Claimant replacing oil extracted from porous rock with imported contaminated water — Water leaching from oil-bearing strata into groundwater — Whether claimant’s activity regulated by Landfill (England and Wales) Regulations 2002 or Groundwater Regulations 1998 — Claim dismissed
The claimant operated an onshore oilfield. As part of the operation, imported liquid wastes, including contaminated water, were injected into the oil-bearing strata to replace the volume of extracted oil. In July 2002, the Environment Agency informed the claimant that it had classified the site as a landfill for hazardous wastes. Since the Landfill (England and Wales) Regulations 2002 prohibited the discharge of liquids into a landfill site, the imported liquid-waste part of the operation at the site was required to cease.
It was common ground that the contaminated water was hazardous waste. The claimant, however, contended that: (i) the site was not a “landfill” for the purposes of the relevant legislation; (ii) although the water was pumped into porous rock, it subsequently leached into groundwater, which meant that the operation should be regulated by the Groundwater Regulations 1998; and (iii) since the groundwater in question had already been classified by the Environment Agency as unusable, the claimant was not in breach of any environmental legislation.
Regulation 3(2) of the Landfill Regulations defined the term “landfill” as “a waste disposal site for the deposit of the waste onto or into land”. The claim turned upon whether the definition of the word “deposit” implied a degree of control on the part of the operator, as opposed to the term “discharge”, which, it was argued, did not. The claimant contended that the term “deposit” should be taken in the context of the legislation, which emphasised the requirement for the controlled placement of waste into a static, self-contained environment (such as a disused mineshaft), whereby the depositor maintained an element of control over the deposited materials. “Deposit”, on the other hand, implied no such degree of ultimate control, because where, as in this instance, the water was discharged into the ground, the claimant had no control over its progress through the rocks and into the groundwater. In effect, the contaminated water was not being discharged into any type of cavity that could be classified as a landfill site, but was, rather, being discharged into the groundwater by way of the porous rock.
Held: The claim was dismissed.
The site was clearly being operated as a landfill. If the liquid waste had been deposited into an underground cavity, such as a disused mine, the activity would have been that of a landfill. The fact that the liquid was being discharged into porous rock made no difference, and it was irrelevant that the underground strata spread beyond the confines of the site and was not all under the control of the operator. The definition in the Landfill Regulations did not require that the land into which the waste was deposited should be defined by the surface boundary of the site from which the activity was conducted.
The distinction between the terms “deposit” and “discharge” did not suggest any sort of control or lack of control over the medium into which the waste was placed. Such a reading of Council Directive 1999/31/EC (the Landfill Directive) and corresponding regulations, which had a broad purpose to protect the environment and human health, was too narrow.
Groundwater could exist in a mine or a well, and, by its presence, would not render them outside the confines of the Landfill Directive. The presence of groundwater in the porous rock was therefore irrelevant to the operation. The manner in which the claimant’s activity could be characterised was more relevant; that is, was it a waste-disposal operation, in the sense that the site was being operated as a place for the disposal of waste, so that the discharge to groundwater was incidental to, or a by-product of, some other operation conducted from the site? Given that the answer to that was yes, the site clearly operated as a waste-disposal site and was a landfill within the meaning of the Landfill Regulations.
Stephen Tromans (instructed by Andrew & Co, of Lincoln) appeared for the claimant; Kassie Smith (instructed by Environment Agency) appeared for the defendant.
Vivienne Lane, barrister
