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© 2021 Dr. Joachim Wuttke

Titelgestaltung: © Sabine Wuttke

Herstellung und Verlag: BoD – Books on Demand GmbH, Norderstedt

ISBN: 978-3-7557-6626-1

Preface

In view of the risk posed by the improper handling of hazardous waste, the extensive international, European and national regulations on the transfrontier shipment of waste aim to prevent the shipment of hazardous waste in particular to countries that do not have the appropriate capacities for environmentally sound disposal or recovery and to dispose of non-recyclable waste as close as possible to the place of origin.

The regulatory framework for transfrontier waste shipments is provided internationally by the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and other Wastes and their Disposal and the OECD Council Decision C(2001)107/Final on the Control of Transboundary Movements of Wastes destined for Recovery Operations, as well as at European level by Regulation (EC) No 1013/2006 on shipments of waste, which is directly applicable law in all Member States of the European Union.

This book was written from a European perspective. It is based in particular on experience gained in the EU Member State of Germany. One focus is thus on the European Waste Shipment Regulation. Nevertheless, it is also helpful for the implementation of the Basel Convention and the OECD Council Decision. The explanations and instructions are marked to indicate whether they are specific to one of the three instruments mentioned.

Due to numerous cross-references and interdependencies between the various legal provisions and the notification procedure with different case scenarios depending on the disposal method used, the export, transit and import countries involved and the waste to be shipped, it is not easy to get started with the subject matter and can be a challenge even for experienced actors.

The handbook is therefore intended to support all interested parties and stakeholders from authorities, industry and society in the application and implementation of the extensive national and international regulations on transboundary waste shipments. In addition to all relevant legal provisions, it contains a series of practical aids, especially on waste classification. A preceding explanatory text explains the interrelationships and most important legal regulations in a practical manner. This compilation of information provides waste producers, exporters and disposers with a good knowledge base and can contribute to the successful implementation of the legal regulations, to the avoidance of illegal waste shipments and to the support of enforcement.

I would like to thank Mr Ross Bartley for his critical review of the manuscript.

Dr. Joachim Wuttke

Content

• List of Abbreviations and Glossary
• I. Explanatory Notes on Waste Classification and Transfrontier Waste Shipments
  1. Introduction to the Legislation
     • 1.1 Protection Goals and Principles of Action
     • 1.2 Legal Instruments
     • 1.3 European Waste Legislation (EU-specific)
       • 1.3.1 Delegated and Implementing Acts
       • 1.3.2 Regulatory Instruments
     • 1.4 Waste Framework Directive (EU-specific)
       • 1.4.1 Waste Definition in the EU
       • 1.4.2 Distinction between Waste and Non-waste in the EU
         • 1.4.2.1 Differentiation between Waste and By-products in the EU
         • 1.4.2.2 End of Waste in the EU
       • 1.4.3 End-of-Waste Regulations in the EU
         • 1.4.3.1 End-of-Waste Regulation for Iron, Steel and Aluminium Scrap
         • 1.4.3.2 End-of-Waste Regulation for Glass Cullet
         • 1.4.3.3 End-of-Waste Regulation for Copper Scrap
     • 1.5 National Waste Legislation (Example of Germany)
       • 1.5.1 The Waste Disposal Act of 1972
       • 1.5.2 The Waste Management Act of 1986 (WMA)
       • 1.5.3 Recycling and Waste Management Act of 1994
       • 1.5.4 Circular Economy Act of 2012
       • 1.5.5 Circular Economy Act of 2020
       • 1.5.6 Waste Shipment Act, Germany
  2. Waste Classification and Waste Lists
     • 2.1 European Waste List (EU specific)
       • 2.1.1 Structure of the European Waste List
       • 2.1.2 Amendment of the EWL and Annex III to the EU-WFD
       • 2.1.3 Basic Definitions
       • 2.1.4 Classification Principles
         • 2.1.4.1 Classification as Hazardous Waste
         • 2.1.4.2 Exemption Clause for Metal Alloys
         • 2.1.4.3 Up and down Grading Clause
       • 2.1.5 Assignment of Hazardous Waste to the EWL
       • 2.1.6 Assigning a Waste to the Waste Type
         • 2.1.6.1 Assignment of Wastes to Mirror Entries
     • 2.2 Waste List System according to the BC, the OECD Decision and the EU-WSR
       • 2.2.1 Mixtures of Waste and Composite Material
       • 2.2.2 Classification of Wastes in the System of the OECD/EU-WSR (OECD/EU specific)
       • 2.2.3 Dispersion Risk
       • 2.2.4 Permissible Impurities in Waste
       • 2.2.5 Decision amending the Entry for Plastic Waste
  3. Regulations on Transboundary Waste Movements
     • 3.1 Basel Convention
       • 3.1.1 Regulations of the Basel Convention
       • 3.1.2 Definition of Wastes and Hazardous within the Basel Convention
       • 3.1.3 Selected Work Priorities under the Basel Convention
         • 3.1.3.1 Basel Protocol – Liability Protocol
         • 3.1.3.2 Strategic Framework for the Implementation of the BC
         • 3.1.3.3 Initiative for ESM of Electrical and Electronic Waste
         • 3.1.3.4 Partnership Acting on Computing Equipment
         • 3.1.3.5 Development of Technical Guidelines on e-waste
         • 3.1.3.6 Guidelines on POP-containing Waste
         • 3.1.3.7 Decision on Shipments of Plastic Waste
       • 3.1.4 Bilateral, Multilateral and Regional Agreements
         • 3.1.4.1 Bamako Convention
         • 3.1.4.2 OECD Council Decisions
         • 3.1.4.3 Waigani Convention
         • 3.1.4.4 Canada-US Agreement
         • 3.1.4.5 Mexico-US Agreement
     • 3.2 OECD Council Decision C(2001) 107/FINAL
       • 3.2.1 Waste Definition
       • 3.2.2 OECD Waste Lists
     • 3.3 EU Regulations on Waste Shipments (EU specific)
       • 3.3.1 Proposal for a new regulation
         • 3.3.1.1 Export of Green listed Wastes to Non-OECD countries
         • 3.3.1.2 Empowerments for the Commission
         • 3.3.1.3 Entry into force
         • 3.3.1.4 Possible date of full implementation
  4. Practical Guidance on Waste Shipments
     • 4.1 Scope of Application
     • 4.2 Definition of Waste
     • 4.3 Illegal Shipments
       • 4.3.1 Take-back Obligations
     • 4.4 Requirements for Waste Shipments
       • 4.4.1 Green Control Procedure (OECD-specific)
       • 4.4.2 Information Requirements (EU-specific)
       • 4.4.3 Obligation to Notify
         • 4.4.3.1 Unilateral Notification Procedure
       • 4.4.4 Export and Import of Waste for Disposal
         • 4.4.4.1 Export from and Import to the EU (EU-specific)
       • 4.4.5 Export and Import of Waste for Recovery
         • 4.4.5.1 Export from and to the EU (EU-specific)
         • 4.4.5.2 Export Ban to Countries where the OECD Decision does not apply (EU-specific)
         • 4.4.5.3 Special Regulations for Shipments of Green-listed Waste for Recovery to third Countries (EU specific)
       • 4.4.6 Transit of Waste
         • 4.4.6.1 Shipments of Waste destined for Disposal between EU Member States with Transit through a third Country (EU-specific)
         • 4.4.6.2 Shipments of Waste for Recovery between EU Member States with Transit through a third Country (EU-specific)
       • 4.4.7 Pre-consented Recovery Facilities (OECD/EU-specific)
     • 4.5 Procedural Rules on Information Requirements (EU-specific)
       • 4.5.1 Instructions for Filling in the individual Blocks of Annex VII
       • 4.5.2 Disclosure of the Waste Producer
       • 4.5.3 Jurisdiction and Residence Requirement
         • 4.5.3.1 Residence Requirement
     • 4.6 Procedural Rules of Prior Notification and Consent
       • 4.6.1 Who can notify? (EU-specific)
       • 4.6.2 Notification
     • 4.7 Notification Documentation to be submitted
       • 4.7.1 Special Features of Interim Disposal Procedures
     • 4.8 Competent Authorities
     • 4.9 Application Procedure
       • 4.9.1 General Guidance on Completing the Documents
       • 4.9.2 Instructions for Completing the Notification and Movement Documents
         • 4.9.2.1 Electronic Data Exchange (EU specific)
         • 4.9.2.2 Detailed Help for the Individual Boxes
       • 4.9.3 Examination by the Competent Authorities
         • 4.9.3.1 Time Limits (OECD and EU-specific)
       • 4.9.4 Financial Guarantee
         • 4.9.4.1 Sample Calculation of the Financial Guarantee
         • 4.9.4.2 Form and content of the financial guarantee or equivalent insurance:
       • 4.9.5 Contract
       • 4.9.6 Administrative Costs (Fees)
       • 4.9.7 Disagreement on Classification Issues
       • 4.9.8 Grounds for Objection
       • 4.9.9 Conditions
       • 4.9.10 Subsequent Demand for Documents
     • 4.10 Procedure after Receipt of Written Consents
       • 4.10.1 Tracking Procedure
         • 4.10.1.1 Announcement of Transport Prior to Shipment
         • 4.10.1.2 Transport of the Waste
         • 4.10.1.3 Arrival of the Waste
         • 4.10.1.4 Disposal/Recovery of the Waste
     • 4.11 Controls (EU specific)
       • 4.11.1 Control Plans (EU-specific)
       • 4.11.2 Cooperation on Controls (IMPEL/TFS)
     • 4.12 Customs Offices of Entry into and Exit from the EU
  5. Additional Requirements
     • 5.1 Transport Rules and Regulations
       • 5.1.1 The UN Orange Book
       • 5.1.2 ADR Agreement
       • 5.1.3 RID Regulations
       • 5.1.4 ADN
       • 5.1.5 ICAO Technical Instructions
       • 5.1.6 IATA Dangerous Goods Regulations
       • 5.1.7 IMDG Code
         • 5.1.7.1 IMDG Code Supplement
  6. Literature
• Appendix 1 – Consolidated Waste Lists (BC, OECD and EU-WSR)
• Appendix 2 - European Waste List with Allocation of Possible Constituents and Hazard Property
• II. Annexes
  • II.1 Basel Convention
  • II.2 OECD-Council Decision C(2001)107/FINAL
  • II.3 EU Waste Shipment Regulation
  • II.4 Waste Framework Directive
  • II.5 European Waste List (EWL)
  • II.6 EU Regulation 1418/2007
  • II.7 Bamako Convention
  • II.8 Waigani Convention
  • II.9 Canada-US Agreement
  • II.10 Mexico-US Agreement
  • II.11 Contract for Shipments of Waste
  • II.12 Contract for Shipments of Waste Subject to the Information Requirements (EU specific)
  • II.13 Correspondents' guidelines (EU-specific)
  • II.14 Bank Guarantee

List of Abbreviations and Glossary

I. Explanatory Notes on Waste Classification and Transfrontier Waste Shipments

In the explanatory notes, legal norms are indicated without legal sources. The full titles and references of the legal standards mentioned in the text as well as explanations of abbreviations are mainly listed in the glossary.

1. Introduction to the Legislation

The beneficial development of technology and the natural sciences over the last 150 years has been accompanied by an enormous exploitation of nature. There had already been systematic environmental destruction before, as the forests of Crete cleared for fuel in the copper furnaces for the production of bronze or the areas of the Lüneburg Heath cleared by farmers to obtain arable and pasture land as well as construction and firewood show. But they are insignificant compared to what has been achieved with the use of machines and chemicals: raw material deposits are mined to complete exhaustion, air, water and soil are polluted to the limit and the landscape is overgrown.

In such an environment, free human development is no longer possible. Not only our health, but also our economic success is endangered by such developments. In order to counter these dangers, environmental protection measures are necessary. Environmental protection is an independent, indispensable political task. Its objectives must be weighed against those of other policy areas, and wherever lives or serious threats to human health are at stake, environmental protection must claim priority.

Environmental policy must therefore take measures that are necessary to

• to secure an environment that is needed for the preservation of health and a dignified existence,
• to protect soil, air and water, plants and animals from adverse effects of human intervention, and
• to eliminate damage and disadvantages resulting from human intervention in the environment.

1.1 Protection Goals and Principles of Action

In order to protect humans and the environment from the harmful effects of all substances introduced into the atmosphere, waters or soils, a comprehensive and interdisciplinary concept is required. This means general protection goals and principles of action, which, together with principles for the use and further development of environmental policy instruments, determine medium and long-term environmental policy. Precaution against environmental pollution by substances is a primary concern of environmental policy for the following protection goals.

The primary objective of environmental policy is to protect human life and health, both now and in the future, from damage, particularly from substance inputs into the environment.

The existence of human beings is indispensably linked to the biotic communities of animals and plants via food chains and material cycles. It depends in many ways on maintaining or restoring the functioning of ecosystems. Not least for this reason, environmental policy aims to protect ecosystems in their entirety as well as to protect and conserve individual species of animals and plants. However, animals, plants and ecosystems are also protected for their own sake.

In the realisation of environmental policy goals, the principle of environmental precaution, the principle of cooperation and the polluter pays principle are followed. Environmental precaution is to be understood both as a principle of political action and as a legal principle, which, however, requires legal standardisation. As a principle of political action, environmental precaution encompasses all actions which

• serve to avert concrete environmental hazards,
• avoid or reduce risks to the environment in the run-up to danger prevention, and
• which, with foresight, serve to shape our future environment, in particular the protection and development of the natural foundations of life.

The cooperation principle is understood as a political procedural principle aimed at achieving environmental policy goals as amicably as possible. It requires a fair cooperation of all governmental and social forces in the decision-making process and in the realisation of environmental policy objectives. This improves the information situation of those involved as well as the acceptance and thus the effectiveness of environmental policy decisions. Unnecessary conflicts, administrative effort and costs are to be avoided or reduced. Of course, there are also limits to the cooperation between governmental and societal bodies. For example, the state cannot waive the competences assigned to it by the constitution or by law.

All sectors of the economy are potential polluters. Manufacturers and users of substances, companies and their associations are well aware of the possibilities and procedures for avoiding and reducing substance inputs. Therefore, it is expected that the economy uses creativity, scientific expertise and technical knowledge for the continuous further development of environmentally sound technologies.

The polluter pays principle in environmental protection is understood as a cost allocation principle and an economic efficiency criterion. The costs of preventing or eliminating environmental pollution must be borne by the party responsible for causing it.

1.2 Legal Instruments

In recent decades, a large number of legal provisions have been enacted and amended in the field of environmental protection including waste management The legal instruments for ensuring that social forces act in accordance with environmental protection concerns consist largely of tools that can be attributed to regulatory law.

Among the instruments of regulatory law, the rules and prohibitions or restrictions based directly on laws or ordinances are particularly numerous. The obligations based on rules are of a very different nature, such as management obligations, maintenance obligations, environmental compatibility tests, care obligations, storage and packaging obligations, recycling obligations, precautionary measures, monitoring and security obligations.

The desired environmentally sound behaviour is usually achieved reliably and quickly with prohibitions and restrictions. The development of a comprehensive regulatory framework is therefore one of the central points of environmental policy. However, the effectiveness of the regulatory instruments is limited, especially ahead of prevention of hazards. In some cases, the state is unable to obtain the information required for bans and prohibitions, or can do so only at disproportionately high expense. The necessary state controls also tie up a large amount of human and financial resources.

The environmental impact assessment is an exemplary instrument of precautionary environmental policy. Environmental impact assessment involves the analysis and evaluation of the likely effects of technologies, programmes, plans or projects on the environment. With its help, these effects are to be described and secured in a transparent and comprehensible manner in a regulated procedure before the decision, in which other considerations can also be included, is made.

In order to avoid or reduce substance discharges into the environment, it is possible, in appropriate cases, to increasingly encourage polluters to enter into voluntary commitments. The state can refrain from issuing bans and prohibitions ahead of prevention of hazards, if the polluters voluntarily agree to the required environmentally sound behaviour and guarantee compliance with the commitment.

With voluntary commitments, polluters can demonstrate how acting on their own responsibility quickly and un-bureaucratically leads to environmental relief through cooperation with the state. This instrument will be particularly useful in cases where ongoing economic and technical developments are to be accelerated. However, a prerequisite for the realisation and success of voluntary commitments is that the group of polluters is manageable.

The experiences with the existing voluntary commitments in Germany¹ are ambivalent. One study found that only one third of the commitments set ambitious targets and the remaining two thirds only promised standards that were easy to meet. Industry sees the declarations primarily as a means of averting impending and probably stricter environmental regulations by the state.

The state instruments mentioned so far, economic incentives and agreements, but also bans and prohibitions are only effective to a limited extent if they do not meet with the insight of the polluters into the necessity of environmental protection measures. The decisive factor for the lasting success of environmental policy is that those affected accept the environmental policy goals and are prepared to actively contribute to achieving these goals. Environmental awareness is therefore a decisive prerequisite for the success of environmental policy measures. The further development of environmental awareness through rapid, comprehensive and precise information about possibilities of environmentally sound behaviour is therefore necessary.

1.3 European Waste Legislation (EU-specific)

In the EU, more than 2 billion tonnes of waste are generated every year, and their collection, storage, treatment and processing are regulated by a number of directives. These measures concern individual areas such as waste from titanium dioxide production, waste oil and waste containing PCBs. Transfrontier shipments of waste are to be controlled in accordance with the directly applicable Regulation (EC) No 1013/2006 on shipments of waste (EU-WSR).

Community policy on the environment shall contribute to the pursuit of the following objectives

• preserving, protecting and improving the quality of the environment,
• protection of human health,
• prudent and rational utilisation of natural resources, and
• promoting measures at international level to deal with regional or worldwide environmental problems.

Community policy on the environment aims at a "high level of protection". It is based on the principle that environmental damage should as a priority be rectified at source, on the principles of precaution and prevention and on the polluter pays principle.

The Community's environmental policy objectives are defined and described in action programmes. Community waste management policy gives priority to prevention and recovery. The focus is on the following key objectives

• preventing the generation of waste by increasing the use of environmentally sound technology and the production of environmentally sound products,
• promoting recycling and
• improving waste disposal with the help of strict European standards, according to which waste must be disposed of as close to the producer as possible.

The common environmental policy is committed to the precautionary and polluter-pays principles. Environmental protection requirements are an integral part of other Community policies. The subsidiarity principle applies, i.e. the Community will only take action in the field of environmental policy if its environmental objectives can be better achieved at Community level. Provided that they are compatible with the Treaty on the Functioning of the European Union (TFEU), Member States of the EU have the right under Article 193 TFEU to maintain and adopt enhanced environmental protection measures.

1.3.1 Delegated and Implementing Acts

The Lisbon Treaty introduced delegated acts (Art. 290 TFEU) and implementing acts (Art. 291 TFEU) in 2009. Before the EU Commission can adopt an implementing act, one of the following procedures applies:

• examination procedure – used particularly for

• advisory procedure – generally used for all other implementing acts.

Both procedures require that a committee composed of representatives from all EU Member States provide a formal opinion, usually in the form of a vote, on the Commission's proposed measures. This procedure is known in the EU jargon as "comitology" (committee procedure). Depending on the procedure, committee opinions can be more or less binding on the Commission.

If the EU Commission has been given the relevant power by a legal act, it can adopt delegated acts. It is subject to strict conditions:

• the delegated act must not change the essential elements of the legal act,
• the objectives, content, scope and duration of the delegation must be explicitly set out in the act, and
• Parliament and the Council may revoke the delegation of power or express reservations in respect of the delegated act.

Delegated acts are prepared by the Commission and adopted after consultation of expert groups composed of representatives of all EU Member States, which meet on a regular or ad hoc basis. Once the Commission has adopted the act, Parliament and Council have two months to raise objections. Otherwise, the delegated act enters into force.

1.3.2 Regulatory Instruments

Regulations, directives, decisions, recommendations or opinions can be used as regulatory instruments. Regulations are the most important instrument due to their direct validity in the EU Member States, whereas directives are addressed to the Member States and must be implemented by them. So far, mainly directives have been issued in the area of waste law.

The waste-relevant EU Directives mainly deal with specific regulations for certain types of waste, such as packaging, batteries, PCBs and PCTs, waste from titanium dioxide production, sewage sludge, etc., or with plant-related regulations, such as for landfills or waste incineration plants.

In 2018, the European Parliament adopted extensive amendments to the directives on waste management. Based on the European Circular Economy Package published in December 2015, the Council Directive on Waste (EU-WFD) was revised, among other things.

1.4 Waste Framework Directive (EU-specific)

The most important of the existing directives is the Council Directive on Waste (EU Waste Framework Directive - EU-WFD). The amended EU-WFD entered into force on 12 December 2008 and was again amended in 2018² These amendments mainly include extended requirements to promote the prevention of waste, the setting of targets for recycling and preparation for re-use of municipal waste, minimum requirements for extended producer responsibility schemes, extended criteria for the assessment of the end-of-waste status and new requirements for separate collection.

The EU-WFD contains general provisions on waste, in particular provisions on

• the concepts of waste and waste disposal
• the definition of hazardous waste,
• the polluter pays principle,
• the reporting obligations to be fulfilled,
• the licensing and monitoring obligations,
• waste management planning,
• producer responsibility,
• by-products and the end-of-waste
• the waste hierarchy,
• waste prevention and
• the disposal of waste oils.

1.4.1 Waste Definition in the EU

The legal definition of waste has remained unchanged from the previous regulation. "Waste" is still any substance or object which the holder discards, intends to discard or is required to discard. The EU-WFD regulates all types of waste that meet this definition.

A substance or object only becomes waste when the holder discards it (de facto waste term), wants to discard it (subjective waste term) or has to discard it (objective waste term). The waste definition in the EU is not fulfilled if substances or objects are directly used again for their original purpose. This also includes products that can be repaired or are in need of repair.

Please note that the Waste Definition of Basel Convention (cf. sect. 1.3.1.2) and of OECD Council Decision (cf. sect. I.3.2.1) are not the same as in EU-WFD.

1.4.2 Distinction between Waste and Non-waste in the EU

Substances and objects that can be used directly for their original purpose as a product, commodity or raw material without further treatment in the sense of a recovery operation according to Annex II to the EU-WFD are generally not wastes (for recovery). The prerequisite is that the items in question are destined with the above-mentioned purpose and are actually put to a corresponding use or handed over for this purpose.

For electrical and electronic equipment, the WEEE Directive (Art. 23 in conjunction with Annex VI) introduced a reversal of the burden of proof. Whoever transports used electrical or electronic equipment shall ensure that this equipment is accompanied by documents proving that the equipment in question is not waste equipment and that it is adequately protected against damage during transport and loading and unloading, in particular by adequate packaging and suitable stacking of the load.

In the absence of appropriate documentation to prove that an item is used EEE and not waste, and in the absence of adequate protection against damage during transport and loading and unloading, the European competent authorities will consider such an item to be waste and assume that the shipment constitutes an illegal shipment. In these circumstances, the cargo will be dealt with in accordance with Art. 24 and 25 of the EU-WSR.

If, during controls, the above-mentioned evidence is not provided to the authorities involved in the controls within the time limit set by them, or if these authorities consider that the evidence and information at their disposal is not sufficient for an assessment, the shipment in question will be considered an illegal shipment in accordance with Art. 50(4) d of the EU-WSR.

Further guidance gives the Correspondents’ Guidelines No. 1 (for WEEE) and No. 9 (for end-of-life vehicles).³

1.4.2.1 Differentiation between Waste and By-products in the EU

Art. 5 of the EU-WFD establishes a regulation on the distinction between waste and by-products. According to this, a substance or object that is the result of a production process without its production being the main purpose of the process is only considered a by-product and not a waste if all of the following conditions are met in the specific case:

• it is certain that the substance or object will continue to be used,
• the substance or object can be used directly, without further processing other than normal industrial practice,
• the substance or object is produced as an integral part of a production process, and
• the further use is lawful, i.e. the substance or object fulfils all relevant product, environmental and health protection requirements for the particular use and will not lead to overall adverse environmental or health impacts.

1.4.2.2 End of Waste in the EU

Art. 6 of the EU-WFD regulates whether and under what conditions a waste can be released from the waste regime. The end of waste status is systematically linked to the recovery and disposal obligations under waste legislation. Waste status ends for certain specified wastes when they have undergone a recovery process and also fulfil specific criteria. The following conditions must all be met at the same time in a specific case:

• the substance or object is to be used for specific purposes,
• a market or demand exists for such a substance or object,
• the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and
• the use of the substance or object will not lead to overall adverse environmental or human health impacts.

In addition, the substances or objects must comply with the relevant requirements of chemicals and product legislation. This includes compliance with appropriate quality criteria and, if necessary, pollutant limit values for the end-of-waste status of materials obtained through the recovery process.

1.4.3 End-of-Waste Regulations in the EU

The EU has issued three end-of-waste regulations, namely for iron, steel and aluminium scrap, for glass cullet and for copper scrap. In addition, some EU Member States have adopted national end-of-waste regulations, such as Austria for recycled wood, recycled construction materials, substitute fuel products and compost.

The three EU regulations are structured in the same way and, in addition to a few articles, contain annexes with precise details of the criteria that must be met for the respective materials. Certain material-specific criteria have to be fulfilled, certain treatment processes have to be carried out and certain requirements for the quality of the material after treatment have to be met.

It is important that the producer of the materials with end-of-waste status applies a quality management system and proves with a declaration of compliance (cf. annex to the respective regulation) for each consignment that all required criteria of the End-of-Waste regulation are met. The producer must pass on the declaration of compliance to the next holder of the material.

1.4.3.1 End-of-Waste Regulation for Iron, Steel and Aluminium Scrap

With this End-of-Waste Regulation, specific criteria for iron, steel and aluminium scrap were defined, which determine the end-of-waste. Essential conditions for the end of waste are requirements regarding

• the quality of the scrap,
• the input material to be recycled, and
• the treatment processes and techniques.

All treatment steps such as crushing, shredding, cleaning or decontamination that are necessary to prepare the scrap for use in steel or aluminium plants must be completed before the waste status is terminated.

For iron and steel scrap, a total foreign matter content of two percent by weight was specified, for aluminium scrap a foreign matter content of no more than five percent by weight or a metal yield of at least 90 %. A further condition is that the scrap must be free of visible oil, oil emulsions and lubricants, with the exception of small quantities, which must not leak. Furthermore, it must not exhibit any of the hazardous properties listed in Annex III to the EU-WFD.

Within the framework of the quality management system, compliance with all requirements of this regulation shall be demonstrated. The producer shall grant the competent authorities access to the quality management system on request.

1.4.3.2 End-of-Waste Regulation for Glass Cullet

The End-of-Waste Regulation for glass cullet sets specific criteria for the end-of-waste status of glass cullet intended for the production of glass. For this purpose, criteria have been defined for the following non-glass components:

• ferrous metals: ≤ 50 ppm,
• non-ferrous metals: ≤ 60 ppm,
• organic substances: ≤ 2,000 ppm,
• inorganic non-metal non-glass substances:

Inorganic non-metal non-glass materials include, for example, ceramics, stones, porcelain or pyro ceramics and organic materials include paper, rubber, plastic, fabric or wood.

The glass cullet must neither exhibit any of the hazardous properties listed in Annex III to the EU-WFD nor exceed the limit values according to Annex IV to the EU-POP Regulation. Only waste from the collection of recoverable container glass, flat glass or lead-free tableware may be used as input. Glass-containing waste from mixed municipal solid waste or healthcare waste and hazardous wastes such as lead glass waste from cathode ray tubes shall not be used as an input.

1.4.3.3 End-of-Waste Regulation for Copper Scrap

The End-of-Waste Regulation for Copper Scrap establishes specific criteria for the end of waste status of copper scrap. In particular, copper scrap is no longer considered waste if the following criteria are met, namely if

• the total content of impurities does not exceed 2 per cent by weight,
• the scrap is free from excessive metal oxide in any form, except for typical amounts resulting from outdoor storage of processed scrap under normal atmospheric conditions, and
• the scrap is free from visible oil, oil emulsions, lubricants or grease, except for insignificant quantities which must not leach out.

Impurities are metals other than copper and copper alloys such as

• non-metallic substances (soil, dust, insulating material and glass),
• combustible non-metallic substances (rubber, plastic, fabric, wood),
• other chemical or organic substances, and
• slag, dross, skimmings, baghouse dust, grinder dust and sludge. The copper scrap must not exhibit any of the hazardous properties listed in Annex III to the EU-WFD or exceed the limit values according to Annex IV to the EU POP-Regulation and it must be free of PVC in the form of coatings, paints and residual plastics.

1.5 National Waste Legislation (Example of Germany)

The first legal foundations for waste management in Germany were developed at the beginning of the 19th century. However, the waste regulations at that time were limited to individual parts of Germany, where they were integrated into regulatory and police law, such as sanitary police regulations. It was only after the links between a lack of urban hygiene and widespread diseases such as cholera became increasingly clear that more emphasis was placed on orderly drainage and waste disposal. These fields of activity were carried out by the municipalities as sovereign tasks. Until the 1960s, the collected waste was almost exclusively taken to the existing many small waste dumps.

Waste management goals did not find their way into the environmental policy of Germany until around 1970. In 1971, the Federal Government analysed the waste management situation in its environmental programme⁴. At that time waste management was characterised by the operation of about 50,000 small, often uncontrolled dumps. Hazardous waste was also deposited at these sites along with household waste. Criticism of this state of affairs culminated above all in the demand to create a few central and orderly landfills. After the Federal Government obtained legislative competence for the area of waste law in 1972 by amending the Basic Law, it enacted the Waste Disposal Act.

1.5.1 The Waste Disposal Act of 1972

The Waste Disposal Act (WDA) was primarily an organisational and planning law, the aim of which was to steer the disorderly so-called “dumping economy” into orderly channels through organisational guidelines. This was primarily achieved by regulating the responsibilities for waste disposal. The law was clearly disposal-oriented. Binding obligations for waste recovery were not included in this law. Objectives for the prevention and recovery of waste were formulated for the first time in the Federal Government's Waste Management Programme⁵ of October 1975.

1.5.2 The Waste Management Act of 1986 (WMA)

Within the framework of the fourth amendment to the Waste Disposal Act in 1986, the Waste Disposal Act became the 'Act on the Prevention and Disposal of Waste – Waste Management Act". This law for the first time contains principles and obligations for the prevention and recycling of waste. Among other things, the WMA newly regulates the waste recovery requirement, the disposal of waste oils, the authorisation to issue technical instructions and the extension of waste law monitoring to contaminated sites.

The authorisation to issue technical instructions was used to regulate the disposal of hazardous waste through the "Tl Waste" and the disposal of municipal waste through the ‘Tl Municipal Waste". The bundle of empowerments contained in Art. 14 WMA to enforce prevention and recovery was used to issue product-related regulations in advance of the disposal obligation.⁶ The best-known example is the Packaging Ordinance, which was further developed into the Packaging Act after several amendments.

1.5.3 Recycling and Waste Management Act of 1994

The Recycling and Waste Management Act (RWMA) is the third comprehensive revision of waste legislation in Germany, following the Waste Disposal Act of 1972 and the Waste Management Act of 1986.

The amendment also aimed to implement European directives such as the EU-WFD. The primary objective of the RWMA was to further develop waste management into a circular economy. Important cornerstones of the RWMA were the implementation of a new concept of waste adapted to the EU law, the hierarchy of obligations, extended producer responsibility and a partial re-organisation of the disposal system with extended possibilities for privatisation of waste management.

What was new was that the scope of application of the RWMA in principle also covers substances which until 1986 were designated as so-called economic goods or residual materials within the meaning of Art. 5 (1) No. 3 of the Federal Immission Control Act in distinction to the waste concept of Art. 1 WDA. The scope of application of the RWMA was thus significantly expanded compared to the WDA of 1972.

1.5.4 Circular Economy Act of 2012

The Act to Promote Circular Economy and Safeguard the Environmentally Sound Management of Waste (Circular Economy Act – CEA) came into force in June 2012. The CEA replaced the Recycling and Waste Management Act (RWMA). The CEA transposes the requirements of the revised EU-WFD into national law.

The primary objective was to focus the circular economy even more strongly on resource, climate and environmental protection. With the CEA, the concept of waste was aligned with the EU-WFD and expanded. A new regulation on the distinction between waste and by-products not subject to waste law was introduced in Art. 4 and a new provision on the end of waste status in Art. 5 CEA.

1.5.5 Circular Economy Act of 2020

The aim of the revised CEA, is to improve resource management and resource efficiency in Germany and, in particular, to strengthen waste prevention. The recycling rates of certain waste streams, especially paper, metal, plastic and glass, but also municipal waste, are increased and the obligations for separate collection are extended to bio-waste, hazardous household waste, textiles and bulky waste.

Public authorities will be obliged to give preference to ecologically advantageous products in future procurement. Recycled products are to be given priority in public procurement. With this law, the Federal Government is obliging itself to give preference in procurement to products that conserve raw materials, are low-waste, repairable, low-pollutant and recyclable, provided that no unreasonable additional costs are incurred.

With a newly created duty of care, the state will in future for the first time have legal recourse against the destruction of new goods or returns. For the first time, there is also a legal basis for manufacturers and retailers of singleuse plastic products, such as "to-go cups" or cigarette butts, to participate in the cleaning costs of parks and streets by decree.

1.5.6 Waste Shipment Act, Germany

The Waste Shipment Act (WSA) establishes the necessary legal regulations for the implementation of the Basel Convention, among other things, and at the same time creates necessary supplements to the EU-WSR, for example supplementary regulations on re-importation obligations, on the financial guarantee, on the assignment of competent authorities, on data exchange, and on penalties and fines.

Furthermore, the operator of a waste disposal facility has an obligation to inspect and provide information, with regard to the conformity of the waste actually delivered (quantity, designation and composition, physical properties, waste identification) with the information in the accompanying movement document. The quantity of waste determined on arrival at the facility should not exceed the quantity indicated in block 5 of the movement document. The facility operator must also check that the waste delivered corresponds to the information provided with the movement document.

The amendment of the WSA in 2016 brought it into line with the EU law and created more differentiated criminal sanction regulations. The previous sanctions had shown that the sanction structure was not sufficiently differentiated and led to problems of interpretation. With the Amending Act, the sanctions of Art. 326 (2) No. 1 of the Criminal Code (Strafgesetzbuch) for violations of the EU-WSR was transferred to the German WSA and additional offences for fines were introduced for certain violations in the German WSA, thus creating a more differentiated sanction structure.

¹ The Role of Environmental Agreements, Cameron & May, 1999

² Amended by Directive (EU) 2018/851 of the European Parliament and of the Council of 30 May 2018

³ cf. Correspondents' Guidelines: https://waste-move.eu/?p=539&lang=en

⁴ BT-Drs. 10/5656

⁵ BT-Drs. 7/4826

⁶ Wuttke, Joachim: “Erklärtes Ziel: Mehr Produktverantwortung - Maßnahmen zur Vermeidung und Verwertung von Abfällen nach § 14 AbfG“, Entsorgungs-Technik 5 (1993) Nr. 4, S. 41/45 und Nr. 5, S. 42/46.

2. Waste Classification and Waste Lists

Waste classification systems can be developed and designed according to different principles. In general, waste classification can be based on material or origin, taking into account inherent hazard properties and/or risk considerations.