The law or the land?

One, says Julian Parry, has been laid to waste. So which is it?

On 29 August 1998 the Operations Directorate of the Environment Agency issued Instruction No. 4, claiming that all contaminated soil was waste and all treatment of contaminated soil was a waste recovery operation. Since then they have avidly sought to control land remediation with site licences and mobile plant licences. The question is: have they got it right?

The whole issue arises from EC Directive 442, issued as far back as 1975, clearly states that it is concerned only with 'moveable waste'. Land in situ is not moveable and cannot normally be legally or physically 'discarded'. In 1991 a new Directive established a common definition of waste, and in 1994 the now DETR formally interpreted that revised meaning as: "Waste appears to be perceived in the Directive as substances or objects posing a threat to human health or the environment which is different from the threat posed by substances or objects which are not a waste. This threat arises from the particular propensity of waste to be disposed of or recovered in ways which are potentially harmful to human health or the environment," and "From the fact that the producers of the substances of objects concerned may no onger have the self interest necessary to ensure the provision of appropriate safeguards." (DoE circular, November 1994).

Now, it could be said that the remediation of land in situ is evidence of a holder having the necessary self interest and applying appropriate safeguards ­ to protect the value of their land or to limit their public liability. In that case the WML regime might be said to be wholly inapplicable. That is not, however, the way the Environment Agency has chosen to see the matter.

In 1994 a series of cases regarding what is and what is not waste was heard before the European Court, culminating in the pronouncement that whether or not a substance was a waste could be determined by examining if it was the intent of the holder to consign it to a waste recovery operation. Later, in the case of Mayer Parry vs The Environment Agency, Judge Carnwath similarly decided that whether or not a discarded material was a waste or a secondary raw material depended upon whether or not a waste recovery operation was required before such re-use was possible.

Acting as the competent authority appointed under the Framework Directive, the Environment Agency interpreted this as meaning anything treated in a way fitting the description of a waste recovery process is a waste. That is where the problem lies. For in terms of strict legal interpretation, Judge Carnwath found that a class of discarded personal property would inevitably be a waste unless it was classified as a secondary raw material by the application of a specific class of test. That is a milion miles from saying that a piece of real property which is not waste and is not intended to be discarded ­ indeed is impossible to discard ­ is converted into waste simply because the owner did something to it which happened to resemble the mechanics of a process involved in a stated class of test. Especially when the doing of that something was an act which would normally have prevented any property from being classed as a waste by reference to the primary interpretation of the Framework Directive found in DoE circular November 94 in the first place ­ in short, the application of appropriate safeguards.

And so, mobile plant licences are required for some operations, site licences for others, but excavation goes uncontrolled.



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