April 3, 2023

FEAD warns against strong restrictions of hazardous waste shipments for disposal under the Waste Shipment Regulation

The Commission’s proposal for a new Waste Shipment Regulation (WSR) moves from a system based on the competent authority’s power to raise reasoned objections to shipments of waste destined for disposal based on listed grounds, to a prohibition to ship waste for disposal unless it is authorised by the authorities following the fulfilment of strict conditions.

FEAD supports the aim to increase recycling and reduce waste disposal, which motivates this shift in the procedure to ship waste for disposal (see Recital 17 of the WSR Commission’s proposal). We appreciate the alignment of the WSR revision with the waste hierarchy to facilitate shipments for recovery and recycling, but this should not mean that shipments for disposal become virtually impossible. Even within a functioning circular economy, waste will be produced that must be disposed of in an environmentally sound manner in highly specialised treatment plants.

The proposed rules do not differentiate between hazardous and non-hazardous waste. However, in hazardous waste management disposal operations and consequently shipments for disposal are particularly relevant, and even mandatory in certain cases, because the main objective when treating it is precisely to eliminate risks for human health and the environment. Here, the critical size needed to create and operate the highly specialised and technical plants to treat hazardous waste does not allow for their replication in each Member State. This is especially the case of small Member States and islands. For example, The Netherlands officially closed its D10 (disposal by incineration) rotary kilns capacity in 2006 and thus depends on facilities located in Germany, Belgium or France to dispose hazardous and medical waste. On its side, Austria relies on facilities located in Germany to dispose hazardous fly ash from municipal solid waste incineration. The shipments to D10 installations (mainly cross-border and to EU permitted BAT installations) is a well-established European routine and necessary service to waste producers.

FEAD believes that within the EU, waste should be treated where the best economic and ecological outcome can be provided. For hazardous waste, this means that waste transfers are essential to ensure safe and efficient treatment options. Therefore, FEAD would like to address the following issues in the current WSR revision proposal:

Reversed burden of proof for shipments for disposal (Art. 11). In the Commission’s revision proposal from 2021, it is the notifier who must demonstrate that the conditions for a shipment for disposal are fulfilled. Among others, the notifier must demonstrate that the waste cannot be disposed of in a technically feasible or economically viable way in the country where it was generated. Such burden of proof is not only a huge administrative burden imposed to the notifiers, but it is in fact impossible for the notifier to be aware of all the possibilities within a Member State to demonstrate those requirements.

  • FEAD advocates for maintaining the current system where the authorities are empowered to raise concerns because it is the Member State’s authorities who have the required data for it and because it allows for a case-by case assessment.

The proposed text of Article 11 is very strict and leaves no room for a case-by-case assessment. Article 11 requires that all the conditions are fulfilled. This not only affects the demonstration by the notifier of national possibilities for disposal, but also the fact that:

the notifier or the consignee has previously not been convicted of illegal shipment or any other illegal act in relation to environmental protection (Art. 11(1)(b), or

the notifier or the facility has not failed to comply with Articles 15 and 16 in connection with past shipments of waste (Art. 11(1)(c).

These two points are particularly strict because they are extremely broad. In the case of illegal shipments, the provision must be limited in time, to unredeemed offenses, and to serious and criminal, legally binding offences. It must not include minor and administrative offences, such as administrative errors when filling in a form or filing a document as such unintentional ‘administrative errors’ cannot be considered at the same level of criminal offences. In addition, waste management companies operate more and more at European level with possibly multiple locations in several EU Member States. The proposed wording by the Commission can lead to a situation where an error made by one facility or even one person in one facility will impede the whole company (including all its facilities/activity branches) shipping waste forever.

In the same line, only repeated failures to comply with Articles 15 and 16 should justify the impossibility for ship forever. Considering the amounts (thousands) of shipments carried out by EU waste companies, errors cannot be discarded, which are partly not even the notifier’s responsibility (transporter and recipient have their own tasks).

  • A risk-based approach and the possibility of a case-by-case assessment is crucial.

Where there are no national capacities to treat or dispose of hazardous waste as needed, the procedure should be streamlined to ensure that once the competent authority of destination has authorised the shipments, the CA of dispatch and transit shall not raise objections/not authorise the shipment.

– It should be clarified that the provisions contained in Article 9 in relation to the assumption of tacit consents by the competent authorities of dispatch and transit and the requirement to provide motivated explanation where there is no decision within the determined 30 days period also apply to shipments for disposal under Article 11.

  • For example, tacit consent is foreseen under Article 9(1) for the authorities of dispatch and transit, which is, according to the title, also applicable for disposal. However, Article 11(1) only refers to ‘written consent’.

Please find concrete amendment proposals in the annex.

FEAD Secretariat

FEAD is the European Waste Management Association, representing the private waste and resource management industry across Europe, including 18 national waste management federations and 3,000 waste management companies. Private waste management companies operate in 60% of municipal waste markets in Europe and in 75% of industrial and commercial waste. This means more than 320,000 local jobs, fuelling €5 billion of investments into the economy every year. For more information, please contact: