Environment: Hazardous waste

Applicant operating cement works applicant having authorisation to burn Cemfuel Environment Agency concluding Cemfuel constituting waste and varying authorisations applicant seeking declaration that Cemfuel not hazardous waste whether Cemfuel constituting waste waste Framework Directive 75/442/EC whether Council Directive 94/67/EC applying to cement works application dismissedR v Environment Agency, ex parte Castle Cement Ltd: Queens Bench Division: Administrative Court: Stanley Burnton J: 22 March 2001The applicant (Castle) operated the Ribblesdale and Ketton Cement Works, where it burned Cemfuel in kilns pursuant to authorisations issued under the Environmental Protection Act 1990.

The respondent Environment Agency (the agency) concluded that Cemfuel constituted hazardous waste, and, consequently, issued notices varying the conditions of the authorisations in accordance with the Hazardous Waste Incineration Direction 1998 (HWID).

That direction applied the provisions of Council Directive 94/67/EC on the incineration of hazardous waste.Castle sought to challenge the agencys variation of the authorisations and to obtain a declaration that Cemfuel was not hazardous waste.

The central issue was the application of the Waste Framework Directive 75/442/EEC (WFD), article 3(b) of which required member states to take appropriate measures to encourage (i) the recovery of waste as a means of recycling, reuse or reclamation...

or (ii) the use of waste as a source of energy.

Annex IIB listed recovery operations applicable to waste materials, including R1 Use principally as a fuel or other means to generate energy.

R1 differed from the other operations listed, R2 to R9, as it referred to an end use of waste, (for example, use as a fuel), whereas the others referred to recycling or reclamation operations carried out to render waste fit to be used.Castle submitted that: (i) the recovery of Cemfuel from various waste streams resulted in a product that was no longer waste; (ii) that process was complete by the time the Cemfuel left its producer for delivery to Castles works; and (iii) accordingly, by the time Castle used Cemfuel as a source of energy, it was not waste.

It did not dispute that Cemfuel, if held to be waste, would be hazardous for HWID purposes.The agency submitted that: (i) Castles operations fell within R1: (ii) R1 related not to article 3(b)(i) (as the other listed operations did) but to article 3(b)(ii), which was concerned with the recovery of energy; (iii) such recovery did not take place until a substance was used for fuel; and (iv) until that point, the substance continued to be waste.

It contended that the burning of Cemfuel in kilns was part of the recovery process and that Cemfuel remained waste until burned.Held: The application was dismissed.

Cemfuel was a hazardous waste and was rightly treated as such by the Environment Agency.

The wastes used to produce Cemfuel were not recovered for the purposes of the WFD until they were used as a fuel or other means of generating energy.

That operation did not take place until Cemfuel was so used by Castle or another cement producer.

It followed that Cemfuel was waste for the purposes of the directive, irrespective of the processes used to produce it from substances that were, indisputably, waste, and irrespective of the differences between it and its constituent substances.

It was clear that the carrying out of a complete recovery operation did not necessarily result in a substance ceasing to be waste: Arco Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer Case C-418/97 and Vereniging Dorpsbelang Hees v Directeur van de dienst Milieu en Water van de provencie Gelderland C-419/97 considered.Philip Havers QC and David Hart (instructed by Norton Rose) for the applicant; John Howells QC and Timothy Ward (instructed by the solicitor to the Environment Agency) for the respondent; Matthew Hutchings (instructed by Richard Buxton, Cambridge) appeared for an interested party.