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Legal Bombshell Dropped on EU Mining Industry

BRUSSELS, Belgium, September 12, 2003 (ENS) - The European Court of Justice has delivered a ruling on the definition of mining waste that could massively inflate the costs of dealing with by-products of mineral extraction such as aggregates used in the construction industry.

In a judgement delivered on Thursday the EU's highest court said leftover rock from a chromium ore mine in northern Finland should be defined as waste because it requires processing before it can become a saleable product such as gravel. Though the interpretation was drawn up in response to a question from the Finnish Supreme Court, it has application across the European Union.

Finnish company AvestaPolarit, which operates the mine and had argued against the leftover rock being defined as waste, as well as the European industry association Euromines, both said it was too early to comment on the ruling.

Schliessner

Attorney Ursula Schliessner (Photo courtesy Oppenheimer)
But a waste management legal expert told reporters she was "flabbergasted." Ursula Schliessner of the law firm McKenna Long & Aldridge said it "unnecessarily restricts the definition of by-products."

Transport and handling of the rock would become more expensive, she said, since under EU waste rules operators would have to apply for permits and use licensed waste handlers.

Other ramifications are also possible. Under the EU's 1999 landfill law, waste left lying for a certain period must be classified as a landfill, and when that is done further legal requirements would apply. This has the potential to add enormous costs to mine waste management.

The court said it had an "obligation to interpret the concept of waste widely in order to limit its inherent risks and pollution." Only rock used to fill redundant mine galleries could be exempt from classification as waste, the ruling states.

A subsidiary part of the judgement has also surprised legal experts. This concerns a clause in the EU's framework waste law, known as a directive, which exempts mining waste from the law's requirements if it is already covered by "other legislation."

river

Mine waste from an old colliery dump pollutes a river in the Pennine watershed between Todmorden and Bacup, Lancashire County, England. (Photo courtesy The Watershed Appeal)
Ruling against arguments made by the European Commission and the Dutch and Finnish governments that this refers only to EU legislation, the court said it could also mean national laws, provided they give "equivalent protection" to the framework directive.

Schliessner said the court's interpretation runs counter to general understanding of the directive. She said that the court had overreached itself in adding "far-fetched" equivalence criteria only thinly justified by a vague preamble in the directive.

The ruling stirs up debate on the issue just as the European Union institutions begin drawing up legislation on mining waste following a proposal from the European Commission.

The European Court of Justice plays a vital role in enforcing respect of EU environmental laws by all member states. Equally important is the court's job of clarifying the exact meaning of existing EU law, in which role it can influence the bloc's entire legal direction.

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{Published in cooperation with ENDS Environment Daily, Europe's choice for environmental news. Environmental Data Services Ltd, London. Email: envdaily@ends.co.uk}



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