Thank you for your letter of 14 March 2007[77] on the above dossiers. Since then we have also received some information as to the content of the Presidency's Compromise text.

  As you are aware from the evidence session that we held with you, we had substantial concerns about this Proposal. It seems from the information provided that the negotiations are moving towards an improved text.

  Our discussions have raised a number of more general issues regarding waste disposal within the UK, including the fragmented approach adopted by local authorities across the country and the current lack of energy generation from waste. We would appreciate information from you on how the Government will take these issues into account when implementing the UK's Waste Strategy, the EU's Thematic Strategy on Waste and the Directive on Waste once it has been adopted.

  In the light of these comments, we are content to release the Strategy and the Proposal from scrutiny on the understanding that you will supply us with a copy of the agreed text on the Proposal, accompanied by an analysis of its impact upon the UK. We trust too that you will keep us fully informed of developments in advance of the Second Reading discussions in both the European Parliament and the Council.

20 June 2007

  Thank you for your letter of 20 June 2007 to Ben Bradshaw on the above dossier. I have now assumed responsibility for waste.

  The Environment Council reached Political Agreement on this dossier at its meeting in Luxembourg on 28 June 2007 on the basis of a compromise text tabled by the German Presidency. As you requested, I enclose a copy of the agreed text of the Proposal.

  Our understanding is that the Portuguese Presidency will now take the steps necessary to produce the Council's Common Position which is likely to be communicated to the European Parliament in the latter part of 2007. I will of course keep you informed of developments in advance of the Second Reading discussions in both the Council and the European Parliament, the dates for which are yet to be determined.

  You requested an analysis of the impact on the UK of the text agreed by the Environment Council. We provided, with the Supplementary Explanatory Memorandum which we submitted on 5 April 2006, an initial Regulatory Impact Assessment (RIA) which analysed the impact on the UK of the proposal for revision of the WFD published by the European Commission in December 2005. On 12 October 2006, the then Minister at Defra, Ben Bradshaw made a Written Ministerial Statement in which he announced a three month UK-wide consultation on the Commission's proposal. The consultation paper, copies of which were placed in the libraries of the House, included a Partial RIA which further developed our analysis of the impact on the UK of the Commission's proposal.

  In response to your request, I attach as an Annex an initial assessment of the impact on the UK of the Presidency's text and the changes made to the proposal originally published by the European Commission. The Presidency's compromise text incorporates a number of changes from the European Commission's text which we have assessed to be beneficial to the UK. These are addressed in detail in the Annex.

  We propose to develop the RIA further when we have a clearer view of the terms of the revised WFD that is likely to be adopted. In practice, this is likely to be after both the European Parliament and the Environment Council have held their Second Reading discussions on the proposal.

  You also asked for information on the Government's approach on how the Government will take certain "issues into account when implementing the UK's Waste Strategy, the EU's Thematic Strategy on Waste and the Directive once it has been adopted".

  The Waste Strategy for England 2007 (WS2007) was published on 24 May and I have enclosed a copy for reference (not printed). WS2007 has similar objectives to the EU Thematic Strategy on Waste Prevention and Recycling and is directly connected to the implementation of the current Waste Framework Directive (WFD).

  WS2007 and its Annexes, together with Planning Policy Statement 10 Planning for Sustainable Waste Management (PPS10) is part of the implementation of requirements within the WFD to produce waste management plans. WS2007 and PPS10 are the national level documents of a tiered system of waste planning in England, which together satisfy the requirements of the WFD and other Directives. They are supplemented by Regional Spatial Strategies (RSSs) and, at local level, development plan documents.

  Your letter refers to specific concerns "including the fragmented approach adopted by local authorities across the country and the current lack of energy generation from waste".

  On the former point, the Waste Strategy for England provides guidance for local authorities but allows them flexibility to tailor their own waste policies to the needs of their area. The Government-funded Waste and Resources Action Programme (WRAP) also provides practical support and advice for local authorities, including work on trials for more sustainable waste management.

  On the latter point, the Government has provided additional incentives for new energy-from-waste infrastructure. The Waste Strategy sets out that this will be increased by use of "PFI, and, where appropriate, Enhanced Capital Allowances, and/or Renewable Obligation Certificates (ROCS) to encourage a variety of energy recovery technologies (including anaerobic digestion) so that unavoidable residual waste is treated in the way which provides the greatest benefits to energy policy. Recovering energy from waste which cannot sensibly be recycled is an essential component of a well-balanced energy policy".

14 July 2007

REVISION OF THE WASTE FRAMEWORK DIRECTIVE TEXT OF THE PRESIDENCY COMPROMISE AS AGREED BY THE ENVIRONMENT COUNCIL ON 28 JUNE 2007

1.   Summary

  The Presidency's compromise text incorporates a number of changes from the European Commission's text which we have assessed to be beneficial to the UK. These are addressed in detail below but include the following:

—  A provision that the Commission may adopt technical minimum standards by comitology for waste treatment operations only where there is evidence that their introduction would be beneficial in terms of protecting the environment and human health;

—  A commitment by the Commission that they will produce an impact assessment before using their powers to introduce minimum standards by comitology;

—  The exclusion of `uncontaminated excavated soil and other naturally occurring material' from the scope of the Directive;

—  The exclusion of unexcavated contaminated soil from the scope of the Directive;

—  A definition of `collection' allowing for low risk collection to be promoted;

—  A distinction between `re-use' of substances or objects as non-waste and `preparing for re-use' those substances or objects that have been discarded as waste;

—  A wide definition of recovery based on the substitution of resources and referring to the `principal result' of the operation—either in the plant or in the wider economy;

—  Improvement of the provision which would allow the Commission to establish by comitology the point at which the recovery of specified waste streams is complete, so that they cease to be waste;

—  A provision to clarify the distinction between `by-products' and waste;

—  Removal of the Commission's original proposal that all waste must undergo recovery operations, a proposal which was neither practicable nor environmentally sound;

—  A five-step waste hierarchy which will apply as a guiding principle, allowing for reasonable flexibility;

—  Continued discretion for Member States to grant exemptions from the requirement for a permit for waste treatment operations, used by the UK mainly to encourage the recovery and recycling of waste;

—  Confirmation that energy efficient municipal waste incinerators can qualify as recovery operations. While the self-sufficiency principle will apply to such installations, the UK helped ensure continuation of the Single Market in waste materials for recovery;

2.   Article 1

Subject matter and scope

  Article 1 effectively sets out the objectives of the revised Waste Framework Directive (WFD). These objectives are to protect the environment and human health by preventing or reducing the adverse impacts of the generation and management of waste; and to do so by reducing the overall impacts of resource use and by improving the efficiency of such use.

3.   Article 2

Exclusions from the scope

  Article 2 excludes specified types of waste from the scope of the revised WFD. The European Commission's proposal sought to reverse the European Court of Justice's (ECJ's) judgment in the AvestaPolarit case (C-114/01) in which the UK successfully established that the term "covered by other legislation" in the existing WFD[78] included not only Community legislation but also national legislation. The Presidency's compromise text proposes the provision of exclusions which are either (a) unqualified in the sense that they are not dependent on the waste's being covered by either Community or national legislation or (b) qualified by being dependent on the waste's being covered by other Community legislation:

Unqualified Exclusions

(a) Article 2(1)(b) addresses the unintended consequences of the ECJ's judgment in the Van de Walle case (C-1/03) and provides a new unqualified exclusion for land, including unexcavated contaminated soil, and permanent buildings.

(b) Article 2(1)(ba) provides a new unqualified exclusion for uncontaminated excavated soil and other naturally occurring material excavated in the course of construction activities and arises from a proposed amendment tabled by the UK. The Presidency's text is an improvement on the existing WFD and will be of particular benefit to the UK house building industry by providing greater regulatory certainty and reducing regulatory burdens on development sites.

(c) Article 2(1)(bc) revises an existing provision and provides an unqualified exclusion for decommissioned explosives. The UK currently relies on national legislation to control the disposal of decommissioned explosives and the Commission's proposal would have precluded our continuing to do so.

(d) Article 2(1)(c) revises an existing provision and provides an unqualified exclusion for faecal matter, straw and other natural non-hazardous agricultural or forestry wastes which are either used in those sectors or for the production of energy from these kinds of biomass waste. The equivalent exclusion in the existing WFD is limited to non-hazardous agricultural waste used in that sector.

Qualified Exclusions

(e) Article 2(2)(a) provides an exclusion for waste waters covered by other Community legislation—in much the same way as the existing WFD. The UK's main concern has been to ensure the continuing exclusion from the WFD of sewage sludge used in agriculture in accordance with Directive 1986/278/EEC. The Presidency's text does not contain an explicit reference to that Directive but will enable us to continue to rely on our present interpretation of the provision.

(f) Article 2(2)(b) revises an existing provision which lacks clarity and provides an exclusion for animal by-products and processed products other than those destined for incineration, landfilling or use in biogas or composting plant.

(g) Article 2(3) provides a new exclusion for sediments (i.e. dredgings) deposited in surface waters for the purpose of managing waters and waterways or for preventing floods or mitigating the effects of floods and droughts—without prejudice to compliance with other relevant Community legislation.

4.   Article 3

Definitions

  The UK's overall objective has been to ensure that where new definitions are introduced into the revised WFD, or existing definitions are revised, they provide the necessary certainty for both businesses and regulators:

(a) Article 3(g)—"Collection": The UK has argued that it is necessary and desirable to clarify the definition of "collection" to ensure that effective and low risk collection arrangements are promoted and are not discouraged (e.g. by being made subject to the permit or registration requirements of the WFD). This concern is addressed in the recitals associated with Article 3(g). For example, the recital refers to waste collection schemes which are not conducted on a professional basis and should not be subject to registration. Examples of such schemes referred to in the recital are waste medicines collected by pharmacies, take-back schemes in shops for consumer goods and community schemes in schools.

(b) Articles 3(ha) and (k)—"Re-use" and "Preparing for re-use": The UK has successfully argued that it is necessary for the revised WFD to distinguish between the "re-use" of substances or objects as non-waste, which is not subject to control under the Directive, and the type of activity which is subject to control under Directive (i.e. the preparation for re-use of those substances or objects which have been discarded as waste). The distinction is not only important in relation to the implementation of the revised WFD's controls but also in relation to giving effect to the waste hierarchy (see paragraph 10 below).

(c) Articles 3(j) and (m)—"Recovery" and "Disposal": At present, the distinction between recovery and disposal is made on the basis of ECJ case law which provides that an operation is classified as recovery if its principal objective is the substitution of natural resources. We believe that Member States, under the revised WFD, should be able to classify operations as recovery operations provided that the principal objective or result is the substitution of resources in the plant or the wider economy. The Presidency's text reflects this view by referring to the "principal result".

5.   Article 3a

By-Products

  The Commission's proposal did not contain any explicit provision on by-products. Instead, the Commission proposed the publication of non-binding guidance, based on EJC case law, on the distinction between production residues as waste and by-products as non-waste. The Commission published its guidance on 21 February 2007.

  6.  The Commission's proposal for a revised WFD did not include a revision of the Directive's definition of "waste". However, the UK and a significant number of other Member States considered that, if the existing definition of waste is to continue, then it is important that the revised WFD should address the issue of by-products. The Presidency's text includes an explicit provision on by-products.

7.   Article 3c

End of waste status

  The UK has consistently supported the introduction of a provision to establish through comitology the point at which the recovery of specified waste streams is complete and they cease to be waste. The Presidency's text includes an amendment proposed by the UK that, where end-of-waste criteria are adopted by comitology, the specified waste streams should also cease to be waste for the purposes of the recovery and recycling targets in the producer responsibility Directives.

8.   Article 4a

Extended producer responsibility

  The Presidency's text includes the introduction of discretionary provisions on producer responsibility to strengthen the prevention and recovery of waste.

9.   Articles 5 and 6

Recovery and Disposal

  The Commission's proposal required that all waste undergoes recovery and provided that disposal was something that happened only where recovery was not possible. In the UK's view, the Commission's proposals were neither practicable nor environmentally sound. The revised provisions included in the Presidency's text includes amendments proposed by the UK.

10.   Article 7a

Waste hierarchy

  The Commission's proposal included a three-step waste hierarchy. The Presidency's text reflects the Conclusions on the Waste Thematic Strategy adopted by the Environment Council in June 2006 and the five-step hierarchy then agreed—although the UK has successfully argued that the hierarchy should refer to "preparing for re-use" instead of "re-use" (see paragraph 4(b) above). The waste hierarchy will apply as a guiding principle.

11.   Article 10

Principles of self-sufficiency and proximity

  See paragraphs 22-26 below on municipal waste incineration.

12.   Article 17a

Hazardous waste produced by households

  The Presidency has revised this provision in the light of proposals tabled by the UK to ensure that unnecessary or impracticable obligations are not placed on householders.

13.   Article 18

Waste oils

  The revised WFD will repeal the obligation in the Waste Oils Directive for Member States to give priority to the regeneration of waste oils. The main element of the Presidency's text is a provision that would enable Member States to restrict exports of waste oils for incineration or co-incineration where (a) the Member State of export has adopted national legislation requiring that waste oils must be regenerated if technically feasible; and (b) Articles 11 or 12 of the Waste Shipments Regulation apply (Regulation (EC) 1013/2006).

14.   Article 18a

Biowaste

  Several Member States expressed concern that the Commission had dropped its earlier proposal to introduce a Biowaste Directive. This led to the Presidency's proposing (a) the introduction of a requirement for Member States to take measures to encourage the separate collection of biowaste, the treatment of biowaste in a way that fulfils a high level of environmental protection and the use of high quality products produced from biowaste; and (b) the imposition of a requirement for the Commission to carry out an assessment on the management of biowaste with a view to submitting a proposal if appropriate.

15.   Article 19

Issuing of permit

  These provisions generally replicate those in the existing WFD. However, Article 19(4) of the Presidency's text will require it to be a condition of any permit covering incineration or co-incineration with energy recovery that "the recovery of energy is to take place with a high level of energy efficiency". The Commission confirmed in the Council Working Group that Article 19(4) is "a safety net provision, which would have to be adjusted according to the type of operation to be permitted. It was aspirational and mirrored the provisions of the Waste Incineration Directive and the IPPC Directives".

16.   Articles 22 and 23

Exemptions from permit requirements and Conditions for exemptions

  The UK is one of only a few Member States which has made significant use of the discretion available under Article 11 of the existing WFD and Article 3 of the Hazardous Waste Directive to provide exemptions from the requirement for a permit. We have done so mainly to encourage the recovery and recycling of waste.

  17.  The Commission's proposals would have limited our discretion to continue providing such exemptions; and would have required the general rules providing exemptions to be based on best available techniques (BAT). As a result of amendments tabled by the UK, the Presidency's text now re-enacts the discretion available to Member States under the existing WFD and the Hazardous Waste Directive; and requires only that the general rules "should consider" BAT and need do so only for disposal operations and not for recovery operations.

18.   Article 25a

Minimum standards

  The proposals on minimum standards concern (i) operations for the recovery or disposal of waste which require a permit and (ii) activities which are subject to registration:

(i) Recovery And Disposal Operations Subject To Permitting;

(a) The effect of the European Commission's proposal was to enable the Commission to adopt by comitology, for all types of waste disposal and recovery operations, EU-wide minimum standards similar to those currently adopted by Directives (eg the End-Of-Life Vehicles Directive, the Waste Electrical and Electronic Equipment Directive, the Landfill Directive and the Waste Incineration Directive). However, the Commission's Waste Thematic Strategy made it clear that their objective was the adoption of "common standards". The UK has consistently opposed the Commission's proposal on the grounds that the Commission had not justified the introduction of comitology-based standards for waste recovery and disposal operations; and had not assessed either the environmental costs (e.g. the potentially adverse impact on waste recovery and recycling) or the economic costs of such standards in its Impact Assessment.

(b) In response to our concerns, the Presidency's text now provides that:

(i)  The Commission may adopt comitology-based technical minimum standards "where there is evidence that a benefit in terms of protection of human health and the environment would be gained from such minimum standards"; and

(ii)  Such minimum standards would "cover only those waste treatment activities that are not covered by or appropriate for coverage by [the IPPC Directive]".

(c) Also in response to our concerns, the Commission confirmed the inclusion of a statement in the Council minutes that "an appropriate impact assessment would be necessary before the use of any of these powers."

(ii) Activities Subject To Registration

(d) The effect of the European Commission's proposal was to require establishments or undertakings which collect or transport waste on a professional basis, or which act as dealers or brokers, to "comply with certain minimum standards". Unlike permits for disposal and recovery operations, there are no examples of such standards in existing EU waste legislation.

(e) The Presidency's text provides that:

(i)  The Commission may adopt comitology-based minimum standards only for registered establishments or undertakings which collect or transport waste on a professional basis, or which act as dealers or brokers—and not for registered permit exemptions;

(ii)  The Commission may adopt such standards only "where there is evidence that a benefit in terms of protection of human health and the environment or in avoiding disruption to the internal market would be gained from such minimum standards"; and

(iii)  Such minimum standards may include "elements regarding the technical qualification" of collectors, transporters, dealers or brokers.

(f) Our understanding is that the Commission Statement on impact assessments would also apply to this type of minimum standards.

19.   Article 26

Waste management plans

  The Commission's proposals revised the provisions on waste management plans in the existing WFD and prescribed that Member States' plans must include at least eight types of information—with subdivision of information within most of the requirements. Our main objective has been to avoid over-prescription and bureaucracy in waste management planning. The Presidency's text is an improvement on the Commission's in that it now distinguishes between:

(a) Information that the plans must contain "as appropriate and taking into account the geographical level and coverage of the planning area" (Article 26(3)); and

(b) Information that the plans may contain "taking into account the geographical level and coverage of the planning area" (Article 26(3a)).

20.   Article 26a

Waste prevention programmes

  Whilst fully endorsing the revised WFD's focus on waste prevention as an objective, our view was that the Commission's proposals on waste prevention programmes would result in the imposition of administrative burdens and costs without either a commensurate benefit in terms of waste prevention or a meaningful measurement of progress in waste prevention.

  21.  Our view is that the Presidency's text represents an improvement on the Commission's proposals. For example, the Commission's proposal required Member States to assess the opportunities for taking a list of 16 waste prevention measures set out in Annex IV but the Presidency's text requires that Member States "evaluate the usefulness of the examples of measures indicated in Annex IV".

22.   Annex II R1

Municipal waste incineration

  The Commission's proposal contained a provision which would result in the reclassification from disposal operations to recovery operations of "incineration facilities dedicated to the processing of municipal solid waste only" where a specified energy efficiency threshold is met. The formula proposed by the Commission effectively set the efficiency threshold at 60% for existing municipal waste incinerators and 65% for new municipal waste incinerators. The Commission argued that its impact assessment showed that application of an energy efficiency threshold for municipal incinerators could generate both economic and environmental benefits; and that by setting the threshold by reference to the performance of a BAT plant would facilitate achievement of the targets for diversion from landfill.

  23.  The Commission's proposal has proved to be one of the most contentious aspects of the revised WFD. Member States with existing, energy efficient municipal waste incinerators expressed concern that reclassification would result in the importation of municipal waste from other Member States and that this would lead to their national waste being displaced and diverted from energy efficient municipal waste incinerators to landfill—notwithstanding the fact that they have the right to object to imports of mixed municipal waste when the new Waste Shipments Regulation (Regulation (EC) 1013/2006) applies from 12 July 2007.

  24.  Under the existing WFD, the principles of self-sufficiency and proximity apply only in relation to waste disposal and disposal installations. In line with the provisions of the new Waste Shipments Regulation, Article 10 of the revised WFD will extend these principles to "installations for the recovery of mixed municipal waste collected from private households ...."

  25.  The Presidency's text retains the formula proposed by the Commission and the provisions which will enable energy efficient municipal waste incinerators which meet the thresholds for existing or new plant to be re-classified as waste recovery operations. However, to meet the concern of the Member States referred to in paragraph 23 above, Article 10 the Presidency's text provides that:

"In derogation from Regulation (EC) 1013/2006 on shipment of waste, Member States may, in order to protect their network, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would have the consequence that national waste would have to be disposed of or that waste would have been treated in a way that is not in coherence with their national waste management plan. The Member States shall notify such a decision to the Commission. Member States may also limit outgoing shipments of waste on environmental grounds as set out in Regulation (EC) 1013/2006 on shipment of waste."

  26.  However, Article 10(4) of the Presidency's text provides that, "The principles of proximity and self-sufficiency do not mean that each Member State must possess the full range of final recovery facilities within that Member State."

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