The European Commission put forward a formal proposal for the new Directive in June (ENDS Report 341, pp 52-53 ). The measure is part of a package in response to recent major mining accidents in Spain and Romania which caused severe water pollution.
Among the Directive's requirements are permits and waste management plans for mineral waste facilities, and safety reports for facilities containing hazardous waste or dangerous substances. Permit holders would be required to hold a financial guarantee sufficient to cover obligations arising from their permits and site rehabilitation.
The Office of the Deputy Prime Minister issued a consultation paper on the draft Directive in October.1 Its broad position is that the extractive industry is already tightly regulated in the UK through health and safety and planning legislation.
"The incidence of significant operational failure of waste facilities leading to major damage is very rare, with no specific cases since the Aberfan disaster in 1966," it says. The Health and Safety Executive says there have been two dangerous tip failures since 1988, leading to limited environmental damage.
Incidents where operational failures of waste tips and ponds lead to significant environmental damage occur no more than once or twice per decade, the paper says.
The paper argues that the proposed EU measures would not deliver any significant additional safeguards for the UK environment. However, it concedes that there would be economic benefits through establishing a level playing-field across the EU - and that the reduction in the frequency and severity of accidents in Europe should enhance the industry's image.
The paper also acknowledges that the provisions on financial guarantees would ensure full implementation of the "polluter pays" principle. However, the small number of cases where the costs of site rehabilitation arising from insolvency nowadays lead to a site remaining derelict means that environmental benefits in the UK are likely to be "modest".
The Government is therefore edging towards a position of supporting the basic principles of the Directive while pressing for amendments to minimise its burdens.
It suggests that appropriate size criteria might be heaps with a storage capacity of more than 500,000m3 and more than 15 metres high. Engineered ponds would qualify where they stored more than 250,000m3 and were more than five metres above the surrounding land. Tighter criteria would apply where the underlying land was on a slope in excess of 1 in 12.
The consultation paper also proposes that, in situations where the effects of an accident would be limited to the site itself, authorities should be allowed to disapply the requirement to prepare an external emergency plan.
The paper says that clarification is needed to allow operators to provide a single guarantee to cover the waste facilities and the extraction void, rather than having to provide separate guarantees. It suggests provision of guarantees for the whole site, as is normal practice in the UK where guarantees are in place.
The ODPM has commissioned research to investigate the Directive's costs. A survey of mineral planning authorities collected information on waste management issues relating to 835 sites out of a total of 2,303 active mines and quarries in the UK.
It found that 54% of sites had some form of waste management facility, often more than one. The coal mining industry produces most of the waste likely to be classified as "hazardous" because a significant proportion contains iron sulphide. Hazardous wastes are also likely to be produced from the extraction of fluorspar, barytes and calcite, though in small quantities.
New estimates of mineral waste production have been drawn up, based largely on estimated ratios of waste to saleable product. Projected arisings in 2000 exceeded 90 million tonnes (Table 1).
Some 17% of active mineral workings have spoil tips, the survey found, and 10% have lagoons with dams. A further 22% have lagoons below ground level which do not need dams.
The figures suggest that about half of all active mineral workings have waste facilities, and would therefore be subject to the duty to prepare a waste management plan. "Operators of these sites should be able to estimate the amount of waste they generate with little difficulty. In most cases they should also be able to characterise the waste based on the geology and the mineral worked."
Moreover, potential environmental impacts, measures to be taken to prevent such effects and plans for site closure should already be available as a requirement of the existing planning process, particularly for sites which required an environmental impact assessment. "Significant costs are therefore not anticipated."
On financial guarantees, the paper notes that these are increasingly required in Scotland, Wales and Northern Ireland. However, they are not generally used in England except in the opencast coal sector.
The ODPM commissioned a study of the costs and benefits of securities in the industry. The approximate costs per tonne range from £0.42 per tonne for china clay to £0.03 for limestone and close to zero for sand and gravel (Table 2).
These costs will represent a reduction in company profitability unless they can be passed on to customers. The paper notes the industry view that costs will not be passed on where producers are operating largely in a world market. In the slate and aggregates sectors, however, there may be scope to increase product prices.
This was also the view of the European Commission, which argued that the proposed Directive on mining and quarrying waste should be regarded as building on the existing permitting and other requirements of the waste framework Directive.
However, a recent Finnish case before the European Court of Justice has thrown the matter open to question again, by raising the possibility that existing national controls in place in 1991 might provide Member States with an exemption from the framework Directive (see pp 61-62 ).
At issue is the phrase in the framework Directive excluding mineral and mining wastes from its scope where they are "already covered by other legislation".
In the light of the new judgment, the Government has now returned to its case that legislation including the Town and Country Planning Acts already applies to wastes from mining and quarrying - and therefore extricates the UK from the requirement to apply the waste framework Directive.