The Definition of Waste – has any red tape actually been cut?

DEFRA recently published a report reviewing the waste and recycling sector in the UK. As the guidance on waste disposal is not just limited to those operating in the waste management industry, it is important that the implications and implementation of the guidance is not overlooked. In this article, we look at the reviewed guidance and consider whether any red tape has actually been cut.

In March 2016, DEFRA published a report reviewing the waste and recycling sector in the UK, in addition to a review of the energy sector.

Having previously identified a number areas of concern over what was perceived to be a hindrance to economic growth, the Red Tape Review of the waste industry identified a number of on-going and persistent issues experienced by business on a day to day basis. Most notably, the issues focused on the burdensome and often unnecessary costs associated with operating within the waste sector.

With over 5,000 businesses fall within the waste sector in the UK, accumulating over £18.5bn in turnover, the issues raised within the review are of key concern; none more so that the key definition of 'waste' that lies at the heart of many of these issues.

Reviewed Guidance

The very definition of 'waste' and 'hazardous waste' has for many years proved to be a difficult area, with the stringent implications of the European Waste Framework Directive ("the Directive") a key concern.

Most notably, the Directive has been interpreted to prevent the re-use of certain materials and, as a result, hinder re-use and innovation; the broad application of the Directive at times being interpreted so as to capture materials that are the by-products of manufacture or, at times, the product itself.

All of the above has resulted in a clear feeling amongst the industry that:

  • the way that waste is defined is at times neither proportional to risk or reflective of the nature of business activity; and
  • there are notable additional costs and lost benefits from alternative beneficial uses.

Subsequent to the publication of the report in March 2016, in May DEFRA therefore published reviewed guidance on the interpretation 'waste' in a commercial sense (updating, in part, the previously circulated DEFRA Guidance on the legal definition of waste). 

Definition of Waste

To put it simply,’ waste’ is such a wide term, meaning any substance or object that the holder, i.e. the company, discards, intends to discard or is required to discard under different legislation.

In reality, the guidance on waste disposal is not just limited to those operating in the waste management industry - it is broad enough to cover the actual producer of the waste and the persons in possession of the waste.

Importantly therefore, it can often be the case that the implications and implementation of the guidance may be overlooked by companies. It goes without saying that this could cause serious issues along the waste management chain with significant potential fines given the recently imposed Sentencing Guidelines in this area.

Although making no changes to the underlying legal definitions of waste, the Guidance seeks to more clearly set out for businesses:

  • Activities and operations where waste rules apply, including Recovery, Preparation for Reuse, Recycling and Disposal.
  • Those circumstances when waste ceases to be waste.
  • Times when waste rules don't apply:

-       When a material is reused and doesn’t become waste

-       When a material is a by-product and not waste

  • The applicable waste rules that may apply, including:

-       The waste duty of care where businesses import, produce, carry, keep, treat or dispose of waste

-       Environmental permitting rules where businesses handle, store or treat waste

-       Producer responsibility rules

-       Waste import and export rules

All change?

Whilst the Guidance is purported to simplify the approach to these areas, with the ultimate aim of facilitating business' compliance, it is unlikely that this will have a marked effect upon the industry owing not only to the fact that those underlying legal definitions remain unchanged but due the fact that the Guidance brings limited changes which will no doubt be interpreted with some hesitation by businesses.

Given the limited improvements from phase one of DEFRA's project (the revision of business focused guidance) even more importance will be placed upon phase two; the provision of legal and technical user needs which is expected to be completed by March 2017, following further engagement with stakeholders.

For the time being however, business' should continue to scrutinise their operations so as to consider whether any activities might constitute the recovery, preparation for reuse, recycling or disposal of industrial waste, with particular focus upon those substances involved.

Should you have concerns or questions as to whether your company is at risk of falling below the standards expected, please do not hesitate to contact a member of the Environmental Compliance team at DWF. 

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

David Egan

Partner - Joint Head of Environment

I am a Partner at DWF, providing clear, expert advice on matters relating to crisis management, environmental incidents and fatal accidents.