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Complying with mining waste directive - Rebecca Carriage

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

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Complying with mining waste directive - Rebecca Carriage

  1. 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. 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. 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. 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. 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. 6. Judicial interpretation (1) High Court Court of Appeal Supreme Court European Court of Justice (“ECJ”)
  7. 7. Judicial interpretation (2) o Precedent – higher to lower courts o “Distinguish” cases to avoid having to follow precedent
  8. 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. 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. 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. 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. 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. 13. Derogation – Article 3 MWD o Unpolluted soil o Waste arising from the extraction...(etc) of peat o RPS042 EA position statement
  14. 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. 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. 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. 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. 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. 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

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