END OF WASTE
Summary of this section
This Summary seeks to identify how end-of-waste status is to be determined in all four jurisdictions making up the United Kingdom, the regulators having all but walked away from this useful aspect of their functions. Post ‘Brexit’, this is an area of UK waste law where additional commercial benefits should be achievable. However, operators will have to be bold and prepared to make the assumption that regulators will support business initiatives.
The use of waste materials as new, recovered, products (or secondary raw material) offers significant opportunities to business, as well as being compliant with the environmental demands of the Circular Economy.
However, an error of judgment by a business as to what constitutes end-of-waste, may attract the attention of the regulator in exercising its enforcement powers (typically, in England, the Environment Agency). It may also attract the attention of competitors if they consider that an unfair advantage has been won.
Material which no longer constitutes waste (i.e. which has achieved end-of-waste status by way of some recovery process) is not subject to the extensive regulatory regimes which cover waste. These include environmental permitting, waste management, shipment rules and the duty of care. There are likely to be very significant cost savings as a result.
Material which can be dealt with a raw material or new product because it has achieved end-of-waste status will of course be subject to other applicable regulatory schemes, such as REACH chemical regulations and the Packaging Requirements.
A combined scientific / legal assessment designed to reassure a business that a product has end-of-waste status cannot provide a guarantee of non-intervention by the regulator, but it will help. A regulator’s main aim is to help a business come into compliance, not to prosecute: a considered approach by a business as to the question whether or not end-of-waste has been achieved, will count, should a regulator show an interest in a business’ production process.
Unfortunately, both the UK and the Irish regulators dedicate very little by way of resources into what may constitute end-of-waste.
What constitutes end-of-waste derives from the EU Waste Framework Directive, so that is the place to start.
For the purposes of the Waste Framework Directive (WFD), waste ceases to be waste when it has undergone a recovery (including recycling) operation and complies with specific criteria to be developed in line with certain legal conditions, in particular:
• the substance or object is commonly used for specific purposes;
• there is an existing market or demand for the substance or object;
• the use is lawful (substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products);
• the use will not lead to overall adverse environmental or human health impacts.
The WFD contemplated the use of the comitology process to establish end-of-waste criteria. By the end of 2020 only three such criterial have been established, in the case of
• iron, steel and aluminium scrap
• glass cullet
• copper scrap
See the EU Commission’s brief discussion of WFD and end-of-waste criteria. The EU’s position is complicated by reason of the EU’s starting-point definition of “waste” as set out in Art.3(1), WFD. Waste is “…any substance or object which the holder discards or intends or is required to discard…”.
Since the primary definition relies on the original holder’s behaviour or state of mind in relation to the substance in question, it becomes very difficult to establish a coherent assessment as to when that person’s waste becomes another person’s raw material or final product.
For instance, in the case of waste which has been acquired and then prepared for use as a fuel to be burnt in a kiln, why should it continue to be characterised as waste just because the previous holder had no use for it and discarded it?
Many discrepancies exist in the case of law of the EU, Member States’ and UK courts.
The English response to end-of-waste has been particularly disappointing. A statement by the Court of Appeal in London in OSS gave a positive nod in favour of a definition of end-of-waste, suggesting that:
“it should be enough that the holder has converted the waste material into a distinct, marketable product, which can be used in exactly the same way as an ordinary fuel and with no worse environmental effects”.
In a joint guidance document dated August 2012 , however, the relevant government and enforcement agencies of England, Wales and Northern Ireland stated (G3.141) that:
“The competent authorities do not consider that they have the necessary authority from the Courts to apply the three-part test set in the OSS judgment as a general end-of-waste test”.
(This guidance document is still current.)
Following OSS, the Environment Agency established an “end-of-waste” panel which made pronouncements about detailed submissions from manufacturers (there were about 50-60 a year). The advantage of a panel determination was the protection which that determination gave from the risk of regulatory enforcement of the product as waste.
The end-of-waste panel was closed in December 2016 and replaced by a self-assessment programme which is still to be found as the IsItWaste tool.
A positive answer from the Agency from an IsItWaste submission also established a (rebuttable) presumption that the substance in question had achieved end-of-waste status.
The end-of-waste panel is now entirely closed to submissions, even via the IsItWaste website. Gov.uk has announced that:
“The Definition of Waste panel closed on 20 December 2016 until further notice”, the closure being attributed to lack of funds and a large backlog of assessments. Separately, Gov.uk carried the announcement that “The Definition of Waste (DoW) Service is temporarily suspended until at least 1 January 2021. This means you cannot submit a request to the Environment Agency for an opinion on the waste status of your material.”
Between 2004 and 2015, WRAP, in conjunction with the government and enforcement bodies of England, Wales and Northern Ireland, established the Quality Protocols Project, which provided guidance on the “recovery of waste in order to remove it from the regulatory regime and unnecessary regulations”.
These protocols included:
• Non-packaging plastics
• Recycled gypsum from waste plasterboard
• Biodiesel: quality protocol
• Aggregate from waste steel slag
• tyre-derived rubber materials
• Anaerobic digestate
• Processed fuel oil (PFO)
• Biomethane from waste
• Aggregates from inert waste
• Poultry litter ash (PLA)
• pulverised fuel ash (PFA) and furnace bottom ash (FBA)
Materials processed in accordance with these protocols carried a presumption that they had been recovered in such a manner as to meet end-of-waste criteria.
In August 2019 the Environment Agency announced that it intended to review the quality protocols, but little has been heard on the topic, and it cannot be assumed by operators that new projects will receive the limited protection previously gained from following a protocol.
The IsItWaste tool, whilst closed as the basis for the approval of end-of-waste submissions, does contain reference to procedures and practices which the Environment Agency will expect end-of-waste processes to have followed. A competent consultant should be aware of the same, and indeed of any updated processes.
The net result from Gov.uk and the Environment Agency is that there is no protocol or process which can be relied on prospectively to demonstrate end-of-waste. Gov.uk maintains guidance Turn your waste into a new non-waste product or material. This guidance expressly requires an operator first to refer to the EU Commission material. After that, the operator is entirely on its own, save for some outdated references including material comparators.
The position in Wales is arguably worse than in England.
The Natural Resources Wales website includes “guidance” Meeting the end-of-waste test. It makes reference to an old Gov.uk webpage last updated on 5 May 2016 Decide if a material is waste or not: general guide, (the Quality Protocol process and IsItWaste self-assessment tool (no longer eliciting responses).
The Department of Agriculture, Environment and Rural Affairs maintains a web entry which provides End-of-waste submission guidance published on 6 December 2016:
“The NIEA wants to work with businesses to identify when waste-derived products achieve “end-of-waste” status and are therefore no longer subject to waste regulatory control. The NIEA’s view of whether end-of-waste status has been achieved is based on the evidence provided by the applicant. The End-of-waste Panel considers all end-of-waste submissions on a case by case basis, in line with current waste law principles. The panel will consider whether in its view, a waste derived product has achieved end-of-waste status within the meaning of the Waste Framework Directive (2008/98/EC) and relevant European, and UK case law on the definition of waste; in particular, the Court of Appeal OSS end-of-waste test”.
It follows that, as of the time of writing, an end-of-waste panel still meets in Northern Ireland. It appears to be less coy that the Environment Agency was in approving the OSS test as a means of determining end-of-waste status. As it goes on to say, however,: “robust evidence is needed to satisfy each of the three limbs of the OSS test”.
The Scottish Environment Protection Agency provides a:
Specific end-of-waste guidance is provided in relation to fully recovered asphalt roads (milled planings), composting, processed fuel oil, inert waste and gypsum from waste plasterboard.
There is no general guidance, no end-of-waste panel and no certainty that the recovered material will be considered to be end-of-waste.
For instance, the guidance as to gypsum from waste plasterboard contains the following: “… SEPA reserves its discretion to depart from the position outlined in this statement and to take appropriate action to avoid any risk of pollution or harm to human health or the environment”.
The Waste Framework Directive itself was intended to start a process for agreeing what recovery operations would define end-of-waste status. That process produced very few relevant protocols.
A prominent end-of-waste case decided in London in 2010 led to some significant progress in the UK, but that process has stalled.
Businesses which are willing to take calculated risks as to what may constitute end-of-waste may be able to make gains out of ‘Brexit’. This will require some alignment with what happens in the EU, but it also depends on Environment Agency staff approaching what is still ultimately a legal test, with an eye for business needs.