CASE STUDY

IMPACT OF EUROPEAN UNION
ENVIRONMENTAL LAW ON DREDGING

http://www.european-dredging.eu/pdf/EULawOnDredging.pdf

That the lofty definition of “waste” in EU
legislation can lead to lengthy and rather
useless debates may be illustrated by a
recent case involving the Port of London
Authority (PLA) and the English
Environment Agency (EA).

The PLA intends to carry out dredging in
the River Thames Prince’s Channel in view
of increasing the navigational depth and it
plans to use the dredged sand to improve
a nearby construction site. EA has taken
the view that the material resulting from
dredging is waste according to the Waste
Framework Directive and should therefore
meet stringent requirements when it is
disposed of on land. The EA does not wish
to recognise the fact that clean sand can
be used beneficially as construction
material. The case was submitted to Lord
Kingsland for a legal ruling.

The Right Honourable Lord, rather than
stating something like “don’t be silly”, or
“let’s use common sense”, or even “what’s

in a name?”, had to review the case law
produced by the European Court on these
and similar matters and based thereon
produced a long argument which
concludes that:

1. “the dredged substance [from the
Prince’s Channel] is [not waste, but] a
product, or at least a by-product;
2. if, nevertheless [the interpretation of
the Waste Framework Directive would
conclude that] it is initially waste, then
It is fully recovered when it becomes
physically identifiable as a product (....)
once it is in the hopper of the dredger”.

The reader will notice that in the legal sense
it makes significant difference at which step
in the waste hierarchy one finds oneself.
Lord Kingsland draws the conclusion that,
once dredged material is targeted for re-use,
recycle or recovery, it is no longer waste, or it
has never been waste in the first place.
These conclusions are in fact based on a very strict reading of the definition (“Waste is any

substance or object which the producer or
the person in possession of it discards or
intends to discard”.). The interpretation thus
hinges on the meaning attributed to
“discard”. Lord Kingsland, after a lengthy
review of the jurisprudence, concludes that,
as long as the holder of the material intends
to re-use or recycle, it never becomes waste
on the way; if the material is intended to be
recovered there is some leeway for inter-
pretation. Lord Kingsland is of the opinion
that it still does not become waste, but even
if it is considered to become waste, the part
that is recovered turns into a “product” or
a “by-product” and is no longer waste.

Only material that the holder explicitly
intends to discard, or is forced to discard, is
thus “waste” under the definition. A long
argument is probably not necessary to
conclude that this kind of reasoning is so
subtle and sophisticated that the dredging
contractor no longer feels at ease. Nor for
that matter does the European Dredging
Association.

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