A judge has rejected claims that the Environment Agency breached EU waste regulations by not issuing guidance for the recycling of waste lubricating oil (WLO).
The judge also cleared the Agency of treating waste oil recyclers “less favourably” than re-processors who enable recovery of energy from WLO.
Judge Williams (pictured) said he “struggled to see” how the Agency treated anyone unfairly (Picture: Welsh government)
Shropshire-based Protreat, the company which brought the case, says it intends to apply to appeal the ruling.
High court of Justice
The ruling was handed down last week (July 30) by judge Sir Wyn Williams, sitting as a judge of the High Court in the High Court of Justice, Queens Bench Division, in London.
The case is the latest in a series of court cases over the years as to what can be deemed as a product rather than a waste.
Protreat Ltd, which provides consultancy services to companies engaged in converting WLO into useable products, had accused the Agency of treating recyclers of waste oil for non-fuel use “less favourably than re-processors who merely enable recovery of energy from waste oil”.
Also, the consultancy firm said that the Agency breached EU regulations by not implementing recycling guidance, and also said that the dates chosen in a regulatory position statement (RPS) issued by the Agency were “chosen arbitrarily and/or irrationally”.
However, in handing down his opinion, the judge concluded that “each ground of challenge fails and, accordingly, the claim must be dismissed.”
WLO
WLO is described in the court documents as lubricating oil that has been discarded as waste.
Most of this is derived from vehicles and engines, which according to the court documents, is capable of being hazardous and poses a “serious detrimental risk to the environment and human health unless properly managed”.
However, some physical and chemical processes exist which mean that WLO can be converted into “base oil” which is similar in characteristics to a virgin base oil produced from crude oil activities.
Two of the chemical processes used for such conversion are “re-refining” and “reprocessing”.
WLO is lubricating oil that has been discarded as waste, such as car engine oil
Complaint
The Protreat complaint related to a decision by the Environment Agency in December 2016, to regard “recycled oils that are generated from waste oils as still being waste”.
The letter was in response to submissions put forward as part of a regulatory position statement (RPS) that the Environment Agency issued in November 2015, which ended in December 2016.
Environment Agency representatives said that “the RPS was designed to be an interim or temporary measure so as to allow Oil Recycling Association (ORA) and other interested organisations the time to develop ‘an end-of-waste submission for re-refined base oils’.”
According to the court documents, as part of the RPS, the ORA submitted an end-of-waste guidance document to the Agency which they hoped would were “sufficiently detailed and precise to form the basis for determining whether the products of re-refining were to be regarded as having achieved end-of-waste status” in May 2016
However, this was rejected in December 2016, with the judge summarising that the “very long” EA response explained that it was not prepared to accept the submission as a proper basis for determining whether products of re-refining had reached end-of-waste status.
“Essentially, the defendant’s complaint was that there were gaps in the information and/or data provided”, the judge said.
Protreat then took the issue to court, saying that the EA must produce a guidance under EU law, and that waste oil recyclers were being treated unfairly.
Verdict
Any suggestions of the Environment Agency treating anybody unfairly in its December 2016 letter, however, was quickly dismissed by judge Sir Wyn Williams.
“I have always struggled to see how the decision contained within the decision letter of December 2016 could, by itself, constitute unfavourable treatment, he explained.
Sir Williams added: “The principle cannot require the defendant to approve a technical submission that it reasonably and rationally concludes lacks all the necessary relevant information before a judgment can be made that a given product has achieved end-of-waste status.”
EU Waste directive
Sir Williams went on to say that despite the EU Waste Directive outlining that each member state must take “any appropriate measure” to ensure fulfilment of the obligations, this does not necessarily mean it falls on the Agency to bear responsibility.
Protreat provided an independent up to date life cycle analyses which shows that refining waste oils is superior to producing fuel to recover energy. The Environment Agency did not provide a LCA as part of their evidence.
Christopher Williamson
Protreat
The judge said: “The claimant contends that the defendant, as an emanation of the state, is under a duty proactively to direct its resources and use its powers to seek to ensure the result required by the Waste Directive.
“I accept that the phrase ‘member states’ in the Waste Directive is apt to describe emanations of the State such as the defendant… however, this obligation can only arise in relation to the exercise of the powers which have been conferred upon the Agency. The Defendant cannot be obliged to comply with the provisions of the Waste Directive unless it has the power to act in a way demanded by the directive.”
Appeal
The judge concluded that as he is not “the court of last resort” Protreat can seek permission to appeal in the Court of Appeals, but this would be against his judgment.
Protreat director, Christopher Williamson, labelled the decision a “bad day” for the waste industry
Speaking to letsrecycle.com, Protreat director, Christopher Williamson, explained that he intends to appeal the decision and labelled it a “bad day” for the waste industry as those who recover WLO as energy recovery instead of recycling it back into oil have the upper-hand.
Mr Williams said: “
The judgment does not recognise this and goes so far to say that the EA’s position is justified even though producing fuel is not the best practical environmental option.”
He added: “Refining is the best practical environmental option but put simply, the EA’s position today is that if waste lubricating oils are recovered as fuels they are no longer waste but if they are recycled as lubricating oils they are still waste.”
He concluded by saying that the uncertainty created by this case, which has been ongoing since 2012, “means that at least one major UK waste oil collector and recycler has decided to build their re-refinery in Denmark instead of England.”
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Source: letsrecycle.com General
