CHWMEG

Oceans apart: Comparative liability standards on when a product becomes a waste

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Courtesy of CHWMEG

In the last year the highest courts in Europe and the United States have reached divergent results on the scope of liability of a producer whose product ends up becoming a “waste” by the actions of a third-party. One court held that a producer is not responsible for the third-party actions resulting in contamination unless the disposal was part of the arrangement between them. The other held that a producer had a due diligence obligation, even as to its products, to assure that third-parties did not create contamination by their actions. The irony is that the results as they might be perceived in the business community were reversed: the producer has the due diligence obligation in the European Union and no liability for mere sale of a product that later becomes a waste in the United States. The impact of the European court case on producers may be affected by changes made in the revised Waste Framework Directive, but it undoubtedly has continuing implications for waste producers, who remain subject to the same legal exposure defined by the European court.

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