Most businesses have to make decisions on a day to day basis as to whether something is or is not waste. Some of these decisions are difficult to make and getting it wrong can result in onerous fines and in serious cases imprisonment.  Not only does a business have to determine whether an object or substance is or has become waste, but also and often this is more difficult to determine, when has waste ceased to be waste.  It is the responsibility of businesses to ensure than in implementing these decisions they are complying with regulation.  The difficulty in making decisions in some cases has been recognised to such an extent that guidance is to be published by Defra (The Department of Environment Food and Rural Affairs) on the legal definition of waste.  The aim is to help businesses by providing some guidelines and criteria to assist in the decision making process.

Regulation exists to prevent the harmful effects caused to the environment by the collection transport treatment storage and tipping of waste.  The composition of waste is often uncertain and there is the potential to pollute.  On the other thand, there is a move now more to encourage the use of waste as a resource rather than simply looking at waste in a completely negative light.

Waste is defined under Article 1 (1)(a) of the Waste Framework Directive and has been further interpreted by a substantial body of EU case law.  Any substance is capable of being waste.  A substance or object is waste if it is discarded within the particular meaning of the Waste Framework Directive but every case must be assessed on its merits.

If a substance or object is a product namely something manufactured or produced with the intention of using or marketing it then it would not be waste.  If the same substance or object is being used again for teh same purpose for which it was conceived then again it is not a waste.  For instance is the object being passed on as second hand goods for its original use without needing any treatment or processing then that would generally not be waste.

Difficulties arise where the substance or object is a by product of a production process.  Production residues are likely to be waste but if it is possible to classify these as a by product which can be used and certainly will be used without any special precautions to ensure the protection of the environment and human health then it is not waste. There are some substances that do need to be disposed of as required by legislation such as mercury or some animal by products.

If a substance or object has been transferred to a disposal or recovery operation then it has clearly been discarded and that will indicate that it is waste.  Again substances or objects of low economic value which can be a burden upon the holder or producer to dispose of on the face of it are waste.

The second and probably the most difficult area is where a substance or object has become waste but then can be seen as ceasing to be waste. If the object or substance has been discarded then something would need to be done to it for it to cease to be waste.  The process does not necessarily need to be extensive it can be minor.  Pre treating may not be enough as the object or substance would need to be fully recovered or recycled, all unwanted substances and any contamination needs to be removed.  Even so if there is no genuine market for the recovered or recycled material and its future use is uncertain then it is likely to remain waste.

Storage of a product therefore for an indefinite length of time to await possible use such as stock piling would render the substance or object likely to be classified as waste.

Whilst there is a substantial body of case law particularly EU case law regarding the definition of waste, there are two recent interesting national cases. In 2009 in the case of EA -v- Inglenorth Limited on appeal from the Magistrates Court, it was found that a company was not guilty of waste disposal offences under the Environmental Protection Act 1990 Section 75 as the material (excavation and demolition material) that it has moved from one site to another for a customer was ot controlled waste because at the time it was delivered the customer intended to use it immediately for another purpose.  In R v W and others in 2010, again going to appeal, waste arising from works of construction or demolition (soil) was found not to be waste. The recipient intended to reuse the waste material and whilst this did not alter its status as waste in itself as such actual reuse could.  The Court reiterated that waste would continue to be waste until accetable recovery or disposal had been achieved and all depends on the facts of an individual case.

It is clearly therefore important for those responsible within a business for the cotrol of waste to obtain and read a copy of the Defras Guidance and in a more complex case would be well advised to take legal advice.