Contaminated soil held to be waste by European Court

The European Court of Justice has continued its expansive interpretation of the meaning of "waste" in EU waste legislation, ruling that an unintentional spillage from petrol storage tanks was waste. More significantly, it held that any soil contaminated by the spillage was also waste, even before it was excavated. In the UK the decision may have important implications for the difficult overlap between the contaminated land regime and waste clean-up powers.

Van de Walle et al concerned a petrol station in Brussels leased by Texaco and operated by an independent manager under a service agreement. As a result of defects in the storage tanks, a quantity of hydrocarbons leaked into the soil.

When the leak was later discovered, Texaco terminated the operating contract alleging negligence on the part of the manager and, without admitting any liability, carried out a partial decontamination of the site. The local authority was faced with the costs of full decontamination, and brought criminal proceedings against Texaco under local waste legislation which permitted it to recover costs.

The definition of "waste" under the Belgian law reproduced the definition in the EU waste framework Directive 75/442, and the Belgian court referred the matter to the European Court of Justice seeking guidance as to whether an accidental spillage and any soil contaminated by the spill constituted waste in law.

Under Article 1 of the Directive, "waste" is defined as "any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard."

The European Court noted that one of the categories in Annex I included materials that had been "spilled, lost or having undergone other mishap."

However, in line with its case law, it held that this was not determinative in itself, and that the classification of waste "is to be inferred primarily from the holder's action and the meaning of the term 'discard'."

Again, following its case law, it held that given the environmental goals of the Directive, together with the principles of precaution and prevention, the term "discard" should not be given a restrictive meaning. It followed that when a substance or object is a product which is not itself wanted for subsequent use and which the holder cannot economically use without prior processing, it must be considered a burden which the holder seeks to discard.

Applying this approach to the spillage in question, it was clear that the hydrocarbons were not a product which could be reused without processing. "Those hydrocarbons are therefore substances which the holder did not intend to produce and which he 'discards', albeit involuntarily, at the time of the production or distribution operations which relate to them."

The next question was whether the contaminated soil was also waste within the meaning of the legislation. The European Commission argued that once soil contaminated with the spillage was excavated it would be waste, but argued that as a general rule unexcavated contaminated soil should not be considered a waste.

The Advocate General, in his advisory opinion, also argued that the crucial test for the soil was whether the holder was required to discard it. He felt that the Directive itself contained no obligation to discard such soil itself, and that question would be determined by other relevant EU or national legislation.

The European Court was not prepared to apply these qualifications. It felt that the hydrocarbons could not be separated from the land which they had contaminated and could not be recovered or disposed of unless the land was also subject to the necessary decontamination: "That is the only interpretation which ensures compliance with the aims of protecting the natural environment and prohibiting the abandonment of waste pursued by the Directive." The fact that the soil had not been excavated had no bearing on its classification as waste.

Given the fact that the site in question was being operated by an independent manager, the court also considered the extent to which Texaco as the product supplier had responsibilities under the waste legislation.

It noted that under the Directive the primary responsibility for disposal and recovery fell on the waste "holder", defined in broad terms as the producer of the waste or the person in possession of it.

However, according to Article 15 of the Directive and in line with the "polluter pays" principle, the financial costs of disposal or recovery fell on the persons who cause the waste whether they are holders, former holders or the producers of the product from which the waste came. In the circumstances of the case, the operating manager had the hydrocarbons in stock when they became waste and could therefore be considered to have produced them.

He should therefore be considered to be the holder of the waste under the Directive. However, if the national court decided that the poor condition of the storage facilities and the subsequent leakage could be attributed to a disregard of contractual obligations by Texaco, then, the court held, Texaco's activities could be considered to have produced the waste and it could accordingly be regarded as the holder.

The implications of the decision in the Van de Walle case will need to be carefully assessed. For the UK Government and the environment agencies, one immediate issue may be the need to reconsider the relationship between the clean-up powers under the contaminated land regime and the specialised waste legislation under the Environmental Protection Act 1990.

Section 78YB(3) of the 1990 Act provides that remediation notices under the contaminated land regime may not be served in respect of contaminated land where it appears to the local authority that the powers of a waste regulation authority under section 59 of the Act, dealing with the removal of unlicenced disposals of waste, could be exercised. The potential burdens on the innocent occupier of land are, however, severely limited under section 59.

If, according to the European Court, both unintentional spillages and any soil contaminated by the spillages are now to be considered as waste, local authorities may feel encouraged to pass the burden of exercising clean-up powers, and the potential difficulties of recovering costs, to bodies such as the Environment Agency.

Richard Macrory, Professor of Environmental Law, University College.

Professor Macrory is a board member of the Environment Agency but the views expressed here are personal.
 
Republished with permission of ENDS Report