At Oil & Gas UK and Decom North Sea’s Decommissioning Conference in St Andrews in November there was a presentation about the potential for decommissioning to contribute to the circular economy, and in particular the need to move our focus from recycling to re-use.
To most of the world, the terms “re-use” and “recycling” are synonymous. This is quite understandable but for waste management professionals they are different terms.
Throughout the EU (and many other parts of the world are similar), waste law and policy is based on the application of the “Waste Hierarchy”. This is, in descending order of priority, waste prevention (measures to prevent articles/materials becoming waste), preparing for re-use, recycling, recovery, and, lastly, disposal. It will be seen that “re-use” per se, is not part of the hierarchy. I’ll get back to this below.
It’s only in the last few years that re-use has climbed the agenda. Prior to this, in the drive to move waste away from landfill, the emphasis was on the “lower-hanging fruit” of recycling and recovery.
To effect any material change in waste management requires the build-up of infrastructure and networks of partnerships. Recycling and recovery were seen as bigger and quicker wins and hence policy and infrastructure focus has been on these. Re-use currently lacks the infrastructure/networks/partnerships to support it. Policy is now trying to address this but it will take some time.
Operators are rightly proud of their statistics for recycling. By weight, often 98% of a decommissioned platform is recycled, because so much of it is steel which can be melted down.
However, to be more sustainable we should be significantly increasing re-use. Re-use of whole platforms has occurred a few times in the SNS between the UK and Dutch sectors but generally presents significant challenges in the UKCS where many decommissioned platforms are well past the end of their design life.
In the meantime, we could begin with more modest ambitions to re-use smaller components of platforms. However, it seems that re-use is put in the “too hard” category.
Might concerns about liability be at the back of this reluctance?
There are three aspects of liability to consider here – liability to the buyer of the item in contract; liability in tort (for negligence) to third parties who may be injured or damaged by it at some point in the future if it is faulty, and liability to government for the ultimate disposal of the product at the end of its life. All of these can be managed.
o Contractual liability to the buyer can be excluded by contract. While exclusion clauses are subject to some legal restrictions around reasonableness, there is no reason to think that an exclusion of liability when selling a used item, as seen, for less than the price of a new item, would not be enforced.
o Liability to third parties in negligence would require proof that the seller had been negligent. If the seller had not manufactured the item itself, had made it clear that it was used and had inspected it for obvious faults before sale, negligence is likely to be hard to establish.
o There should be no rebound of waste management liability to the original party following end of re-use life because “re-use” contemplates that the subject article or product is not waste and so the original owner will not be treated as the waste producer at the re-use end of life.
So, assuming we can address any legal concerns, how would re-use apply in the decommissioning context? Broadly re-use can apply in two situations:
o First at the top of the waste hierarchy is waste prevention, by putting the article or component to re-use before it becomes waste. So for instance, if generators, pumps, computers, tables, chairs, cutlery, etc., at the end of a platform’s life are in good working order and are removed to be used elsewhere (so the holder has no intention to discard them), these will not have entered into the waste stream. They should not be counted in waste statistics. Similarly if the whole platform is intended to be towed and used elsewhere, it will be re-used and outside of the waste arena.
0 Second, in the context of waste, i.e. once articles/materials become waste (as part of decommissioning or otherwise). Here the waste management concept of “preparing for re-use”, comes in. “Preparing for re-use” can be a very simple or complex activity. Under the EU Waste Framework Directive it means “checking, cleaning or repairing recovery operations, by which products or components of products that have become waste are prepared so that they can be re-used without any other pre-processing”.
The idea is that the preparation for re-use gets the product or component to a level where it ceases to be waste.
Currently the definition of “re-use” in the EU Waste Framework Directive is “any operation by which products or components that are not waste are used again for the same purpose for which they were conceived”.
Many have criticised this definition because of those words “for the same purpose”.
They argue that it should be wider, for instance to include use in its original form for alternative purposes.
However, this tends to merge with the definition of “recycling” which is “any recovery operation by which waste materials are reprocessed into products, materials or substances, whether for the original or other purposes”.
It can be seen, therefore, that should a product or component be used for a different purpose to its original purpose, some may regard this as recycling and others regard it as re-use.
Just to add to the confusion, in some cases the legislation itself seems to amalgamate the concepts of re-use and recycling. So, for instance, various waste management targets (by weight), are set in the EU Waste Framework Directive. One of these is for “re-use and recycling of waste materials”.
If the legislation does not provide separate targets for re-use and recycling, the commercial world can hardly be criticised if recycling is so dominant.
Thanks to head of environment partner Paul Sheridan for his help with this article.