Tag: WFD

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Porr Bau: The CJEU encourages the circular economy and resource efficiency in its approach of waste law and excavated, uncontaminated soil.

The Court yesterday held in C-238/21 Porr Bau. I reviewed Medina AG’s Opinion here.

The Court notes ia [27] Austria’s contention that, under Austrian law, where materials are excavated or demolished in the course of a construction project, the main purpose of the construction developer is usually to carry out that project without being hindered by those materials, with the result that they are removed from the site in question with the intention of discarding them.  That sentence already holds the key to the eventual judgment in the word ‘usually’.

The Court like, as I noted, the AG, repeatedly refers to Sappi Austria. [47] following from the various elements considered in Sappi Austria (which itself cross-refers to eg CJEU Shell), the national court is instructed to determine whether the excavated materials constituted a burden which that construction undertaking sought to discard, with the result that there would be a risk that that undertaking would discard them in a manner likely to cause harm to the environment, particularly by dumping them or disposing of them in an uncontrolled manner. [49]:

In the present case, it is apparent from the information before the Court that, even before the excavation of the materials at issue in the main proceedings, local farmers had made an express request for the supply of such materials. After appropriate construction projects had been found, making the requested excavated materials available, that request, it is stated, led to a commitment by Porr Bau to make those excavated materials available, alongside an agreement under which that undertaking would carry out, by means of those materials, the works to adapt and improve the land and cultivation areas duly identified. Such factors, if proven which it is for the referring court to determine, do not appear to be such as to establish the intention of the construction undertaking concerned to discard those materials.

The Court then leaps to an assessment of whether the soil may be considered a by-product under Article 5 WFD, in a logical sequence which I still do not quite get: [50]

It is, therefore, necessary to examine whether the excavated materials at issue in the main proceedings must be classified as a ‘by-product’ within the meaning of Article 5(1) of Directive 2008/98.

It is the ‘therefore’ which I do not understand. If a party does not ‘discard’ the materials which the Court seems to suggest is the case here, then the ‘waste’ definition is not met. There is then no need to consider whether the materials might be ‘by-products’, for this would mean that if the scenario does not meet with the A5 ‘by-products’ definition, they might nevertheless have to be regarded as waste despite the earlier determination of there not being an element of discarding.

The Court nevertheless assesses all A5 criteria leading it strongly to suggest that these products are indeed by-products. It repeats in my view its fallacy of the waste-by products relationship in the dictum of the judgment:

Point 1 of Article 3 and Article 6(1) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives,

must be interpreted as precluding national legislation under which uncontaminated excavated materials, which, pursuant to national law, are in the highest quality class,

–      must be classified as ‘waste’ where their holder neither intends nor is required to discard them and those materials meet the conditions laid down in Article 5(1) of that directive for being classified as ‘by-products’, and

–      only lose that waste status when they are used directly as a substitute and their holder has satisfied the formal criteria which are irrelevant for the purposes of environmental protection, if those criteria have the effect of undermining the attainment of the objectives of that directive.

It also rebukes the Austrian regime from the point of view of end of waste status, dismissing some of the Austrian requirements for a material to be able to reach that status, as irrelevant and counter-productive to the objectives of the WFD. These requirements are said to be “formal criteria (in particular record-keeping and documentation obligations) which have no  environmentally relevant influence” however neither the CJEU nor the referring court give any further detail.

This is a first chamber, in a five -judge composition. I don’t think it has definitively solved the relationship between ‘waste’ and ‘by-products’.

Geert.

EU Waste law, 2nd ed 2015, 1.20 ff.

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Porr Bau. Medina AG on waste and end-of-waste status of excavated soil.

Medina AG’s end June Opinion in C-238/21 Porr Bau GmbH v Bezirkshauptmannschaft Graz-Umgebung will delight waste lawyers for the case once again evolves around the definition of ‘waste’ as applied to excavated soil. Statute to be interpreted is the WFD or the Waste Framework Directive 2008/98. CJEU SAPPI is a recent judgment  often referred to by the AG.

Porr Bau, the applicant in the main proceedings, is a construction undertaking established in Austria. In July 2015, certain local farmers asked it to supply them, against payment, with excavated soil and to distribute it over their properties. The purpose of the farmers’ request was to level their agricultural land and improve their cultivation areas, thereby increasing yields. Porr Bau applied to the relevant authorities for a statement that the soil was not to be considered waste so as it could avoid a number of taxes. That authority disagreed and also held that the soil, which it considered to be waste, had not yet reached end-of-waste status.

The AG (36) opines that it should not be assumed that all excavated soil by a construction undertaking is by default to be discarded, and that it is difficult to conclude that, under circumstances such as those of the present case, the intention of a construction undertaking is to discard excavated soil that has been carefully selected, subjected to a quality control and supplied as uncontaminated top-quality material in order to attend to a specific request from local operators in need of that material. He also suggests, less convincingly in my view, (38 ff) that such soil may be considered a by-product of the construction sector. 

Should he not be followed on the waste definition issue, the AG suggests and he is right in my view that national law must not deny end-of-waste status until the holder fulfils certain formal requirements with no environmental relevance such as record-keeping and documentation obligations.

Geert.

EU Waste law, 2nd ed 2015, 1.20 ff.

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Regione Veneto v Plan Eco. CJEU restricts waste classification shopping for mixed municipal wastes.

Judgment in Case C-315/20 Regione Veneto v Plan Eco Srl Is a classic case discussing the scope for Member States to restrict transboundary movements of waste under the Waste Shipments Regulation 1013/2006 (‘WSR). As summarised (2) by Advocate General Rantos, it raises the question whether the classification, in one Member State, of mixed municipal waste in accordance with the European Waste Catalogue (EWC), following mechanical treatment which has not substantially altered the original properties of that waste, interferes with the application of the EU legislation on the shipment of that waste to another Member State.

Transport company Plan Eco submitted to the Veneto Region a request for prior consent to the shipment of 2000 tonnes of mixed municipal waste produced in Italy by Futura Srl to a cement factory in Slovenia (cement kilns are a classic destination for waste for combustion). That waste, of which parties agreed it was not hazardous, was treated mechanically by Futura, with a view to its use in co-combustion, and classified by Futura, after that treatment, under code 19 12 12 (Bottom ash and slag (incinerator bottom ash)) of the EWC. The Veneto Region suggested the waste was mixed municipal waste (code 20 03 01 EWC) and objected to shipment on the grounds that national waste management plans prescribe that mixed municipal waste be recovered in one of the nearest appropriate installations to the place of its production or collection. A Veneto Region facility had  signalled it had capacity to deal with the waste. A classic scenario therefore of a region wanting to keep the waste within its borders so as to satisfy the waste need for local installations.

The Waste Shipments Regulation had, controversially, inserted Article 3(5) which provides that shipments of ‘mixed municipal waste (waste entry 20 03 01) collected from private households, including where such collection also covers such waste from other producers, to recovery or disposal facilities’ are, in accordance with that regulation, subject to the same provisions (Article 11’s principles of self-sufficiency and proximity in particular) as shipments of waste destined for disposal: that means, it gives national and regional authorities more room for manoeuvre to refuse shipments than they would have for waste destined for recovery operations. The Court had earlier (Case C-292/12 Ragn-Sells) confirmed that applicability of Article 11 WSR in principle, without properly addressing the free movement of goods and free movement of services implications.

[27] the Court turns, frustratingly (for in my view binding statutory law should be included in the provisions proper of secondary law, not in their recitals) to Recital 33 of the Waste Framework Directive 2008/98, to hold that mixed municipal waste as referred to in Article 3(5) WSR remains mixed municipal waste even when it has been subject to a waste treatment operation that has not substantially altered its properties. Veneto’s room for refusal therefore widens.

The judgment in this case takes on a new meaning within the context of Brexit, for quite a few of these waste streams have the United Kingdom as their ultimate destination, hence enjoying principled free movement of goods under WTO and UK-EU Trade and Co-operation Agreement rules.

Geert.

 

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Safety-Kleen. On the definition of waste and probably not the best use of the Shell authority.

Decisions on the definition of waste under the EU waste framework Directive 2008/98 inevitably involve quite a bit of factual analysis and Safety-Kleen UK Ltd v The Environment Agency [2020] EWHC 3147 (Admin)  is no exception.

Safety-Kleen UK Ltd, the Claimant, provides specialist mechanical parts washers, containing kerosene, to businesses, such as those undertaking automotive repairs and to small engineering businesses. They are used for cleaning the parts of heavy oil, grease, paint, ink, glues and resins. The machines enable a cleaning process by physical means, such as scrubbing and automatic agitation with kerosene, and by kerosene acting as a solvent. Safety-Kleen collects the used kerosene from its customers in drums and replaces it with cleaned kerosene. Safety-Kleen takes the drums of used kerosene back to a depot, empties them into a sump or reservoir and then rinses out the drums with used kerosene from the reservoir, to which the now re-used kerosene returns. From there, the re-used kerosene is pumped into the “dirty” tanks, whence it is tankered away to a different company for a specialised industrial waste recovery or regeneration process, by which the dirty kerosene is distilled and cleaned. The cleaned kerosene is returned to a Safety-Kleen depot, and placed into the cleaned drums.

There was no issue but that the dirty kerosene, when it reached the “dirty” tanks at the depot was “waste”, within the WFD, and remained waste when transferred to the depot for distillation and waste until it was cleaned for re-use by customers. Until 2017, there had been no issue between Safety-Kleen and the Environment Agency but that the used kerosene was waste when it was collected by Safety-Kleen from its customers’ premises. However, in 2017, Safety-Kleen concluded that the kerosene did not become waste until it had been used for the cleaning of the drums back at the depot, and was sent to the “dirty” tanks, to await removal for recovery or regeneration. The Agency thought otherwise.

Ouseley J discussed the classics with particular focus on Arco Chemie and  Shell, and at 50-51 a rather odd deference even in judicial review, to what the regulator itself held. The EU definition of waste is a legal concept; not one to be triggered by the Agency’s conviction. Nevertheless he reaches his ‘own judgment’ (52) fairly easily and, I believe on the basis of the facts available, justifiably, that the kerosene is being discarded by the holder, it being ‘indifferent to what beneficial use Safety-Kleen may be able to make of it back at the depot’ (at 56).

Claimant’s reliance on Shell seemed not the most poignant, seeing as the case here is not one of reverse logistics but rather one of truly spent raw materials on their way to perhaps receiving a second life following treatment.

Geert.

Handbook of EU Waste law, OUP, second ed, 2015.

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Your regular waste law teaser. Upper Tribunal finds in Devon Waste Management that ‘Fluff’ is not being discarded.

Update 7 May 2021 the Court of Appeal ([2021] EWCA Civ 584) has, justifiably in my view, overturned. Note ia the discussion of language and the meaning of ‘discard.

In [2020] UKUT 0001 (TCC) Devon Waste Management, Biffa and Veolia v Inland Revenue, the tax and chancery chamber of the Upper Tribunal discussed the classification of ‘fluff’ as waste. The fluff at issue is not the type one may find in one’s pockets (or, dare I say, belly button). Rather, the “black bag” waste material that is disposed of at landfill sites and used by operators as a geomembrane liner and geotextile protection layer.

As Constantine Christofi at RPC reports, (see also UKUT at 22) the first tier tribunal – FTT had earlier found that that the use made of the material disposed of was only an indicator of whether there was an intention to discard the material, and that use was not conclusive in determining whether it was discarded. In the view of the FTT, the use of such material as a protective layer was not sufficient to negate an intention to discard it as it was destined for landfill in any event and because there was no physical difference between that material and the other general waste disposed of at the landfill sites. The FTT therefore held that the disposal of the waste was a taxable disposal by way of landfill: not everything that could be characterised as “use” was sufficient to negate an intention to discard.

The FTT had (UKUT does not at all) considered EU law precedent. UKUT relied on English authority and overturned the FTT’s finding on the basis of the FTT having fallen into the “once waste, always waste” trap (at 74). In deciding like this, UKUT itself in my view may have fallen into the alternative  ‘once someone’s waste not that of another’ trap. At 52: ‘An owner of material does not discard it, within the meaning of the statutory provisions, if he keeps and uses it for his own purposes’. Making use of materials for the site operator’s purposes connected with regulatory compliance, when they are deposited in the cell, is use that is necessarily inconsistent with an intention to discard the materials.

This arguably is the kind of single criterion test which when it comes to (EU and UK) waste law has been rejected.

Geert.

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Prato Nevoso Termo Energy. The CJEU on end of waste, precaution and renewable energy.

In C‑212/18 Prato Nevoso Termo Energy the CJEU held on the not always straightforward concurrent application of the Waste Framework Directive (WFD) 98/2008 and the various Directives encouraging the uptake of renewable energy. It referred i.a. to the circular economy and to precaution.

On the face of it the economic and environmental benefits of the case may seem straightforward. Prato Nevoso operates a power plant for the production of thermal energy and electricity. It applied for authorisation to replace methane as the power source for its plant with a bioliquid, in this case a vegetable oil produced by ALSO Srl, derived from the collection and chemical treatment of used cooking oils, residues from the refining of vegetable oils and residues from the washing of the tanks in which those oils were stored. ALSO has a permit to market that oil as an ‘end-of-waste’ product within the meaning of relevant Italian law , for use in connection with the production of biodiesel, on condition that it has the physico-chemical characteristics indicated in that permit and that the commercial documents indicate ‘produced from recovered waste for use in biodiesel production’.

Prato Nevoso was refused the requested authorisation on the ground that the vegetable oil was not included in a relevant Italian list, which sets out the categories of biomass fuels that can be used in an installation producing atmospheric emissions without having to comply with the rules on the energy recovery of waste. The only vegetable oils in those categories are those from dedicated crops or produced by means of exclusively mechanical processes.

The argument subsequently brought was that the refusal violates Article 6 WFD’s rules on end-of-waste, and Article 13 of the RES Directive 2009/28. That Article essentially obliges the Member States to design administrative procedures in such a way as to support the roll-out of renewable energy.

The CJEU first of all refers to its finding in Tallina Vesi that Article 6(4) of Directive 2008/98 does not, in principle, allow a waste holder to demand the recognition of end-of-waste (EOW) status by the competent authority of the Member State or by a court of that Member State. MSs have a lot of flexibility in administering EOW in the absence of European standards. That the use of a substance derived from waste as a fuel in a plant producing atmospheric emissions is subject to the national legislation on energy recovery from waste, is therefore entirely possible (at 39). A13 of the RES Directive has no impact on that reality: that Article does not concern the regulatory procedures for the adoption of end-of-waste status criteria.

Nevertheless, the MS’ implementation of the RES Directives must not endanger the attainment of the WFD, including encouragement of the circular economy etc. and likewise, the WFD’s waste hierarchy has an impact on the RES’ objectives. A manifest error of assessment in relation to the non-compliance with the conditions set out in Article 6(1) of Directive 2008/98 could be found to be a MS violation of the Directive.

At 43: ‘It is necessary, in this case, to examine whether the Member State could, without making such an error, consider that it has not been demonstrated that the use of the vegetable oil at issue in the main proceedings, in such circumstances, allows the conclusion that the conditions laid down in that provision are met and, in particular, that that use is devoid of any possible adverse impact on the environment and human health.’ At 44:  ‘It is for the national court, which alone has jurisdiction to establish and assess the facts, to determine whether that is the case in the main proceedings and, in particular, to verify that the non-inclusion of those vegetable oils in the list of authorised fuels results from a justified application of the precautionary principle.’

At 45 ff the CJEU does give a number of indications to the national judge, suggesting that no such infringement of the precautionary principle has occurred (including the reality that specific treatment and specific uses envisaged of the waste streams, has an impact on their environmental and public health safety). At 57: It must be considered that the existence of a certain degree of scientific uncertainty regarding the environmental risks associated with a substance — such as the oils at issue in the main proceedings — ceasing to have waste status, may lead a Member State, taking into account the precautionary principle, to decide not to include that substance on the list of authorised fuels’.

An important judgment.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

 

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AS Tallinna Vesi: The CJEU on sludge and end of waste.

The Court held today in C-60/18 AS Tallinna Vesi and agrees with its AG re the possibility of national criteria, yet unlike Ms Kokott does not see an obligation in the WFD for the Member States to have a proactive vetting and decision procedure. It does not give much specification to its reasoning, other than a reference to the ‘circumstances of the case’. This may refer, but I am speculating, to applicant wanting the authorities generally to sign off on its production method, rather than requesting an opinion on an individual stream. In other words: fishing expeditions must not be entertained.

If my interpretation is right it underscores what I have remarked elsewhere on the regulatory process, for instance in the case of circular economy: in a grey regulatory zone, we need to think of mechanisms to assist industry in embracing environmentally proactive solutions, rather than driving them into incumbent technologies or worse, illegality. The CJEU’s view is in line with Williams J in Protreat – however I do not think it is the right regulatory path as I also suggest (in Dutch) here.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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French end of waste criteria. Undoubtedly no end to the controversy, though.

Thank you Paul Davies for signalling the recent French decree on end of waste – EoW criteria. Such national initiatives are seen by some as being a sign of the failure of relevant provisions of EU Waste law (which suggest the EU should be developing such criteria). An alternative reading may suggest that national initiatives may be better places to read the technical and environmental and pubic health safety requirements at the local level, potentially preparing the way for EU criteria. Relevant procedures under EU law arguably are not the most efficient for the initial development of this type of detailed instrument, as the example of plastics and REACH also shows.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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AS Tallinna Vesi: Kokott AG on sludge and end of waste.

Case C-60/18 AS Tallinna Vesi could have been, as Advocate General Kokott noted yesterday, about much more. In particular about the exact scope of the Waste Framework Directive’s exclusion for sewage sludge and the relation between the WFD, the waste water Directive and the sewage sludge Directive. However the referring court at least for the time being sees no issue there (the AG’s comments may trigger the applicant into making it an issue, one imagines) and the AG therefore does not entertain it.

Instead the case focusses on whether waste may no longer be regarded as such only if and after it has been recovered as a product which complies with the general standards laid down as being applicable to it? And on whether, alternatively, a waste holder be permitted to request that the competent authorities decide, on a case-by-case basis and irrespective of whether any product standards are in place, whether waste is no longer to be regarded as such.

Ms Kokott emphasises the wide margin of discretion which the Member States have in implementing the Directive. End of waste (‘EoW’) criteria at the national level (in the absence of EU criteria) may not always be warranted particularly in the context of sewage sludge which is often hazardous. However precisely that need for ad hoc assessment should be mirrored by the existence of a procedure for waste operators to apply ad hoc for clarification on end of waste status.

Geert.

Handbook of EU Waste law, 2nd ed. 2015, OUP, 1.166 ff and 1.189 ff.

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Thou shallt address landfills of waste tyres. The CJEU in EC v Slovenia.

It is too readily assumed by many that general Member States’ obligations under the EU’s environmental laws are context only, and not really legally binding. In my Handbook of EU Waste law however I report on a number of cases where the European Court of Justice has rebuked Member States for having failed to take measures to attain some of these general objectives. These cases relate to waste law, evidently, however in other cases the Court’s case-law extends this to EU environmental law generally.

One can now add C-153/16 EC v Slovenia to this list. Slovenia had attempted to address the continuation of waste tyres storage and processing at an abandoned quarry, in contravention of an expired environmental permit. The company dug in its heels, ia via prolonged litigation, with storage and processing continuing.

The Court of Justice found that Slovenia had infringed the general duty of care provisions, as well as enforcement obligations of the landfill Directive and the waste framework Directive. (On the related issues with respect to hazardous waste, the Court found the Commission’s infringement proceedings wanting).

Not all that glitters is gold, of course. The direct effect of these general duty of care provisions remains an issue, as does the absence, arguably, in EU law of a duty of care directly imposed upon waste holders and processors. For that, citisens need to pass via national law wich as current case shows, is not always up to scratch.

Geert.

 

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