The Environment Agency (EA) recently announced a change in the
point at which waste materials are classed by them as
'recovered' and are therefore recognized by the EA as being
outside of waste controls.
Previously, waste management controls were sometimes applied by the
EA until the product had been dispatched to the customer
– the "certainly of use" test. However,
following an EA briefing note released in April, which had
immediate effect, the EA will now apparently always consider
processed material as product as soon as all of the other criteria
in the relevant Quality Protocol have been met.
This means that there will be no distinction in the EA's
position between processed material which meets a relevant Quality
Protocol and is being stored and that which has been sold or
supplied. The recovered product must be stored in a way that
conforms with other planning and environmental requirements and, if
the material is stored for a very long time with little prospect of
its being used, it may be regarded as having been discarded and
become waste again.
The Waste Protocols Project, a joint EA and WRAP initiative, has,
since 2006, been working to provide certainty on when a waste
product is classed as recovered and can be reused as a product,
avoiding unnecessary landfill or the need for a permit to use it.
It has, so far, issued Quality Protocols defining this point for
compost, flat glass and non packaging plastic. Prior to that
project there was and is a WRAP Quality Protocol for aggregates
which the EA generally recognises. Nine further Protocols are in
development for other product types including, tyre-derived rubber,
anaerobic digestate, processed fuel oil and, most importantly,
soils.
The Quality Protocol for soils is eagerly awaited by the industry.
DMH Stallard is advising clients in a number of cases where the
client's position that their processed soils have become a
product is being challenged or investigated by the EA. In a further
case we are acting for a client company that is being prosecuted by
the EA for allegedly keeping waste without a permit and the
company's defence is that the material being processed soils
was no longer waste and had become a product. That defence is
supported by two leading experts. Preliminary issues of law are due
to be heard in the Crown Court later this year.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
