CIWM sees an urgent need to revisit the definition of waste; the resources and waste sector has moved on and developed more sophisticated management methods, which are constrained by the current EU definitions.
In particular, the collection of organic wastes is more complex now, with the ultimate aim of improving land and biodiversity, alongside the conversion of many wastes into secondary raw materials.
CIWM supports the concept of the Circular Economy but believes that the definition of waste can be a hindrance to achieving it. An example is the current rules blocking the reuse of materials that have been discarded.
The definition of end of waste, if properly applied can be a route away from waste control, but this is marred in confusion and provides no legal certainty to operators who wish to make investments in new and novel techniques to turn material back into resources.
CIWM calls for an urgent national review of the concept of end of waste in the UK so that secondary resources can be released, thereby creating new business opportunities, skills and the infrastructure required to service a fully functional UK circular economy. We need to move away from the concept of things as waste and towards the concept of materials that need to be captured and kept for economic use.
CIWM acknowledges the recent (July 2023) release of the Maximising Resources, Minimising Waste, the new Waste Prevention Programme for England. This “waste prevention programme sets out how we will achieve strategic principle 2 of the Resources and Waste Strategy – to prevent waste from occurring in the first place and manage it better when it does.”
CIWM believes the definition of waste must be addressed to make waste prevention possible and effectively control it when it does.
What is it?
How waste is defined has moved on from the terms sanitary and cleansing, as outlined in the Public Health Act 1848 and then gradually the term refuse became the more common terminology for items no longer wanted and needing to be removed for disposal until the introduction in 1975 of the European concept waste.
Definition of Waste is a regulatory construct to determine when an item, substance or material becomes waste. and is currently defined under Section 75 of the Environmental Protection Act (EPA) 1990, as amended by the insertion of Section 75A[1]. It essentially follows the 2008 EU Waste Framework Directive (WFD) definition as set out in Article 3(1) – ‘any substance or object which the holder discards or intends or is required to discard’, but this definition needs to be read in conjunction with Article 2 [of the directive] exclusions from the scope.
End of Waste (EoW) is a regulatory construct to determine when a material is no longer subject to waste controls and it is an essential link to ensure the continued use of resources and the circular economy. The criteria that determine when material reaches EoW are defined in Article 6 of the Waste Framework Directive, as amended in the UK by Section 75A of the EPA 1990.
There are currently no government plans to amend these definitions but the UK’s exit from the EU could allow future divergence.
The issues
There are numerous issues around the definition of waste and the status of end of waste. From waste crime to misclassification, as well as a reluctance to fully embrace circularity, due to getting it wrong.
Materials left over from manufacture, can and are used in other processes but with the stigma of a waste label. For those that produce these ‘waste’ materials, there seems an avoidable barrier to reuse – to not call it waste in the first place. This is easy to say but harder to regulate, ensuring that substances are not misclassified and mismanaged. There needs to be a defined line between doing the right thing, protecting the environment and waste crime.
The criteria set out in Article 6 of the Waste Framework Directive attempts to aid the decision, but it is not easy and causes numerous cases to go to court to argue the point or seek clarification.
Decisions made in the court may not be applicable for all and those paying for this route of determination are unlikely to share a favourable outcome, creating further unlevel playing fields.
Current Government policy is looking at prevention, circular economy and reuse. CIWM is supportive of these. So, how does the resources and waste sector show its support to move material into reuse and remanufacture whilst protecting the very environment it wishes to utilise? A better understanding of what needs to change in the sector, from a ‘get rid of this’ to ‘need to better utilise this’ is needed, alongside understanding what the material is, where it has come from and where it can be employed for maximum benefit.
There has been work on codes of practice that look at the point waste becomes a non-waste; this is especially true for soil. Definition of Waste – Code of Practice (DOW-COP) is one of the main guidance documents for the use of soils off-site[2] and achieving end-of-waste status. This has been updated but is still awaiting publication.
Work also continues on Waste Frameworks and Quality Protocols which are being reviewed for several waste streams; such as organics, aggregates, flat glass, etc.
The background
There has always been a requirement for controlling waste, from the early days of contamination in the open streets of many cities in the late 18th Century to the more cultured practices of collecting separate streams of materials as happens now.
In practice the circular economy is not new, it has been going on for centuries, with waste picked up from the streets (horse dung) in the 1750s to use as material for land improvement[3].
The earliest definition of waste was set out in Section 30(1) of the Control of Pollution Act 1974 and was couched in terms of scrap, effluent or unwanted surplus and required disposal as being broken, worn out or contaminated. This definition was originally transposed verbatim into Section 75 of the EPA 1990, before being replaced in 1995 by the then-EU definition of waste by the Environment Act 1995.
European Union Directive 1975/442 defined waste as “’waste’ means any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force.”
This definition was amended in 1991 to “‘waste’ shall mean any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard.” The EU Directive was codified and recast in 2006 but the definition remained unchanged. The 2006 version has since been replaced by the 2008 Directive and the reference to Annex I has now been removed “’waste’ means any substance or object which the holder discards or intends or is required to discard.”
Other changes over this period include Articles within the Directives for Exclusions from Scope, By-Products and End of Waste.
United Nations Statistics Division (UNSD) has also defined waste, in its 1997 Glossary of Environment Statistics, as “materials that are not prime products (that is, products produced for the market) for which the generator has no further use in terms of his/her purposes of production, transformation or consumption, and of which he/she wants to dispose of. Wastes may be generated during the extraction of raw materials, the consumption of final products, and other human activities. Residuals recycled or reused at the place of generation are excluded.”
Non-Waste Framework Directive exemptions were developed to assist with areas that were considered the least polluting to the environment or health. These exemptions are restricted to a few waste management activities and need to be under the control of the waste producer.
CIWM Position Statements represent the Institution’s views at a particular point in time. They remain under constant review, in the light of new experience and research.
Footnotes
[1] Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019
[2] Art 3(1) exclusions (b) and (c) as most soils are not waste if used on-site.
[3] Centenary History of Waste and Waste Managers in London and South East England
