In this context, the initial legal debate concerning CCS technologies addressed the fundamental question of whether CCS processes and captured CO2 fell within the scope of EU waste legislation and what the implications of that would be.
The adoption, in April 2009, of the Directive on the geological storage of carbon dioxide (Directive 2009/31/EC) (the CCS Directive) clarified most of these questions by expressly excluding 'carbon dioxide captured and transported for the purposes of geological storage and geologically stored in accordance with' the Directive from the definition of 'waste' under existing waste legislation. This exclusion and a comparable one about waste shipments were inserted as amendments to two key EU waste laws, with the aim of removing potential legal barriers to CCS activities.
Those amendments applied to the 2006 Waste Framework Directive (Directive 2006/12/EC) and the Transfrontier Shipment of Waste Regulation (Regulation No.1013/2006).
In December 2010, the primary law in this field, the 2006 Waste Framework Directive, together with two subsidiary laws, the Hazardous Waste Directive (Directive 91/689/ EC) and the Waste Oils Directive (Directive 75/439/EEC), is due to be replaced by a revised and updated version adopted in 2008, the Revised Waste Framework Directive (Directive 2008/98/EC). In principle, that replacement should not have a major effect on the status of CCS within EU waste law, but there are some aspects of the 2008 Directive which could be significant.
What is their collective effect upon CCS activities?
As a result of the amendments enacted by the CCS Directive, CO2 captured, transported and permanently stored in accordance with the prescribed regime does not qualify as waste under the Waste Framework Directive or the Transfrontier Shipment Regulation. This means that the main focus of regulation for CCS activities will be the specific provisions of the CCS Directive rather than the more general rules applying to wastes. In effect, provided they remain in compliance with the regime, those undertaking CCS storage activities are required to obtain a storage permit and manage their activities following the provisions set out in the CCS Directive. The EU waste laws could still come into play, however, if CCS permit conditions are breached or if ancillary aspects of CCS operations either cause harm or involve handling of classified wastes. The capture and transport phases of CCS will also still be subject to separate regulatory regimes covering hazardous installations and transport facilities like pipelines, which are similarly underpinned by waste regulation in certain respects.
Analysis & Key Questions
The amendments made to the existing waste legislation by the CCS Directive are discussed in the following legislation summaries: