Leaked sewage covered by WFD

Sewage that has escaped from wastewater treatment plants comes under the same rules as any other, the ECJ has ruled.

Urban Waste Water

Following a referral made to the European Court of Justice (ECJ) last year, the European Court of Justice has now held that the Waste Framework Directive applies to sewage that has escaped from waste water treatment systems. The Judgement of the ECJ in the case of Thames Water Utilities follows the approach taken by the Advocate-General.

The referring Court asked the following questions of the ECJ:-
  • Whether sewage which escapes from a sewerage network maintained by a statutory sewerage undertaker amounts to 'directive waste' for the purposes of the Waste Framework Directive?
  • If yes, then whether the sewage -
    (a)is excluded from the scope of 'directive waste' by virtue of Article 2(1)(b)(iv) of the Waste Framework Directive, in particular by virtue of the Waste Water Directive and/or the Water Industry Act 1991; or
    (b)comes within Article 2(2) of the Waste Framework Directive and is excluded from the scope of 'directive waste', in particular, by virtue of the Waste Water Directive.
Waste waters do not come within the scope of the Waste Framework Directive to the extent that they are covered by other legislation. The ECJ interpreted the term 'discard' in an expansive manner in the light of Article 174(2) of the EC Treaty.

On this basis the ECJ held that the escape of waste water from a sewerage network constitutes an event whereby the holder of that waste - the sewerage undertaker - discarded it. The accidental nature of the spillage was irrelevant in this context, and the escaped sewage was regarded as waste.

In relation to the first part of the second question, the ECJ stated that for legislation to constitute 'other legislation' within the meaning of Article 2(1)(b) of the Waste Framework Directive, and therefore to exclude waste waters from its scope, it must contain precise provisions as to the management of that substance as waste within the meaning of the Directive.

Although the Urban Waste Water Treatment Directive regulates the collection, treatment and discharge of waste water, it does not lay down objectives in relation to the disposal of waste or decontamination of contaminated soil, and as such cannot be regarded as covering the management of waste that escapes from sewerage networks and as ensuring a level of protection at least equivalent to that under the Waste Framework Directive.

The ECJ held that it fell to the referring court to analyse whether there was national legislation that constituted 'other legislation' as outlined above.

In relation to the final part of the second question, the ECJ reiterated that the Urban Waste Water Treatment Directive does not contain specific provisions concerning waste water escaping from a sewerage network, and as such could not be regarded as providing specific rules of the type necessary to exclude escaped waste water from the scope of the Waste Framework Directive under Article 2(2) of that Directive.

The Judgement an be accessed here.

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