Hazardous waste

Pursuant to §4 line 2 of the Waste Management Act 2002, the Federal Minister of Agriculture, Forestry, Environment and Water Management is empowered to issue ordinances regulating all types of hazardous waste.

This covers all the risk-relevant properties enumerated in Annex 3 of the Waste Management Act 2002 (e.g., explosives, fire hazards, materials that are inflammable, irritating, harmful to the health, toxic, etc.). Moreover, records must be kept for all waste types that are hazardous on the Community level. 

 
On the Community level, hazardous waste is regulated through the following legal instruments, in particular: 

• in the Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, as amended by Directive 94/31/EC of 27 June 1994 and 
  
  
• in Commission Decision 2000/532/EC of 3 May 2000 superseding Decision 94/3/EC on a waste directory pursuant to Art. 1 letter a) of Directive 75/442/EEC of the Council on waste and Decision 94/904/EC of the Council on a hazardous waste directory within the meaning of Art. 1.4 of Directive 91/689/EEC on hazardous waste, most recently amended by Decision 2001/573/EC. 

 
In Austria, hazardous waste is regulated by the List of Wastes Ordinance, Federal Law Gazette II No. 570/2003 as amended by Federal Law Gazette II No. 89/2005, hereinafter referred to as the “List of Wastes Ordinance”.
 
According to §4 of the List of Wastes Ordinance, the following are considered to be hazardous waste: 

1. Waste expressly designated as hazardous in the specified lists. Until 31 December 2008, the authoritative lists are Annex 5 of the List of Wastes Ordinance, Austrian standard ÖNORM S 2100 “Waste Catalogue”, issued on 1 September 1997, and ÖNORM S 2100/AC 1 “Waste Catalogue (correction)”, issued on 1 January 1998.
    
   The ÖNORM S 2100 “Waste Catalogue”, with the current code numbers was revised and re-issued on 1 October 2005. It includes all types of hazardous waste that are contained in the above-specified lists.
    
   From 1 January 2009, a change-over will be made to the nomenclature of the European Waste Directory and hazardous waste will be defined as the items accompanied by an asterisk in Annex 1 of the List of Wastes Ordinance. 
   
   
2. Waste that contains the hazardous substances to a certain extent or that is mixed with them in such a way that risk-relevant properties as defined by Annex 3 List of Wastes Ordinance cannot be ruled out through a simple assessment, such as an evaluation of the maximum percentage by weight of toxic substances. 
   
   
3. Certain types of excavated material:
   
   excavated material from industrial sites that handle soil- or water-polluting substances which make it reasonable to assume that the material is “hazard-relevant” as defined by Annex 3 of the List of Wastes Ordinance (e.g., in the case of operations involving metal or mineral oil processing, filling stations, dry cleaners, chemicals industry, gasworks or contaminated waste sites); this applies to all areas of the site in which such substances are handled;
   
   excavated material from sites that are not covered by paragraph 1 if contamination becomes apparent in the course of the excavation or removal activities and it is reasonable to assume that the material is “hazard-relevant” as defined by Annex 3 of the List of Wastes Ordinance;
   
   excavated material, if it is reasonable to assume that, by reason of contamination caused by an operational incident or accident, the waste is “hazard-relevant” as defined by Annex 3 of the List of Wastes Ordinance;
   
   excavated material that is not covered by the above paragraphs if chemical analysis reveals that the waste is so contaminated that it is at least “hazard-relevant” as defined by Annex 3 of the List of Wastes Ordinance.
   
   
4. Waste that was once categorized as hazardous and subsequently consolidated (i.e., firmly bonded in a matrix) is considered hazardous even after consolidation.

 
The List of Wastes Ordinance finally regulates which types of waste are hazardous. To this extent, the parts of the Ordinance on the Determination of Hazardous Waste and Hazardous Household Waste of 1997 related to hazardous waste rather than exemption (see below) are substantively superseded by the List of Wastes Ordinance and inapplicable.

Specific hazardous waste types in marginal areas necessarily overlap with non-hazardous waste that does not have any hazard-relevant properties. In order to take this fact into account and to help production processes advance in the direction of “cleaner production”, it is possible to furnish proof that such waste has no risk-relevant properties (exemption) in individual cases.

Exemption is covered by Community law in Art. 3 of Decision 2000/532/EC. Member States have the option of issuing laws that require the waster holder, in exceptional cases, to provide sufficient proof that certain types of waste contained in the catalogue do not have any of the hazardous properties enumerated in Annex III of Directive 91/689/EEC on Hazardous Waste.

This option was implemented by §§4 lines 3 and 7 of the Waste Management Act 2002 and in the Ordinance on the Determination of Hazardous Waste and Hazardous Household Waste of 1997 through the exemption procedure defined by §§5 and 6.

Exemption may be performed for a single batch or for a specific process with consistent quality.

It may be performed either by the relevant waste holder (general exemption) or by the landfill operator for the purposes of depositing the waste in his landfill.

In the case of general exemption, the following points must be observed:

• objectivelyverifiable criteria of hazardousness(Annex 3 of the List of Wastes Ordinance; this concerns the hazard-relevant properties defined by the EC Directive on Hazardous Waste, which is defined in greater detail in the List of Wastes Ordinance)
• assessment by an external authorised expert or expert body; the expert report must confirm that the waste does not have any of the risk-relevant properties defined by the Ordinance
• use of the forms defined by Annex 3 of the Ordinance on the Determination of Hazardous Waste and Hazardous Household Waste of 1997 for proof of non-hazardousness
• For excavated material, exemption assessment must be carried out before excavating or removing the material.

Exemption for the purpose of landfilling

Since the Landfill Ordinance already contains extensive provisions concerning the study of waste, synergies for exemption for the purpose of landfilling are used. Such exemption must be based on an overall assessment in accordance with the Landfill Ordinance.
 
Pursuant to §16.1 of the Waste Management Act 2002, it has been prohibited since 16 July 2001 to deposit hazardous waste on above-ground landfills, i.e., such must either be exempted (when permissible), treated or exported prior to above-ground depositing

10.09.2007, Lebensministerium VI/3