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Feature: The definition of waste

Is it waste? A by-product? A residue? A simple enough question, you might think. But the answer is very far from simple. Whether or not something must legally be described as waste has been an issue of contention for some years. The point at which a material ceases to be considered waste is equally contentious. Both have kept teams of lawyers and regulators busy for years - and there's no immediate end in sight.

Delegates at a recent CIWM conference heard that in a legal case earlier this year the defendant claimed that the definition of waste was so confusing, he was unable to tell if he would be committing an offence, and it therefore breached his human rights under Article 7 of the Treaty. There has not yet been a ruling on this.

And it is not just the public who are confused. Trying to get an unambiguous answer to a question about waste definitions from the Department for Environment, Food and Rural Affairs or the Environment Agency (EA) typically gets a heavily qualified response. For instance, the Environment Agency has just issued new guidance for local authorities on dealing with MBT outputs, something that was urgently needed. However it warns that this guidance only represents the current view and that may change with new case law. How are local authorities supposed to make 30 year plans for managing waste on that uncertain basis?

Clare McCallan, the EA's policy manager for waste regulation, stresses that it is not the Agency which determines whether or not something is waste - but it will give a view although "all decisions must stand up to scrutiny in court". She warns: "We can never be categoric about what is or is not waste".

There is no single legal definition of waste. According to the EC 1991 Waste Directive (amended from 1975 Waste Framework Directive), whether a material is waste hinges upon whether the producer or holder has discarded it, or intends to discard it, or may be required to discard it. Lawyer Sam Boileau from Denton Wilde Sapte says criminal courts have grappled with the issue of "intention" for years. And "discard" in EC-speak does not simply mean to dispose of the waste, it can also cover sending it to a recovery operation for recycling, composting or energy recovery, for example. A "producer" is not necessarily the person whose activities produce the waste - it could be anyone who carries out reprocessing, mixing or other operations which result in a change of the waste's nature or composition.

DoE Circular 11/94, issued to inform the Waste Management Licensing Regulations in 1994, aimed to help clarify matters. That guidance has just been re-issued to reflect the current situation.

Defining a material as waste may deter potential users who are choosing between virgin raw materials and secondary or waste materials - there are major implications associated with handling waste with its licensing and other requirements (Duty of Care, carrier registration etc). For manufacturers of consumer goods, the stigma associated with waste materials could affect product image and damage sales.

For waste managers, knowing whether or not something is waste is vital if they are to comply with the terms of their licences and also avoid financial penalties. This means that inconsistent interpretation of definitions, and the long delays before cases brought to the European Court are ruled upon, can make their life very difficult.

Businesses considering donating outdated IT equipment and charities shipping unwanted mobile phones to eastern Europe must all beware being caught up in waste expo

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