Waste (law)

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The term waste is legally defined in many legal systems and the handling of waste is regulated in and between most countries. This is how the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal of March 22, 1989, to which almost all states have acceded, understands , including “substances or objects that are disposed of, are intended for disposal or are disposed of on the basis of national legislation have to".

European Union

On waste handling (waste management) that makes Waste Framework Directive of the European Community for most categories of waste targets that by its Member States into national law must be implemented. According to this, waste is any “substance or object that its owner discards, wants to discard or has to discard”. It also defines the concept of hazardous waste through its (at least one) hazardous property that is explained in more detail therein. The fact that this guideline expressly does not cover wastewater, exhaust gas, contaminated soil up to the point of excavation, overburden from mining, faeces or animals killed to combat epidemics, shows that they also understand this to be waste.

In the European Waste Catalog , the waste it records is listed and differentiated by its designation, which is regularly linked to its origin. Each type of waste is assigned a 6-digit waste code . The legal basis for this is Directive 91/689 / EEC on hazardous waste and the decision of the EU Commission No. 2000/532 / EC, which were implemented in Germany by the Waste Catalog Ordinance.

Germany

The EU directive implements the Recycling Management Act (KrWG), which defines waste as “all substances or objects that their owner discards, wants to discard or has to discard”. That means:

  1. The owner gets rid of an object primarily when he sends it to a waste recovery or waste disposal process, for example when he deposits it in a landfill , burns it in a waste incineration plant or brings it into boreholes, mines or other underground cavities. He also "gets rid of" an object if he gives up his physical control over the object without the object being used for any purpose, i.e. if he simply "throws away" the object in the colloquial sense.
  2. Whether the holder of an object intends to discard , depends on the circumstances of each case and taking into account the customs and manners to assess commercial transactions. The law assumes that there is usually a “will to dispose of” an object that arises during a production process or a service, without the purpose of the production or service having been aimed at creating this object ( Examples: slag in steel production, sawdust in woodworking), or its purpose has ceased to exist without a new purpose having taken its place (example: the wrecked car parked in the garden). Since this variant of the concept of waste is based on the will of the owner, it is also referred to as a subjective concept of waste or deliberate waste .
  3. The owner must dispose of an object if the object is no longer used for its original purpose, can endanger the general welfare due to its condition and this risk can only be averted through orderly waste disposal ( objective waste term or compulsory waste ). This applies, for example, to the long-term stacked barrels with highly toxic production residues on a company property.

In its fringes, the scope of the term waste is extremely controversial. The delimitation of by-products and intermediate products, which production is not aimed at, but which are nevertheless conditioned by appropriate control of the production process or the input materials in such a way that they can continue to be used for an economically sensible purpose (example: Adding additives to the feed mix of a production process with the aim of obtaining a slag that can be used in road construction). A clearer definition of by-products was one of the goals when drawing up the European Waste Framework Directive 2008/98 / EC . In the administration of criminal justice it is also controversial whether food thrown away that one appropriates ( containers ) was disposed of or remained in someone else's property, so that criminal liability for theft is possible.

Differentiation according to danger

Hazardous wastes are wastes with dangerous properties that are listed in Directive 91/689 / EEC on hazardous waste and in the Waste Catalog Ordinance, e.g. B. flammable, corrosive, irritant or toxic. Non-hazardous waste is all other waste. For hazardous waste, significantly stricter requirements apply to health and environmental protection, the selection of disposal facilities and the obligation to provide evidence.

Waste for recovery or disposal

  • Waste for recovery is waste that is actually recovered by being sent to a recovery process. Recycling can be done by recovering raw materials from the waste (example: aluminum extraction from scrap) or using the properties of the waste (example: using the strength of slag when building base layers in road construction ), so-called material recycling . But recovery can take place in that the waste to energy used extraction (for example, use of waste oils or petroleum coke in place of natural gas to the furnace cement works), the so-called. Energetic utilization . Basically, resulting, i. H. to recycle unavoided waste as a priority. The producer or owner is entitled and obliged to recycle waste within the limits of the Recycling Management Act (see also: Waste law ) (exceptions apply to private households). He usually uses special recycling companies for this and can dispose of the waste largely freely within the common market . Accordingly, waste recycling is largely organized privately.
  • Waste for disposal is waste that is not recycled. Waste for disposal as well as waste from private households must be left to the public waste disposal authority - this is usually the municipality or the district - which ensures orderly disposal to protect the general good. Waste disposal is therefore (still) largely in municipal hands and, accordingly, is often monopolized regionally . In deviation from this, certain particularly hazardous waste, which therefore requires special monitoring in the legal sense, may - depending on the federal state - be left to a central body for the disposal of hazardous waste (so-called tender obligation ). Waste for disposal is subject to a stricter legal regime, in particular stricter documentation requirements, and may only be brought across national borders within narrow limits.

Like the scope of the term waste in relation to the (waste law-free) product, the demarcation between waste for recycling and waste for disposal in borderline cases is lively controversial. In particular, it was (and is?) Disputed whether and when incineration should be considered thermal (energetic) recovery or disposal. The same goes for backfilling mines with waste. The dispute often arises between individual states of the European Union or the European Commission and individual member states. The demarcation is of particular importance in practice because it decides on the one hand whether the waste is subject to the stricter disposal regime or not, and on the other hand it determines whether the waste is disposed of privately or communally.

Differentiation via mobility

The Recycling and Waste Management Act (KrW- / AbfG) from 1994, which was replaced on June 1, 2012, restricted the definition of waste to movable objects. In this sense, the oil-contaminated soil that had to be disposed of, for example, or the building contaminated with asbestos was not waste. Only the excavation of the contaminated soil or the demolition of the building make the excavation or the rubble. As a result of a ruling by the European Court of Justice on September 7, 2004, this defining feature, which deviates from the European definition, was initially questioned. In the legal literature, however, one quickly came to the conclusion that an application of the soil protection law valid in the Federal Republic of Germany would take into account the requirements of the waste framework directive at that time , on which the Van de Walle and Texaco decision was based. In Germany, therefore, "immovable waste" was considered to be "soil contamination" or " contaminated sites " within the meaning of soil protection law.

Even with the definition now adjusted, the distinction between waste and contaminated sites remains. Like the directive, the current recycling law excludes soils in situ , i.e. unpolluted or contaminated soil at the place of origin, as well as buildings firmly connected to the land, from waste law, but also excavated earth that is unpolluted and untreated directly on site.

Legal situation in Austria

In the Austrian Federal Constitution (B-VG) there was no separate competence offense regarding “waste management” until 1988. A nationwide regulation was therefore not possible and - in accordance with the constitutional approach of the point of view theory - a fragmented view took place. So it was a so-called annex matter. Regulations could only be made in connection with and within the respective limits of the individual material rights (e.g. trade law, water law, nature conservation law). Overlaps or loopholes were the result. With the amendment to the Federal Constitutional Act in 1988, the constitutional basis for waste management was created by creating a new competence in Article 10, Paragraph 1, Item 12 of the Federal Constitutional Law. The federal government was now responsible for legislation and enforcement for hazardous waste, but with regard to non-hazardous waste only to the extent that there is a need for uniform regulations to be issued (need-based competence ). It soon became apparent that the federal legislature soon made extensive use of this “need” competence. Only a relatively small area of ​​regulation remained for the 9 federal states. This primarily concerns the municipal collection of non-hazardous municipal waste as well as the collection of waste fees and, in some cases, also the promotion of education for the population. The most essential parts of waste management in administrative practice are, however, located in federal law.

The federal competence was first used with the Waste Management Act 1990 on hazardous waste. Initial approaches regarding non-hazardous waste have already been made here. For example, there are already record-keeping obligations and legal norms with regard to special waste treatment plants. Comprehensive use was made in BGBl I No. 102/2002.

With the Waste Management Act (AWG) 2002 , for the first time, all non-hazardous waste was also subjected to uniform national rules and thus withdrawn from the regulatory authority of the federal states. Certain (few) “wastes” - such as radioactive materials, explosives, deaf rock, some animal materials - are excluded from the scope of the Waste Management Act 2002 (cf. § 3 AWG 2002). Since then, numerous amendments have been made and new ordinances have been issued (e.g. Waste Treatment Obligations Ordinance, Old Electrical Appliances Ordinance, Waste Types Catalog , Waste Evidence Ordinance ). Most of the ordinances issued under the Waste Management Act 1990 still apply under the Waste Management Act 2002, although there is a need for adjustment (e.g. end-of-life vehicle ordinance, landfill ordinance). Another amendment to the AWG was started at the end of 2012.

Situation in Switzerland

In Switzerland, the reuse and recycling of waste is of a very high standard. Incentives are v. a. also charges on waste disposal. Disposal fees brought forward on the sales prices of products partly ensure the pre-financing of the recycling. Landfills for household waste have been banned for several years; the waste must be disposed of in an environmentally friendly way in waste incineration plants. These questions are primarily regulated in the Federal Act on Environmental Protection ( USG ) of 1983 and the associated executive decrees.

See also

literature

  • Jürgen Fluck , recycling, waste and soil protection law, KrW- / AbfG, AbfVerbrG, EG-AbfVerbrVO, BBodSchG, commentary, collection of regulations, status: 67th act. 2006, CFMüller Verlag, Heidelberg, ISBN 3-8114-7900-8
  • Claus-André Radde: June 1st, 2006 - One year implementation of the Waste Deposit Ordinance / TA-Siedlungsabfall. An inventory from a federal perspective. Garbage and waste 38 (6), pp. 284-289 (2006), ISSN  0027-2957
  • Sebastian C. Stark: The concept of waste in European and German environmental law - Van de Walle everywhere? , Dissertation, 246 pages, Peter Lang Verlag, 2009, ISBN 978-3-631-59479-7

Web links

Individual evidence

  1. ↑ Art. 2 no. 1 of the Basel Convention
  2. ↑ Article 3 no. 1 of Directive 2008/98 / EC of the European Parliament and of the Council of November 19, 2008 on waste
  3. ↑ Art. 3 no. 2 with Annex III
  4. ↑ § 3 Paragraph 1 KrWG
  5. ^ Max Malkus: Containers - punishable and punishable? In: Magazine for residual culture. Miguel E. Jung, 2016, p. 2 , accessed November 2, 2018 .
  6. ↑ § 3 Paragraph 1 KrW- / AbfG
  7. ↑ a b Van de Walle and others , C- 1/03. Retrieved April 17, 2019 (case law of September 7, 2004).
  8. ↑ Dieckmann: AbfallR 2004, 280, 283; Dieckmann: AbfallR 2005, 171, 174 f .; Riese / Kartsen: LSK 2005, 120667; Wrede: NuR 2005, 28, 31.
  9. ↑ § 2 Paragraph 2 No. 10 and 11 KrWG
  10. ↑ Lebensministerium.at, Waste Management Act (AWG) 2002 , as of 2012 ( Memento from October 21, 2013 in the Internet Archive )
  11. ^ Lebensministerium.at, Waste Management Act (AWG) amendment 2012/2013 , as of January 28, 2013 ( memo of October 21, 2013 in the Internet Archive )