When is fly ash a waste? Dutch Raad van State in Mebin

In Mebin, the Dutch Raad van State (the High court in administrative law matters – in casu appeal against permit conditions) reviews the application of the waste definition to fly ash (a residue of combustion).

The most important characteristic of the EU definition of waste under Directive 2008/98, is that it does not define waste. Not really anyway. For a succinct review of the issues in defining waste, see my short piece in ELNI review 2006 here and exactly 10 years earlier my Bypass article in EBLR here.  As reported earlier in the blog, the definition of waste remains problematic in a number of stubborn cases.

The Raad van State in my view adopts a perfectly sensible approach which, in Arco Chemie fashion, insists on proper review of the facts of the case and on the ‘intentional’ element in waste definition issues having to be reviewed for each of the market chain participants. Whence

– it rejects the classification as waste of fly ash originating in electricity generation, without the authorities having carried out a duly justified factual analysis [was the production process fine-tuned so as to ensure the (inevitable) production of fly ash but with specific technical parameters], and

– it opposes the view that waste generated can only be considered as having been fully ‘recycled’ (hence losing its qualification as ‘waste’) until it has been used in the final place of destination. Rather, the intermediate pimping so to speak of the fly ash to make it suitable for use in Mebin’s production process, renders the waste into a resource or secondary raw material.

Geert.

 

 

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  1. #1 by Ari Ekroos on 11/10/2012 - 5:56 PM

    Interesting case.
    The Waste directive did not help much, though having by-product and end-of-waste articles (5 and 6). There are still hard cases related to definition (one of them related to mixing different residuals – “wastes” – in order to make new procuct).
    We wrote on horse manure issue 2 years ago (see RELP 2/2010: http://www.lexxion.de/en/verlagsprogramm-shop/details/1920/72/relp/relp-2/2010/mitigating-climate-change-by-using-horse-manure-as-an-energy-source-in-finland.html). Situation is still the same here in Finland, but I have heard rumours that in some of the member states burning as such (in fact briquets) would be ok.

    • #2 by Geert Van Calster on 11/10/2012 - 8:14 PM

      Dear Ari,
      I had not seen the horse manure article!, must look it up tomorrow. Unrelated (other than it being a climate change issue): many in Australia suggest that culling its Camel population (currently 1 million and doubling every 9 years) would seriously assist the country’s climate change mitigation efforts.
      I remember once advising on the export of Flemish manure to Belarus: the waste shipments Regulation and the Basel Convention caused one or two headaches…
      Best, Geert.

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