The law or the land?

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.