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Waste Management Notes

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Waste Management Notes
What is waste?
The problem of determining what constitutes waste has plagued environmental lawyers due to the simple fact that objects no longer wanted by one person might still be useful to another.
We commonly think of waste as being trash, rubbish, refuse, or litter - the objects which we no longer want, which are thrown away, are dirty, and are at the end of their useful lives.
 BUT: the reality is quite different - there are a range of definitions of waste as exemplified by the following conceptualisations as to the nature of waste:
o European Commission - waste is a widespread social problem with serious environmental consequences

Girling (2005) - views waste less as a problem that needs controlling or fixing through environmental policy, but more as an inevitable part of life, the regulation of which is complicated
 He says that waste is as necessary to life as air and water. Just to be born in our own bodies is to create lifelong problems of disposal.
o Government Chief Scientific Adviser - views waste as a resource: what is waste to one person might be a useful object to another
 If waste is inevitable, the volume of it is not. Much of what we talk about as 'waste' still retains a great deal of value, and should more accurately be described as 'resources'.
o Zero Waste Charter - prioritises a prevention and recovery approach, which involves re-designing products and changing the way waste is handled so that products last longer, materials are recycled, or, in the case of organics,
composted.
 Waste is in the process of being designed away.
How does the EU define waste?
The EU Waste Framework Directive is the basis for waste regulation policy in the EU and UK
law and establishes a common definition of waste.
Article 3(1) WFD says that "[W]aste means any substance or object which the holder discards or intends or is required to discard"
Issues have inevitably arisen as to what it means to 'discard' something - it draws out the central tension in the problem of defining waste: discarded material might either be disposed of, or recovered
Pre-2008 Reform Case-Law
Seeing waste as a problem first and foremost, rather than a potential resource, has been the predominant approach of the CJEU. 

In Walloon Waste, the CJEU said that "with respect to the environment, it is important to note that waste is a matter of a special kind. Accumulation of waste,
even before it becomes a health hazard, constitutes a danger to the environment"
o Vessoso and Zanetti and Tombesi established that 'waste' covered all objects and substances discarded by owners, even if they have commercial value and are collected on a commercial basis for recycling, reclamation, or re-use.

However, these early cases said nothing about what it meant to discard something. The
Court addressed this problem in ARCO.
 ARCO
o Held: The CJEU held that the term 'discard' must be interpreted in light of the aim of the Directive.
 In that regard, the essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection,
transport, treatment, storge and tipping of waste.
 The concept of waste thus cannot be interpreted restrictively
 The idea of preventing waste does not necessarily lead to a broad definition of waste, as this might discourage efforts to develop innovative production processes that maximise the use of resources and thereby prevent waste.
 As Lee and Stokes put it 'the broad brush approach [to the definition of waste] simultaneously serves to undermine the
Directive's auxiliary aim of encouraging the re-use and recycling of waste'
 The term "discard" "covers" or "includes" disposal or recovery within the terms of Annex IIA and B (Wallonie [27]; ARCO [47]); but the fact that a substance is treated by one of the methods described in those
Annexes does not lead to the necessary inference that it is waste
(ARCO [48]-[49]).
 In deciding whether use of a substance for burning is to be regarded as "discarding" it is irrelevant that it may be recovered as fuel in an environmentally responsible manner and without substantial treatment

This judgement displays the difficulties inherent in the tension between:
 Protecting the environment from the dangers of waste
 Encouraging innovative production processes that maximise the use of resources and thereby preventing waste
Post-2008 Reform Scheme
The revised 2008 WFD sought to simplify the definition of waste - the Article 3(1) definition remained, but Article 2 set out exceptions from the scope of the Directive, effectively taking certain materials out of the definition of waste.
 Gaseous effluents are completely excluded, whilst 'waste waters, waste from mines and quarries, and some agricultural waste are excluded where already covered by other legislation The Holder of Waste
Article 3(6) defines a 'waste holder' as 'the waste producer or the natural or legal person which is in possession of the waste'
 Article 3(5) then defines "waste producer" as "anyone whose activities produce waste (original waste producer) or anyone who carries out pre-processing, mixing or other operations resulting in a change of the nature or composition of this waste"
o Extending the definition beyond the person physically possessing the waste to also include the producer of the waste means that the person who first discarded of the material (creating the waste) remains in the frame for waste management - it seeks to extend responsibility or waste management
Article 14 imposes the responsibility for the costs of waste management on waste holders and waste producers - the 'polluter pays' principle
 Member States are able to decide that the costs of waste management are to be borne partly or wholly by the producer of the product from which the waste came and that the distributors of such product may share these costs.
The Court had to determine who a relevant holder was for these purposes in Commune de
Mesquer.

Commune de Mesquer

Facts: The case concerned the largest ever oil spill off the French Coast.
Petroleum company Total International Ltd had chartered a ship (the Erika) to transport oil from France to Italy where it was to be received by the buyer
ENEL.
 En route, the ship ran aground off the coast of France, dumping its oil and causing considerable damage to the French coastline. The French authorities sought to sue Total for the clean-up costs, relying on the
WFD. They argued, firstly, that the oil was waste, and secondly, that
Total was a relevant holder of the waste, even though at the time of the accident the oil was in the possession of the shipping company.
o Held: In the case of an accidental oil spill at sea, it must be held that the owner of the ship carrying the oil is in possession of them immediately before they become waste. In such circumstances, the shipowner may be regarded as having produced that waste within the meaning of the WFD.
 BUT: the WFD does not rule out the possibility that in certain cases the cost of disposing of the waste is to be borne by one or more previous holders.
 The polluter pays principle says that a financial obligation is imposed on an individual because of their contribution to the creation of the waste and, in certain cases, to the consequent risk of pollution

The following cases elaborates this definition: 

Saetti and Frediani - the CJEU established that waste depends on the meaning of the term "discard", but that use of an operation listed in Annex II A or Annex II B of the WFD does not itself allow a substance or object to be classified as waste

The question is whether or not the thing has been discarded
 Waste covers anything which is discarded, even if it has commercial value and is collected on a commercial basis for recycling, reclamation of further use

The following is evidence of discard:
 A substance used is product residue - a product which is not intended as a result of the manufacturing process (BUT: this is subject to the by-product exception)
 The fact that the method for treatment of the substance in question is a standard waste treatment method or that the undertaking perceives the substance as waste
 The product can only be used in a way that involves its disappearance
 Its use must involve special measures to protect the environment

Ultimately, where in fact something is waste must be determined having regard to all of the circumstances, paying attention to the aims of the WFD

By-Product Exception
The by-product exception, first originating from the Palin Granit case, was codified in the 2008 WFD reforms.
The ECJ was reluctant to exempt residues of production processes from the definition of waste in ARCO, such that businesses sought to find productive uses for by-products
(materials that were not the primary products of the process by which they were produced)
 This contributed to the aste prevention goal and the 'circular economy' approach of the EU waste policy
The EU responded to this development in the Palin Granit case

Palin Granit

Facts: A large quantity of leftover rock from granite quarrying was being stored on site pending further use. This further use had not yet been confirmed but would most likely involve constructing harbours or breakwaters and it would be done by third parties and not by the quarry operators themselves.
o Held: The CJEU recognised a by-product exception to the definition of waste, recognising multiple stages in the life cycle of products that can be kept out of the ambit (and burden) of waste regulation.
 In Court maintained the supervisory purpose of the Directive by limiting the by-product exception in accordance with a tripartite proviso
 The reuse must: 

o Be certain

Require no further processing of the material

Form an integral part of the production process
Here the reuse was uncertain and thus was not subject to the by-product exception

The EU developed this by-product exception in Commission v Spain.

Commission v Spain

Held: Things resulting from an extraction or manufacturing process, which aren't the primary aim of that extraction or process, may be regarded not as a residue but as a by-product which C does not seek to 'discard' but intends to exploit or market on terms which are advantageous to it, in a subsequent process, without any further processing prior to reuse
 Two qualifications were provided to the Palin Granit proviso
 Certainty of re-use could be demonstrated through use by third parties
 The court phrased the 'integral part of the production process'
differently, instead requiring that the slurry should be used as
'part of the continuing process of production'.
 As such, livestock effluent may fall outside of waste if it is used as soil fertiliser as part of a lawful practice of spreading on clearly identified parcels, and if its storage is limited to the needs of those operations.

These principles were applied in the following case

AvestaPolarit - the CJEU held that leftover rock and residual sand from ore-dressing operations from a mine may fall outside the definite of 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 for that particular purpose

Codification of the by-product exception came in Article 5 WFD:
A substance or object, resulting from a production process, the primary aim of which is not the production of that item, may be regarded as not being waste referred to in point (1) of Article 3 but as being a by-product only if the following conditions are met:
(a) Further use of the substance or object is certain
(b) The substance or object can be used directly without any further processing other than normal industrial practice
(c) The substance or object is produced as an integral part of the production process
(d) Further use is lawful, i.e. the substance or object fulfils all the relevant product,
environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts

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