Is recycled motor oil a “product”? Or does it constitute another form of “waste”? This question is one which has been exercising some of the finest legal minds in the UK for the best part of two years.
Last week, a decision was finally reached in the Appeal Court. In a judgment that has been welcomed by Europe’s fast growing waste management sector, Lord Justice Carnwath, the Master of the Rolls Sir Anthony Clarke, and Lord Justice Maurice Kay, ruled that a new type of recycled oil produced by the OSS Group is, in fact, a product.
Semple Fraser partner Vincent Brown advised OSS throughout this 18-month legal marathon, which has moved through various forums including the Court of Session, High Court and Court of Appeal, with Robert McCracken QC, acting as OSS’s counsel.
Brown said: “This landmark ruling provides a more certain legal foundation for investment in sustainable recycling of hazardous industrial and commercial wastes. We’re delighted that it endorsed our own position on EU law, which reflected our experience working in different EU legal regimes. It is also a tribute to the perseverance and courage of OSS, who had the odds stacked against them.”
The future of OSS Group, the UK’s largest collector and recycler of waste oils, depended on the ruling. It has developed a “green” product known as Clean Fuel Oil (CFO), which is recycled from used lubricating oil collected from 15,000 garages and other sites all over the country. With sites in Uddingston, Lanarkshire, and in Stourport, Worcestershire, OSS had invested £3m in the project, for which it forecasts revenues of some £20m.
However, the project was nearly strangled at birth when the Environment Agency decided that clean fuel oil should still be classified as waste for the purposes of the EU’s Waste Framework Directive, even after OSS had treated and cleaned it up. This came as a body blow to the Merseyside-based group, meaning it and users of clean fuel oil such as power stations were obliged to comply with a raft of European waste control regulations.
Observing that the dispute could, in part, be blamed on the inadequacies of European law, Lord Justice Carnwath told the court: “A search for logical coherence in the Luxembourg case law is probably doomed to failure.” However, the judge accepted OSS’s arguments that the test adopted by the Environment Agency was “too narrow”. He accepted the agency had legitimate concerns about the practical difficulties of applying a wider test, but told the court: “I am not convinced the difficulty is as great as they the Environment Agency suggest.”
Andrew McNair, managing director of OSS said: “It’s a victory for common sense but this by no means detracts from the excellent work of Vincent Brown and his team of specialists. This result means we can continue production and sales of our Clean Fuel Oil and our customers can continue to benefit from a cost-effective and much more environmentally beneficial alternative to virgin fuels.”
The Environment Agency also welcomed the ruling – although seemingly through gritted teeth – acknowledging that at least it cleared up confusion. The agency also said that it would be modifying its stance towards the new material.
This article was published in The Herald on Monday 9 July 2007