Use of waste ash - effects of the law Jenny Håkansson

Use of waste ash  - effects of the law Jenny Håkansson

Department of thematic studies

Campus Norrköping

Use of waste ash

- effects of the law

Jenny Håkansson

Bachelor of Science Thesis, Environmental Science Programme, 2004

Linköpings universitet, Campus Norrköping, SE-601 74 Norrköping, Sweden

Språk

Language

Svenska/Swedish

x Engelska/English

________________

Institution, Avdelning

Department, Division

Institutionen för tematisk utbildning och forskning,

Miljövetarprogrammet

Department of thematic studies,

Environmental Science Programme

Rapporttyp

Report category

Licentiatavhandling

Examensarbete

AB-uppsats

x C-uppsats

D-uppsats

Övrig rapport

________________

URL för elektronisk version

http://www.ep.liu.se/exjobb/ituf/

ISBN

Datum

Date

2004-09-20

_____________________________________________________

ISRN LIU-ITUF/MV-C--04/25--SE

_________ ________________________________________________________

ISSN

_________________________________________________________________

Serietitel och serienummer

Title of series, numbering

Handledare

Tutor

Pascal Suèr

Titel

Lagens inverkan på användandet av avfallsförbränningsaska

Title

Use of waste ash – effects of the law

Författare

Author

Jenny Håkansson

Sammanfattning

Abstract

Incineration) residues for construction purposes. The aim has been to look for differences and figure out whether these could be a reason for the minor use of MSWI ashes in Sweden compared to Denmark. To do this, text analysis has been performed on Swedish and Danish environmental legislation with focus on recycling of incineration ashes for constructions.

In Denmark, use of incineration ashes was very common and large amounts were recycled during the 1980’s and

1990’s. The new leg islation, more similar to the Swedish in terms of an increased need for assessments along with tightened limits for hazardous substances, has diminished the use.

Thereby the minor use of ashes from MSWI in Sweden could, at least partially, be explained by differences in

Danish and Swedish legislation.

Nyckelord

Keywords recycling, MSWI, waste, ash, slag, Swedish environmental Code, Danish Environmental Protection Law

Abstract

This study is a comparison of Swedish and Danish legislation on recycling of MSWI

(Municipal Solid Waste Incineration) residues for construction purposes. The aim has been to look for differences and figure out whether these could be a reason for the minor use of MSWI ashes in Sweden compared to Denmark. To do this, text analysis has been performed on Swedish and Danish environmental legislation with focus on recycling of incineration ashes for constructions.

In Denmark, use of incineration ashes was very common and large amounts were recycled during the 1980’s and 1990’s. The new legislation, more similar to the

Swedish in terms of an increased need for assessments along with tightened limits for hazardous substances, has diminished the use.

This shows that changes in Danish legislation towards the Swedish complicate the use of incineration ashes. Thereby the minor use of ashes from MSWI in Sweden could, at least partially, be explained by differences in Danish and Swedish legislation.

Keywords: recycling, MSWI, waste, ash, slag, Swedish environmental Code, Danish

Environmental Protection Law

Use of waste ash – effects of the law

Contents

Abstract ......................................................................................................................1

1. Introduction ............................................................................................................3

2. Method....................................................................................................................5

2.1 Text analysis .............................................................................................................................................5

2.2 Analysed legislation................................................................................................................................6

2.3 The weaknesses of text analysis............................................................................................................6

2.4 Interpretations and references ...............................................................................................................7

3. Framework legislation.............................................................................................8

4. Results.....................................................................................................................9

4.1 Swedish legislation..................................................................................................................................9

4.2 Danis h legislation ..................................................................................................................................10

5. Discussion .............................................................................................................13

5.1 Sweden in focus.....................................................................................................................................13

5.2 Denmark in focus ..................................................................................................................................14

5.3 The influence of legislation .................................................................................................................15

5.4 Other influencing factors......................................................................................................................15

6. Conclusions ...........................................................................................................17

7. Acknowledgements ................................................................................................18

8. References .............................................................................................................18

8.1 Swedish legislation................................................................................................................................19

8.2 Danish legislation ..................................................................................................................................20

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Use of waste ash – effects of the law

1. Introduction

In the Swedish Environmental Code (part 5, § 1, chapter1) it is stated that recycling as well as responsible management of natural resources and energy should be promoted.

The use of ashes from incineration of municipal waste in constructions could be a way of achieving this goal as well as diminishing the need for landfill.

Slag or bottom ash is the non burnable ashes remaining in the combustion chamber after incineration. It is often cooled in water and stored wet, while fly ash is separated from the flue gas with a dust separator and handled and stored dry (EFO Engergiaskor

AB, 1998). These two ash types are often called “residues” in this text.

Studies show that there are ashes with the same or better environmental properties than natural materials (EFO Energiaskor AB, 1998). The main area of use is different types of fillings under hardstands. Despite this, a relatively low amount of slag from

MSWI (Municipal Solid Waste Incineration) is used in Sweden compared to

Denmark. Why is that?

A study made on several international examples, shows that the main issues for making use of ashes as road- filling are good economy and a clear legislation to enable the authority to approve or reject the use of ash in concrete cases (Kärrman, et al.,

2004).

There is a general political will to encourage the use of alternative materials in all countries of the European Union (ALT-MAT, 1999). This is expressed in different ways, as direct legislation, action plans or directives.

This study does not concern the problems regarding chemical and physical properties of the ashes, but the legal problems of administratio n. There are already several studies made on material strength, leakage etc (e.g. EFO Energiaskor AB, 1998; RVF,

2002), and therefore this study has taken a more legislative turn, as this also plays an important role in making use of incineration ashes.

There are many reasons why ash from MSWI is not made extensive use of in Swedish applications and the legislation may be one of them (other reasons are mentioned in chapter 5.4). To find out to what extent, a comparison between the Danish and the

Swedish legislation could be of interest.

The utilisation in Sweden is currently very limited (Rumplmayr, 2001), and represents a low percentage of the total produced amounts (SGU, 2003). The actual use is found in small- scale projects often within the area of the incineration activity (for examples see RVF, 2002). In Denmark on the other hand, MSWI residues are commonly used as will be seen from table 1.

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Use of waste ash – effects of the law

Table 1 Recycling and landfill of MSWI residues in Denmark during the last

decade

Recycling and landfill of MSWI residues in Denmark (in tons)

Year

Recycling

Landfill

Total amount

1994 1995 1996 1997 1998 1999 2000 2001 2002 2008

295

140

435

446

106

552

396

172

568

425

124

549

435

110

545

449

135

584

436

110

546

458

64

522

581

23

604

514

91

605

% recycled residues 68% 81% 70% 77% 80% 77% 80% 88% 96% 85%

Source: Danish National Agency of Environmental Protection, DNAEP (Miljøstyrelsen), 2003

By looking at the figures for “recycling” (in table 1) it seems like a small trend towards higher recycled amount. But that trend can not be established when looking at the figures for the per cent of the total amount of residues. The total amount for 2008 is supposed to be the same as for 2002 (DNAEP, 2003), even though it seems like the

DNAEP miscalculated it. However it is not meant to be seen as a future prognosis of the waste amounts. It can be difficult to understand where those figures came from, but it is interesting that the DNAEP believe the recycling to decrease in the future.

One problem with this statistics is that it is not mentioned how the residues are recycled and what counts as recycling, it does not have to be for use in construction purposes. It is not specified what is included in the term “residues” either, but it probably includes bottom ash and fly ash and not flue gas treatment products, as former two are the ones comprised in the Danish legislation.

Most of the Danish bottom ash (the main part of the generated residues) was used for civil engineering purposes in geotechnical applications (mainly in the 1980’s and

90’s) (Rumplmayr, 2001).

The aim of this research is to find out whether the differences in legislation between

Sweden and Denmark could explain the minor use of ashes from MSWI in Sweden.

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Use of waste ash – effects of the law

2. Method

To find out whether the differences in legistaion could explain the minor use of ashes in Sweden, a comparison between these two legislations will be made to look for differences.

2.1 Text analysis

A text analysis can be defined as “the set of questions put to a concrete text to solve a

concrete issue and give carefully contemplated answers that can convince others that

you are right” (Jensen, 1997).

Text analysis is chosen as method for this study as the main empirical material consists of texts in the form of Swedish and Danish legislation. A comparative analysis aims to compare different texts to investigate similarities, differences or influences between them (Hellspong, 2001).

This investigation is a so-called bilateral micro-comparison in the field of comparative law (Bogdan, 2003). It means that it is a comparison between two legal orders (in this case Swedish and Danish legislation), and that single legal procedures and not the whole system are investigated (in this case legislation on recycling of

MSWI residues).

The question of comparative law being an independent science or just a method is widely discussed (Bogdan, 2003). It might seem easier to name comparative law an independent science, for example when the hierarchy in the legal sources is compared and not the content. In the common jurisprudence though, even the scientific questions concerning the comparative method as such could be entered, e.g. the question of how legal rules from countries with completely different legal systems are comparable at all. The research on comparative law constitutes a specialisation within each branch of jurisprudential science, but at the same time it has so many individual problems that it cold be carried on across the borders of the subject field.

2.1.1 Analysis of legislative texts

Legislation describes reality in a way tha t varies when it gets to level of abstraction and degree of generality (Hydén, 2002). These descriptions are almost never unambiguous : words can have several meanings and must be specified, the legal system must have a certain degree of universality and vague expressions are used on purpose not to lock the development of the law. Therefore, an interpretation of the law is necessary.

This analysis of the law could not be said to be logic-grammatical, to do such analysis a greater knowledge of the Danish language would be required. The analysis goes more towards a teleological interpretation, but it does not investigate the exact purpose revealed from preparatory work etc (for further information about these types of analysis see Hydén, 2001). What it does do is however to see the law as it is seen by the civil servants that are to apply it and who do not always turn to preparatory work to disclose the meaning of the law. This is done as it is their judgements that affect the use of MSWI ashes in practice.

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Use of waste ash – effects of the law

The study contains two comparisons; one between the Danish laws from the 1980’s and 2000’s and one between Danish and Swedish law. This as the hypothesis is that the changes in Danish law, making it more similar to Swedish, will decrease the former large use of ashes to the Swedish level.

2.2 Analysed legislation

The national environmental requirements concerning utilisation of waste from MSWI in Sweden today are very general. It is thus necessary to combine different codes and ordinances to get the full over-view picture of what is allowed and not. The Danish law on the other hand, is much more explicit and has a detailed ordinance for the specific purpose of recycling waste to be used for construction and installation purposes. The aim has been to give particular attention to the paragraphs considering ashes.

The use of waste concerning environmental impact is mostly regulated in the Swedish

environmental code (SFS 1998:808), but is also by other laws e.g. PBL (1987:10),

Road law (1971:948) and collateral regulations. The most specific ordinances (on recycling of waste) to be found in Sweden are the Ordinance on waste (SFS

2001:1063) and the Ordinance on waste for landfill (SFS 2001:512).

The Swedish legislation from the 1980’s looked different, but is not investigated here as the use of waste ashes never have been a big issue in Sweden and the new legislation has not lead to any changes on the used amounts of ashes.

In Denmark, the former comprehensive law was the Environmental Protection Law

(LBK nº 663 of 16/12/1982). This law is chosen as it was the one operative when the

Ordinance on recycling of slag and fly ash (BEK nº 568 of 06/12/1983) came. This ordinance was replaced in 2001/2004 by the Ordinance on recycling of waste and

earth for construction and installation projects (BEK nº 655 of 27/06/2000 (changed

by BEK nº 1106 of 12/12/2003)) whic h is the one used today and the comprehensive law is the new Environmental Protection Law (LBK nº 753 of 25/08/2001).

Regulations from the European Union are to be incorporated in the national legislations. It seems though, that very few countries have been able to achieve this satisfyingly and the delays are numerous (Adler et al., 2004). In Sweden though, the

EWC (European Waste Catalogue) is now incorporated as Appendix 2 in the

Ordinance on Waste (SFS 2001:808). As these regulations should be incorporated in the analysed texts, a further analysis of the EU documents is not included in this study.

2.3 The weaknesses of text analysis

The main weakness, as I see it, is the problem of objectivity. All serious scientific investigations strive to be objective, but independent of what method is used, they can never be. It is my opinion that how objective the investigator tries to be, he will never succeed completely. The investigator always makes choices; he or she chooses the subject, the bias etc. Different interests are benefited or disadvantaged depending on posed and non-posed questions and how the reality is presented and interpreted.

(Alvesson & Sköldberg, 1994).

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Use of waste ash – effects of the law

2.4 Interpretations and references

All the quotations from Swedish and Danish in this text are freely translated by the author. It is as important to be aware of translations between languages as “normal” interpretations. All translations are interpretations!

Many of the references are from Värmeforsk. The reason for this is simply that they have done at lot of research in the field that I find relevant in the question.

Värmeforsk is a trade association and the involved parts of course want to investigate the matter in an objective way, but is has to be kept in mind that their aim is to facilitate a broader use and hence they are positive to reuse of ashes. The authors of the reports come from different institutions such as consultancy agencies, energy producers and universities.

The results in Värmeforsk’s report by Kärrman et al. from 2004 are mainly based on interviews with several persons from different Danish instances and not on investigations of the legislation. It is therefore possible that these results reflect the situation as it is experienced in practice, while the present investigation shows the actual legislative situation.

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Use of waste ash – effects of the law

3. Framework legislation

One of the laws in the analysed material is the Swedish Environmental Code (SFS

1998:808). This is a so-called framework law which differs from the others in its formulation and that is why it is given extra attention here.

A general definition of framework legislation is made by Sundberg (1982)

“Framework legislation is to be understood as legislation only containing basic principles that can be extended with specified regulations. The norms of the framework are more consistent and of fundamental nature: they set up goals and

gives guidelines.”

The increasing complexity of modern production and development of the society has lead to interference between the different units forming the society, in a way that requires intervention and synchronising (Hydén and Anderberg in Bertilsson, 1995). It is has become the duty of the national state to, through legislation, fulfil this requirement. The typical intervening rule has mostly the character of appraisal. This means that it issues what interests are to be considered and weighed against each other, but not how this is done. In these cases, the judgement is controlled by frames, but a smaller or greater degree of freedom can exist within them and this is what distinguishes general clauses as framework legislation.

The number of existing laws is decreasing in favour of the transition to framework legislation, meaning that the government and the Parliament delegate the issue of regulations to national and local authorities. In this way the legislation is less sensitive to changing conditions (Hydén and Anderberg in Bertilsson, 1995).

There are of course both advantages and disadvantages with such legislation (Hydén,

1984). The advantages concern flexibility and administrative development and it also facilitates co-ordination of activities. The objections to framework legislation in the common debate mostly concern insecurity in the interpretation of the content of the law. Other disadvantages are uncontrolled production of rules, problems in controlling and interpretation, problems with legal security, constitutional questions, unclear ways of decisions and unclear responsibility of costs.

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Use of waste ash – effects of the law

4. Results

4.1 Swedish legislation

4.1.1 Swedish Environmental Code (SFS 1998:808)

The Swedish Environmental Code is a framework law. It means that it is a law with general rules and that some of the power is transferred from the government to subordinate authorities. The purpose of the law was to coordinate the legislation in the field of environment.

It is declared in § 1 of the 1 st

chapter that the law strives to promote a sustainable development, meaning that present and coming generations are secured by a good and healthy environment.

This is followed by the rules of consideration in the second chapter which state that all those who run business or intend to do so, shall procure the informa tion required to protect the health and environment from damage, and then act accordingly.

The essence of the 3 rd

chapter is that water and land areas have to be protected and responsibly managed to keep the environmental and cultural values. This makes it unwise to put unknown materials into soils before careful testing.

§ 6, chapter 12 is of importance when using non-hazardous MSWI residues in constructio ns. An activity that has a lot of influence on the environment is often classified as “environmentally hazardous activity” (§ 1, chapter 9) and thereby becomes subject to permit requirement (§ 6, chapter 9). But this only concerns activities that could be of direct danger to nature or human health when it comes to chemical substances and other pollutants, which is not the case for non- hazardous

MSWI residues. According to § 6, chapter 12, a notification of consultation has to be made at the supervisory authority when an activity is going to change the appearance of the natural environment essentially.

According to § 1, chapter 15, waste is defined as “any object, matter or substance

included in a waste category and which the holder intend to or is obliged to dispose

of”.

§ 6, chapter 15 enables the aut horities to legislate about producer’s responsibility to care for their products from the cuddle to the grave. Theoretically this paragraph can be applied on ashes in the future.

4.1.2 Ordinance on waste (SFS 2001:1063)

The legislation concerning recycling of MSWI residues is mainly regulated by the

Ordinance on waste (SFS 2001:1063). It concerns waste and the handling of waste (§

1). The different types of residues are sorted into waste categories in appendix 1 (Q1-

Q16). In appendix 2 a list of what residue that belongs to which category is found.

The numbers in appendix 2 coincide with the six-numbered EWC-codes (European

Waste Catalogue codes). The first two numbers represent the source of the residue, which in the case of MSWI ash is 19 “Residues from waste incineration plants, extern

sewage treatment plant and drinking- water production or water for industrial

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Use of waste ash – effects of the law

purposes”. The following two numbers, 01, stand for “Residues from incineration or

pyrolysis” and the last two numbers goes from 02-19 for the specific types of residues in this category. There is also 99, used for “other residues” that do not fit in under the specific categories. Hazardous waste is marked with an asterisk (*) and mostly concern flue gas treatment products but also ashes containing hazardous substances.

Ashes can also be found under the main category number 10 for “Residues from

thermal processes”, followed by 01 for “Residues from power plants and other

incineration plants (except those under 19)”.

This ordinance intends hazardous waste as waste marked with an asterisk (*) in appendix 2 or waste with one or more of the characteristics listed in appendix 3 (H1-

H14).

According to § 7, a central supervisory authority mentioned in the Ordinance on

surveillance according to the Swedish Environmental Code (1998:900), has the right to apply the regulations for hazardous waste on other waste types not considered hazardous according to appendix 2 if it is needed to protect human health or the environment. They also have the right to decide (in single cases) that a certain waste type, mentioned in the ordinance, should not be considered hazardous, if there are special reasons and the waste does not have any of the properties mentioned in appendix 3.

4.1.3 Ordinance on waste for landfill (SFS 2001:512)

The Ordinance on waste for landfill (SFS 2001:512) is not to be used on this type of waste and it is clearly stated in § 4 part 2 of the same ordinance; “This ordinance is

not to be applied on suitable inert waste for construction purposes on landfills, at

restorations, or for ground, road or filling works”.

Inert waste is defined as waste that does not go through chemical or physical changes during the process of storage. This opens up a possibility for applying this ordinance on non- inert waste, which often is the case with incineration ashes. Such treatment though, does not exactly fall into the category of recycling.

4.2 Danish legislation

4.2.1 The old Danish Environmental Protection Law from 1982 (LBK nº 663 of

16/12/1982)

The old Danish Environmental Protection Law from 1982 (LBK nº 663 of

16/12/1982), is mostly aligned towards human health and protection of the ground water, as it is used as drinking-water. For example, there is a whole paragraph only about rats and thereto related health problems (§ 4a) and two chapters concerning water (chapter 3 and 4).

In § 35, chapter 5 it is stated that activities included in the appendix must have permissions before they are put into operation or expansion or if any type of change is made in construction or production. Activities related to ash-use are found under section B3 in the appendix “activities for fabrication of road materials” and perhaps also under G “storage, landfill or treatment of waste in general”. But actual road building is not included in the appendix.

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Use of waste ash – effects of the law

The part that concerns MSWI residues is found under the head- line Waste (Affald) and includes §§ 62 and 62b in chapter 9. The section practically states that a survey of collection, transport, treatment and final disposal (including recycling of waste) should be made within the province (amtskommunen). The municipal administrative board (kommunalbestyrelsen) together with the county administrative board

(amtsrådet) should prepare a plan for disposal of waste in the municipality. It should contain information about existing procedures and plans for the above mentioned steps of waste management as well as goals for treatment and disposal methods of the waste. Timetables and financing of the plans should also be included.

4.2.2 The new Danish Environmental Protection Law (LBK n° 753 of 25/08/2001)

The Danish Environmental Protection Law (from 2001 with changes including the first half of 2004) aims to prevent pollution of air, water and soil. It also promotes recycling to avoid waste of natural resources and problems with disposal of waste.

According to § 51, part 7, public authorities are encouraged to extensively use goods and products containing recycled or recyclable materials.

It is stated in § 54a-d that waste projects for minimising the problems with disposal of waste may be given subsidies. This concerns projects for development and information, but also projects for public utility and the companies’ own projects, as long as they have a news value. Also projects based on life cycle assessments and with environmental management systems may take advantage of subsidies according to this paragraph.

The focus in the new ordinance has moved from preparing surveillance and planning of a future waste management towards maintenance of an already existing system, this as the environmental legislation takes a step forward. The former paragraphs about waste and recycling have expanded and now cover two chapters (6 and 7).

4.2.3 Ordinance on recycling of slag and fly ash (BEK n° 586 of 06/12/1983)

The Danish Ordinance on recycling of slag and fly ash (BEK n° 586 of 06/12/1983, operative from 1 Jan. 1984), concerns how slag and fly ash from waste incineration can be used in constructions without permission according to the Environmental

Protection Law (LBK nº 663 of 16/12/1982) § 11, 1 st

part.

It states that bottom and fly ash has to comply with certain quality requirements concerning limits for pH, total alkalinity and heavy metals (Pb, Cd and Hg), all listed in appendix 1 of the same ordinance. It is the producer’s responsibility to see to it that analyses are performed according to appendix 2. If the Environmental board

(Miljøstyrelsen) finds it legitimate, they can decide about exceptions from the above.

The mentioned ashes can in principle be used without permission in streets, roads etc, as long as they are coated with asphalt, concrete or such, if this does not interfere with the ground water and thus drinking-water. It is specified in § 7 that the distance to water supply areas must be 20m and the residues can only be used above the ground water level with a maximum thickness of 1m on average per square meter.

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Use of waste ash – effects of the law

The use of ashes must be communicated to the county administrative board and the local authority four weeks before and shall contain a description of the project. The county administrative board can decide about special conditions or prohibition.

4.2.4 Ordinance on recycling of waste and earth for construction and installation projects (BEK nº 655 of 27/06/2000)

This ordinance is based on environmental risk assessments made with concern for drinking-water. Such assessments were not carried out for the old ordinance (nº 568).

It is expressed in the first chapter, § 1 of this ordinance that it does not cover any type of residues or earth classified as hazardous waste.

The specification of the containments of the bottom ash differs at lot between the old and the new ordinance. In the old appendix 1, only a few parameters are listed but this has been extended in the new appendix 4.

Residues and earth are sorted into three categories in appendix 4. The categories depend on the amount of un-wanted substances (mostly heavy metals) measured as both dry matter and in eluate. The third category is the most polluted, but it is not classified as hazardous, as this already is excluded by the specification of the contents of the ordinance. In the old ordinance, only materials that do not match the set limits are excluded (this could of course coincide with the limits for hazardous waste, but it is not defined as such).

The residues in the first category can be used without permission if they follow the

Environmental Protection Law and other legislation. The same goes for residues in category 2 if they are used on applications mentioned in appendix 2 (streets, roads, squares, ramps, noise protection earthworks, foundations and trenches for pipes and cables) and the ones in category 3 if they are used on applications listed in appendix 3

(streets, roads, foundations and trenches for pipes and cables).

The latter two categories for residues also have to follow the directions for placement in § 6. The residues must (as in the old ordinance) be covered with asphalt, concrete or such and the distance to water supply areas is now 30m (former 20m). It still has to be above the ground water level. A new thing is that applied residues must be clearly marked with a net.

The waste producer must see to it that analyses are performed by an accredited laboratory according to the references in appendix 5. The demand on accredited laboratory is new, and the appendix 5 about analysis is much more specific than the old appendix 2.

The communication with the county administrative board has to contain the same overall information as in the old legislation. Though it is more specified and hence leaves less room for individual interpretations.

Another novelty is that the municipal administrative board (kommunalbestyrelsen) exercises supervision to make sure the applications comply with the law. The sentences for not obeying the law have risen from fines to imprisonment for maximum 2 years.

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Use of waste ash – effects of the law

5. Discussion

5.1 Sweden in focus

5.1.1 The definition of waste

One known problem when making use of waste is the definition of waste products.

According to § 1, chapter 15 in the Environmental Code, waste is defined as “any

object, matter or substance included in a waste category and which the holder intends

to or is obliged to dispose of”. This means that the moment the waste is made use of, it can no longer be defined as waste and becomes a product. But the question is, when does this happen and for how long would the producer be responsible for the waste/product if the law about producer’s responsibility (chapter 15, § 6) was to include such ashes?

Even though the definition of waste also includes waste in its second stage, that is, after incineration, the remaining paragraphs of chapter 15 are not written to fit that type of residues. It is stated that the government has the right to legislate about it and in some cases that the local governments has the same right, but the way today’s law is written it seems almost forgotten.

5.1.2 The power of the supervisory authorities in Sweden

In Sweden, there are no laws considering use of MSWI ashes in applications directly as there are in Denmark. The only obligation is to notify the supervisory authority for consultation (according to § 6, chapter 12 in the Swedish environmental Code) and then the judgement is up to them. If the waste is classified as non-hazardous, it would be ok to use it. The problem is that the residues can not contain any of the substances in appendix 3 of the Ordinance on waste, which means that thousands of substances must be analysed (in Denmark they are limited to 22, see BEK n° 655). An effort is made to remedy this impossibility by developing new methods for facilitating the interpretation of the laws and a report on the subject has recently been published by

Värmeforsk (see Adler et al., 2004). The Swedish Environmental Protection Agency though, does not have any plans on handing out general guide- lines for limits and such as in Denmark, but relies on the duty of investigation of the waste holders

(Christiansson, 2003).

A conclusion that can be drawn from this is that the Swedish system naturally makes it more difficult, from a legal point of view, to use ashes in applications. First of all, each case must be assessed independently and second ly, the authorities must spend much more time interpreting the laws, as they are not as specific as in Denmark. The great demand for human interpretation also causes more heterogeneous assessments in the country as a whole. This of course affects the companies in the ash business and their location could hence be of great importance as the assessments from the different county administrative boards differ a lot. This is also shown by experiences from several examinations of activities for which permits are required (EFO

Energiaskor AB, 1998).

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Use of waste ash – effects of the law

5.1.3 Advantage or disadvantage with a framework law?

This lack of specific legislation causes trouble for the companies. For example the classification system for hazardous and non-hazardous waste in the Ordinance on waste has been shown to be hard to follow amongst other for incineration residues

(Adler et al., 2004).

But it could be delicate for the Swedish authorities to give out guidelines, which they might have to withdraw later. They are to operate according to the precautionary principle and if the y do not find that they have enough information and knowledge they might prefer to wait with handing out anything at all until they find themselves sure. It is a very complex field and as the impact of the ashes on nature depends on so many factors (location, ground type, classification of the ground, water ways, type of application, content of the ash etc) it could be difficult and misleading to do an overall valid law. A framework law can in many cases be beneficial for nature just because of the individual decision made for each case.

A framework law, like the one in Sweden, moves the power from common law to the bureaucracy. This can lead to arbitrary decisions whether to use the ashes or not or no decisions at all. It also decreases the power of the citizens, as the decisions are made by civil servants and not popularly elected politicians. In Denmark the same situation is less likely to occur as the decisions to a greater extent are based on common law.

5.2 Denmark in focus

In Denmark, the law from 1983-1998 was quite clear and specific on what was allowed and wha t was not. The 1983 ordinance also concerned the specific area of use of slag and fly ashes. The legislation was based on a try-out period carried out in the

1970’s and the use started in the 1980’s (Kärrman et al., 2004). During this period the ashes were widely used and the use was encouraged both by legislation and by help for users.

There is still a political will to promote waste projects in Denmark. This is shown by the government subsidies to help stimulate development of processes, methods and products in the field of waste (§ 54d, LBK n° 753 of 25/08/2001) and also by § 51, part 7 (LBK n° 753 of 25/08/2001), which encourage public authorities to use products containing recycled or recyclable materials. Knud Phil (Danish Road

Technical Institute) though, claims that there are no paragraphs or rules that give preferential treatment to use of any material in particular (Kärrman et al., 2004). This could mean that even though the law promotes recycled materials, it is not shown in practice.

It can also be mentioned that the Danish waste management strategy for 2005-2008

(Affaldsstrategi 2005-2008) states that the use of MSWI ashes is meant to increase

(Danish Government, 2003), despite the high usage in the past years (see table 1). The goal for 2008 is set to a usage on 85 % of total MSWI ashes. It is slightly lower than today, as the revision of the ordinance from 2000 (BEK nº 655 of 27/06/2000) is expected to augment the need for landfill of ashes. It will eventually include limits for organic pollutants.

As the concern mainly is for drinking-water, some believe that a future use of ashes could be in question in sites close to the coasts (Pihl in Kärrman et al., 2004), while

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Use of waste ash – effects of the law

others believe that assessments on the marine ecosystems are going to be required first (Hjelmar in Kärrman et al. 2004).

5.3 The influence of legislation

The Danish legislation contains clear limits for pollutants like heavy metals etc, and only a few parameters have to be measured. It is obvious that the situation in Sweden is complicated by the need for measurement of over thousands of substances.

Furthermore, it takes years and years to confirm the impact of time on leakage from

MSWI ashes in constructions, to really establish what is harmful and what is not and thereby what really needs to be measured. This impossible situation contributes to worsen the situation for Swedish ash- use compared to Danish, but as mentioned before there are studies made on the issue (e.g. RVF, 2002).

The new Danish law is going more towards that use of ashes should be assessed in each case, like the current situation in Sweden. This leads to more complex administrative work, which of course prolongs the processes of permissions and thereby decreases the interest for ash recycling, and other materials are more likely to be used. Time is money and as economy is fundamental this aspect becomes decisive.

These changes in Danish legislation towards the Swedish are complicating the use of incineration ashes and shows that legislation like the Swedish causes difficulties for ash use compared to the Danish.

Thereby the minor use of ashes from MSWI in Sweden could be explained by differences in Danish and Swedish legislation.

5.4 Other influencing factors

Along with the legislation other factors could be just as important, like encouragement and help for the contractors and political climate. These factors are not investigated in this study, but some of them will be mentioned in this chapter, as they may influence both use of ashes directly, but also the purpose of the legislation.

In 1987 a fee on 40 DDK/ ton was set on disposal of waste in landfill. The fee has gradually risen with a sharp increase in 1997 and is now on 375 DDK/ton, which is about 460 SEK (Videncenter for affald, 2004). This augmented the use of ashes

(Kärrman et al., 2004). Though the use of slag in road constructions has almost ceased after the ordinance of 2000 in which the limits was tightened and new limits were added along with more lengthy administrative processes. The major reason for this change in legislation was the concern for the ground water, which in Denmark is very important because of its broad use as drinking- water. These new limits were based on environmental risk assessments, which were not made in times of the previous ordinance.

Denmark is often said to have a quite scarce supply of natural resources to use in road constructions and some believe this to be an incitement for a broader use of recycled products. Jørgen Skaarup, AFATEK believes that there is shortage in natural resources that would increase the use of incineration ashes. According to him the society control the market with fees, like the one on landfill (Kärrman et al. 2004). It is hence the economy and not the scarcity that are the leading incitement. Knud Phil on the other hand, does not think that the incineration ashes could solve the scarcity

15

Use of waste ash – effects of the law

problem, as the large contractors seldom are interested as they need great amounts on regular basis (Kärrman et al., 2004). It is very difficult to guarantee the supply in the requested amounts.

The Swedish supply of natural resources for use in road constructions on the other hand, is abundant. This along with the resources in space for landfill decreases the interest for an alternative material in Sweden.

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Use of waste ash – effects of the law

6. Conclusions

Danish legislation is much more detailed than the Swedish. They have special ordinances for the specific purpose of recycling incineration ashes while Sweden has a framework law for the entire environmental legislation. The Swedish choice may benefit the nature as an individual assessment has to be made in each case, but it also moves the power from the people to the civil servants

The problem with the Swedish Ordinance on waste (2001:1063) today is that it makes it almost impossible to use incineration ashes in constructions. The main points are the indistinctness of the waste definition, the large requirement of analyses of hazardous substances and the great need for human interpretation which leads to heterogeneous assessments.

In Denmark, the old BEK n° 586 was very clear and made it easy to use ashes during the 1980’s. The ne w law (LBK n° 753) still expresses a political will to promote waste projects through subsidies and the encouragement for public authorities to use recycled materials. The need for assessments from local authorities is higher and the law will thus be more similar to the Swedish. One remaining difference is that Danish legislation still contains limits for hazardous substances while the Swedish does not.

An upcoming revision of BEK n° 655 (amongst other including limits for organic pollutants), is expected to increase the need for landfill of waste as the demands on ashes rise.

This shows that changes in Danish legislation towards the Swedish complicate the use of incineration ashes. Thereby the minor use of ashes from MSWI in Sweden could be explained by differences in Danish and Swedish legislation.

It might be harder to use the incineration ashes in Sweden but what is it that really counts; the possibility to “hide” the waste masses or keeping the environment sustainable? But then again, what is sustainability; using virgin materials or recycling? Further studies such as life cycle assessments on ashes would be of interest to sort this out.

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Use of waste ash – effects of the law

7. Acknowledgements

Thanks to Pascal Suér for always posing the right questions, my family, Anders,

Kollektivet for putting up with my papers, books and reports lying all over and

Videncenter for affald for the fastest response ever! End, of cors not one tenks only to all secret agent!

8. References

Adler, P., Haglund, J-E, Sjöblom, R., 2004, Vägledning för klassificering av

förbränningsrester enligt Avfallsförordningen (Guidance for classification of residues from combustion and incineration in accordance with the Swedish ordinance for

waste), Report nº 866, Värmeforsk [in Swedish]

ALT-MAT, D7 – final report, (Project coordinator: Dr. J M Reid, Transport Research

Laboratory, UK), Transport RTD Programme of the 4 th

Framework Programme

Alvesson, M., Sköldberg, K., 1994, Tolkning och reflection (Interpretation and

reflection), Studentlitteratur, Lund [in Swedish]

Bertilsson, M. (red), 1995, Rätten i förvandling - jurister mellan stat och marknad

(Law in change – jurists between state and market), Nerenius & Santérus förlag,

Stockholm [in Swedish]

Bogdan, M., 2003, Komparativ rättskunskap (Comparative law), Institutet för rättsvetenskaplig forskning (The Institute of jurisprudential science), Norstedts juridik, Stockholm [in Swedish]

Chrisitansson J., 2003, E-mail contact, Swedish environmental protection agency,

Products and waste unit [in Swedish]

Danish Government, 2003, Affaldsstrategi 2005-2008 (Danish waste management

strategy 2005-2008) [in Danish]

Danish National Agency of Environmental Protection (Miljøstyrelsen), 2003,

Affaldsstatistik 2002 (Waste statistics 2002), Orientering fra Miljøstyrelsen n° 6 2003

[in Danish]

EFO Energiaskor AB (now Svenska Energiaskor AB), 1998, Energiaskor för väg-

och anläggninsändamål – miljöaspekter (Energy ashes for roads and construction –

environmental aspects), EFO Energiaskor AB, Stockholm, Sweden [in Swedish]

Hellspong, L., 2001, Metoder för burkstextanalyser (Methods for utility text

analyses), Studentlitteratur, Lund [in Swedish]

Hydén, H., 1984, Ram eller lag? Om ramlagstiftning och samhällsorganisation

(Framework or law? On framework legislation and organisation of society),

Civildepartementet, Stat - kommunberedningen, Ds C 1984:12 [in Swedish]

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Use of waste ash – effects of the law

Hydén, H., 2001, Rättsregler – en introduktion till juridiken (Legislative rules – an

introduction to law), Studentlitteratur, Lund [in Swedish]

Jensen, L. B., 1997, Indføring i tekstanalyse (Introduction to text analysis), Roskilde

Universitetsforlag, Frederiksberg C. [in Danish]

Kärrman, E., Van Moeffaert, D., Bjurström, H., Berg., M, Svedberg, B., 2004,

Förutsättningar för att askor kommer till användning i vägar (Conditions for making

use of ashes in road constructions), Report nº 849, Värmeforsk [in Swedish]

Rumplmayr, A., 2001, Waste incineration, Management of by-products/residues containing heavy metals and persistent organic pollutants from waste incineration,

UN/ECE Task Force on Management of By-Products and Residues containing Heavy

Metals and POPs, Federal Environment Agency, Austria

RVF (Swedish Association of Waste Management), 2002, Kvalitetssäkring av

slaggrus från förbränning av avfall (Quality assurance of slag gravel from waste

incineration), RVF report 02:10, Malmö [in Swedish]

SGU (Geological Survey of Sweden), 2003, Inventering av restprodukter som kan

utgöra ersättningsmaterial för naturgrus och bergkross i anläggningsbyggande

(Inventory of waste products as replacement materials for natural gravel and crushed

rock in constructions), by SGI (Swedish Geotechnical Institute) 2003-11-17 [in

Swedish]

Sundberg, J., 1982, Om prejudikatens betydelse på förvaltningens område (About the

importance of the precedents in the field of administarion), Förvaltningsrättslig tidskrift (Journal on administrative law) 45 year 1982, Stockholm [in Swedish]

Svenska geotekniska föreningen SGF (Swedish geotechnical association), 2003, Att

bygga med avfall. Miljörättsliga möjligheter och begränsningar för återvinning av avfall i anläggningsområdet (To build with waste. Environment juridical

opportunities and limitations for recycling of waste in the field of construction), SGF report nº 1:2003, Swedish geotechnical association [in Swedish]

Videncenter for affald, 2004, Økonomiske styringsmidler (Economical means of

control), http://www.affaldsinfo.dk/default.asp?side=898 , 2004-08-23 [in Danish]

8.1 Swedish legislat ion

Swedish environmental code (Miljöbalken), SFS 1998:808 [in Swedish]

Ordinance on waste (Avfallsförordningen), SFS 2001:1063 [in Swedish]

Ordinance on waste for landfill (Förordning om deponering av avfall), SFS 2001:512

[in Swedish]

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Use of waste ash – effects of the law

8.2 Danish legislation

Environmental Protection Law (Bekendtgørelse af lov om miljøbeskyttelse) (LBK nº

663 of 16/12/1982 [in Danish]

Environmental Protection Law (Bekendtgørelse af lov om miljøbeskyttelse), LBK n°

753 of 25/08/2001 [in Danish]

Ordinance on recycling of slag and fly ash (Bekendtgørelse om anvendelse af slagger og flyveaske), BEK nº 568 of 06/12/1983 [in Danish]

Ordinance on recycling of waste and earth for construction and installation projects

(Bekend tgørelse om genanvendelse af restprodukter og jord till bygge- og anlægsarbejder) BEK nº 655 of 27/06/2000 (changed trough BEK nº 1106 of

12/12/2003) [in Danish]

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