emissions from the use of organic solvents by certain industrial activities, will have to be implemented by April 2001.194

[] Scope. The directive will apply to industrial activities listed in Annex I to the directive if they exceed the solvent consumption thresholds laid down in Annex IIA.195 Annex I to the proposed directive enumerates the following activities:

* adhesive coating;

* coating activity (applied to vehicles, metallic and plastic surfaces, wooden surfaces, textile, fabric, film and paper surfaces and to leather);

* coil coating;

* rubber conversion;

* dry cleaning;

* footwear manufacturing;

* the manufacturing of coatings, varnishes, ink and adhesives;

* the manufacturing of pharmaceutical products;

* printing;

* rubber conversion;

* surface cleaning;

* vegetable oil and animal fat extraction and refining;

* vehicle refinishing;

* winding wire coating;

* wood impregnation; and

* wood and plastic lamination.

New installations would have to comply with the proposed directive as soon as the transposition period has ended (April 2001). Existing installations196 would have to meet the directive's requirements by November 2007. However, when an existing installation undergoes a "substantial change," that part of the installation undergoing the substantial change will be treated as a new installation, and fall subject to the directive's requirements.197

[] Permits and Registrations. If a permit is not already required pursuant to the IPPC Directive, member states must either require installations operating one or more of the industrial activities that fall within the scope of the directive to apply for a permit or subject them to a registration requirement.198 The permit conditions and, for installations subject to a registration requirement, general binding rules must ensure that those installations meet the requirements of the proposed VOCs from the solvents directive.

[] Operating Conditions. Installations using organic solvents must comply with either the emission limit values in waste gases and fugitive emission values or the total emission limit values and other requirements laid down in Annex IIA to the directive.199 However, the operator may propose an alternative "reduction scheme." If national environmental authorities accept the scheme, the operator is exempted from complying with the emission limit values. Surprisingly, the proposal does not specify when member states may accept a reduction scheme proposed by an operator instead of imposing the stringent limit values. The preamble of the proposed directive merely says that "other measures, such as the use of low-solvent or solvent-free products or techniques, provide alternative means of achieving equivalent emission reductions."200 Member states thus seem to have a choice between limit values and reduction schemes. This could result in divergent approaches across member states.

Emission limit values are calculated as the mass of organic carbon or of individual organic compounds per cubic meter (m3) of waste gases.201 Fugitive emission values are expressed as a percentage of the solvent input to the installation, and the quantity of VOCs emitted is not to exceed this percentage.202 If an installation cannot, technically and economically, comply with the fugitive emission values, the competent national authority may make an exception for that installation "provided that significant risks to human health or the environment are not to be expected."203 This exception could render the fugitive emission values virtually meaningless, as installations could claim that they cannot comply with emission values because investment costs would be too high. Installations must operate under contained conditions, meaning that the installation must operate [29 ELR 10313] in such a way that the emissions can be collected, so that they are not entirely fugitive.204 The proposal provides, however, for an exemption for activities that cannot be operated under contained conditions.

The purpose of the reduction scheme is to achieve emission reductions equivalent to those achieved, if the limit values were to apply, by other means. The proposed directive outlines the content of a reduction scheme for installations for which a constant solid content of product can be assumed.205 For other types of installations, national authorities may impose other reduction schemes. An operator who wants to comply with a reduction scheme rather than the directive's limit values has to propose an emission reduction plan, including decreases in the average solvent content of input material and/or increased efficiency in the use of solids to achieve "the target emission," a reduction of the total emissions from the installation to a percentage of the annual reference emissions.206

In any event, all installations — including those for which a reduction scheme applies — have to comply with specific emission limit values for discharges of substances or preparations classified under Directive 67/548 as carcinogens, mutagens, or toxic to reproduction207 and for discharges of certain halogenated organic solvents.208

[] National Plans. Instead of imposing emission limit values and fugitive emission values on individual installations, member states may also define a national plan for reducing VOC emissions.209 The plan must result "in a reduction of the annual emissions of volatile organic compounds from existing installations covered by [the] directive by at least the same amount… as would have been achieved by applying the emission limits [laid down in the directive] during the validity period of the national plan."210 This is a particularly vague objective, as it will be hard for member states to predict the amount that annual VOC emissions would decrease if those emission limit values were to be applied. Moreover, the directive does not explain what type of measures the plan is to contain. It merely provides that the plan has to include "a list of measures taken or to be taken to ensure that the aim [reduction of VOC emissions with the same amount as would have been achieved by applying the emission limit values laid down in the directive] will be achieved," including "details of the proposed plan monitoring mechanism" and "binding interim reduction targets."211 National plans may vary considerably across member states. However, member states have to inform the Commission of the content of the plan. If the Commission decides that the proposed measures are insufficient to obtain a similar reduction of VOC emission as would have been achieved by applying the emission limit values laid down in the directive, the member state concerned will nevertheless have to apply those emission limit values.212

[] Monitoring. Member states must require operators to supply the competent authority once a year with data that enables the environmental authority to verify compliance with the directive.213 To show compliance with the requirements of a permit or with the general operating conditions, an operator must establish a solvent management plan. However, the plan has to demonstrate not only that an installation has complied with the limit values or with the requirements of a reduction scheme, but also has to identify "future reduction options."214 One may wonder why an operator who complies with the requirements of the proposed directive would have to show how he thinks he can reduce VOC emissions even further.

An operator who fails to meet the requirements of the directive would have to take appropriate measures to restore compliance and inform the member state. In cases of noncompliance causing immediate danger to human health, the authority must compel the operator to suspend the polluting activity.215


Directive 87/217 on Asbestos216 regulates asbestos emissions in water, air, and soil. The directive 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."217 Where asbestos is used, the national measures are to be based on a requirement of the "best available technology not entailing excessive cost."218 The directive also sets limit values for discharges of asbestos fibers into air219 and water220 and prescribes monitoring procedures and measuring requirements.221

[29 ELR 10314]

Water Discharges

Water Pollution Caused by Certain Dangerous Substances

The Framework Directive 76/464 on the Discharge of Dangerous Substances Into the Aquatic Environment222 aims at eliminating water pollution by certain particularly dangerous substances (List I — the so-called black list — in the Annex to the directive) and reducing water pollution by certain other less dangerous substances (List II — the gray list — in the Annex to the directive). The directive thus distinguishes between two categories of dangerous substances.223 The first class, the more dangerous List I or "black list" 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. The second class of pollutants, List II or "gray list" substances, which covers other substances considered to have a less harmful effect on the acquatic environment, includes, among other things: (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 that have an adverse effect on the oxygen balance, particularly ammonia and nitrates.

The Framework Directive requires member states to regulate the "discharge"224 to surface water225 of List I (black list)226 and List II (gray list) substances227 by requiring "prior authorizations"228 that impose emission standards for the discharge of those substances.229 The "emission standards" for List I substances are not to exceed limit values that are to be established at the Community level based on the best technical means available (BTMA). However, under a provision incorporated at the request 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. For the List II substances, the emission standards are based on water quality objectives and implementing programs developed by each member state.

Directive 76/464 thus adopts a "parallel approach" for black listed substances.230 First, the directive provides for the adoption — by unanimous voting within the Council — of daughter directives setting "limit values" to be incorporated in the permit emission standards.231 These limit values set the maximum permissible concentrations and quantities of the black listed substance.232 The directive states that these limit values are to be set "mainly" on the basis of the "toxicity," "persistence," and propensity to "bioaccumulate" of the particular substances and are to be developed "taking into account the best technical means available."233 Member states may, but need not, impose emission standards more stringent than the BTMA limit values warrant where ambient conditions require.234

The Commission has succeeded in adopting daughter directives that set limit values for only a limited number of substances.235 These directives establish the limit values (as [29 ELR 10315] well as quality objectives discussed below) and deadlines for compliance. They typically apply only to "industrial plants," which are defined as plants "handling" the particular substances,236 though they also typically require member states to "draw up specific programs 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."237 These daughter directives distinguish between existing and new sources.238 Typically, they contain a special 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."239 This requirement apparently applies without regard to the qualifications included in the substantive test for limit values in Directive 76/464, as the qualifications are not specifically listed, and without regard to whether a member state has chosen to regulate by quality objectives rather than limit values.

Second, 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.240 These quality objectives are to be set, "principally on the basis of 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 fresh-water."241 Thus, the framework directive allows member states to make emission standards less strict when 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.

As of November 1999, the possibility of member states determining emission standards for black listed substances on the basis of Community water quality objectives, rather than the Community limit values, will, however, no longer apply to new or substantially modified installations under the IPPC Directive.242 In so far as there are Community limit values for dangerous substances that those installations emit, the limit values will have to be included in the installation's permit.

The Water Framework Directive requires prior authorization for "all discharges," into the waters covered by the framework directive, that are "liable to contain any" of the List II substances.243 Member states "shall establish programs [of] … implementation," in which they "shall" fix quality objectives for water and "set deadlines for [program] implementation."244 A general program to reduce water pollution is not sufficient. Member states are obliged to establish specific programs to reduce pollution by gray listed substances.245 Based on the quality objectives, "emission standards shall be laid down" in the authorizations.246 Summaries of the programs and their implementation [29 ELR 10316] "shall" be communicated to the Commission.247 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 in effect since 1976. However, several member states have failed to adopt the required programs.248

Groundwater Discharges

The Groundwater Directive249 seeks to protect groundwater from contamination by black list and gray list substances250 by prohibiting certain direct discharges of black list substances and imposing permitting requirements for other direct and indirect discharges.251 Regarding black list 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 with certain safeguarding provisos.252 As for the indirect discharge of black list substances, authorization is necessary for "any disposal or tipping for the purpose of disposal of [black list] substances which might lead to indirect discharge."253 With respect to gray list substances, authorization is necessary for both direct discharges to groundwater254 and for "the disposal or tipping for the purpose of disposal of [gray list] substances which might lead to indirect discharge."255

Before granting either black list or gray list authorization, member states must conduct an investigation of "hydrogeological conditions" and "the risk of pollution and alteration of the quality of the groundwater"256 and must ensure that the groundwater will "undergo the requisite surveillance."257 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.

In February 1992 and in February 1995, the Council adopted a resolution requesting an action program for groundwater and the revision of Directive 80/68.258 The Commission issued a proposal for a Decision on An Action Program for Integrated Protection and Management of Groundwater.259 In their response, the Council and the Parliament informed the Commission that they preferred a global approach and requested the Commission to propose a Directive establishing a framework for European water policy.260 In April 1997, the Commission submitted its proposal.261 This proposal is discussed in the Ambient Quality section below on water quality legislation. Once the proposed directive is adopted, it will replace Directive 80/68.262

Urban Wastewater

Directive 91/217 on Urban Waste Water Treatment263 regulates collection, treatment, and discharge of urban wastewater [29 ELR 10317] as well as the treatment and discharge of wastewater from certain industrial sectors listed in Annex III.264 Municipalities are required to establish gradually collection systems designed according to the "best technical knowledge not entailing excessive costs."265 More specifically, member states are to ensure that "agglomerations"266 are provided with "collecting systems" for urban wastewater by January 2001, for those with a population equivalent (pe)267 of at least 15,000 and by January 2006, for those with between 2,000 and 15,000 pe.268 When urban wastewater is released to receiving waters considered "sensitive areas," 269 member states are to ensure that collecting systems are provided by January 1999, for agglomerations of more that 10,000 pe.270 However, where creation of a collection system is "not justified either because it would produce no environmental benefit or because it would involve excessive cost," the directive allows "individual systems or other appropriate systems which achieve the same level of environmental protection."271

The directive imposes a series of secondary treatment requirements. Member states are to ensure that urban wastewater entering collecting systems is subjected to secondary treatment or equivalent treatment before discharge in the following cases:

* by January 2001 for discharges from agglomerations of more than 15,000 pe;

* by January 2006 for discharges from agglomerations of between 10,000 and 15,000 pe;

* by January 2006 for discharges to freshwater and estuaries from agglomerations of between 2,000 and 10,000 pe.272

Discharges from urban wastewater plants must meet certain requirements for biochemical and chemical oxygen demand and for total suspended solids.273

Industrial wastewater, which is defined as wastewater "discharged from premises used for carrying on any trade or industry, other than domestic waste water and run-off rain water,"274 entering collecting systems and urban wastewater treatment plants must be subjected, by 1994, to pretreatment requirements imposed either by rule or by specific authorization.275 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 wastewater 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.276 Biodegradable industrial wastewater discharges going directly to receiving waters must be made subject to conditions provided for in prior regulations and/or authorizations.277

The Commission notes, in its 1997 Monitoring Report, that "Member States are required to ensure that, from 1998, 2000 or 2005, depending on population size, all cities have collecting systems for urban waste water. Up to now, the Commission's task has been restricted to checking that implementing measures complied with the Directive."278 The Commission notes that it has commenced proceedings against a number of member states — including Italy and Spain, but apparently not including France and the U.K. According to the Commission, "this Directive plays a fundamental role in the campaign for clean water and against eutrophication; the Commission is particularly eager to ensure it is implemented on time. Through the Cohesion Fund, the Community is also supporting the Member States' efforts to install the necessary facilities."279

Although the Commission may view this legislation as important, member states have much to do to ensure compliance. As the Court of Auditors pointed out in 1998, there are major inland cities in the EC with effectively no wastewater treatment. The Court of Auditors estimates that the cost of implementing the directive in nine member states (Belgium, Denmark, France, Germany, Ireland, Italy, Portugal, Spain, and the U.K.) would amount to 201 billion ECU.280

Nitrates From Agricultural Sources

Directive 91/676 Concerning Protection of Waters Against Pollution Caused by Nitrates From Agricultural Sources281 required member states to identify before January 1994, the waters affected (or which could be affected) by nitrate pollution.282 [29 ELR 10318] Member states are to designate as "vulnerable zones" "all known areas of land in their territories which drain into the waters [affected by nitrate pollution] and which contribute to the pollution."283 A code of good agricultural practice with the objective of reducing nitrate pollution for all waters must regulate, inter alia, periods when the application of fertilizers is "inappropriate," the storage of livestock manure, and the application (including rate and uniformity of spreading) of both chemical fertilizers and livestock manure.284 For vulnerable zones, member states must establish specific action programs. The action program must limit the application of fertilizers and imposes a maximum amount of livestock manure applied to the land each year.285

Ambient Quality


Old Air Quality Scheme

Since the early 1980s, the Community has had air quality legislation setting air quality objectives and limit values for SO2 and suspended particulates,286 NOx,287 and lead.288 These directives prescribed "limit values," which the member states are to ensure are met,289 and imposed sampling and reporting obligations on the member states. The directives on SO2 and particulates and on NOx also provided "guide values," which the member states were urged to try to achieve. The directive on lead did 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. Largely becauseof the vagueness of monitoring requirements, the application of the existing air quality scheme has been less than successful.

New Air Quality Scheme

In order to correct perceived flaws of existing air quality legislation, the EC adopted in 1996 Directive 96/62 on Ambient Air Quality Assessment and Management.290 This directive creates a more rigorous framework for promulgating air quality standards and methods for precise sampling, measurement, and assessment. It also specifies more detailed reporting obligations for member states. The new directive creates the regulatory framework, and "daughter directives" will provide specific criteria for sampling, measurement techniques, air quality assessment methods, air quality standards, and alert thresholds for a series of individual pollutants.

More specifically, Directive 96/62 on Ambient Air Quality Assessment and Management, for which basic administrative provisions were to be implemented by May 21, 1998, foresees a staged implementation of new ambient air limit values291 and alert thresholds.292 In the meantime, the preexisting [29 ELR 10319] ambient air quality standards continue to apply. The Commission is to submit to the Council proposals for limit values and, as appropriate, alert thresholds, according to the following prescribed timetable.293

Initial PollutantsTime Frame
Sulphur dioxideproposal by January 1997
Nitrogen oxideproposal by January 1997
Fine particulate matters suchproposal by January 1997
as soot
Suspended particulate matterproposal by January 1997
Leadproposal by January 1997
Ozonepursuant to Directive 92/72,
Article 8
Other PollutantsTime Frame
Benzeneproposal by January 1998
Carbon monoxideproposal by January 1998
Poly-aromatic hydrocarbonsJanuary 2000
CadmiumJanuary 2000
ArsenicJanuary 2000
NickelJanuary 2000
MercuryJanuary 2000
Commission proposals are also to prescribe measurement locations, procedures, and techniques as well as modeling echniques.294 The Council will need to adopt the proposals pursuant to the cooperation procedure.295 In November 1997, the Commission submitted its first proposal to implement Directive 96/62, containing limit values and alert thresholds for SO2, NOx, particulate matters, and lead.296 The limit values will have to be met by 2005 or 2010.

Even after new EC ambient standards have been set, member states remain free to set stricter limit values and alert thresholds. However, when they do so, they are to inform the Commission. When a member state notifies the Commission of its intent to set values for pollutants not covered by EC legislation, the Commission must "supply, in sufficient time, an answer to the question of the need to act at Community level following the criteria laid down in Annex III."297 The way this analysis is described, the starting assumption seems to be that when member states intend to promulgate ambient air quality standards, EC legislation is necessary unless demonstrated otherwise. As a practical matter, even when the Commission recommends EC values, the weight of the EC legislative process will render their actual adoption distant and uncertain.

Once EC limit values and alert thresholds have been set, the directive requires ambient air quality assessments pursuant to EC methods for, inter alia, defined population agglomerations298 and zones where pollutant levels exceed limit values.299 The directive foresees that, subject to certain conditions, national authorities may rely on "modeling or objective estimation techniques," but when actual measurements are required, they shall be taken "at fixed sites either continuously or by random sampling."300

Member states must draw up action plans setting out measures to be taken in the short term "where there is a risk of the limit values and/or alert thresholds being exceeded."301 The directive explains that plans may provide for measures to control and suspend activities, including motor vehicle traffic, which contribute to exceedances. Member states are also to draw up a list of zones and agglomerations in which pollutants are higher than the limit value (plus "the margin of tolerance,"302 where such a margin has been set). Member states must see to the preparation and implementation of publicly available attainment plans for these zones and agglomerations.303 In addition, member states are to draw up a list of zones and agglomerations in which pollutants are below limit values and are to "maintain the level pollutants in these zones and agglomerations below the limit values and shall endeavor to preserve the best ambient air quality, compatible with sustainable development."304 In the event of exceedance of alert thresholds, member states are "to inform the public (e.g., by means of radio, television and the press)."305 Within three months,member state are to notify the Commission of the levels recorded and the duration of the pollution episodes.

The directive has relatively extensive provisions on national reporting to the Commission. For example, after adoption of pollutant specific limit values, member states must:

* within nine months of a year's end, inform the Commission of exceedances of those values (and any prescribed tolerance margin), and causes of the exceedances;

* within two years, submit attainment plans to the Commission, and every three years thereafter, inform the Commission of progress of the attainment plan;

[29 ELR 10320]

* annually, within nine months of a year's end, submit to the Commission a list of nonattainment zones or agglomerations; and

* every three years, supply to the Commission information reviewing pollutant levels measured or assessed.306

On the basis of this information, the Commission will publish annually a list of nonattainment zones and aggregations and will publish, every three years, a report on ambient air quality in the Community.307

Water Quality

Existing Water Quality Rules

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 water308; another sets standards for bathing water309; and others establish standards for freshwater fish waters310 and for shellfish waters.311 Typically, these directives oblige the member states to designate the water bodies to which they shall apply312 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.313 The directives allow 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 so as to achieve the water quality standards.314 This latitude for member states in designating covered water bodies has done much to undermine the effect of these directives.

Proposed Water Quality Framework

The Commission submitted in April 1997, a proposal for a Directive establishing a Framework for Community Action in the Field of Water Policy.315 The proposed directive would rationalize the existing body of EC water legislation and provide a framework within which the EC and member states could develop water policy.

[] River Basin Districts. The proposal envisages the establishment of river basin districts by member states. By 2000, member states must identify "individual river basins" and assign them to "individual river basin districts."316 Small river basins may be combined with larger river basins or joined with neighboring small basins to form individual river basin districts. Where groundwaters do not follow a particular river basin, it is to be assigned to the "nearest or most appropriate river basin district."317 Coastal waters are also to be assigned to the "nearest or most appropriate river basin district."318 Member states are to ensure that "appropriate administrative arrangements" are established to administer the river basins.319 When a river basin covers more than one country, the relevant member states are to "jointly establish an international river basin district."320

Member states are "to draw up and make operational within a comprehensive river basin management plan" the measures thought necessary to:

(a) prevent deterioration of ecological quality and pollution of surface waters and restore polluted surface waters, in order to achieve good surface water status in all surface waters by 31 December 2010;

(b) prevent deterioration of groundwater quality, restore polluted groundwater, and ensure a balance between abstraction and recharge of groundwater, in order to achieve good groundwater status in all groundwaters by 31 December 2010; and

(c) comply with all standards and objectives relating to Protected Areas by 31 December 2010, unless otherwise specified in the Community, national or local legislation under which the individual Protected Areas have been established.321

If the objectives set under (c) are "incompatible" with those set under (a) and (b), objectives under (c) shall have priority.322

The December 31, 2010, deadline to reach the environmental objectives for surface and groundwater set under (a) and (b) may be extended for specific water bodies "when all the following conditions are met":

(a) natural conditions do not allow rapid improvements in the status of the body of water;

(b) all the measures required Article 13323 to bring the body to the required standard by the extended deadline [29 ELR 10321] have been established and made operational by 31 December 2007;

(c) the extension of the deadline, and the reasons for it, are specifically mentioned in the River Basin Management Plan required under Article 16.324

"Less stringent environmental objectives" may be set for specific water bodies when all of the following conditions are met:

(a) the body of water is severely affected by human activity and improvements in status are proven to be impossible or prohibitively expensive;

(b) the environmental objectives are established so as to ensure no further deterioration in status in order not to compromise the achievement of this Directive in other bodies of water within the same River Basin District;

(c) the establishment of the less stringent environmental objectives, and the reason for it, are specifically mentioned in the River Basin Management Plan required under Article 16;

(d) such less stringent objectives are established in a way which does not undermine the implementation of existing Community environmental legislation.325

Member states are to analyze characteristics of each river basin by December 31, 2001, and every six years thereafter. The analysis is to cover geographical and geological characteristics, hydrological characteristics, demographic characteristics, and "land use and economic activity" within the river basin district. The directive then foresees that the Commission, working through a comitology process, will promulgate the "technical specifications" forsuch analyses before 2000.326

Member states are also to conduct for each river basin a "review of the impact of human activity on the status of surface waters and on groundwater" by 2002 and every six years thereafter.327 The reviews are to cover:

(a) estimations of point source pollution;

(b) estimations of diffuse source pollution;

(c) estimations of water abstractions; and

(d) an analysis of other anthropogenic influences on the status of water.328

The Commission is to set, via the comitology procedure, the "technical specifications" of such reviews by 2000.329

[] Economic Analyses. Member states are to conduct for each river basin district "an economic analysis of water use" by 2002 and every six years thereafter.330 These analyses are to cover the following:

(a) the abstraction and distribution of fresh water;

(b) the collection and discharge of waste water;

(c) the volumes, prices and costs (including environmental and resource costs and benefits) associated with points (a) and (b);

(d) the breakdown of the data collected under points (a), (b) and (c) according to different sectors of the economic activity, broken down at least into households, industry and agriculture;

(e) long-term forecasts of supply and demand;

(f) estimates of investments in infrastructure by the public and private sectors ….331

The Commission is to set, via the comitology procedure, the "technical specifications" of such reviews by 2000.332

Member states are to identify "all significant bodies of water which are used for the abstraction of water intended for human consumption or which may in the future be used for the abstraction of such water."333 For those bodies of water, member states must establish environmental quality standards to ensure that the resulting water will meet the requirements of Directive 80/778 on Drinking Water Quality.334

[] Protected Areas Registers. Member states are to create, by 2002, a register of all areas that have been "designated as requiring special protection under specific Community, national or local legislation" for protection of water bodies or habitats and species.335

[] Monitoring. Member states are to implement water status monitoring programs to "establish a coherent and comprehensive overview of water status within each river basin district."336 Monitoring, pursuant to technical specifications to be promulgated by the Commission, is to cover ecological quality and chemical status of surface waters and chemical and quantitative status of groundwaters and is to be in operation by 2002.337

[] Charges for Water Use. Member states are to ensure by 2010 the "full cost recovery for all costs for services provided for water uses overall and by economic sectors, broken down at least into households, industry and agriculture."338 The proposed directive goes on to provide that member states may grant exemptions from these cost-internalization provisions (1) to ensure a "basic level of water use for domestic purposes at an affordable price"; (2) to allow "capital costs subsidies for infrastructure projects" that are designed to assist in achievement of environmental objectives of the directive; and (3) to take account of a "specific geographical or climatic situation" of a region eligible for Structural Funds subsidies. However, such exemptions are to be "explained in detail" in the river basin management plans, and a "detailed explanation" is to [29 ELR 10322] be sent to the Commission within six months of entry into force of the exemption.339

[] River Basin Plans. Member states have to draft, for each river basin district, a river basin management plan by January 2005.340 The management plans include, inter alia, a summary of the program the member states have to establish for each river basin district, containing measures to achieve the environmental objectives for that district.341 The program includes "basic measures" and, if necessary to achieve the environmental objectives, "supplementary measures."342 The basic measures consist of the following:

* those measures required to implement Community, national, or local water protection legislation;

* measures required to implement the charges for water use imposed pursuant to Article 12;

* measures required to meet the environmental quality standards for waters intended for the abstraction of drinking water by, in principle, December 31, 2010.

* for bodies of water having a chemical status below "good,"343 more intensive monitoring of the extent and nature of the pollution, investigation of the source of the pollution, and immediate review of all relevant authorizations and discharge permits followed by action based upon the level of risk involved;

* controls over the abstraction of fresh surface water and groundwater, including a register of water abstractors and permit requirements for water abstraction (except in areas where the member state concerned has demonstrated to the Commission that abstraction has no significant water status);

* a permit requirement for all activities having a potential adverse impact on the water status; and

* prohibition on the direct discharge into ground-water of twelve pollutants listed in Annex VIII.344

The program also includes whatever supplementary measures are considered necessary in order to achieve the environmental objectives for the district concerned.

River basin management plans may be supplemented by more detailed programs and management plans dealing with particular sub-basins within the district, particular sectors of the economy, or particular water classes or eco-systems.345

Old Drinking Water Rules

Directive 80/778 on Quality of Water for Human Consumption346 sets a series of maximum admissible concentration (MAC) levels for drinking water that member states are to ensure are obtained at the point of consumption.347 These MAC levels relate to characteristics such as color, turbidity, odor, and taste, as well as to specific chemical properties.348 Member states are to ensure "regular" monitoring of drinking water in order to check compliance with these MAC levels, and that monitoring is to take place at the point the water is made available to the user.349

As the Commission noted in its recent 1997 Monitoring Report, the Commission receives "many complaints concerning the incorrect implementation of Directive 80/778 …."350 The Commission observed that it has commenced a number of actions under this directive, including an action against France "concerning the distribution of water in the department of Eure (nitrates present in water)."351 After the Commission commenced an action before the European Court of Justice, France "withdrew two administrative circulars authorizing distribution of water containing nitrates and pesticides far in excess of the limits."352

New Drinking Water Rules

In January 1995, the Commission presented a proposal for a new directive to replace the 1980 Drinking Water Direotive.353 The proposal has since been the subject of considerable debate, with the Council taking a common position in December 1997,354 and the Commission, after the Parliament rendered its second opinion, adopting a "re-examined proposal."355 The proposal was finally adopted in November [29 ELR 10323] of 1998.356 The new legislation requires implementation by January 2001, and requires compliance with the new drinking water parametric values by January 2004.357

[] Scope. The proposed directive would apply to "water intended for human consumption," which is defined broadly to mean:

(a) all water either in its original state or after treatment, intended for drinking, cooking, food preparation or other domestic purposes, regardless of its origin and whether it is supplied from a distribution network, from a tanker, or in bottles or containers;

(b) all water used in any food-production undertaking for the manufacture, processing, preservation or marketing of products or substances intended for human consumption unless the competent national authorities are satisfied that the quality of the water cannot affect the wholesomeness of the foodstuff in its finished form.358

[] Exemptions. Notwithstanding its broad scope, the proposed directive provides for two sets of exemptions. First, the proposed directive exempts (1) natural mineral waters recognized by national authorities pursuant to Directive 80/777 Relating to Exploitation and Marketing of Natural Mineral Waters,359 and (2) waters classified as medicinal products under Directive 65/65 Relating to Medicinal Products.360

Second, the proposed directive would allow member states to exempt the following from the directive:

(a) water intended exclusively for those purposes for which the competent authorities are satisfied that the quality of the water has no influence, either directly or indirectly, on the health of the consumers concerned;

(b) water intended for human consumption from an individual supply providing less than 10 m3 a day as an average or serving fewer than 50 persons, unless the water is supplied as part of a commercial or public activity.361

In the latter case, the population concerned must be informed of the exemption and of measures that can be taken to protect human health from the adverse effects of water contamination. In addition, when a potential danger to human health arising from the water quality is apparent, the population concerned must "promptly be given appropriate advice."362

[] General Obligations and Quality Standards. The proposed directive would impose a series of general obligations. First, national governments are to ensure that drinking water is "wholesome and clean."363 The directive explains that water is "wholesome and clean" if it "is free from any micro-organisms and parasites, endocrine disrupting chemicals and from any other substances which, in numbers or concentrations, constitute a potential danger to human health," and if it "meets the requirements set out in Annex I, Parts A and B."364 Second, the proposed directive sets out in its Annex I a number of quality values.365 Member states are to set values applicable to drinking water for the parameters set out in Annex I, and the values are to be at least as stringent as those prescribed in that annex.366

[] Points of Compliance. The following parametric values must be complied with in the following circumstances:

(a) in the case of water supplied from a distribution network, at the point, within premises or an establishment, at which it emerges from the taps that are normally used for human consumption;

(b) in the case of water supplied from a tanker, at the point at which it emerges from the tanker;

(c) in the case of water put into bottles or containers intended for sale, at the point at which the water is put into the bottles or containers;

(d) in the case of water used in a food production undertaking, at the point where the water is used in the undertaking.367

In the case of water supplied from a distribution network, member states will be deemed to have fulfilled their obligations when they can show that "non-compliance with the parametric values … is due to the domestic distribution system or the maintenance thereof, except in premises and establishments where water is supplied to the public, such as schools, hospitals and restaurants."368 The proposed directive defines the term "domestic distribution system" as "the pipework, fittings and appliances which are installed between the taps that are normally used for human consumption and the distribution network but only if they are not the responsibility of the water supplier, in its capacity as a water supplier, according to the relevant national law."369

However, in such cases, if there is a risk that water supplied from a domestic distribution network will not comply with the parametric values, the member state must ensure that:

(a) appropriate measures are taken to reduce or eliminate the risk of non-compliance with the parametric values, such as advising property owners of any possible remedial action they could take, and/or other measures, such as appropriate treatment techniques, are taken to change the nature or properties of the water before it is supplied so as to reduce or eliminate the risk of the water [29 ELR 10324] not complying with the parametric values after supply; and

(b) the consumers concerned are duly informed and advised of any possible additional remedial action that they should take.370

[] Monitoring. Member states must monitor the quality of "all" drinking water in accordance with the requirements set out in Annexes II (monitoring program)371 and III (analytical methods).372 The proposed directive foresees that the Commission, working with a technical adaptation committee, may draw up "Community guidelines" for monitoring.373

[] Remedial Action and Restrictions in Use. The proposed directive requires that member states ensure that a failure to meet parametric values set pursuant to the directive are "immediately investigated in order to identify the cause."374 If drinking water does not meet the directive's parametric values, member states (subject to Article 6(2)), must ensure that "the necessary remedial action is taken as soon as possible to restore its quality and shall give priority to their enforcement action, having regard inter alia to the extent to which the relevant parametric value has been exceeded and to the potential danger to human health."375 Regardless of any failure to meet parametric values, member states are to ensure that any supply of drinking water that "constitutes a potential danger to human health" is prohibited, its use restricted, or such other action is taken as is necessary to protect human health. In such cases, consumers are to be informed promptly and given the "necessary advice."376 In the event of noncompliance with parametric values or specifications set out in Annex I, Part C, member states must "consider whether that noncompliance poses any risk to human health" and must take "remedial action to restore the quality of the water where that is necessary to protect human health."377

[] Derogations. The proposed directive would allow member states to grant derogations for up to three years from parametric values set out in Annex I, Part B, or set in accordance with Article 5(3), provided the derogation does not constitute a potential danger to human health and the drinking water supply in the area cannot otherwise be maintained by any other reasonable means.378 When a member state intends to grant a second derogation for up to three years, it must send to the Commission a review of the situation with the grounds for its decision on the second derogation.379 In "exceptional circumstances," a member state may ask the Commission for a third derogation for a period not exceeding three years.380

Any such derogation must specify the following:

(a) the grounds for the derogation;

(b) the parameter concerned, previous relevant monitoring results, and the maximum permissible value under the derogation;

(c) the geographical area, quantity of water supplied each day, the population concerned and whether or not any relevant food-production undertaking would be affected;

(d) an appropriate monitoring scheme, with an increased monitoring frequency where necessary;

(e) a summary of the plan for the necessary remedial action, including a timetable for the work and an estimate of the cost and provisions for reviewing;

(f) the required duration of the derogation.381

The proposed directive provides that when such a derogation is granted, the member state is to ensure that the population affected by the derogation is "promptly informed in an appropriate manner of the derogation and of the conditions governing it."382

[] Quality Assurance of Treatment, Equipment, and Materials. The proposed directive contains a vague provision concerning drinking water treatment equipment, materials, and substances. Member states are to ensure that no materials for new installations used in the preparation or distribution of drinking water or impurities associated with such materials for new installations remain in drinking water in concentrations "higher than is necessary for the purpose of their use and do not, either directly or indirectly, reduce the protection of human health provided for in this Directive."383

[] Revisions. The proposed directive requires that, at least every five years, the Commission must review Annex I (parameters and parametric values) and make proposals for amendments, where necessary, under the normal (cumbersome) legislative procedure.384 By contrast, at least every five years, the Commission is to adapt Annexes II (monitoring) and III (analytical methods) pursuant to a technical adaptation committee procedure.385

[29 ELR 10325]

[] Time-Scale for Compliance. The proposed directive requires that member states ensure that drinking water quality complies with this directive within five years of its entry into force.386 A member state may, in "exceptional circumstances" and for "geographically defined areas," applyto the Commission for a delayed compliance date. The extended period is not to exceed three years, toward the end of which the member state must prepare a review. The review is to be forwarded to the Commission, which may allow a second extension of up to three years.387 The Commission's decisions are to be taken pursuant to the directive's technical adaptation committee procedure.

Waste Management

In 1991, the EC overhauled its basic waste management legislation with the adoption of Directive 91/156, amending Directive 75/442 on Waste,388 and of Directive 91/689 on Hazardous Waste.389 A major motivation for the revisions was difficulty with the threshold terms "waste" and "toxic and dangerous waste" used under the earlier Directives 75/442 on Waste390 and Directive 78/319 on Toxic and Dangerous Waste.391 While the prior "waste" definition was circular,392 the "toxic and dangerous waste" definition was hopelessly vague.393 The result was inconsistent and varying implementation of EC waste legislation by member states. Vagueness of the "toxic and dangerous waste" term caused particular difficulties, as the 1984 Transfrontier Shipment of Hazardous Waste Directive's394 prior notification system depended on the term.

It is difficult to say that the 1991 legislation has supplanted confusion with clarity. Vagueness of the threshold term "waste" continues to plague EC (and national) legislation and is a major source of difficulty with the 1993 Regulation on Shipment of Waste, which applies to transfrontier movements of "waste," not just to "hazardous waste."395 The new "hazardous waste" definition has similarly been fraught with difficulties and, notwithstanding adoption of a hazardous waste list, promises to pose problems for the foreseeable future. To compound the confusion for those who must comply with the wastelegislation, the Shipment of Waste Regulation includes three additional wastes lists, typically referred to as the Green, Amber, and Red Lists.

Framework Directives on Waste and Hazardous Waste

Directive 75/442 on Waste, as amended, together with Directive 91/689 on Hazardous Waste provide the basic waste and hazardous waste regulatory framework into which other EC waste legislation is meant to fit. Before turning to these directives' substantive standards, this discussion first addresses the threshold issues of the definition of "waste" and "hazardous waste."

Threshold Terms

[] Waste. Directive 75/442 on Waste, as amended, applies to "waste," which is defined as a substance that "the holder discards or intends or is required to discard."396 The legislation leaves "discard" undefined. The directive's Annexes IIA and IIB list a series of waste "disposal" and "recovery operations," implying that those operations at least constitute discarding. However, at least with regard to the recovery, many of the operations are by their terms no different from other non-waste-related activities. Consider, for example, operation "R1 — Use principally as a fuel or other means to generate energy." Clearly, burning fuel to produce energy, as motorists do, does not make the fuel a waste, and the cars are not mobile incinerators requiring waste permits. Moreover, though the EC has prepared, pursuant to Directive 75/442 on Waste, a waste list called the European Waste Catalogue (EWC), this list is of absolutely no relevance in determining whether a particular material is a waste.397 In short, the EC "waste" definition is fundamentally vague, and the annexes do little to elucidate the term's scope.

The European Court of Justice (ECJ) has opined in several cases on the meaning of the "waste" definition, but has provided precious little guidance. In the 1990 Zanetti Case, the court ruled that "a substance of which the holder [discards] may constitute waste within the meaning of [the waste directives] even when it is capable of economic reutilization."398 In the 1997 Inter-Environnement Wallonie Case, the court held that "a substance is not excluded from [29 ELR 10326] the ['waste' definition] by the mere fact that [a substance] directly or indirectly forms an integral part of an industrial production process."399

In the Inter-Environnement Wallonie Case, Advocate-General Jacobs did discuss at some length the interpretation of the "waste" definition. Although opinions by advocates-general have no legal force, they are typically more thoroughly reasoned than the court's judgments and are often influential both with the ECJ and with national courts as they try to decipher cryptic ECJ rulings. In the Inter-Environnement Wallonie Case, Advocate-General Jacobs argued that a substance may not be a waste if it is destined to be put to use directly and in its existing form, without having to undergo a specific recovery operation.400

[] Hazardous Waste. In replacing the Toxic and Dangerous Waste Directive and its "toxic and dangerous waste" definition, the Hazardous Waste Directive defined "hazardous waste" as wastes featured on a list prepared pursuant to a committee procedure.401 The directive also defines as "hazardous waste" for purposes of EC law "any other waste which is considered by a Member State to display the properties listed in Annex III."402 In such cases, member states are to notify the Commission, and the classification is to be reviewed with a view to revising the EC hazardous waste list.403

In setting out the EC listing obligation, the Hazardous Waste Directive provides that the Commission, working through a technical committee consisting of itself and member state representatives, is to draw up the hazardous waste list.404 This list is to be drafted "on the basis of Annex I [list of waste sources and types] and Annex II [list of substances] to this Directive." The legislation further provides, "these wastes must have one or more of the properties listed in Annex III."405

The 14 hazardous properties set out in Annex III are the same properties used in EC chemical legislation. The properties are broadly cast and in many cases are, in the absence of further definition, extremely vague (e.g., "eco-toxic" is defined as "substances and preparations which present or may present immediate or delayed risks for one or more sectors of the environment"). Footnotes to Annex III are meant to give guidance. A note on "test methods" states that EC chemical legislation test methods are to "serve to give specific meaning" to the broad Annex III hazardous properties. A second note indicates that "attribution" in specific cases of the properties "toxic," "very toxic," "harmful," "corrosive," and "irritant" is to be made on the basis of the EC chemical legislation. A third note suggests, more tentatively, that the EC chemical legislation contains criteria for attribution of hazardous characteristics such as "carcinogenic," "teratogenic," and "mutagenic."

In late 1994, after considerable conflict between the Commission and several member states (notably Germany and France), the Council promulgated pursuant to the committee procedure a decision setting out the EC hazardous waste list.406 The Council decision observes, in the recitals, that the Hazardous Waste Directive requires promulgation of a hazardous waste list "on the knowledge" that the waste "displays" an Annex III hazardous property. The Council decision's recitals go on to assert that member states "may make provisions, in exceptional cases, to determine, on the basis of documentary evidence provided in an appropriate way by the holder, that a specific waste on the list does not display [an Annex III property]." The decision lists more than 200 waste types in an annex, with the entries drawn from and keyed to the EWC. The decision then states that these listed wastes are "considered to display" an Annex III hazardous property.407 The list provides no indication of the [29 ELR 10327] specific hazardous properties that each listed waste is thought to display.

The Commission, working through the committee procedure, is (as of this writing in early February 1999) considering adoption of a consolidated revised waste and hazardous waste list. The list would include entries for both nonhazardous and hazardous wastes, with the hazardous waste entries being indicated by an asterisk. This revised list would include additional hazardous waste entries, beyond those listed in the 1994 decision, as a consequence of consideration of notifications by member states.408

Waste and Hazardous Waste Regulation

[] General Principles. The Framework Directive on Waste409 requires 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.410

The Framework Directive on Waste further prohibits the "abandonment, dumping or uncontrolled disposal of waste."411

[] Permits and Registrations. The waste directives impose a permitting requirement412 for "disposal operations," including such things as landfilling, discharge to a "water body,"413 incineration,414 and storage pending disposal ("excluding temporary storage, pending collection, on the site where [the waste] is produced").415 Permits are also required for "recovery operations,"416 including, for example, material recycling, "solvent reclamation/regeneration," "oil rerefining and other reuses of oil," "recovery of components from catalysts," "use principally as a fuel or other means to generate energy," and storage pending recovery ("excluding temporary storage, pending collection, on the site where [the waste] is produced").417

The waste directives allow the exemption from permitting requirements of the following operations:

* "undertakings carrying out their own waste disposal at the place of production" (this permitting exemption extends to the disposal of waste only, and not hazardous waste418); and

* "undertakings that carry out waste [or hazardous waste] recovery."419

These exemptions, however, are available only in the following circumstances:

* if the relevant 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

* "if the types or quantities of waste and methods of disposal or recovery are such that [health and environmental protection requirements] are complied with."420

Exempted facilities must, however, be registered with authorities.

The disposal operation permits are to cover the following: (1) "the types and quantities of waste"; (2) "the technical requirements"; (3) "the security precautions to be taken"; (4) "the disposal site"; and (5) "the treatment method."421 The waste directives do not specify the content of a recovery operation permit. The Framework Directive on Waste and the Hazardous Waste Directive do not otherwise provide operational or technical standards. Such detailed performance standards are set out instead in activity-related directives such as those on incineration and landfills.

Undertakings which "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.422 It would seem that the transporter registration [29 ELR 10328] requirement would apply to waste generators who transport their own waste to recovery or disposal facilities, even if they own those facilities. The broker/dealer registration requirement seems especially broad. Many unsuspecting people dealing in "secondary raw materials" and commodity metals might well fall subject to this registration requirement.

[] Mixture Rule. The Hazardous Waste Directive provides that undertakings that "dispose of, recover, collect or transport hazardous waste do not mix different categories of hazardous waste or mix hazardous waste with non-hazardous waste."423 Apparently, the mixture prohibition does not apply to those who merely generate hazardous waste. In any event, with regard to mixture with nonhazardous waste, the mixture prohibition is vague. The directive prohibits mixture of different "categories of hazardous waste," but there is no indication as to what such "categories" are meant to be. The directive does, however, contemplate exceptions from this ambiguous mixture rule. It provides that one may mix hazardous waste with other hazardous waste or with nonhazardous waste when several vague principles are complied with and, "in particular[,] for the purpose of improving safety during disposal and recovery."424

[] Recordkeeping. All undertakings engaging in waste disposal or recovery operations are obliged to "keep a record of the quantity, nature, origin, and, where relevant, the destination, frequency of collection, mode of transport and treatment method …."425 While these recordkeeping requirements do not necessarily apply to waste producers and transporters, they do apply to "producers of hazardous waste" and to those "transporting hazardous waste."426

[] Hazardous Waste Site Identification. The Hazardous Waste Directive requires that "every site where tipping [discharge] of hazardous waste takes place the waste is recorded and identified."427 This provision could, in effect, become the basis of an EC-wide inventory of hazardous waste management units. However, it is worth noting that this provision is written in the present tense and, hence, does not appear to require identification of sites where tipping occurred before the directive's effective date.

[] Waste Management Plans. The Framework Directive on Waste requires competent authorities to draw up waste management plans with a view to, inter alia, establishing an "integrated and adequate network of disposal installations" enabling "the Community as a whole to become selfsufficient in waste disposal and the Member States to move toward that aim individually …."428 The amendments then authorize authorities "to prevent movements of waste not in accordance with their waste management plans."429 Authorities sensitive to public opposition may draw up waste management plans restricting movements into their jurisdiction. Competent authorities desiring to protect the market of local disposal firms may prevent the shipment for disposal of wastes out of their jurisdiction, thereby assuring captive markets for local firms.430

[] Responsibilities. In a little noted article, the Framework Directive on Waste provides that "the cost of disposing of waste must be borne by the holder who has waste handled by a waste collector or [treatment company], and/or the previous holders or the producer of the product from which the waste came."431 "Holder" is defined as "the producer of the waste or the natural or legal person who is in possession of it."432 "Producer" is defined as "anyone whose activities produce waste ('original producer') and/or anyone who carries out pre-processing, mixing or other operations resulting in a change in nature or composition of this waste."433 While little direct use has been made of these provisions, it is possible that they could serve as a basis for "producer responsibility" obligations.434

Waste Shipment

Regulation 259/93 on Shipment of Waste435 imposes an elaborate set of controls on the transfrontier movement of waste. The regulatory controls differ depending on whether the shipments are for disposal or recovery, and whether they are intra-EC shipments, or EC imports or EC exports. Roughly speaking, the shipment for disposal requirements resemble the prior authorization scheme of the Basel Convention on the Transboundary Shipment of Hazardous Waste,436 and shipment for recovery requirements are based on the Organisation for Economic Co-operation and Development (OECD) Decision on the Transfrontier Movement of Waste for Recovery.437

Shipments Between Members States


If a company intends to ship waste across national borders within the EC for disposal, it must comply with the regulation's prior authorization requirements. In such a case, it must notify, using a consignment note, the authority of destination of its intentions and must send a copy of the [29 ELR 10329] consignment note to the authority of dispatch and transit and to the consignee.438 On receipt of the notification, the authority of destination must, within three working days, send an acknowledgment of receipt to the notifier and must send copies to the other authorities and to the consignee.439 The authority of destination has 30 days following the acknowledgment to make its decision on the shipment (it may request additional information). It shall give its authorization only in the absence of objections on its part and on the part of other authorities. Authorities of dispatch and transit may raise objections within 20 days following the dispatch of the acknowledgment.440 These objections shall be conveyed to the notifier, with copies to the other concerned authorities.441

In order to implement the "principles of proximity, priority for recovery and self-sufficiency at Community and national levels," member states "may take measures in accordance with the [EC] Treaty to prohibit generally or partially or to object systemically to shipments of waste."442 Competent authorities of dispatch and destination may raise "reasoned objections" to proposed shipments if they do not comply with Directive 75/442 on Waste's waste plan provisions:443

(i) in order to implement the principle of self-sufficiency at the Community and national levels;

(ii) in cases where the installation has to dispose of waste from a nearer source and the competent authority has given priority to this waste;

(iii) in order to ensure that shipments are in accordance with waste management plans.444

The competent authorities of dispatch, destination, and transit may also raise "reasoned objections" to a proposed shipment if:

— it is not in accordance with national laws and regulations relating to environmental protection, public order, public security or health protection[;]

— the notifier or the consignee was previously guilty of illegal trafficking …[;]

— the shipment conflicts with obligation resulting from international conventions concluded by the Member State or Member States concerned.445

The shipment may be affected only after the notifier has received authorization from the destination authority.446 Once the notifier has received an authorization, it shall insert the date of shipment and send copies to the concerned authorities three working days before the shipment is made.447 Within three working days following receipt of the waste for disposal, the consignee must send copies of the completed consignment note to the notifier and the concerned authorities. Within 180 days following receipt of the waste, the consignee must send a certificate of disposal to the notifier and the other concerned authorities.448


The regime for cross-border shipment of waste for recovery is modeled on the OECD Decision on the Transfrontier Shipment of Waste for Recovery.449 That is, the procedural requirements depend on whether and how a waste is listed in the annexes of the regulation. Green listed wastes may be shipped liked commodities. Amber listed wastes are subject to a prior notification scheme under which one must first provide notice of a proposed shipment and, absent reasoned objections, may proceed with the shipment after a prescribed period. Red listed and unlisted wastes are subject to a prior authorization scheme resembling that for shipments for disposal, except that proximity and self-sufficiency are not valid grounds for objections.

[] Green Listed Wastes. Annex II (green list) wastes shall be accompanied by the following information, signed by the holder:

* the name and address of the holder;

* the usual commercial description of the waste;

* the quantity of the waste;

* the name and address of the consignee;

* the recovery operations; and

* the anticipated date of shipment.450

Otherwise, green listed waste may be shipped like other commodities.

[] Amber Listed Wastes. When a notifier intends to ship a waste listed on Annex III (amber list) from one member state to another, it must notify, using a consignment note, the destination authority and send copies of the notification to the dispatch and transit authorities.451 The consignment note must include information relating to the following:

[29 ELR 10330]

* "the source, composition and quantity of the waste for recovery, including the producer's identity and, in the case of waste from various sources, a detailed inventory of the waste and, if known, the identity of the original producer";

* "the arrangements for routing and for insurance against damage to third parties";

* "the identity of the consignee of the waste, the location of the recovery center and the type and duration of the authorization under which the center operates";

* the recovery operation to be conducted and "the planned method of disposal of the residual waste after recycling has taken place";

* "the amount of the recycled material in relation to the residual waste"; and

* "the estimated value of the recycled material."452

The notification must also include a contract with the consignee for the recovery of waste, which must include the obligation: (1) of the notifier to take back the waste if the shipment has not been completed as planned or has been effected in violation of the regulation; (2) of the consignee to provide, in the case of a retransfer of the waste to a third country, the notification of the initial country of dispatch; and (3) of the consignee to provide within 180 days following the receipt of the waste, a certificate to the notifier that the waste has been recovered in an environmentally sound manner."453 These contract requirements are somewhat peculiar. Presumably the contracts create rights and obligations only between the contracting parties — the notifier and the consignee. However, the regulation requires the inclusion of what are in effect regulatory provisions. Of course, the practical effect of these mandatory contractual provisions may be minimal when the parties do not wish to enforce them.

On receipt of the notification, the destination authority shall send, within three working days, an acknowledgment of receipt to the notifier and copies to concerned authorities and the consignee.454 The competent authorities of destination, dispatch, and transit have 30 days following dispatch of the acknowledgment to object to the shipment,455 and they have 20 days following the dispatch of acknowledgment in which to lay down conditions regarding transport within their jurisdiction. Destination and dispatch authorities may raise "reasoned objections" to the planned shipments in the following circumstances:

* pursuant to waste plans under the Framework Directive on Waste456

* "if it is not in accordance with national laws and regulations relating to environmental protection, public order, public safety or health protection";

* "ifthe notifier or the consignee has previously been guilty of illegal trafficking";

* "if the shipment conflicts with obligations resulting from international conventions concluded by the Member State or Member States concerned"; or

* "if the ratio of the recoverable and nonrecoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non recoverable fraction do not justify the recovery under economic and environmental considerations."457

It is worth noting that these objection grounds do not explicitly allow objections based on proximity or self-sufficiency grounds, in contrast to shipments for disposal. Some national officials have however tried to use the reference to waste plans as a basis for proximity and self-sufficiency objections (e.g., in order to protect the market of a local recovery facility). However, the Framework Directive on Waste's waste plans provisions extend only to disposal (not recovery), and the ECJ has rejected attempts to expand the scope of the proximity and self-sufficiency objects to recovery.458

However, the last objection ground, with its potpourri of considerations, enables national officials to object to almost [29 ELR 10331] any proposed shipment if they are so inclined. The use of the term "ratio" may make the balancing sound mathematical, but the provision does not specify what ratio of recoverable versus nonrecoverable waste is acceptable. Nor does it specify what estimated value from recovery, less costs of disposal of residuals, would be justifiable "under economic and environmental considerations."

The shipment may be effected after a 30-day period has passed if no objection has been lodged. "Tacit consent" expires one year from that date. When, however, the authorities decide to provide written consent, the shipment may be effected immediately after all necessary consents have been received. A copy of the consignment note must accompany the shipment. Within three working days of receiving the waste for recovery, the consignee shall send copies of the completed consignment note to the notifier and to the authorities concerned. Within 180 days following receipt of the waste, the consignee shall send a certificate of recovery of the waste to the notifier and the other authorities concerned.459

Authorities having jurisdiction over specific recovery facilities may decide that they will not raise objections concerning shipments of waste to the facility. In such cases, the authorities are to inform the Commission. All proposed shipments to such facilities require notification to the authorities concerned, with the notification arriving before the shipment being dispatched. The dispatch and transit authorities may raise objection to any such shipment.460

[] Red Listed and Unlisted Wastes. Annex IV (red list) wastes and unlisted wastes are subject to the same procedures as amber listed wastes, "except that the consent of the competent authorities concerned must be provided in writing prior to commencement of shipment."461

Shipments Within Members States

The regulation does not apply to shipments entirely within the territory of one member state, whether for disposal or recovery. The regulation, however, does require member states to "establish an appropriate system for the supervision and control of shipments of waste within their jurisdiction."462

Exports From the EC

The regulation prohibits all exports of waste for disposal, except when to an EFTA country that is also a party to the Basel Convention (e.g., Norway and Switzerland).463 This export ban could be vulnerable to a challenge under international trade rules. It may be difficult for the EC to show that the blanket ban in preventing exports to Canada and the United States serves a legitimate environmental objective and is proportionate, given that those countries are presumably at least as capable of regulating waste disposal activities as the EC states. In short, one might argue that the ban serves as a nontariff barrier protecting the market of EC disposal firms.

Otherwise, the regime for export to EFTA countries for disposal is largely similar to the prior authorization regime for cross-border shipments for disposal within the EC, except that the dispatch authority has responsibility for issuing the shipment authorization and the periods that authorities have to object and make decisions are longer.464 The permissible grounds for objection are those that are available for cross-border shipments for disposal within the EC. However, the dispatch authority may also refuse the export permission if it "has reason to believe that the waste will not be managed in accordance with environmentally sound [manner] throughout the period of shipment and in the State of destination."465

As for EC exports for recovery, the regulation prohibits exports for recovery except to:

* countries to which the OECD decision applies; and

* countries with which the EC or a member state has concluded a regional or bilateral agreement under Article 11 of the Basel Convention.

Otherwise, the regime for exports for recovery to OECD countries is similar to that for cross-border shipments within the EC, with its three-tiered control scheme.466 The regime for exports for recovery in non-OECD countries is based on the prior authorization requirements of exports for disposal, except that the permissible objection grounds are limited to those for cross-border shipments for recovery within the EC.467

Imports Into the EC

The regulation prohibits imports of waste for disposal or recovery, except from countries that are parties to the Basel Convention or countries with which the EC or a member state has an Article 11 agreement under the Basel Convention.468 The procedure for imports for disposal is largely the same as with regard to exports from the EC for disposal, except that it is the destination authority that issues the shipment authorization.469 The procedure for imports for recovery is basically the same as for exports from the EC for recovery.470

General Provisions

[] Guarantees. The regulation prescribes that all shipments "covered within the scope of this Regulation" shall be subject to the "provision of a financial guarantee or equivalent insurance costs for shipment, including [returns to the notifier], [29 ELR 10332] and for disposal and recovery."471 While member states are to notify the Commission of their rules on guarantees, there is wide diversity in how countries calculate the guarantees required.

[] General Notifications. The regulation creates a "general notification procedure" for instances in which "waste for disposal or recovery having the same physical and chemical characteristics is shipped periodically to the same consignee following the same route."472 Under this procedure, a single notification may cover several shipments over the maximum of one year.

[] Mixture. The regulation prohibits the mixing during shipment of wastes subject to different notifications.473

[] Recordkeeping. The regulation prescribes that "all documents sent to or by the competent authorities shall be kept in the Community for at least three years by the competent authorities, the notifier, and the consignee."474

[] List Revisions. The regulation provides that the Commission, working with the committee procedure under Directive 75/442 on Waste, shall revise the waste list annexes to the regulation. However, these annexes are to be "adapted … only to reflect changes already agreed under the review mechanism of the OECD."475

[] Illegal Trafficking. The regulation defines "illegal traffic" to include any waste shipment:

(a) without notification to all competent authorities concerned pursuant to the provisions of this Regulation; or

(b) without the consent of the competent authorities concerned pursuant to the provisions of this Regulation; or

(c) with consent obtained from the competent authorities concerned through falsification, misrepresentation or fraud; or

(d) which is not specified in a material way in the consignment note; or

(e) which results in disposal or recovery in contravention of Community or international rules.476

The regulation instructs that if such illegal traffic is the responsibility of the notifier of the waste, the dispatch authority shall ensure that the waste is "taken back by the notifier or, if necessary, by the competent authority itself, into the State of dispatch or if impracticable," and "otherwise disposed of or recovered in an environmentally sound manner, within 30 days from the time when the competent authority was informed of the illegal traffic or within such other period of time as may be agreed by the competent authorities concerned."477 If the illegal traffic is the responsibility of the consignee, the destination authority is to ensure that the waste is "disposed of in an environmentally sound manner by the consignee or, if impracticable, by the competent authority itself within 30 days from the time it was informed of the illegal traffic or within such other period of time as may be agreed by the competent authorities concerned."478

Waste Oil

The Directive on Disposal of Waste Oils479 requires member states to ensure "the safe collection and disposal of waste oils."480 "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."481

The directive establishes a priority scheme for waste oils processing. "Where technical, economic, and organizational constraints allow," member states are to give priority to "the processing of waste oils by regeneration."482 Where regeneration is not practicably possible, member states must ensure that "any combustion of waste oils is carried out under environmentally acceptable conditions…. provided that such combustion is technically, economically and organizationally feasible."483 Where neither regeneration nor combustion is possible, member states must take measures to ensure "the safe destruction" or "controlled storage or tipping" of the waste oils.484

Member states are to prohibit any discharge of waste oils to sea, surface, and groundwater 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."485 In order to ensure compliance with these standards, the directive creates registration and permitting requirements. Under the directive, facilities that collect waste oils must be registered,486 and facilities that dispose of waste oils must be permitted.487 "Disposal," for purposes of this directive, is defined as "the processing or destruction of waste oils as well as their storage and tipping above or under ground."488

Lastly, the directive has special provisions concerning polychlorinated biphenyls (PCBs). The directive prohibits the mixing of waste oils with PCBs and with hazardous waste.489 The directive provides that Directive 96/59490 on PCBs shall apply to waste oils containing more than 50 parts [29 ELR 10333] per million (ppm) of PCB, except, however, that such contaminated waste oils may be regenerated if the regeneration process makes it possible to destroy the PCBs or to reduce them so that the regenerated oils do not contain more than 50 ppm of PCBs.491


The Directive on Disposal of Polychlorinated Biphenyls and Polychlorinated Terphenyls (PCB/PCT)492 requires the preparation of inventories of PCB equipment as well as the phaseout and decontamination of PCB equipment, and it imposes a series of requirements on facilities undertaking those decontamination and disposal operations. The directive defines "PCBs" as:

— polychlorinated biphenyls,

— polychlorinated terphenyls,

— Monomethyl-tetrachlorodiphenyl methane, Monomethyl-dichloro-diphenyl methane, Monomethyl-dibromo-diphenyl methane, [and]

— any mixture containing any of the above mentioned substances in a total of more than 0,005% by weight ….493

The directive defines "equipment containing PCBs" as "any equipment containing PCBs or having contained PCBs (e.g., transformers, capacitors, receptacles containing residual stocks) which has not been decontaminated. Equipment of a type which may contain PCBs shall be treated as if it contains PCBs unless it is reasonable to assume the contrary."494

[] Inventories and Labels. Member states are to compile "inventories" of equipment with PCB volumes of more than 5 cubic decimeters (dm3).495 In the case of power capacitors, the threshold of 5 dm3 includes "all the separate elements of a combined set."496 The inventories shall comprise the following:

— the names and addresses of the holders,

— the locations and descriptions of the equipment,

— the quantity of PCBs contained in the equipment,

— the dates and types of treatment or replacement carried out or envisaged, [and]

— the dates of declaration.497

Equipment for which it is "reasonable to assume" that the fluids contain between 0.05 percent and 0.005 percent by weight of PCBs (1) may be inventoried without the data on the quantity of PCBs and without the treatment/replacement plans and (2) may be labeled as "PCBs contaminated < 0,05%."498

Member states must also ensure that equipment subject to the inventory requirement is labeled, and a "similar label must be affixed to the doors of premises where such equipment is located."499 As noted below, decontaminated equipment must bear a label indicating that the equipment has been decontaminated of PCBs.

[] Decontamination and Disposal. The directive requires that member states ensure that used PCBs are disposed of, and PCBs and equipment containing PCBs are decontaminated500 or disposed501 of "as soon as possible."502 The directive sets out several more specific rules on phaseout. First, it requires that equipment containing PCB volumes of more than 5 dm3, as well as the PCBs contained in that equipment, be decontaminated and/or disposed of by the end of 2010 at the latest.503 However, transformers, which have fluids that contain between 0.05 percent and 0.005 percent by weight of PCBs, may be kept in service until "the end of their useful lives."504

Second, where "reasonably practicable," equipment that contains PCB volumes of more than 5 dm3 and that is part of another piece of equipment shall be "removed and collected separately when the latter equipment is taken out of use, recycled or disposed of."505 Third, the directive prohibits "the topping up of transformers with PCBs."506 Until they are "decontaminated," taken out of service, and/or disposed of, the maintenance of transformers containing PCBs may continue "only if the objective is to ensure that the PCBs they contain comply with technical standards or specifications regarding dielectric quality and provided that the transformers are in good working order and do not leak."507

[] Decontamination/Disposal Facilities. Member states shall ensure that "all undertakings engaged in the decontamination and/or the disposal of PCBs, used PCBs and/or equipment containing PCBs obtain permits" under Directive 75/442 on Waste.508 The directive specifies that Directive 94/67 on Incineration of Dangerous Waste applies to the incineration of PCBs.509 Other methods of disposing of PCBs, used PCBs, and/or equipment containing PCBs may, according to the directive, be accepted "provided they achieve equivalent environmental safety standards — compared with incineration — and fulfill the technical requirements referred to as best available techniques."510 [29 ELR 10334] The directive also prescribes that PCB disposal undertakings shall keep registers of and report to authorities on the quantity, origin, nature, and PCB content of used PCBs delivered to them.511

The directive requires that "transformers containing more than 0.05% by weight of PCBs" be decontaminated under the following conditions:

(a) the objective of the decontamination must be to reduce the level of PCBs to less than 0,05% by weight and, if possible, to no more than 0,005% by weight;

(b) the replacement fluid not containing PCBs must entail markedly lesser risks;

(c) the replacement of the fluid must not compromise the subsequent disposal of the PCBs;

(d) the labeling of the transformers after its decontamination must be replaced by [labeling indicating that the equipment has been decontaminated of PCBs].512

[] Amendments and Further Disposal Rules. The directive grants the Commission, working with national officials through the committee procedure under Directive 75/442 on Waste, a broad power to promulgate detailed technical rules on PCBs. In particular, the Commission, working with the committee procedure, may "fix the reference methods of measurement to determine the PCB content of contaminated materials" and "fix technical standards for the other methods of disposing of PCBs."513

Titanium Dioxide

Community law also provides for special provisions relating to the handling and disposal of titanium dioxide. The Directive on Waste From the Titanium Dioxide Industry514 imposes a distinct permitting requirement for waste arising from "the titanium dioxide manufacturing process."515 Under the directive, prior authorization is required for the "discharge, dumping, storage, tipping and injection" of titanium dioxide waste. This 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.516 The directive further specifies certain conditions for the granting of an authorization,517 the contents of authorizations,518 and monitoring requirements.519

Directive 78/176 requires member states to draw up programs for the reduction and elimination of pollution from existing plants.520 The programs fix general objectives for the reduction of pollution by liquid, solid, and gaseous wastes. These objectives had to be reached by July 1, 1987. The programs also indicate the measures to be taken in the plants. As for new plants, the directive provides that they are subject to a permit requirement and that such a permit should only be granted if the plant will use only materials, processes, and techniques available on the market that are the least damaging to the environment.521

Directive 78/176 granted the Commission the power to propose harmonization of the national programs for the reduction of waste caused by the titanium oxide industry. In 1989, the Council adopted 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.522 This directive was, however, annulled by the ECJ because it lacked an appropriate legal basis.523 It took the Council until December 1991 to adopt Directive 92/112 replacing the annulled directive.524 Directive 92/112 prohibits, as of June 15, 1993, the dumping of any solid waste, strong acid waste, treatment waste, weak acid waste, or neutralized waste.525 The discharge of solid waste and strong acid waste and treatment waste is also prohibited for certain existing installations.526 The directive further sets emission limit values for the discharge of weak acid waste and neutralized waste.527 However, member states that do not want to apply the strict emission limit values may propose quality objectives that must have effects, in terms of environmental protection, equivalent to those of the emission limit values specified in the directive.528 The Commission must approve a member states' program to achieve those objectives.


The Commission proposed a Directive on Landfill of Waste in May 1991529 in order to impose detailed permitting, design, construction, operation, and closure obligations for new and existing landfills. The legislative discussions have been long and difficult. The Council of Ministers took a common position in October of 1995. However, the European Parliament rejected that common position document during the second reading. The Commission subsequently [29 ELR 10335] proposed a revised version in March 1997,530 which it has more recently amended.531

The proposed directive would rely on Directive 75/442 on Waste532 for the basic permitting obligations, but would impose, beginning June 30,2000,533 restrictions on the types of wastes that may be landfilled as well as detailed requirements on landfills regarding the content of permit applications,534 conditions under which a permit may be issued,535 content of permits,536 waste acceptance procedures,537 monitoring,538 and closure procedures.539 Although some member states have extensive landfill rules, the proposed directive, once adopted, will represent a major expansion of environmental regulation for many European countries.


The proposed directive would apply to new and existing "landfills."540 The term "landfill" is defined as

a waste disposal site for the deposit of waste on to or into land, including mine storage, and underground storage, internal waste disposal sites (i.e. landfill where a producer of waste is carrying out its own waste disposal at the place of production) and excluding facilities where waste is unloaded in order to permit its preparation for further transport for recovery, treatment or disposal elsewhere, and temporary (i.e. less than one year) deposit of waste prior to recovery, treatment or disposal.541

The terms "waste disposal site" and "deposit of waste" are not defined. Thus, this broad definition could arguably cover spill sites or instances of contamination.

The proposed directive would not, however, apply to the following activities:

* "the spreading of sludges, including sewage sludges, and sludges resulting from dredging operations, and similar matter on the soil for the purposes of fertilisation or improvement";

* "the use of inert waste which is suitable, in redevelopment/restoration and filling-in work, or for construction purposes";

* "the deposit of non-hazardous dredging sludges alongside small waterways from where they have been dredged out" and of nonhazardous sludges in surface water including the waterway bed; or

* "the deposit of unpolluted soil or of nonhazardous inert materials resulting from the" prospecting for or extracting, processing or storing of mineral resources, or from quarrying.542

Further, the proposed directive would authorize national governments to exclude landfills for inert and nonhazardous waste on islands543 or in isolated settlements544 from certain parts of the directive, including the financial security obligations, cost provisions, waste acceptance procedures, and monitoring requirements.545 If a member state grants such exemptions, it is to notify the Commission of the list islands and isolated settlements within two years after the entry into force of this directive.546

Procedural and Substantive Requirements

[] Landfill Classes. The proposed directive would group landfills into the following three types: (1) hazardous waste landfills; (2) nonhazardous waste landfills; and (3) inert waste landfills.547 The proposed directive provides that only waste fulfilling criteria set out in Annex II is allowed to be disposed of in a hazardouswaste landfill.548 Nonhazardous waste landfills may be used for municipal waste and nonhazardous waste of any other origin.549 Inert waste landfills must be used only for inert waste.550

[29 ELR 10336]

[] Biodegradable Waste. The proposed directive would seek to reduce the amount of "biodegradable municipal waste" going to landfills.551 First, the proposed directive prescribes that the "total amount" of biodegradable municipal waste going to landfills must not exceed the following targets:

* "by 2002, biodegradable municipal waste going to landfills must — as far as possible — be reduced to 75% of the total amount (by weight) of biodegradable municipal waste produced in 1993";

* "by 2005, biodegradable municipal waste going to landfills must be reduced to 50% of the total amount (by weight) of biodegradable municipal waste produced in 1993"; and

* "by 2010, biodegradable municipal waste going to landfills must be reduced to 25% of the total amount (by weight) of biodegradable municipal waste produced in 1993."552

Second, member states are to develop a "national strategy" reducing biodegradable municipal waste going to landfills and to notify the Commission of this strategy.553

[] Landfill Prohibitions. The proposed directive would require that member states prohibit lanfilling of the following:

* "liquid waste, unless authorized under [the directive]"554

* "waste which, in the conditions of landfill, is explosive, corrosive, oxidizing, highly flammable or flammable, as defined in [the Hazardous Waste Directive, Annex III]"555

* "hospital and other clinical waste arising from medical or veterinary establishments, which are infectious as defined (property H9 in Annex III) by [the Hazardous Waste Directive] and waste falling within category 14 (Annex I.A) of that Directive"556

* "whole used tires from two years from the date of entry into force of this Directive and shredded used tires five years from this date (excluding in both instances bicycle tires)"557; and

* "any other waste that does not fulfill the Landfill Directive's acceptance criteria, set out in Annex II."558

The proposed directive would also prohibit "the dilution or mixture of waste solely in order to meet the waste acceptance criteria."559 However, subject to the Hazardous Waste Directive, Article 2(3), and with the authorization of the national government, "hazardous waste may be treated for the purpose of consolidating or stabilizing it."560

[] Pretreatment. The proposed directive requires that all waste be subjected to "treatment" before landfilling.561 It provides, however, that the "treatment" requirement need not be applied to "inert waste for which treatment is not technically suitable or to other waste for which such treatment does not reduce the amount of waste or the dangers for human health or the environment."562 The proposal defines "treatment" as "the physical, chemical or biological processes, including sorting, that change the characteristics of the waste in order to reduce its volume or hazardous nature, facilitate its handling or enhance recovery."563 Although this treatment requirement could at first glance appear onerous, its actual impact will depend greatly on national interpretation. For example, how much "sorting" of municipal waste would be necessary to satisfy the treatment requirement? Would sorting by households into different streams (biodegradable waste, paper, plastics, glass, etc.) as is common in many member states be adequate, or would further "treatment" be required?

[] Permit Applications. The proposed directive would expand the information necessary for landfills pursuant to Directive 75/442 on Waste and require that landfill permit applications contain the following:

* "the identity of the applicant and of the operator564 when they are different entities";

* "the description of the types and total quantity of waste to be deposited";

* "the proposed capacity of the disposal site";

* "the description of the site, including its hydrological and geological characteristics";

* "the proposed methods for pollution prevention and abatement";

* "the proposed operation, monitoring and control plan";

* "the proposed plan for the closure and aftercare procedures";

* where an impact assessment is required under Directive 85/337,565 the information provided by the developer in accordance with that directive; and

[29 ELR 10337]

* proof of financial security by the applicant, or any other equivalent provision.566

In order to issue a permit, officials must ensure the following:

* that the landfill project complies with the Landfill Directive, including its annexes (Annex I prescribes a series of requirements concerning location, water control and leachate management, soil and growth protection, gas control, nuisances and hazards, stability, and fencing)567

* that the management of the landfill site will be in the hands of a "technically competent person" and "professional and technical development and training of landfill operators and staff" are provided568

* that "adequate provisions, by way of a financial security or any other equivalent (e.g., bank guarantee)," on the basis of modalities to be decided by member states, have been made by the applicant at the time of receiving the permit ensuring that obligations (including for aftercare) arising under the permit are discharged and that the closure procedures are followed569; and

* that the landfill project is compatible with the waste management plan developed pursuant to Directive 75/442 on Waste, Article 7.570

[] Permit Conditions. In addition to conditions required pursuant to Directive 75/442 on Waste, Article 9, the landfill permit must prescribe the following:

* the landfill type;

* the list of defined types and quantities of waste authorized to be deposited;

* requirements for the landfill preparations, landfilling operations, and monitoring and control procedures, including contingency plans (Annex III(4)(B)), as well as provisional requirements for the closure and aftercare operations; and

* reporting obligations regarding the types and quantities of waste disposed of and results of monitoring pursuant to Articles 12 and 15 of Annex III.571

[] Waste Acceptance. The proposed directive imposes a series of waste acceptance procedure requirements. First, before or at the time of delivery of (or at the first in a series of deliveries where the waste type remains unchanged), the holder or the operator can show that the waste can be accepted at that site according to the conditions set in the permit and that it fulfills the acceptance criteria that are set out in great detail in Annex II.572 Second, the proposed directive requires that the operator comply with the following procedures:

* check the waste documentation, including the documents required by the Hazardous Waste Directive, Article 5(3), and, where applicable, those required by the Shipment of Waste Regulation;

* visually inspect waste at the entrance and at the point of deposit and, as appropriate, verify conformity with the description provided in documentation submitted by the holder573; and

* keep a register of quantities and characteristics of the waste deposited, indicating origin, the date of delivery, the identity of the producer or collector in the case of municipal waste, and, in the case of hazardous waste, the precise location of the site.574

Third, the landfill operator must always provide written certification of each delivery accepted on the site.575 Fourthly, "if waste is not accepted at a landfill the operator shall notify the competent authority of the non-acceptance of the waste."576

The proposed directive also provides that, where member states have exempted landfill sites from provisions of the directive, they must ensure that there is "regular visual inspection of the waste at the point of deposit in order to ensure that only non-hazardous or inert waste from the island or the isolated settlement is accepted at the site," and that "a register on the quantities of waste that are deposited at the site be kept and be publicly available."577

[] Monitoring Procedures. The proposed directive requires the operator to implement a "control and monitoring program" as specified in Annex III.578 At the frequency prescribed by the authority, and at least at the end of each calendar year, the operator must report, on the basis of aggregated data, all monitoring results in order "to demonstrate compliance with permit conditions and increase the knowledge on waste behavior in the landfills."579

[] Corrective Measures. Under the corrective measures provision, the operator must notify authorities of "any significant adverse environmental effects" revealed by the monitoring procedures and "follow the decision of the competent authority on the nature and timing of the corrective measures to be taken."580 According to the proposed directive, "significant adverse environmental effects" are to be deemed to have occurred in the case of groundwater "when an analysis of a groundwater sample shows a significant change in water quality."581 The proposed directive then states that authorities should indicate a "trigger level" in the [29 ELR 10338] permit "whenever possible."582 The proposed directive specifies, in case there was any doubt, that these corrective measures shall be undertaken "at the expense of the operator."583 In short, this corrective measures provision could become a powerful device, particularly if a broad interpretation is given to the term "landfill," to force private parties to remediate soil and groundwater contamination at sites under their control.

[] Closure. Under the proposed directive, a landfill, or part of it, must begin the closure procedure under the following circumstances:

* when the relevant conditions stated in the permit are met;

* under the authorization of the authority, when the operator so requests; or

* by reasoned decision of the authority.584

A landfill or part of it may be considered definitively closed only after the authority has "filled out a final on-site inspection, has assessed all the reports submitted by the operator and has communicated to the operator its authorization for the closure."585

After a landfill has been definitively closed, the operator remains responsible for maintenance, monitoring, and control in the aftercare phase for as long as required by the authority.586 For as long as the authority considers that a landfill is "likely to cause a hazard to the environment" (and for a minimum of 30 years), the site operator remains responsible for monitoring and analyzing landfill gas and leachate from the site as well as the groundwater returns in the vicinity of the site in accordance with Annex III.587 However, the authority may "extend or shorten the said period if the operator is able to demonstrate, on the basis of the overall management program laid down in the Annexes, that the landfill no longer constitutes an active danger to the environment."588 The proposed directive also prescribes, however, that "no time limit should be imposed as regards the liability regime as established by the Member States."589

[] Existing Landfills. The proposed directive requires that landfills that have been "granted a permit, or which are already in operation at the time of transposition of this Directive"590 may not continue to operate unless the following steps are accomplished "as soon as possible and within five years"591 after the entry into force of the directive.

1. Within three years of the directive's entry into force, the landfill operator must present to authorities for approval a "conditioning plan" for the site including any corrective measures that the operator considers necessary.592

2. Following presentation of the conditioning plan, the authority must make a definitive decision on whether operations may continue on the basis of the conditioning plan and the Landfill Directive. Member states shall close down as soon as possible, in accordance with the directive's closure procedures, sites that have not received a permit to continue operating.593

3. On the basis of the approved site conditioning plan, the authority is to authorize the necessary work and prescribe a transitional period for the plan's completion. This plan is to be implemented within five years of the directive's entry into force.594

4. Within two years of the directive's entry into force, the directive waste acceptance rules and procedures are to apply to hazardous waste landfills.595

[] Costs. The proposed directive requires that

the minimum price to be charged by all public and private landfill operators for the disposal of any type of waste in a landfill shall cover at least all costs involved in the setting up and operation of the site, including the cost of the financial security referred to in Article 8(1)(c), and the estimated costs of the closure and aftercare of the site for a period of at least 50 years.596

The proposed directive further requires that national governments ensure "transparency in the collection and use of any necessary cost information."597


The proposed directive would authorize the Commission, working with the technical adaptation committee under Directive 75/442 on Waste, to amend the proposed directive's annexes and any proposals for the standardization of control, sampling, and analysis methods regarding waste landfilling.598 Proposals for the standardization of control, sampling, and analysis methods in relation to the annexes are to be adopted within two years of the directive's entryinto force.

1. Treaty on European Union, Feb. 7, 1992, 31 I.L.M. 247, 1992 O.J. (C 191) 1 (also called the Maastricht Treaty).

2. Treaty of Amsterdam, Oct. 2, 1997, 1997 O.J. (C 340) 1.

3. Council Regulation 1210/90 on the Establishment of the European Environment Agency and the European Environment Information and Observation Network, 1990 O.J. (L 120) 1.

4. Decision Taken by Common Agreement Between the Representatives of the Governments of the Member States, Meeting at Head of State and Government Level, on the Location of the Seats of Certain Bodies and Departments of the European Communities and of Europol, 1993 O.J. (C 323) 1.

5. A recent Commission proposal to amend the regulation creating the Agency would not significantly alter the Agency's powers. The Commission opposed the European Parliament's suggestion to grant the Agency enforcement powers. See Proposal for a Council Regulation Amending Regulation 1210/90 of May 7, 1990 on the Establishment of the European Environment Agency and the European Environment Information and Observation Network, 1997 O.J. (C 255) 9.

6. EUROPEAN ENVIRONMENT AGENCY, EUROPE'S ENVIRONMENT: THE SECOND ASSESSMENT (1998). The Agency's general assessment of the European environment is that progress has been made through environmental policies in reducing pressures such as emissions of pollutants, but that this has not led to an overall improvement in the quality of the environment.

7. Council Directive 90/313, 1990 O.J. (L 158) 56.

8. Id. art. 3.

9. Id. art. 2. In Case C-321/96, Wilhelm Mecklenburg & Kreis Pinneberg — Der Landrat. 1998 E.C.R. 1-3809, the European Court of Justice (ECJ) held that the Community legislature intended to make the concept "information related to the environment" a broad one, including the statement of views of a country side protection authority in development consent proceedings if that statement is capable of influencing the outcome of those proceedings. Id. at I-3833, para. 22.

10. Council Directive 90/313, supra note 7, art. 6. Private organizations and undertakings carrying out public nature protection tasks that are not controlled by a public authority are not covered by the directive. See Answer by Commissioner Bjerregaard to Parliamentary Question E-0332/98, 1998 O.J. (C 323) 31.

11. Council Directive 90/313, supra note 7, art. 3(2).

12. However, the ECJ held that the derogations laid down in Article 3(2) of the directive should be interpreted narrowly and may not be extended "beyond what is necessary to safeguard the interests which [they] seek to secure." Case C-321/96. 1998 E.C.R. at I-3835.

13. See generally ACCESS TO ENVIRONMENTAL INFORMATION IN EUROPE: THE IMPLEMENTATION AND IMPLICATIONS OF DIRECTIVE 90/313/EEC (Ralph Hallo ed. 1996) (providing an overview of the principal instruments for providing the public with access to environmental information in each member state).

14. Council Declaration 93/730/EC on a Code of Conduct Concerning Public Access to Council and Commission Documents, 1993 O.J. (L 340) 41: implemented by Council Decision 93/731/EC of December 20, 1993 on Public Access to Council Documents, 1993 O.J. (L 340) 43 and Commission Decision 94/90/ECSC, EC, Euratom of February 8, 1994 on Public Access to Commission Documents, 1994 O.J. (L 46) 58. The Treaty of Amsterdam inserts a new article 191 A into the EC Treaty, which provides that "any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents," subject to the principles and the conditions determined by the Council.

15. EEA Decision of March 21, 1997 on Public Access to European Environment Agency Documents. 1997 O.J. (C 282) 5.

16. The Court of First Instance held in Case T-83/96, Gerard van der Wal v. Commission, 1998 E.C.R. II-545, that the Council is obliged to consider in respect to each requested document whether, in the light of the information available to it, disclosure is in fact likely to undermine one of the facets of public interest protected. Id. at II-563-64.

17. Case T-194/94, John Carvel & Guardians Newspaper Ltd. v. Council, 1995 E.C.R. II-2765, II-2788.

18. Case T-105/95, 1997 E.C.R. II-313.

19. Id. at II-343.

20. Id. at II-345; see also Case T-124/96, Interporc Im- und Export GmbH v. Commission, 1998 E.C.R. II-231.

21. Council Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment, 1985 O.J. (L 175) 40, as amended by Council Directive 97/11 Amending Directive 85/337, 1997 O.J. (L 73) 5. The Commission has proposed a directive that would impose similar obligations for the adoption of town and country plans and programs. Proposal for a Council Directive on the Assessment of the Effects of Certain Plans and Programs on the Environment, 1997 O.J. (C 129) 14. Plans or programs can be adopted by administrative bodies and by legislative procedure. According to the proposal, an EIA should be made in both cases.

22. Council Directive 85/337, supra note 21, art. 3.

23. 42 U.S.C. §§ 4321-4370d. ELR STAT. NEPA §§ 2-209.

24. In Case C-133/94, Commission v. Belgium, 1996 E.C.R. I-2323, the ECJ held that a member state could not a priori exclude certain classes of projects listed in Annex II of an EIA. However, Directive 97/11 Amending Directive 85/337 grants member states the power to set thresholds for Annex II projects.

25. Council Directive 85/337, supra note 21, art. 5(3).

26. Id.

27. Id.

28. Id. art. 5(3), and Annex IV.

29. 42 U.S.C. § 4332 (C)(iii), ELR STAT. NEPA § 102(C)(iii).

30. Council Directive 85/337, supra note 21, Annex IV.

31. Id. art. 6.

32. Id.

33. Id. art. 7.

34. Id. art. 8.

35. Id. art. 9.

36. 1993 O.J. (L 168) 1.

37. Id. art. 3(a).

38. Id. art. 3(c) and Annex I.

39. Id. art. 3(f) and (g).

40. In October 1998, the Commission issued a Proposal for a Council Regulation Allowing Voluntary Participation by Organisations in a Community Eco-Management and Audit Scheme, 1998 O.J. (C 400) 7. The proposed regulation will replace Regulation 1836/93 on the date it enters into force. Id. art. 17, para. 1. See infra note 74 and accompanying text. The proposal could lead to important changes to EMAS. The core requirements of EMAS would be modified to make it more like the International Organization for Standardization (ISO) 14001 environmental standard. For example, the proposal suggests modifying the requirements for the environmental policy that companies have to adopt — EMAS currently requires that a company undertakes to comply with all environmental legislation, while the proposal would, like ISO 14001, require the company to ensure only a commitment to comply with the relevant environmental requirements. Id. art. 2(a). Given that the audits monitor compliance with the company policy, this would represent a significant modification of EMAS. However, unlike the ISO standard, EMAS would still provide for verification by third parties of a public environmental statement and compliance with the regulation.

The proposal also suggests enlarging the EMAS' scope from its current manufacturing focus and allowing participation by organizations, including any "company, corporation, firm, enterprise, authority or institution, or part or combination thereof, whether incorporated or not, that has its own functions and administration." Id. art. 2(1). It is worth noting, however, that several member states (e.g., Austria, Denmark, Germany, Spain, and the U.K.) have already taken similar measures to allow expansion of EMAS participation to nonindustrial activities.

41. Regulation 1836/93, supra note 36, art. 3(a).

42. Id.

43. Id. Annex I.D.

44. It is not at all clear whether the policy can be limited to a multinational corporation's participating sites, or even to its EC sites. The regulation defines "company" as "the organization which has overall management control over activities at a given site." Regulation 1836/93, supra note 36, art. 2(j). Depending on its corporate structure and where "overall management control" is deemed to lie, a multinational corporation could find that it must adopt a policy "in accordance with" the regulation for its worldwide operations as the price of qualifying one EC site under the EMAS Regulation.

45. Regulation 1836/93, supra note 36, art. 2(c). In drafting site-specific environmental programs, companies may find themselves navigating narrow straits. The program is to set quantifiable objectives and deadlines, where possible, for the various matters discussed in the company policy. It will be safer for companies to write their programs in vague and aspirational terms because companies will ultimately be audited against undertakings in programs. Nonetheless, companies may be tempted to set ambitious, detailed objectives in their programs as a means of stimulating "continuous improvement." More to the point, auditors and verifiers may demand that objectives be set out in detail, with numbers and dates. Failure to meet these objectives may then result in unflattering comments in the public environmental statement. Accordingly, companies need to pay close attention to the drafting of policies and programs in order to ensure that they are comprehensive and specific enough to satisfy the regulation (and verifiers), yet not cast so as to put companies at risk of negative comment in the statement for having failed to achieve the program's objectives.

46. Id. art. 2(e).

47. Id. Annex I.B.2. These designations of who is responsible for environmental management may well have implications for the liability of particular managers. Environmental law is typically enforced in Europe through administrative and criminal sanctions. There is now a trend in a number of member states to seek criminal sanctions against responsible managers. Indeed, in Germany, only natural persons, and hence not companies, may be criminally sanctioned, a circumstance which has, not surprisingly, heightened the interest of prosecutors in focusing their attention on managers. In such cases, questions of which manager is responsible for a particular subject matter inevitably arise. The designations under the regulation, particularly with regard to the "management representative," may make the answer fairly clear.

48. Id.

49. Id.

50. Id. Annex I.B.3.

51. Id.

52. Id. These provisions effectively require the company to investigate all releases, waste management, and contamination related to its activities and record those that are "significant." The company must investigate whether there is contamination on its site, arguably regardless of whether contamination was caused by its own activities or those of neighbors or predecessors. The company would also apparently need to investigate its off-site effects (e.g., off-site waste disposal) arising from current, as well as past, activities. After searching out these legacies from the past and present, the company must record in the register those deemed "significant" — an undefined term over which there will inevitably be debate. Of course, even if contamination is not deemed "significant" for these purposes, its mere discovery may trigger national law obligations to notify authorities or to disclose to a would-be purchaser.

53. Id. The preparation of a register including EC, national, and local requirements for activities at a site may be fairly straightforward. Consulting firms have been selling such lists of applicable requirements for several years, though the thoroughness and usefulness of such canned documents are doubtful. The obligation that the register include all requirements applicable to products may be more problematic. In the first instance, one may wonder whether many such requirements are relevant at the plant level, rather than at corporate headquarters or in the marketing department where product decisions are made. Second, the scope of the requirement is not clear. Must this register include product requirements for the locality of production? Or, must the register include any product requirements applicable anywhere the products from that site are sold or are otherwise put into commerce? In any event, if this requirement is taken seriously, it will be no easy task to keep such a register up-to-date, given the proliferation of product-related environmental regulatory requirements.

54. Id. Annex I.B.5. The recordkeeping and documentation procedures may prove to be an important and sensitive element of the EMAS system. The recordkeeping procedures could be particularly significant in the event that the company or its management seeks to rely on the presence of an effective environmental management program in a defense to a prosecution. Also, companies should be careful that their document-retention programs cover, appropriately, documents generated under the regulation. Last, they should consider the nature and contents of collected documentation, the extent of any legal privileges, and the likelihood of ultimate disclosure.

55. Id. art. 2(b).

56. Id. art. 2(f).

57. Id. Annex II.B.

58. Id. Annex II.C. Assessing compliance with law and with company policies and site programs is conceptually straightforward, as is the requirement that the audit involve "assessment of the factual data necessary to evaluate performance." It is less clear how these audits are to cover "new products and processes," given the absence of standards against which to audit. Audits seem inapposite in that context. The requirement that the "environmental performance of suppliers" be audited is potentially problematic. The apparent intention is to force a proliferation of the EMAS system up the production chain, with each manufacturer demanding proof of his suppliers' "environmental probity," and with the ultimate proof being participation in the EMAS system. The reality may be more complicated. For example, under the ISO 9000 quality systems, some companies that have tried to verify that all of their suppliers meet the same quality standards have found it a daunting, if not impossible, task.

59. Id. art. 3(a). The reference to legal requirements includes compliance with all applicable law — not just with what appears on the face of permits. This requires review of compliance not only with local, regional, and national environmental law, but also with EC environmental law. This subtlety might matter, since the member states are not always rigorous in their application of EC law, and there are instances where national and EC law conflict.

60. Id. At first glance, the obligation to make commitments aimed at "reasonable continuous improvement" seems insignificant. Such commitments are by their nature vague and aspirational and require, in effect, only that the company be able to show that it has gone through the motions of at least thinking of ways to improve performance (but, see the comments in note 45, supra, regarding the difficulties in drafting policies and programs). On the other hand, the reference to "reducing environmental impacts to levels not exceeding those corresponding to economically viable application of best available technology," may provide auditors and then verifiers a standard on the basis of which they may second-guess management.

61. Id. Annex I.D.

62. Id. The auditing against these "good management practices" appears to give the auditor and, hence, the verifier broad powers to question a company's operating procedures and decisions. For example, the auditor — and again, later, the verifier — may be able to question whether a participating company, which is in compliance with law, has taken all "measures necessary to … reduce pollutant emissions and waste generation … , taking account of possible clean technologies." Auditors and verifiers may well have their own views on what the "possible" clean technologies are in a particular sector.

Also, it is at best odd that an audit focusing on a particular site would include a review of whether the company provides customers with "appropriate advice" on "relevant environmental aspects of the handling, use and disposal of theproducts made by the company." (Emphasis added.) Such product-related requirements would not seem to belong in a plant-focused auditing system, and one might well question the capacity of auditors and verifiers to opine on such matters.

63. Id. Annex II.F.2.

64. Id. art. 12. For a discussion of the recognition of national and international standards, see Karola Taschner, Environmental Management Systems: The European Regulation, in NEW INSTRUMENTS FOR ENVIRONMENTAL POLICY IN THE EU 8 (European University Institute Working Papers, Robert Schuman Center, No. 98/21, 1998).

65. Commission Decision on the Recognition of the International Standard ISO: 1996 and the European Standard EN ISO 14001:1996 Establishing Specification for Environmental Management Systems, in Accordance With Article 12 of Council Regulation 1836/93 Allowing Voluntary Participation by Companies in the Industrial Sector in a Community Eco-Management and Audit Scheme, 1997 O.J. (L 104) 37.

66. Id. Annex.

67. EMAS Regulation, supra note 36, art. 12. With regard to those EMAS parts forwhich no ISO 14001 equivalent is recognized (e.g., environmental policy, environmental statement, verifications), the Center for European Normalization (CEN) has prepared an ISO/EMAS "bridging document." CEN CR 12969: 1997. This document is meant to provide useful guidance to companies and verifiers when ISO 14001 certified companies seek registration under EMAS. Also, the Commission has prepared a guidance document to help EMAS verifiers when evaluating enterprises that have already obtained an ISO 14001/EN ISO 14001 certificate. EUROPEAN COMMISSION, DG XI, 353-97 (1997).

68. EMAS Regulation, supra note 36, art. 5(5).

69. Id. art. 5(3).

70. Id. Annex III.B.1.

71. Id.

72. Id. Annex III.B.3.

73. Id. Annex III.B.4(a).

74. EUROPEAN COMMISSION, GENERAL GUIDANCE DOCUMENTS FOR ACCREDITED ENVIRONMENTAL VERIFIERS UNDER REGULATION 1836/93 AND ON THE VERIFICATION AND VALIDATION APPROACH (1997). The proposed Council Regulation, supra note 40, Annex V, adds that the verifier should (1) establish that an organization has procedures in place to control those aspects of its operations subject to relevant community or national laws and that these procedures are capable of delivering compliance, and (2) ensure that the components of the organization are unambiguously defined and correspond to a real division of activities.

75. EMAS Regulation, supra note 36, Annex III.B.

76. Council Directive 82/501 on the Major Accident Hazards of Certain Industrial Activities, 1982 O.J. (L 230) 1, as amended by Directive 87/216, 1987 O.J. (L 85) 36 and Directive 88/610, 1988 O.J. (L 336) 14.

77. 1997 O.J. (L 10) 13.

78. The "presence of dangerous substances" means either "the actual or anticipated presence of such substances in the establishment" or "the presence of those substances which may be generated during loss of control of an industrial process." Id. art. 2(1).

79. "Operator" means person "who operates or holds an establishment" or, "if provided for by national legislation, has been given decisive economic power in the technical operation" of the establishment. Id. art. 3(3).

80. Id. art. 5(1). This general requirement could mean that member states could impose supplementary obligations on operators, beyond the specific requirements of the directive, if it can be shown that they are "necessary to prevent major accidents and to limit their consequences."

81. Id. art. 6(2).

82. Id. art. 6(1).

83. Id. art. 6(4).

84. "Major accident" means

an occurrence such as a major emission, fire or explosion resulting from uncontrolled developments in the course of the operation of any establishment covered by the directive, and leading to a serious danger to human health and/or the environment, immediate or delayed, inside or outside the establishment, and/or to the environment, and involving one or more dangerous substances.

Id.art. 3(5).

85. Id. art. 14(1).

86. Id. art. 9(3) and art. 11(1).

87. Id.

88. Id.

89. Id. art. 11(1)(b).

90. Id. art. 9(1). Annex II to the directive contains a detailed description of the information the safety report is required to contain, such as, a description of the installation (main activities, products, operating methods, dangerous substances, etc.), an accidental risk analysis (detailed description of possible major accident scenarios, assessment of the extent and the severity of the consequences of identified major accidents), and measures of protection (description of the equipment installed in the plant to limit the consequences of major accidents, organization of alert and intervention procedures, description of mobilizable resources, etc.).

91. Id. art. 9(1) and (2). According to Article 12, member states are to use planning laws and other land use policies to prevent and limit the consequences of major accidents. In the long term, according to the directive, there should be an "appropriate distance" between establishments where dangerous substances are present and residential areas, areas of public use, and areas of particular natural sensitivity.

92. Id. art. 9(4).

93. Id. Annex IV.

94. Id. art. 13(4). The operator, however, may ask that competent authorities not disclose certain parts of the report for reasons of industrial, commercial, or "personal" confidentiality, public security, or national defense. Id.

95. Id. art. 13(1) and (2).

96. Id. Annex V.

97. Id. art. 18(1). The directive requires at least 1 on-site inspection every 12 months of establishments for which the more stringent requirements (e.g., safety report, emergency plan) apply.

98. Id. art. 17(1). Authorities may also prohibit the use of an establishment if the operator has not submitted the notification, reports, or other information required by the directive. Id.

99. Council Directive 96/61 Concerning Integrated Pollution Prevention and Control, 1996 O.J. (L 257) 26.

100. Id. art. 5(1).

101. "Installation" is defined as "a stationary technical unit where one or more activities listed … [are] carried out, and any other directly associated activities which have a technical connection with the activities carried out on that site and which could have an effect on emissions and pollution." Id. art. 2(3).

102. Id. Annex 1.

103. Rod Hunter, The EU's Waste Regulation Bungles Free Trade, WALL ST. J. EUR., July 8-9, 1994, at 8; Rod Hunter, The Problematic EU Hazardous Waste List, 4 EUR. ENVTL L. REV. 83 (Mar. 1995).

104. This IPPC permit requirement would be in addition to (not instead of) the EC waste management permit requirement, which would also be triggered.

105. According to a declaration of the U.K. delegation in the Council minutes, "the solvent consumption capacity … is the solvent consumption capacity of an installation in normal operation." Statement for the Council Minutes, Addendum to Document 9389/96, ENV 276 PRO-COOP 126, Sept. 5, 1996, at 4 [hereinafter Addendum to Document 9389/96].

106. Council Directive 96/61, supra note 99, art. 2(4).

107. Id. art. 2(10) (emphasis added).

108. Id. art. 2(10)(b) (emphasis added).

109. The Council and Commission recorded in the Council minutes a declaration asserting that, "Member States may lay down general criteria for the assessment by the competent authorities in cases where changes in operation may have significant negative effects …." Addendum to Document 9389/96, supra note 105, at 2. Inevitably, threshold criteria for determining when changes constitute substantial changes requiring permits will have an element of arbitrariness. Nonetheless, depending on their wording, such detailed thresholds can usefully provide greater legal certainty for both the regulators and the regulated.

110. Council Directive 96/61, supra note 99, art. 13(1).

111. Id. art. 13(2).

112. However, when the Council adopted the directive, the Council and Commission recorded in the Council's minutes that "the deadline for periodic reconsideration of permit conditions should not exceed a period of about 10 years …." Addendum to Document 9389/96, supra note 105, at 3.

113. Council Directive 96/61, supra note 99, art. 6(1). Depending on the approach of national permitting officials, preparation of this application information could be an extensive undertaking. For example, in providing information on the site's condition, will operators be obliged to search for and report on historical contamination? In providing information on "foreseeable" emissions, will operators need to discuss all conceivable emissions, even when those emissions would occur in trace amounts? A strict reading would suggest that they do. In identifying environmental effects, how is the operator to distinguish those that are "significant" (and thus require explicit consideration) from those that are insignificant (and need not be addressed). And what will be the consequence of failure to address, for example, all "foreseeable" trace emissions and all possible "significant" effects? Will the resulting permit be either invalid or voidable?

114. Id. art. 15(1).

115. Id. art. 9(3).

116. Id. art. 9(4). It is necessary to explain the apparent incongruity of this cobbling together of a technology-based standard with local geographic and environmental issues. One might have thought that geography and the local environment would be irrelevant in determining technology-based emission limits. However, the intention is manifestly to allow member states broad discretion in determining emission limits. So, a southern European country that is anxious to encourage industrial development, and that has a relatively pristine environment, might rely on local environmental conditions to justify coming up with a less than rigorous interpretation of BAT.

117. Id. art. 2(11).

118. Id.

119. Id.

120. Id.

121. Id.

122. Id. Annex IV.

123. Id.

124. Id.

125. Id.

126. Indeed, in the Council minutes, the Austrian, Danish, Dutch, Finnish, French, Luxembourgian, and Swedish delegations declared that they "intend to continue their strict application of the best available techniques." Addendum to Document 9389/96, supra note 105, at 1.

127. Council Directive 96/61, supra note 99, art. 18(1).

128. These provisions are included for the political purpose of appeasing member states, such as Germany, that wanted a more rigorous BAT definition and EC-level determinations of BAT for particular types of facilities. But these provisions have little or no legal significance. It is patently obvious that the EC can adopt subsequent directives specifying emission limits for specific listed facilities — these provisions do not affect the EC's authority at all. Moreover, the EC would clearly do so only where there is at least a perceived "need for action at the Community level." Lastly, it would seem self-evident that preexisting legislation will set minimum requirements for facilities covered by such other legislation — barring language in the IPPC Directive to the contrary.

129. Council Directive 96/61, supra note 99, art. 16(2).

130. This system for developing BREFs on the basis of an information exchange program with national representatives institutionalizes a program the Commission initiated in 1989 for developing nonbinding BAT standards under Council Directive 84/360 on Air Pollution From Industrial Plants. As the Commission explained in a memorandum entitled "New Orientations of the BAT Activity," it intended to identify, using committees of member state and industrial representatives, "both BATNEEC and their relevant associated emission values in order to set up limit values for the industrial sectors studied." Memorandum on New Orientations of the BAT Activity, DG XI/A/3, at 2 (Jan. 18, 1991) [hereinafter New BAT Orientations Memorandum]. 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." Pursuant to this program, BAT working groups, with the assistance of private consulting firms, have produced Technical Notes (similar in style to U.S. EPA 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;

* cement production; and

* the refining industry.


In its Progress Report on the Implementation of the Fifth Environmental Action Program, the Commission announced that the existing BAT Notes will be re-shaped into BREFs to produce integrated and up-to-date guidance notes for the implementation of the IPPC Directive. Progress Report on Implementation of the European Community Program of Policy and Action in Relation to the Environment and Sustainable Development "Towards Sustainability." COM(95)624 final at 17.

131. Answer Given by Commissioner Bjerregaard to Parliamentary Question E-1409/98, 1998 O.J. (C 402) 128.

132. Council Directive 96/61, supra note 99, art. 10.

133. Id. art. 2(5) and art. 15(2).

134. Id. art. 14.

135. Commission Proposal for a Council Directive on Integrated Pollution Prevention and Control, COM(93)423 final at 22.

136. Council Directive 96/61, supra note 99, art. 7.

137. Commission Proposal for a Council Directive on Integrated Pollution Prevention and Control, COM(93)423 final at 45.

138. For installations to which both the provisions of the IPPC Directive and the Seveso II Directive apply, a permit pursuant to the IPPC Directive may not be issued unless the obligations of the Seveso II Directive are met. See Answer of Commissioner Bjerregaard to Parliamentary Question E-3913/97, 1998 O.J.(C 304) 4.

139. Council Directive 96/61, supra note 99, art. 16.

140. Council Directive 84/360 on the Combating of Air Pollution From Industrial Plants, 1984 O.J. (L 188) 20, amended by Directive 91/692. 1991 O.J. (L 377) 48.

141. 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. These Annex I categories broadly correspond with the facilities covered by the IPPC Directive (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 paper plants using "chemical methods." Id. Annex I.

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

143. Council Directive 84/360, supra note 140, art. 4, 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 in text below. The status of BATNEEC established in Commission Technical Notes (see supra note 130) is not clear, but presumablysuch limits are not "applicable" unless member states choose to adopt them as legal requirements.

144. Council Directive 84/360, supra note 140, art. 12.

145. Council Directive 88/609 on the Limitation of Emissions of Certain Pollutants Into the Air From Large Combustion Plants, 1984 O.J. (L 336) 1; Council Directive 89/369 on the Prevention of Air Pollution From New Municipal Waste Incineration Plants, 1989 O.J. (L 163) 32; Council Directive 89/429 on the Prevention of Air Pollution From Existing Municipal Waste Incineration Plants. 1989 O.J. (L 203) 50; Council Directive 94/67 on the Incineration of Hazardous Waste. 1994 O.J. (L 365) 34.

146. Council Directive 88/609 on the Limitation of Emissions of Certain Pollutants Into the Air From Large Combustion Plants, 1988 O.J. (L 336) 1, as amended by Council Directive 94/66, 1994 O.J. (L 337) 83.

147. 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(7) (also providing a list of exclusions for specific kinds of plants). It further states that "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.

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

149. The Commission recently adopted a proposal to amend Council Directive 88/609 that would introduce emission limit values that are twice as strict as the current values. Commission Proposal for a Council Directive Amending Directive 88/609 on the Limitation of Emissions of Certain Pollutants Into the Air From Large Combustion Plants, 1998 O.J. (C 300) 6.

150. Council Directive 88/609, supra note 146, art. 10.

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

152. Council Directive 96/61, supra note 99, art. 18(2).

153. Annex 1 of Council Directive 96/61 provides that the specific requirements of Council Directive 88/609 for existing installations stay in force until December 31, 2003.

154. Id. Council Directive 88/609, supra note 146, art. 3(1).

155. Council Directive 88/609, supra note 146, Annex I, cols. 1-6 and Annex II, cols. 1-4.

156. Council Directive 89/369 on the Prevention of Air Pollution From New Municipal Waste Incineration Plants, 1989 O.J. (L 163) 32.

157. Council Directive 89/429 on the Reduction of Air Pollution From Existing Municipal Waste Incineration Plants, 1989 O.J. (L 203) 50.

158. "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.

Council Directive 89/369, supra note 156, art. 1; Council Directive 89/429, supra note 157, 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." Council Directive 89/369, supra note 156, art. 1; Council Directive 89/429, supra note 157, art. 1.

159. Council Directive 89/369, supra note 156, arts. 1 and 12.

160. Id. art. 3, and Annexes I and II.

161. Id. art. 4 (providing general design and performance standards) and art. 7 (requiring auxiliary burners).

162. Id. arts. 5 and 6 (setting forth monitoring requirements, methods, and periods).

163. Id. art. 8 (requiring reporting where monitoring shows that limit values are exceeded).

164. Id.

165. Council Directive 89/429, supra note 157.

166. "'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" Id. art. 1.

167. Id. art. 2; but see id. art. 4 (providing special "combustion conditions" for large existing plants).

168. Id. art. 2.

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

170. Proposal for a Council Directive on the Incineration of Waste, 1998 O.J. (C 372) 11.

171. Co-incineration plant means "a plant whose main purpose is the generation of energy or production of material products and which uses wastes as a regular or additional fuel." Id. art. 3(3).

172. See infra notes 176-92 and accompanying text.

173. Proposal for a Council Directive on the Incineration of Waste, supra note 170, art. 6(1).

174. Id. art. 8(3) and Annex IV.

175. Id. art. 9.

176. Council Directive 94/67 on the Incineration of Hazardous Waste, 1994 O.J. (L 365) 34.

177. Council Directive 91/689 on Hazardous Waste, 1991 O.J. (L 377) 20. However, Council Directive 94/67, Article 2(1) excludes certain categories of hazardous waste (e.g., municipal waste covered by Council Directives 89/369 and 89/429) from the scope of the directive.

178. Council Directive 94/67, supra note 176, art. 3(3).

179. Id. art. 2(2).

180. "New incineration plant" means a plant for which the permit to operate is granted on or after December 31, 1996. Id. art. 2(3).

181. "Existing incineration plant" means a plant for which the original permit to operate is granted before December 31, 1996. Id. art. 2(4).

182. Existing plants may be exempted from those requirements if they are gradually phased out and definitively shut down by 2005. Id. art. 13(2).

183. Id. art. 5.

184. Id. art. 6(1).

185. Id. art. 7(1).

186. Id. art. 7(2).

187. Id. art. 12(1).

188. Id. art. 8(2). The directive also provides, rather superfluously, that the wastewater discharges may not exceed the relevant Community emission limit values. Id.

189. Id. art. 8(3). See Proposal for a Council Directive Amending Directive 94/67 on Incineration of Hazardous Waste, 1998 O.J. (C 13) 6. The proposal will incorporate emission limit values for discharges of waste water from the cleaning of exhaust gases into Annex IV to Directive 94/67.

190. Council Directive 75/442 on Waste. 1975 O.J. (L 194) 39.

191. Council Directive 91/689 on Hazardous Waste. 1991 O.J. (L 377) 20.

192. Council Directive 94/67, supra note 176, art. 9(1).

193. Council Directive 1999/13 on the Limitation of Emissions of Volatile Organic Compounds Due to the Use of Organic Solvents in Certain Activities and Installations, 1999 O.J. (L 85) 1. The EC has also promulgated legislation on vehicle emissions and on VOCs from fuel storage and distribution. See Council Directive 91/441 Amending Directive 70/220 on the Approximation of the Laws of the Member States Relating to Measures to be Taken Against Air Pollution by Emissions From Motor Vehicles, 1991 O.J. (L 242) 1; and European Parliament and Council Directive 94/63 on the Control of Volatile Organic Compound Emissions Resulting From the Storage of Petrol and Its Distribution From Terminals to Service Stations, 1994 O.J. (L 365) 24.

194. Council Directive 1999/13, supra note 193.

195. Id. art. 1.

196. An "existing installation" is an installation in operation or an installation which is authorized or registered or, in the view of the competent authority, the subject of a full request for authorization, provided that the installation is put into operation no later than one year after the date on which the directive is brought into effect. Id. art. 2(2).

197. Id. art. 4(4). For an installation falling within the scope of the IPPC Directive and the proposed VOC Directive, "substantial change" shall mean a change in operation which, in the opinion of the competent authority, may have significant negative effects on human beings or the environment. Id. art. 4(4). See also Council Directive 96/61, supra note 99, art. 2(10).

For a small installation, "substantial change" shall mean a change of the nominal capacity leading to an increase of emissions of VOCs of more than 25 percent. Council Directive 1999/13, supra note 193, art. 2(4). For all other installations, "substantial change" shall mean a change of nominal capacity leading to an increase of emissions of VOCs of more than 10 percent. Id. Moreover, for those two categories of installations, any change that may have, in the opinion of the competent authority, significant negative effects on human health or the environment is also a substantial change. Id.

198. Id. arts. 3 and 4(2).

199. Id. art. 5(2).

200. Id. pmbl., recital 15.

201. "Emission limit value" is defined as "the mass of volatile organic compounds, expressed in terms of certain specific parameters, concentration, percentage and/or level of an emission, calculated at standard conditions, N, which may not be exceeded during one or more periods of time." Id. art. 2(13).

202. Id. Annex II.A.

203. Id. art. 5(3).

204. Id. art. 2(30).

205. Id. Annex III.B.

206. The annual reference emission is calculated by multiplying, for a given year, the total mass of solids in the coating and/or ink, varnish, or adhesive with a multiplication factor depending on the process (e.g., wood coating: 4; coil coating: 3).

207. Council Directive 67/548 on the Approximation of the Laws, Regulations and Administrative Provisions Relating to the Classification, Packaging, and Labeling of Dangerous Substances, 1967 O.J. (L 196) 1.

208. Council Directive 1999/13, supra note 193, art. 5(6), (7), and (8).

209. Id. art. 6(1).

210. Id.

211. Id. art. 6(2).

212. Id. art. 6(6).

213. Id. art. 8.

214. Id. Annex III.

215. Id. art. 10.

216. Council Directive 87/217 on the Prevention and Reduction of Pollution by Asbestos, 1987 O.J. (L 85) 40, amended by Council Directive 91/692, 1991 O.J. (L 377) 48. 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(1).

217. Id. art. 3(1).

218. Id.

219. Id. art. 4. Specifically, with respect to air emissions, the directive states that member states are to ensure that "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 cubic meter 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.

220. 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.

221. Id. art. 6 and Annex.

222. Council Directive 76/464 on Pollution Caused by Certain Dangerous Substances Discharged Into the Aquatic Environment of the Community, 1976 O.J. (L 129) 23.

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

224. "Discharge" is defined as "the introduction into" the surface waters to which Council Directive 76/464 applies to any List I or List II substances. No explicit limitation is stated on the types of dischargers (e.g., persons, or owners or operators) or sources (e.g., point source or non-point source or both) covered, but "discharges of dredgings" and "operational discharges" and "dumping" from ships in territorial waters are excluded. Id. art. 1. In case C-232/97, L. Nederhoff & Zn. v. Dijkgraaf en Hoogheemraden van het Hoogheemraadschap Rijnland, opinion of Feb. 25, 1990, AG Saggio argued that pollution from "significant, multiple and diffuse sources," as regulated by Council Directive 86/280 on limit values and quality objectives for discharges of certain dangerous substances, does not fall under the term "discharge," provided it is not caused by human action.

225. Council Directive 76/464 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." Council Directive 76/464, supra note 222, art. 1, as amended. Groundwater is also included within the scope of Council 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, as amended. Groundwater is now covered by Directive 80/68 on the Protection of Groundwater Against Pollution Caused by Certain Dangerous Substances, 1980 O.J. (L 20) 43.

226. According to the ECJ, any discharge of a black listed substance requires a permit, irrespective of the date on which the plant from which it comes started operating. Case C-168/95, Criminal Proceedings Against Luciano Arcaro, 1996 E.C.R. 1-4705, para. 25.

227. Council Directive 76/464, supra note 222, arts. 3 and 7.

228. No further guidance is given as to the nature (e.g., construction versus 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." Council Directive 86/280 on Limit Values and Quality Objectives for Discharges of Certain Dangerous Substances, 1986 O.J. (L 181) 16, art. 3(3). As of November 1999, the IPPC Directive will regulate these matters for new installations. Council Directive 96/61 regulates in detail the information a permit applicant has to provide and the publicity given to the application. The directive requires the competent authorities to periodically reconsider and, where necessary, update permit conditions. Council Directive 96/61, supra note 99, art. 13(1). See supra notes 99-139 and accompanying text for a discussion of the IPPC Directive.

229. Council Directive 76/464 contains a prohibition on "all acts which intentionally or unintentionally circumvent" its provisions. Also, it contains the following 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." Council Directive 76/464, supra note 222, art. 9. As noted infra note 239, the determination whether "pollution" exists turns on the definition of that term and is subjective.


231. Council Directive 76/464, supra note 222, art. 12(1).

232. Id. art. 5.

233. Id. art. 6(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." NIGEL HAIGH, EEC ENVIRONMENTAL POLICY AND BRITAIN 71 (2d ed. 1987).

234. Council Directive 76/464, supra note 222, art. 5(2) (The exact language is: if necessary, "taking into account in particular the toxicity, persistence, and bioaccumulation of the substance concerned in the environment into which it is discharged.").

235. See Council Directive 82/176 on Limit Values and Quality Objectives for Mercury Discharges by the Chlor-alkali Electrolysis Industry, 1982 O.J. (L 81) 29: Council Directive 84/156 on Limit Values and Quality Objectives for Mercury Discharges by Sectors Other Than the Chlor-alkali Electrolysis Industry, 1984 O.J. (L 74) 49; Council Directive 83/513 on Limit Values and Quality Objectives for Cadmium Discharges, 1983 O.J. (L 291) 1; Council Directive 84/491 on Limit Values and Quality Objectives for Discharges of Hexachlorocyclohexane, 1984 O.J. (L 274) 11; Council Directive 86/280 on Limit Values and Quality Objectives for Discharges of Certain Dangerous Substances, 1986 O.J. (L 181) 16 as amended by Council Directives 88/347, 1988 O.J. (L 158) 35, and 90/415, 1990 O.J. (L 219) 49 (regulating carbontetrachloride, dichlorodiphenyl-trichloroethane, PCP, aldrin, dieldrin, endrin, isodrin, hexa-chlorobenzine, hexachlorobutadiene, chloroform, 1-2 dichloroethane, trichloroethylene, perchloroethylene, and trichlorobenzene). In order to facilitate the establishment of limit values for black list substances, Council Directive 86/280 also sets out general provisions governing the establishment of limit values for emission standards, quality objectives, and reference methods of measurement. Id. Annex I.

Member states must incorporate the limit values in their national legislation. In Case C-208/97, Commission v. Portugal, 1998 E.C.R. I-4017, the Commission brought an action against Portugal for its failure to adopt the necessary provisions to comply with Council Directive 84/156 on Limit Values and Quality Objectives for Mercury Discharges by Sectors Other Than the Chlor-alkali Electrolysis Industry. Portugal argued that as no sources discharging mercury in sectors other than the chlor-alkali electrolysis industry exist, it considered that the conditions giving rise to its obligations under the directive did not apply. The Court, however, decided that Portugal had failed to fulfill its obligations by failing to adopt, within the prescribed period, the necessary legislation to comply with Directive 84/156.

236. E.g., Council 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, 1986 O.J. (L 181) 16, 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(d).

237. Id. art. 5(1).

238. 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(g). In Case C-168/95, Criminal Proceedings Against Luciano Arcaro, 1996 E.C.R. I-4705, the ECJ held that the distinction between new and existing plants is relevant only in relation to the requirement for member states to grant authorization for new plants only if those plants apply the standards corresponding to the best technical means available. The distinction does not dispense existing plants from the permit requirement under Article 3 of Council Directive 76/464. Id. para. 30.

239. Council Directive 86/280, supra note 236, art. 3(4). "Pollution" is defined in the frame work directive 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." Council Directive 76/464, supra note 222, art. 1(2)(e). For new installations under the IPPC Directive, this requirement will be replaced by the corresponding requirement in Article 9, paragraph 4, that the emission limit values shall be based on BAT.

240. Council Directive 76/464, supra note 222, art. 6. Quality objectives are set in the directives listed in note 235, supra. See also section Ambient Quality for a description of directives establishing water quality requirements for waters intended for specific uses.

241. Council Directive 76/464, supra note 222, art. 6(2), as amended.

242. Council Directive 96/61, supra note 99, art. 20(2) and (3) (holding that Council Directive 76/464, Article 6(3), does not apply to new installations under the IPPC Directive) and art. 18(2) (holding that in the absence of Community emision limit values defined pursuant to the IPPC Directive, the emission limit values contained in, inter alia, the daughter directives of Council Directive 76/464 shall be applied as minimum emission limit values). See Marc Pallemaerts, The Proposed IPPC Directive: Re-Regulation or De-Regulation?, 5 EUR. ENVTL. L. REV. 174, 179 (1996).

243. Council Directive 76/464, supra note 222, art. 7(2). In a pending case, the Commission argues that the fact that no Community limit values have been fixed for certain families and groups of substances in List I (black list), means that those substances fall within the scope of List II (gray list). Case C-152/98, Commission v. Netherlands, 1998 O.J. (C 258) 12. Member states would therefore have to lay down quality objectives in relation to black listed substances for which the Commission has not yet determined limit values.

244. Council Directive 76/464, supra note 222, art. 7(1), (2), and (5).

245. Case C-298/95, Commission v. Germany, 1996 E.C.R. 1-6747, para. 22.

246. Council Directive 76/464, supra note 222, art. 7(2).

247. Id. art. 7(6).

248. The ECJ has, on several occasions, condemned member states for failure to establish or to implement a List II program. See Case C-298/95, at 1-6747; Joined Cases C-232/95 & C-233/95, Commission v. Greece, 1998 E.C.R. I-3343; Case C-206/96, Commission v. Luxembourg, 1998 E.C.R. I-3401. See also Case C-207/97, Commission v. Belgium, judgment of January 21, 1999 (not yet reported); Case C-285/96, Commission v. Italy, judgment of October 1, 1998 (not yet reported); Case C-214/96, Commission v. Spain, judgment of November 25, 1998 (not yet reported).

249. Council Directive 80/68 on the Protection of Groundwater Against Pollution Caused by Certain Dangerous Substances, 1980 O.J. (L 20) 43.

250. The black list and gray list substances are similar to, but not coincident with, those of the 1976 framework directive on discharge of dangerous substances, discussed above.

251. Article 3 requires member states to take the following necessary steps:

(1) to prevent the introduction of black list substances into groundwater, and

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

Pollution is defined in Article 1 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."

252. Council Directive 80/68, supra note 249, art. 4(2). "Direct discharge" means the introduction into groundwater of black listed or gray listed 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 in the 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(3).

The ECJ held that the prohibition on direct discharges of black list substances is general and absolute. Case C-131/88, Commission v. Germany, 1991 E.C.R. I-825. According to the Court, the prohibition

applies to discharges of substances in List I without distinguishing between the substances themselves and solutions thereof. That article [Article 4(1) of Council Directive 80/68] does not empower the competent authorities of the member states to determine, on a case-by-case basis and having regard to the circumstances, whether or not discharges have a detrimental effect.

Id. at I-869.

253. Council Directive 80/68, supra note 249, art. 4(1). Indirect discharge means the introduction into groundwater of a substance "after percolation through the ground or subsoil." Id. art. 1.

254. Id. art. 5.

255. Id.

256. Id. art. 7.

257. Id. art. 8. See Case 360/87, Commission v. Italy, 1991 E.C.R. I-791 (holding that Article 8 makes obligatory, before the grant of a permit, the conduct of an individualized investigation). See also Commission v. Germany, Case C-131/81, 1991 E.C.R. I-825, at I-874 and I-879 (holding that the general administrative law procedures were not sufficiently precise and specific to meet the requirements of the directive. "The … directive requires, in view of the specific purpose of the inquiry [appraisal of the receiving environment] that the inquiry be conducted with specific reference to the hydrogeological conditions of the area concerned, the possible purifying powers of the soil and subsoil and other elements." Id.).

258. Council Resolution on the Future Community Groundwater Policy, 1992 O.J. (C 59) 2; Council Resolution on Groundwater Protection, 1995 O.J. (C 49) 1.

259. Commission Proposal for a European Parliament and Council Decision on an Action Program for Integrated Groundwater Protection and Management, 1996 O.J. (C 355) 1.

260. European Parliament Resolution on the Communication From the Commission to the Council and the European Parliament on European Community Water Policy, 1996 O.J. (C 347) 80.

261. Commission Proposal for a Council Directive Establishing a Framework for Community Action in the Field of Water Policy, 1997 O.J. (C 184) 20.

262. Pursuant to Article 26 of the proposed directive, Council Directive 80/68 will be repealed as of December 31, 2007.

263. Council Directive 91/271 Concerning Urban Waste Water Treatment, 1991 O.J. (L 135) 40, as amended by Commission Directive 98/15, 1998 O.J. (L 67) 29.

264. Id. art. 1. The sectors concerned are mainly situated in the food processing industry (e.g., milk processing, meat industry, breweries, etc.). Id. Annex III.

265. Id. art. 3 and Annex I.A.

266. The term "agglomeration" is defined as "an area where the population and/or economic activities are sufficiently concentrated for urban waste water to be collected and conducted to an urban waste water treatment plant or final discharge point." Id. art. 2(4).

267. The directive prescribes that "I pe is the organic biodegradable load having a five-day biochemical oxygen demand of 60 g of oxygen per day." Id. art. 2(6).

268. Id. art. 3(1).

269. The directive, Annex II, sets the criteria for classifying "sensitive areas" and "less sensitive areas." Member states were to have identified sensitive areas by January 1994, using these criteria. The directive, Articles 5 and 6, sets additional conditions for discharges to such areas.

270. Id.

271. Id.

272. Id. art. 4 (also making special provision for "high mountain regions").

273. Id. art. 4(3) and Annex I.B. The directive, Article 8, also foresees a possibility for member states to apply "in exceptional cases due to technical problems and for geographically defined population groups" for delay in the implementation date for these secondary treatment and discharge limit provisions.

274. Id. art. 2(3).

275. Id. art. 11 and Annex I.C.

276. Id. art. 11(2) and Annex I.C.

277. Id. art. 13 (requirement to be applicable by 2001 for biodegradable industrial wastewater 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.

278. Fifteenth Annual Report on Monitoring the Application of Community Law (1997), COM(98)317 final at 84; 1998 O.J. (C 250) 85.

279. Id.

280. Court of Auditors, Special Report 3/98 Concerning the Implementation by the Commission of EU Policy and Action as Regards Water Pollution Accompanied by the Replies of the Commission. 1998 O.J. (C 191) 2.

281. 1991 O.J. (L 375) 1.

282. Id. art. 3(1). Annex I to the directive lays down the criteria for identifying those waters. In Case C-293/97, The Queen v. Secretary of State for the Environment & Minister of Agriculture, Fisheries and Food, opinion of October 8, 1998 (not yet reported), Advocate General Leger opined that since there is no indication at all in the wording of the directive as to what the source of the nitrate pollution must be, it is not necessary for there to be nitrate pollution that is exclusively agricultural in origin at the stage when waters affected by pollution are defined. Id. paras. 38 and 40. However, inasmuch as the directive seeks to reduce water pollution caused or induced by nitrates from agricultural sources, "it is necessary but also sufficient for that form of pollution to originate in part from agricultural practices." Id. para. 48.

283. Id. art. 3(2).

284. Id. art. 4 and Annex II.A.

285. Id. art. 5 and Annex III. The maximum level is 170 kg of nitrate per hectare. For the first four year action program, member states may allow a maximum of 210 kg. Member states may however set different maximum amounts if they do not prejudice the reduction of water pollution by nitrates. Id. In September 1998, the Commission reported that as many as 13 member states failed to implement the directive correctly. Europe Environment, No. 528 (Sept. 8, 1998) 7. It therefore brought several infringement procedures against member states that did not designate vulnerable zones, establish codes of good agricultural practice, or adopt action programs. See, e.g., Case C-71/97, Commission v. Spain, judgment of Oct. 1, 1998 (not yet reported).

286. Council Directive 80/779 on Air Quality Limit Values and Guide Values for Sulphur Dioxide and Suspended Particulates. 1980 O.J. (L 229) 30; amended by Council Directive 81/857, 1981 O.J. (L 319) 18; and Council Directive 89/427, 1989 O.J. (L 201) 53. See also Case 361/88, Commission v. Germany, 1991 E.C.R. I-2567 (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 ensuring compliance with the directive's mandatory air quality standards).

287. Council Directive 85/203 on Air Quality Standards for Nitrogen Dioxide. 1985 O.J. (L 87) I; amended by Directive 85/580, 1985 O.J. (L 372) 36.

288. Council Directive 82/884 on a Limit Value for Lead in the Air, 1982 O.J. (L 378) 15. See also Case 59/89, Commission v. Germany, 1991 E.C.R. I-2607 (construing the directive's Article 2 which specifies an obligatory air quality limit for lead, and condemning Germany, which had sought to achieve implementation by way of an administrative circular, for failure to implement the directive by imposing general, legally binding standards ensuring compliance with the directive's mandatory air quality standards).

289. Member states are to ensure that SO2 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 NOx 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 SO2 and suspended particulates, seven years after notification for lead, and January 1994 for NOx. 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 NOx, fix values lower than the limit values.

Further, an ambiguously phrased "standstill principle" (in essence, a no significant deterioration rule) is included for all four pollutants — "application 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, as to NOx, only "outside urban areas." As to SO[x] and particulate, 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. HAIGH, supra note 233, at 183.

290. Council Directive 96/62 on Ambient Air Quality Assessment and Management, 1996 O.J. (L 296) 55, art. 1.

291. "Limit value" is defined as "a level fixed on the basis of scientific knowledge, with the aim of avoiding, preventing or reducing harmful effects on human health and/or the environment as a whole, to be attained within a given period and not to be exceeded once attained." Id. art. 2(5).

292. "Alert threshold" is defined as "a level beyond which there is a risk to human health from brief exposure and at which immediate steps shall be taken by the member states as laid down in this Directive." Id. art. 2(7).

293. Id. art. 4(1) and Annex I. Annex II provides factors the Commission is to consider in preparing proposed values. There are, however, special provisions for ozone. See id. art. 4(1).

294. Id. art. 4(3).

295. Treaty Establishing the European Economic Community, Mar. 25, 1957, 298 U.N.T.S. 3, art. 189c.

296. Proposal for a Council Directive Relating to Limit Values for Sulphur Dioxide, Oxides of Nitrogen, Particulate Matter and Lead in Ambient Air. 1998 O.J. (C 9) 6.

297. Council Directive 96/62, supra note 290, art. 4(7).

298. "Agglomeration" is defined as a "zone with a population concentration in excess of 250,000 inhabitants or, where the population concentration is 250,000 inhabitants or less, a population density per km2 which for the member state justifies the need for ambient air quality to be assessed and managed." Id. art. 2(10).

299. Id. art. 6.

300. Id. art. 6(4) and (5).

301. Id. art. 7(3).

302. "Margin of tolerance" is defined as "the percentage of the limit value by which this value may be exceeded subject to the conditions laid down in this directive." Id. art. 2(8).

303. Id. art. 8(1)-(3) (also providing that attainment plans, "which must be made available to the public, shall incorporate at least the information listed in Annex IV").

304. Id. art. 9.

305. Id. art. 10.

306. Id. art. 11.

307. Id. (the directive foresees that the Commission may delegate part of the preparation of the ambient air quality report to the Agency).

308. Council Directive 75/440 Concerning the Quality Required of Surface Water Intended for the Abstraction of Drinking Water in the Member States, 1975 O.J. (L 194) 26; amended by Directive 79/869, 1979 O.J. (L 271) 44.

309. Council Directive 76/160 Concerning the Quality of Bathing Water, 1976 O.J. (L 31) 1.

310. Council Directive 78/659 on the Quality of Fresh Waters Needing Protection or Improvement in Order to Support Fish Life, 1978 O.J. (L 222) 1.

311. Council Directive 79/923 on the Quality Required for Shellfish Waters, 1979 O.J. (L 281) 47.

312. The Fresh Water Fish Directive and the Shellfish Directive appear to allow unrestrained choice. But see Case 322/86, Commission v. Italy, 1988 E.C.R. 3995. The Bathing Water and Abstraction of Drinking Water Directives impose certain criteria.

313. E.g., Council Directive 78/659, supra note 310, art. 5.

314. But see Case 322/86, at 3995 (condemning Italy for, inter alia, failing to designate sufficient numbers of salmonid and cyprind waters for purposes of Council Directive 78/659 on the quality of freshwaters needing protection or improvement in order to support fish life).

315. Proposal for a Council Directive Establishing a Framework for Community Action in the Field of Water Policy. 1997 O.J. (C 184) 20, as amended by Amended Proposal for a Council Directive Establishing a Framework for Community Action in the Field of Water Policy, 1998 O.J. (C 108) 94 (replacing the original proposal's Annex V on monitoring of surface and groundwater quality).

316. Id. art. 3(1) and (6).

317. Id.

318. Id.

319. Id. art. 3(2).

320. Id. art. 3(3) (Article 3(4) deals with river basins including those in non-EC member states).

321. Id. art. 4(1).

322. Id. art. 4(2).

323. Article 13 requires member states to establish a program of measures designed to achieve the environmental objectives laid down in Article 4. The program includes compulsory "basic measures" and "supplementary measures."

324. Id. art. 4(3).

325. Id. art. 4(4) (this exception provision raises a raft of questions — e.g., what does "proven" mean in (a)?; what does "impossible" mean?; for whom do improvements have to "prohibitively expensive"?; what is meant by (d)? One might be lead to think that if you are going to have a polluted river basin, it is better that it be very polluted than just partially polluted.).

326. Id. art. 5.

327. Id. art. 6(1) and (3).

328. Id. art. 6(1).

329. Id. art. 6(2).

330. Id. art. 7(1) and (3).

331. Id. art. 7(1).

332. Id. art. 7(2).

333. Id. art. 8.

334. Council Directive 80/778 Relating to the Quality of Water Intended for Human Consumption, 1980 O.J. (L 229) 11.

335. Proposed Water Framework Directive, supra note 315, art. 9 and Annex IV.

336. Id. art. 10.

337. Id. Annex V lists the elements the monitoring program is to cover. See Amended Proposal for a Council Directive Establishing a Framework for Community Action in the Field of water Policy. 1998 O.J. (C 108) 94 (replacing Annex V in the original proposal).

338. Proposed Water Framework Directive, supra note 315, art. 12(1).

339. Id. art. 12.

340. Id. art. 16.

341. Id. art. 13(1).

342. Id. art. 13(2).

343. The term "good chemical status" is defined as "the chemical status achieved by a body of water in which concentrations of substances from annex VIII do not exceed the environmental quality standards established in Annex X and other relevant Community legislation setting environmental quality standards …." Id. art. 2(23).

344. Id. art. 13(3).

345. Id. art. 18(2).

346. Council Directive 80/778 Relating to the Quality of Water Intended for Human Consumption, 1980 O.J. (L 229) 11, amended by Directive 81/858, 1981 O.J. (L 319) 19. This directive regulates the quality of the drinking water itself. The Abstraction of Drinking Water Directive, referred to below, regulates the quality of surface water used or intended for use as drinking water.

347. Id. art. 4 and Annex I. Specific provision is made in the directive for limited derogations from the standards in Annex I. See id. arts. 9 and 10. See also Case 228/87, Pretura Unificata di Torino v. X, 1988 E.C.R. 5099, 5122 (holding that (1) the derogation provision of Article 10 may be used only in an urgent situation in which national authorities are required to cope with sudden difficulties in the water supply, (2) the derogation must be limited to the time normally necessary to restore the quality of the affected water, (3) the derogation must not pose "any unacceptable risk to public health," and (4) the derogation may be given only if the supply of water for human consumption cannot be maintained in any other way); Case 42/89, Commission v. Belgium, 1990 E.C.R. I-2821 (construing the derogation provisions of Council Directive 80/778 relating to the quality of water intended for human consumption, and condemning Belgium for allowing the directive's MAC levels to be exceeded in circumstances other than those provided for in the derogation provisions).

348. Council Directive 80/778, supra note 346, Annex I, as amended.

349. Id. art. 12 (the directive also specifies monitoring, sampling, and analytic requirements which the member states are to ensure are applied).

350. European Commission, Fifteenth Annual Report on Monitoring the Application of Community Law (1997), COM(98)317 final at 84; 1998 O.J. (C 250) 85.

351. Id.

352. Id.

353. Proposal for a Council Directive Concerning the Quality of Water Intended for Human Consumption, 1995 O.J. (C 131) 5.

354. Common Position With a View to the Adoption of a Council Directive on the Quality of Water Intended for Human Consumption, 1998 O.J. (C 91) 1.

355. Re-examined Proposal for a Council Directive on the Quality of Water Intended for Human Consumption. COM(98)388 final at 32.

356. Council Directive 98/83 on the Quality of Water Intended for Human Consumption, 1998 O.J. (L 330) 32.

357. Id. art. 17 (providing for transposition into national law within two years of the directive's entry into force), art. 18 (providing for the directive's entry into force on the 20th day after its publication in the Official Journal), and art. 14 (providing for compliance of drinking water with the directive's standards within five years of the directive's entry into force).

358. Id. art. 2(1).

359. 1980 O.J. (L 229) 1, as amended.

360. 1965 O.J. (L 22) 369, as amended.

361. Council Directive 98/83, supra note 356, art. 3(2).

362. Id. art. 3(3).

363. Id. art. 4(1).

364. Id. Annex I, Parts A and B, contain microbiological and chemical parameters drinking water has to comply with. The parametric values determine maximum concentration levels for microbiological and chemical substances in drinking water (e.g., for flouride 1.5 milligram/liter, for lead 10 microgram/liter).

365. Id. art. 5 and Annex I.

366. Id. art. 5(1) and (2). However, with regard to parameters set out in Annex I, Part C, the values need be fixed only for monitoring purposes and for the fulfillment of the obligations imposed in Article 8.

367. Id. art. 6(1).

368. Id. art. 6(2). Further, the proposed directive would require member states to submit a report to the Commission "on the incidence of lead piping in households" and then submit within five years of the entry into force of the directive a "plan of practical measures to be taken, such as lead pipe replacement or other measures under paragraph (3) to fulfill their obligations." Id.

369. Id. art. 2(2).

370. Id. art. 6(3).

371. Id. art. 7(1) and (2).

372. Id. art. 7(5). Methods other than those specified in Annex III, Part I, may be used, providing it can be demonstrated that the results obtained are at least asreliable as those produced by the methods specified. Member states that have recourse to alternative methods shall provide the Commission with all relevant information concerning such methods and their equivalence. For those parameters listed in Annex III, Parts 2 and 3, any method of analysis may be used provided that it meets the requirements set out therein.

373. Id. arts. 7(4) and 12.

374. Id. art. 8(1).

375. Id. art. 8(2).

376. Id. art. 8(3).

377. Id. art. 8(6).

378. Id. art. 9(1). This proposed directive's derogation provisions would not apply to water intended for human consumption offered for sale in bottles or containers. Id. art. 9(8).

379. Id. art. 9(1).

380. Id. art. 9(2) (also providing that the Commission shall make a decision on any such request within three months).

381. Id. art. 9(3). If the competent authorities consider the non-compliance with the parametric value "trivial," and if action taken in accordance with Article 8(2) is sufficient to remedy the problem within 30 days, the requirements of Paragraph 3 need not be applied. In that event, only the maximum permissible value for the parameter concerned and the time allowed to remedy the problem shall be set by the competent authorities or other relevant bodies. Id. art. 9(4). Recourse may no longer be had to Paragraph 4 if failure to comply with any one parametric value for a given water supply has occurred on more than 30 days on aggregate during the previous 12 months. Id. art. 9(5).

382. Id. art. 9(6) (also providing that the member state shall, "where necessary," ensure that advice is given to "particular population groups for which the derogation could present a special risk").

383. Id. art. 10.

384. Id. art. 11(1)

385. Id. arts. 11(2) and 12.

386. Id. art. 14.

387. Id. art. 15(1) (also stating that this provision does not apply to water intended for human consumption offered for sale in bottles or containers).

388. Council Directive 91/156 Amending Council Directive 75/442 on Waste, 1991 O.J. (L 78) 32.

389. Council Directive 91/689 on Hazardous Waste, 1991 O.J. (L 377) 20.

390. Council Directive 75/442 on Waste, 1975 O.J. (L 194) 39.

391. Council Directive 78/319 on Toxic and Dangerous Waste, 1978 O.J. (L 84) 43, as amended.

392. See John Smith, The Challenges of Environmentally Sound and Efficient Regulation of Waste — The Need for Enhanced International Understanding, 5 J. ENVTL, L. 91 (1993) (noting at page 94 the circularity of the prior waste definition).

393. Council Directive 78/319, supra note 391, Article 1(b), defined "toxic and dangerous waste" simply as waste containing one or more of 27 listed substances "of such a nature, in such quantities or in such concentrations as to constitute a risk to health or the environment." In effect, this definition left the determination of the meaning of "toxic and dangerous waste" to national authorities and resulted in widely differing national definitions.

394. Council Directive 84/631 on Supervision and Control Within the EC of Transfrontier Shipment of Hazardous Waste, 1984 O.J. (L 326) 31, as amended.

395. Council Regulation 259/93 on the Supervision and Control of Shipments of Wastes Within, Into and Out of the European Community, 1993 O.J. (L 30) 1. Analysis of the definition of "waste" and its importance falls beyond the scope of this Article. For a discussion of the current EU definition and the problems arising from its interpretation, see Hunter, supra note 103, at 8.

396. Council Directive 91/156, supra note 388, art. 1(a).

397. Commission Decision Establishing a List Pursuant to Article 1(a) of Council Directive 75/442 on Waste, 1994 O.J. (L 5) 15 (noting in the annex's introductory notes that "inclusion of a material in the EWC does not mean that the material is a waste in all circumstances," and specifying that an EWC "entry is only relevant when the definition of waste [in Council Directive 75/442 on Waste, as amended,] has been satisfied").

398. Joined Cases C-206/88 & C-207/88, Criminal Proceedings Against G. Vessoso & G. Zanetti, 1990 E.C.R. I-1461, 1477, para. 8. See also Case C-359/88, Criminal Proceedings Against E. Zanetti & Others, 1990 E.C.R. I-1509, 1522, paras. 12-13. These cases involved an interpretation of the "waste" definition in Council Directive 75/442 on Waste prior to its 1991 amendments. Although the 1991 amendments modified the "waste" definition, the changes were of little substantive significance, and the Zanetti rulings are equally applicable to the old and new definitions.

399. Case C-129/96, Inter-Environnement Wallonie ASBL v. Region Wallone, 1997 E.C.R. I-7411, paras. 32-34. The ECJ will shortly, however, have yet another opportunity to clarify the "waste" definition. Two cases referred by the Dutch Council of State, most notably the Arco Chemie case, concern whether the fact that a substance will be re-used without substantial treatment will take the substance out of the scope of the "waste" definition. Afd. Bestuursrechtspraak RvS, November 25, 1997, 1998 Milieu & Recht 77; ECJ Case C-418/97, ARCO Nederland Ltd. v. Minister van Volkshuisvesting, Ruimtelijke en Milieubeheer; Case C-419/97, Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt and Vereniging Stedelijk Leefmilieu Nijmegen. The questions posed in the Arco Chemie case are the following:

1. May it be inferred from the mere fact that [the substances] undergo an operation listed in Annex HB of the Framework Waste Directive that that substance has been discarded so as to enable it to be regarded as waste for the purposes of the Framework Waste Directive?

2. If question 1 is to be answered in the negative, does the reply to the question whether the use of [the substances] as a fuel is to be regarded as constituting discarding depend on whether:

(a) [the substances] constitute waste under contemporary thinking whereby it is of particular relevance whether they may be recovered in an environmentally responsible manner for use as fuel without further processing;

(b) the use of [the substances] as a fuel is comparable with an accepted method of waste recovery;

(c) the substance is a main product or a by-product?

Reference for a preliminary ruling from the Netherlands Raad van State by order of that court of November 25, 1997, in the case of Arco Chemie Nederland Ltd. v. Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, 1998 O.J. (C 41) 15.

400. Opinion of AG Jacobs in C-129/96, Inter-Environnement Wallonie ASBL v. Region Wallone, 1997 E.C.R. I-7411, para. 81.

401. Council Directive 91/689, supra note 389, art. 1(4).

402. Id.

403. See infra note 408 and accompanying text.

404. This fairly standard EC delegated rulemaking procedure is referred to as "comitology" in Euro-speak. For criticisms of this procedure and comments on reform efforts to make the process more accountable, see Rod Hunter, How Brussels Keeps You In the Dark, WALL ST. J. EUR., Aug. 26-27, 1994, at 8; and Rod Hunter, Transparency Revisited, WALL ST. J. EUR., Dec. 22, 1994, at 8.

405. Council Directive 91/689, supra note 389, art. 1(4). Note the use of "have." "Have" has been taken to suggest that the hazardousness determination must turn on "intrinsic" hazard, rather than risk from exposure. This use of "have" sits poorly with, for example, language in the headings to Annex I of the directive. There, the directive uses "displaying" (hence suggesting that exposure is relevant) in the lead phrase of Annex I.A. but uses "having" in that of Annex I.B. It is difficult to imagine a coherent rationale for the fickle use of language. It would seem that the draftsmen of the English version (but not the German and Dutch versions) of the Council decision adopting the EU hazardous waste list have sought to finesse this confusion by resorting to the term "display" throughout the decision. See Council Decision Establishing a List of Hazardous Waste pursuant to Article 1(4) of Council Directive 91/689 on Hazardous Waste, 1994 O.J. (L 356) 14 [hereinafter Council Decision Establishing a Hazardous Waste List].

406. Council Decision Establishing a Hazardous Waste List, supra note 405. See Hunter, supra note 103, at 83 (arguing that the EC hazardous waste list is illegal, given that the Council did not follow legislative requirements in promulgating the list).

407. Council Decision Establishing a Hazardous Waste List, supra note 405. The decision further specifies, with regard to 5 of the 14 Annex III properties, more detailed definitions drawn from the EU chemical legislation (e.g., flash point 55 degrees Celsius; substances classified under the chemicals rules as very toxic at a concentration of >/= 0.1 percent; etc.). Id. art. 1.

408. See Commission Working Document for Discussion on Amendments of List, Meeting of the TAC (Feb. 12, 1999) (unpublished).

409. Council Directive 75/442, supra note 390, art. 2(1), as amended, excludes from regulation pursuant to the directive: (1) "gaseous effluents emitted into the atmosphere"; and (2) "where they are already covered by other legislation: (i) radioactive waste; (ii) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries; (iii) animal carcasses and the following agricultural waste: fecal matter and other natural, nondangerous substances used in farming; (iv) waste waters, with the exception of waste in liquid form; (v) decommissioned explosives." Council Directive 91/689, supra note 389, art. 1(5), specifically exempts from its scope "domestic waste." The Hazardous Waste Directive instructs the Commission to propose "specific rules taking into consideration the particular nature of domestic waste not later than the end of 1992." Id. The Commission is currently working on such a proposal.

410. Council Directive 75/442, supra note 390, art. 4.

411. Id.

412. These permits are to cover:

"- the types and quantities of waste,

- the technical requirements,

- the security precautions to be taken,

- the disposal site,

- the treatment method."

Id. art. 9.

413. Id. Annex II.A, D6 ("water body" is not defined).

414. Also, the Directive on New Municipal Waste Incineration Facilities requires that its emission standards and testing requirements be incorporated into Waste Directive permits for the operation of "new municipal waste-incineration plants." Council Directive 89/369, supra note 156.

415. Council Directive 75/442, supra note 390, Annex II.A, as amended.

416. Id. art. 10.

417. Id. Annex II.B.

418. Id. art. 11(1), and Council Directive 91/689, supra note 389, art. 3(1).

419. Id. art. 11(1).

420. Council Directive 75/442, supra note 390, art. 11(1), and Council Directive 91/689, supra note 389, art. 3(1). If a member state intends to promulgate such general rules for hazardous waste recovery facilities, it is supposed to notify the Commission three months prior to the rules entry into force, and the Commission is to consult with the member states. "In light of these consultations the Commission shall propose that these rules be finally agreed upon in accordance with [the committee procedure]." Council Directive 91/689, supra note 389, art. 3(4).

421. Council Directive 91/689, supra note 389, art. 9(1) and Annex II.A.

422. Id. art. 12.

423. Id. art. 2(2).

424. Id. art. 2(3).

425. Council Directive 75/442, supra note 390, art. 14.

426. Council Directive 91/689, supra note 389, art. 4(2). These records must be preserved for at least three years, except with regard to those transporting hazardous waste, in which case the records must be kept for at least 12 months. Id. art. 4(3).

427. Id. art. 2(1).

428. Council Directive 75/442, supra note 390, arts. 7 and 5, as amended.

429. Id. art. 7(3).

430. See infra section Waste Management on waste shipment. See also the discussion of Case C-203/96, Chemische Afvalstoffen Dusseldorp BV & Others v. Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, 1998 E.C.R. 1-4075, at note 458, infra.

431. Council Directive 75/442, supra note 390, art. 15.

432. Id. art. 1(c).

433. Id. art. 1(b).

434. See July issue of ELR's News & Analysis for part three of EC series (forthcoming).

435. Council Regulation 259/93, supra note 395.

436. 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, March 22, 1989, 28 I.L.M. 649.

437. OECD Council Decision, C(92)39 final of March 30, 1992. Concerning the Transfrontier Movement of Wastes Destined for Recovery Operations.

438. Council Regulation 259/93, supra note 395, art. 3(1). The competent authority of dispatch may, in accordance with national legislation, decide to transmit the notification itself, instead of the notifier sending it, to the competent authority of destination, with copies to the consignee and the competent authority of transit. Id. art. 3(8).

439. Id. art. 4(1).

440. Id. art. 4(2)(a).

441. Id. art. 4(2)(b).

442. Id. art. 4(3)(a)(i). In the case of hazardous waste "produced in a Member State of dispatch in such a small quantity overall per year that the provision of new specialized disposal installations within that State would be uneconomic, (i) shall not apply." Id. art. 4(3)(a)(ii).

443. See supra notes 428-30 and accompanying text.

444. Council Regulation 259/93, supra note 395, art. 4(3)(b).

445. Id. art. 4(3)(c).

446. Id. art. 5(1).

447. Id. art. 5(2).

448. Id. art. 5(5)-(6).

449. OECD Council Decision, C(92)39 final of March 30, 1992, Concerning the Transfrontier Movement of Wastes Destined for Recovery Operations.

450. Council Regulation 259/93, supra note 395, art. 11.

451. Id. art. 6(1) and (3). The competent authority of dispatch may, in accordance with national legislation, decide to transmit the notification itself, instead of the notifier sending it, to the competent authority of destination, with copies to the consignee and authorities of transit. Id. art. 6(8).

In Case C-192/96, Beside BV & I.M. Besselsen v. Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubebeer, 1998 E.C.R. 1-4075, the ECJ ruled that the term "municipal/household waste" referred to under the entry AD 160 of Annex III (theamber list) includes both waste which for the most part consists of waste mentioned on the green list in Annex II mixed with other categories of waste appearing on that list, and waste mentioned on the green list mixed with a small quantity of materials not referred to on that list.

The court also ruled that notification is required for transfrontier shipments for storage of waste preceding or pending transport to an undertaking, regardless of whether that undertaking is established inside or outside the EC. Also, the ECJ ruled that competent authorities must be able to require, in relation to a green listed waste intended for recovery and not subject to notification, information listed in Article 11(1) of the EC Shipment of Waste Regulation (i.e., name and address of the holder, quantity of waste, and anticipated date of shipment).

Finally, the court ruled that the destination authority may not unilaterally return waste to the dispatch authority without prior notification to the latter. In addition, the member state of dispatch may not oppose the return of waste that was illegally trafficked provided that "the member state of destination produces a duly motivated request to that effect." Id. at 1-4072, para. 67.

452. Council Regulation 259/93, supra note 395, art. 6(5).

453. Id. art. 6(6). Where the shipment is between two establishments under the control of the same legal entity, the contract may be replaced by a "declaration by the entity in question undertaking to recover the waste."

454. Id. art. 7(1).

455. Id. art. 7(2). The competent authority concerned may decide to grant that consent in less than the 30 days. Such consent expires within one year, unless otherwise specified.

456. See supra notes 428-30 and accompanying text.

457. Council Regulation 259/93, supra note 395, art. 7(4)(a). The competent authorities of transit may raised reasoned objections based on the second, third, and fourth grounds cited. Id. art. 7(4)(b).

458. See Case C-203/96, Chemische Afvalstoffen Dusseldorp BV & Others v. Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, 1998 E.C.R. I-4075. In this case, the ECJ ruled on the Dutch Waste Management Plan's compliance with EC law. The plan allowed national officials to block waste exports for recovery when they determined that the foreign process was not of a better quality. The ECJ took positions on a number of important issues concerning waste movements and free movement of goods. First, the ECJ ruled that the "self-sufficiency" and "proximity principles" of the EC Shipment of Waste Regulation and the Waste Framework Directive did not apply to waste shipments for recovery, but only to shipments for disposal. Hence, national officials may not rely on those grounds in blocking transfrontier shipments for recovery.

Second, the ECJ concluded that the Dutch Waste Management Plan infringed EC free movement principles. Specifically, it constituted a "measure having equivalent effect to a quantitative restriction on exports within the meaning of Article 34." As to the lack of justification under Article 36 and the proportionality principle, the ECJ ruled that even if the national measure could be justified by reasons relating to the protection of the environment, it is sufficient to point out that the arguments put forward by the Dutch Government concerning the profitability of the national undertaking AVR Chemie and the costs incurred by it are of an economic nature, and therefore, according to the ECJ case law, cannot justify barriers to the principle of the free movement of goods.

Third, the ECJ took the position that AVR Chemie, being designated as soleend-processor for the incineration of dangerous waste unless the processing of waste in another member state is of a higher quality, had exclusive rights in the meaning of Article 90(1) of the EC Treaty. In addition, the court ruled that the justification by a task of "general economic interest" pursuant to Article 90(2) of the Treaty could apply only if it is proven that, without these specific measures, the undertaking in question would be unable to perform the tasks assigned to it. As the Dutch government had not presented concrete elements of justification, the ECJ found that the Dutch Waste Management Plan had the effect of favoring AVR Chemie and increasing its dominant position.

459. Council Regulation 259/93, supra note 395, art. 8.

460. Id. art. 9.

461. Id. art. 10.

462. Id. art. 13(2) (the regulation has not been incorporated into the EEA Agreement).

463. Id. art. 14(1).

464. Id. arts. 14 and 15. Also, under the regulation, Article 14(2)(a), waste may be sent to an EFTA country for disposal only after written consent from the EFTA country.

465. Id. art. 14(2).

466. Id. art. 17(4)-(6)

467. Id. art. 17(8) (these procedures may be varied by multilateral or bilateral agreements).

468. Id. arts. 19 and 21.

469. Id. art. 20.

470. Id. art. 22.

471. Id. art. 27. Green listed wastes are excluded from the guarantee requirement, as not being "covered" by the regulation.

472. Id. art. 28.

473. Id. art. 29.

474. Id. art. 35.

475. Id. art. 42(3).

476. Id. art. 26(1).

477. Id. art. 26(2).

478. Id. art. 26(3).

479. Council Directive 75/439 on the Disposal of Waste Oils, 1975 O.J. (L 194) 23, as amended by Directive 87/101, 1987 O.J. (L 42) 43.

480. Id. art. 2.

481. Id. art. 1.

482. Id. art. 3(1).

483. Id. art. 3(2).

484. Id. art. 3(3).

485. Id. art. 4.

486. Id. art. 5(4).

487. Id. art. 6.

488. Id. art. 1.

489. Id. art. 10(1).

490. Directive 96/59 on the Disposal of Polychlorinated Biphenyls and Polychlorinated Terphenyls (PCB/PCT), 1996 O.J. (L 243) 31.

491. Council Directive 75/439, supra note 479, art. 10(2)-(3).

492. Directive 96/59, supra note 490.

493. Id. art. 2(a).

494. Id. art. 2(b).

495. Id. art. 4 (holders of equipment subject to the inventory requirement are to notify authorities of the quantities which they hold and of any changes in this respect).

496. Id.

497. Id.

498. Id.

499. Id.

500. "Decontamination" is defined as "all operations which enable equipment, objects, materials or fluids contaminated by PCBs to be reused, recycled or disposed of under safe conditions, and which may include replacement, meaning all operations in which PCBs are replaced by suitable fluids not containing PCBs." Id. art. 2(e).

501. The directive defines "disposal" as "operations D 8, D 9, D 10, D 12 (only in safe, deep, underground storage in dry rock formations and only for equipment containing PCBs and used PCBs which cannot be decontaminated) and D 15 provided for in Annex IIA of Directive 75/442/EEC." Id. art. 2(f).

502. Id. art. 3.

503. Id.

504. Id. art. 9.

505. Id. art. 6(3).

506. Id. art. 5.

507. Id.

508. Id. art. 8.

509. Id. The directive also instructs member states to prohibit the incineration of PCBs and/or used PCBs on ships. Id. art. 7.

510. Id.

511. Id. art. 4.

512. Id. art. 9.

513. Id. art. 10.

514. Council Directive 78/176 on Waste From the Titanium Dioxide Industry, 1978 O.J. (L 54) 19, amended by Directive 82/29, 1982 O.J. (L 378) 1, and Directive 83/29, 1983 O.J. (L 32) 28.

515. Id. art. 1, 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").

516. Id. art. 4, as amended.

517. Id. art. 5 (concerning discharging and dumping) and art. 6 (concerning storage, tipping and injection), as amended.

518. Id. arts. 5 and 6, and Annex I, as amended.

519. Id. art. 7 and Annex II. as amended.

520. Id. art. 9. Existing plants are plants which are already established at the time the directive was adopted. Id. art. 1(e).

521. Id. art. 11.

522. 1989 O.J. (L 201) 56.

523. Case 300/89, Commission v. Council, 1991 E.C.R. I-2867. See supra notes 21-26 and accompanying text.

524. Council Directive 92/112 on Procedures for Harmonizing the Programs for the Reduction and Eventual Elimination of Pollution Caused by Waste From the Titanium Dioxide Industry, 1992 O.J. (L 409) 11.

525. Id. art. 3. Article 2, paragraph 1(c) defined dumping as "any deliberate disposal in inland surface waters, internal coastal waters, territorial waters or the high seas of substances and materials by or from ships or aircraft."

526. Id. art. 4.

527. Id. arts. 6 and 7.

528. Id. art. 8, para. 1.

529. Proposal for a Directive on Landfill of Waste, 1991 O.J. (C 190) 1.

530. Proposal for a Directive on Landfill of Waste, 1997 O.J. (C 156) 10.

531. Amended Proposal for a Directive on Landfill of Waste, 1998 O.J. (C 126) 11.

532. See supra section Waste Management.

533. Proposal for a Directive on Landfill of Waste, 1997 O.J. (C 156) 10, as amended by Amended Proposal for a Directive on Landfill of Waste, 1998 O.J. (C 126) 11, art. 18.

534. Id. art. 7.

535. Id. art. 8.

536. Id. art. 9.

537. Id. art. 11.

538. Id. art. 12.

539. Id. art. 13.

540. Id. art. 3(1).

541. Id. art. 2(f). The amended proposal would exclude from its scope the spreading of sludges and similar matter for purposes of fertilizer or improvement; the use of inert waste which is suitable in redevelopment/restoration and filling-in, or construction purposes; the deposit of non-hazardous dredging sludges alongside waterways where they have been dredged out and nonhazardous sludges in surface water including the waterway bed; the deposit of unpolluted soil or of non-hazardous inert waste resulting from the prospecting for or extracting, processing or storing of mineral resources, or from quarrying. Id. art. 3.

542. Id. art. 3(2).

543. The exemption for landfills on islands applies to "landfill sites for non-hazardous or inert waste with a total capacity of 10,000 tons, serving islands, where this is the only landfill on the island and where this is exclusively destined for the disposal of waste generated on that island." Id. art. 3(3)(a).

544. This exemption for landfills serving isolated settlements applies to "landfill sites for non-hazardous or inert waste in isolated settlements with difficult access, if the landfill site is destined for the disposal of waste generated only by that isolated settlement." Id. art. 3(3)(b). The term "isolated settlement" is defined as a settlement: (1) "with no more than 500 inhabitants per municipality and no more than five inhabitants per square kilometer"; (2) "with no access road that can be used by heavy goods vehicles of 3.5 tons and above"; and (3) "where the distance to the nearest urban agglomeration with at least 250 inhabitants per square kilometer is not less than 50 kilometers." Id.

545. Id. (exempting such landfills from Articles 6(4), 7(9), 8(1)(c), 10, 11(1)(a), (b) and (c), 12(1) and (3), and Annex I Nos. 3 and 4, Annex II (except point 3, level 3, and point 4) and Annex III Nos. 3 to 5).

546. Id. A strict reading of this provision might lead one to conclude that if a member state does not exempt and notify an isolated settlement or island within the allotted two years, the exemption power ceases to exist.

547. Id. art. 4.

548. Id. art. 6(2). The proposed directive, Article 2(c), defines "hazardous waste" for purposes of the Landfill Directive as waste covered by Council Decision 94/904 Establishing a Hazardous Waste List.

549. Id. art. 6(3). The proposed directive, Article 2(b), defines "municipal waste" as "waste from households, as well as commercial, industrial, institutional and other waste which, because of its nature or composition, is similar to waste from households." The proposed directive, Article 2(d), defines "non-hazardous waste" as waste not covered by the Council Decision 94/904 Establishing a Hazardous Waste List.

550. Id. art. 6(4). The proposed directive, Article 2(e), defines "inert waste" as

waste that does not undergo any significant physical, chemical or biological transformations. Inert waste will not dissolve, burn or otherwise physically or chemically react, biodegrade or adversely affect other matter with which it comes into contact in a way likely to give rise to environmental pollution or harm human health. The total leachability and pollutant content of the waste and ecotoxicity of the leachate must be insignificant and not endanger the good ecological quality of surface and/or groundwater as defined by the Directive for a framework for Community action in the field of water policy (Directive../ …/EC).

551. The proposed directive, Article 2(1), defines "biodegradable waste" as "any waste that is capable of undergoing anaerobic or aerobic decomposition."

552. Id. art. 5(1).

553. Id.

554. Id. art. 5(2)(a). The proposed directive, Article 2(p), defines "liquid waste" as "any waste in liquid form where a liquid is defined as a fluid containing 45% solids by weight and flow characteristics to be defined following determination of a test method in accordance with the procedure laid down in Article 16." The proposal would also require that the Commission prepare, within two years of the directive entering into force, sampling and analytical methods for liquid waste.

555. Id. art. 5(2)(b).

556. Id. art. 5(2)(c).

557. Id. art. 5(2)(d).

558. Id. art. 5(2)(e).

559. Id. art. 5(3).

560. Id. art. 5(4).

561. Id. art. 6(1).

562. Id.

563. Id. art. 2(g).

564. The proposed directive, Article 2(k), defines "operator" as "the natural or legal person responsible for a landfill in accordance with the internal legislation of the Member State where the landfill is located: this person may change from the preparation to the aftercare phase."

565. See supra section Environmental Impact Assessment

566. Id. art. 7.

567. Id. art. 8(1)(a).

568. Id. art. 8(1)(b).

569. Id. art. 8(1)(c) (also providing that the "security or its equivalent shall be kept as long as required by maintenance and aftercare operations of the site in accordance with Article 13(4)").

570. Id. art. 8(1)(d).

571. Id. art. 9.

572. Id. art. 11(1)(a).

573. The proposal further provides that "if representative samples have to be taken in order to implement Annex II(3), level 3, [of the Landfill Directive], the results of the analyses shall be kept and the sampling shall be made in conformity with Annex II(5). These samples shall be kept at least one month."

574. Id. art. 11(1)(b). These recordkeeping requirements could become important, especially in countries such as Belgium with generator liability rules. That is, the registers could be used in identifying who the potentially liable parties are.

575. Id. art. 11(1)(c).

576. Id. art. 11(1)(d).

577. Id. art. 11(2).

578. Id. art. 12(1).

579. Id.

580. Id. art. 12(2).

581. Id. Annex III.C.

582. Id.

583. Id.

584. Id. art. 13(1).

585. Id. art. 13(2) (also providing that "this shall not in any way reduce the responsibility of the operator under the conditions of the permit").

586. Id. art. 13(3).

587. Id. art. 13(4).

588. Id.

589. Id.

590. Id. art. 14.

591. Id.

592. Id. art. 14(1) (also providing that the landfill must comply with the directive's gas control provisions within five years of the directive entering into force).

593. Id. art. 14(2).

594. Id. art. 14(3).

595. Id. art. 14(4).

596. Id. art. 10.

597. Id.

598. Id. art. 16.

29 ELR 10297 | Environmental Law Reporter | copyright © 1999 | All rights reserved