Export of exhaust gas incineration residues to salt mines: recovery or disposal?

Transcription

1 [2007] 5 Env. Liability : Export of exhaust gas incineration residues to salt mines: recovery or disposal? : London 1 Export of exhaust gas incineration residues to salt mines: recovery or disposal? Caroline London Associate Professor, Artois University; Attorney at Law, Paris Bar Introduction Four court cases 1 in France have brought the debate pertaining to the distinction between recovery and disposal to the forefront of waste law. The administrative judges have made void four decisions of the French authorities who objected to the shipment of waste of exhaust gas incineration residues from household waste generated by local incineration plants and designed to fill salt mine pits in Germany. This shipment was classified by the exporters as a recovery operation. In some of these cases, the administration has filed an appeal against the judgment. Since the ASA ECJ judgment, 2 this distinction has been widely commented on. Moreover, it is at the heart of discussions on the Waste Framework Directive, due to replace Directive 2006/12/EC of 5 April 2006 on waste, codifying Directive 75/442/EEC as amended, as this introduces, for the first time under EU law, a definition of recovery. The French judgments must be assessed on the basis of (i) Regulation (EEC) 259/93 on the supervision and control of shipment of waste inside, into and out of the European Community 3 and (ii) rules more specifically applicable to the exported substances. Regulation (EEC) 259/93 on the supervision and control of shipment of waste The main text of reference is Regulation (EEC) 259/93, the adoption of which enabled the European Community 1 Administrative Tribunal Versailles 7 March 2006 n ; Administrative Tribunal Lille 23 March 2006 n and n ; Administrative Tribunal Strasbourg 8 June 2006 n Case C 6/00 Abfall Service AG (ASA) v Bundesminister für Umwelt, Jugend und Familie ECR I All national authorities which receive notification of a proposed shipment of waste from one member state to another member state are competent to verify whether the shipment is classified in the appropriate category (recovery or disposal) and must object to the shipment where the classification is incorrect. The court also gives a definition of recovery of waste. 3 OJ 1993 L 30/1, 1 February to approve, pursuant to a decision adopted the same day, the Basel Convention. 4 Analysis of this regulation as well of the relevant case law tends to illustrate that the French court decisions do not comply with the applicable EU provisions. Aim and purpose To understand the aim and the purpose of Regulation (EEC) 259/93, it is important to examine the context in which it was enacted. Preparatory work had been initiated as of 1990 in view of the approval, by the European Community, of the 1989 Basel Convention, the aim of which is the protection of the environment. Such is also the aim of Regulation (EEC) 259/93, as confirmed by the ECJ in the case of Parliament v Council, 5 on the legal basis to be used for the regulation. The European Parliament considered that the regulation based on Article 130s of the EEC Treaty, environmental policy, should be annulled and that the proper legal bases were in fact Articles 100 A and 113 of the EEC Treaty pertaining to the approximation of laws and the functioning of the internal market. In its judgment of 28 June 1994, the court stated that the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review. These include in particular the aim and the content of the measure. It further added: Regulation No 259/93 falls, in view of its aim and content, within the framework of the environmental policy pursued by the Community and cannot be regarded, any more than Directive 91/156 on waste, as seeking to implement the free movement of waste within the Community. The legislature could therefore validly exclude Article 100a of the Treaty from the legal basis of that regulation and base it on Article 130s. 4 Entered into on 22 March 1989 under the auspices of the United Nations Programme for the Environment (UNEP) on the control of transboundary movement of hazardous wastes and their disposal. 5 Case C 187/93 European Parliament v Council of the European Union [1994] ECR I

2 2 Export of exhaust gas incineration residues to salt mines: recovery or disposal? : London : [2007] 5 Env. Liability The court also specified in a judgment of 13 December 2001: 6 It therefore follows from the context in which the Regulation was adopted, from its nature, from the aims which it pursues and from its content, that it regulates in a harmonised manner, at Community level, the question of shipments of waste in order to ensure the protection of the environment. In a more recent judgment of 16 December on the distinction between recovery and disposal, the court confirmed its viewpoint as follows: The conditions and procedures laid down by the Regulation were adopted with a view to ensuring the protection of the environment, taking account of objectives falling within the scope of environmental policy such as the principles of proximity, priority for recovery and self-sufficiency at Community and national levels. In particular, they enable the Member States, for the purposes of implementing those principles, to take measures to prohibit generally or partially or to object systematically to and oppose shipments of waste which are not in conformity with the Directive. The Regulation falls within the framework of the environmental policy pursued by the Community and cannot be regarded as seeking to implement the free movement of waste within the Community. In the light of the foregoing, it is hardly possible to favour recovery over disposal where protection of the environment is not ensured. Right to raise objections The aim of Regulation (EEC) 259/93 is therefore to establish a harmonised set of procedures whereby movements of waste may be limited in order to ensure the protection of the environment. Different types of procedures are to be followed depending on the geographical destination of the waste (within, into or out of the European Community), the purpose of the movement (recovery or disposal) and the hazardousness of the waste to be shipped. Where the competent authorities in France, the Directions régionales de l Industrie, de la Recherche et de l Environnement (DRIRE) do not agree with the classification of the contemplated shipment, they may raise reasoned objections to the shipment. Such was the situation in the four cases under discussion. The French municipalities had declared that they were shipping the waste for recovery in accordance with para R 5 of Annex IIB to Directive 75/ 442/EEC as amended: R5 Recycling/reclamation of other inorganic materials. The DRIRE considered that the contemplated shipment was for disposal in accordance with para D 12 of Annex IIA to the same directive: D 12 Permanent storage (e.g. emplacement of containers in a mine, etc.). According to Article 7(4)(a) of Regulation (EEC) 259/ 93, the competent authorities of destination and dispatch may raise objections to planned shipments in accordance with Directive 75/442/EEC, in particular Article 7 thereof. On this point, reference is to be made to the ECJ judgment of 16 December 2004, EU-Wood-Trading, in which the ECJ states: The use of the words in particular before the mention of Article 7 of the Directive implies that the reference to that article is purely as an example, so that objections may also be raised on the basis of the Directive s other provisions. 8 The ECJ further states: Finally, since under Article 4 of the Directive the Member States are to take the measures necessary to ensure that waste is recovered or disposed of without endangering human health and without the use of processes or methods capable of harming the environment, the provisions of the first indent of Article 7(4)(a) of the Regulation must be interpreted as authorising the competent authorities of destination and of dispatch to raise objections to a shipment of waste for recovery on the ground that the planned recovery disregards the requirements arising from Article 4 of the Directive. 9 In the cases under discussion, the deposit operation in a disused salt mine creates a danger for the environment, in particular because of its persistent organic pollutant and 6 Case C 324/99 DaimlerChrysler AG v Land Baden-Württemberg [2001] ECR I para Case C 277/02 EU-Wood-Trading v Sonderabfall-Management- Gesellschaft Rheinland-Pfalz mbh [2004] ECR I para ibid para ibid para 42.

3 [2007] 5 Env. Liability : Export of exhaust gas incineration residues to salt mines: recovery or disposal? : London 3 heavy metal contents, which constitutes a sufficient reason to raise an objection to their shipment. In this connection, the Directorate of Pollution and Risk Prevention (DPPR) at the Ministry of the Environment and Sustainable Development issued a circular on 17 January 2005 for the attention of all Préfets (the highest departmental administrative authorities representing the State) on this specific question of the shipment of exhaust gas incineration residues from household waste in view of their deposit in disused mining cavities. According to the DPPR, this operation is to be classified as a disposal operation for the following reason: Exhaust gas incineration residues from household waste are hazardous waste, which, if the necessary precautions are not taken, may release in the environment toxic elements and in particular heavy metals. The management of such waste must aim at avoiding this dispersion of toxic elements, either by means of a specific treatment as vitrification or by their confining in waste disposal facilities (surface or underground), eventually after consolidation. The result therefore is that the main aim of the deposit in mining cavities is to ensure that it is secure. In other words, the courts contest the French authorities position and base their reasoning on the ASA ECJ judgment of 27 February 2002, which requires a careful analysis. 10 ECJ judgment in ASA Facts On 2 March 1998, Abfall Service (ASA), established at Graz, Austria, notified the Bundesminister für Umwelt, Jugend und Familie (BMU), as the competent authority of dispatch, of its intention to ship 7000 tonnes of hazardous waste to Salzwerke AG, a company established in Germany. According to that notification, the waste in question was slag and ashes produced as a by-product in the operation of waste incinerators and transformed into a specific product at a waste-treatment plant in Vienna, Austria. The waste was to be deposited in a former salt-mine at Kochendorf, Germany, to secure hollow spaces (minesealing). On this point, there is a difference between this waste and the waste in the cases under discussion. The Austrian waste was subject to a pre-treatment operation prior to its shipment to Germany. As for the French exhaust 10 Note 2. gas incineration residues from household waste, the only preliminary operation carried out was their conditioning in big bags, which does not alter their hazardousness and, therefore, the risks for the environment. In the notification documents, ASA classified the treatment of the waste to be shipped as a recovery operation coming within the scope of the operation referred to in R 5 of Annex IIB to Directive 75/442/ EEC as amended. The competent authority of destination, the Stuttgart Regierungspräsidium, Germany, informed ASA that there appeared to be no reason for it not to approve the notification classifying the shipment as a recovery operation. By decision of 19 June 1998, the BMU raised an objection to the shipment under the fifth indent of Article 7(4)(a) of Regulation (EEC) 259/93. The ground for that objection was that the planned shipment in fact constituted a disposal operation, namely the operation referred to in D 12 of Annex IIA of the directive. ASA challenged the BMU s decision before the Verwaltungsgerichtshof. In particular, it claimed that the ground stated for the objection, namely that the planned operation was not a recovery operation but a disposal operation, was not in accordance with the fifth indent of Article 7(4)(a) of the regulation, which provides that the competent authorities of destination and dispatch may raise reasoned objections to the planned shipment: if the ratio of the recoverable and non-recoverable waste, the estimated value of the materials to be finally recovered or the cost of the recovery and the cost of the disposal of the non recoverable fraction do not justify the recovery under economic and environmental considerations. In those circumstances, the Verwaltungsgerichtshof, considering that the outcome of the proceedings before it depended on an interpretation of Community law, decided to stay proceedings and refer to the ECJ preliminary questions, among which was a question on the classification of the planned shipment. This is the first time that the ECJ would rule on the distinction between recovery and disposal. Judgment In its judgment of 27 February 2002, the ECJ specified that if the deposit of waste in a disused mine does not necessarily constitute a disposal operation for the purpose of paragraph D 12 of Annex A to Directive 75/442/EEC as amended such a deposit constitutes a recovery if its principal objective is that the waste serve a useful purpose

4 4 Export of exhaust gas incineration residues to salt mines: recovery or disposal? : London : [2007] 5 Env. Liability in replacing other materials which would have had to be used for that purpose. 11 The court further stated that such a deposit must be assessed on a case-by-case basis to determine whether the operation is a disposal or a recovery operation within the meaning of that Directive. 12 This case-by-case assessment must also be carried out in compliance with the provisions of Regulation (EEC) 259/93. Principal objective of French operation In the French cases, what was the principal objective of the operation? To answer this question, reference is to be made to Advocate General Jacobs opinion delivered on 15 November 2001 in the ASA case. He mentions two major arguments: the first one pertains to the genuine purpose of the operation; the second is financial and pertains to the person who must pay for the operation. Advoccate General Jacobs states: In my view, the test of the overriding purpose of an operation is the correct criterion for determining whether that operation should be classified as disposal or recovery. The decisive question is whether the waste is used - or re-used - for a genuine purpose. Put another way, if waste were not available for a given operation, would that operation none the less be carried out using some other material? Applying that criterion to the case of a deposit of waste to fill hollow spaces in a disused mine, it would need to be determined whether, in the absence of that waste, those responsible for the mine would have had to arrange for the mine to be filled with other material for a purpose independent of storing the waste, for example for safety or technical reasons to do with the mine itself. 13 On this point, the answer is clear: the mines could have been filled with the mine residues. Such an operation would have been much better from an economic, environmental and energy viewpoint. This waste would have provided better safety and technical characteristics than exhaust gas incineration residues from household waste. Moreover, the best available technologies (BAT) reference document (the so-called BREF) on the management of tailings and wasterock in mining activities adopted in June 2004 recommends as BAT the filling of the mine by steriles overburden generated on the site. In situations where such waste is present, exhaust gas incineration residues from household waste are not used in substitution for mining products or natural resources. This explains why the situation needs to be assessed on a case-by-case basis. The second criterion in determining whether the waste is used for a genuine and independent purpose is namely whether the holder of the waste pays for the operation or is paid for it. 14 The Commission effectively suggested this approach in its 1989 Communication, A Community strategy for waste management, 15 which sowed the seeds for Regulation (EEC) 259/93. In its Communication, the Commission concludes its discussion on the movement of waste for disposal with the statement: The situation is different with waste to be recycled by the recipient. The holder must pay for the final disposal of waste. Where waste is for recycling, the holder of the waste is paid by the recycler. Advocate General Jacobs concludes on this point that [T]he direction in which payment is made seems to me to be potentially significant. 16 In the cases under discussion, payments were made by the French municipalities to the German mine operators for them to accept the incineration residues. Useful purpose of the operation Aside from the principal objective, the second question is the useful purpose of the contemplated operation. In his opinion in the EU Wood-Trading case, 17 Advocate General Léger declared: I am inclined to consider that the competent authority of dispatch is not merely able but rather obliged to raise such an objection where it takes the view that the planned recovery in the State of destination could harm human health or the environment. In the cases under discussion, waste contaminated by persistent organic pollutants and heavy metals do harm the environment. Possible danger to the environment and public health therefore prevents this operation from qualifying as a recovery operation. Once again, Regulation 11 Note 2 para ibid. 13 ibid para ibid para SEC (89) 934 final of 18 September Note 2 para Note 7.

5 [2007] 5 Env. Liability : Export of exhaust gas incineration residues to salt mines: recovery or disposal? : London 5 (EEC) 259/93 has been adopted with a view to protecting the environment as mentioned above. Moreover, the incineration residues can be replaced by other materials, in particular the tailings and rock-waste located near the mine. In this context, should the operation be classified as a disposal operation, the principle of proximity would apply, thus condemning the contemplated operation. In other words, the fact that the exhaust gas incineration residues from household waste contain persistent organic pollutants and heavy metals deprives those materials of any useful purpose. The filling operation in disused salt mines cannot therefore be considered as a recovery operation. In this connection, it should be borne in mind that any infringement to the Directive 75/442/EEC, in particular to Article 4, may justify the raising of objections on behalf of the dispatch authorities. Member States position The German position is far from receiving the unanimous support of the different Member States. Belgium, and more specifically the Brussels environment management agency, Institut Bruxellois pour la Gestion de l Environnement (IBGE), the competent authority of the Brussels Region, had an identical position in the Siomab case. 18 Siomab operates an incineration plant in Brussels for household waste and similar products, in particular salts. It had entered into an agreement with a German company for burying the salts in the galleries of the salt mines at Teutschenthal. In the documents sent to IBGE, the dispatch authority, Siomab had classified the planned shipment as a recovery operation. IBGE took the view that this operation was a disposal operation and modified the notification form accordingly, before sending the documents to the German authorities. The German authorities objected to the shipment on the ground that under national mining law, only recovery operations are permissible in the mines. In its judgment of 19 October 2004, the ECJ did not proceed to the classification of the operation but stated that the dispatch authority could only object to the shipment and could not reclassify the shipment under its own initiative. The position of the Belgian authority is nevertheless interesting. In the ASA case, the Austrian competent authorities refused to qualify the deposit of waste in a disused mine as a recovery operation. During the proceedings, the French and the Dutch Governments supported the Austrian position. 18 Case C 472/02 Siomab SA v Institut bruxellois pour la gestion de l environnement [2004] ECR I On the basis of the foregoing, the French court s decisions appear to be unfounded. Apart from Regulation 259/93 as interpreted by the ECJ, two other EC texts are relevant in this discussion. These are Directive 2006/21/ EC of the European Parliament and of the Council of 15 March 2006 on the management of waste from extractive industry and amending Directive 2004/35/EC 19 and Regulation (EC) 850/2004 of the European Parliament and of the Council of 29 April 2004 on persistent organic pollutants and amending Directive 79/117/EEC, 20 which apply to exhaust gas incineration residues from household waste. Directive 2006/21/EC on the management of waste from extractive industry The subject matter of this directive, as specified under Article 1, is to provide for measures, procedures and guidance to prevent or reduce as far as possible any adverse effects on the environment and any resultant risks to human health, brought about as a result of the management of waste from the extractive industries. Article 10, which pertains to excavation voids, states under para 2: Directive 1999/ 31/EC shall continue to apply to the waste other than extractive waste used for filling in excavation voids as appropriate. In other words, if the voids are not filled by extractive waste, the 1999 Landfill Directive 21 should apply. Further to Article 25, this directive must be transposed into national law before 1 May Accordingly, what are the obligations of the Member States during the period between the adoption and the transposition in national law? In its Inter-Environnement Wallonie decision of 18 December 1997, 22 the ECJ provided an answer concerning this specific question: The next point to note is that, in accordance with the second paragraph of Article 191 of the EEC Treaty, applicable at the material time, [d]irectives and decisions shall be notified to those to whom they are addressed and shall take effect upon such notification. It follows from that provision that a directive has legal effect with respect to the Member State to which it is addressed from the moment of its notification. 19 OJ 2004 L 102/ OJ 2004 L 158/7. 21 Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (the Landfill Directive) OJ 1999 L182/1. 22 Case C 129/96 Inter-Environnement Wallonie ASBL v Région wallonne [1997] ECR I

6 6 Export of exhaust gas incineration residues to salt mines: recovery or disposal? : London : [2007] 5 Env. Liability Here, and in accordance with current practice, Directive 91/156 itself laid down a period by the end of which the laws, regulations and administrative provisions necessary for compliance are to have been brought into force. Since the purpose of such a period is, in particular, to give Member States the necessary time to adopt transposition measures, they cannot be faulted for not having transposed the directive into their internal legal order before expiry of that period. Nevertheless, it is during the transposition period that the Member States must take the measures necessary to ensure that the result prescribed by the directive is achieved at the end of that period. Although the Member States are not obliged to adopt those measures before the end of the period prescribed for transposition, it follows from the second paragraph of Article 5 in conjunction with the third paragraph of Article 189 of the Treaty and from the directive itself that during that period they must refrain from taking any measures liable seriously to compromise the result prescribed. 23 This ruling has been quoted on this point by the Council of State in a judgment of 10 January 2001, France Nature Environnement, 24 a case concerning the protection of the environment. In other words, Directive 2006/21/EC supports the classification of the filling of mines with exhaust gas incineration residues from household waste as a disposal operation. Accordingly, the so-called recovery operation is to be viewed as an illegal traffic of waste. It should be noted that in its judgment of 21 February 2006 (prior to the adoption of the directive), the Administrative Tribunal of Versailles had stated that the fact that the law applicable to waste from the extractive industry might change further to the adoption of the common position on this directive had no legal impact in the case under discussion. The circumstances have changed since then as the directive has been adopted. In this context, the German Decree of 24 July 2002 which authorises the filling of excavation voids with waste other than extraction waste should be repealed. If not, the Commission could bring an action before the ECJ for failure to comply with EC legislation. As an alternative measure, the salt mines could be considered as landfills with all the constraints under Directive 1999/31/EC! In other words, the filling of salt mines with incineration residues does not comply with Directive 2006/21/EC as it does not comply with the terms of Directive 1999/31/ EC on landfills. The 2006 Directive must be complied with even during the period between its adoption and the end of the transposition period. The operation which has been carried out as a recovery operation is to be classified as an illegal traffic of waste. Regulation (EC) 850/2004 on persistent organic pollutants Regulation (EC) 850/ primarily concerns environmental protection and the protection of human health. It has been adopted in order to ensure coherent and effective implementation of the Community s obligations under (i) the Aarhus Protocol to the 1979 Geneva Convention on Long-Range Transboundary Air Pollution on Persistent Organic Pollutants, which the Community signed on 24 June 1998, and (ii) the Stockholm Convention on Persistent Organic Pollutants, which the Community signed on 22 May Under Article 1, Regulation (EC) 850/2004 refers to the precautionary principle and establishes provisions regarding waste consisting of, containing or contaminated by persistent organic substances. Article 7 pertains to waste management and para 2 thereof states that waste containing such substances shall be disposed of or recovered in accordance with Annex V, part 1 in such a way as to ensure that the persistent organic pollutant content is destroyed or irreversibly transformed so that the remaining waste and releases do not exhibit the characteristics of persistent organic pollutants. The only permitted disposal and recovery operations listed in Annex V, part 1, are: D9 D10 R1 Physico-chemical treatment, Incineration on land, and Use principally as a fuel or other means to generate energy, excluding waste containing PCBs. These operations do not include filling of salt mines. Accordingly, the cases in question do not comply with Regulation (EC) 850/2004. On this point too, the operation carried out in Germany is to be classified as an illegal transfer of waste, as it does not comply with Directive 1999/31/EC on the landfill of waste (no active security, 23 Paragraphs Req Note 20.

7 [2007] 5 Env. Liability : Export of exhaust gas incineration residues to salt mines: recovery or disposal? : London 7 no control and monitoring of the site, no prior treatment of the waste and so forth). In addition to the foregoing, it should be noted that on 23 May 2001, Germany signed the Stockholm Convention on persistent organic pollutants and ratified it on 25 April Germany, accordingly, does not comply with its obligations under this Convention and the EC Regulation adopted to ensure its implementation under EC law. In the BREF for Management of Tailings and Waste-rock in Mining Activities, adopted in Seville in June 2004 by the European Integrated Pollution Prevention and Control Bureau, the Technical Working Group concluded that the filling of mines with such tailings and waste-rock was the best available technique for the management of salt mine residues. Moreover, these residues are not natural resources but waste from the salt mines. The argument according to which recourse to incineration residues avoids the use of natural resources is unfounded. If the illegal traffic is the responsibility of the notifier, the competent authority of dispatch must ensure, in accordance with Article 26, para 2 of Regulation (EEC) 259/93, that the exhaust gas incineration residue from household waste is taken back by the notifier or, if necessary by the competent authority itself, into the state of dispatch within 30 days from the time when the competent authority was informed of the illegal traffic or within such other period of time as may be agreed by the competent authorities concerned. Conclusion In conclusion, the filling of German salt mines with exhaust gas incineration residues from household waste, carried out under the cover of a recovery operation by French municipalities, should be classified as a disposal operation. This operation does not comply with several EC provisions, which justified the reasoned objections raised by the competent authority of dispatch against the recovery and the appeals lodged by the French competent authorities against the judgments of the Administrative Tribunals.