Review of the Reference document on Best Available

Edificio Expo, C/Inca Garcilaso 3, E-41092 Seville, Spain

Telephone switchboard: +34-95 44 88 318 – Internet: https://ec.europa.eu/jrc/

E-Mail: [email protected]

EUROPEAN COMMISSION DIRECTORATE-GENERAL

JOINT RESEARCH CENTRE Directorate B – Growth and Innovation

Circular Economy and Industrial Leadership

Seville, 09 02 2018

Review of the Reference document on

Best Available Techniques

for the Management of Tailings and Waste-Rock in Mining Activities

Assessment of split view rationales

DISCLAIMER This document should not be considered as representative of the Commission's official position.

Neither the European Commission nor any person acting on behalf of the Commission is

responsible for the use which might be made of the following information.

Assessment of split view rationales – MTWR BREF review

2 February 2018

Table of contents

TABLE OF CONTENTS................................................................................................ 2

1 INTRODUCTION .................................................................................................... 3

1.1 GENERAL ASPECTS ........................................................................................................ 3

1.2 OVERVIEW OF THE SPLIT VIEWS EXPRESSED AND CONFIRMED ..................................... 6

1.3 OVERVIEW OF THE TENTATIVE SPLIT VIEWS EXPRESSED BUT NOT CONFIRMED ........... 8

2 ASSESSMENT OF THE SPLIT VIEWS .............................................................. 9

2.1 SECTION 5.1 - OBJECTIVES OF THE BREF DOCUMENT .................................................. 9

2.2 SECTION 5.1 - ADDITIONAL SOURCES OF INFORMATION: REFERENCE TO IED

BREFS ......................................................................................................................... 10

2.3 RE-USE OF LIQUID EXTRACTIVE WASTES .................................................................... 12

2.4 CLOSURE OF THE ACCESS TO THE UNDERGROUND EXTRACTIVE WASTE DEPOSITION

AREA ............................................................................................................................ 14

2.5 MONITORING OF THE FRACTURE PROPAGATION AND INDUCED SEISMICITY

RESULTING FROM PRESSURE INJECTION OPERATIONS IN OIL AND GAS

EXPLORATION AND PRODUCTION ................................................................................ 16

2.6 PLACING EXTRACTIVE WASTE BACK INTO EXCAVATION VOIDS ................................. 18

2.7 EMISSIONS TO WATER: SUMMARY OF EXEMPLARY ACHIEVED AND REPORTED

PERFORMANCES USING BAT 39, BAT 40 AND BAT 41, FROM A WIDE RANGE OF

EXTRACTIVE WASTE MANAGEMENT OPERATIONS ....................................................... 21

3 ANNEXES .............................................................................................................. 26

3.1 SPLIT VIEW N°1 ........................................................................................................... 26

3.2 SPLIT VIEW N°2 ........................................................................................................... 27

3.3 SPLIT VIEW N°3 ........................................................................................................... 28

3.4 SPLIT VIEW N°4 ........................................................................................................... 29

3.5 SPLIT VIEW N°5 ........................................................................................................... 30

3.6 SPLIT VIEW N°6 ........................................................................................................... 31

3.7 SPLIT VIEW N°7 ........................................................................................................... 36


February 2018 3

1 INTRODUCTION

1.1 General aspects

At the Kick-off meeting (KoM) for the review of the Reference document on Best Available

Techniques for the Management of Tailings and Waste-Rock in Mining Activities (MTWR

BREF) held in Seville from 19 to 22 May 2014, the Technical Working Group reached the

following conclusion (page 7 of the KoM minutes):

To follow the provisions of the Guidance Document (Decision 2012/119/EU) in particular to

ensure good quality of the collection of data and information and to adapt the rules where

needed according to the specificity of the Management of Waste from Extractive Industries

(MWEI) BREF.

During the Final TWG Meeting held in Seville, a dedicated information session was held on the

split view procedure, consisting of a presentation by the JRC and followed by Questions &

Answers. It was explained how to propose tentative split views and how to confirm, join and/or

withdraw (support for) them. The slides of the presentation and a split view template were

provided on BATIS.

According to Commission Implementing Decision 2012/119/EU (Section 4.6.2.3, page 27), the

following provisions apply to split views expressed at final TWG meetings:

4.6.2.3 Final TWG meeting

4.6.2.3.1 General

The final TWG meeting aims at resolving outstanding issues with a view to conclude the

technical discussions within the TWG.

In the final TWG meeting, the objective is to reach conclusions by consensus of the TWG

members present. When there are well founded dissenting views, these will be recorded as

indicated in Section 4.6.2.3.2 below.

4.6.2.3.2 Split views

BAT as well as environmental performance levels (see Section 3.3) associated with BAT will

be drafted by the [JRC]1 on the basis of information available at the time of

distributing the draft to the TWG for its final meeting (see Section 4.6.2.3). Such information

may include any specific proposals for BAT or associated environmental performance

levels received from the TWG.

TWG members are expected to provide sound technical, cross-media and economic

arguments as relevant to their case when they do not agree with the draft BAT conclusions.

Such arguments should be submitted initially as comments to the formal draft BREF

within the consultation period set (see Section 1.2.4).

If the TWG in the end reaches no consensus on an issue, the dissenting views and their

rationale will be reported in the "Concluding remarks and recommendations for future

work" section of the BREF only if both the following conditions are fulfilled:

1 EIPPCB from original text replaced by JRC for consistency reasons


4 February 2018

1. the dissenting view is based on information already made available to the [JRC] at the

time of drafting the conclusions on BAT for the BREF or has been provided within the

commenting period corresponding to such a draft;

2. a valid rationale supporting the split view is provided by the TWG member(s)

concerned. The [JRC] will consider a rationale to be valid if it is supported by appropriate

technical, cross-media or economic data or information relevant to the definition of BAT.

The Member States, environmental NGOs or industry associations that bring or support the

split view will be explicitly named in the document (see Section 2.3.10).

This document lists the split views submitted in the context of the final TWG meeting for the

review of the MTWR BREF, and assesses for each split view whether both of the conditions 1

and 2 listed above are met. The chapter on " Concluding remarks and recommendations for

future work" of the revised MTWR BREF shall reflect the split views for which the

present assessment shows that such conditions are met.

In practice, split views have been accepted in this assessment as long as at least one or more

sound technical, cross-media or economic arguments have been provided, supported by

appropriate data and information exchanged in time for the elaboration of the Revised Draft

MWEI BREF (by the summer of 2017). This means that ineligible information (e.g. info shared

for the first time during the Final TWG Meeting) or arguments not meeting the above

requirements (e.g. claims not supported by concrete and valid data and information; legal

interpretations) did not have a negative influence on the split view assessment.

However, a positive assessment of those conditions and the reporting of a split view in the

BREF are not to be interpreted as an agreement of the JRC with the supporting arguments,

or as an indication that the related BAT conclusion as agreed at the final TWG meeting may

be subject to changes.

For the purposes of this document, the following acronyms are used.

Acronym Definition

ARD Acid Rock Drainage

AT Austria

BAT Best Available Techniques (as defined in Article 3(10) of the IED)

BAT-AEL Emission level associated with the BAT (as defined in Article 3(13) of the

IED)

BATIS BAT Information System

BREF BAT reference document (as defined in Article 3(11) of the IED)

DE Germany

EC The European Commission

EEB The European Environmental Bureau

EIPPCB The European Integrated Pollution Prevention and Control Bureau

EU The European Union

EURACOAL The European Association for Coal and Lignite

EUROMETAUX The European Association of Non-Ferrous Metals producers, transformers and

recyclers

EUROMINES The European Association of Mining Industries, Metal Ores & Industrial

Minerals


February 2018 5

EWIW Extractive Waste Influenced Water

IED Industrial Emissions Directive (2010/75/EU)

IMA-EUROPE The Industrial Minerals Association – Europe

JRC The Joint Research Centre

KoM Kick-off Meeting

MTWR Management of Tailings and Waste-Rock

MWEI Management of Waste from the Extractive Industries

NGO Non-Governmental Organisation

ORGALIME The European Engineering Industries Association

PAG Potentially Acid Generating

PL Poland

TWG Technical Working Group

UEPG The European Aggregates Association

UK The United Kingdom


6 February 2018

1.2 Overview of the split views expressed and confirmed

During the final TWG meeting for the review of the MTWR BREF held from 27 November

to 2 December 2017 in Seville, a high degree of consensus was achieved within the TWG.

Nevertheless, 7 tentative split views were recorded and subsequently confirmed by several

TWG member organisations. Split views are listed in the following table, along with the

organisations that raised them during the Final TWG meeting or supported them.

Split

view

number

Consolidated

final

meeting

conclusions'

slide

number(s)

Topic

BAT

conclusion /

Section /

Table

number

TWG

member

organisation(s)

raising the split

view(s) and

those

supporting it

Section

number in

this

document

1 328 / 430 Objectives of the

BREF document

Section 5.1

General

Considerations

EEB 2.1

2 337, 338 / 430

Additional sources of

information: reference

to IED BREFs

Section 5.1

General

Considerations

EURACOAL*,

EUROMETAUX*

EUROMINES 2.2

3 16, 17 / 430 Re-use of liquid

extractive wastes BAT 7.a EEB 2.3

4 221, 222 / 430

Closure of the access

to the underground

extractive waste

deposition area

BAT 21 EEB 2.4

5 224, 225 / 430

Monitoring of the

fracture propagation

and induced seismicity

resulting from

pressure injection

operations in oil and

gas exploration and

production

BAT 22 EEB 2.5

6 255 – 258 / 430

Placing extractive

waste back into

excavation voids

BAT 25.c

AT*, DE*,

EURACOAL,

EUROMETAUX* 2.6

7 119 – 122 / 430

Emissions to water:

summary of

exemplary achieved

and reported

performances using

BAT

39, BAT 40 and BAT

41, from a wide range

of extractive waste

management

operations

Table 5.7

AT*,

EURACOAL*,

EUROMETAUX,

EUROMINES,

IMA-EUROPE,

UEPG

2.7

* TWG member organisation(s) supporting the split view raised during the Final TWG meeting

For each of the split views, the detailed rationales provided by the TWG member(s) concerned

are summarised in the following pages together with the JRC assessment and an indication of

the possible formulation of the split view in the BREF document. In some cases, different TWG

member organisations provided slightly different input (proposals, rationales, references) for


February 2018 7

what was raised as a single split view during the meeting. In this document, such split views are

grouped together and the provided information has been merged for the sake of clarity.


8 February 2018

1.3 Overview of the tentative split views expressed but not confirmed

In addition to the previously listed split views, 3 tentative split views were recorded but not

confirmed. This implied the de facto withdrawal of (support for) these tentative split views by

the TWG member organisation concerned. The tentative split views along with the TWG

member organisations that raised the tentative split view are listed in the following table.

Tentative

split view

number

Consolidated

final

meeting

conclusions'

slide

number(s)

Topic

BAT

conclusion /

Section /

Table

number

TWG

member

organisation(s)

raising the

tentative split

view(s) and

those

supporting it

1 221, 222 / 430


to the underground

extractive waste

deposition area

BAT 21 PL

2 224, 225 / 430

Monitoring of the


and induced seismicity

resulting from

pressure injection

operations in oil and

gas exploration and

production

BAT 22 PL

3 119 – 122 / 430

Emissions to water:

summary of

exemplary achieved

and reported

performances using

BAT

39, BAT 40 and BAT

41, from a wide range

of extractive waste

management

operations

Table 5.7 ORGALIME


February 2018 9

2 ASSESSMENT OF THE SPLIT VIEWS

2.1 Section 5.1 - Objectives of the BREF document

Conclusion of the meeting

To include in Section 5.1, General Considerations, in the subsection on Best Available

Techniques, the following new paragraph:

This document does not provide legal interpretation, nor should it be used to such purpose. It

aims to provide technical information related to BAT referring to a broad range of materials and

processes. Reference to extractive waste in this document does not imply a legal interpretation

of the status of this material as either extractive waste or not extractive waste.

Split view summary

EEB suggests deleting the first and the third sentences of the new paragraph.

Rationale provided by the TWG member organisation(s)

The first and the third sentences undermine the whole BREF.

No solid decision was made the day before.

Reference(s) provided by the TWG member organisation(s)

No information provided.

JRC assessment

Assessment of the provided reference(s):

No references provided

Assessment of the arguments:

The first and the third sentences provide clarifications to the reader on the objectives of the

document and stress what the Guidance Document clearly states: that the purpose of a

BREF is not to provide legal interpretation (see Section 2.3.3, page 12, of Commission

Implementing decision 2012/119/EU)

The formulation was a result of a preliminary consensus decision reached within the TWG

the previous day (to include a statement in Section 5.1 that the BREF does not provide legal

interpretation and should not be used for that purpose) and the final consensus formulation

elaborated by the TWG.

JRC conclusion

The TWG member organisation proposing the above split view did not provide sound technical,

cross-media or economic arguments to support the split view proposal. The arguments are

merely of a legal nature and contradict the provisions of the Guidance Document, which state

that the purpose of a BREF is not to provide legal interpretation.

Taking the above assessment into account, the JRC considers that the split view representing the

opinion of the aforementioned TWG member organisations does not fulfil the conditions set out

in Section 4.6.2.3.2 of Commission Implementing decision 2012/119/EU.

This split view will therefore not be reported in the "Concluding remarks and recommendations

for future work" chapter of the BREF.


10 February 2018

2.2 Section 5.1 - Additional sources of information: reference to IED BREFs


Additional sources of information

Other BAT reference documents which may be used as an additional source of information are

the following: Reference document Subject

Economics and Cross-Media Effects (ECM)

Economics and cross-media effects of techniques

Emissions from Storage (EFS)

Storage, transfer and handling of solids and liquids

Energy Efficiency (ENE)

General aspects of energy efficiency

Iron and Steel Production (IS) Production of iron and steel in an integrated works as well

as the production of steel in electric arc furnace steelworks

Ferrous Metals Processing Industry (FMP) Activities for the processing of semi-finished products

obtained from ingot casting or continuous casting

Monitoring of emissions to air and water

from IED installations (ROM)

Monitoring of emissions to air and water

Non Ferrous Metals Industries (NFM) Production of both primary and secondary non-ferrous

metals

Production of Cement, Lime and

Magnesium Oxide (CLM)

Waste quality control and safety management for the use

of hazardous waste materials

Common Waste Water and Waste Gas

Treatment/Management Systems in the

Chemical Sector (CWW)

Waste water and waste gas treatment techniques and

treatment of water-based liquid waste

Waste Treatment (WT)

Waste treatment

Split view summary

EUROMINES, EUROMETAUX and EURACOAL suggest including the additional

references into the bibliography and deleting the table in Section 5.1.


IED BREFs are not more relevant than other references listed in the bibliography.

IED BREFs have been established under a different legal framework than Directive

2006/21/EC.

BAT-AELs derived under IED BREFs are not applicable for the extractive waste

management sector.

The list of references contains guidance that would be counterproductive to safe and stable

operation of extractive waste facilities.


Kick-off meeting minutes.

Euromines position paper for the Kick-off meeting.

Euromines position before and during the Final TWG meeting.

Euracoal position before and during the Final TWG meeting.

JRC assessment


References available in time: Kick-off meeting minutes and Euromines position paper for

the Kick-off meeting

References provided after elaboration of the Revised Draft MWEI BREF: Euromines

position before and during the Final TWG meeting, Euracoal position before and during the

Final TWG meeting


Sites where management of extractive waste takes place are in some cases also sites with

IPPC/IED installations. In this case, an integrated environmental permit may be delivered,


February 2018 11

therefore IED BREFs, which may be of relevance for such installations/sites, are listed in

the table.

In addition, the information contained in the cited BREF references may relate to the same

and similar techniques as addressed in the MWEI BREF. From that perspective, the

references will provide very useful information and have a higher relevance than other

references in the bibliographical list. However, it may be argued that the list could benefit

from an explicit technical warning about implementing guidance provided in BREF

documents that were not established for the extractive waste management sector, including

BAT-AEL values, in order to avoid that such guidance is used in a way that is

counterproductive to safe and stable operation of extractive waste facilities. This issue may

therefore be considered as a valid technical argument.

JRC conclusion

The TWG member organisations proposing and joining the above split view provided a sound

technical argument to support the split view proposal: possible safety and stability issues from

implementing guidance of BREF documents developed for other sectors than the management

of extractive waste.


opinion of the aforementioned TWG member organisations does fulfil the conditions set out in

Section 4.6.2.3.2 of Commission Implementing decision 2012/119/EU.

This split view will therefore be reported in the "Concluding remarks and recommendations for

future work" chapter of the BREF.

EUROMINES, EUROMETAUX and EURACOAL suggest including the additional references

from Section 5.1 into the bibliography and deleting the table in Section 5.1.


12 February 2018

2.3 Re-use of liquid extractive wastes


BAT 7. In order to minimise the overall generation of liquid extractive waste from oil and gas

exploration and production, BAT is to use one or a combination of techniques, appropriately

selected from the following list:

Technique Description Applicability

a Re-using liquid

extractive wastes

such as flowback

and produced

water from oil

and gas

exploration and

production

Relevant for flowback and produced water from

oil and gas exploration and production

Applicable:

where the water quality

and quantity matches the

requirements for future

use; and

as far as it is technically

and economically

feasible and

environmentally sound.

Planning and design phase

To plan to re-use partially the flowback and

produced water.

Re-use of flowback and produced water is

possible after the solid, condensate and gaseous

phases are separated from the flowback and

produced water by using a phase separator.

Flowback and produced water are appropriately

temporary stored in order to prevent or reduce

emissions to air, soil and water in temporary

tanks. They are re-used in a subsequent

hydraulic fracturing process, whenever possible.

The re-use will involve utilising a closed loop

system between hydraulic fracturing stages to

ensure that all flowback and produced water is

captured.

Operational (construction, management and

maintenance) phase

To re-use the flowback and produced water.

Split view summary

EEB suggests deleting the entire BAT 7.a.


No water treatment specified.

No water quality specified.

BAT 7.a leads to risks of groundwater contamination and induced seismicity.

No environmental performance level specified.


Section 4.1.3.3.1.1 of the Revised Draft MWEI BREF

JRC assessment


Reference available in time: Section 4.1.3.3.1.1 of the Revised Draft MWEI BREF

(reflecting the information exchanged before the summer of 2017)

It is unclear what information source(s) reference is made to in the quoted section of the

Revised Draft MWEI BREF that would support the proposed split view.


Section 4.1.3.3.1.1 of the Revised Draft MWEI BREF does not support the split view.

General aspects of water treatment and water quality have been described under headings 2

and 6 of Section 4.1.3.3.1.1 of the Revised Draft MWEI BREF. However, water treatment

and water quality requirements will vary from site to site and the purpose of the BREF is

not to reflect all possible technical elements and details of a candidate technique.

According to the Guidance Document (Commission Implementing Decision 2012/119/EU


February 2018 13

Section 2.3.7.1, page 14), BAT candidates in Chapter 4 should be described in a concise

manner ("Since BREFs are not meant to be textbooks on pollution prevention and control

techniques, the techniques in this chapter will be described in a concise manner").

During the information exchange process, no evidence was provided that the re-use of

flowback and/or produced water leads to groundwater contamination.

Among the documents and references made available by EEB, the following document:

Wastewater Generation and Disposal from Natural Gas Wells in Pennsylvania, Aurana

Lewis, May 2012, Duke University, Nicholas School of the Environment, Master's projects,

concludes the following: "Given the anticipated future growth in shale gas production in the

northeast, reuse and advanced treatment options must be promoted to protect surface water

quality." Furthermore, the reference UBA 2014, quoted in Section 4.1.3.3.1.1, does not

indicate either that the re-use of flowback and produced water leads to groundwater

contamination and/or induced seismicity. Based on the information exchange, re-use of

flowback and produced water is a recommended practice by the UK Environmental Agency

(see reference: Environmental Agency, Onshore Oil & Gas Sector Guidance, Version 1, 17

August 2016, pages 44-47).BAT 7.a refers to the general concept of preparing flowback

and/or produced water for re-use. It is why no treatment or water quality is specified.

Seismicity can be induced, inter alia, by both high volume hydraulic fracturing (which is out

of the scope of the BREF) and by injection of fluids into non-oil producing geologic

intervals in the underground. During the information exchange process, no evidence was

provided indicating that the re-use of flowback and produced water leads to increased

induced seismicity.

According to Commission Implementing Decision 2012/119/EU (Section 3.1, page 25),

the following apply for BAT conclusions: "Each individual BAT may be featured with or

without an associated environmental performance level".

JRC conclusion


cross-media or economic arguments to support the split view proposal. It does not seem that the

information from the sources listed in the provided reference could substantiate claims made on

risks of groundwater contamination and induced seismicity linked to the application of BAT 7.a.


opinion of the aforementioned TWG member organisation does not fulfil the conditions set out





14 February 2018

2.4 Closure of the access to the underground extractive waste deposition area


BAT 21. In order to help ensure the appropriate containment of extractive waste from oil and

gas exploration and production in the underground, BAT is to use the following technique:



to the underground

extractive waste

deposition area

Relevant for underground extractive waste

deposition areas accessed via a wellbore

Based on the results of a

proper Environmental Risk

and Impact Evaluation (see

BAT 4). Planning and design phase

To evaluate the containment of extractive waste

in the underground deposition areas, also taking

into consideration the information from fracture

propagation during well completion, where

relevant. To design the plugging and closure of

any wellbore used for the deposition of

extractive waste in order to ensure the

containment of extractive waste in the

underground deposition area.

Closure and after-closure phase

To close the access by applying the following

closure practices:

to design the closure of the wellbore that

connects the surface with the underground

extractive waste deposition area in order to

contain the extractive waste in the

underground and prevent any migration of

extractive waste and/or pollutants which

could have negative effects on the

environment and human health;

to cement any identified pathway to

groundwater inside or outside the casing;

to cover by cement any permeable

formations (zones) outside the surface

casing in order to isolate the producing

formation;to avoid by appropriate

cementation inside or outside the casing

any contact between different geological

structures in order to isolate the producing

formation and the aquifers in particular in

the case of freshwater aquifers;

to plug the well in order to avoid any

leaking to the surface. Plugs need to cover

the full diameter of the hole, with only

casing (no cables) within the cement in

order to achieve full lateral coverage;

to assure capping of well

casings;appropriate cover of well casing;

to clean up the site after production and to

rehabilitate it as far as possible to its

original state or agreed re-use.

Split view summary

EEB suggests deleting the entire BAT 21.


February 2018 15


High volume hydraulic fracturing and/or pumping extractive waste into the underground

leads to groundwater contamination.

Water collection and off-site treatment of liquid extractive waste is an alternative technique.

BAT 21 does not specify any specific techniques for the closure of the access to the

underground extractive waste deposition area.



Section 4.2.1.4.1 of the Revised Draft MWEI BREF

JRC assessment


Reference available in time: Section 4.2.1.4.1 of the Revised Draft MWEI BREF (reflecting

the information exchanged before the summer of 2017)

It is unclear what information source reference is made to in the quoted section of the

Revised Draft MWEI BREF that would support the proposed split view. Although several

documents related to the high volume hydraulic fracturing were available in time during the

information exchange process, no documents were provided by EEB on the closure of the

wellbore that connects the surface with the underground extractive waste deposition area;

no comments on the quoted section were provided that support the current split view.


Section 4.2.1.4.1 of the Revised Draft MWEI BREF does not support the split view.

BAT 21 refers to the closure of the access to the extractive waste deposition area and not to

pumping extractive waste into the underground deposition area.

Water collection and off-site treatment is not possible for residual fluids remaining in the

underground that will qualify as extractive waste and cannot be recovered at the surface.

BAT 21 provides specific details to ensure the confinement of extractive waste in the

underground extractive waste deposition area and avoid groundwater contamination.




JRC conclusion




groundwater contamination linked to the closure of the access to the underground extractive

waste deposition area.







16 February 2018

2.5 Monitoring of the fracture propagation and induced seismicity resulting from pressure injection operations in oil and gas exploration and production


BAT 22. BAT is to monitor the fracture propagation and induced seismicity, in the underground

extractive waste deposition area, resulting from pressure injection operations in oil and gas

exploration and production as follows:


Monitoring of the


and induced

seismicity resulting

from pressure

injection operations

in oil and gas

exploration and

production

Relevant for underground extractive waste

deposition areas

Based on the results of a



BAT 4). Planning and design phase

To develop a monitoring plan of fracture

propagation and induced seismicity resulting

from pressure injection operations of extractive

waste, purposely placed or unavoidably

remaining in the underground deposition area.


To implement and review the fracture

propagation and induced seismicity monitoring

plan, while applying management systems (see

BAT 1, BAT 9 and BAT 10).

To monitor fracture propagation and induced

seismicity in the underground extractive waste

deposition area, resulting from pressure

injection operations of extractive waste, by

means of appropriate monitoring techniques,

such ase.g. seismometers, tiltmeters and

microseismic monitoring during the

production/operational phase, in order to

facilitate the identification of the extent of any

extractive waste dispersion/migration.

Split view summary

EEB suggests deleting the entire BAT 22.


High volume hydraulic fracturing and/or pumping extractive waste into the underground

leads to groundwater contamination.

Monitoring of induced seismicity cannot prevent or control induced seismicity.



Section 4.2.1.4.2 of the Revised Draft MWEI BREF

JRC assessment


Reference available in time: Section 4.2.1.4.2 of the Revised Draft MWEI BREF (reflecting

the information exchanged before the summer of 2017)

It is unclear what information source reference is made to in the quoted section of the

Revised Draft MWEI BREF that would support the proposed split view: the present split

view proposal seems to contradict the proposal for modification made in the comments

provided by EEB on the Draft MWEI BREF: "BAT should be the monitoring of seismicity

and the use of a traffic light system on any facility that may cause induced seismicity"


February 2018 17


Section 4.2.1.4.2 of the Revised Draft MWEI BREF does not support the split view.

BAT 22 aims at monitoring fracture propagation and induced seismicity in order to 1) have

knowledge of the extension of the underground extractive waste deposition area 2) to

control the level of induced seismicity and 3) to reconsider or stop the activities if necessary

(see Environmental Agency, Onshore Oil & Gas Sector Guidance, Version 1, 17 August

2016, page 48). As such, the BAT provides a clear control function.




JRC conclusion




groundwater contamination linked to the monitoring of the fracture propagation and induced

seismicity resulting from pressure injection operations in oil and gas exploration and

production.







18 February 2018

2.6 Placing extractive waste back into excavation voids


BAT 25. In order to help ensure the physical stability of extractive waste, BAT is to use one or a

combination of techniques, appropriately selected from the following list:


c Placing

extractive waste

back into

excavation voids

Relevant for non-hazardous extractive waste Based on the results of a



BAT 4) and as far as it is

technically and economically

feasible and environmentally

sound.

Not applicable to PAG

extractive waste, unless

deposited under water cover.

Not applicable to partially

oxidised extractive waste with

residual ARD potential.

Not applicable during

operation if it inhibits the

extraction activities.

Planning and design phase

To design the placing back of extractive waste,

including stabilised extractive waste, into

excavation voids for construction and/or

rehabilitation purposes. It might be carried out

concurrently with the extraction operation.

Both surface excavation voids and underground

excavation voids from mineral resources

extraction are included.

Extractive waste can be placed back both at

closure and progressively during operation, if

possible, including at closure. In this latter case,

temporary storage may be avoided.

The following types of activities may be

considered:

placing dry extractive waste back into

excavation voids followed by compaction if

necessary for site rehabilitation purposes;

placing extractive waste back in surface

excavation voids permanently covered by

water if parts of the extractive waste (e.g.

waste-rock) have a net ARD potential;

where extractive waste has to act as a

support when placed back into excavation

voids for structural purposes (such as

preventing roof or wall rock collapse or

subsidence in the underground) and

rehabilitation purposes, it is converted into

a solidified/pastystabilised material

beforeafter being placed back into

excavation voids and after curing.

Operational (construction, management and

maintenance) phase

To carry out the placing back of extractive

waste into excavation voids, while applying

management systems (see BAT 1, BAT 9 and

BAT 10).


The same as in the operational phase.

To implement the technique described in the

operational phase, adapted to the specifics of the

closure phase.

Split view summary

EURACOAL, supported by DE, AT and EUROMETAUX, suggests deleting the entire

BAT 25.c.



February 2018 19

Placing back extractive waste into excavation voids for construction and rehabilitation

purposes is a mining technique, used primarily to make possible further mining and is not

triggered by the need for the management of extractive waste as such.

Placing back extractive waste into excavation voids is carried out for mainly for safety

reasons, but also for ecological and economic reasons.

Placing back extractive waste can be confused with "backfilling".

Placing back extractive waste into excavation voids or "backfilling" is not in the scope of

the MWEI BREF.

Voids in which extractive waste is placed back are not waste facilities according to

Directive 2006/21/EC.

Article 5 of Directive 2006/21/EC does not apply for placing back extractive waste into

excavation voids for construction and rehabilitation purposes.

According to Recital (20) of Directive 2006/21/EC, extractive waste placed back into

excavation voids is not subject to the requirements of Directive 2006/21/EC apart from

Article 10.




Austrian position before the Final TWG meeting.

Euracoal position before the Final TWG meeting.

Euracoal comments on the second working document.

JRC assessment


References available in time: Kick-off meeting minutes, Directive 2006/21/EC and Euracoal

comments on second working document

References provided after elaboration of the Revised Draft MWEI BREF: Austrian position

before the Final TWG meeting, Euracoal position before the Final TWG meeting

In the case of the Kick-off meeting minutes, Directive 2006/21/EC and the Euracoal

comments on the second working document, it is clear what the references refer to


At the Kick-off meeting (see minutes pages 9-10) the following conclusion was reached:

o To ensure that the MWEI BREF scope reflects the scope of Directive 2006/21/EC to

the greatest possible extent and to align the BREF's objectives with the general

requirements defined in Article 4 of Directive 2006/21/EC.

(…)

o To include in the scope the following facilities:

Facilities preparing extractive waste prior to placing it back into

excavation voids (when existing)

The information exchange, and in particular the extensive contributions during the Final

TWG Meeting by TWG experts from different Member States, made it clear that there are

actually two types of operations that may be covered by the common technical term

"backfilling", often encountered in the sector. These two types consist of 1) an operation

that is entirely part of the mining process in which materials never become extractive waste

and 2) an operation where materials qualify as extractive waste and where their placing

back is thus part of the extractive waste management. In order to avoid possible confusion

between the two concepts, the JRC has removed all references to "backfill(ing)" in the

document. "Extractive waste placed back into excavation voids" and "placing extractive

waste into excavation voids" has been used instead to clarify that BAT 25.c refers to a

technique relevant for the management of extractive waste, which is within the scope of the

Directive and hence within the scope of the MWEI BREF.

The rationale provided in the split view confirms that the placing back of extractive waste

into excavation voids is also carried out for environmental (ecological) reasons and not

solely for extraction (mining) purposes.


20 February 2018

The fact that synergies are created from placing back extractive waste in excavation voids

(e.g. simultaneous achievement of certain economic and/or safety objectives) is no reason to

exclude these activities from the scope of the Extractive Waste Directive or MWEI BREF.

On the contrary, these arguments provide further support to propose placing back of

extractive waste in excavation voids as a BAT.

JRC conclusion

The TWG member organisations proposing and joining the above split view did not provide

sound technical, cross-media or economic arguments to support the split view proposal. On the

contrary, some of the arguments and quoted references provide further support to proposing the

technique of placing extractive waste back into excavation voids as BAT.


opinion of the aforementioned TWG member organisations does not fulfil the conditions set out





February 2018 21

2.7 Emissions to water: summary of exemplary achieved and reported performances using BAT 39, BAT 40 and BAT 41, from a wide range of extractive waste management operations


The BAT-associated emission levels (BAT-AELs) related to BAT 39, BAT 40 and BAT 41 for

direct discharges to a receiving water body are given in Table 5.7.Performance objectives for

EWIW discharge are set considering BAT 39, BAT 40 and BAT 41, the information provided in

Table 4.x and taking into account the extractive waste characteristics, the technical

characteristics of the EWF, its geographical location and the local environmental conditions.

Table 5.7 is moved into Chapter 4 and renamed as follow:

Table 5.74.x: BAT-associated emission levels (BAT-AELs) for direct discharges to a

receiving water body:Summary of exemplary achieved and reported performances using BAT

39, BAT 40 and BAT 41, from a wide range of extractive waste management operations. Parameter BAT-AEL Concentration

ranges (except for pH)

(yearly average)*a, b

pH 6-9 (1)

Chemical oxygen demand (COD) 15–100 mg/l (2)

Total suspended solids (TSS) 5-35 mg/l (2)

Total nitrogen (TN) 5-25 mg/l (2)

Sulphates (SO42-

) 50-2 000 mg/l (2)

Metals and metalloids Arsenic (expressed as As) 10-50 µg/l (2)

Cadmium (expressed as Cd) 2-10 µg/l (2)

Chromium (expressed as Cr) 2-15 µg/l (2)

Copper (expressed as Cu) 2-100 µg/l (2)

Lead (expressed as Pb) 10-50 µg/l (2)

Mercury (expressed as Hg) 0.3-2 µg/l (2)

Nickel (expressed as Ni) 10-100 µg/l (2)

Zinc (expressed as Zn) 5-500 µg/l (2)

Total cyanides (CN) <2-100 µg/l (2)

a) BAT-AELs are environmental performance levelsConcentration ranges presented in this table are

based on the information exchange exercise

*b) The local conditions and type of operations affect the concentration and are taken into account when

setting up the site-specific performance objectives

(1) or ± 1 of the pH of the water receiving body, in cases where the latter is below 6 or above 9.

(2) The lower end of the range has been defined taking the performance of plants achieved under normal

operating conditions by the BAT obtaining the best environmental performances as provided in the

information exchange and in literature data. The upper end of the range has been derived by considering

the range of performances associated with the application of the BAT under normal operating conditions

and literature data.

Split view summary

The TWG member organisations proposing and joining the above split view made several

proposals:

Part a) of the proposals suggest to change the text in Chapter 5 referring to the table to 5.7

(now 4.x) as follows:

Concentration ranges reported from permitted operations for EWIW discharges

considering BAT 39, BAT 40 and BAT 41, taking into account the extractive waste

characteristics, the technical characteristics of the EWF, its geographical location and


22 February 2018

the local environmental conditions. (EUROMINES, EUROMETAUX, EURACOAL,

IMA-EUROPE, UEPG)

or as follows:

Concentrations for EWIW discharges considering BAT 39, BAT 40 and BAT 41, are to

be set taking into account the extractive waste characteristics, the technical

characteristics of the EWF, its geographical location and the local environmental

conditions. (AT, EURACOAL)

Part b) of the proposals suggest to change the header for the table 5.7 (now 4.x) to:

Selected examples of achieved and reported concentration ranges using BAT 39, BAT

40 and BAT 41, from a wide range of extractive waste management operations.

(EUROMINES, EUROMETAUX, EURACOAL, IMA-EUROPE, UEPG)

or to:

Summary of achieved and reported performances using BAT 39, BAT 40 and BAT 41,

from a wide range of extractive waste management operations. (AT, EURACOAL)


Site-specific performance levels of specific technologies and extractive waste management

options cannot be converted into EU-wide environmental performance objectives mainly for the

following reasons:

o No parameters selection criteria are provided to justify the limited number of

parameters reported in Table 5.7 (now 4.x).

o Various subsectors among extractive industries (such as precious metals, potash,

base metals, etc.) are not taken into consideration.

o The integration of non-EU data was not transparent to the TWG.

o The representativity and quality of the data collected is limited:

No information provided on the sampling and monitoring method.

Not clear if concentrations reported refer to Total Metals and Metalloids or

Dissolved Metals and Metalloids.

The number of operators which reported both influent and effluent quality

is not enough to conclude on the removal efficiencies.

The analysis of effluents only may result in lower average values due to

inclusion of values which were initially low and/or under permit

requirements and therefore not targeted by the treatment system.

o The true variability of influent and effluent water quality is not reflected in the

table.

o The data presented in the table does not reflect all the data provided by operators.

o For each parameter, a 95th percentile concentration should have been considered to

reflect the concentration in treated effluents at the majority of sites.

o No technical or statistical information is provided to justify the ranges provided in

Table 5.7 (now 4.x).

The formulation of setting performance objectives is beyond the technical scope of what is

possible with the data collected during the information exchange.

o Adoption of BAT-AELs or performance objectives is not explicitly planned by


o Commission's approach is legally questionable:

A mandate and a Comitology procedure are necessary for the adoption of

BAT conclusions and BAT-AELs or performance objectives.

No comitology procedure is established under Directive 2006/21/EC.

o Adoption of BAT conclusion with AELs or performance objectives is contrary to

the principle of proportionality and subsidiarity.

o Setting BAT-AELs or performance levels is contrary to the conclusions reached at

the KoM.



Euromines position paper for the Kick-off meeting.


February 2018 23

Euromines position before and during the Final TWG meeting.

Euracoal position before and during the Final TWG meeting.

Austrian position before and during the Final TWG meeting.

JRC assessment


References available in time: Kick-off meeting minutes and Euromines position paper for

the Kick-off meeting

References provided after elaboration of the Revised Draft MWEI BREF: Euromines

position before and during the Final TWG meeting, Euracoal position before and during the

Final TWG meeting, Austrian position before and during the Final TWG meeting


Chapter 3 of the Revised Draft MWEI BREF now provides a detailed visual assessment of,

inter alia, the parameter data, reported measurement methods, information about the sectors

and the techniques used. This approach was initially presented and extensively discussed

during the dedicated webinar organised for the TWG in early 2017.

Under "Key observations", Chapter 3 in the revised Draft MWEI BREF provides an

explanation of the parameter values retained for presentation in Table 5.7 (now 4.x). It

should be noted that no reasonable alternative selection of parameters for inclusion has been

proposed to the TWG. It was merely suggested by some TWG members to provide full

(100-percentile) data coverage, even for sites not using techniques to address certain

parameters, which obviously would go against the definition of "best" in the BAT acronym.

All subsectors were taken into consideration for the data and information collection exercise

and all TWG members were engaged in the questionnaire exercise (see also third task listed

in Commission Implementing Decision 2012/119/EU, Section 4.4.2, page 23 on Tasks of

TWG Members). This wide scope is also reflected in the new header proposed for Table 5.7

(now 4.x): "summary of exemplary achieved and reported performances using BAT 39, BAT

40 and BAT 41, from a wide range of extractive waste management operations". In

addition, the introductory text of the questionnaire for the operators clearly stated: "By

providing data and details on techniques, emissions and consumptions realised at their

sites, operators can provide suggestions for necessary modifications to techniques used

elsewhere in the world or to information found in the literature. In this way, they can help

ensure that proposed BAT and emission and consumption levels are in line with what is

technically and economically achievable in the EU". With the aim of collecting

representative data and information of the whole sector, the TWG experts selected a number

of sites for that purpose and cross-checked the quality of the provided data before uploading

it on BATIS. In addition, TWG members were explicitly requested to comment on the

questionnaires uploaded by their colleagues to check for errors or inconsistencies. All this

input was used to derive the levels proposed for inclusion in Table 5.7 (now 4.x). During

the information exchange process, no concrete elements have been presented to the TWG

that, despite an appropriate selection of BAT, it would be unfeasible to achieve the

proposed levels under technically and economically viable conditions in certain

(sub)sectors.

Literature data (including non-EU sites) was only used to validate the data and information

collected through the questionnaire and never used solely to suggest values for inclusion in

Table 5.7 (now 4.x). According to Section 2.3.8 (page 17) of Commission Implementing

Decision 2012/119/EU, in cases where the information on the technique comes from only

one installation and/or only from installations located in third regions, a thorough

assessment of the applicability within the sector will be carried out by the TWG.

Operators were requested to provide data on the sampling and monitoring via the

questionnaire

The ambiguity related to Total Metals and Metalloids or Dissolved Metals and Metalloids

concentration was not raised during the questionnaire design or the data collection exercise,

which left open the possibility to operators to provide Total Metal(loid)s or Dissolved

Metal(loid)s concentrations. Applying the general precautionary principle, the operators


24 February 2018

should have reported Total concentrations, but it can be argued that the questionnaire could

have been even more explicit on this. This issue may therefore be considered as a valid

technical argument.

All participating operators were requested to provide both influent and effluent quality

information and TWG members were tasked with checking the quality of the data and

information before uploading the questionnaires on BATIS (see also fourth task listed in

Commission Implementing Decision 2012/119/EU, Section 4.4.2, page 23 on Tasks of

TWG Members). The proposals were derived from these collected data and information and

validated by independent literature information.

The values in Table 5.7 (now 4.x) are represented as ranges, to reflect the different

background conditions under which the operators work.

Table 5.7 (now 4.x) clearly indicates that the ranges represent yearly averages. See also

comment above of lack of reasonable alternative proposals by TWG.

Full (100-percentile) data coverage, even for sites not using techniques to address certain

parameters, goes against the definition of "best" in the BAT acronym. Under "Key

observations", Chapter 3 in the revised Draft MWEI BREF provides an explanation of the

parameter values retained for presentation in Table 5.7 (now 4.x).

The rules applied to draw BAT candidates (Chapter 4) and BAT conclusions (Chapter 5) are

detailed in Commission Implementing decision 2012/119/EU. The assessment of exemplary

achieved and reported performances is not a statistical exercise (95- or 100-percentile (all)

of the reported values). According to Section 2.3.8 (page 17) of Commission Implementing

decision 2012/119/EU:

It should be noted that evidence (i.e. solid technical and economic information) to support a

technique as being BAT can come from one or more installations applying the technique

somewhere in the world.

The choice of the technical term "performance objective" by the TWG does not conflict

with any existing definitions from the Extractive Waste Directive (2006/21/EC), the

Industrial Emissions Directive (2010/75/EU) or the Guidance Document (Commission

Implementing decision 2012/119/EU) and hence any legal arguments to oppose this

technical term are irrelevant. It is also recalled that the conclusion reached at the Final TWG

meeting was to not introduce BAT-AELs in Chapter 5.

JRC conclusion

The TWG member organisations proposing and joining the above split view provided a sound

technical argument to support the split view proposal: there could be a possible issue with

regard to reported metal and metalloid concentrations (dissolved versus total content), despite

explicit requests in the questionnaire to provide information on sampling and measurement

methods.

Taking this into account, the JRC considers that the split view representing the opinion of the

aforementioned TWG member organisations does in principle fulfil the conditions set out in

Section 4.6.2.3.2 of Commission Implementing decision 2012/119/EU.

When evaluating the four – two variations on two different points – proposals made by the

various TWG member organisations, the following observations can be made:

1. New text in Chapter 5

Proposal a-1: "Concentration ranges reported from permitted operations for EWIW discharges


characteristics, the technical characteristics of the EWF, its geographical location and the local

environmental conditions."

The lack of any link to Table 4.x (now moved to Chapter 4) in the proposal and the

lack of any verb, make the proposed stand-alone sentence meaningless. Hence this

proposal cannot be retained.


February 2018 25

Proposal a-2: "Concentrations for EWIW discharges considering BAT 39, BAT 40 and BAT

41, are to be set taking into account the extractive waste characteristics, the technical

characteristics of the EWF, its geographical location and the local environmental conditions."

The sentence contains language that indicates an obligation or a prescription ("are to

be set"); however BAT conclusions are by definition neither prescriptive nor

exhaustive. Hence this proposal cannot be retained.

2. New header for Table 5.7 (now 4.x)

Proposal b-1: "Selected examples of achieved and reported concentration ranges using BAT 39,

BAT 40 and BAT 41, from a wide range of extractive waste management operations."

The sentence may be regarded as a factually correct alternative formulation for the values

represented in the table. Hence this proposal can be retained.

Proposal b-2: "Summary of achieved and reported performances using BAT 39, BAT 40 and

BAT 41, from a wide range of extractive waste management operations."

The sentence does not represent a factually correct alternative formulation for the

values listed in the table, as the latter values only constitute a selection from the entire

pool of reported values. Hence this proposal cannot be retained.

In conclusion, the following split view proposal will be reported in the "Concluding remarks

and recommendations for future work" chapter of the MWEI BREF.:

EUROMINES, EUROMETAUX, EURACOAL, IMA-EUROPE, UEPG and Austria disagree

with the TWG proposal for the introductory text to Table 5.7 (now 4.x), without providing a

sound alternative, and suggest an alternative header for Table 5.7 (now 4.x): "Selected examples

of achieved and reported concentration ranges using BAT 39, BAT 40 and BAT 41, from a wide

range of extractive waste management operations."


26 February 2018

3 ANNEXES

3.1 Split view n°1

BAT conclusion/BAT-AEL to which the split view refers to: Section 5.1

Split view submitted by: European Environmental Bureau (Oliver Kalusch/Richard Harkinson)

Proposal: This split view proposes to delete the first and the third sentence of the new included paragraph

(striked-through):

“This document does not provide legal interpretation, nor should it be used to such purpose. It

aims to provide technical information related to BAT referring to a broad range of materials

and processes. Reference to extractive waste in this document does not imply a legal

interpretation of the status of this material as either extractive waste or not extractive waste.”

Rationale:

This split view is supported by the following rationale:

The first and the third sentence of the included paragraph undermine the whole document (BREF).

The usage of the BREF would be arbitrarily.

No solid decision had been made the day before on that sentence.


February 2018 27

3.2 Split view n°2

BAT conclusion to which the split view refers to: Section 5.1. Additional sources of information.

Split view submitted by: Euromines aisbl

Eurometaux

Proposal:

This split view proposes to change the position of the references in the document and include them in

the general bibliography.

Rationale:


Argument:

IED BREFs are not more relevant than other references listed in the general bibliography. By

giving them a prominent position here these sources of information are inappropriately

highlighted.

IED BREFs have been established under a different legal framework, they have not been

established under the Mine Waste Directive and have not been established with experts from the

extractive industry. Their relevance for extractive operations is therefore speculative at best. Since

these BREFs include BAT-AELs for sectors covered by the IED, their validity for extractive

operations would have to be assessed by the TWG before being given this prominent position in

the MWEI BAT document.

The emphasis of the MWEI BAT from the outset is first and foremost the safety of installations

and whilst information from other related downstream industrial sectors may be considered to be

of relevance for background understanding of the sector, the full list of references in Section 5.1

likely contains guidance that would be counterproductive to safe and stable operation of extractive

waste facilities and is in any case less directly relevant than other references listed in the general

bibliography.

Conclusion:

We recommend including these references into the general bibliography.

References:

This split view is based on the following information already made available to the JRC at the time of

drafting the conclusions on BAT for the MWEI BREF or has been provided within the commenting

period corresponding to such a draft:

Reference A: Minutes of the Kick-off meeting

Reference B: Euromines position to the Kick-off meeting as uploaded on Batis

Reference C: Euromines position before and during to the Final meeting as uploaded on Batis


28 February 2018

BAT conclusion to which the split view refers to: Section 5.1. Additional sources of

information.

Split view submitted by: Euracoal, Ivonne Damaschke, Joachim Schabronath

Euracoal joins the split view of Euromines.

Proposal:

This split view proposes to change the position of the references in the document and include

them in the general bibliography.

Rationale:


The reference documents have all been developed under the scope of the Industrial

Emission Directive (IED). The MWEI Document is developed on the basis of the Mining

Waste Directive and cannot therefore rely to IED-reference documents.

Such additional sources of information in the introduction of chapter 5 should be listed in

the general bibliography, because they are not proven for extractive operations.

Finally, Euracoal agrees with the arguments of Euromines’ split view.

References

This split view is based on the following information already made available to the JRC at the

time of drafting the conclusions on BAT for the MWEI BREF or has been provided within the

commenting period corresponding to such a draft:


Reference B: Euromines position on the Kick-off meeting as uploaded an Batis

Reference C: Euromines before and during the Final meeting as uploaded on Batis

Reference D: Euracoal before the Final meeting as uploaded on Batis

3.3 Split view n°3

BAT conclusion/BAT-AEL to which the split view refers to: BAT 7.a

Split view submitted by: European Environmental Bureau (Oliver Kalusch)

Proposal:

This split view proposes to delete BAT 7.a

Rationale:


No water treatment is specified

The quality of the water and the qualitative and quantitative composition of the liquid is not

defined

The use of flowback and produced water leads to environmental risk because of

groundwater contamination and induced seismicity, especially in the case of Hydraulic

Fracturing

The BREF doesn’t contain any information about the environmental performance. This isn’t

the base for a proper BAT determination.

References

This split view is based on the following information already made available to the EIPPCB at

the time of drafting the conclusions on BAT for the BREF or has been provided within the


Chapter 4.1.3.3.1.1 of the Best Available Techniques Reference Document for the

Management of Waste from the Extractive Industries


February 2018 29

3.4 Split view n°4

BAT conclusion/BAT-AEL to which the split view refers to: BAT 21

Split view submitted by: European Environmental Bureau (Oliver Kalusch)\

Proposal:

This split view proposes to delete BAT 21

Rationale:

This split view is supported by the following rationale

Pumping extractive waste into the underground isn’t a responsible technique. It leads to

groundwater contamination, which cannot be prevented or controlled. BAT 21 has a

condition that this technique can be used, but because of the risk to human health and the

environment it has to be prevented.

This technique is counter to the objective of the non-deterioration principle on groundwater

protection, it cannot be considered as BAT. Other options exist to deal with extractive

wastes which do not pose a risk to groundwater contamination (containment and offsite

treatment).

Specific Techniques for the closure of the access to the underground extractive waste

deposition area are not specified.



References




Chapter 4.2.1.4.1 of the Best Available Techniques Reference Document for the



30 February 2018

3.5 Split view n°5

BAT conclusion/BAT-AEL to which the split view refers to: BAT 22

Split view submitted by: European Environmental Bureau (Oliver Kalusch)

Proposal:

This split view proposes to delete BAT 22

Rationale:

This split view is supported by the following rationale

Pressure injection operations are not a responsible technique. It leads to groundwater

contamination and earthquakes (induced seismicity), which cannot be prevented or

controlled. BAT 22 has the condition that this technique can be used, but because of the risk

to human health and the environment, this practice has to be prevented. Therefore it is not

sufficient to monitor induced seismicity after the earthquake occurred.



References




Chapter 4.2.1.4.2 of the Best Available Techniques Reference Document for the



February 2018 31

3.6 Split view n°6

BAT conclusion to which the split view refers to: BAT 25c

Split view submitted by: Euracoal, Ivonne Damaschke, Joachim Schabronath

Eurometaux, Daniel Glowacki, Helmuth Landsmann

Eurometaux joins the split view of Euracoal.

Proposal:

This split view proposes to delete BAT 25c.

Rationale:


Placing extractive waste back into excavation voids is a mining technique to enable further

mining which can be used under certain circumstances. In these cases it is an integral part of

the mining process and not triggered by the waste management. Therefore it was already

agreed at the Kick-off meeting that this kind of technique which describes classical

“backfilling” is out of the scope of the MWEI BREF.

After the Kick-off meeting the term “backfilling” was replaced at the same positions by the

term “Placing extractive waste back into excavation voids” in the further draft documents.

Obviously, the typical extractive mining technique “backfilling” was transcribed. Placing

extractive waste back into excavation voids describes, in the current draft MWEI BREF,

also “backfilling” which cannot be classified as a technique of extractive waste

management, but as a mining technique.

In the context of mining methods, in the cases it is used, placing extractive waste back into

excavation voids can be essential e.g. to stabilize mine structures for the safety of

underground workers, to ensure the reuse of the surface, to prevent damage to the

subsurface or surface, and above all to avoid mining damage. Moreover extractive waste

can be used in excavation voids for several other construction purposes related to the

mineral extraction process like building and maintenance within voids as a means of access

for machinery, haulage ramps, bulkheads, safety barricades or berms and mine ventilation

constructions. Therefore excavation voids into which waste is replaced, after extraction of

the mineral, for rehabilitation and construction purposes represents not a waste facility,

according to Article 3 § 15 Mining Waste Directive 2006/21/EC. Waste placed back into the

excavation voids for their rehabilitation or for construction purposes related to the mineral

extraction process should not be subject to the requirements of the Mining Waste Directive

2006/21/EC which relates exclusively to waste facilities, according to recital (20) Mining

Waste Directive 2006/21/EC. Therefore Article 10 (1) of Mining Waste Directive

2006/21/EC refers only to certain aspects of the same directive in order to ensure stability,

prevent soil pollution and regulate the monitoring of excavated cavities.

Placing extractive waste back into excavation voids for e.g. construction or site

rehabilitation purposes is not primarily initiated for reasons of waste management. Using

this kind of technology has safety, ecological and economic reasons.

Aspects of safety are the crucial part of the mining technique and they have the highest

priority. Therefore, reducing the danger of rock falls, stabilizing the mine workings,

avoiding and controlling underground mine water streams, are typical safety goals which

can be reached by the technique of placing extractive waste back into excavation voids. The

reduction of the height of the roof for the construction of working platforms for the future

extraction can also be achieved by placing extractive waste back into excavation voids.

Moreover, securing the surface by placing extractive waste back into excavation voids can

also be an important safety measure.


32 February 2018

There can also be ecological reasons to use the technique of placing extractive waste back

into excavation voids as a typical mining instrument. With this kind of technique, it can

prevent and reduce mine sinking and can protect the surface and finally preserves the

landscape.

Additionally, placing extractive waste back into excavation voids for rehabilitation and

construction purposes could be a cost effective method within the mineral extraction

process (e.g. recultivation, construction works, such as access roads in the mine, haulage

ramps, bulkheads, safety barricades or berms and mine ventilation constructions).

Finally, if safety, ecological, or economic goals are pursued, Art. 5 of Mining Waste

Directive 2006/21/EC will not apply.

Conclusion:

Placing extractive waste back into excavation voids, in the cases it is used, for rehabilitation and

construction purposes is an immanent part of the extraction method to ensure a safe, technically

appropriate mining process. This demonstrates that the technique is not a waste management

technique, but a mining technique. As a consequence, placing extractive waste back into

excavation voids is not part of the MWEI BREF.

References





Reference B: Euracoal position to the Kick-off meeting as uploaded on Batis

Reference C: Euracoal position before the Final meeting as uploaded on Batis


February 2018 33

BAT conclusion to which the split view refers to: BAT 25c

Split view submitted by: Austrian delegate, Robert Holnsteiner

Proposal:

This split view proposes to delete BAT 25c.

Rationale:


The term “backfilling” was obviously replaced at the same positions by the term “Placing

extractive waste back into excavation voids” in the further draft documents. Obviously, the

technique “backfilling” was transcribed. Placing extractive waste back into excavation voids

describes in the current draft MWEI BREF also “backfilling” which cannot be classified as a

technique of extractive waste management but a mining technique.

Placing extractive waste back into excavation voids for e. g. construction or site rehabilitation

purposes is not primarily initiated by the waste management. Using this kind of technology has

safety, ecological and economic reasons.

Placing extractive waste back into excavation voids is a mining technique to enable further

mining which can be used under certain circumstances. In these cases it is an integral part of the

mining process and not triggered by the waste management. Therefore it was already agreed at

the Kick-off meeting that this kind of technique which describes classical “backfilling” is out of

the scope of the MWEI BREF.

In the context of mining methods, in the cases it is used, placing extractive waste back into

excavation voids can be essential e. g. as part of the extraction method like cut-and-fill-stope,

for geotechnical purposes in order to stabilize underground workings, to ensure the reuse of the

surface and to prevent damage to the subsurface or surface, and above all to avoid mining

damage. Extractive waste is used in excavation voids for several other construction purposes

related to the mineral extraction process like construction of maintenance transport

infrastructure, bulkheads, safety barriers or berms and mine ventilation constructions. Therefore

excavation voids into which waste is replaced, after extraction of the mineral, for rehabilitation

and construction purposes represents not a waste facility, according to Article 3 § 15 Mining

Waste Directive 2006/21/EC. Waste placed back into the excavation voids for their

rehabilitation or for construction purposes related to the mineral extraction process should not

be subject to the requirements of the Mining Waste Directive 2006/21/EC which relates

exclusively to waste facilities, according to recital (20) Mining Waste Directive 2006/21/EC.

Therefore Article 10 (1) of Mining Waste Directive 2006/21/EC refers only to certain aspects of

the same directive in order to ensure stability, prevent soil pollution and regulate the monitoring

of excavated cavities.

Aspects of safety are the crucial part of the mining technique and they have the highest priority.

Therefore reducing the danger of rock fall and stabilizing the mine workings are typical safety

goals which can be reached by the technique of placing extractive waste back into excavation

voids wherever it might be necessary due to geotechnical reasons. With cut-and-fill-stope

technique the height of the roof is reduced by construction of working platforms made of

extractive waste to enable further extraction at the roof side. Moreover, securing the integrity of

the surface by placing extractive waste back into excavation voids is an important safety and

ecological measure preserving the landscape and enabling future use of the surface above mined

underground.

Placing extractive waste back into excavation voids for rehabilitation and constructions

purposes could be a cost effective method within the mineral extraction process (e. g.


34 February 2018

recultivation, construction works, such as access roads in the mine, haulage ramps, bulkheads,

safety barricades or berms and mine ventilation constructions).

Finally, if safety, ecological, or economic goals are pursued, Art. 5 of Mining Waste Directive

2006/21/EC will not apply.

Conclusion:

Placing extractive waste back into excavation voids, in the cases it is used, for rehabilitation and

construction purposes is an immanent part of the extraction method to ensure a safe, technically

appropriate mining process. This demonstrates that the technique is not a waste management

technique but a mining technique. As a consequence placing extractive waste back into

excavation voids is not part of the BREF MWEI.

References:

Minutes of the Kick-off meeting

Austrian delegate position before the Final meeting as uploaded on Batis

Euracoal position before the Final meeting as uploaded on Batis


February 2018 35

BAT conclusion to which the split view refers to:

BAT 25.c

Split view submitted by: Mr. Bartke, Sikorski, Thiem, Stübig - German Delegates, Member

State

Proposal:

This split view proposes deletion of BAT 25.c

Rationale:


BAT 25.c does not provide sufficient clarification that the term “placing extractive waste back

into excavation voids” has to be considered in this respective BAT with a very narrow and

precise scope.

The term “placing extractive waste back into excavation voids” meant as waste management

technique could be mixed with backfilling as a mining technique in general.

This leads to major practical problems, due to the very high risk of misinterpretation that BAT

25.c has to be connected with the use of backfilling in general.

Backfilling is a mining technique with a broad range of applications in the mining sector.

BAT 25.c would be only applicable, if the respective measure is applied to material that fulfils

the definition of extractive waste.

The risk of using this BAT in a wrong area of application is very high.

To avoid that, deletion of BAT 25.c is recommended.

References




The topic “backfilling” and the respective problems found in the minutes of the Kick-off

meeting

Recital 20 of Directive 2006/21/EC.


36 February 2018

3.7 Split view n°7

BAT conclusion to which the split view refers to: BAT 41 Table 5.7 (4.x)

Split view submitted by:

Euromines aisbl

Eurometaux

Euracoal

IMA-Europe

UEPG

Proposal:

a) This split view proposes to change the introductory text to the table to 5.7 (now 4.x)

Concentration ranges reported from permitted operations for EWIW discharges


characteristics, the technical characteristics of the EWF, its geographical location and the

local environmental conditions.

b) This split view proposes to change the header for the table 5.7 (now 4.x) to:

Selected examples of achieved and reported concentration ranges using BAT 39, BAT 40

and BAT 41, from a wide range of extractive waste management operations.

Rationale:


Argument A: The formulation of setting the BAT- AELS or alternatively proposed

performance objectives is beyond the technical scope of what is possible with the data

collected and provided throughout the exercise. It is also based on data provided in a

different legal context then the one provided by DG Environment at the final meeting.

Technical and statistical considerations with regard to the table 5.7 (now possibly 4.x)

The table 5.7 (now 4.x) previously entitled “BAT-associated emission levels (BAT-AELs) for

direct discharges to a receiving water body” does not cover all targeted parameters in BAT 39,

40 and 41, but only information related to pH, COD, TN, SO4, As, Cd, Cr, Cu, Pb, Hg, Ni, Zn,

Total CN.

1. The technical assessment criteria behind the selection of parameters selected for this

table is not provided. It doesn’t provide reference values for the whole range of targeted

parameters in BAT 39, 40 and 41. It is clear that this table is based on reported EWIW

discharge quality values in MWEI BREF Chapter 3 from questionnaires and data

collected from literature mainly from MEND 2014 and INAP, but the European

Commission’s criteria for inclusion or exclusion of data in the table is not clear. For this

reason, this table should be in Chapter 3 as a selection of reported discharge EWIW

quality.

2. The EWIW discharge quality ranges provided in Table 5.7 do not take into account the

various subsectors in the EU mining industry. Given the data presented in Chapter 3, it

can be seen that Precious Metals, Potash, Base Metals, Industrial Construction

Materials, Iron, Alumina, Other Metals sectors have reported EWIW discharge qualities

in questionnaires. Ultimately, BAT technique for treatment of pollutants in EWIW for

any given mining operation is site-specific. In general, it is expected that the quality of

EWIW generated by any mining operation will be variable based on site-specific

factors, including, but not limited to, the mining method, whether processing and waste

management facilities are present on site, the local climate, the quality of appropriate

process water sources and the mineralogy of the ore and extractive waste. The related

permit conditions established by Member States also influence the extent of treatment

and the technologies employed in many of the operations.


February 2018 37

3. The integration of data from the MEND study (2014) for the Canadian mining industry

was not transparent to the TWG and was questioned at the Final Meeting. In the MEND

2014 study, EWIW related information was submitted by the TWG for each subsector

(base metal, precious metal, iron ore uranium, coal and diamond). For each subsector,

typical targeted pollutants were identified and factors influencing EWIW influent and

effluent quality were clearly provided. The data were further organized according to the

type of treatment system and the targeted parameter within each subsector. Euromines

understands this exercise aimed to distinguish more representative sets of concentration

data that could be reasonably associated with similar treatment systems. Indeed, such an

approach could reasonably be expected to help identify EWIW treatment techniques

that could be considered as BAT for each of the associated subsectors individually. In

contradiction with such an approach, the table in question presents an unidentified

subset of the reported EWIW discharge quality ranges which is neither representative of

the data submitted by the TWG, nor representative of the full range of extractive

industries covered by Chapter 5 of the MWEI BAT. In this respect, the table cannot be

considered a summary or representing a conclusion.

4. There are limitations to the quality and representativity of the data collected by the

European Commission:

The information collected through the questionnaires in Chapter 3 is not

qualified by information on which sampling and monitoring methods were used.

The main limitation concerning the use of reported levels in MWEI BREF

Chapter 3 as BAT associated emission levels in Table 5.7 (now 4.x) is that for

most of the metals/metalloids it is not clear if reported levels are Total or

Dissolved Metal concentrations. In the original questionnaires, Total

concentrations were asked only for S, N, P, As, Cr, Fe and CN parameters. It is

not clear if all participating operators have given metal concentrations data as

Total Metals or Dissolved Metals. No information is provided in either Chapter 3

or the Table in question to clarify this issue. With this level of information

provided in the MWEI BAT, the reported levels cannot be considered

sufficiently meaningful to recommend achievable performance levels across all

extractive industries. In contrast, the MEND study (2014) referred to during the

meeting clearly states that “Throughout the report, unless otherwise specified,

metals refer to total metals”.

Other limitations concerning the use of reported discharge qualities in MWEI

BREF Chapter 3 as BAT associated emission levels are that

o only a few questionnaire respondents provided both influent and

effluent EWIW quality, which does not allow to conclude on removal

efficiencies in all extractive industries,

o the analysis of only EWIW discharge water quality, may result in

average values which are skewed low due to inclusion of concentrations

from treatment systems that do not target or remove the listed

parameters in the table in question (i.e., where the concentration of a

given parameter in the influent EWIW is already compliant with the

discharge permit requirements before treatment). Thus, these values

may not be representative of the concentration achieved by treatment

systems in BATs 39, 40 and 41.

o Even storage options of EWIW before treatment may affect influent

water quality, i.e. in case of ponds dilution by precipitation, solids

settling, natural degradation, which may influence treated effluent

concentrations and removal efficiency.

In the questionnaires, minimum, maximum and average/median values for the

reference year were requested from operators. The true variability of influent

and discharge EWIW concentration values are not represented in the table in

question.


38 February 2018

The range of data presented is not complete. It is not acceptable to drop data

points without justification since there is no indication that these are statistical

outliers.

95th percentile of reported EWIW discharge parameters should have been

considered as a means to reflect the concentration in treated effluent at the

majority of sites.

No such technical or statistical discussion is provided in the BAT document,

neither Chapter 3 nor the table in question.

As a conclusion, the European Commission’s analysis of the proposed

AELs/”performance levels” is not reliable or meaningful at the moment, so cannot be

considered as representative of water treatment techniques provided in BATs 39, 40

and 41. Therefore the data quality is not sufficiently robust to draw any further BAT

conclusions than to provide some orientation.

Argument B: The formulation of setting the BAT- AELS or alternatively proposed

performance objectives is beyond the legal scope and mandate of this group

In response to the European Commission’s first original intention to adopt Best Available

Techniques ("BAT") and Associated Emission Limit Values ("AELVs") under Directive

2006/21 on the management of waste from extractive industries (hereinafter "the Directive")2

we would like to clarify:

1. Background

In 2000, the Commission published a Communication on the ‘Safe Operation of Mining

Activities3 which proposed an action plan, including the elaboration of a BAT Reference

Document based on an exchange of information between the European Union’s Member States

and the extractive industry.

The original reference document on BAT on the management of tailings and waste-rock in

mining activities was mainly drafted between 2001 and 2004, followed by the formal adoption

in January 2009 of a "Reference Document on Best Available Techniques for Management of

Tailings and Waste-Rock in Mining Activities" (MTWR BREF). The original MTWR BREF

was therefore drafted before the adoption of the Directive.

Since 2009, the Commission reviewed the original MTWR BREF and presented in July 2016

the draft "Best Available Techniques Reference Document for the Management of Waste from

Extractive Industries, in accordance with Directive 2006/21/EC" (draft MWEI BREF). The draft

MWEI BREF proposed to support the implementation of the Directive by the adoption of BAT

Conclusions and AELVs under the Directive.

Whereas the adoption of AELs and BAT may be envisaged under Directive 2010/75/EU on

industrial emissions (hereinafter the "Industrial Emission Directive" or "IED")4, the same is not

explicitly foreseen under the Directive.

Within this context, we will first review the relevant legal framework (2.), compare and contrast

the two legal regimes (i.e. IED and the Mine Directive) (3.) and identify the grounds on which

we believe that the European Commission's approach is legally questionable (4.).

Indeed, the Directive and the IED should be distinguished with regard to the mechanisms they

set out and their respective scope. In particular, the Directive inter alia differs from the IED for

the following reasons:

• The so-called "Article 75 committee" is not foreseen under the Directive;

• The IED and the related BAT mechanisms do not apply to mining activities.

More generally, the adoption by the Commission of AELS and BAT under the Directive would

be contrary to the principles of proportionality and subsidiarity (5.).

2 Directive 2006/21/EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from

extractive industries and amending Directive 2004/35/EC

3 COM(2000) 664

4 Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on industrial emissions (integrated

pollution prevention and control).


February 2018 39

2. Mine Waste Directive and IED

Goal of the Mine Waste Directive

The Directive was adopted in order to lay down minimum requirements so as to prevent or

reduce as far as possible any adverse effects on the environment or on human health, including

physical stability of the deposits which are brought about as a result of the management of

waste from the extractive industries.

Further, because of the special nature of the management of extractive waste, Article 7 of the

Directive introduced specific procedures and national permits. In that respect, it is for Member

States to determine how the technical characteristics of the waste facility, its geographical

conditions and local environmental conditions should be taken into consideration.

Aim of the IED

The IED was adopted in order to recast and update seven existing pieces of legislation,

including Directive 2008/1/EC concerning integrated pollution prevention and control (the IPPC

Directive). The IED aims to achieve a high level of protection of human health and the

environment taken as a whole by reducing harmful industrial emissions across the European

Union, in particular through better application of BAT and AELVs. In that respect, the IED

establishes a general framework at European Union level for the control of the main industrial

activities.

2.1. Comparison between the two legal regimes

Difference in terms of scope

The IED covers a large variety of industrial activities. More precisely, the IED applies to:

• activities covered by the IPPC Directive and other activities which are included

in the IPPC code. These are listed in Annex I to the IED;

• dry-cleaning and other activities covered by the VOC Solvents Directive;

these activities are those listed in Part I of Annex VII to the IED which

reach the consumption thresholds set out in Part 2 of that Annex

(Article 56) with a solvent consumption of less than 10 tonnes per

year;

• combustion plants designed for production of energy, the rated thermal input

of which is equal to or greater than 50 MW irrespective of the type of

fuel used (Article 28);

• waste incineration plants and waste co-incineration plants which incinerate or

co-incinerate solid or liquid waste (Article 42); and

• installations producing titanium dioxide (Article 66).

The IED does not apply to extractive industry activities.

By contrast, pursuant to Article 2(1) of the Mine Waste Directive, the latter covers the

management of waste from land-based extractive industries, i.e., waste arising from the

prospecting, extraction (including the preproduction development stage), treatment and storage

of mineral resources and from the working of quarries. The Directive makes it clear that it only

applies to wastes which are directly linked to the extraction or treatment process.

As such the Directive does not apply to food waste, waste oil, end-of-life vehicles, spent

batteries and accumulators5. Nor does the Directive apply to waste resulting from the offshore

prospecting, extraction and treatment of mineral resources or to the injection of water and re-

injection of pumped groundwater.6

It follows from the foregoing that the management of waste from extractive industries only falls

within the competence of the Directive and not of the IED.

Difference in terms of relevant mechanisms

The IED is based on several principles and mechanisms, including inter alia the BAT.

5 Preamble, paragraph 7

6 Preamble, paragraph 8


40 February 2018

According to Articles 14.1 and 14.3 of the IED the permit must include ELVs and must

be based on the BAT conclusions. In order to determine the BAT, the Commission must

adopt a BREF, through an exchange of information with stakeholders (i.e. after

consultation of the Member States, the industry and the NGOs). The key elements of the

BREF (the BAT conclusions) are adopted by the Commission on the basis of Article

13.5, through the 'comitology' procedure (i.e. by submitting the proposal to the opinion

of a committee composed of representatives of the Member States), on the basis of the

relevant BREF (Articles 13.3 to 13.5).

The BAT conclusions constitute the reference for national authorities for setting the

permit conditions and are notably associated with Emission Limit Values ("ELVs"). In

particular, according to Articles 14.1 and 14.3 of the IED, the permit must include

ELVs and must be based on the BAT conclusions.

Furthermore, ELVs must be set at a level that ensures pollutant emissions do not exceed

the levels associated with the use of BATs.

In that respect, the BAT conclusions contain information on BAT-AELs. In principle,

according to Article 15.3 IED, ELVs should not exceed the BAT-AELs laid down in the

BAT conclusions.

Unlike the IED, the mechanisms of the BAT Conclusions and AELVs are not foreseen in the

Mine Waste Directive.

The latter refers instead to environmental permits for mining waste operations that

national authorities must deliver7.

All mining waste operations require an environmental permit. It should be noted that the

requirement for a permit under Article 7 of the Directive only applies to mining waste

facilities and not to activities covered by other legislation.

According to the Mine Waste Directive, Member States should ensure that operators in

the extractive industry draw up appropriate waste management plans for the prevention

or minimisation, treatment, recovery and disposal of extractive waste8.

In that regard, Article 7(4) of the Directive specifies that Member States shall take the

necessary measures to ensure that competent authorities periodically reconsider and,

where necessary, update permit conditions.

Thus, contrary to the IED, the Directive insists on the role that Member States have to play in

the management of waste from the extractive industry, through the issuance of national permits

and not through the mechanisms of EU-harmonized BAT Conclusions and AELVs.

2.2. Grounds on which the Commission's approach is legally questionable

Adopting BAT Conclusions and AELVs must be mandated and done through an

established comitology procedure

o According to Article 75 of the IED, the Commission shall be assisted by a

committee, which has the competence to deliver opinions on implementing acts

concerning the following: (i) guidance under Article 13(3)(c) and (d) of the

IED, (ii) BAT conclusions (Article 13(5) of the IED), (iii) implementing rules

for large combustion plants (Article 41 of the IED) and (iv) type, format and

frequency of reporting by Member States (Article 72(2) of the IED).

o The BAT conclusions should therefore be adopted according to the committee

proceeding set out in Article 75 of the Directive. The role of this committee is

to assist the Commission on technical issues.

o The IED Article 75 Committee operates in accordance with the examination

procedure as set out at Article 5 of Regulation (EU) No 182/20119.

7 Article 7 of the Directive

8 Preamable – Para. 13

9 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and

general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers


February 2018 41

o Furthermore, the IED Article 75 Committee follows specific Rules of

Procedure which were adopted on 26 August 2011. Notably, pursuant to Article

5 of the Rules of Procedure, each Member State shall be considered to be one

member of the committee. The committee delivers opinion on a draft

implementing act following a vote at the qualified majority.

o Since 2012, the IED Article 75 Committee has delivered a positive opinion on

several implementing decisions, which establish BAT conclusions. These

implementing decisions have been subsequently adopted by the Commission

and published in the EU Official Journal.

Based on the foregoing, BATs conclusions and related ELVs (so-called "AELVs") may

only be adopted on the basis of an established comitology procedure, as set out in

Article 75 of the IED. This comitology operates in accordance with Regulation (EU) No

182/2011 as well as with specific Rules of Procedure.

No such comitology procedure is established under the Mine Waste Directive

o The Committee for the Adaptation to Scientific and Technical Progress and

Implementation of the Directives on Waste (so-called "TAC") is established

under Article 39 of Directive 2008/98/EC on waste (Waste Framework

Directive or WFD). The TAC is responsible for the implementation of the

revised Waste Framework Directive and, following the repeal of the "old"

Waste Framework Directive 2006/12/EC on 12 December 2010, takes over the

role of the Committee established by the latter.

o The TAC has no mandate to adopt BAT-AELs and is no replacement for the

IED Art. 75 Committee.

o In Article 23 of the Mine Waste Directive it is stated that the Commission shall

be assisted by the Committee established by Article 39 of Directive 2008/98/EC

(formerly Article 18 of Directive 75/442/EEC), but importantly ‘the

Committee’ is only called upon to assist the European Commission with:

drawing up a questionnaire or outline to be adopted as the basis for

transmission of a report on implementation of the Directive by the

Member States every three years.

adoption of the provisions necessary for the harmonisation and regular

transmission of permit information for statistics;

technical guidelines for establishment of financial guarantees in

accordance with Article 14 of the Directive;

technical guidelines for inspections in accordance with Article 17 of the

Directive;

laying down of provisions necessary for the definition of weak acid

dissociable cyanide and its measurement method;

completion of the technical requirements for waste characterisation;

interpretation of the definition of “inert”; and

any necessary amendments to the Annexes to the Mine Waste

Directive.

Article 21 of the Mine Waste Directive states that:

assisted by the Committee referred to in Article 23, the Commission, shall ensure that

there is an appropriate exchange of technical and scientific information between

Member States with a view to developing methodologies relating to inventories of

closed waste facilities, and rehabilitation of certain closed waste facilities, but not best

available techniques.

Rather, Article 21§3 states that “The Commission shall organise an exchange of

information between Member States and the organisations concerned on best available

techniques, associated monitoring and developments in them. The Commission shall

publish the results of the exchange of information.

We understand that the Commission's intention was to adopt BAT Conclusions and

AELVs under the Directive. However, since no equivalent to the "IED Article 75

committee" is established under the Directive, there appears to be no legal basis for such

adoption under the Directive.


42 February 2018

Furthermore, as stated above, Article 75 committee voting is to be undertaken by Member

States only. The Commission would therefore act ultra vires if it decided to adopt BAT

Conclusions and AELVs on the basis of the exchange of information on BAT under the

Directive. Specifically, this would encroach upon Member States' prerogatives.

The adoption of the BAT Conclusions and AELVs under the Directive by the Commission

would thus constitute a 'short cut' to the formal procedure set out in the IED, for which

there is no legal basis under the Mine Waste Directive.

Besides the fact that there is no legal basis for adopting BAT Conclusions and AELVs under the

Mine Waste Directive, such adoption would go against the spirit and the scope of the Directive.

Indeed, as stated above, the Directive lays down minimum requirements for the Member States

to apply in order to prevent or reduce as far as possible adverse effects on the environment or on

human health which may result from the management of waste from the extractive industries.

They do not include AELs which was an appropriate decision because of the national and

regional priority setting and the dynamics, specificities and diversity of the extractive waste

management and land-use options.

2.3. Proportionality and subsidiarity

The principle of proportionality regulates the exercise of powers by the European Union. It

seeks to set actions taken by the institutions of the European Union within specified bounds.

Under this rule, the involvement of the institutions must be limited to what is necessary to

achieve the objectives of the Treaties. In other words, the content and form of the action must be

in keeping with the aim pursued.

In our opinion, in case the Commission adopts BAT Conclusions with AELVs under the

Directive, this would be disproportionate compared to the purpose of the Directive which is to

entrust Member States with the task of preventing or reducing as far as possible any adverse

effects on safety, the environment or on human health resulting of the management of waste

from the extractive industries.

Furthermore, in accordance with the principle of subsidiarity10

, the intervention of the European

Union is justified in exercising its powers only when Member States are unable to achieve the

objectives of a proposed action satisfactorily and added value can be provided if the action is

carried out at Union level.

Generic application of AELs from one operation to all operations at EU level may prove to be

counterproductive and could have consequences for the overall safety of extractive waste

facilities. Furthermore, it would contradict the proportional approach already laid out by the

provisions of the Mine Waste Directive (i.e., the progressive application of increasing

requirements to increasingly hazardous categories of extractive waste facility).

The European Union's intervention should therefore be ruled out when an issue can be dealt

with effectively by Member States (at central, regional or local level).

In that regard, the Directive makes it clear that, in accordance with the objectives of the EU

policy on the environment, it is necessary to lay down only the minimum requirements11

for the

management of waste from the extractive industries, as opposed to EU-level harmonised

requirements such as BAT Conclusions and AELVs.

As stated above, the implementation of the technical rules set out under the Directive should be

decided at Member States level, notably depending on the geographical and local conditions of

each concerned Member State.

It should also be noted that there are a number of harmonised levels that have otherwise been

established under other EU and national mining and environmental legislation that is applicable

to the extractive industry.

3. Proposed change from AELs to “performance objectives”

10

Article 5(3) TEU

11 Preamble – para. 4 of the Directive


February 2018 43

There are no legal grounds to set any EU "performance objectives" under Directive 2006/21 for

the following reasons:

This possibility is not explicitly foreseen by Directive 2006/21. A literal interpretation of

Directive 2006/21 goes against the setting of "performance objectives";

Directive 2006/21 makes it clear that Member States, and not the Commission, should be in

charge of implementing Directive 2006/21 and adopting the necessary measures to achieve

the goals set out in Directive 2006/21 (see notably Art. 4 of Directive 2006/21);

In particular, according to the Directive 2006/21, it is up to Member States to determine

how the technical characteristics of the waste facility, its geographical conditions and local

environmental conditions may, where appropriate, enter into consideration (para. 12 of the

Preamble of Directive 2006/21).

It derives from the foregoing that it is up to Member States to set any relevant "performance

objectives" related to Directive 2006/21. The Commission would thus go out of its mandate by

setting such objectives under Directive 2006/21. This would also be contrary to the proportional

approach already laid out by the provisions of the Mine Waste Directive and the principles of

proportionality and subsidiarity generally.

We also understand from the minutes of the kick-off meeting which took place on 19-22 May

2014 that the possibility for the Commission to set up any performance objectives under

Directive 2006/21 was not discussed at all. Concerning specifically the "Associated

Environmental Performance Levels" (AEPLs), the minutes of the meeting specify that a large

majority of the TWG urged not to take any firm positions regarding development of BAT-AELs

since opinions of the competent authorities differed in that regard (section 4.3 of the minutes).

Conclusion

Within the context of the MWEI BREF, for the reasons set out here, the organisations

supporting this split view cannot accept the conversion of site specific indicative performance

levels of specific technologies and waste management options to EU-wide AELs or

“performance objectives” in the BAT document.

References





Reference B: Euromines position to the Kick-off meeting as uploaded on Batis

Reference C: Euromines position before and during to the Final meeting as uploaded on

Batis


44 February 2018

BAT conclusion to which the split view refers to: BAT 41 Table 5.7 (4.x)

Split view submitted by: Austrian delegate, Robert Holnsteiner

Austrian delegate joins the split view of Euromines

Euracoal, Ivonne Damaschke, Joachim Schabronath

Euracoal joins the split view of Euromines.

Proposal:

a) This split view proposes to change the introductory text to the table to 5.7 (now 4.x) as following:

“Concentrations for EWIW discharges considering BAT 39, BAT 40 and BAT 41, are to be set taking

into account the extractive waste characteristics, the technical characteristics of the EWF, its

geographical location and the local environmental conditions.”

b) This split view proposes to change the header for the table 5.7 (now 4.x) to:

“Summary of achieved and reported performances using BAT 39, BAT 40 and BAT 41, from a wide

range of extractive waste management operations.”

Rationale:

This split view is supported by the following rationale.

The formulation of setting the BAT-AELS or alternatively proposed performance objectives is beyond

the technical scope of what is possible with the data collected and provided throughout the exercise. It

is also based on data provided in a different legal context then the one provided by DG Environment at

the final meeting.

The formulation of setting the BAT-AELS or alternatively proposed performance objectives is beyond

the legal scope and mandate of this group.

For detailed explanations, Austrian delegate refers to Euromines split view. Austrian delegate agrees

with the arguments of Euromines split view.

Conclusion:

Within the context of the MWEI BREF, for the reasons set out here, the organisations supporting this

split view cannot accept the conversion of site-specific, indicative performance levels of specific

technologies and waste management options to EU-wide AELs or “performance objectives” in the

BAT document.

References:

This split view is based on the following information already made available to the JRC at the time of

drafting the conclusions on BAT for the MWEI BREF or has been provided within the commenting

period corresponding to such a draft:

Minutes of the Kick-off meeting

Euromines position to the Kick-off meeting as uploaded on Batis

Euromines position before and during to the Final meeting as uploaded on Batis

Austrian delegate position before the Final meeting as uploaded on Batis


February 2018 45

Documents

Review of the Reference document on Best Available