Contamination — Water saturated with hydrocarbons leaking from service station operated by manager under agreement with defendants — Whether subsoil contaminated following accidental spillage of hydrocarbons constituting waste — Whether waste classification possible where land not excavated or treated Preliminary ruling
The Brussels-Capital Region (the intervener) owned a building in Brussels that was in the course of being renovated. The renovation work had to be halted when it was discovered that water saturated with hydrocarbons was leaking into the cellar from the adjacent building, which housed a Texaco service station. The service station was subject to a commercial lease between Texaco Belgium SA (the fourth defendant) and the owner of the premises. It was operated by a manager under an operating agreement, which provided that the land, building, equipment and movable property for the operation were made available to the manager by Texaco. The manager, who did not have the right to make changes to the premises without prior written permission from Texaco, which also supplied the service station with petroleum products and retained control over bookkeeping and supplies.
It was discovered that the leak resulted from defects in the service station’s storage facilities. Texaco terminated both the management contract, alleging serious negligence on the part of the manager, and, subsequently, the commercial lease. Although disclaiming liability, Texaco proceeded to decontaminate the soil, and replaced that part of the storage facility giving rise to the leak. It carried out no further activities on the site. The intervener paid for further remedial measures, which it considered necessary to carry out its building plan.
Criminal proceedings were brought against Texaco and its officers (the first, second and third defendants) for breach of domestic waste disposal laws, and the intervener claimed damages in those proceedings. The defendants were acquitted, but the public prosecutor and the intervener appealed to the Brussels Court of Appeal.
The court doubted whether: (i) subsoil that had been contaminated following an accidental spill of hydrocarbons could be considered waste; and (ii) that classification was possible, since the land in question had not been excavated or treated. Because the definition of “waste” in the domestic legislation reproduced literally the definition in Council Directive 75/442/EEC, as amended, the court stayed the proceedings and referred to the European Court of Justice for a preliminary ruling.
Held: A ruling was made accordingly.
Hydrocarbons that were unintentionally spilled thus causing soil and groundwater contamination constituted waste within the meaning of article 1(a) of Council Directive 75/442/EEC, as amended by Council Directive 91/156/EEC. The same was true for soil contaminated by hydrocarbons, even if it had not been excavated.
In the circumstances of the present case, the petroleum undertaking that supplied the service station could be considered to be the holder of that waste within article 1(c) of Directive 75/442/EEC only if the leak that gave rise to the waste could be attributed to the conduct of that undertaking. Its producer or holder had discarded the hydrocarbons that had leaked from the tanks. The hydrocarbons were specifically covered by heading Q4 of Annex I to Directive 75/442/EEC. Moreover, they were deemed to be hazardous waste, and therefore, had to be considered waste within the meaning of the directive.
M Mahieu, avocat, appeared for the first, second and fourth defendants; O Klees, avocat, appeared for the third defendant; E Gillet, L Levi and P Boucquey, avocats, appeared for the intervener; F Simonetti and M Konstantinidis, acting as agents, appeared for the European Commission.
Eileen O’Grady, barrister
