The Recycling and Waste Act

The Recycling Act has been in force in the Federal Republic of Germany since 7 October 1996. The product responsibility of companies is a central pillar of the act. It is defined as the obligation to design products in such a way that

• waste products are reduced and avoided even at the production stage and during use;
• the environmentally sound recycling and disposal of waste arising after use is ensured.

The bodies bearing product responsibility are manufacturers, product workers and processors and dealers. The product responsibility is implemented in detail and is mandatory by law for companies if the Federal Government has passed relevant statutory regulations, such as the used cars regulation and the packaging regulation.

The aim of incorporating the notion of product responsibility in law is to encourage industry and the consumer to consider the matter of waste as early as the decision-making stage for product development, production and consumption and to develop and apply ideas on waste avoidance and reduction. This concerns not only the benefit and serviceability of a product, but also the entire product life cycle, i.e. the cycle from product development, through production, distribution, return, recycling, use to renewed production.

Companies possibly subject to a statutory regulation on product responsibility should therefore check the following

• Is the product subject to an existing or planned regulation?
• Which existing return and recycling systems can be considered for the product and do suitable ones have to be set up?
• Information and co-ordination of upstream suppliers and of product buyers, especially with respect to logistics, technical requirements and disposal costs.

Within the framework of the act companies have to orient themselves on two principles:

1. Avoidance before recycling
2. Recycling before disposal

Waste avoidance is seen as the primary avoidance of the waste quantity and harmfulness. Companies who develop, manufacture, work and process or distribute products are subject to the waste avoidance obligation.

Waste recycling is seen as the recovery of raw materials and the use of energy-related and material-related properties of waste products as the main purpose of the measure. The disposal of the harmful potential is of secondary importance against this. Waste disposal covers the provision, handover, collection, transport, treatment, storage and dumping of waste with the aim of eliminating the harmful potential.

Under the Recycling Act there is no general mandatory requirement to avoid waste. Waste avoidance is to be achieved, however, by

• the in-plant recycling of materials,
• low-waste product design,
• a consumer behaviour which is oriented towards the purchase of low-waste and low-pollution products.

Recycling is accorded priority over disposal if

• this is technically possible - even on the basis of a possible pretreatment,
• this is acceptable in economic terms, i.e. recycling is not disproportionately more expensive than waste disposal,
• there is a market for recycled waste or such a market can be created,
• recycling is more environmentally sound than disposal.

The producers and owners of waste are subject to the obligation to recycle it in an appropriate fashion without causing any damage. Appropriate recycling signifies a waste recycling which complies with the Recycling Act and other public-law standards. Recycling is harmless if the public good is not impaired.

Material-related recycling applies when raw materials are replaced by secondary raw materials obtained from waste or the material-related properties of waste are utilised. Energy-related recycling is characterised by the use of waste as a substitute fuel. It is tied to certain restricted boundary conditions. For example, the heat thus arising must actually be used and a combustion efficiency of at least 75 % must be achieved.

In the case of installations specially subject to mandatory inspection there is a declaration obligation. Waste which cannot be recycled must be excluded permanently from the recycling system or disposed of in such a way that the public good is not impaired. A transport licence is needed for the commercial collection and transportation of such waste; this also applies for the treatment, storage and dumping of such waste in waste disposal facilities or facilities approved under the Federal Pollution Control Act. Waste intended for disposal is always subject to mandatory inspection and compulsory licensing.

In order obtain a transport licence the company must submit an application to the competent authority. The application must be accompanied by documents which make it possible to review the licence prerequisites; these include especially:

• registration of a trade (Gewerbeanmeldung),
• the extract from the companies register (Handelsregister),
• the certificate of good conduct for the responsible individual entrusted with the management and supervision of the company,
• the information from the central commercial register
• evidence of motor vehicle third-party liability insurance, including a specific environmental third-party liability insurance,
• evidence of the specialist skill and expertise of the personnel.

The company's solvency and the specialist skill and expertise of its employees and management personnel are invariably checked when a company applies for a licence which is relevant in terms of environmental law. The licence is normally issued to be effective through the Federal Republic of Germany and without any time limitation provided there is no reason to doubt the reliability of the applicant or his employees. The evidence of the management personnel's expertise can be provided in the form of:

• a two-year practical activity connected with the collection and transport of waste,
• a one-year practical activity combined with evidence of a relevant (scientific/technical) degree, a qualification as master craftsman, vocational commercial training in the specialist field and in the case of a comparable qualification.

According to the Recycling Act waste is no longer present if

• recycling has successfully been concluded and a secondary raw material, i.e. a product, is the result;
• waste is permanently connected with immobile objects in connection with its use (e.g. dumping ground)

The drawing up of waste management concepts and waste balance sheets is compulsory for companies

• where more than 2000 kg of waste subject to a special degree to mandatory inspection under the Regulation on the Determination of Waste Subject to a Special Degree of Mandatory Inspection is produced annually or
• where more than 2000 tonnes of waste subject to mandatory inspection is produced or has been produced per waste bin.

Minimum requirements for a waste management concept:

1. Details of type and quantity for all waste subject to mandatory inspection and special mandatory inspection and for waste for recycling and disposal
2. Reasons for the need to dispose of waste
3. Measures taken or planned to avoid, recycle and dispose of waste
4. Description of the recycling and disposal routes for the next five years
5. For self-disposers the following also applies: description of all essential details for sit and installation planning and how it is to proceed chronologically
6. Location of waste subject to mandatory concept at the individual waste disposal facilities

Minimum requirements for a waste balance sheet:

1. Details of type and quantity for all waste subject to mandatory inspection and special mandatory inspection and for waste for recycling and disposal
2. Reasons for the need to dispose of waste
3. Special description of the location of waste to be recycled or disposed of outside the Federal Republic of Germany.

The relevant companies must draw up their waste management concepts for the first time by 31.12.1999 for the following five-year period and then update it every five years. The waste balance sheet must be drawn up for the first time by 1 April 1998 and updated annually. The waste management concept and waste balance sheet must be submitted to the competent authority on demand for evaluation.

The Recycling and Waste Act is specified more closely among other things by two sets of Technical Directives (TA): TA Abfall (Technical Directives on Waste Control) contains regulations regarding the approval and checking of waste landfills, waste incineration facilities and other disposal facilities. It classifies certain types of waste in terms of certain disposal procedures and also covers storage regulations and the organisational and personnel-related aspects of the disposal facilities. TA Abfall contains various specific statutory regulations. TA Siedlungsabfall (Technical Directives on Household Waste Control) is an regulation relating to the disposal of "household waste". It is aimed at the reduction of the household waste due to be dumped and the safe storage of the "residual waste" in the longer term. Agricultural use is given priority here.

The notion of recycling is also reflected in the regulation on the avoidance of packing waste. The packaging regulation distinguishes between transport packaging (e.g. crates and barrels), sales packaging (e.g. cans and bottles) and repackaging materials (e.g. plastic film and card). According to the regulation the trade is obliged to take back packaging if it cannot be demonstrated that it is integrated in a commercial disposal system. In the Federal Republic of Germany such a system has been set up in the form of the so-called "dual system" Duales System Deutschland (DSD). Packaging from companies who have joined the DSD can be recognised by the consumer by the "Green Spot". Companies obliged to dispose of waste must draw up a waste balance sheet showing the type and location of the packaging waste disposed of. On 28 August 1998 the amendment to the packaging regulation came into force in the Federal Republic of Germany. It now provides for a take-back and recycling obligation for all manufacturers and distributors. The aim is to commit companies who have not yet been part of the DSD, but who have used its recycling routes. Companies who to date have not been subject to the strict obligation to prove that they take back and recycle packaging materials are now also included within the scope of the packaging regulation. This applies among other things to bakeries and butchers.