Piggybacking’ landfill disposal held to be legal

The High Court has held that under UK and European law it is legally permissible to grant a new permit for the disposal of waste on sites overlapping a closed landfill. With growing pressure to find suitable sites, so-called ‘piggybacking’ applications have become more prevalent, but until now the Environment Agency had always refused applications.

In R ex parte Anti-Waste Ltd v Environment Agency (Administrative Court, High Court 4 April 2007 [2007] EWHC 717) Mr Justice Collins rejected the Agency’s argument that such applications could not lawfully be granted. However, he made clear they would have to satisfy stringent technical requirements to avoid pollution.

Anti-Waste had submitted applications for two sites in Norfolk. In each case it proposed depositing waste above part of an existing closed cell separated by an angled liner sufficiently strong and impervious to stop new waste leaching into the old, and compression of the old waste, which could cause further leaching. In essence the new cell was was intended to be physically independent from the old cells.

The legal issue as to whether such an application could be treated independently from the old landfill required the court to focus on the meaning of an installation and site under the relevant legal provisions.

Mr Justice Collins began with the EU integrated pollution prevention and control (IPPC) Directive which encompasses, among other industrial activities, landfill disposal over a certain size. He also considered the EU landfill Directive and the 2002 implementing regulations.

The IPPC Directive requires permits for new installations. It defines an installation as a ‘stationary technical unit’ where relevant activities are carried out together with other directly associated activities on that site that could affect emissions and processes. Permits may be granted to cover one or more installations on the same site. The Pollution Prevention and Control (England and Wales) Regulations 2000 define an installation in the same way.

The court noted that, from the definitions, it was clear that a site was not necessarily coterminous with an installation, and that the definitions in the IPPC Directive would be likely to apply to the more detailed landfill Directive unless otherwise specified. ‘Landfill’ is defined in both the landfill Directive and the 2002 regulations as "a waste disposal site for the deposit of waste onto or into land", but there was no specific definition of a ‘site’.

Mr Justice Collins considered that the word ‘site’ in this context was being used in its ordinary sense to cover a place where waste was to be deposited, and that the purpose of the definition was to identify the landfill’s location.

To marry the two EU Directives, in his view, "what is described as the installation in the [IPPC Directive] becomes the landfill in the [landfill Directive] and so the installation covers the place where the landfill occurs."

The Environment Agency’s own Regulatory Guidance Note on the subject advised that ‘site’ meant an area of ground, so a waste disposal site could be defined by a line on a plan. Any definition of a site other than by reference to a line on a plan was not acceptable and any attempt to produce separation through engineering a barrier overlying previously disposed wastes was not permissible. However, Mr Justice Collins considered this to be wrong because he did not accept that the ordinary meaning of a site was an area of ground.

The Agency argued that even if it was wrong on the definition of a site under the landfill Directive, a piggybacking landfill could not be regarded as a ‘stationary technical unit’ under the IPPC Directive.

Once again there was no further definitions of the term under the Directive or implementing regulations. Mr Justice Collins noted that the government’s 2002 Practical Guide to the IPPC controls 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 I activity or activities on its own."

Mr Justice Collins considered that the meaning suggested in the guidance was appropriate. "I see no reason why in principle a new deposit in a defined area which excludes an old cell should not qualify," he said.

In applying the IPPC definition of an installation to landfill sites, another Agency Regulatory Guidance Note advised that closed parts of the landfill should still be regarded as part of the installation "where there was no significant physical or engineered separation between such areas - that is they are interdependent and so managed as a single entity in order to protect the environment."

However, Mr Justice Collins was not convinced that a further test of independence was needed. If the proposed new disposal risked serious pollution from the closed cells, it should not receive a permit. This was not because it did not qualify as a technical unit in law but because it cannot meet the requirements necessary to avoid any serious risk of pollution.

The Agency was concerned that allowing such applications might gives rise to problems of identifying liabilities where the closed part of the landfill was the responsibility of a different operator. The court accepted that in considering a piggyback application it was legitimate for the Agency to take account of these potential liability difficulties, but felt these problems could be met by suitable conditions, and that in a given case the new operator might accept the responsibility for the aftercare of the whole site.

There was a further argument concerning the application of the EU groundwater Directive now implemented by the 1998 Groundwater Regulations. Many closed landfills continued to allow the dispersal of leachate, now prohibited under the Directive in relation to new landfills. In essence the Agency had also argued that if a piggybacking application included the whole site, it would in effect amount to permitting the discharge of the leachate from the old cells.

Since Mr Justice Collins had concluded that a landfill permit did not have to refer to the whole site, it was not necessary for him to deal with the point. Nevertheless he concluded that if an authorisation did have to encompass the whole site, and was sought to permit landfilling where there were existing discharges, it would permit them in the future. Any continuation of the discharges must therefore be prevented, and it followed that the Groundwater Regulations would prevent an authorisation being granted if there were any relevant discharges, whether or not the new deposits caused them.

The decision in Anti-Waste does not necessarily imply that piggy-backing applications will now be readily granted. Mr Justice Collins noted that an applicant would only be granted any such permit "if, but only if, it can demonstrate that there is no risk of pollution either currently or in the future for the period covered by any aftercare requirements, whether that pollution may arise directly from its activities or because those activities hinder or prevent proper measures to deal with the aftercare of the existing cell."

These are demanding requirements, but the arguments will at least now shift to technical rather than purely legal questions.

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