Applicant operating cement works – Applicant having authorisation to burn Cemfuel – Environment Agency concluding Cemfuel constituting waste and varying authorisations – Applicant seeking declaration that Cemfuel not hazardous waste – Whether Cemfuel constituting waste – Waste Framework Directive 75/442/EC – Whether Council Directive 94/67/EC applying to cement works – Application dismissed
The applicant (Castle) operated the Ribblesdale and Ketton Cement Works, where it burned “Cemfuel” in kilns pursuant to authorisations issued under the Environmental Protection Act 1990. The respondent Environment Agency (EA) concluded that Cemfuel constituted hazardous waste, and, consequently, issued notices varying the conditions of the authorisations in accordance with the Hazardous Waste Incineration Direction 1998. That direction applied the provisions of Council Directive 94/67/EC on the incineration of hazardous waste (the HWID).
Castle sought to challenge the EA’s variation of the authorisations, and to obtain a declaration that Cemfuel was not hazardous waste. The central issue was the application of the Waste Framework Directive 75/442/EEC (WFD), Article 3(b) of which required member states to take appropriate measures to encourage: “(i) the recovery of waste as a means of recycling, re-use or reclamation… or (ii) the use of waste as a source of energy”. Annex IIB listed recovery operations applicable to waste materials, including “R1 Use principally as a fuel or other means to generate energy”. R1 differed from the other operations listed, R2 to R9, as it referred to an end use of waste, (eg use as a fuel), whereas the others referred to “recycling ” or “reclamation” operations carried out to render waste fit to be used.
Castle submitted that: (i) the process of recovery of Cemfuel from various different waste streams resulted in a product that was no longer waste; (ii) that process was complete by the time the Cemfuel left its producer for delivery to Castle’s works; and (iii) accordingly, by the time Castle used Cemfuel as a source of energy, it was not waste. It did not dispute that if Cemfuel were found to be waste, it was hazardous for the purposes of the HWID.
EA submitted that: (i) Castle’s operations fell within R1: (ii) R1 related not to Article 3(b)(i) (as the other listed operations did) but to Article 3(b)(ii), which was concerned with the recovery of energy; (iii) such recovery did not take place until a substance was used for fuel; and (iv) until that point, the substance continued to be waste. It therefore contended that the burning of Cemfuel in the kilns was part of the recovery process, and that Cemfuel remained waste until burned.
Held: The application was dismissed.
Cemfuel was a hazardous waste and was rightly treated as such by EA. The wastes used to produce Cemfuel were not “recovered” for the purposes of the WFD until they were used as a fuel or other means of generating energy. That operation did not take place until Cemfuel was so used by Castle or another cement producer. It followed that Cemfuel was waste for the purposes of the directive, irrespective of the processes used to produce it from substances that were, indisputably, waste, and irrespective of the differences between it and its constituent substances. It was clear that the carrying out of a “complete” recovery operation did not necessarily result in a substance ceasing to be waste: Arco Chemie Nederland Ltd v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer Case C-418/97 and Vereniging Dorpsbelang Hees v Directeur van de dienst Milieu en Water van de provencie Gelderland C-419/97 considered.
Philip Havers QC and David Hart (instructed by Norton Rose) appeared for the applicant; John Howells QC and Timothy Ward (instructed by the solicitor to the Environment Agency) appeared for the respondent; Matthew Hutchings (instructed by Richard Buxton, of Cambridge) appeared for an interested party.
Sarah Addenbrooke, barrister
