#5277 - Waste Management - Environmental Law

The Environmental Permitting Regulations 2007 transpose all of the below provisions into UK law.

Waste Framework Directive 2006.

• Art 1 – sets out definition of waste as “any substance or objects in the categories set out in Annex I which the holder discards or is required to discard”.

• Art 2 – excludes certain wastes from scope of Directive. Gaseous effluents completely excluded whilst ‘waste waters’, waste from mines and quarries and some agricultural waste are excluded where already covered by other legislation.

• Art 3 – established waste hierarchy by requiring appropriate measures to encourage the prevention or reduction of waste and the recovery of waste by recycling, reuse, or reclamation, including the conversion of waste to energy through incineration.

• Art 4 – sets out objectives of safe waste management, requiring MSs “to take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment.”

• Art 5 – sets out goal of self-sufficiency of waste disposal capacity within EU, with the establishment of a network of installations to deal with waste produced.

• Art 7 – provides for need for waste management plans to be drawn up by national authorities (in UK National Waste Strategies).

• Art 8 – imposes duty to ensure only authorised operators handle waste.

• Arts 9 + 10 – provide for licencing of waste disposal and recovery operations.

• Art 14 – provides for the keeping of records of the nature of waste, its transport, and its treatment.

• Annex I - 16 categories of waste including Q16 which is a catch all – “any materials, substances or products which are not contained in the above categories”.

• Annex IIA – lists 15 waste disposal operations and Annex IIB lists 13 waste recovery operations.

2008 Directive on Waste.

See Directive for full picture – these are main changes:

• Preamble – Priority goals include waste prevention, recovery, extension of resource life-cycles, development of European recycling society, environmentally responsible treatment of waste: ambiguity in MS obligations?

• Art 1 – General Aims - seeks to narrow waste regulation by preventing waste generation and to broaden it by aiming to reduce the overall enviro impacts of resource use.

• Art 2 – exclusions from scope. Minimal change.

• Art 3 – Definitions. Waste – any substance or object holder discards or is required to discard. No change except Annex with list removed.

• Art 4 - clearer waste hierarchy with five levels. But broad, policy directing, ambition through array of factors to be considered: technical and economic viability, principles of precaution and sustainability, the protection of resources and “overall environmental, human, health, economic and social impacts. But justifies departure from hierarchy to achieve best environmental outcome which kind of undermines/confuses it.

• Definition of waste the same but impacted by:

Art 5 – exhaustive criteria for when materials will be industrial by-products and therefore not waste.

Art 6 – enables development of criteria for determining - for particular waste streams - when waste ceases to be waste after undergoing recovery operation.

Both of above required to not lead to overall adverse enviro impact – otherwise waste still.

Also both require that use of waste is lawful and meets existing regulatory standards before it is reclassified as not waste.

• Recovery and disposal operations are defined with more conceptual consideration, lists are non-exhaustive and illustrative. Can’t argue preparatory activities are not recovery as waste treatment definition includes such preparatory activities. ??

• Art 7 – provides for list of wastes. Waste not in waste list can be classified as hazardous. But Art 7(1) confuses since says list of waste shall be binding as regards determination of waste which is to be considered hazardous. Contradictory.

• Art 11 – detailed recycling obligations.

• Annex I – Disposal operations.

• Annex II – Recovery operations.

The Definition of Waste.

• Vessoso and Zanetti (1990)(EU) – Waste doesn’t exclude substances capable of economic reutilization. Waste does not presume that the holder disposing intends to exclude all economic reutilization of the substance or object by others.

• Kent County Council (1992) – It was irrelevant to the question whether waste was controlled waste for the purposes of the Control of Pollution Act 1974 s.30 that it was used for the purpose of infilling a site which was prone to subsidence. That fact did not alter the nature of the substance. ??????????

• Commission v. Belgium (1992)(EU) – Waste to be regarded as goods whether recyclable or not. But waste has special character - firstly, waste is matter of a special kind whose accumulation, even before it becomes a health hazard, constitutes a danger to the environment, regard being had in particular to the limited capacity of each region or locality for waste reception, and secondly, such a prohibition cannot be regarded as discriminatory (in free movement), in view of the principle that environmental damage should as a priority be rectified at source which entails that it is for each region to take appropriate steps to ensure that its own waste is collected, treated and disposed of in order to limit as far as possible the transport of waste. [Example of enviro principles entirely being decisive in a waste case].

• Tombesi (1997)(EU) – material was consigned to one of the Annex defined recovery operations.

AG Jacobs – Created the ‘Tombesi bypass’. Wherever something is consigned to a recovery operation it will count as having been discarded and thus as waste. Bypasses question of whether discarded. [But problem here is that recovery processes and industrial processes look very similar. Recovery process is part and parcel of bigger industrial process and so might not really involve discarding the thing].

ECJ – didn’t go so far as AG. Consignment of a substance to a recovery process could amount to a discarding.

• Wallonie (1998)(EU) – ECJ - although there is a distinction between industrial processes and recovery operations, it would normally be the case that substances subjected to a recovery process would be waste. Also here enviro principles of rectification at source, proximity and self-sufficiency played large part in decision.

• Mayer Parry Recycling (1999) – English courts adopted reasoning of Wallonie that it is normally the case that a recovery operation would result in substance being discarded and thus waste. Here held that scrap metal that could be reused without being subjected to any sort of recovery operation would not be waste.

• Circular 11/94 – set out new concept of ‘specialised recovery operation’ which was meant to cover operations that reuse substances that are waste because they have fallen out of normal use or recycle them in a way eliminating sufficiently the threat posed by original production as waste and produces a usable raw material. Where substances consigned to such a process they will be waste. Marry above viewed this positively.

• ARCO (2000)(EU) – Woodchips residue from extraction of molybdenum, prepared to be burnt and then burnt.

ECJ – rejected interpretation of AG in Tombesi, concluding that consigning something to recovery doesn’t necessarily mean it was discarded/waste. Only appropriate test is whether something has been discarded (as set out in Directive) which is assessed in circumstances of case. But ‘discard’ has to be interpreted generously in light of the aims of the Directive. [Also overturning decision in Marry that materials that could be reused without undergoing a recovery operation were not waste – such a blanket test was inappropriate, test of discard needed].

Doesn’t distinguish two operations as separate but said it was prior treatment before recovery/preparation for reuse.

• Castle Cement (2001) – Synthetic fuel used in kilns made from waste solvents and oils. Considered by EA as waste, thus burning of waste so more expensive. Hazardous elements involved.

Court – can’t compare this fuel to virgin fuel oils due to dangers. Thus waste. ????

Viewed above circular favourably. [But still not a legal test].

• Palin Granit (2002)(EU) – Palin Granit stored leftover stone at a granite quarry in Finland. Authorities considered it waste. C argued stone was stored for short periods for subsequent use without need for any recovery measures and didn’t pose any sort of risk to people or enviro.

ECJ – discussed many factors used in previous case law: aims of Waste Directive, consignation to recovery or disposal, whether a production residue rather than a product with subsequent use, whether normally regarded as waste, whether use might be envisaged other than disposal or recovery, likelihood of reuse prior to that use, financial advantage to holder in reuse, special precautions required for substance.

Concluded that stone was not the product primarily sought by operator of quarry – more properly described as production residue and thus waste, reuse uncertain and only foreseeable in longer term. Influenced by enviro and public health problems of long-term storage.

• AvestaPolarit (2003)(EU) - Leftover rock and residual sand from ore-dressing operations from the operation of a mine may not be classified as waste if the holder uses them lawfully for the necessary filling in of the galleries of that mine and provides sufficient guarantees as to the identification and actual use of the substances to be used for that purpose.

• Saetti and Frediani (2004)(EU) - Waste depends on the meaning...