Mining residues and EU waste law

In the latest of what sometimes seems like a never-ending series of judgments on waste legislation, the European Court of Justice has again been asked to consider the meaning of waste and its application to production residues. It has continued to adopt an expansive definition of "waste" under EU law - but for the first time it has also considered the provisions in EU waste legislation which exclude certain categories of material from its scope, and has offered a glimmer of hope to Member States which wish to use non-waste legislation in controlling these materials.

AvestaPolarit Chrome Oy (Case C-114-01, 11 September 2003) originated from an application by a Finnish mining company for an environmental licence in respect of a site that was changing from opencast to underground mining.

The licence was granted by the national authority, subject to certain conditions relating to leftover rock and ore-dressing sand which it regarded as waste in law and therefore subject to the specialist 1993 law on waste which transposed the 1975 EU waste framework Directive into national law. The company argued that the material did not constitute waste in law, and the issue was eventually referred to the European Court of Justice for authoritative guidance.

The ECJ noted that its decision last year in the Palin Granit case (ENDS Report 328, pp 55-57 ) had held that leftover stone from quarrying operations which was stored for an indefinite period to await possible use was "waste" according to the Directive, even if it posed no real risk to human health or the environment. The leftover stone was not the product primarily sought by the quarry operator, and it therefore should be considered as being discarded as waste.

However, the ECJ in that case acknowledged that in some circumstances it was possible to regard such material not as residues of a process but as a genuine by-product which the operator intended to exploit or market. Provided no further processing prior to its reuse was required, and that there was a degree of likelihood rather than a mere possibility of it being reused in this way, the material might be regarded as a product rather than waste. It would depend on the facts of the case.

Applying these principles to the present case, the ECJ argued that the leftover rock and ore-dressing sand were clearly residues from a mining operation falling within one of the categories of materials listed in the annex to the 1975 Directive. The key question in determining whether they were waste or not was then whether the holder was discarding or intending to discard them.

If they were to be used directly without any further processing for the necessary infilling of underground galleries - and provided their use for this purpose was permitted - they would not be regarded as waste since they were needed for the operator's principal activity.

As regards the materials not so used, the ECJ considered that they must be treated as waste, since the Court accepted they could not be used or marketed in any other way without prior processing. This would apply even if they were used for landscaping since this "constitutes merely an environment-friendly way of dealing with them, not a stage in the production process."

The second question considered by the ECJ was the scope of the waste framework Directive. Article 2(1) of the Directive as amended in 1991 expressly excludes from the scope of the Directive certain categories of material, including waste from mining and quarrying, "where they are already covered by other legislation."

The question for the Court was whether this meant exclusively EU legislation, or did it encompass national legislation? If so, did this mean only national legislation in force at the time of the Directive's entry into force, and what should be the minimum content of such legislation?

In dealing with the question, the ECJ first noted that Article 2(2) expressly provided that specific rules for dealing with the management of particular categories of waste could be laid down by individual Directives. An example was the 1991 Directive on batteries and accumulators.

The German, Austrian, and UK Governments argued that the reference to express EU legislation conclusively implied that the use of the term "other legislation" in Article 2(1) was not confined to EU legislation.

The Court disagreed. It argued that categories of waste under Article 2(2) which might be subject to further Directives were still subject overall to the 1975 Directive, even if individual rules derogating from its provisions or supplementary rules might be adopted in the specific EU rules.

In contrast, the provisions in Article 2(1) excluded altogether those categories of waste from the scope of the 1975 Directive. The two paragraphs therefore performed different functions.

The Court, however, felt that in the Directive the legislature had, where it wished to, referred to EU law in precise terms, and therefore it could not exclude the possibility that "other legislation" might include national legislation.

In relation to the particular types of waste listed in Article 2(1), the EU could have adopted a policy of excluding them altogether from EU legislation pending the enactment of EU rules to deal with their special characteristics. But to avoid the management of such waste not being subject to any legislation in certain circumstances, the 1991 amendments had adopted a rule that in the absence of either specific EU legislation or specific national legislation, the 1975 Directive applied.

What, then, should be the content of such national legislation, if it were to exclude the Directive from applying to those categories?

The ECJ argued that it was not sufficient that it merely related to the substances or objects in question, but must contain precise provisions organising their management as waste, which, according to Article 1(d) of the Directive, includes their collection, transport, recovery and disposal, as well as aftercare of disposal sites. Otherwise, the management of the waste would be organised neither on the basis of the Directive nor on the basis of independent national legislation.

Furthermore, the Court noted that Article 10 of the EU Treaty imposed a general obligation on Member States to refrain from any action which could jeopardise the attainment of the Treaty objectives. It followed that, "With respect to the management of waste of the same type, a level of protection of the environment which differed noticeably because some was management within the framework of Directive 75/442 and some outside its framework could jeopardise the objectives of the Community in the field of the environment as defined in Article 174 [of the Treaty] and more particularly the objectives of Directive 75/442."

This implied that any national legislation covering the excluded categories must pursue the same objectives as the waste framework Directive and result in a level of protection of the environment at least equivalent to that resulting from measures taken in application of the Directive, even if the detailed terms of the national law differed from those of the Directive. This would be a question for the national court to determine.

As to the date of the national legislation, the Court could find no justification for confining it to legislation only in force in 1993, the date of entry into force of the amended provisions of the waste framework Directive. It could equally apply to national laws adopted after that date.

This appears to the ECJ's first ruling on the scope of the exclusion categories in the waste framework Directive. Certainly, its ruling that "other legislation" can refer to national as well as Community legislation is surprising in some respects, and differs from the interpretations previously adopted by leading commentators. By giving more scope for national action, it may in part reflect an acknowledgement of the importance of the subsidiarity principle.

Member States whose specialist waste laws do not cover all the categories of waste listed in Article 2 will no doubt be re-examining the extent to which their national legislation meets the ECJ's criteria.

Before this judgement, the UK Government had eventually accepted that national waste legislation must encompass mining and quarrying waste - previously encompassed solely by planning and statutory nuisance controls - as well as agricultural waste in order to meet EU law requirements.

On the surface, this new judgment might suggest that that policy could be re-evaluated. But the strong conditions applied by the ECJ concerning the objectives and content of any such non-waste national legislation covering these categories suggest that it would not be an easy test to pass.

Richard Macrory, Professor of Environmental Law, University College, London

Richard Macrory is a board member of the Agency but the views expressed here are personal

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