Solvent Resource Management Ltd v Environment Agency

Material derived from waste may cease to be waste after a recovery operation, but that conclusion is not automatic. Where the material is intended to be burnt as fuel, the burning itself is a recovery operation under R1 and ordinarily involves discarding the material. It therefore remains waste until the energy has been recovered.

A product recovered for use as a solvent may subsequently become waste when used as fuel. A limited exception may apply where material originally used or available as fuel is restored to its original chemical and physical specification without further processing. Broad comparisons with natural fuels based on environmental equivalence or emissions are too uncertain to replace the controls imposed by the European waste regime.

Two judicial review applications by Solvent Resource Management Ltd and OSS Group Ltd were heard together against the Environment Agency. Both challenged requirements that fuels derived from waste be burned in accordance with the Waste Incineration Directive regime.

The common issue was whether material which had undergone a recovery process ceased to be waste before combustion, or only when it was burned and the energy recovered. The issue arose in different factual settings: recovered solvents intended for use by Solvent Resource Management Ltd, and recycled fuel oil produced from contaminated lubricating oils by OSS Group Ltd.

1. Common issue. The court accepted the Agency’s analysis that material which was waste or derived from waste does not ordinarily cease to be waste merely because it has undergone a recovery process and is intended to be burned as fuel. The burning is itself the R1 recovery operation, and the material is discarded within the meaning of the Waste Framework Directive when used principally as fuel.
2. Meaning of recovery. R2 concerns reclamation or regeneration of solvents for use as solvents, while R1 is a distinct recovery operation involving use principally as fuel or another means of generating energy. More than one successive recovery operation may occur. Thus recovered solvents accepted as ex-waste for sale as solvents may revert to waste when subsequently burned as fuel.
3. Environmental comparison. The proposed tests based on a product being no more polluting than a comparable virgin fuel, or posing no danger typical of waste, were rejected as uncertain and unworkable. They could produce different outcomes depending on the plant, comparator, location, process or later criminal proceedings, and would not control handling, storage and transport risks. They could not replace the comprehensive supervision required by the European waste regime.
4. Special case. The Agency’s limited exception was accepted. Where material was originally a fuel, or was used or available for the common purpose of being used as fuel, it may be recovered as fuel if it is chemically and physically identical to the original material and requires no further processing. Solvent Resource Management might establish this for some PGDs, subject to the Agency’s consideration of specifications and contaminants.
5. Disposition. No relief was granted to OSS. The court refused relief enabling CFO to be burned outside the Waste Incineration Directive regime. The court reserved the consequential position in relation to Solvent Resource Management for further submissions.

These were first-instance judicial review applications. The judgment itself records an earlier order by Ouseley J and the dismissal by Sir Michael Harrison of the Agency’s application to set that order aside, with no appeal against that decision.