Definition of “waste”, “by-product”, “end-of-waste status”
Limits to the characterisation of waste
Two sets of limits on the scope of the legal category of waste relate, respectively, to by-products and products obtained from recovered waste.
By-products
Directive 2008/98 integrates into law a distinction that has been established by Court cases. According to that distinction, a substance or an object obtained from a production process, the primary aim of which is not the production of that item may be regarded as a by-product rather than as waste provided four conditions are fulfilled. These conditions are as follows: the further use of the object or substance in question must be certain; it must be suitable for being used “directly without any further processing other than normal industrial practices”, after having been produced “as an integral part of a production process”; and its further reuse must be lawful in that such a substance or object fulfils all relevant products, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts” (Article 5 (1)).
Case-law provides examples of such by-products: leftover rocks from the operation of a mine to be used without further processing in the necessary filling-in of the underground galleries (Case C-114/01 AvestaPolarit Chrome Oy; Case C-457/02 criminal proceedings against Antonio Niselli), slurry produced in a piggery used as fertiliser (Case C-113/12 Donal Brady v. Environmental Protection Agency, §52-57), and heavy fuel sold as combustible fuel (Case C-188/07 Commune de Mesquer v Total France SA and Total International Ltd.).
Products obtained from recovered waste
A major innovation brought to waste law by Directive 2008/98 is that, under certain conditions, recovered waste may “cease to be waste.” The very notion of recovery carries with it such a limitation since it covers “any operation”, the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant where this operation occurs or in the wider economy (Article 4 (15)). In other words, where recovery consists of transforming waste into a product, the product escapes the legal regime of waste from the very moment when the application of such a legal regime is no longer warranted.
The Waste Framework Directive has thus instituted an “end-of-waste status” which rests on the idea that the recovered waste’s functional characteristics are identical to those of the corresponding product. The would-be new product must be “commonly used for specific purposes”; meet “the technical requirements for the specific purposes”; and meet existing legislation and standards applicable to products. Last, but not least, it needs to be established that “the use of the substance or object will not lead to overall adverse environmental or human health impacts”, and such a requirement applies, provided its ecological footprint would not be more significant than that of the corresponding product (nevertheless, hazardous waste may cease to be waste if recovery allows reuse authorised under the REACH Regulation, see Case C-358/11 Lapin elinkeino-, liikenne-ja ympäristökeskuksen liikenne ja infrastruktuuri-vastuualue v. Lapin luonnonsuojelupiiri ry, §59 et. seq.).
Any doubt as to whether those conditions are met should be at least partially alleviated by the adoption through Commission decisions of criteria “specifying the type of waste to which such criteria shall apply” which include “limit values for pollutants” likely to be released in relation to the recovery (Articles 6 (1) and 6 (2)).