Presentation by Rebecca Carriage, associate, Mills & Reeve LLP at the CBI's minerals group workshop. London, September 2010.

1. CBI Minerals Group – Mining Waste
Title goes here
Directive
Subtitle goes here
What is extractive waste? A legal summary
27 April 2010
11 October One 2010
Name Surname
Rebecca Carriage, Associate
Name Surname Two
Mills & Reeve LLP

2. Why is it a complex issue?
o Directive 2006/12/EC on waste (“the 2006 Waste
Framework Directive”)
o Directive 2008/98/EC on waste and repealing certain
Directives (“ the 2008 WFD”)

3. The 2006 WFD definition of waste
o “waste” shall mean any substance or object in the
categories set out in Annex I which the holder discards
or intends or is required to discard
– Article 1(a) 2006 WFD

4. The 2008 WFD definition of waste
“waste” means any substance or object which the holder
discards or intends or is required to discard
– Article 3 paragraph 1 2008 WFD

5. Transposition of the MWD
o Directive 2006/21/EC on the management of waste
from extractive industries…(“the MWD”)
o Environmental Permitting (England and Wales)
Regulations 2010 (originally 2007)

6. Judicial interpretation (1)
High Court
Court of Appeal
Supreme Court
European Court of Justice (“ECJ”)

7. Judicial interpretation (2)
o Precedent – higher to lower courts
o “Distinguish” cases to avoid having to follow precedent

8. Key ECJ decisions on “waste” (1)
o Tombesi C - 304, 330, 342/94 and 224/95
o Arco Chemie C – 418/97 and 419/92
– “Certain [ie. objective] circumstances may constitute evidence that
the holder has discarded the substance or intends to or is required
to discard it within the meaning of Article 1(a)”

9. Key ECJ decisions on “waste” (2)
o Palin Granit C – 9/00
o Wallonne C-129/96
o Saetti C – 235/02
o Italian Republic C – 194/05

10. Extractive waste definition
o MWD Article 2, paragraph 1
– “…waste arising from the prospecting, extraction,
treatment and storage of mineral resources and the
working of quarries…”

11. What is not extractive waste? (1)
o Article 2, paragraph 2 MWD
– (a) waste which is generated by the prospecting,
extraction and treatment of mineral resources and the
working of quarries but which does not directly result
from those operations

12. What is not extractive waste? (2)
– (b) waste resulting from the offshore prospecting,
extraction and treatment of mineral resources
– (c) injection of water and re-injection of pumped
groundwater…

13. Derogation – Article 3 MWD
o Unpolluted soil
o Waste arising from the extraction...(etc) of peat
o RPS042 EA position statement

14. ECJ case law specific to mineral
extraction (1)
o Palin Granit - “leftover stone” from granite quarrying
– could be classed and a by-product
– economic value
– certainty of re use
– Integral part of the production process

15. ECJ case law specific to mineral
extraction (2)
o AvestaPolarit Chrome C – 114/01
– long-term (30 years +) open cast chrome-mining
– proposed move to underground working
– “leftover materials” from ore dressing
– filling in galleries underground
– lawfully used
– guarantees of use

16. By-Products in the 2008 WFD
o Article 5
(a) use certain
(b) use direct
(c) integral part of production process
(d) use lawful

17. CBIMG guidance note July 2010
o not just voids/galleries – also agreed restoration plan
o excavating site, extracting mineral and restoration all
part of production process
o BUT silt lagoons – treatment conundrum – yet to be
resolved – see EPR6.14

18. Where are we now?
Two approaches – or are there?
o CBIMG guidance note – by-product route
o Step-by-step approach with “intention to discard” as
staring point

19. Domestic case-law
o EA v Inglenorth (2009) EWHC 670
– same “holder”
– no intention to discard
o R v W, C and C (2010) EWCA Crim 927
– different holder and recipient
– payment for the material
– Inglenorth distinguished