| Author (Person) | Carstens, Karen |
|---|---|
| Series Title | European Voice |
| Series Details | Vol.9, No.32, 2.10.03, p22 |
| Publication Date | 02/10/2003 |
| Content Type | News |
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Date: 02/10/03 By Karen Carstens A ruling from the European Court of Justice on what constitutes mining waste looks set to cost the industry millions of euro. MINING companies could face a massive increase in their operational costs following a recent European Court of Justice (ECJ) ruling. In a judgement that deals with the definition of mining waste, the Luxembourg-based Court found that by-products of mineral extraction, such as aggregates used in the construction industry, should be considered waste. This means extra expense for mining companies because EU waste rules state that operators must apply for permits and use only licensed waste-handlers. The case stemmed from an action brought by Finnish firm AvestaPolarit, which was irked by the new requirements when it sought a run-of-the-mill national environment permit for a chromium ore mine it operates in the north of the country. The company filed a complaint with the Finnish supreme court, which in turn went to the ECJ for guidance. In a ruling on 11 September, the European judges said that leftover rock from any mine should be defined as waste because it requires processing before it can become a saleable product, such as gravel. Antti Pihko, the president of AvestaPolarit's chrome division, dismissed the ruling as “totally haywire”. “It's more or less saying you can't have a by-product,” he said. “It doesn't make sense.” Ursula Schliessner, who is a waste management legal expert with law firm McKenna Long & Aldridge, said the ruling “unnecessarily restricts the definition of by-products”. Transport and handling of the rock would become more expensive, she warned. However, the Brussels-based industry body Euromines accepts there are positive aspects to the ruling. Secretary-General Corina Hebestreit said it did, at least, clarify that materials that have been extracted “are not necessarily waste”. In mining involving open pits, once an initial layer of topsoil has been peeled off, 'waste rock' needs to be removed before the valuable ore may be harvested, Hebestreit explained. “There can be a huge amount of waste rock involved,” she said. This leftover substance needs to be stored before it is, for instance, ground up and sold as gravel, or used to build dykes or those unattractive yet practical noise protection walls alongside motorways. Another option is to use the rock to refill the site once excavation has ceased, thus restoring the landscape. “If it is stored and marked for use, then it cannot be waste,” Hebestreit said. But Schliessner insists that the ECJ ruling, which relies in large part on a precedent set in an earlier case involving Finnish mines, “creates a lot of uncertainty and ambiguity”. Timing is a major issue, she said, for it fails to state how long a firm has to decide whether it plans to use the excavated rock for 'backfilling', as the industry jargon goes, or to sell it for other purposes. As Antti Pihko put it: “It's hard for me to believe how a piece of rock could, after six months or even six years, turn into a piece of waste. It's still a piece of rock.” The ruling could also have ramifications for the EU's 1999 landfill directive, under which waste left lying for a certain period must be classified as a landfill, at which point further legal requirements would apply. This could potentially add enormous costs to mine waste management. The ECJ said it had an “obligation to interpret the concept of waste widely in order to limit its inherent risks and pollution”. In this vein, only rock used for backfilling could be exempt from classification as waste, the ruling states. Pihko argues that since AvestaPolarit immediately marks most of the waste rock at its chromium ore site for backfilling, it will probably not be affected by the ruling. Still, he said, many others could be. The ruling creates a bizarre legal situation, he claims, whereby barren rock mined as a by-product at his chromium ore mine and sold as an aggregate would be branded waste. At the same time, a competitor could be mining aggregate as its primary product for sale, meaning it would not be waste. “It's a valuable material for us, it's definitely not waste,” he said. Schliessner said firms should, however, be even more concerned about a second aspect of the ruling. This concerns a clause in the EU's framework waste directive which exempts mining waste from the law's requirements if it is already covered by “other legislation”. Overruling arguments made by the European Commission and the Dutch and Finnish governments that this refers only to EU legislation, the ECJ said it could also refer to national laws, provided they offer “equivalent environmental protection” to the framework directive. The upshot of this, according to Schliessner, is “there may be a lot of national mining legislation that would be invalid”. The Court, she said, had overreached itself in adding “far-fetched” equivalence criteria, only thinly justified by a vague preamble in the directive. Mining waste, she added, is one of the largest single segments of waste in the EU. “It's a huge amount.” If national laws are not deemed up- to-scratch based on this second aspect of the ECJ ruling, then more stringent EU measures under the waste framework directive would apply. These tougher measures would have different quality criteria in order to deal with waste, putting topsoil and rock back into place and for landscaping in general. “The quality criteria are much stricter [under the framework directive],” Schliessner said. Under national laws, the mining sector is often strongly connected to the energy sector, and many bigger enterprises used to be state-owned, so there could be substantial national interest from governments in making sure the legislation is right. This also applies to the ten new member states due to join the Union in May 2004. In these countries big, formerly state-owned mines could be especially badly hit by new landscaping and environmental requirements. But one aspect of the ruling could be overtaken by legislative events: a first ever EU directive on mining waste is now in the process of being drawn up following a proposal last spring from the Commission, making the question of national versus EU legislation a moot point. A ruling from the European Court of Justice on 11 September 2003 on what constitutes mining waste looks set to cost the industry millions of euro. |
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