But is it waste?

Libby Cooper (Clarkslegal LLP), Sue Davidson (SJ Berwin LLP) and Hilary Stone (Brunel University) ponder on the true definition of waste

Asense of urgency is pervading local authorities up and down the land as they plan their waste strategies for the next 20 years. At considerable cost, expensive technology with limited proven capability is being procured or planned, to handle an ever-increasing waste problem.

Householders gleefully fill two or three separate bins, gather bags of leaves and newspapers, and campaign against energy from waste on the basis that recycling is ‘good’ and incineration is ‘bad’. They save bottles, scraps, and junk mail for collection once a week. In the face of such commitment it seems churlish to suggest there might be anything other than benefit from these activities.

However, it may be time to think again about what actually constitutes ‘waste’, as the waste industry and its enforcers wage a continual battle with definition issues. The European Court of Justice (ECJ) and our own courts have been asked to opine on the meaning of waste.

Far from being an esoteric topic, definition is at the heart of much of what is wrong with our present system. A brief look at some recent ECJ decisions demonstrates the problem:

    Left-over stone, identical in nature (and therefore in
    risk) to stone sold, was determined to be waste. (C-9/00 Palin Granit and Vehmassalon kansanterveystyön kuntayhtymän hallitus);
      Soil and water polluted by leaking fuel from a petrol station was designated as waste (C-1/03 Van de Walle e.a);
        Substances which have been through a recovery operation were determined to be waste (C-116/01 SITA EcoService Nederland (formerly Verol Recycling Limburg).
        Recurrent themes are that:
          It is irrelevant that the substance can be recovered in an environmentally sensitive manner; and
            The fact that a residual product does not pose any real risk to human health or the environment is not a relevant criterion for determining whether it is a waste.

          As the ECJ consistently insists that each case turns on its own particular facts, there is no certainty for business or for regulators. This uncertainty affects what happens in amongst the bins and skips, as is evident from these examples.
          Is compost waste?

          Mechanical Biological Treatment (MBT) plants have become popular with local authorities in their headlong rush to avoid landfill diversion target penalties. The use of this type of process will generate a range of outputs, for example, compost.

          However, the Environment Agency advises that because the soil conditioner produced does not (on the face of it) come up to the standards of a theoretical original product and may be contaminated, it remains waste. Therefore, the local authority may fail to meet its targets, having paid an additional £50-£70 per tonne for processing the waste.

          Moreover it is notoriously difficult to find uses for compost, partly because the product is deemed, by law, to be waste until it is used and partly because we can use only so much compost. As a result, compost that is sold, for example to a landscape gardener, is waste.

          Thus various questions arise:

            When compost is transported, does the gardener need to be registered as a waste carrier?
              If it’s stored for later use, is a waste management licence needed?
                Does a garden centre need a waste management licence if it takes a large delivery of compost to sell to the public?
                  And, more worryingly, why bother? There are no such problems with peat – irrespective of the environmental damage involved in its production.

                Substitute fuel

                Sometimes the Mechanical-Biological-Treatment (MBT) process may produce a substitute fuel, which simply needs to be mixed with primary fuel before being used in a range
                of processes. However, the substitute fuel is nevertheless
                still waste. Therefore, though there may be a range of potential customers for this fuel – from the cement industry to the electricity generation industry – such customers must comply with the Waste Incineration Directive (WID) in order to use it.

                This adds considerably to costs and is therefore a disincentive to its use. If there is no outlet for the substitute fuel, the waste management company is potentially in breach of its contract with the local authority, the local authority does not meet its landfill diversion targets, and the treated ‘waste’ ends up being landfilled – a very expensive landfill pre-treatment.

                Licensing problems

                Where a facility treats waste, it must comply with waste management legislation, for example the Waste Management Licensing Regulations 1994 and the Pollution Prevention and Control (England and Wales) Regulations 2000. Therefore, the relevant permit and planning consent is needed, which brings with it the issue of public objection – a major impediment for the waste industry.

                If the public perceives that a waste is to be processed, there is an automatic presumption that it is bad and unacceptable. Most potential operators have neither the budget nor the appetite for an extended battle with the public. It is self-defeating in so far as it often results in the business’ vilification – despite the public’s professed belief
                in recycling.

                Wood and material recycling

                One of the easiest wastes to recycle is wood. Campaigns to save trees are (mercifully) pandemic. Wood has been a fuel ever since man and fire met. But if the wood is separated from other waste and used as fuel, it is probably still waste. Again, the process must comply with all the relevant waste legislation. Accordingly, landfill is the preferred solution – chopping down more trees is the result.

                Household waste recycling centres, where the public bring their bulky waste, are repositories for a wealth of recyclable and recoverable goods. However, wherever they are taken to be reprocessed, reused or turned into something else, a waste management licence is needed. If from that process components are produced which must undergo a further process before a final product is generated, the components remain waste.

                It follows that this waste must be transported as waste and received by the end user as waste. As the ECJ decisions intimate that it remains waste until finally incorporated into a new product, arguably the final processor must be licensed to store the waste. Buying new is easier – forget the depletion in resources, forget the purpose of the legislation.

                The original definition of waste in Article 1 of Directive 442/75 was general in its terms. This resulted in different definitions of waste being adopted in each EU member state and, more significantly, different approaches to ‘wastes’ passing to recovery and reuse.

                An ECJ Joined case, Vessosso and Zennetti (206/88 and 207/88), found in 1990 that the notion of waste under the Directive was not to be understood to exclude materials or objects capable of or intended for economic recycling. In the UK at the time, the definition of waste was contained in the Control of Pollution Act 1974, which excluded materials solely because they had positive economic value.
                The ECJ decision came at a time when the European Union was revising the 1975 Directive to ensure that recycling facilities fell within disposal controls, and indeed the 1991 amendments to the 1975 Directive resulted in
                the lists of wastes and treatments with which we are all
                now familiar.

                The problem with lists, however, is that the longer they are maintained the more complex they become and the greater the unintended consequences.

                As a consequence, something which began as a drive to protect human health and the environment from damage caused by the collection, transport, treatment, storage and disposal of waste has become a serious disincentive to recycling and recovery and therefore a bar to meeting the waste reduction targets which are currently in force.

                A possible solution?

                There is a simple solution to these apparently intractable problems. Present case law indicates that whatever arguments are put before the courts, where there is some element of waste in the history of the product it will be regarded as waste until use. This reasoning is regularly followed by the Agency. So let us consider a change in the definition of waste.

                Let us return to the common sense proposition that waste is something to be finally disposed of, because it has no further use. Let us regard all the products that still have a use as products. Let us leave behind what has been seen as the purpose of the waste directive.

                Let us return to the basic tenets of providing a high level of protection for human health and the environment and let common sense determine that it is unnecessary to provide a more onerous system of controls to ‘waste’ than apply to raw materials or new products. If we do not do so, we shall fail to generate the new industries and the new markets for the recycled or recovered products, the whole purpose of which is surely to help protect and conserve our environment.

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