Renewable Matter # 06-07 / October-December

Waste Boundaries

by Paola Ficco

The moment when waste can be considered as such is increasingly postponed. But national and EU regulations must comply and support this new trend.

 

The hierarchy of waste management priorities has been in place – both at EU and national levels – for several years now. Against this legal framework, prevention is top of the list, but its implementation appears rather complex, because it requires a coordinated set of concerted efforts amongst all social players.

Today, however, such actions take place in a clumsy way and focus on the formal rather than the substantial aspect. Indeed, there is a tendency to modify, by moving forward, the moment when a waste item can be regarded as such (end of its life cycle and no longer end of the usefulness cycle for some – “to discard”). To put it simply, this is how waste ceases to exist, without a coordinated framework similar to that of recycling plants.

This is only a lexical but very powerful nuance. It is merely another name, rather than a substantial difference. So, what has always systematically been waste, where the concept of “discarding” rules, today it is being converted (with regard to management) into something other than waste because its life cycle is extended.

In order for it not to be considered waste, all we have to do is talk about reuse and make sure that “former waste” is not dumped in an authorized waste-to-energy plant, but in another location that, although essentially a recovery facility (waste sorting, for instance is an operation occurring before recovery – code R12 – that must be authorized); formally, it behaves as if it were not. 

So, no compliance with all those practices pertaining to waste management (authorizations, forms, registers, bank guarantees, systematic dealings with the public administration, safety in the workplace etc.) to the great detriment of fair competition amongst businesses which disintegrate under the pressure of higher-level needs such as social solidarity initiatives and the re-emergence of the desire to mend everything and not to throw away anything (do it yourself, Fixer, Repair café, etc.).

Therefore, we need to understand if and how EU and national relevant legislations support this new trend, while at local level there seems to be a proliferation of prevention plans, with reusing as their core belief. So, nowadays non-waste reusing and waste recycling seem to be on an irreversible collision course, where, in order to eliminate wastefulness (and therefore waste), many things are about to exit the control cycle of the public system – supported by this very mechanism – changing the notion of waste as a matter of fact.

 

From Waste to Resource

Waste and wastage are an environmental concern, but also a crucial economic problem. Besides, regardless of legislative definitions, waste is a resource in the wrong place.

Preventing waste generation means dissociating economic growth from the environmental impacts derived from it.

So, there is a need for a new approach taking into account the whole life cycle of products in order to replace the throwaway culture with the circular economy model, so that products can go “from cradle to cradle” rather than “from cradle to grave.”

But the circular economy is not achieved by renaming what is currently defined waste by law. In order to put back into the cycle resources and restart the production process, there is a need for a cultural revolution in its own right, with appropriate amendments to the legal notion of “waste” (at EU level, of course).

Or, it will be necessary to consider each instance separately. As the EU Commissioner for the environment said in an interview by Sole 24 Ore of last 26th May, “We aim at proposing more country-specific recommendations, so as to improve the adoption of policies at local level. So, we will have to pay close attention to law infringement, which is essential to guarantee actual implementation.”

Europe, therefore, seems to embrace the “case by case” approach. Italy is at an unprecedented crossroads, where the complexities and costliness of a waste management system clashes with the need to recover resources without too many obligations and restrictions.

The basic ambiguity of the definition of “waste” is old, but it has been overcome by the EU Court of Justice.

Currently, the problem of the lack of regulations – clear and equal for everyone – has magnified with economic globalization accompanied by the increasingly and destabilizing financialization of capitalism and the world’s economy. Today, the very tangible risk is that – the material being equal – the enforced solidarity becomes a means to by-pass the regulations, to the detriment of those who take on this duty.

 

The Applicable Discipline and the Fundamental Paradigm of Definitions

The regulations on the subject of recycling and recovery are laid down in the “Environmental code” (articles 208, 214, 216) and Ministerial Decree 5th February 1998 (for the subsidized recovery of non dangerous waste), in the Ministerial Decree of 12th June 2002, n. 161 (for the subsidized recovery of dangerous waste where energy recovery is not included) and in the Ministerial Decree 17th November 2005, n. 269 (for the subsidized recovery of dangerous goods from ships).

It is extremely clear how the relevant legislation (Legislative Decree 152/2006) deals with the reuse of waste not involved in a preparation process for reuse rather than products than, albeit repaired/cleaned, do not enter a preparation process for reuse. 

This is because Legislative Decree 152/2006 regulates waste management activities only and not the use of goods and products not covered by the definition of waste, which must lead us to understand what waste is. The age-old dilemma goes back to the meaning of the verb “to discard” but, despite the EU Court of Justice’s above-mentioned actions, local actions at national level are often very far from the Eu acquis, above all when it comes to social solidarity projects.

Within a EU perspective:

  • the Italian Supreme Court of Cassation – Third Criminal Section – 2nd December 2014, n. 50309, has highlighted the irrelevance of other people’s perspectives in the exploitation of the good, in order to avoid the recurrence of the concept of “discarding.” It stated that in order to establish if a residue constitutes waste or not, it is necessary to see things from the producer’s perspective (who owns it) and not from those with an interest in its use. For this reason, the Court of Justice confirmed the ruling for non-authorized waste management against a business owner who used to buy defective pallets, unusable as they were, from third parties in order to repair them and resell them. The Supreme Court highlighted that the term “discarding,” as envisaged by the official definition of waste, includes objects that have become useless and bound to be disused, even by juristic act, therefore it ignores the interest that a third party may have in the exploitation of a good no longer useful for its owner, “since such interest does not convert waste into something different.” Because the intended reuse of a good (pallets in this case) is not certain from the start, it is not up for debate whether it could be used as a by-product or not. Its reparation, therefore, constitutes waste recovery and must be authorized by law;
  • the Italian Supreme Court of Cassation, Criminal Section III, 19th December 2014, n. 52773, issued a definitive sentence establishing beyond any reasonable doubt that nursery-gardening waste material, placed unrestrictedly in a State-owned area, is objectively to be considered waste. Indeed, irrespective of the different doctrine and legal positions on the definition of “waste” (article 183, Legislative Decree 152/2006), the Supreme Court is “absolutely sure that, according to the well-established general principles, every subjective evaluation on the nature of materials to be classified waste or not is unacceptable.”

As to (other) definitions, it is worth pointing out that article 183, paragraph 1, Legislative Decree 152/2006 provides the following:

s) treatment, recovery or disposal operations, including preparation before recovery or disposal;

t) recovery, any operation whose main result is to enable waste to play a useful role, replacing other materials that would otherwise be used to fulfill a particular function or to prepare to fulfill such function, within a plant or the economy in general...” (so waste has not been a liability for a long time);

u) recycling, any recovery operation through which waste is treated to obtain products, materials or substances to be used for their original function or other purposes. It includes organic material treatment but excludes energy recovery and re-treatment to obtain materials to use such as fuels or in fill operations (so recycling is a recovery operation).

It has already been highlighted that the waste protocol does not deal with products. For this reason “preparation for reuse” has been coined from where products that can be “reused” may derive. Such operations are also defined in article 183, paragraph 1, Legislative Decree 152/2006:

q) preparation for reuse, checking, cleaning, disassembling and repairing operations, through which products and components of products that have become waste are prepared so that they can be utilized without further pre-treatment;

r) reuse, any operation through which products or components other than waste are reused for the same purposes as they were initially intended for. Even the systematic profile (reuse – see letter r – follows preparation for reuse – letter q) confirms that it is reusable as “non waste” only what comes from preparation for reuse, since it is preparatory for reusing.

The national waste prevention plan as laid down in Directorial Decree 7th October 2013 in the field of reusing is rather confusing and refers everything to future Ministerial Decree as per article 180-bis, paragraph 2, Legislative Decree 152/2006 which will have to define the operational requirements for the creation and support of accredited repairing/reusing centre and networks, including the definition of simplified authorising procedures and of an illustrative catalogue of products and waste which can be subjected to reuse or preparation for reuse respectively.

 

The Nature of Regulations On Waste

Regulations on waste are public law rules, since they are about the organization of the state and other public bodies and the relationship where the state and other public bodies can have an authority over citizens; so, they cannot be waived by private law regulations. So, we believe that the institution of gift does not change the nature of waste disposed into dumpsters with a sticker reading “gift” on them.

Waste has also commercial value but the system wanted to maximize control, traceability and in the case of used clothes and hygiene as well before they can be put back into the commercial circuit or reuse, as laid down in Ministerial Decree 5 February 1998.

Moreover, regulations on waste have strict interpretations, so in case of doubt, the interpreter cannot attach to regulations a restrictive or detrimental meaning of the fundamental rights inscribed in them. This is why regulations envisaging special situations (i.e. by-products) include “regulations of an exceptional and derogative nature compared to the usual regulations on waste. As a consequence, as this Court has stated many times, the burden of proof about the existence of legal grounds must be carried out by the individual requiring its application” (Criminal Cassation, Criminal Sec. III 27th June 2012 n. 25358). So, the rigidity of the definition of “waste” always imposes proof of the opposite by the subject even in the case of reuse.

 

Dispensations

Directive 2008/98EC promotes a “recycling society” and not a reuse one. This is further proof that reuse comes after preparation for reuse, which is a recovery operation and, as such, must always be authorized. Strangely enough, when talking about circular economy, everybody always try to get rid of the concept of waste. Waste, however, is the source of the circular economy and we must tackle it, even from an administrative viewpoint, reminding always the public administration that it only has executive power and not exclusive legislative authority with regard to the environment.

It has already been mentioned that laws are not flexible. When they meant to be so, they did it in an explicit and direct way, without any ambiguity. Let’s see how and when:

1. it explicitly excluded some things from the waste protocol application – art. 185, Legislative Decree 152/2006 exclusion from the field of application (i.e. agricultural material used to produce energy);

2. law 426/1998 art. 4, paragraph 21 (waste deriving from precious metals’ processing sent for metal refining do not fall within the definition of waste as per article 6, paragraph 1, letter a), of Legislative Decree 5th February 1997, n. 22 and therefore, only for this regulation, cannot be subjected to such rules. With the term “refining” mentioned in this paragraph, all the operations carried out on precious metals helping metals to get rid of substances altering their purity or preventing their use are included;

3. it explicitly prevented something to cross the boundaries into waste, but not by “disguising” it as product, but rather creating a law that did not include the notion of “discarding” with law 155/2003 (so called of the good Samaritan) with regard to food products. Other shortcuts, based on personal readings of the notion of waste inevitably lead to inequalities of treatment producing events with no sense of direction, sanctioned by the “solidarity” passport, where waste (with its burden of commitments, duties, financial guarantees, authorizations, checks, worries and uncertainties) simply does not exist. Clarity is needed, which cannot be achieved by simply stretching the links of the “good Samaritan law”; otherwise, a sense of loss could permeate our fragile waste management system where waste is seen as a resource.

 

A Major Breakthrough

The circular economy marks a historic transition, which can be regarded as a bold passage but also as an inevitable one. We have to go back up a path where the milestones have been removed or mixed up and the exact boundaries have been lost. Waste must be freed from the cumbersome definition of “discarding,” going back to the notion of neglect and res nullius; it must be liberated from the EU legal grip imposing a restrictive interpretation of such notion. This is the most difficult step, where unexpected challenges are looming ahead, with insufficient knowledge and depth cannot change the rules of the game. And yet it must be done because the geometric flow of reality is simple: waste must be only what reaches landfills. All the rest is a resource.

If this solution seems too “bold” or “unseemly” it will be necessary, at a later stage, to clarify that the reuse is only what derives from the preparation for reuse. This will be a possible and perfectly viable solution to revive the powerful (and never fully comprehended) national recycling industry. If the market is truly free, rules must be all the more clear and equal for everyone.

Otherwise, the circular economy will have to grapple with interpretative conundrums, due to current definitions, which implies even greater risks, in light of the new law on environmental crimes (68/2015).

But until we shy away from words and come up with falsely cautious regulations, we will witness unfair competition by absolutely legal “non waste” collection and recycling systems (where minimal investments and low labour cost) against equally legal systems that (with a perennial “dialogue” with the public administration, investments in works and means, with specialized staff constantly retrained and supported by trade unions) work with “waste.”

As mentioned before, it is not a question of matter, but of denomination. A virtuosity. After all pecunia non olet. This will be yet another very complicated testing ground for policy makers.