Environmental law

By Paul Sheridan, CMS Cameron McKenna

Secondary liquid fuelTwo recent cases on the regulatory status and effects of burning secondary liquid fuel (SLF) highlight some of the legal difficulties arising from the economic reuse of by-product.

The regulatory backgrounds to the two were different, but the cumulative result was a draw.SLF is a liquid blended from waste oils and solvents.

It is used as a fuel in kilns (in these two cases the kilns are used to produce cement and dolime).

Castle Cement v Environment Agency, 22 March, [2001] ALL ER (D) 275This case concerned an application by Castle Cement to the High Court for a declaration that SLF is not waste within the legal definition set out in the waste framework directive (Directive 75/442/EEC (as amended)).If Castle Cement was correct it would be able to avoid making changes to its operations to comply with Council Directive 94/67/EC on the Incineration of Hazardous Waste (HWID).

Requirements by the Environment Agency to make such changes prompted the application.The judge respectfully cited the judgment in Mayer Parry Recycling Limited v Environment Agency [1999] Env.L.R.

489 (a leading UK case on the definition of waste).

However he noted with regret that that judgment had been superseded in significant respects by the European Court of Justice's (ECJ) judgment in joined cases C-418/97 and C-419/97 known respectively as Arco and Epon.

It is clear from the judgment that the judge in this case struggled with the ECJ's decisions.

Indeed he described parts of the ECJ's judgment in Acro/Epon ECJ judgment as 'delphic'.

The judge applied one of the concepts adopted in the Mayer Parry judgment namely that for the purposes of the definition of waste the word 'discard' has a special meaning which includes recovery operations.

The judge focused on the non-exhaustive list of recovery operations contained in annex IIB to the waste framework directive.

He took the view that the items in that list are not intended to overlap.

Item R1 of annex IIB reads: 'Use principally as a fuel or other means to generate energy'.

The judge ruled that this was the relevant recovery operation in this case and that on this basis the wastes used to produce SLF continue to be classified as waste and are not recovered until they are burned as a fuel in the kilns.

As a result the Incineration of Hazardous Waste Directive applied to Castle Cements processes and the Environment Agency's position was upheld.

R v Durham County Council & Anr ex parte Lowther, 24 May, (New Law online Case 101055502)This case concerned planning control.

It posed a different and potentially greater threat to the use of SLF.

While the Castle Cement case posed questions of environment controls over the use of SLF, this case questioned the right to use SLF.This case has already been reported (see [2001] Gazette, 7 June, 42).

Lafarge Redland Aggregates Limited, the second respondent, operated a dolime manufacturing plant at Thrislington in Durham.

In 1996 SLF began to be used in the dolime kilns as a support fuel (the main fuel was petcoke).

While the use of SLF was authorised by the Environment Agency it caused considerable local discontent.

Questions were raised as to whether the use of SLF constituted a material change of land use.

After consideration, the local planning authority concluded that planning permission was not required for the change.A local resident, Mrs Lowther, applied for judicial review of the local planning authority's decision.

She lost and lost again in the Court of Appeal.

The Court of Appeal held that, for planning purposes, burning of waste did not necessarily constitute a separate use of land where it is integral to another process (in this case it was integral to the manufacturing processes).Incineration as a renewable energyThe incineration of waste to recover energy through the generation of electricity and/or heat continues to be a controversial topic.

Many environment campaigners are strenuously opposed to the incineration of waste for a number of reasons, including alleged adverse health effects.

However, there are considerable pressures to increase incineration capacity.Measures required by the Landfill Directive to reduce landfill waste has undoubtedly increased pressure for more incinerators.

Another recent EU development could provide further support for incineration of waste.

It is reported that the Council of Ministers and the EU Parliament have reached agreement on a renewable energy support directive.Previously the EU Parliament opposed the council's position that energy from the incineration of biodegradable waste should be classified as renewable energy for the purposes of the directive.

The EU Parliament is now reported to have conceded on this issue.