EXPLANATORY MEMORANDUM
1.CONTEXT OF THE DELEGATED ACT
Regulation (EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on mercury and repealing Regulation (EC) No 1102/2008 (hereafter ‘Mercury Regulation’) 1 is the dedicated instrument of Union law regulating the use of mercury and mercury compounds (hereafter ‘mercury’).
The Mercury Regulation aims at protecting human health and the environment from anthropogenic emissions and releases of mercury and, in doing so, addresses the entire life-cycle of mercury from primary mercury mining to the final disposal of mercury waste. This Regulation was developed and adopted as a means to pursue and implement the ultimate objective of EU policy on mercury, i.e. to phase out over time the use of mercury and to prevent the EU from adding mercury to the worldwide market. This objective was clearly spelled out in the EU strategy on mercury from 2005 2 as reviewed in 2010 3 , which called upon the EU to take measures inter alia to reduce the use of mercury by cutting supply and demand and to resolve the long-term fate of mercury surpluses and societal reservoirs, including in storage. Hence, the Mercury Regulation tackles the need to reduce, and where feasible mercury-free alternatives exist, eliminate the use of mercury by addressing the demand and supply sides.
Regarding mercury demand, the Mercury Regulation seeks to reduce it by (i) prohibiting the manufacture, import and export of a significant set of mercury-added products (Article 5 and Annex II), (ii) banning manufacturing processes that use mercury as a catalyst or as an electrode (Article 7(1, 2) and Annex III), (iii) making the development, use and placing on the market of new mercury-added products and mercury-using manufacturing processes subject to strict conditions and prior authorisation (Article 8), (iv) prohibiting the use of mercury in artisanal and small-scale gold mining (Article 9) and (v) phasing out the use of dental amalgam for vulnerable populations (Article 10(2)).
Regarding mercury supply, the Mercury Regulation ensures that the EU does not contribute to adding more mercury to the global market by prohibiting the export of mercury (Article 3), and aims at reducing mercury supply to the EU market by directing much of mercury waste to final disposal. In particular, the Mercury Regulation specifies that mercury generated by four large sources (chlor-alkali industry, cleaning of natural gas, non-ferrous mining and smelting operations and mercury extraction from cinnabar ore in the Union), whether in pure form or in mixtures, is waste destined for final disposal (Article 11). Hence, not only does the mercury in question qualify as waste, but such waste must be eliminated without any form of re-use, recycling or reclamation.
For the purpose of final disposal of mercury waste, as mercury is the only heavy metal existing in liquid form, Article 13(3) of the Mercury Regulation provides that it must first be converted and, if intended to be disposed of in an above-ground facility, solidified.
At the time of the development and adoption of the Mercury Regulation, the discrepancy between the significant quantity of mercury waste from relevant large sources destined to final disposal (exceeding 6000 tonnes 4 ) and the limited available capacity in the Union for undertaking conversion and solidification was acknowledged. Hence, the co-legislators agreed on the need to allow the temporary storage of liquid mercury waste in landfills pending this treatment operation. However, as Article 5(3)(a) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (hereafter ‘Landfill Directive’) 5 prohibits the landfilling of liquid waste, Article 13(1) of the Mercury Regulation specifies that such a derogation for this temporary storage is only authorised up to 31 December 2022. Furthermore, such temporary storage is to take place in dedicated and equipped above-ground facilities and only if compliance with the relevant environmental protection requirements laid down in the Annexes to this Directive is met. Acknowledging the challenge posed to relevant operators and Member States to ensure that all concerned mercury waste is converted and solidified by the end of 2022, the co-legislators agreed also on the empowerment of the Commission to adopt delegated acts to extend the period allowed for temporary storage of such waste, should there be a need for it. Accordingly, Article 13(2) of the Mercury Regulation provides that the Commission may adopt such acts to prolong that period by up to three years.
In light of this and based on information provided by Member States on the amount of mercury waste in temporary storage awaiting conversion and/or solidification before final disposal, this Delegated Act seeks to extend the period allowed for temporary storage of mercury waste in liquid form in landfills up to 31 December 2025. Such an act would continue to ensure that such waste remains temporarily stored in environmentally safe landfilling conditions and on the basis of a sound legal basis.
2.CONSULTATIONS PRIOR TO THE ADOPTION OF THE ACT