The legal definition of waste is at first blush simple, a material which the current holder has discarded is waste. However, this apparent simplicity is deceptive. When determining whether a material has been discarded and is therefore legally classified as waste, there are a number of factors which must be considered.
These are:
- Burden
If the material is likely to be a burden to a business, perhaps because it is unsuitable or surplus to requirements then that is a factor in the favour of the material being waste.
- Certainty of use
If it is not certain that a material will be used then it is more likely to be a burden and therefore waste.
- Fit for purpose
A material which does not meet the relevant standards or can’t be used for its intended use then that suggests it is waste.
- A specific purpose
If a material has no specific purpose and there is unlikely to be a benefit to the holder of having the material, it is likely to be waste.
- Management
Where the transport or management of a material is in a manner which is likely to cause damage to the material, it is likely to be waste.
- Environmental harm
Where a material is contaminated and there is a significantly greater risk of harm to the environment or human health if that material is not regulated as waste, it is likely to be legally waste.
- Common classification as waste
A material which is listed in the List of Waste code or the European Waste Catalogue code, it is likely but not certain to be waste. Yes, you read that right – just because something is listed as waste in the waste codes, doesn’t mean that that material is waste in the circumstances you are dealing with.
- Disposal or recovery
A material which has gone through a process which is usually seen as disposal or recovery will often be a waste. Landspreading is an example of a process which can be recovery, disposal or neither.
- Fuel or waste
Materials which are commonly used as a fuel are likely to be a fuel and not a waste if used as a fuel. If a material can be used as fuel but will produce significantly less energy than an alternative, then that may suggest it is not a fuel but waste and the process of burning is for disposal.
- An item returned for a refund
Items which are returned for a refund are not discarded by the person returning it, but the person who receives the returned item may then discard it if the above factors suggest it is waste.
- Reuse, the by-products test and the end of waste test
Where the factors in these tests apply in full, the material will not be waste or will no longer be waste. We will be reviewing these in more detail in a later blog.
So, you have applied all the above factors and you think your material is not waste, but some factors are borderline and you are not sure. What do you do next? The EA offers a definition of waste service where they will apply the above factors, the reuse and by-products tests and confirm whether your material is in their opinion waste. If you disagree you can challenge their determination. As with the vast majority of the EA’s function nowadays there is a fee involved in the service.
Alternatively, you can get an environmental consultant to review your self-assessment of the material and carry on your activities. This carries a risk that the EA will decide it is waste and investigate you for not handling the material as waste, which carries criminal sanctions.
Some common examples of waste:
- Broken appliances
- Burnt wood/ashes
- Food which is not or no longer fit for human or animal consumption
- Soil moved from one site to another
- Plastic packaging
If you have any queries about the definition of waste or you would like to suggest a blog topic, please contact a member of our Regulatory Team.