The new regulation of waste: the Law on Waste and contaminated soils for a circular economy

More than a year has passed since the publication of Law 7/2021, of May 20, on climate change and energy transition. And curiously, Law 7/2022, of April 8, on waste and contaminated soil for a circular economy, comes to develop one of the objectives of its predecessor in the main problem at hand and which is none other than climate change. .

On June 5, one more year, World Environment Day was celebrated and we must destacar with satisfaction that 84% of Spaniards, according to a survey echoed by the newspaper “El País”, consider climate change to be a scientifically proven fact. Moreover, 54% of those surveyed are in favor of increasing consumption taxes to conserve the environment.

As we all know, waste is a serious environmental problem (according to INE data, 483,7 kg of urban waste per inhabitant are produced annually). Perhaps the enactment of Law 7/2022, to which we referred earlier, has not had the due public relevance. That is why today Professor Alenza, professor of administrative law, collaborates on this blog, who in a simple and clear way explains what this new legal text means, which should be an advance in the circular economy.

Jose Manuel Marraco Espinos. Lawyer.

The new regulation of waste: the Law on Waste and contaminated soils for a circular economy

Jose Francisco Alenza Garcia.

Professor of Administrative Law. Public University of Navarra

1. The fifth Spanish waste law and its ambitious transformative objectives.

Law 7/2022, of April 8, on waste and contaminated soil for a circular economy (LRSCEC) is the fifth Spanish waste law (after those of 1975, 1986, 1998 and 2011) and is presented with a manifest vocation transformative. The purposes of the new law, according to its explanatory statement, are "to establish the principles of the circular economy through basic legislation on waste, as well as to contribute to the fight against climate change and protect the marine environment" contributing to the fulfillment of the Sustainable Development Goals.

It can therefore be said that the LRSCEC is inspired by the prevailing paradigms in environmental policy (sustainability, circular economy, climate neutrality, protection of the marine environment) and that it aspires to contribute to the objectives of said policies: prevention of the generation of waste, reduction in the use of resources, transition to a circular and low-carbon economy, reduction of the environmental impact of waste, business competitiveness and creation and consolidation of employment in the waste sector.

2. Characteristics of the LRSCEC: citius (?), altius, fortius…, too high, too far, too soon.

The LRSCEC can be characterized according to six features, for whose description I will use the Olympic motto (citius, altius, fortius) and a verse (“too high, too far, too son”) of the iconic song The whole of the moon, from The Waterboys.

1st) The first of the Olympic challenges cannot be applied (city) to the LRSCEC, since the law has transposed two European directives with considerable delay: 2018/851 (which modifies the Framework Directive on waste), and 2019/904 on single-use plastics, whose deadlines for transposition were finalized, respectively, on July 5, 2020 and July 3, 2021. This unjustifiable delay is due, in a small part, to the prolonged parliamentary processing of the law in which more than a thousand amendments were debated. This intense parliamentary activity reflects the political interest that the law has aroused, which is something new and positive.

2nd) Yes, the adjective can be applied to the law height. The LRSCEC is extraordinarily long or extensive: with its 166 provisions (of which 118 are articles) and its XVI annexes, it breaks all the records of the historical waste legislation (triples in provisions to the LR of 1998 and doubles in articles to the LRSC 2011).

3rd) The new law is also fortius, since it has a greater normative density than its predecessors and regulates many of its contents in greater detail (for example, the extended responsibility of the producer, goes from having two articles in the LRSC, to having 18 in the LRSCEC, some of which occupy more than one page of the BOE).

4th) The law flies high (too high) because it increases the legal complexity of the regulation. This greater complexity derives from several factors. First of all, destinationaca its conceptual emphasis (perhaps disproportionate, since it incorporates 57 legal definitions, compared to 26 of its predecessor). Second, it increases the types of products and waste with specific provisions (bio-waste, used oils, CDW, food, commercial, textiles, etc.). Thirdly, it multiplies the legal instruments used and together with the traditional instruments of this sector (plans, programs, authorizations), new instruments barely mentioned in the previous laws appear (taxes, public contracts, self-control systems, etc.).

5th) The LRSCEC looks far and shows depth (too far) by proposing a transformative mission (the transition to the circular economy) and ambitious quantitative objectives (reduction in weight of waste, preparation for reuse and recycling, separate collection). This explains the tightening of some legal requirements such as the obligations imposed on local entities and extended producer responsibility systems.

6th) However, the law shows more of a reformist continuism than a disruptive desire. Too soon (too soon) for revolution. Despite the fact that the circular economy –incorporated into the name of the law– advocates a “systemic change” in its most extensive conceptions, precise legal springs to promote said change are not appreciable in the LRSCEC. Rather, we are facing relevant reforms and ambitious goals with which to start the path towards future deeper transformations of the productive and economic system.

3. A decalogue of important novelties.

The novelties that the new law introduces in the waste regime are many and of different significance. Some are a direct consequence of the transposition of community directives, but others are of the national legislature's own harvest. As a decalogue I will summarize the ten that, in my opinion, are most relevant.

1st. Recognition of a public action to demand compliance with the law (art. 10.1).

2nd. Streamlining of the system for the recognition of by-products and the end of the waste condition by empowering the Autonomous Communities to declare them (arts. 4 and 5).

3rd. “Vintage” measures in the prevention of waste and consumption (art. 18.2, 3 and 4). Some measures that reproduce actions already known in the past, such as those relating to bulk sales (reserving 20% ​​in the food retail trade for bulk sales), can be classified as “vintage”; the consumption of free non-bottled water in hotels and public facilities; and the prohibition of the destruction of unsold surpluses of perishable products (textiles, toys, electrical appliances).

4th. “Retro” measures to prolong the use of products. Although not fully guaranteed, there is a timid advance towards the right to repair, by providing for the promotion of circular, repairable and upgradable products (art. 18.1, a, c, e); require information on reparability (art. 18.10); and enable future regulations against premature obsolescence (art. 18.9).

5th. Intensification of separate collection and other obligations imposed on local entities. The obligations and objectives of the separate collection of new types of waste (paper, metals, plastic, glass; household bio-waste; textiles; cooking oils; hazardous household; bulky and others) are progressively increased (art. 25). In addition, local entities are required to approve waste management programs (art. 12.5), Ordinances (art. 28.1) and specific and differentiated rates for waste management, which take into account the real cost of waste and that admit generation payment systems (art. 11.3).

6th. Expansion and tightening of extended responsibility systems (SRAP). Future SRAPs are foreseen for new waste streams (textiles, furniture, fixtures, sanitary ware and some single-use plastics), greater demands are imposed on the organization of SRAPs (art. 42), their financial responsibility is expanded (art. 43), and self-control and supervision mechanisms are established (arts. 46, 53 and 54).

7th. Reduction of single-use plastics. The measures of the USP Directive are incorporated: reduction and prohibition of consumption of certain USP (arts. 55 and 56); design and marking requirements (arts. 57 and 58); separate collection of plastic bottles (art. 59); and forecast of future SRAPs for certain single-use plastics.

8th. War on scattered garbage. Scattered rubbish is typified as an offense (art. 108.2, c and 108.3, c) and although it does not establish directly applicable measures, it does enable a Royal Decree to restrict the products that constitute the main sources of dispersed rubbish (art. 18.1, k), and also so that by means of an Ordinance the City Councils can establish the prohibition of smoking on the beaches where balloons are released (art. 18.1, l).

9th. New taxation. Among the star measures of the LRSCEC is the creation of two new taxes: the one related to non-reusable plastic containers and the one that taxes the deposit of waste in landfills, incineration and co-incineration of waste.

10th. Tightening of the sanctioning regime. More infractions are typified (the very serious and serious ones are doubled) and larger fines are established (doubling the amounts provided for in the LRSC of 2011). In addition, new accessory sanctions are established, such as the impossibility of obtaining subsidies and the prohibition of contracting.

4. Need for an effective application of the LRSCEC to move towards a more circular economy and society.

The LRSCEC is a very relevant law from a legal, economic and social point of view, which is aligned with the hegemonic paradigms of environmental policy (sustainability, circular economy and climate neutrality). In many aspects the law could have been more ambitious (providing for the progressive implementation of return, deposit and return systems) and in others (such as public procurement) it should have been more specific and demanding. But neither is it reasonable to demand from a waste law the necessary reforms for a complete transformation of the economic system. For this, it is necessary to extend the regulatory impact beyond the waste sector and adopt mandatory measures in the production, marketing and consumption sectors. And, above all, if a systemic change in production and consumption patterns is truly intended, the focus of attention must be broadened to social factors that are more relevant than the economy itself, such as research, training and, especially, education. .

What is urgent now is an effective application of the LRSCEC. The new law, compared to its antecedents, grows in length, increases its regulatory density, increases its legal complexity, establishes more ambitious objectives and hardens the legal regime of waste management. It incorporates innovative measures whose implementation will make it possible to improve waste management, comply with the hierarchy of objectives and, to some extent, move towards the circular economy.

But, for its effective application, it is necessary that the regulatory developments and the plans and programs foreseen in the law be approved and, above all, that the means –economic, material and personal– that the competent Administrations need –especially the local entities – for the implementation of the measures provided for in the law and the execution of ambitious waste policies.