The real meaning of waste


The real meaning of waste	April 2006

This article appeared in Waste Planning in April 2006 and was written by Senior Associate Helen Keele and Associate Amanda Stubbs, Pinsent Masons. The question of what materials constitute waste, and therefore falls under the controls of waste legislation, has vexed lawyers and producers alike for many years. A long line of European cases has resulted in a broad definition of 'waste' in order to avoid circumventing the effectiveness of the Waste Framework Directive. However, as a result, opportunities to recycle and re-use materials can be limited by the cost implications of their being branded as 'waste'. In the recent case of United Utilities Water Plc v Environment Agency for England and Wales (2006) the High Court has been required to consider once more the application of the Waste Framework Directive and the definition of waste. The case hinged on whether the Pollution Prevention and Control (PPC) Regulations 2000 applied to the waste water treatment activities of United Utilities, the UK's largest water and waste water operator. The aim of the PPC Regulations, based on the Integrated Pollution Prevention and Control (IPPC) Directive is to provide an integrated approach to pollution control to prevent emissions into air, water or soil wherever practicable. United Utilities sought to argue that the water industry was already heavily regulated by the Water Industry Act 1991 and the Urban Waste Water Treatment Directive (to name but a few), and that Parliament cannot have intended the water industry to comply additionally with the PPC regime which would be "unnecessarily costly and confusing". United Utilities therefore sought a declaration from the Court in respect of six "test case" waste water treatment plants as to the following issues: Did the PPC Regulations apply to the waste water treatment activities? Is sewage sludge 'waste'? Is the treatment of sewage sludge covered by the PPC Regulations and the IPPC Directive? 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? Unfortunately for the water industry, the Court held that the scope of the PPC Regulations should not be limited by the existence of other relevant and applicable legislation and that the PPC Regulations were intended to apply to waste water treatment activities. Furthermore, the Court ruled that there could be no doubt that sewage sludge is waste, and that urban waste water containing sludge is 'waste in liquid form'. The Judge went on to conclude that even if he was wrong in deciding that sludge was waste in liquid form – as opposed to 'waste water' as argued by United Utilities – it would still be covered by the PPC Regulations, since he considered that it was not already adequately covered by other legislation. Four of the six plants were intermediate treatment plants that discharged sludge to a final processing plant. The Court ruled that the aims behind the IPPC Directive and the Waste Framework Directive could not be achieved if the 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 the PPC Regulations, although they are usually covered by the waste management controls in their own right. The other remaining two treatment plants processed trade effluent from brewing and milk processing plants that were operated by third parties. It was common ground between the parties that the brewing and milk processing plants themselves came within the PPC Regulations. However, the issue for the Court in this context was whether the waste water treatment plants operated by United Utilities were a "directly associated activity" which had a "technical connection with the activity being carried out at the stationary technical unit". Whether the treatment plants were "directly associated activities" depended on whether they were on the same site as the primary activity. The Court ruled that it must be a question of fact in any individual case as to whether the directly associated activity was being carried out on the "same site". The two treatment plants that United Utilities had selected for the purposes of this test case were connected by pipeline over distances of 800 and 700 metres respectively. The Judge decided that on the facts the distances in this case were too great for the treatment plants to be considered on the same site. The outcome of this case was, on balance, disappointing for the water industry although the Judge commented that he had had considerable difficulty in interpreting certain aspects of the legislation and the wording "directly associated activity" and "installation" was so obscure that it was not possible to provide a clear interpretation of them. No doubt encouraged by the lack of clarity of the relevant provisions and the cost implications of this decision, United Utilities have appealed the aspects of the judgment that are unfavourable to them and the case is being heard in the Court of Appeal during the first week of April. The decision that waste water containing sewage sludge is 'waste in liquid form' further expands the definition of waste and has significant implications for both the water industry and other industrial sectors undertaking treatment activities. It is also still not clear the extent to which "non sewage sludge" treatment plants will be caught by the PPC regime. On the basis of this judgment, whether an effluent treatment plant is considered to be on the same site as a PPC-regulated activity and thus falling within that site's PPC permit will be determined on a case-by-case basis. This is clearly unsatisfactory and will affect not only utility companies but also other procurers and operators of such plants as well as EPC (engineering, procurement and construction) contractors. While we await the outcome of the Court of Appeal decision with interest, it is important to note that the significance of this case lies in the short term. The IPPC/PPC regime is currently under review as a result of the European Commission's three-year programme to simplify and streamline EU law. In addition, a similar initiative to modernise environmental regulation is currently taking place at a national level and consultation is expected this year on the proposal for integrating the PPC and waste licensing systems into a common permitting and compliance framework. This will be cold comfort to those that are obliged to run their businesses under the current regulatory framework and a source of delight to those keen to see the definition of waste expanded still further. For media enquiries contact : Lakhbir Rakar CM PR Advisor Pinsent Masons Direct Dial +44 (0)121 260 4005 Fax +44 (0)121 626 1040 E-mail lakhbir.rakar@pinsentmasons.com