UK: Critical Ruling: PPC Permits Required for Waste Water Treatment Works

United Utilities Water Plc v Environment Agency for England and Wales (2006) EWHC 9 (QB) In a test case brought by the UK's largest water and waste water operator, United Utilities, the High Court has declared that four of its waste water treatment plants do fall under the Pollution Prevention and Control (PPC) Regulations 2000. United Utilities (UU) will now have to ascertain which of its remaining 595 plants will also require PPC permits. In its judgment, the High Court was critical of the drafting of the PPC Regulations stating the Court had a ‘formidable task’ in interpreting the PPC Regulations which used language which was ‘obscure and its meaning difficult to grasp’. The High Court left it open to either party to appeal given the difficult questions of interpretation this case has raised.

Background

A declaration was sought by UU in relation to six of its waste water treatment plants. These plants were chosen as a test case to determine the main issues of principle between the parties:-

1. Are the provisions of the PPC Regulations applicable to waste water treatment activities?
2. Is sewage sludge waste?
3. Is the treatment of sewage sludge covered by the Integrated Pollution Prevention and Control Directive 1996/96/61 EC and the PPC Regulations?
4. Is the treatment of beer and milk effluent from third party brewing and milk processing activities already regulated under PPC, covered by the PPC Regulations?

UU argued that the additional need to comply with the PPC regime was ‘unnecessarily costly and confusing’ and could not have been intended by Parliament. This argument was rejected by the Court which found that the scope of the PPC Regulations should not be limited by the existence of other relevant and applicable legislation and that the Regulations were intended to, and did in fact, apply to waste water treatment activities.

The water industry is heavily regulated under the Water Industry Act 1991, the Water Resources Act 1991 and the Urban Waste Water Treatment Directive (amongst others). However, the Court concluded that the imposition of further responsibilities on sewerage undertakers under the PPC Regulations was not inconsistent with the existing legislation. The PPC permit system was acknowledged not to provide for a substitute administrator, unlike the Water Industry Act 1991, and in theory there could be a situation in which the failure to comply with conditions of a permit under the PPC Regulations could render a statutory undertaker's activities unlawful without a mechanism for substitution of an administrator to continue to process in a lawful manner. This was acknowledged to be a serious practical consideration but not one to prevent the proper interpretation of the legislation.

The aim of the PPC Regulations and the Integrated Pollution Prevention and Control Directive is to provide an integrated approach to pollution control to prevent emissions into air, water or soil wherever practicable. The Court found that under existing legislative controls there was an absence of a permit system which would require measures to be taken in relation to noise, odour and waste management plans as well as the ability to refuse permits.

Once again, the High Court has been required to consider the application of the Waste Framework Directive (75/442/EEC as amended) and the definition of waste. The Court ruled that there could be no doubt that sewage sludge is waste, but it also concluded that urban waste waters containing sludge is waste in liquid form. Although the Court was satisfied that even if sludge was ‘waste water’ rather than ‘waste in liquid form’ it would still not be excluded from the PPC Regulations by the carve-out in the Waste Framework Directive, as it was not already adequately covered by other legislation.

The four urban waste water treatment plants in question were intermediate treatment plants which discharged sludge to a final processing plant. The Court ruled that the aims behind the Integrated Pollution Prevention and Control Directive and Waste Framework Directive could not be achieved if intermediate treatment processes were excluded from PPC control. The PPC Regulations were held to apply unless the end product from the treatment process is sent for recovery. Recovery operations are not subject to PPC Regulations although are likely to fall under waste management controls.

It was common ground that the brewing and milk processing plants which provided the beer and milk effluent to UU's two industrial treatment plants fell within the PPC Regulations. The matter for the Court in this case was whether the treatment plants were a ‘directly associated activity’ which had a ‘technical connection with the activity being carried out at the stationary technical unit’.

The Court ruled that it must be a question of fact on any individual case as to whether the directly associated activity is being carried out on the ‘same site’. The two treatment plants in this case were connected by a pipeline over a distance of 800 and 700 metres. In this case the Court did consider the distances too great for the treatment plants to be considered to be on the same site.

The Court did confess to having grave difficulty in interpreting the legislation in this regard and came to the conclusion that the wording ‘directly associated activity’ and ‘installation’ in the PPC Regulations was so obscure that it was not possible to provide a clear interpretation of them, given the information before the Court.

The decision has significant implications for the water industry and also impacts on other industrial sectors undertaking treatment activities for which it is still unclear whether, and to what extent, they fall under the PPC Regulations.This would include not just utilities and other procurers and operators of such plants but also EPC Contractors who will be required to comply with the PPC permitting regime in relation to commissioning of such plants. On the basis of this ruling, the Courts appear likely to adopt an expansive rather than restrictive interpretation of the PPC regime, although we await the next instalment of the proceedings with considerable interest.

Despite the significance of this case in the short term, it is worth remembering that the PPC permitting system is under review. The European Commission has launched a three year programme to simplify and streamline EU Law and the Integrated Pollution Prevention and Control Directive will come under the programme's scrutiny. Further DEFRA, the Welsh Assembly and the Environment Agency launched the Environmental Permitting Programme in April 2005 in order to modernise environmental regulation.We expect two consultations this year on the proposal for integrating the PPC and waste licensing systems into a common permitting and compliance framework, including a new regulatory framework. This will be of little comfort however to the industry sectors that have to run their businesses under the current regulatory framework.