Phil Shiner on a ground-breaking pollution judgment

Phil Shiner on a ground-breaking pollution judgment. Phil Shiner is head of Tyndallwoods' planning and environmental department.

The High Court gave judgment on 8 May 1998 in my clients' three applications for judicial review concerning the incineration of hazardous waste in the cement and lime industry (R v Environment Agency (EA) ex parte Leam; R v EA ex parte Gibso; R v EA ex parte Sellers and Petty).

This practice is controversial and the subject of two critical Select Committee reports. Residents' concerns centre on the increased emissions of pollutants when using hazardous waste as a fuel, compared to traditional fuels such as coal.

The judgment clarifies a number of points for the EA which regulates both industries under Integrated Pollution Control (IPC) under Part 1 of the Environmental Protection Act 1990 (EPA 1990).

This test case judgment is essential reading for planning and environmental lawyers and deals with the following questions for the EA:

The rigours of the fundamental duty under s.7 EPA 1990, to ensure that a process is best available techniques not entailing excessive costs (BATNEEC) having regard to best practicable environmental option (BPEO). The court held that a BPEO assessment was a matter of fact and degree in each case, and that for each authorised process, every four years there is to be a fundamental review subject to BATNEEC/BPEO. Further, the decision to issue a variation notice to an authorisation is subject to BATNEEC/BPEO.

The meaning of the requirements of Article 4 of the 1975 EC Waste Framework Directive as transposed under the Waste Management Licensing Regulations 1994. The cases establish that this is a separate and free-standing duty for the EA, that is not co-extensive with the IPC regime.

The application of the 1984 EC Framework Directive on Industrial Air Pollution. The court held that the EA did not have to assess BPEO for the incineration of waste in addition to the original lime or cement process.

Whether at one plant there was a mixing of different categories of hazardous waste prohibited by the 1991 EC Hazardous Waste Directive. The judge found that what was meant by categories of waste was a matter of impression and fact and degree and that there had not been a mixing here.

The debate will continue and my clients will continue to press that coal is likely to be the best environmental option.