EA loses landfill challenge
New waste disposal sites facilities can, in some cases, be built on the sites of former landfills, contrary to the existing Environment Agency guidelines.
R ex parte Anti-Waste v Environment Agency
The High Court in England has held in the case of R ex parte Anti-Waste v Environment Agency  EWHC 717, that it is possible to grant a new permit for waste disposal on a site overlapping a closed landfill, forcing the Environment Agency to rethink its policy of refusing such ‘piggybacking’ applications.
The court however, made it clear that there would have to be strict technical requirements in place to prevent waste from the new landfill leaching into the old landfill and also to prevent compression of the waste in the old landfill, which could result in increased production of leachate.
The focus of the legal arguments during the hearing of the case was the definition of “installation” and that of “site” under the IPPC Directive (Directive 96/61/EC), although the Landfill Directive (Directive 99/31/EC) and the national provisions transposing the IPPC Directive into UK law were also considered. Under the IPPC Directive “installation” is defined as a stationary technical unit where relevant activities are carried out along with other directly associated activities on the site that could affect emissions and processes.
The court was of the opinion that the definitions indicated that a site was not necessarily the same as an installation, in particular since permits can be granted so as to cover more than one installation on the same site.
The Court regarded the use of the undefined word “site” in the Landfill Directive as having its ordinary meaning, which essentially is that of the location of a landfill. While the Environment Agency (EA) argued that “site” meant an area of ground, by reference to a plan, the Court went on to state that an “installation” under the IPPC Directive was the same as a “landfill” under the Landfill Directive, with the installation covering the place where the landfill it situated.
While the EA then tried to argue that a ‘piggybacking’ landfill was not a stationary technical unit in terms of the IPPC Directive, the Court looked at the UK Government’s practical guide to IPPC Controls published in 2002, which described a technical unit as ‘something which is functionally self-contained in the sense that the unit – which may consist of one component or a number of components functioning together – can carry out a Schedule 1 activity or activities on its own’.
The Court considered this meaning to be appropriate, and saw no reason why ‘piggybacking’ landfills could not qualify under it.
An Environment Agency Regulatory Guidance Note stated that closed parts of a landfill should still be regarded as part of the installation where there was no significant physical or engineered separation between the areas. However, the decision of the High Court in this case has confirmed that it is possible to grant a new permit for waste disposal on a site overlapping a closed landfill.
In reaching this conclusion, the Court looked at the issues of allocation of liabilities and groundwater pollution. In relation to the allocation of liabilities, the EA argued that by allowing ‘piggybacking’ applications, this would create problems in terms of liabilities, since the closed part of the landfill might be operated by a different entity from the new part.
The Court however felt that this could be addressed by suitable conditions being imposed. In terms of groundwater pollution, the Groundwater Directive (Directive 2006/118/EC) aims to prevent the dispersal of leachate from new landfills.
The Court concluded that it could preclude authorisation being granted where there were existing discharges of leachate, since if an authorisation encompassed both the old and new landfills then it would effectively permit the discharges. This was the case whether the new waste deposits caused the leachate discharges or not.
While there are therefore various technical obstacles to be overcome in demonstrating that no future pollution would result from the addition of a new landfill overlapping an existing site should, the legal question of whether this can be permitted, has now been clarified.