Renewable Matter # 10 / May-June

When Repairing a Washing Machine Becomes a Crime

by Alessandro Farruggia

The excess of rules creates confusion and uncertainty harbouring mistakes and bad practices to the point where virtuous behaviour is sanctioned. Many discarded materials have become resources, but according to the law they are still waste.

 

For that Italy dreaming of the circular economy, life is not at all simple. Consumers, companies, recycling managers and consortia must meander through a jungle where the good will to anticipate and regulate everything creates very detailed, sometimes even artificial barriers and divisions. But also treacherous gaps where bad practices can embed themselves. 

In waste management, there are virtuous practices liable to sanctions that are now almost tolerated. And many worse practices that are not. There are too many rules, some contradicting each other. And citizens and people operating in this sector risk paying the price. In some cases, a solution was found. Historically, batteries for small appliances represented a problem. In order to help their customers and collect a pragmatically dangerous waste product, some dealers had created de facto temporary storages, made legal without registration and authorization only by art. 6 of DL 188 in 2008 adopting Directive 2006/66/EC.

For a solution found, many problems still go unsolved.

An issue still unsolved is the question of toner and cartridges collection points, technically exhausted special waste from digital printing, that in reality could not be carried out without authorization by shops selling office “consumables”. So, when there is no authorization, it is a punishable offence although it is actually tolerated. It is noteworthy that private citizens can use recycling centres while companies and VAT-registered individuals cannot. In fact, by law, VAT-registered people must use authorized treatment regenerators and recuperators: it does not matter whether it is a professional studio using only three toners a year or a company using a thousand. The Court of Cassation (Ruling n. 23971/2011) confirmed the co-responsibility of waste producers “who do not use authorized parties, do not comply with the preventive verification of all authorizations and do not ascertain the effectiveness and veracity of produced waste recovery and disposal as provided for by Art. 178, paragraph 3, Dlgs 152/2006.” But for now, at least for private citizens, it is still possible to leave used toner cartridges in shops where they buy new ones. 

Another interesting case is that of virtuous behaviours running the risk of being sanctioned thanks to the creation of ecopiazzole (recycling areas) provided for by Ministerial Decree 8/04/2008. Section 37 of the decree established that inert waste (mixtures of cement, bricks, ceramic debris) can be taken to recycling areas only in case of “small removal jobs done directly by the renter of the property.” Why the renter and not the landlord? This is a mystery. Section 38 is also open to broad interpretation. It establishes that, still in case of “small removal jobs done directly by the renter” it is possible to confer mixed waste deriving from demolition and building activities. This includes a lot of things. All this creates confusion, and confusion gives rise both to virtuous people and profeteers. A tricky problem for recycling areas’ managers. A case in point is the recovery and disposal of tyres. The relevant decree establishes, and rightly so, that only tyres from private users can be taken to recycling areas. But if an unscrupulous citizen abandons 2 tyres outside the gates of the recycling area, the operator or the municipality cannot dispose of them in the recycling area, they must call an authorized disposal company. Even if the tyres are right in front of the entrance. 

But the whole system suffers from lack of flexibility deriving from the stratification of laws and decrees that, by trying to regulate everything, have created a jungle of micro categories and regulations where making mistakes is very easy.

“There is an excess of regulations – points out Paola Ficco, an environmental legal expert, former member of the Ecolabel Ecoaudit Committee – EMAS Italy, as well legal expert for the Ministry of Industry, the Ministry for the Environment and a member of the Environmental Operators Register, “for which there is no need.” But it is now an irreversible process: it complicates what could be simple. And there is nothing indicating that this trend can be reversed. There is a draft decree on WEEEs and other definitions of storage in the pipeline. Problems multiply. There is a gap between what the law provides for and lifestyles. Legislators often do not understand the difference between industrial conduct and private citizens’ behaviour: they are two different levels that should be regulated differently.

Let’s have a look at bicycles. An abandoned bicycle is considered waste and so it can be used only after having been checked, cleaned and prepared. Things that non-professional operators do not do. Household appliances represent another delicate question. A washing machine without its plug is considered WEEE. If it is taken care of by a disposal company, all is good. But if it is taken in by a small workshop that repairs it and fits it with a plug, it is illegal and not everybody is aware of such thing. It is noteworthy that the new directive 2012/19/EU on WEEEs, regulating the disposal of waste from electrical and electronic equipment, tends to encourage as much as possible the disposal through authorized companies, establishing the principle of “one vs. zero,” that is the opportunity for the consumer to return lamps and small household appliances to shops without having to buy new ones. And for consumers this is certainly an advantage because it reduces the use of unauthorized companies. 

But sometimes, as is the case with used clothes, it is a very thin line. 

Courts have often dealt with this matter, trying to provide innovative interpretations. In a ruling, the criminal Cassation (30/07/2013, n. 32955) has confirmed the existence of the crime of illegal waste trafficking in the case of “illegal behaviour of a plurality of individuals that had organized the collection of discarded clothes and accessories, products such as urban waste from private parties and after taking them to transport companies acting as sorting centre, they sold them on the domestic and foreign markets without the treatment provided for by the law on matter of recovery, amounting to the crime of criminal association, organized activity for the illegal trafficking of waste and falsity.” The same ruling also established that used clothes can be regarded as waste only after separate collection and in general by disposal by previous owners. In all other cases, in which a will to dispose of them is not present – but on the contrary they a reused in different consumption cycle – they cannot be considered waste but actual goods. This means that contextualization is needed. “The notion of waste,” as clarified by the European Court of Justice in 1997 (Tombesi Ruling) “must be interpreted dynamically. This means that the notion of waste must be interpreted in a broad sense.”

But this should also be adopted by the law, especially if we really want to kick-start the circular economy. “To kick-start virtuous cycles,” Paola Ficco points out, “rules must change. Today waste can only be disposed of or recovered, this means that it has to undergo preparation authorized though a complex procedure taken on by Regions and Provinces. Guaranty must be paid, forms must be produced and authorised hauliers used. This is good for the recycling industry. But for small companies, for small quantities, this is not practicable. Especially because it exposes those staking their all in perfectly good faith to a very high risk. It is clear,” Paola Ficco continues, “that the definition of waste, if we really want a circular economy, must change and we must go back to the concept of abandonment. The boundaries of the question must be repositioned, we must be happy with waste, considering it an actual resource. And rules are far too chaotic: rules must be made clearer, without an endless series of exceptions. Legal and illegal behaviours must be made clear and known in advance.”

Once again, Europe represents a problem: in the draft directive on the circular economy the definition of waste remains unchanged. So, on the one hand it says that many materials are resources and not waste, but by law they are still waste. And the suspicion is that, at the moment, the only circular aspect of waste management is red tape. 

 

 

Top image: Free vector: Jhavelka/C.C. attribution license