Landfill

Blackland Park Exploration Limited v Environment Agency [2003] EWCA Civ 1795

The judgment of the Court of Appeal in this case deals with the question of whether the disposal of hazardous liquid waste into deep sandstone strata from which oil had been extracted constitutes landfill of that waste.

The court ruled in the affirmative.

As a consequence, the activity is illegal by virtue of the complete ban on disposal of liquid waste to landfill that came into force on 16 July 2002.

The case shows the courts' purposive approach to the interpretation of EU-based waste law.

Indeed this, and a string of other judgments, arguably indicates that the Environment Agency is more adept than industry at interpreting EU waste law.

The judgment also provokes further thought as to whether it could have implications for disposals in the offshore oil field operations.

Background and issues

Blackland Park Exploration Limited operates an onshore oilfield at Whisby, in Lincolnshire.

Oil, water and gas is extracted from the production wells and separated.

The oil is transported to a refinery, the gas is flared, and the produced water is re-injected down a re-injection well into the oil-bearing strata.

Blackland Park Exploration was taking payment to accept liquid hazardous waste, which it also injected down the re-injection well into the deep sandstone strata.

The judgment concerned the disposal of this hazardous liquid waste and not the re-injection of the produced water.

By these declaratory proceedings, the parties asked the court to confirm whether or not the disposal of the liquid hazardous waste by injection into the sandstone strata constituted landfill for the purposes of the Landfill (England and Wales) Regulations 2002, which implement Directive 99/31/EC on the landfill of waste, and therefore whether the activity is illegal by virtue of the complete ban on the disposal of liquid waste to landfill after 16 July 2002 contained in that legislation.

The court was not asked to rule on the issue of whether the re-injection of produced water also falls foul of the ban on disposal of liquid waste to landfill.

Nevertheless, the court noted that the Environment Agency and Blackland Park Exploration had agreed between themselves that the ban does not apply and re-injection of produced water can continue at the oilfield.

Interestingly, while agreeing that the ban did not apply to these produced waters, the parties disagreed on the reasons why, from a legal point of view, the ban did not apply.

The arguments

Blackland Park Exploration argued that regulating this disposal of the hazardous liquid waste as landfill and therefore banning such disposal, does not further the objectives of the landfill directive, which it argued are really aimed at landfills in the classic sense of the municipal tip.

Therefore, it sought to persuade the court that the landfill regulations should be interpreted narrowly.

The court rejected this argument, and agreed with the Environment Agency that prohibiting this disposal is consistent with the purposes of the landfill directive, which are broadly to control the disposal of waste so as to protect the environment and human health.

The court confirmed that a broad interpretation must be given to the landfill directive and landfill regulations.

Blackland Park Exploration also argued that the direct discharge of certain dangerous substances to groundwater is governed (and in these circumstances permitted) under Directive 80/68/EEC on the protection of groundwater against pollution caused by certain dangerous substances and the Groundwater Regulations 1998.

Therefore, it argued that this disposal is already regulated and that it would be inconsistent with the groundwater directive to ban this liquid waste disposal activity.

Again the court disagreed.

It pointed out that the liquid hazardous waste disposal was already regulated under a waste management licence held by Blackland Park Exploration and that the landfill directive merely constituted a tightening of the law on the landfill of waste.

The court stated that the law on groundwater pollution and disposal of waste do overlap and are not intended to be mutually exclusive.

Therefore, if the disposal of this liquid hazardous waste falls within the terms of the landfill regulations, it is not inconsistent for it to be governed by that legislation.

A key issue was the definition of 'landfill' as it appears in the landfill regulations.

This states that 'landfill is a waste disposal site for the deposit of the waste onto or into land'.

The court was in no doubt that Blackland Park Exploration was operating a 'waste disposal site' but went on to consider in more detail the question of whether the activity involved the deposit of waste into land.

Blackland Park Exploration argued that discharging liquid waste to groundwater is not a landfill activity.

However, the court noted that a landfill can be on or beneath the surface of the land.

It also disagreed with Blackland Park Exploration's suggestion that the liquid waste was being 'discharged' and not 'deposited'.

Finally, Blackland Park Exploration argued that the waste acceptance criteria for landfills set out in Council Decision of 19 December 2002 and the general requirements for all classes of landfills in annex II of the Landfill Directive do not really apply to the disposal of liquid waste, and therefore the landfill directive cannot have been intended to regulate the activity.

The court said that this argument puts the cart before the horse.

Given that the landfill directive expressly prohibits disposals of liquid waste, it is logical that no waste acceptance criteria or general requirements relevant to liquid waste should be included in these documents.

By Paul Sheridan, CMS Cameron McKenna, London