End of the affair? The European Mining Waste Directive
Implementation of the European Mining Waste Directive in England and Wales has been a protracted affair with deadlines for compliance closing in. Neil Wells, Geological Services Manager at Hanson UK, provides some insight into what this means for the extractive industries.
The European Mining Waste Directive in England and Wales has brought the extractive industries into much closer, and at times uncomfortable, contact with the UK Environment Agency.
The UK Department for Environment, Food and Rural Affairs appointed the Environment Agency as the competent authority responsible for regulating activities associated with managing extractive waste. Yet, with relatively little experience and knowledge about most extractive operations, the approaches initially advocated by the Environment Agency generated concern in the industry. As a result, dialogue between representatives from the CBI Minerals Group and the Environment Agency has continued for several years to overcome this gap (the CBI is the UK’s business lobbying organisation).
This collaborative working has produced, what is seen as, a proportionate approach to extractive waste regulation, satisfying the Directive’s spirit and intent, while ensuring that the legislation’s focus and burden falls on those materials and activities that have the greatest potential to be harmful to health, safety and the environment.
Much confusion has arisen as to what constitutes extractive waste. The term ‘waste’ has the same meaning as that defined in Article 1 of the EU Waste Framework Directive and has been the subject of many legal cases, both in national courts and the European Court of Justice. In essence, waste is defined as anything that the producer or holder discards, intends to discard, or is required to discard. It is not enough for an operator to say that it will not be discarding a particular material and therefore it is not waste. The courts have ruled repeatedly that such ‘subjective’ assessments are not sufficient to demonstrate a material’s status. Objective measures must be used, to the satisfaction of a competent authority, that the materials in question are not extractive waste. The Environment Agency’s position is that all materials that are not the target mineral are potentially extractive waste and will require either an Environmental Permit application for their management, or confirmation of their status as non-waste by-products. The ability to define materials as non-waste by-products is therefore of potential benefit to operators.
The approach agreed with the Environment Agency, and endorsed by the CBI Minerals Group, provides a means to systematically review and assess materials as either waste or non-waste by-products. The CBI Minerals Group has published a document (referred to as the CBI Guidance Note) that sets out an approach to objectively review any material managed as part of an extractive operation.
The document contains a means by which operators may verify that their extractive materials are non-waste by-products, and hence they are not subject to permitting. The Guidance Note includes a template document that sets out those aspects which operators must address, including the objective measures or ‘tests’ that materials must satisfy to be defined as non-waste by-products. The tests principally relate to the lawfulness and certainty of use of specified materials for site restoration and rehabilitation works.
Under the transitional provisions set out in the relevant legislation, applications for an Environmental Permit must be submitted by 1 May 2011 for existing mining waste operations that include mining waste facilities. For mining waste operations that have no mining waste facilities, the deadline for applications is 30 December 2010. Operators who fail to submit applications by these dates will be in breach of the Environmental Permitting (England and Wales) Regulations 2010 and could be exposed to enforcement or legal action.
Notwithstanding verification of materials as a non-waste by-product, operators are obliged to ensure that their activities do not undermine the overall objectives of the Mining Waste Directive – that materials are managed without endangering human health or the environment. These objectives are essentially those already covered through planning conditions, health and safety and other environmental control.
With permitting only applicable to extractive waste, the focus of the Environment Agency from now on will be directed towards those materials that may otherwise be expected to represent the most significant environmental risk or potential to harm human health.
The permitting obligations for extractive waste and verification of the status of non-waste by-products will ensure that the extractive industries in England and Wales continue to manage properly the health, safety and environmental aspects of
operations with proportionate and limited additional regulatory and financial burdens.
Neil Wells has represented the extractive industries through the CBI Minerals Group in discussions with the Environment Agency. He has been involved in developing the CBI Guidance Note and drafting the Environment Agency guidance on managing extractive waste. The views and opinions expressed in the article are his and do not necessarily represent those of Hanson UK, the CBI Minerals Group, the Environment Agency or the wider extractive industries. The article does not intend to provide a definitive statement of the regulatory position in respect of extractive waste in England and Wales.