Further consideration of the definition of waste
Elisa de Wit, from law firm Nicholson Graham & Jones, analyses recent environmental court rulings concerning businessA further decision dealing with materials from the extractive industry has recently been decided by the European Court of Justice.
This decision follows on from the Palin Granit  case (see mag 76, page 20), which held that stone left over from stone quarrying that is stored for an indefinite length of time for possible further use should be classified as waste within the meaning of the framework directive.
In the case of Outokumpu Chrome Oy , the court was required to consider whether leftover rock and ore-dressing sand from mining operations should be considered waste.
The Finnish equivalent of the Environment Agency had issued an environmental licence to the company for the mining operations, and had placed a number of the conditions on the licence which dealt with the leftover rock and ore-dressing sand as waste.
The company argued that these conditions had no legal basis, as the materials should not be viewed as waste. The Finnish law used the same definition of waste as set out in the Waste Framework Directive.
Adopting a similar approach to that taken in Palin Granit, in which the court concluded that the possible reuse of the stone had to be a certainty, not merely a possibility, the court in Outokumpu ruled that if a mining operator could physically identify the residues that were to be used and provide the competent authority with sufficient guarantees of that use, then the materials would not need to be regarded as waste.
The court drew a distinction between residues that are used without being processed in the production process (eg filling in underground galleries) and other residues. It determined that the former are used as materials in the industrial mining process and therefore cannot be regarded as substances that the holder intends to discard.
If, however, use of the residues was prohibited, for safety reasons or for protection of the environment, then the holder would be obliged to discard the residues and they would constitute waste.
Residues that will not be needed in the production process must also be regarded as waste. So will residues that will be processed, such as aggregates, because even if this use is a probability, it requires an operation for recovery of a substance that is not being used for the original production process (eg mining) or for the final use envisaged.
The Outokumpu decision also established that the reference to "other legislation" in the Waste Framework Directive should be interpreted as including national legislation, provided it contains provisions dealing with the management of the particular exempt waste and results in a level of protection to the environment of equivalence to the framework directive.
Furthermore, the court held that the reference incorporated legislation not in force at the date of the directive.