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Defra launches consultation on draft guidance on the legal definition of waste

The Department for Environment, Food and Rural Affairs has launched a consultation on the definition of waste and its application.

The aim of the draft guidance is to help businesses and other organisations to take day-to-day decisions about whether substances or objects they are dealing with are likely or unlikely to be waste. The consultation ends on 12 April.

It states that in most cases businesses can take a straightforward decision in deciding what constitutes waste and what is not. However, the guidance states that in some cases the decision is more difficult. For example, where the substance or object has a value or a potential use or where the decision is about whether waste has been fully recovered or recycled and has therefore ceased to be waste.

The guidance poses a series of questions and answers to help businesses distinguish whether a substance or object has become waste. It explains: Any substance or object is capable of being waste. However, if it falls within one of the categories specifically listed in Annex I [Waste Framework Directive], this listing will indicate that it is likely to be waste.  This includes residues from raw materials extraction and processing, products whose date for appropriate use has expired, and materials contaminated or soiled as a result of planned actions.

The guidance states that if a substance or object is sent on for disposal or recovery, that will indicate that it is waste. It adds: It is sometimes difficult to tell what is a recovery operation and what is just the normal use of a product. For example, use of a fuel could be either, depending on circumstances. However, if a particular operation is generally accepted as being a common way of recovering waste that may indicate that it is a recovery operation.

The legal definition of waste is a contested one and the Government transposed a European Union-wide definition of waste in 1994. Since then a number of cases have been referred to the European Court of Justice for rulings and there is now a substantial body of case law on the definitions interpretation.

Defra stresses that the draft guidance does not change the legal definition of waste and it does not take precedence over ECJ and national case law on the definitions interpretation it only provides guidance on that case law. For these reasons, the consultation paper does not invite views on the definition of waste itself.

Defra is also reviewing the definitions of municipal waste and whether it can include much more commercial waste within the municipal waste category for which EU Landfill Directive targets are set. It stated that this reflected the increased focus it wanted to place on commercial waste.

Waste electrical and electronic equipment producer compliance scheme Repic chief executive Philip Morton said: The critical point of definition where waste ceases to become waste and becomes a product is very difficult to determine but if the legal definition gets it wrong it could render large parts of the recycling/recovery industry unworkable.

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