Waste as fuel judgement creates cross-border split

A series of disputes over the legal classification of waste used as fuel has led to a divergence in English and Scottish case law.

Solvent Resource Management Ltd v The Environment Agency & OSS Group Ltd v The Environment Agency

The judgement for two judicial reviews on end of waste heard in conjunction with one another has been issued. The cases focussed on the criteria of end of waste in relation to waste treated in a process before being burnt as fuel.

The issue is one of huge financial and practical significance for a wide range of industries and businesses as a result of the significant controls placed by European Directives and Regulations relating to waste, in particular the Waste Framework Directive 2006/12/EC and the Waste Incineration Directive 2000/76/EC.

The central question of the judgement was whether a substance that was or was derived from waste, and that has been the subject of a recovery process, but is to be burnt as a fuel, has ceased to be waste at the conclusion of such recovery process, or whether it only ceased to be waste when it has been combusted and the energy has been recovered.

The position of the Environment Agency was that whether or not a product may have reached end of waste in terms of being sold or used for another purpose, if it is to be burnt as a fuel then it does not ordinarily cease to be waste until it is burnt and the energy is recovered.

The exception to this rule, as put forward by the Environment Agency is where the material was originally a fuel or was used or made available for the common purpose of being used as a fuel, then it can be recovered as a fuel by an appropriate process and ceases to be waste if it is chemically and physically identical to the original material, and it requires no further processing.

The Claimants in the cases stated that this test was too restrictive, too stringent and lacking in justification, since in order to comply with the Directives it is not necessary that there be a return to the original product, nor is it necessary for it to have originally been a fuel if it is to be used as such in it's recovered state.

The Judge disagreed with Lord Reed's judgement in the Court of Session case Scottish Power Generation Ltd v SEPA, therefore creating a situation whereby there is a divergent treatment of end of waste criteria as between Scotland and England.

The parties have been granted leave to appeal the decision, but until the outcome of such appeal is decided, it is the case that there is serious concern that the application of these European laws now differs substantively between Scotland and England.

The judgement can be accessed at the following link.

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