Posts Tagged WFD

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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Slowdown of recovery is not ‘environmental damage’ under the EU Directive. The High Court in Anglers’ Society.

R (Seiont, Gwyrfai and Llyfni Anglers’ Society) v Natural Resources Wales has a long history. That’s not meant to be a fairy tale opening: it actually has legal relevance.

Article 2(2) of the environmental liability Directive provides the following definition: “ ‘damage’ means a measurable adverse change in a natural resource or measurable impairment of a natural resource service which may occur directly or indirectly.” ‘Environmental damage’ is further defined in Article 2(1), providing a variety of layers which need ‘unpacking’ in the words of Hickinbottom J. He concludes, after lengthy and instructive analysis, that  “damage” as defined in article 2(2) of the EL Directive is restricted to a deterioration in the environmental situation, and does not in addition include the prevention of an existing, already damaged environmental state from achieving a level which is acceptable in environmental terms – or a deceleration in such achievement. Since “environmental damage” is a subset of “damage”; “environmental damage” necessarily has that same restriction.

The judgment is very considered and there is not much point in repeating it here: please refer to the text for a thorough read on the ELD, the water framework Directive, habitats and much more.

Geert.

 

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Italcave confirms shortcomings to ‘household’ /’domestic’ /’municipal’ waste definition

In 2008, the Waste Framework Directive was amended (Directive 2008/98) among others to give Member States more leeway in restricting exports of municipal waste.

Article 16(1) WFD now provides

1. Member States shall take appropriate measures, in cooperation with other Member States where this is necessary or advisable, to establish an integrated and adequate network of waste disposal installations and of installations for the recovery of mixed municipal waste collected from private households, including where such collection also covers such waste from other producers, taking into account best available techniques.

By way of derogation from Regulation (EC) No 1013/2006, Member States may, in order to protect their network, limit incoming shipments of waste destined to incinerators that are classified as recovery, where it has been established that such shipments would result in national waste having to be disposed of or waste having to be treated in a way that is not consistent with their waste management plans. Member States shall notify the Commission of any such decision. Member States may also limit outgoing shipments of waste on environmental grounds as set out in Regulation (EC) No 1013/2006.

The waste at issue is also known as ‘household’ or ‘domestic’ waste. It is not precisely defined in the WFD, although there are various indications pointing to the origin of the waste being relevant: municipal waste is waste collected from private households. (Things are confused by waste collected from industry sometimes being assimilated with ‘household’ waste, namely when its composition is considered ‘similar’; here of course confusion enters. For domestic waste itself would seem to be defined not by its composition but rather by its origin (even though that origin often betrays its composition)).

In Italcave, the Italian Council of State held on the categorisation of waste originating from shredding, sifting and packaging plants (also known as STIR). Thank you to Lucciano Butti for alerting me to the case.

This is where my input ends, I fear: I should like to hear from those possessing knowledge of Italian beyond my limited, summer holiday driven capabilities (and shall update this posting accordingly). From what I understand, the treatment of the waste was relevant in determining the issue however nature of that treatment, and the wastes’ origin and composition is at this stage not entirely clear to me.

Geert.

 

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JÄÄSKINEN AG in Shell: Re-blended fuel was discarded. Waste status of off-spec and reverse logistics products remains uncertain.

I have reported earlier on the importance of the judicial review in Shell. JÄÄSKINEN AG this morning opined that A consignment consisting of fuel which the vendor takes back and processes through blending with a view to placing it back on the market, because the fuel had been unintentionally mixed with a substance and therefore no longer satisfies safety requirements so that it could not be stored by the buyer pursuant to an environmental permit, must be considered as waste

The Advocate-General’s Opinion was very much focused on the factual aspects of the case. Disappointingly, he did not much entertain many of the criteria suggested by the court at Rotterdam – for reasons of judicial economy, one imagines. However Advocate Generals do often get carried away on the analysis. A pitty that did not happen here. Core to the AG’s Opinion is his finding (at 25) that

re-blending of the fuel before its resale, in my opinion, points towards an intention to discard it, and the act of re-blending itself amounts to recovery;

With respect to the contractual context, the AG notes (at 26) that the fact that the contaminated fuel was ‘off-spec’ in relation to the specifications appearing in the contract between Shell and Carens is irrelevant to determining whether it amounts to waste under mandatory EU waste law, the latter being of a public law nature and not subject to the will of the parties to a contract. 

While I am of the view that the contract cannot singlehandedly determine the qualification or not as waste, its (seemingly at least) outright dismissal by the AG as a factor to consider (at least in this para), is disappointing. It is not, I submit, in line with the WFD. Neither arguably is the link which the AG makes at 14 (and in his final Opinion) between an environmental permit, and the qualification of the substance as waste. Ad absurdum: a stolen tanker full of diesel is left for re-sale in a rented garage. The garage has not been given a permit for storage of diesel. Yet the diesel has not turned into waste.

With respect to the overall debate on reverse logistics, there is an interesting section in the Opinion at 37: ‘a consignment consisting of ULSD mixed unintentionally with MTBE and having as a result a flame point lower than allowed for diesel sold from the pump becomes waste within the meaning of Article 1(1)(a) of Directive 2006/12 at the point of contamination, and remains as such up to its recovery by blending or by its commercial re-classification in a manner that is objectively ascertainable.‘[emphasis added by me]. This latter part does open room for products re-sent across the logistics chain not to be considered waste, however there needs to be some kind of ‘objectively ascertainable’ re-classification: this requires some thinking in terms of compliance.

The AG makes the following comparison at 40:

I would like to close by emphasising that mere failure to fulfil agreed contractual specifications does not, as such, mean that a substance or product is necessarily to be considered as waste. If a trader delivers to a restaurant minced meat that is a mixture of beef and horse, instead of pure beef as agreed between the parties, he may be contractually obliged to accept return of the delivery without it thereby becoming waste. However, if the product results from accidental contamination of beef with horse meat during the processing of minced meat, he has an obligation to discard the minced meat up and until its precise characteristics have been ascertained and the minced meat is either disposed of or commercially reclassified, for example, as feed for minks, or as a beef-horse meat mixture for human consumption, provided it satisfies the relevant requirements under food-stuffs regulations. More generally, a non-intentionally manufactured mixture of compound is prima facie waste if the use to which it is intended to be put is not safe, in the absence of knowledge of its composition. This applies to products such as food or fuel whose qualities are important to human health and the environment.

In this section, therefore, the contractual context between parties to a transaction, does seem to enter the train of thought when deciding on the waste status of an off-spec or reverse logistics product.

The ink on the Opinion is literally still drying and undoubtedly there are more angles to it than I report above. However I for one should like the ECJ to state something more unequivocal on the impact of the contractual context, when it delivers its judgment presumably in the autumn.

Geert.

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UK Court holds that waste mingling is not prohibited by the Waste Framework Directive. Local authorities hold the key to optimal collection method.

In Campaign for Real Recycling, the High Court has rejected an argument that the Waste Framework Directive prohibits mixed kerbside collection of paper, metal, plastic and glass. The waste processing companies which are members of CRR, had essentially argued that the UK implementation of the Waste Framework Directive (‘WFD’) was faulty, because it leaves the consideration whether kerbside separate collection, is ‘technically, environmentally and economically practicable’ (see the relevant sections of the WFD below), to be decided by local authorities. In CRR’s view, the UK should have made that assessment centrally, and then imposed it on local authorities. Justice Hickinbottom disagreed, holding that in the absence of instruction in the Directive, it was up to the Member States themselves to decide which authority makes the assessment under Articles 10 and 11 of the Directive.

Relevant provisions in the Directive, are:

Article 10

Recovery

1. Member States shall take the necessary measures to ensure that waste undergoes recovery operations, in accordance with Articles 4 and 13.

2. Where necessary to comply with paragraph 1 and to facilitate or improve recovery, waste shall be collected separately if technically, environmentally and economically practicable and shall not be mixed with other waste or other material with different properties.

Article 11

Re-use and recycling

1. Member States shall take measures, as appropriate, to promote the re-use of products and preparing for re-use activities, notably by encouraging the establishment and support of re-use and repair networks, the use of economic instruments, procurement criteria, quantitative objectives or other measures.

Member States shall take measures to promote high quality recycling and, to this end, shall set up separate collections of waste where technically, environmentally and economically practicable and appropriate to meet the necessary quality standards for the relevant recycling sectors.

Subject to Article 10(2), by 2015 separate collection shall be set up for at least the following: paper, metal, plastic and glass.

(emphasis added)

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?

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