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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