UK: Waste Law - Case Update

R (ON THE APPLICATION OF) ANTI-WASTE LIMITED V ENVIRONMENT AGENCY (THE "AGENCY") [2007] EWHC 717 (ADMIN)

The shortage of suitable waste disposal sites has driven applications for permits allowing waste businesses to use the more space efficient ‘piggyback" landfill development. The Agency has traditionally rejected such requests. However, the ruling of the Queens Bench Division in this Judicial Review application has called into question this blanket approach.

Anti-Waste Limited ("AW") applied to the Agency for a permit to deposit waste at two sites where the waste would overlap waste that had already been deposited and was contained in an existing closed cell, a technique known as "piggybacking". The Agency rejected the application on the basis that piggybacking was not permitted under the Integrated Pollution Prevention and Control Directive (1996/61/EC), the Landfill Directive (1999/31/EC), the Groundwater Directive (80/68/EC) and other domestic legislation. AW sought to challenge that decision, in the process seeking declarations from the Court in relation to the following issues:

Whether a permit could be granted for the separate operation of a landfill that partially overlapped a closed cell which contained previously deposited waste (the "Installation Issue").

Where a permit related to the whole site, encompassing both the new proposed landfill and the old closed cells, was the Agency required to refuse to grant a permit where the deposits in the closed cell were responsible for harmful discharges to the groundwater and where the landfill as a whole could not be made to comply with the technical requirements of the Landfill Directive (the "Groundwater Issue")?

AW accepted that there would be some difficulties in relation to the pollutants in the existing cells, but argued that a permit should be granted if those technical problems could be overcome. It proposed that, for each site, an angular liner would be used to separate the existing cells from the new waste and that this liner would be strong enough to prevent the new waste leaching into the old cells. The effect of this would be to make the old cells independent of the new.

The Court held that it was permissible for a permit to be granted in situations where piggybacking was proposed so long as there was no interdependence between the old and new cells. However, it placed the following strict conditions on the grant of such permits:

The Installation Issue – a permit could not be granted where there was any serious risk that, as a result of the new deposits, pollution could be caused by the old cells. Further, there was to be no interference with the ability to control pollution from the old cell such that there was a risk of serious pollution. The Court noted that a permit would have to be refused where any barriers created would not last long enough to deal with aftercare requirements.

The Groundwater Issue – this did not fall to be determined following the ruling in respect of the Installation Issue. However, if the installation was considered to include an existing closed cell, the Groundwater Regulations 1998 would prevent the granting of authorisation where there were any discharges (whether or not caused by new deposits) as this would lead to pollution in the future.

This decision is to be appealed later this year and is unlikely to result in the Agency readily granting piggyback permits, particularly in light of the Court’s clear message that there must be no risk of pollution. However, the clarification of the law is welcome, particularly for those waste companies seeking to increasingly use the piggyback technique to overcome the shortage of landfill space.

Subject to the outcome of the appeal, piggybacking may become more commonplace where discharges from both old and new deposits are compliant with the Groundwater Regulations.

R (OSS GROUP LIMITED) ("OSS") V ENVIRONMENT AGENCY (THE "AGENCY") [2007] EWCA CIV 611

When does "waste" cease to be "waste"? That was the question put before the Court of Appeal in June by OSS. OSS collected waste lubricating and fuel oil from garages and workshops, before converting it into marketable fuel oil. OSS sold its products on the basis that they had ceased to be waste as a result of a particular recovery process and was thus "clean fuel oil", allowing its customers to avoid the costly and bureaucratic regulatory regime provided for in the Waste Framework Directive (the "Directive").

The Directive defines "waste" as, "any substance in the categories set out in Annex I which the holder discards or intends... to discard". The holder of the waste can be either the producer, including those who change the nature or composition of the waste, or the person in possession of it, in this case, OSS’s customers. There has been a raft of increasingly complex European case law considering the interpretation of the Directive.

Pursuant to the Directive, operations consituting "disposal" and "recovery" of waste may include burning or "incineration" depending on whether its "principal" purpose is to generate energy.

Underpinning the Directive is the requirement upon Member States to take "appropriate measures" to encourage "the prevention or reduction of waste production and its harmfulness" and "the recovery of waste by means of recycling, re-use or reclamation, or any other process with a view to extracting secondary raw materials or the use of waste as a source of energy".

The Court of Appeal was asked to consider whether a lubricating oil, not originally used as fuel but for lubrication, which later became waste could thereafter be burnt as non-waste ie, did the material cease to be waste because of:

• OSS’s treatment process prior to combustion as a fuel; or
• the actual combustion itself?

OSS argued for the former interpretation, the Agency for the latter.

In making its submissions, OSS put two simple questions to the Court of Appeal:-

• Is the material sufficiently analogous to a virgin product/raw material genuinely to replace it?
• Is the material analogous to such a raw material in terms of environmental risks in use?

Having reviewed relevant domestic and European case law, the Court of Appeal decided in favour of the position advanced by OSS. It considered that the Agency’s view was too narrow and overly prescriptive finding that the correct formulation was that a lubricating oil which was not originally used as fuel, and which became waste, could thereafter be burnt as a non-waste. Therefore, OSS’s treatment processes in the manufacture of the "clean" fuel oil was not subject to the regime outlined in the Directive.

The Court commented that "a search for logical coherence in the Luxembourg case law is probably doomed to failure", finding a fundamental problem in the European Court of Justice’s ("ECJ") formulaic adherence to the Directive definition of waste, "even where it can be of no practical relevance".

Whilst the subjective "intention to discard" might be a useful guide to the status of material in the hands of the original producer, it was less helpful in determining the status of material in the hands of someone who bought it for recycling or reprocessing or put it to some other valuable use. In no ordinary sense was such a person discarding or getting rid of the material. His intention was precisely the opposite.

The Court of Appeal indicated that a practical common sense approach was required which was consistent with the letter and spirit of the Directive. It should therefore be enough that the holder had converted the waste material into a distinct, marketable product that could be used in exactly the same way as an ordinary fuel and with no worse environmental effects.

This decision has considerable economic significance given the costs of complying with the higher standards required by the Directive’s regime. However, it does not provide a definitive test as the ECJ in similar cases has "consistently declined invitations to provide one".

The Court of Appeal did communicate its hope, "that in the light of this judgment, it may be possible for DEFRA and the [Agency] to join forces in providing practical guidance for those affected…It is important that the national authorities should use their expertise and experience to assist those concerned with treatment and handling of waste".

The Court of Appeal has begun the process of bringing much needed pragmatism to the definition of waste. The ingenuity of business has for years been several steps ahead of the law which has failed to keep pace with the growth in recovery, recycling and re-use. The present test is more flexible and keeps environmental protection at the forefront of the debate, a position from which it had been relegated by past ECJ decisions.

ENVIRONMENT AGENCY (THE "AGENCY") V BIFFA WASTE SERVICES LIMITED ("BIFFA") [2006] EWHC 3495 (ADMIN)

The problem of objectively assessing odour emissions in an industrial context came before the High Court towards the end of 2006. Pursuant to the Pollution Prevention and Control (England and Wales) Regulations 2000, the Agency granted a conditional permit to Biffa in relation to the operation of a landfill site. One of the conditions was that no odours should be emitted from the site at levels that were likely to cause pollution of the environment, harm to human health or serious detriment to the amenity of the locality "as perceived by an authorised officer of the Agency."

Following several site visits, prompted by complaints from local residents about the "strong odour" being emitted from the site, the Agency prosecuted Biffa for failing to comply with the permit conditions. The case was dismissed by a District Judge because although the condition was unambiguous, the inclusion of the phrase, "as perceived by an authorised officer" was ultra vires on the basis it exceeded the object of the power to include conditions in permits, as well as usurping the function of the Court in determining guilt.

The Agency appealed to the High Court, which was asked to consider whether the Judge was right to rule that the use of the disputed phrase was ultra vires on the basis that:

• it offended the principles of certainty, clarity and forseeability, which were required by criminal law:
• it had the effect of usurping the fact finding and adjudicative role of the courts by granting these functions to an authorised officer and obliging the court to convict whenever it was satisfied that the officer honestly perceived these facts: and
• it resulted in a condition extending beyond the object of the power set out in regulation 8 of the Landfill (England and Wales) Regulations 2000, which provides for the conditions that may be included in a landfill permit.

In finding in favour of the Agency the Court held that:

• The words "as perceived by an authorised officer" identified a requirement that the evidence of an Agency officer was a necessary ingredient of such cases. The clause also worked to provide a safeguard for operators against irresponsible prosecutions based solely on complaints by local residents.
• The phrase did not limit the jurisdiction of the Court to decide, on the basis of all the evidence presented to it, whether odours had been emitted at levels that offended against the standards required. Accordingly, the words were consistent with the principles required by criminal law.
• The power of the Court to form its own opinion on the evidence before it was not usurped. The Court was not bound to accept the officer’s evidence and could reject it where it considered such testimony to be unreliable. Whilst the fact-finding exercise was a difficult one for the Courts to undertake in the absence of objective, scientific means to assess the level of odours, it was one that the Court was entitled to and required to conduct.

The Court was at pains to set out in great detail the monitoring methodology set out in the permit. It did so to highlight both the extent of the duty incumbent upon operators to monitor the close working relationship anticipated between such operators and the Agency with a view to achieving environmental protection.

Clearly the subjective nature of such conditions can cause difficulties for operators. However, until objective criteria for measuring odour can be implemented, these types of conditions are likely to remain commonplace. Further, the decision of the Court in this case provides a clear outline as to how breaches of such conditions are to be enforced.

It is strongly recommended that where it is anticipated that an officer might identify an offensive odour, credible third party evidence is available to weigh against the officer’s finding.

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