FREDERIK MINK, WOUTER DIRKS, GERARD VAN RAALTE, HUGO DE by giq10337

VIEWS: 0 PAGES: 8

									                                                                                         Impact of European Union Environmental Law on Dredging 3




             FREDERIK MINK, WOUTER DIRKS, GERARD VAN RAALTE, HUGO DE VLIEGER AND MARK RUSSELL




IMPACT OF EUROPEAN UNION
ENVIRONMENTAL LAW ON DREDGING
A B S T R AC T                                   priority over EU law and is also more                  ON INTERNATIONAL LAW
                                                 helpful to the sector. Other Directives on
In certain aspects of environmental law          environmental protection, in particular the            The European Union is formed by a
there is a potential friction between EU         Habitats and Birds Directives, cause                   community of nations that have agreed by
Directives and international conventions.        administrative nightmares and lead to                  Treaty to transfer legislative and executive
In these cases, international conventions        delays or cancellation of projects and to              competences in a number of domains to
have priority over EU law because they           increased costs.                                       a supranational level. Environmental law
constitute treaties between sovereign                                                                   is an area where EU competences are far
nations. Thus when the question arises,                                                                 reaching because it was recognised early on
“Is dredged material waste or not?”,             INTRODUCTION                                           that environmental problems and pressures
the answer may not always be the same.                                                                  do not stop at national borders, but are felt
The European Commission has consistently         The European Dredging Contractors                      community wide.
argued that dredged material is a form of        established the European Dredging
“waste” since the holder attempts to get         Association (EuDA) in 1994 as a trade                  EU law is in essence built on three types of
rid of it. The industry, as represented by the   association for contacts with European                 instruments:
European Dredging Association, maintains         institutions; this includes influencing and            • Framework Directives (the term of
that dredged material is foremost a natural      tracking EU law that might impact the                    Directive is equivalent to a law in national
resource that should be kept in its              dredging sector. Amongst the areas                       legislation) define a general approach
environmental compartment. Since this            where EU legislation affects the industry,               which sets a number of boundary
difference is apparently a long way from         environmental law has taken a prominent                  conditions and constraints and have to
being resolved, another question arises:         role. The EuDA Environment Committee                     be implemented by each member state
Can the dredging community live with the         has recently prepared a comprehensive                    in accordance with its specific
EU waste hierarchy principles as such?           review of European environmental rules                   circumstances. Certain provisions of a
                                                 and their impact on the practice of                      Framework Directive may also be detailed
The answer as far as the waste hierarchy is      dredging and dredged material disposal.                  in a later stage at the European level and
concerned is a mitigated “yes, provided          This article presents a summary of the                   made effective by other legal instruments.
that the national authorities understand the     findings.                                                When the instrument of a Directive is
issue”. Moreover, for marine waters where                                                                 used in such a case, one speaks of a
the bulk of dredging takes place anyway,         Above, Beach replenishment along the Dutch coast         Daughter Directive.
the framework established under the              where water, sand and birds intermingle and EU         • Directives are equivalent to laws and are
umbrella of the London Convention has            Directives on Birds and Habitats pertain.                binding on the member states, except for
4 Terra et Aqua | Number 104 | September 2006




                                                                                                                                      law. As the ratification is done by sovereign
                                                                                                                                      states, the EU as a supranational body does
                                                                                                                                      not play a role. Consequently, International
                                                                                                                                      Conventions have priority over EU law.
                                                                                                                                      As will become evident, this may lead
                                                                                                                                      to friction between the rules at the
                                                                                                                                      international and supranational levels.

                                                                                                                                      Figure 1 illustrates the situation and lists
                                                                                                                                      also a number of advisory bodies and/or
                                                                                                                                      guidance documents that are helpful,
                                                                                                                                      but are not legally binding.

                                                                                                                                      EU law and dredged material
                                                                                                                                      EU law does not deal specifically with
                                                                                                                                      dredged material, nor is there any intent
                                                                                                                                      to do so. Nevertheless, a number of EU
                                                                                                                                      Directives have an impact on the
                                                                                                                                      management of dredged material, either
                                                                                                                                      directly or indirectly. Figure 2 presents an
                                                                                                                                      overview of the structure of the relevant
Figure 1. Hierarchy of legislation.                                                                                                   regulations and the relationship between
                                                                                                                                      the various Directives.

  the fact that they first have to be           International Conventions, such as the                                                The conclusion is that relevant rules can
  “transposed” into national law.               London Convention which was established                                               be grouped under the three headings of
  This poses a particular problem:              under the umbrella of the IMO, but also                                               waste, water and habitat protection.
  Some member states have a tendency            the Oslo-Paris (OSPAR) Convention for the                                             Of these three, the Waste Framework
  to transpose (environmental) EU law           Atlantic and the North Sea, are agreements                                            Directive and related Directives occupy the
  in a very strict and stringent manner,        between sovereign nations; each nation                                                most discussion time, since a great deal
  while others tend to follow the minimum       decides independently whether or not to                                               depends upon defining what constitutes
  requirements of the Directive.                ratify a particular Convention. When a                                                waste and, subsequently, on the limits of
• Regulations are legal decisions taken         certain number of countries have ratified a                                           competence of the regional seas
  at EU level that are binding as such for      Convention, it can become international                                               conventions versus EU law.
  the member states and do not need
  transposition. They usually concern more
  technical details on which there is no
  major disagreement.
                                                                       Framework




                                                                                        WATER FRAMEWORK                         WASTE FRAMEWORK
                                                                                                                                                                      HABITAT DIRECTIVE
                                                                                        DIRECTIVE 2000/60/EC                     DIR. 75/442/EEC +
                                                                                                                                                                          92/43/EEC
                                                                                                                                    91/156/EEC
It may be clear that the EU law has the                                                                                           Under revision

potential to deeply influence national
legislation; also clear is that the resulting
                                                                       Daughters




                                                                                                                                                     HAZARDOUS
                                                   E U LEGISLATION




                                                                                    GROUND             VARIOUS
                                                                                                                   SHIPMENT        LANDFILL
hierarchy of rules and regulations is                                                WATER              WATER
                                                                                                                  2006/xx/EEC      99/31/EC
                                                                                                                                                        WASTE
                                                                                                                                                      91/689/EEC
                                                                                   80/68/ EEC          QUALITY
anything but simple, while the transposition                                       Under revision   Draft
mechanism often results in the opposite
effect of what was intended: In several                                            NITRATES
                                                                                                     INT. POLL.
                                                                     umbrella




                                                                                                                                    MINING+            SEWAGE
                                                                                                    PREVENTION                                                            WILD BIRDS
cases transposition creates important
                                                                     Under




                                                                                   DIR.                                           EXTRACTION           SLUDGE
                                                                                                     CONTROL                                                              79/409/EEC
                                                                                   91/676/EEC                                      2006/xx/EC         86/278/EEC
differences in national law. Moreover, the                                                            96/61/EC
                                                                                   Agriculture      Industry                                         Under revision
impact of a particular EU law frequently has
                                                 CONVENTIONS




to be tested before the Court of Justice in
                                                  NATIONAL




                                                                                                                                 Basel Convention
order to assess its judicial limits.                                                   London, OSPAR, Helcom,
                                                                                                                                   on export of
                                                                                                                                                                      Ramsar Convention
                                                                                       Barcelona Conventions                                                            for Wetlands
                                                                                                                                 Hazardous Waste


The next question to be raised is: how do
International Conventions and Treaties
relate to EU law and to national law?           Figure 2. Overview of the structure of the relevant regulations and the relationship between the various Directives.
                                                                                        Impact of European Union Environmental Law on Dredging 5




FREDERIK MINK                                WASTE FRAMEWORK DIRECTIVE                                       Basically, it is difficult to understand why a
joined Interel in 2005 as a Senior                                                                           material that can be “re-used” in the same
Consultant with a focus on transport,        The Directive establishes a hierarchy,                          application as where it was found should be
energy and environment. For 10 years he      a strategy for prioritising management                          called waste in the first place (see Box for a
was secretary-general of the European        of “waste” as follows:                                          case study).
Dredging Association (EuDA). Prior to        a) Prevention
this he worked for over 20 years for         b) Re-use                                                       As a clear definition apparently has not yet
Westinghouse Corporation’s nuclear           c) Recycling                                                    been found, the question becomes: Can the
division.                                    d) Processing or recovery                                       dredging community live with the EU waste
                                             e) Disposal                                                     hierarchy principles as such? With this in
                                                                                                             mind the EuDA Environment Committee
WOUTER DIRKS                                 “Waste” is defined as “any substance or                         has developed an approach in the form of
graduated in 1990 from Technical             object which the holder discards or intends                     a decision logic diagram in line with the
University Delft, the Netherlands. He then   to discard”. Under this very broad definition                   established “waste” hierarchy. A distinction
joined Ballast Nedam working on inter-       the European Commission has consistently                        between marine water and fresh water
national construction projects. Since        argued that dredged material is a form of                       dredging has also been made since the
1995 he has worked in the dredging           “waste” since the holder attempts to get                        constraints are somewhat different.
industry and is now employed by Van          rid of it. So far this discussion has not been                  These distinctions are presented in Figures 3
Oord where he is now lead engineer           very fruitful: The industry as represented by                   and 4. In both cases the logic sequence of
environmental issues. He is chairman of      the EuDA maintains that dredged material                        the waste hierarchy is followed.
the Environment Committee of EuDA.           is foremost a natural resource that should
                                             be kept in its environmental compartment                        Marine water dredging
GERARD VAN RAALTE                            and that this does not in itself cause the                      The fact that the regional sea conventions
graduated in 1976 with a MSc in civil        material to become a form of waste.                             define their own limits of jurisdiction was
engineering from Technical University
Delft, the Netherlands. After working at
GeoDelft and Breejenbout, he joined                  EU Stratery
Boskalis’ in-house engineering department
                                                          Prevention




Hydronamic in 1986 where he is now a
Project Engineer. He is a member of both                                NEED FOR DREDGING?
the EuDA Environment Committee and
CEDA Environmental Steering Committee.

                                                                                                                             Beneficial use      <5%
HUGO DE VLIEGER
joined the Belgian-based DEME Group
in 1973, where he presently fulfils a
                                                          Re-use




                                                                                                   Y                         Relocation at
                                                                                Re-use                                                           >5%
number of top-level functions: Chairman                                                                                    selected locations
of the Board, DEC NV; General Manager,
Baggerwerken Decloedt & Zoon;
Managing Director, CVBA Fasiver and                                                                                           Placement in
                                                                                    N                                                           +/- 80%
NV Silvanmo; and Chairman, Management                                                                                     environmental comp.

Committee De Vries & van de Wiel BV.
                                                          Recycle




                                                                                                       Y
                                                                              Processing                                       Treatment            <5%
MARK RUSSELL
is Director of Marine Aggregates for
                                                                                    N
the British Marine Aggregate Producers
Association, the trade association for                                                                                          Aquatic          <5%
the UK marine aggregate sector. He has
                                                          Disposal




been involved in the industry for over                                   CONFINED DISPOSAL
10 years, working for the largest British
producer, Hanson Aggregates Marine,                                                                                             Upland           <1%
                                                      N.-B.: the annual volume of dredged material in the marine
before moving to BMAPA five years ago.                environment is estimated at 200-250 million tons/year for the EU.
                                                      The % in the diagram indicates roughly the estimated breakdown.

                                             Figure 3. Decision logic diagram for dredged material in a marine environment.
6 Terra et Aqua | Number 104 | September 2006




carefully considered. For the OSPAR                                   concerns the territorial limits of competence   The conclusion is that overall some 5-10%
Convention the limit is the tidal influence                           of EU environmental law. There is no            of the dredged material may be so
in the tributaries. Disposal of dredged                               simple, nor single answer to that question,     contaminated that it needs to be disposed
material is dealt with in essence under the                           but the Water Framework Directive (see          of in a confined facility. At this point in the
Dredged Material Assessment Framework                                 below) claims jurisdiction roughly until one    review the question arises whether disposal
(DMAF) which was developed for the                                    mile beyond the coastline. However,             sites fall under any specific EU waste
London Convention and has been reviewed                               international law supersedes EU law and         legislation and if so which ones.
in Terra et Aqua (Burt and Fletcher, nr. 66                           the jurisdictional boundary of the OSPAR
March 1997) previously. The OSPAR                                     Convention and other regional conventions       The answer is that upland disposal would be
Convention clearly has no competence                                  extends well inland. The EuDA Environment       covered by the so-called Landfill Directive,
concerning upland disposal or for beneficial                          Committee therefore takes the position          which introduces stringent isolation
use applications outside the marine                                   that for marine dredging the international      requirements and leads to considerable
compartment. As the Conventions accept                                conventions apply as implemented by             expense. Landfill sites are typically not
the placement of dredged material back                                national law and EU law only may apply          intended for the disposal of dredged
into the marine waters, the conclusion was                            when nothing is foreseen in these               material, but in some cases there is no
drawn that EU law has hardly any impact                               conventions. Since the conventions accept       alternative available. In most countries
on the dredging process in marine and                                 that dredged material is put back into the      concerned this applies only to a minute
coastal waters, except when heavily                                   water body, unless it is too contaminated,      fraction of the dredged material.
contaminated materials are involved.                                  the Environment Committee concludes that
Figure 3 shows the quantities and the                                 for dredging in marine waters current EU        So what about sub-aquatic disposal sites?
breakdown into categories.                                            law may only be relevant to the confined        These are clearly not covered by specific EU
                                                                      disposal of dredged material on land.           rules and must be regulated at the national
At this point one faces the potential friction                                                                        level. Fundamental to the assessment
between international law under the                                   Figure 3 shows the quantities of dredged        stated above is the consideration that
Conventions and EU law as a supranational                             material and the assignment to the              placing dredged material back into its
body of rules. The first question to ask                              categories in the waste hierarchy.              environmental compartment is a form of
                                                                                                                      re-use that is in principle beneficial for the
                                                                                                                      environment. In fact, it is particularly helpful
 EU Stratery                                                                                                          in maintaining the sediment balance.
      Prevention




                                                                                                                      Fresh water dredging
                     NEED FOR DREDGING?
                                                                                                                      With respect to fresh water dredging,
                                                                                                                      one must recognise that the Conventions
                                                              Y                                                       no longer play a role, but that the Waste
                                                           10-20%
                                                                            Beneficial use
                                                                                                                      Framework Directive applies. The same
                                                                                                            UPLAND
                                                                                                                      approach can be followed as for marine
                                                               Y                                                      waters, since in both cases the waste
      Re-use




                                               Y           +/- 20%          Relocation at
                             Re-use
                                                                          selected locations
                                                                                                                      hierarchy is respected. The resulting
                                                                                                                      interaction with other EU legislation such
                                                                                                            AQUATIC
                                                               Y
                                                                                                                      as the Water Framework Directive may be
                                N
                                                           +/- 30%           Placement in                             stronger. In terms of the decision logic the
                                                                         environmental comp.
                                                                                                                      following “disposal” modes were considered:

                                                  Y                                                                   • Beneficial use:
      Recycle




                                               40-50%
                           Processing                                         Treatment                                 – as fill material
                                                                                                                        – as construction material
                                 N                                                                                      – for soil improvement of agricultural land

                                                                               Aquatic
                                                                                                                      • Relocation:
      Disposal




                     CONFINED DISPOSAL
                                                <30%                                                                    Placing dredged material at specific
                                                                                                                        locations in the environmental
                                                                                Upland                                  compartment so that it fulfils its role in
  N.-B.: the annual volume of dredged material in the fresh water                                                       the sediment balance.
  environment is estimated at 50-60 million tons/year in the EU. The % indicates the estimated breakdown.

Figure 4. Decision logic diagram for dredged material in a fresh water environment.
                                                                                                     Impact of European Union Environmental Law on Dredging 7




Figure 5. Where does the Water Framework Directive apply? In the northern Netherlands, a branch of the Rhine, the River IJssel, carried contaminated silt into Lake Ketelmeer
where it settled into the bed. In an action to clean-up the waterway, the IJssel-oog (eye) repository was constructed for safe storage of contaminated dredged materials.




• Placement:                                                 which establishes the (stringent) provisions                  Contaminants
  The disposal of dredged material at                        for the landfill sites, but which also                        The last aspect to be discussed under this
  suitable disposal locations.                               recognises that disposal of dredged material                  heading concerns the contaminants.
                                                             along waterways, on agricultural land or at
• Processing:                                                suitable subaquatic locations are acceptable                  The European Commission will not set any
  – separation of sand and silt                              solutions, as long as contaminants remain                     specific limit values for dredged material;
  – manufacturing bricks or basalt                           below certain limits. The Landfill Directive                  this is left to the member states. The only
  – biological treatment to reduce                           thus provides a number of escape routes                       quantitative values that have been around
    contaminant level                                        that help to avoid disposing dredged                          are limits set in a separate Sewage Sludge
  – dewatering, ripening                                     material in landfills. Some member states                     Directive; for lack of other standards these
  – land farming                                             have recognised these possibilities in their                  have sometimes been quoted in connection
  – and more…                                                national rules, but others appear to focus                    with dredged material. However, these
                                                             more on the isolation provisions for landfill                 values are currently being revised since they
Direct impact of specific waste legislation is               sites, thus adding to the cost of dredged                     are too high and they are not actually
in this case limited to the Landfill Directive               material disposal.                                            suitable for dredged material.
8 Terra et Aqua | Number 104 | September 2006




Figure 6. Completion of the Ketelmeer clean-up led to better access to the River IJssel, which resulted in clean materials to create De Kreupel, a 70 ha bird sanctuary.




Member states have been requested under                       process of the Water Framework Directive                      Even though these questions can be
the rules of the OSPAR Convention or                          (which is foreseen to last some ten years),                   considered reasonable, it is too early to
equivalent, to set limit values for sea                       it has been repeatedly emphasised that this                   provide answers since the relevant River
disposal of contaminated dredged material.                    law has a long-term goal. It is recognised                    Basin Management strategies and the
As a consequence one can find a wide                          that water quality varies considerably over                   Daughter Directives are still under
range of classification systems and                           time and as a function of physical                            development. Much will depend on the
threshold values in some member states,                       parameters, chemical conditions, biological                   consideration of variability over time:
while other countries are of the opinion                      and ecological factors as well as                             does exceedance of established quality
that dredged material does not lend itself                    hydromorphological boundary conditions.                       standards, e.g. for TBT, matter if the annual
to setting limit values for individual                        Obviously it is no easy task to cast such a                   average is within the limits? How can the
substances and should be assessed on                          framework into detailed implementation                        legislator deal with the weak links between
a case by case basis.                                         measures and therefore a series of                            chemical quality and hydromorphology?
                                                              questions arises:
                                                              • Will there be constraints on dredging                       In the implementation process it has been
WATER FRAMEWORK DIRECTIVE                                         operations in ports where the risk of                     repeatedly stated that the Directive is not
                                                                  releasing contaminants from silt cannot                   intended to interfere with normal
The Water Framework Directive, which                              be excluded?                                              operations and maintenance practices of
became European law in 2000, has as its                       • Is short-term deterioration of water                        waterways and ports. This will be translated
goal to gradually improve the quality of                          quality resulting from operational                        into guidance for selection of sampling and
European waters to some standard which                            interventions and maintenance practices                   monitoring points remote from areas of
may be called “good”. This objective is very                      an issue?                                                 activity and in establishing quality standards
laudable, but the way to get there is still                   • How should one deal with the interaction                    that recognise (some) variability in the
very much under discussion amongst the                            between water and sediment?                               aquatic environment.
Commission, the member states and the                         • Can one legislate water quality without
stakeholders.                                                     setting boundary values for sediment?                     The conclusion of this committee is that
                                                              • How should changes in hydromorphology                       maintenance dredging will probably not
The question raised here is: Could this                           owing to infrastructure works be                          be affected by this Directive, but that
Directive possibly be a constraint for                            assessed in terms of their impact on                      capital dredging may become even more
dredging operations? In the implementation                        water quality?                                            constrained in water bodies falling under its
                                                                                          Impact of European Union Environmental Law on Dredging 9




scope. One may also foresee new business          project development. The dredging sector                       waters by 2021. It also claims competence
opportunities for environmental dredging in       can often be of considerable help in                           to regulate the status of the seabed and
water bodies where historic contamination         creating new nature sites near the                             its subsoils. Currently good environmental
needs to be removed in order to meet the          development area. This can take the form                       status is not defined, but by analogy to the
ecological objectives (Figures 5, 6 and 7)        of artificial islands, extended beaches and                    implementation of the Water Framework
                                                  berms or habitat restoration through the                       Directive one can assume that it will be
                                                  re-creation of mudflats and salt marshes.                      established on the basis of a series of
HABITATS AND BIRDS DIRECTIVES                                                                                    parameters, including physical and chemical
                                                                                                                 conditions, biological and ecological
These two Directives aim to protect               MARINE STRATEGY                                                processes, physiographic and geographic
biodiversity and rare biotopes and species.                                                                      factors. In the wake of such an approach
The implementation process has led to the         The European Commission published a                            it is clear that the European Commission
establishment of an ecological network across     Thematic Strategy on the Protection and                        attempts to establish jurisdictional
Europe called Natura 2000. Natura 2000            Conservation of the Marine Environment                         competence over the wider marine environ-
consists of designated “special areas of          in October 2005 (see http://ec.europa.eu/                      ment, where currently only international
conservation” under the Habitats Directive        environment/water/marine.htm). This is                         bodies like OSPAR and the respective
and “special protection areas” under the          currently a document for discussion, but may                   member states are competent to regulate.
Birds Directive most of which would be            have repercussions on dredging in a more
interconnected via corridors or other means       distant future. The strategy and the resulting                 The discussion on the Marine Strategy is in an
of protection. Why would these Directives         proposed Directive aim to achieve “good                        early stage and it is expected that member
impact dredging?                                  environmental status” of European marine                       states will be reluctant to give up their exclusive

The reason is that coastal ports and harbours
are very often located at, near or adjacent to
Natura 2000 sites. This imposes on ports
many restrictions in case they want to
expand their site area or when they wish to
build new infrastructure. In short port
development projects face severe delays and
increased costs, in particular when situated at
the mouth of estuaries. Similar observations
can be made for infrastructure development
along valuable stretches of coastline.

The consequences for the dredging sector
are likely to be indirect, but significant.
The European dredging industry has
noticed increasing problems with permits
for infrastructure development in the
marine environment and it faces increasing
monitoring requirements in sensitive
environments. A number of important
infrastructure development projects have
even been cancelled. Other impacts would
entail such things as the presence of
designated marine sites near ports, where
disposal is not permitted; delays in
infrastructure projects near designated sites
and problems with establishing acceptable
forecasts for habitat impact studies.

Again, there are also opportunities: The
Habitats Directive foresees the possibility to
provide compensation measures if valuable         Figure 7. Also created from clean fill is an 800 ha nature reserve
nature would be threatened owing to               at the mouth of the IJssel (IJsselmonding).
10 Terra et Aqua | Number 104 | September 2006




jurisdiction over marine zones. The following     CONCLUSION                                          The impact of the Water Framework cannot
quotes give an indication of the intention                                                            yet be established in full, but it is likely
of the European Commission on the role it         The conclusion of this assessment by the            to have mainly indirect effects as a result
wishes to play in the marine environment:         EuDA Environment Committee is that the              of complicating project development.
• “Many of Europe’s regional seas are the         impact of EU environmental legislation on           Direct effects may result from additional
    subject of international conventions and      the dredging sector is fundamental with             monitoring requirements during projects and
    a number of these have made excellent         respect to the question of dredged material         after completion as imposed by the respective
    contributions to the marine protection.       management and priorities, but is restricted        permitting authorities in member states.
    However, these conventions have few           when it comes to detailed implementation
    enforcement powers and this                   rules. The main impact results from the             The conclusion with respect to dredging
    compromises their effectiveness in            Landfill Directive, but even here much              operations in relation to the Habitats and
    achieving agreed goals.”                      depends on the way the member state                 Birds Directives is: their effects will be
• “In order to build on progress made             concerned has transposed this piece of              mainly indirect but not insignificant.
    through the existing institutions, policies   legislation into national law. Especially for       The effects of this legislation can lead to
    and conventions and to take action to         marine waters, where the bulk of dredging           significant delays in project approval and
    make further progress, there is a need to     takes place anyway, the framework                   also to important increases in costs caused
    formulate a clear, overarching vision for     established under the umbrella of the               by extended needs for impact assessment.
    the marine environment and associated         London Convention has priority over EU              Of particular concern to the industry is the
    policies. A strong EU policy on marine        law and is also more helpful for the sector.        fact that impact assessment for ecological
    protection will complement and bolster                                                            effects in marine waters may be very
    the current patchwork of institutional        The Marine Strategy may in the future               difficult, since the environment is so
    arrangements by providing a legally           undermine the exclusive competence of the           dynamic, and thus lead to further delays
    enforceable framework (…).”                   international conventions.                          in the approval process.




                                                              C A S E S T U DY

 That the lofty definition of “waste” in EU       in a name?”, had to review the case law             substance or object which the producer or
 legislation can lead to lengthy and rather       produced by the European Court on these             the person in possession of it discards or
 useless debates may be illustrated by a          and similar matters and based thereon               intends to discard”.). The interpretation thus
 recent case involving the Port of London         produced a long argument which                      hinges on the meaning attributed to
 Authority (PLA) and the English                  concludes that:                                     “discard”. Lord Kingsland, after a lengthy
 Environment Agency (EA).                                                                             review of the jurisprudence, concludes that,
                                                  1. “the dredged substance [from the                 as long as the holder of the material intends
 The PLA intends to carry out dredging in            Prince’s Channel] is [not waste, but] a          to re-use or recycle, it never becomes waste
 the River Thames Prince’s Channel in view           product, or at least a by-product;               on the way; if the material is intended to be
 of increasing the navigational depth and it      2. if, nevertheless [the interpretation of          recovered there is some leeway for inter-
 plans to use the dredged sand to improve            the Waste Framework Directive would              pretation. Lord Kingsland is of the opinion
 a nearby construction site. EA has taken            conclude that] it is initially waste, then       that it still does not become waste, but even
 the view that the material resulting from           it is fully recovered when it becomes            if it is considered to become waste, the part
 dredging is waste according to the Waste            physically identifiable as a product (….)        that is recovered turns into a “product” or
 Framework Directive and should therefore            once it is in the hopper of the dredger”.        a “by-product” and is no longer waste.
 meet stringent requirements when it is
 disposed of on land. The EA does not wish        The reader will notice that in the legal sense      Only material that the holder explicitly
 to recognise the fact that clean sand can        it makes significant difference at which step       intends to discard, or is forced to discard, is
 be used beneficially as construction             in the waste hierarchy one finds oneself.           thus “waste” under the definition. A long
 material. The case was submitted to Lord         Lord Kingsland draws the conclusion that,           argument is probably not necessary to
 Kingsland for a legal ruling.                    once dredged material is targeted for re-use,       conclude that this kind of reasoning is so
                                                  recycle or recovery, it is no longer waste, or it   subtle and sophisticated that the dredging
 The Right Honourable Lord, rather than           has never been waste in the first place.            contractor no longer feels at ease. Nor for
 stating something like “don’t be silly”, or      These conclusions are in fact based on a very       that matter does the European Dredging
 “let’s use common sense”, or even “what’s        strict reading of the definition (“Waste is any     Association.

								
To top