Sustainability News- Edition #2

Edition #2

19 February 2024

REGULATORY UPDATES

SUSTAINABILITY NEWS Prepared by S Scruggs and L Sterne

FOCUS TOPIC: PROPOSED REGULATION ON SHIPMENTS OF WASTE AND AMENDMENDING REGULATIONS (EU) NO 1257/2013 AND (EU) 2020/1056

REGULATION (EU) 16528/23 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 7 DECEMBER 2023 CONCERNING THE SHIPMENTS OF WASTE

On 14 June 2006, the European Community adopted Regulation (EC) No. 1013/2006 on the shipments of waste.

This follows a decision by the Organization for Economic Cooperation and Development (“OECD”) in 1992, to legally bind its member states to a framework for managing the transboundary movement of recyclable waste within the OECD area in an environmentally and economically efficient manner.

However, since the 2006 Regulation came into force, exports of waste from the EU to non-EU countries have increased significantly, particularly to countries that are not OECD members, such as China and India.

In addition, the lack of comprehensive provisions to ensure sustainable waste management in receiving countries has weakened law enforcement efforts and has caused, amongst other things, environmental and public health problems in those countries.

SETTING A NEW COURSE ON THE TRANSBOUNDARY MOVEMENT OF RECYCLABLE WASTE For these reasons, the Commission in 2021 adopted the proposal for a new Regulation on the shipments of waste.

The final proposal for a new Regulation of the European Parliament and of the Council on the shipments of waste and amendment of the current Regulation was published on 7 December 2023. As such, the expected application of more stringent export rules for ferrous scrap, as well as the proposed facilities audit for nonOECD scrap buying countries, is now expected in 2027, following a three-year transition period.

ADJUSTING THE SAILS WHAT TO EXPECT FROM THE PROPOSED WASTE SHIPMENT REGULATION? The proposed Waste Shipment Regulation aims to lay down measures to protect the environment and human health, contribute to climate neutrality by improving the circular economy, and implement measures toward achieving a zero pollution benchmark through the prevention or reduction of adverse impacts that may result from the shipment of waste and the poor management of the waste at its destination.

To give effect to these objectives the draft Waste Shipment Regulation proposes the following: Better information exchange and transparency on shipments within the EU. Explicit prohibitions on shipments within the EU of all wastes destined for disposal, except if authorized in limited and well-justified cases.

Uniform criteria for the classification of waste to ensure that the rules are not circumvented by clearly distinguishing, for example, between used goods and waste.

Digitalizing the exchange of information and documents within the internal market.

Storing information in a central electronic system to improve data reporting, analysis, and transparency.

Strengthening the rules governing exports of waste outside the EU. Prohibiting the export of hazardous waste to non-OECD countries.

EU exports of non-hazardous waste for recovery shall be allowed only to non-OECD countries that give their consent and demonstrate their ability to treat this waste sustainably.

Drawing up a list of such recipient countries, by the Commission that is to be updated annually.

Monitoring of waste exports to OECD countries more closely to ensure that they do not adversely affect the management of domestic waste in that country.

Reinforcing the prevention and detection of illegal shipments by creating an EU risk-based targeting mechanism to guide EU countries that carry out inspections to prevent and detect illegal shipments of waste.

ARTICLE 14 SETS OUT TO ENSURE FAST-TRACKING OF PROCEDURES FOR SHIPMENTS OF WASTE TO RECOVERY FACILITIES WHICH IS AN IMPORTANT ASPECT TO ENSURE THE INTRA-EU SHIPMENT OF BATTERIES TO BOOST THE CIRCULAR ECONOMY.

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MAKING WAVES To ensure a real transition towards a circular economy for shipments of waste from its place of origin to the best place of treatment for such waste, the principle of proximity, material efficiency as well as the need to reduce the environmental footprint of waste should be taken into account.

NAVIGATION INFORMATION Who is affected by the proposed Waste Shipment Regulation?

Once in force, the Regulation will apply to: shipments of waste between Member States, with or without transit through third countries; shipments of waste imported into the Union from third countries; shipments of waste exported from the Union to third countries; shipments of waste in transit through the Union on the way to or from third countries.

General prohibitions Per Article 4, the shipment of all waste streams destined for disposal is prohibited, except if consent is given in accordance with the procedure set out in Article 11.

Shipments of waste streams (as per Article 4(2)(a) - (e)) destined for recovery collected by municipalities from private households and other waste producers shall be subject to written notification and consent as per Chapter 1.

Shipments of waste streams (as per Article 4(3)(a) - (b)) destined for recovery where the amount exceeds 20 kg shall be subject to the general information requirements set out in Articles 18(1)(a) - 18(7).

For purposes of this Article, we only highlighted some of the Regulation’s requirements such as those relating to the recovery of waste.

Note that in terms of this Regulation “recovery“ means any operation where the principal result is that waste replaces other materials that would otherwise have been used for a particular function, or waste being prepared to fullfil that function, in the plant or in the wider economy. Examples of such plants specifically inc woul recycling/ reclamation of metals and metal compounds.

Exports of waste for recovery The export for recovery of hazardous and other wastes listed in Article 36(1)(a) - (h) is prohibited in countries to which the OECD Decision does not apply; The export for recovery of non-hazardous and other wastes listed in Article 37(1)(a) - (d) is prohibited in countries to which the OECD Decision does not apply; Notwithstanding the above, the Commission is empowered to adopt a list of countries to which exports of non-hazardous waste from the Union for recovery are authorized; Imports of waste for recovery Article 49 prohibits the import of waste for recovery except from: Countries to which the OECD Decision applies; Countries that are Parties to the Basel Convention; Other countries within which the Union and its member states have an agreement compatible with Union legislation and which is in line with Article 11 of the Basel Convention; A few exceptional cases as per Articles 49(1)(d) and (e), and Article 49(2).

NOT ALL SMOOTH SAILING Notwithstanding the proposed benefits and overall objective of the proposed Waste Shipment Regulations, the proposal has come under fire on multiple industry fronts claiming that the proposed Waste Shipment Regulation only partially addresses current waste challenges, and worse, may be creating more problems.

Industry further expressed concerns that implementation of the proposed Waste Shipment Regulation may negatively impact turnover, especially SMEs. It follows that waste industries have requested the Commission to consider the following aspects as part of its transitional provisions toward a sustainable and climate-efficient economy: Waste export restrictions should be limited to problematic waste streams and should not include recycled materials; A clear distinction should be made between OECD and non-OECD countries.

The EU should develop a new criterion to distinguish between waste and raw materials from recycling; The EU should consider a harmonized end-of-waste criteria to distinguish between raw materials and recycling and waste; Mandatory recycled content targets should be set to boost circular

value chains in the EU and drive the substitution of extracted raw materials with recycling materials beyond plastics.

MAPPING OUT THE WAY FORWARD

TRANSITIONING ONCE THE PROPOSED WASTE SHIPMENT REGULATIONS ARE PROMULGATED IT WILL REPEAL REGULATION (EC) NO 1013/2006 WITHIN 24 MONTHS (2 YEARS).

Once the proposed Waste Shipment Regulations are promulgated it will repeal Regulation (EC) No 1013/2006 within 24 months (2 years), except for the following: Article 30 - concerning current border area agreements will cease immediately; Article 37 - which sets out the prohibition of exports of non-hazardous waste will come into effect within 36 months (3 years) of publication of the Regulation; and Article 51 - regarding the procedural requirements for imports from or through a country to which the OEDC Decision does not apply shall continue to apply for 15 months after publication of the Regulation.

FINAL THOUGHTS Article 56 of the Waste Shipment Regulation makes it very clear that there is an obligation on each roleplayer within the waste chain to ensure that the shipment of waste is managed in such a manner that it will not endanger human health or the environment throughout shipment as well as during recovery or disposal. It is, therefore, our responsibility to ensure that we are able to meet our duty of care obligation insofar as the import and export of waste via shipment is concerned.

Please join us for our monthly broadcast and information session on the proposed Waste Shipment Regulation on 28 February 2024.

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