Permit for landfill — Landfill to be below water-table — Whether minimal entry of water a breach of Council Directives 1980/68/EEC and 1999/31/EEC — Whether permissible to rely upon technical precautions to prevent discharge of toxic substances into groundwater — Pollution Prevention and Control (England and Wales) Regulations 2000 — Claim dismissed
The claimant lived near to a site that the interested party proposed to use as a landfill for putrescible waste, and for which the defendant had granted a permit under the Pollution Prevention and Control (England and Wales) Regulations 2000. The proposed landfill was to be below the water-table, with a clay liner to prevent water from entering the landfill. It was accepted that the liner would not be completely impermeable and that a small amount of water would be able to filter through it. The combination of water and waste would form toxic leachates, which would need to be contained. The defendant proposed to achieve this by way of a hydraulic containment system, which would involve pumping leachates out of the landfill so that the leachate levels would be artificially kept below the water-table and would be prevented from overflowing into the groundwater outside the site.
The claimant challenged the grant of the permit by way of judicial review on the ground that it was in breach of Council Directives 1980/68/EEC and 1999/31/EEC (respectively, the Groundwater Directive and the Landfill Directive). The claimant contended that, inter alia, the permit would: (i) allow the ingress of water into landfilled waste, contrary to article 8(a)(i) of, and para 2 of Annex 1 to, the Landfill Directive; and (ii) introduce list 1 substances (toxic substances that were to be found in leachates) into groundwater, contrary to article 3 of the Groundwater Directive. She further relied upon the prohibition in article 4 of the Groundwater Directive on the direct discharge of list 1 substances into groundwater; “direct discharge” was defined in article 1(2)(b) as the introduction into groundwater of listed substances without percolation through the ground or subsoil. She argued that the directive did not permit reliance upon technical precautions, such as pumping, to prevent direct discharge. Although the Groundwater Directive did not specifically mention this, the claimant argued that it was to be implied by comparison with the provisions for indirect discharges. The defendant submitted that the relevant provisions of the directives, when read purposively, permitted the proposed landfill.
Held: The claim was dismissed.
1. The relevant provisions of the directives were to be read purposively. The purpose of the Landfill Directive was not that landfilling should be prohibited, but that it should be permitted only where it would not damage the environment. Since no lining material could be totally impermeable, it would be impossible, in any landfill below the water-table, to prevent water from entering the landfill completely. However, the directive did not indicate that such landfills were not acceptable. In that context, the proposed clay liner would “prevent” groundwater from entering landfilled waste; “prevent” was to be interpreted as meaning “stop to the extent that it is possible to do so using available engineering techniques”. The primary focus of the directive was environmental protection from the flow of leachates out of a landfill; groundwater was to be prevented from entering the landfill to the extent that it was necessary to prevent the outflow of leachates.
2. There was no sensible basis for concluding that the flow of water through the clay liner into the landfill amounted to the introduction of list 1 substances into groundwater. The purpose of the Groundwater Directive was to prevent the discharge of pollutants into groundwater. The clay liner would do just that. Although it would let in some water, it would prevent discharge in the opposite direction. The introduction of water into leachates, contained in the landfill, was to be distinguished from the introduction of leachates into the groundwater. Moreover, water entering through the clay liner was not “groundwater”.
3. The requirement in the Groundwater Directive to take the “necessary steps” to prevent discharge of list 1 substances could include the taking of technical precautions. It was difficult to see how the prohibition on discharge could be achieved in any landfill below the water-table without some technical precautions, however basic. The prohibition of discharge and the taking of technical precautions to prevent such discharge were not, in practice, essentially different.
David Wolfe (instructed by Public Interest Lawyers, of Birmingham) appeared for the claimant; Jon Turner and Gerry Facenna (instructed by the legal department to the Environment Agency) appeared for the defendant; James Pereira (instructed by DLA Piper Rudnick Gray Carry UK LLP, of Leeds) appeared for the interested parties, Onyx Landfill Ltd and Tapton Properties.
Sally Dobson, barrister
