The High Court has handed down judgment in R (New Earth Solutions (West) Limited) v Environment Agency [2022] EWHC 1883 (Admin) (available here) dismissing a challenge to the Environment Agency’s decision to withdraw consent for the export of ‘air pollution control residue’ or fly ash to Norway for treatment on the island of Langøya, in the Holmestrand Fjord.

The case turned upon the characterisation of the proposed treatment in Norway – whether it is an operation for “recovery” or “disposal” in accordance with the definitions in the EU Waste Framework Directive (2008/98/EC) (the WFD).  There are stricter legal and policy controls on the export of waste for disposal than recovery (such as recycling, or recovery of energy).

The operator argued that because the residue is used in substitution for limestone to treat sulphuric acid, it is a R5 recovery operation and/or the principal result is the conservation of natural resources.  That is how the treatment operation is classified by the Norwegian authorities.  The Environment Agency, however, took the view that the operation is the co-treatment of waste prior to landfill, so is a D9 disposal operation and/or that the principal result is disposal.

In favouring the Environment Agency’s approach, Mrs Justice Thornton:

-    Distinguished the case of SITA EcoService Nederland BV (Case C-116/01) where the Court of Justice held that the analysis should be limited to the first distinct operation in the country of destination, on the basis that SITA related to different operations and not D9;
-    Held that regard should be given to the lists of operations in the Annexes to the WFD and that only in cases of genuine uncertainty or overlap will it be necessary to carry out a case-by-case assessment and consider the “principal result” of the operation(s);
-    Concluded that the assessment of the “principal result” of a waste operation is a question of judgment for the competent authority – in this case the Environment Agency;
-    Did not consider it necessary in those circumstances to rule upon the question of whether or not the act of substitution was itself a distinct operation, but was “inclined to accept the Environment Agency’s submission … that substitution is regarded as a characteristic of a waste treatment operation rather than a separate recovery operation in its own right” (para.94); 
-    Held that there was no error of law in the Environment Agency’s assessment of the operation as a D9 disposal operation (i.e. “physico-chemical treatment … which results in final compounds or mixtures which are discarded by mean of [a disposal operation]”; and 
-    Held, in the alternative, that the Environment Agency was entitled to exercise its judgment on the material before it that the “principal result” of the operation was disposal.

The case is the first significant domestic authority on the WFD since Brexit and is notable for relating to the dispatch and delivery of waste between non-EU countries. While it does not bind other competent authorities (by virtue of Art.28(3) of EC Regulation 1013/2006 on transboundary waste shipments), the judgment represents an endorsement of the Environment Agency’s approach to the co-treatment of waste domestically – both in general and specifically as regards ‘air pollution control residue’ or fly ash.

Ned Westaway acted for the Environment Agency