Environment – Waste storage – Environmental permit – Claimant applying for judicial review of policy guidance issued by defendant Environment Agency setting out its interpretation of certain provisions in schedule 3 to Environmental Permitting (England and Wales) Regulations 2016 – Whether regulations required activity constituting treatment of sludge storage exemption to necessitate grant of permit – Whether impossibility of de minimis waste operations falling outside regulatory framework – Application dismissed
The claimant was a company with various business activities including the emptying of cess pits and septic tanks. In 2017, the company served over 23,000 customers, of which 84% were residential and the remainder commercial. Under the Environmental Permitting (England and Wales) Regulations 2016, persons engaged in certain activities involving waste products were required to hold an environmental permit. Schedule 3, however, provided exemptions from that requirement, including an exemption relating to the storage of sludge (the S3 exemption). Agricultural use of sludge was governed by Directive 86/278/EEC on the protection of the environment, and in particular of the soil, when sewage sludge was used in agriculture (the Sludge Directive) and the consequential Sludge (Use in Agriculture) Regulations 1989. The claimant had four active S3 exemptions registered in its name for four different farm sites in the West Country and, in addition, delivered septic tank sludge to another five locations that had S3 exemptions registered in the farmer’s name.
According to the claimant, the defendant’s regional office stated that a permit was not required for the separation of sludge debris, provided it was disposed of correctly and that there were records to prove that had been done. Following a subsequent inspection, the defendant pointed out that the S3 exemption only allowed the storage of sludge. It advised that the exemption did not allow any form of treatment on site, including screening of the sludge prior to its application to land. A standard rules permit was available but no screening should take place until the permit had been issued. Activities such as screening of waste, without a suitable permit, was an offence.
The claimant expressed concern that the guidance issued by the regional office was inconsistent with the defendant’s position nationally. It filed a claim for judicial review of that guidance but the High Court held that it was not arguable that the screening of debris in the manner described by the claimant fell within the S3 exemption, that an activity such as screening amounted to treatment of the waste which needed to take place before the operation fell within the exemption, and that there was no basis on which the activities could be excluded from the regulatory requirements on the grounds that they were de minimis. When the claimant sought to appeal, permission was granted to apply for judicial review.
Held: The application was dismissed.
(1) The case essentially turned on the interpretation of the EU directives and statutory regulations. Under the Sludge Directive and the 1989 Regulations, “sludge” meant “sludge”, not “sludge including debris”. The term “residual sludge” in the S3 exemption in the schedule to the 2016 Regulations meant sludge which, after storage, was in a condition ready to be used in accordance with the Sludge Directive and the 1989 Regulations by “spreading on the soil or any other application on or in the soil”. The “residual sludge” covered by the S3 exemption was sludge that had been treated and was simply being stored pending use. The material that was stored under the S3 exemption was not “domestic sewage” but “residual sludge” fit for use in accordance with the 1989 Regulations. Moreover, under the S3 exemption, “storage” meant “storage”. It did not include any form of treatment. The screening process carried out by the claimant to remove debris from the sludge was unquestionably a form of treatment. The fact that screening of sludge before storage was a form of recovery operation under the Waste Framework Directive 2008/98/EC did not assist the claimant’s case.
The sludge collected from the septic tank owners was plainly different from the sludge stored on the farmers’ land. In order to come within the exemption, sludge stored on the farmers’ land had to be in a condition fit for use on the land. It was unlikely that sludge collected from the septic tank owners would be fit for use on the land because of the debris that was regrettably deposited in the septic tanks. It was not illogical that the operator who collected the sludge from a number of septic tanks and was required to remove debris from the sludge to put it into a condition fit for use on the farmers’ land should be subject to regulation.
(2) Whether or not the S3 exemption was subject to the de minimis principle could only be established on the facts of a particular prosecution. Even if the claimant was correct to contend that the exemption admitted of the operation of the principle, the defendant had not erred in law in advising that the screening process was a treatment activity so as to fall outside the exemption. The requirements in para 4(1) of schedule 2 to the 2016 Regulations for the purposes of the definition of an exempt waste operation were conjunctive, not disjunctive, so that even if an activity fell within the S3 exemption, it would only be exempt if the type and quantity of waste submitted to the operation and the method of recovery were consistent with the objectives in article 13 of the Waste Framework Directive.
(3) The court was not persuaded that the defendant’s proposal that the screening of debris in septic tank sludge would impose a disproportionate regulatory burden or prohibitive additional costs. No doubt the claimant would pass on additional costs to the septic tank owners, but that was fair since they were ultimately responsible for the presence of debris in the sludge. The judge was right when he found that the screening of debris from sludge prior to storage was not an activity comprised within the S3 exemption.
Gordon Wignall (instructed by Sharpe Pritchard LLP) appeared for the claimant; Heather Sargent (instructed by Environment Agency Legal Services) appeared for the defendant.
Eileen O’Grady, barrister
