Safety-Kleen UK Ltd v The Environment Agency

Whether a substance is “waste” under the Waste Framework Directive depends on a purposive, fact-sensitive assessment of the holder’s actual intentions and actions. The court must make its own value judgment, considering all relevant indicators; no single factor is ordinarily decisive. Commercial value or subsequent beneficial use does not prevent classification as waste. Where a customer has used a substance for its intended purpose and no longer wants it, returning it for collection may amount to discarding it, even though the recipient makes a brief, useful use of it before specialist recovery. An expert regulator’s view may receive significant weight, but it does not determine the legal question.

Safety-Kleen supplied kerosene parts-washing equipment and collected used kerosene from customers, replacing it with clean kerosene. At its depots, the used kerosene was used briefly to rinse returned drums before being sent for specialist industrial cleaning and regeneration.

The Environment Agency decided that the kerosene became “waste” when collected from customers. Safety-Kleen challenged that decision by judicial review, arguing that it remained non-waste until sent to the dirty tanks. The parties agreed that the court had to decide the issue itself, rather than review the Agency’s decision only for rationality. The central question was whether the customers discarded the kerosene on collection.

1. Application dismissed. The used kerosene was waste when collected from the customers and remained waste thereafter.
2. Under Article 3 of the Waste Framework Directive, classification turns primarily on the holder’s intentions and actions, assessed in the light of the Directive’s environmental purposes. The court must make a value judgment on all the circumstances. The indicators are cumulative and no single factor is normally determinative. The concept of waste is not to be interpreted restrictively.
3. The customers were the legal possessors and holders of the kerosene. They no longer wanted it for the cleaning function for which it had been supplied and wanted replacement kerosene. They therefore discarded it when Safety-Kleen collected it. Safety-Kleen’s continuing ownership and its intention to make a beneficial use of the kerosene at the depot did not affect the customers’ intentions.
4. The depot rinsing process was brief, simple and subordinate to the customers’ primary use. It was commercially and environmentally beneficial, but did not amount to certain reuse in the market of the kind decisive in Shell Nederland Verkoopmaatschappij BV C-241/12. Nor did it change the kerosene from waste into non-waste before specialist recovery.
5. Shell Nederland Verkoopmaatschappij BV was distinguished. The returned diesel there had not been used, retained substantial market value, and was intended to be blended and placed back on the market. Here, the kerosene had been used by the customer, had no marketable value to the customer, and was not returned to the market without specialist cleaning.
6. The court gave the Environment Agency’s properly informed evaluation significant weight, particularly concerning environmental risk and technical matters, while emphasising that the legal question remained one for the court. The alleged factual misunderstandings and comparison with cloth wipes did not alter the conclusion.

The claim was dismissed.

Permission for judicial review was refused on paper and on renewal by Holgate J and Lieven J. Permission was granted on appeal by Lewison LJ in November 2019. The Administrative Court then dismissed the claim.