The Dutch Foundation for Administrative Litigation Advice advises in criminal waste case against NAM (Dutch Petroleum Company)

The Indictment

In short, the indictment concerned acts involving (hazardous) waste and waste streams that allegedly took place over a 12-year period in violation of the environmental permit. It consisted of six separate counts, relating to various streams originating at different locations within the facility.

Hazardous Waste

The definition of ‘hazardous waste’ is set out in the Waste Framework Directive (“WFD”) and the Environmental Management Act (“EMA”). Both regulations refer to Annex III of the WFD, which specifies when waste materials possess hazardous properties. Additionally, waste is classified as hazardous or non-hazardous in the European Waste List (“Eural”). Each type of waste is assigned a 6-digit Eural code based on its origin. If, based on that origin, the code includes an asterisk (*), it is classified as hazardous waste. This often leads to debate, as practical questions arise as to whether the ‘hazardous’ waste in question actually possesses hazardous properties (cf. ECLI:NL:GHAMS:2025:1846). In other words: does the fact that waste should be assigned a code with an asterisk based on its origin automatically mean that a substance without hazardous properties must be classified as hazardous?

In this case, the central question was whether the waste streams released at various points in the facility during natural gas extraction should be classified as hazardous waste.

STAB as Expert

The Court decided to engage STAB to answer that question. Both the Prosecution and the defence were given the opportunity to pose questions. The Court subsequently appointed three individuals from STAB as experts to provide the answers.

We’re looking more closely to the first count. STAB pointed out that this involved a composite stream of produced water from the gas purification process and contaminated rainwater. In STAB’s view, the merging of this produced water and contaminated rainwater was authorized under the revision permit. STAB noted it was irrelevant whether the competent authority, when granting the permit, may have failed to recognize that the produced water should be classified as hazardous waste.

STAB considers this new, composite stream to be a separate waste stream for which a new Eural code must be determined. STAB investigated whether this should be a code with an asterisk (hazardous waste) or not. They concluded that the waste would only be considered hazardous if the mercury concentration in the stream reached 1,000 mg/l or higher. However, all samples taken showed that the highest measured concentrations were far below this threshold. STAB therefore concluded that the waste was not hazardous. In doing so, STAB looked at the actual properties of the waste, rather than just its origin.

The Prosecution's Position

According to the Prosecution, the produced water was hazardous waste due to its origin and the fact that it contained mercury. The Prosecution argued that mixing this hazardous waste with contaminated rainwater should never have been permitted due to the mixing ban in the European Waste List Regulation.

The Court's Ruling

The Court, however, did not follow this reasoning. It examined Article 10.54a of the EMA (old), which contained the mixing ban (since the Environment Act came into force on January 1, 2024, Article 10.54a EMA has lapsed, and specific rules are now included in the Decree on Activities in the Living Environment). Two elements were key: mixing hazardous waste is prohibited (paragraph 1), unless permitted by license (paragraph 2). Consequently, the Court concluded that the mixing of “absolutely hazardous waste” can indeed be permitted. Furthermore, the Court followed the STAB report, resulting in the final “mixed” waste stream being classified as non-hazardous.

For this reason, the Court found the first count not proven and acquitted NAM. Regarding the other five counts, the Court also failed to reach a conviction—partly because it could not be proven that they concerned unpermitted waste streams, and partly because it could not be proven that the waste was hazardous. STAB’s findings were also relevant to varying degrees in the Court’s conclusions regarding these other counts.

Conclusion

Naturally, the verdict is a major setback for the Prosecution, which had demanded a very high fine of EUR 20 million and sought to confiscate allegedly illegal proceeds of over EUR 5.5 million. The Prosecution’s press release explaining the sentencing demand was unmistakable, stating:

“Society must be able to trust that a large and powerful player like NAM follows the rules. Given the history of natural gas extraction and related societal developments, an upright and diligent attitude should be expected. However, various wiretapped conversations show that this was not the case with NAM’s management. When the role of managers potentially came into the Prosecution’s view, unsuccessful attempts were made from within NAM to exert influence at the highest political level.”

However, because NAM was fully acquitted, no fine was imposed and no proceeds were confiscated. The role of STAB as an expert in this criminal case appears to have been of substantial importance. Whether STAB will act as an expert in future criminal cases remains to be seen. We are not aware of whether the Prosecution has filed an appeal. In any case, we have not encountered any update or nuance to the previously issued press release.