Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

facilities used to receive such waste. This has been established in the Directive on the
management of waste from extractive industries (Directive 2006/21/EC), or in short: the Mining
Waste Directive. The Mining Waste Directive provides, according to Articles 1 and 2, for measures,
procedures and guidance to prevent or reduce as far as possible any adverse effects on the
environment, in particular water, air, soil, fauna and flora and landscape, and any resultant risks to
human health, brought about as a result of the management of waste from the prospecting,
extraction, treatment and storage of mineral resources and the working of quarries, hereinafter
‘extractive waste’. According to Article 5, MS shall ensure that the operator draws up a waste
management plan for the minimisation, treatment, recovery and disposal of extractive waste, taking
account of the principle of sustainable development.
Pursuant to Article 7, no waste facility shall be allowed to operate without a permit granted by the
competent authority. A waste facility means any area designated for the accumulation or deposit of
extractive waste, whether in a solid or liquid state or in solution or suspension (Article 3). The
conditions which the permit shall contain are specified in paragraph 2. The permit shall also clearly
indicate the category of the waste facility in accordance with the criteria referred to in Article 9. The
competent authority shall only grant a permit, in accordance with Article 7(3), if it is satisfied that:
(a) the operator complies with the relevant requirements under this Directive; and (b) the
management of waste does not conflict directly or otherwise interfere with the implementation of
the relevant waste management plan or plans referred to in Article 7 of Directive 75/442/EEC. The
public shall be informed of such an application for a permit. Pursuant to Article 11, the competent
authority shall satisfy itself that, in constructing a new waste facility or modifying an existing waste
facility, the operator ensures that: the waste facility is suitably located; the waste facility is suitably
constructed, managed and maintained to ensure its physical stability and to prevent pollution or
contamination of soil, air, surface water or groundwater; there are suitable plans and arrangements
for regular monitoring and inspection of the waste facility by competent persons; and that there are
suitable arrangements for the rehabilitation of the land, the closure of the waste facility and for the
after-closure phase of the waste facility. Competent authorities may, pursuant to Article 9, classify
a waste facility as Category A if this waste facility meets the criteria set out in Annex III. Each
operator of a Category A waste facility must adopt and apply a major-accident prevention policy for
waste. They should adopt a safety management system and an internal emergency plan (Article
6(3)). The competent authority shall draw up an external emergency plan specifying the measures
to be taken offsite in the event of an accident. The public shall be given the opportunity at an early
stage to participate in the preparation or review of the external emergency plan.
Relevance for shale gas activities
The Mining Waste Directive could apply to shale gas activities, if these activities qualify as a 'waste
facility'. According to the Legal Assessment made in 2011 by the Commission, used fracturing fluid
should be qualified as 'extractive waste' and the area designated to accumulate or deposit this
waste should be seen as a waste facility. Therefore, the operator should submit for a permit under
this Directive, which should be based on the Best Available Techniques for which the Commission
will specially develop a reference document (BREF). 123
According to the Commission Staff Document (of January 2014) the boundaries of the qualification
of such a 'waste facility' are uncertain. The Commission states that a "number of MS have called
for clarification as to the scope of application of the MWD, especially as to whether the MWD
applies to both surface and sub-surface and whether it applies from the start or only after closure
of the well." 124
123
Legal Assessment (2012), p. 7.
124
Commission Staff Working Document Impact Assessment (2014), part 4/4, p. 32.
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