Court extends government authority to stop toxic waste dumping

LUXEMBOURG - The European Court of Justice ruled that member states may declare a substance "hazardous waste" even if that substance is not included in legislation adopted by the European Union. The court said member states could adopt more stringent protective measures to protect the environment from the abandoning, dumping or uncontrolled disposal of toxic substances. "In that connection, it must be observed that the Community rules do not seek to effect complete harmonisation in the area of the environment," the court ruled. The court noted the Community policy on the environment aims at a high level of protection, taking into account the diversity of situations in the various regions of the EU. The decisive criterion, as regards the definition of hazardous waste, is whether the waste displays one or more of the properties listed in the EU legislation. And althougth the basis for inclusion in the list of hazardous waste is the origin of that waste, the court said it was not essential for its exact origin to be determined for it to be classified as hazardous. "The origin of the waste is not the only criterion for classifying it as hazardous but constitutes one of the factors which the list of hazardous waste merely takes into account," the court said. These issues were raised in criminal proceedings brought against Messrs Fornasar, Strizzolo, Toso, Mucchino, Peressutti and Chiarcosso, who were charged by the Italian authorities with having released diphenylmethane diisocyanate (hereinafter MDI) and an isomer thereof, a toxic-harmful waste under the description special waste contrary to the legislation in force at the time. According to the Italian authorities, isocyanates are extremely dangerous for human health. Very small concentrations of them in the air, of the order of one part per billion, can provoke very serious asthma attacks, sometimes with fatal results. According to the governments findings, the substance should, in view of its composition, be regarded as intrinsically hazardous in the literal sense of the word and as such objectively harmful to the environment and to health. According to the order for reference, MDI is a basic substance for the manufacture of many synthetic resins, which are subsequently used for the manufacture of car parts, furniture, plastics, coatings, paint components and so on. It thus has a very broad range of uses for undertakings operating in different areas of manufacture. An Italian court asked the Euro court for a clarification of EU law before making its final ruling in the case. *** EXCERPTS FROM THE JUDGMENT Case C-318/98, 22 June 2000 REFERENCE to the Court under Article 177 of the EC Treaty (now Article 234 EC) by the Pretura Circondariale di Udine, Sezione Distaccata di Cividale del Friuli, Italy, for a preliminary ruling in the criminal proceedings before that court against Giancarlo Fornasar, Andrea Strizzolo, Giancarlo Toso, Lucio Mucchino, Enzo Peressutti and Sante Chiarcosso, on the interpretation of Article 1(4) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377 p. 20) and Council Decision 94/904/EC of 22 December 1994 establishing a list of hazardous waste pursuant to Article 1(4) of Directive 91/689 (OJ 1994 L 356, p. 14) *** THE COURT hereby rules: 1.Council Directive 91/689/EEC of 12 December 1991 on hazardous waste does not prevent the Member States, including, for matters within their jurisdiction, the courts, from classifying as hazardous waste other than that featuring on the list of hazardous waste laid down by Council Decision 94/904/EC of 22 December 1994 establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689, and thus from adopting more stringent protective measures in order to prohibit the abandonment, dumping or uncontrolled disposal of such waste. If they do so, it is for the authorities of the Member State concerned which have competence under national law to notify the Commission of such cases in accordance with the second indent of Article 1(4) of Directive 91/689. 2. Article 1(4) of Directive 91/689 and Decision 94/904 must be interpreted as meaning that it is not a necessary precondition for waste to be classified, in a specific case, as hazardous, that its origin be determined. REUTERS NEWS SERVICE