Transboundary movement of waste EU-OECD (Exports)

There are many legal obligations to take into consideration for the transboundary movement of waste from a country of the European Union to a third country. Sometimes it is not easy to identify the operations, procedures and applicable regulations when it comes to Spain as the country of origin.

This article will focus on the movement of waste between the European Union (EU) and third countries, that simultaneously are members of the Organisation for Economic Co-operation and Development (OECD). For transfer to other third countries the Basel Convention applies.

The applicable regime must be based on Regulation (EC) 1013/2006 of the European Parliament and of the Council of June 14, 2006, regarding waste transfers (from now on “Regulation 1013/2006”). However, each member country has its own action protocol in order to organise the transfer in accordance with its competence, procedural and executive autonomy.

WHO CAN APPLY FOR THE TRANSBOUNDARY MOVEMENT OF WASTE?

The initial producer or holder of the waste can request a transboundary movement, but also any registered trader (person who acts on their behalf in the purchase of the waste and subsequent sale) or collector (whoever carries out the waste collection).

For that purpose, the relationship must be justified. In the case of the trader or agent, the waste contract of sale or the producer´s certificate evidencing their legal possession of said contract must be submitted.

CAN A FOREIGN NOTIFIER REQUEST THE TRANSFER?

Yes. In Spain it is required that the company acting as a notifier must have a Spanish Tax Identification Number (NIF by its Spanish acronym) in order to be able to present the dossier electronically. Such NIF is requested before the Tax Agency, presenting the documents that prove the existence of the company. Keep in mind that if the representative is also a foreigner, he must request his NIF previously.

Therefore, we advise contacting a Spanish legal firm to represent and process the obtaining of the NIF in order to be quicker and more efficient.

IS THE TRANSFER OF WASTE SUBJECT TO ANY TYPE OF PERMIT OR AUTHORIZATION?

Yes, generally the transboundary movement of waste is subject to the procedure of prior written notification and authorization by both the country of origin (Spain) and the country of destination (OECD country), and the transit countries through which the transfer is made as well. The standard form of the notification document is contained in Annex IA of the regulation, and the movement document in Annex IB.

Only transfers of waste in quantities lesser than 20 or 25 kg are subject to the General Notification Procedure (Annex VII form) if they are expressly intended for laboratory analysis to evaluate their physical or chemical characteristics or to determine their suitability for recovery or disposal related operations.

SHOULD A PROCEDURE BE COMPLETED BY TRANSFER?

The notifier can present a general authorization or notification covering several transfers if, in each of the transfers:

• The waste has similar physical and chemical characteristics,
• The waste is going to be transferred to the same addressee and facility,
• The itinerary of the transferred, as specified in the notification document, is the same.

This way of proceeding is very useful for waste movements that are generally raw materials or intermediate elements of the manager´s industrial process (eg. Metal waste for steel mills or foundries).

Such authorizations/notifications are granted for one year and they must be renewed.

CAN ALL KIND OF WASTE BE TRANSFERRED?

No, in principle the transfer for disposal (incineration or landfill) is prohibited as the principle of proximity prevails (management at source) and essentially avoiding exports of waste to developing countries.

Regarding transfers for recovery (restoration, regeneration, reuse, recycling or any other use) the following transfers are allowed:

• Waste from the green list (Annex III of the Regulation) whenever they present any dangerous characteristic.
• Wastes on the amber list (Annex III and IIIB of the Regulation) which includes, among others, the waste listed in Annexes II and VIII of the Basel Convention.
• Waste and mixture of waste not classified in a specific category of annexes III, IIIB, IV or IVA, unless they appear in annex IIIA.

Documents And Deadlines For Transfers Submitted To Notification-Authorization

A dossier must be submitted, through the electronic portal, to the Ministry for the Ecological Transition and the Demographic Challenge, General Sub-directorate of Circular Economy with the following documentation:

• Notification document (Annex IA of Regulation 1013/2006)
• Movement document (Annex IB of Regulation 1013/2006)
• Copy or proof of the established contract between the notifier and the addressee, which must be effective before each transfer.
• In case of being applicable, copy or proof of the contract between notifier and manager to whom the waste is directed.
• To be in possession of a civil liability insurance.
• Certificate or draft of guarantee or draft before the Treasury.
• Itinerary that the waste to be transported will follow.
• Information about the expected carrier(s).
• Composition of waste.
• Description of the treatment process to which the waste is subjected. It is treated as presented with a copy of the manager´s contract.

The deadline to carry out this procedure is permanently open. In order to formalize and calculate the guarantee, the bond or the equivalent insurance. The procedure must be established by the notifier or another natural or legal person acting on their behalf and be effective the transfer begins.

The purpose of the bond is to cover the costs that may arise if there is an incidence in the movement of waste or neither the recovery nor the disposal can be carried out, or if it is illegal.

It will be formalized in name of the Ministry in the form of a bank guarantee, a surety insurance, or a deposit in the General Deposit Box of the Public Treasury.

In order to calculate the guarantee, the following formula will be applied:

1,4 x Q x (CT + CEV + (CA x 90))

CT: Transport cost for each ton

CEV: Cost of disposal or evaluation per ton. Depending on the operation.

CA: Cost of storage per day and per ton. If it goes directly to management, symbolic value.

Q: Transported quantity in tons.

Once the documentation has been submitted, the Ministry will send a copy to the competent authority of the destination country and, when applicable, to the transit country. It cannot be controlled when such remission is made. (Usually 10-15 days).

The Ministry must authorize within 30 calendar days, from the date it receives the acknowledgement of receipt of the File (not the authorization) from the authority of the destination country. At this point, it is important that the recipient/manager of the waste gets in contact with its authority in order to receive a quick response.

If the authority does not respond within 30 calendar days, the transboundary movement of waste is considered tacitly approved. If objections are alleged to the transfer, the interested party has 30 days to solve the problems that motivate such objections. Once the deadline has passed without the notification being solved, it loses its validity. If the notifier is still interested in making the transfer, he must submit a new notification.

It is important that the Movement Document and the Notification Document accompany the transfer.

HOW DO I RELEASE THE GUARANTEE?

The treatment facility must certify the completion of the recovery of the waste, at your own risk and as quickly as possible, maximum in 30 days’ time since the conclusion of the operation. Once the certificate is presented before the Ministry, this will authorize its liberalization.

As we have mentioned before, the complexity of the legal procedures for the transboundary movement of waste requires specialized advice. You can contact our attorneys here.

Public and Regulatory Department