Tag: Hazardous waste

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Mirror entries in EU (hazardous) waste law. Campos Sánchez-Bordona AG in Verlezza et al. I.a. a useful reminder of the true meaning of precaution.

Update 31 March 2019 the CJEU agrees with its AG. The holder of the waste is required to carry out the relevant internationally recognised tests. Precaution implies that only if after such test which has to be as complete as possible, the presence of hazardous characteristics cannot be clearly established, the hazardous character must be presumed.

Joined Cases C-487/C-489/17 Alfonso Verlezza et al, in which Campos Sánchez-Bordona AG opined  last week, (no version in English available) is one of those rather technical EU environmental law cases which for that reason risks being overlooked by many. This is even more the case in EU waste law. Many of its provisions are subject to criminal law sanctions, hence encouraging defendants to take its application to the most intricate of corners so as to avoid a criminal conviction.

Verlezza et al concerns the implementation by Italy of a notoriously tricky part of EU waste law: the determination of wastes as being ‘hazardous’. Clearly, these wastes are subject to a range of stricter measures than ordinary wastes. Interestingly, while these wastes are more dangerous than ordinary wastes, they are often also more attractive to waste industries: for as secondary raw materials they may have high value (one can think of cartridges, batteries, heavy metals).

Protracted to and fro at the time between the European Commission and the Member States plus Parliament (which I explain in relevant chapter of my Handbook of EU Waste law; which I am pleased to note the AG refers to), eventually led to a regime with two or if one likes three categories: wastes considered per se hazardous; and wastes which may be considered hazardous or not, depending on whether or not they display hazardous properties in the case at issue (hence three categories: hazardous per se; non-hazardous and hazardous in concreto). This latter category are the so-called ‘mirror entries’: wastes originating from the same source which depending on the specifics of the case, may be hazardous or not.

Wastes produced by households (‘domestic waste’) are not considered hazardous. However the AG emphasises correctly that this exemption from the hazardous waste regime (via Article 20 of the waste framework Directive, 2008/98) does not apply to the case at issue, given that the ‘domestic’ wastes concerned have already been mechanically sorted. It is the qualification of the waste residues following sorting that needs to be resolved.

The mirror entries are the result of heated debate between the Institutions. The EC was hesitant to provide a binding list given the need for individual assessment; Council and EP were looking for regulatory certainty. In the end, Member States may (indeed have to)  consider waste as hazardous when the material displays one or more of the hazardous properties listed in Annex to the EU list of waste. This also requires the Member States to issue a procedure which guides this assessment.  It is the specifics of the Italian procedure (producers have to classify specific streams of waste as either hazardous or not; they have to carry out the necessary scientific tests; they are bound by the precautionary principle) which have triggered the case at issue.

At 19 the AG refers to the discussion in Italian scholarship: one part among others on the basis of the precautionary principle defends a reversal of the burden of proof: waste in the mirror entries is considered hazardous unless industry proves its non-hazardous characteristics; the other part proposes that scientific analysis needs to determine hazardousness in each specific case (quoting the sustainable development of the sector in support).

The AG opines that the Italian modus operandi needs to be given the green light, among others referring to the recent April 2018 EC guidance on wastes classification and the criteria defined in the Directive, which render a waste hazardous: producers of waste are perfectly capable indeed in the Directive’s set-up have to assess the hazardous character of the waste and the Italian regulations are a capable way of ensuring this.

The defendants’ ultimate argument that the precautionary principle should allow them to consider waste as hazardous even without such assessment, also fails: scientific assessment is able to determine a substance’s hazardous characteristics.  Defendants’ approach would lead to all mirror entries being defined as hazardous. The Directive’s principle of cost benefit analysis ensures this does not lead to excessive testing-  proportionate testing for properties will do the job. (It may be surprising that the defendants make this argument; but remember: in a criminal procedure all arguments are useful to try and torpedo national law or practice upon which a prosecution is based; without a valid law,, no prosecution).

This latter part of the Opinion, related to the precautionary principle, is a useful reminder to its opponents (who came out in force following this summer’s mutagenesis ruling; for excellent review of which see KJ Garnett here), of the principle’ true meaning.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, Chapter 2, Heading 2. ff (to which the AG refers).

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Judgment in Lapin elinkeino: even hazardous waste may be returned as secondary raw materials.

The ECJ has confirmed in its judgment of 7 March (Thursday last) that hazardous waste may be returned as secondary raw materials, and that REACH may play an important role in this respect. It agreed with all relevant suggestions made by Kokott AG, which I reported on earlier. Good news for sustainable materials management.

Geert.

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Even hazardous wastes can be returned as products after recovery – Kokott AG in Lapin elinkeino. REACH comes to the rescue of Waste.

Kokott AG opined end of December in Lapin elinkeino, Case C-358/11 (at the time of writing this post, the English version of the Opinion was not yet available however plenty of other language versions are). I have included the referred questions below. The case involves the use, in accordance with Finnish law, of wood, formerly in use as telephone posts, as underlay and duckboards for a hiking trail in a nature reserve.For that purpose, it is CCA-treated (chromated copper arsenic: a mixture of chromium, copper and arsenic).

The REACH Regulation exempts waste: ‘To ensure workability and to maintain the incentives for waste recycling and recovery,
wastes should not be regarded as substances, preparations or articles within the meaning of this Regulation.’ At the time of adoption of the Regulation, this  led to the rather interesting development of clients seeking arguments to have their products considered waste (until then not a preferred option), for compliance under the Waste regulations was /is perceived as less onerous than REACH.

The Waste framework Directive, in the revised 2008 version, includes a specific regime in Article 6 for end-of-waste criteria. It is worth citing it here in full:

1. Certain specified waste shall cease to be waste within the meaning of point (1) of Article 3 when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with the following conditions:

(a) the substance or object is commonly used for specific purposes;

(b) a market or demand exists for such a substance or object;

(c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and

(d) the use of the substance or object will not lead to overall adverse environmental or human health impacts.

The criteria shall include limit values for pollutants where necessary and shall take into account any possible adverse environmental effects of the substance or object.

2. The measures designed to amend non-essential elements of this Directive by supplementing it relating to the adoption of the criteria set out in paragraph 1 and specifying the type of waste to which such criteria shall apply shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 39(2). End-of-waste specific criteria should be considered, among others, at least for aggregates, paper, glass, metal, tyres and textiles.

3. Waste which ceases to be waste in accordance with paragraphs 1 and 2, shall also cease to be waste for the purpose of the recovery and recycling targets set out in Directives 94/62/EC, 2000/53/EC, 2002/96/EC and 2006/66/EC and other relevant Community legislation when the recycling or recovery requirements of that legislation are satisfied.

4. Where criteria have not been set at Community level under the procedure set out in paragraphs 1 and 2, Member States may decide case by case whether certain waste has ceased to be waste taking into account the applicable case law. They shall notify the Commission of such decisions in accordance with Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services [24] where so required by that Directive.

Intriguingly, Article 6(4) [Member States deciding end-of-waste status on a case-by-case basis in the absence of Union harmonisation], does not refer to the four criteria which Article 6(1) puts forward as binding in the event of Union harmonisation on same. In contrast with the Commission, the AG suggests that this difference has to be taken at face value. The only benchmark for the Member States is the case-law of the ECJ on the end-of-waste status and on the very definition of waste. Once a Member States decides on that basis that even dangerous waste no longer is waste (or indeed never was waste), it can allow the use of such substance under application of relevant product legislation (here: the rules on CCA-treated wood under REACH).

Importantly, therefore, the AG suggests that dangerous waste can be returned to use as products, in the case at issue under discipline of REACH, in accordance with national law. Member States need not wait for Union criteria to be developed. As suggested therefore in excellent analysis by maitre Enckell, REACH comes to the rescue of the Member States wishing to encourage the return of even hazardous wastes to product status (lest of course the ECJ will see this differently). In the alternative, product use explicitly allowed under REACH for virgin material, would not so be allowed for recovered material. That would not be very sustainable.

Geert.

Questions referred

Questions referred
1    Is it possible to deduce directly from the fact that waste is classified as dangerous waste that the use of such a substance or object leads to overall adverse environmental or human health impacts within the meaning of Article 6(1)(d) of Waste Directive 2008/98/EC? May hazardous waste also cease to be waste if it fulfils the requirements laid down in Article 6(1) of Waste Directive 2008/98/EC?
2.    In interpreting the concept of waste and, in particular, assessing the obligation to dispose of a substance or an object, is it relevant that the re-use of the object which is the subject of the assessment is authorised under certain conditions by Annex XVII as referred to in Article 67 of the REACH Regulation? If that is the case, what weight is to be given to that fact?
3.    Has Article 67 of the REACH Regulation harmonised the requirements concerning the manufacture, placing on the market or use within the meaning of Article 128(2) of that regulation so that the use of the preparations or objects mentioned in Annex XVII cannot be prevented by national rules on environmental protection unless those restrictions have been published in the inventory compiled by the Commission, as provided for in Article 67(3) of the REACH Regulation?
4.    Is the list in Point 19(4)(b) in Annex XVII to the REACH Regulation of the uses of CCA-treated wood to be interpreted as meaning that that inventory exhaustively lists all the possible uses?
5.    Can the use of the wood at issue as underlay and duckboards for a hiking trail be treated in the same way as the uses listed in the inventory referred to in question 4 above, so that the use in question may be permitted on the basis of Point 19(4)(b) of Annex XVII to the REACH Regulation if the other conditions are met?
6.    Which factors are to be taken into account in order to assess whether repeated skin contact within the meaning of Point 19(4)(d) of Annex XVII to the REACH Regulation is possible?
7.    Does the word ‘possible’ in the point mentioned in question 6 above mean that repeated skin contact is theoretically possible or that repeated skin contact is actually possible to some extent?