Waste materials: interim or final recovery?

What is central to this case?

For the intended shipments of TAG from Belgium, Luxembourg and France and of spent bleaching earth from Belgium to ATM's waste treatment facility in the Netherlands, four general notifications have been made by ATM in accordance with Article 3 of the ERSW. ATM regularly processes TAG and bleaching earth coming from abroad. ATM mixes the TAG and bleaching earth with contaminated soil, after which the whole is thermally cleaned and sieved. This process creates partial fractions of sand, gravel and rubble. These sub-fractions are then disposed elsewhere and - in ATM's view - "recovered" within the meaning of waste legislation. At least, this was addressed by the Division.

The State Secretary objects to the proposed shipments and invokes Article 12(1)(a), (b) and (k) in conjunction with Article 15(b) (in conjunction with Article 16(e)) of the ERSW. The State Secretary believes that it has not been demonstrated that the partial fractions resulting from the processing of the intended shipments, with the exception of the partial fraction sand, are actually recovered in a product or a civil work within one year after the shipment. ATM itself would have acknowledged this (in part). In addition, the State Secretary cannot approve the proposed shipment because the notifications did not specify the final processors, making it impossible for the State Secretary to assess whether there was interim or final recovery. Finally, half of the fraction of sand appears to be unsuitable for application in civil engineering works.

ATM argues that the objection of the State Secretary goes beyond the assessment framework of the ERSW. The State Secretary argues that at the time of making a notification it must already be certain that the recovery of the sub-fractions will be completed within one year after receipt of the TAG and bleaching earth, through application in a product or civil work. However, this does not follow from Article 12 of the ERSW, ATM said. In addition, ATM believes that the State Secretary unjustly classified the operations at its facility as interim recovery rather than (final) recovery.

How does the Division rule in this case?

The Division begins by assessing the concept of recovery and answers the question of whether the operations ATM performs at its facility are to be classified as interim recovery, or whether there is an operation of (final) recovery within the meaning of code R5 (recycling/recovery of metals and metal compounds) of the European Waste Framework Directive (‘EWFD’). In fact, the EWFD has included in Annex 2 a list of 13 recovery operations (designated by an R code). Operations R12 and R13 are specifically identified in the ERSW as interim recovery operations. Additional provisions apply to interim recovery operations. However, it does not follow from the ERSW that an operation or combination of operations must result in a waste material achieving ‘end-of-waste status’ in order to qualify as an recovery operation (within the meaning of codes R1 to R11). The Division notes in this regard that – contrary to the State Secretary’s assertion – no specific distinction follows from the ERSW between recovery and interim recovery for operations R1 through R11 and operations R12 and R13. It is therefore incorrect that the State Secretary does make this distinction, according to the Division.

The Division continues and finds that the main operations ATM performs with the TAG and bleaching earth fall within the definition of “recovery” as referred to in Article 3(15) of the Waste Framework Directive. Indeed, through its operations, ATM prepares the TAG and bleaching earth to replace other materials in the wider economy. Thus, the main result of the operations is that the wastes serve a useful purpose. With this, ATM's operations fall under Annex II code R5 and are not merely preparatory operations. According to the Division, ATM has sufficiently demonstrated that the partial fractions generated during its processes can actually be applied in different products and works. Thus, the position of the State Secretary is not followed by the Division. Furthermore, the Division believes that the fact that half of the fraction of sand does not meet the requirements set by the Soil Quality Decree for the soil to be allowed to be applied as part of a large-scale soil application, does not mean that the sand cannot actually be applied in its entirety due to violation of the Soil Quality Decree.

The Division also believes that the State Secretary’s contention that the application of the partial fractions in a product or civil work must also be completed within one year is incorrect. The State Secretary therefore wrongly based his objections on the assumption that at the time of the notification it must have been established that the final application in a product or civil work must be completed within one year. According to the Division, ATM has demonstrated by means of other contracts that there is a market for the purchase of the various sub-fractions generated at ATM, as a result of which the future use is certain and the transfer of the TAG and the bleaching earth takes place in the context of (final) recovery. Final recovery is thus – contrary to what the State Secretary suggests – demonstrated. In addition, the Division finds that the State Secretary wrongly based his objection on Article 12(a) and (b), because no conflict with the EWFD or national legislation has been demonstrated. Consequently, Articles 15 and 16 of the ERSW were also incorrectly applied. Indeed, it was found that ATM’s operations are to be classified as recovery under code R5 and not as interim recovery under code R12.

For the above reasons, the Division concludes that the appeal is grounded and that the decision of the State Secretary on ATM's objection must be annulled. In addition, the Division believes that the State Secretary could not (successfully) object to the transfer of the TAG and the bleaching earth. At least not on the basis of the grounds for objection from the ERSW that had been put forward by the State Secretary in support of the objection. Therefore, the Division revokes the primary decisions and grant permission – as referred to in Article 9(1)(a) of the ERSW – for the shipments.