Alleged Thames sewage leak considered by court

A case of alleged sewage leaks onto land in Kent in 2003 is likely to cause a headache for water companies after it was referred to the ECJ.

Urban Waste Water

The European Court of Justice has issued an Opinion in the case of Thames Water Utilities Limited, after the Administrative division of the High Court referred questions to the ECJ for a preliminary ruling.

Thames Water Utilities were accused of allowing sewage to escape from the sewerage network on eleven occasions between February and April 2003, and with its discharge onto land in Kent, and were prosecuted for illegally depositing waste.

The referring Court asked the following questions of the ECJ:-

  • Whether sewage which escapes from a sewerage network maintained by a statutory sewerage undertaker amounts to 'directive waste' for the purposes of the Waste Framework Directive?
  • If yes, then whether the sewage -
    (a) is excluded from the scope of 'directive waste' by virtue of Article 2(1)(b)(iv) of the Waste Framework Directive, in particular by virtue of the Waste Water Directive and/or the Water Industry Act 1991; or
    (b) comes within Article 2(2) of the Waste Framework Directive and is excluded from the scope of 'directive waste', in particular, by virtue of the Waste Water Directive.

    Article 2(1)(b)(iv) states that the Waste Framework Directive does not apply to waste waters, except waste in liquid form, where they are already covered by other legislation.

    The Court first of all examined whether waste water fell within a category of waste listed in Annex I to the Waste Framework Directive and whether the holder discarded, intended to or was required to discard the waste water.

    The Court said it was clear that the original holder intended to discard the waste water when it discharged it into the collecting system. Therefore, when discharged into the collecting system, waste water constitutes waste in terms of Article 1(a).

    The Court stated that waste water ceases to be waste when, through treatment provided for under the Waste Water Directive, it achieves a quality permitting it to be discharged to water or reused. Untreated waste water, on the other hand, has the same characteristics as the waste water discharged into the collecting system, and therefore continues to be regarded as waste, in particular where it escapes from the collecting system.

    Being "waste", was escaping sewage nevertheless covered by the provisions of the Urban Waste Water Directive, so as to fall within the above exception from the Waste Framework Directive? Did the UWWT Directive provide for a suitably wide regulatory regime?

    In order to be so, it must contain precise provisions organising the management, as waste, of sewage, and must result in a level of environmental protection at least equivalent to that resulting from the Waste Framework Directive, otherwise the objectives of the European Community will be jeopardised. Since the Waste Water Directive regulates collection, treatment and discharge of waste water, the exception under Article 2(1)(b)(iv) applies to waste water when it is collected in a collecting system, treated in a treatment plant and discharged.

    The Waste Water Directive expressly mentions prevention of leaks and limitation of pollution of receiving waters due to storm water overflows, and therefore contemplates that in the normal course of events a limited amount of sewage may escape from the collecting system However, beyond that contemplated level of "escape", the UWWT Directive does not apply, such as where escaped sewage contaminates the land onto which it has leaked.

    Therefore the Waste Framework Directive steps in at this point, and applies to the escaped sewage.

    Since regulation of escaped sewage in the UK doesn't yet provide for this additional level of regulation, it seems likely that regulatory changes will require to be applied, causing a headache for the water companies, and resulting in further disputes between water companies on the one hand, and those onto whose land sewage has escaped.

    The full text of the Opinion is available at the following link.

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