Last reviewed 13 August 2021

Deciding whether or not something is waste is not always easy, especially when the “goalposts” of official guidance are liable to move. However, if businesses get it wrong, they can find themselves in court, charged with waste offences. This article looks at some recent events linked to waste classification and outlines the principles behind the definition of waste.

Plastic exports to Turkey

The Environment Agency (EA) is currently carrying out an investigation into the export of plastic granules to Turkey. They are inclined to believe that this plastic is really waste, which has merely been mechanically shredded to look like a product. The exporters argue that the plastic “flake” is not waste, but a raw material for use in manufacturing.

The resolution of this dispute will depend on the way in which the regulators, and possibly the courts, interpret the definition of waste.

This situation has arisen since Turkey banned the import of various kinds of plastic waste at the beginning of 2021. Before this date, large quantities of waste plastic were exported to Turkey, ostensibly for recycling and recovery. Unfortunately, not all of it was recovered, and Greenpeace found waste from the UK dumped beside roads and on beaches. Incidents like this led Turkey to ban further imports. This caused a problem in the UK as we do not have sufficient infrastructure to recycle all the plastic waste that is collected from households, so councils are reliant on exports to make sure that recycling targets are met. After China banned imports of waste plastic at the end of 2017, Turkey became the primary destinations for our plastic waste, taking 39%. With Turkey banning imports, where could it go?

Some waste businesses came up with the solution of treating waste. Waste can legally cease to be waste when it is reprocessed into a new, useful material. For example, impurities can be removed from waste oil, to create a fuel which is no more polluting than ordinary fuel oil. However, there are tests and standards which must be complied with before waste can achieve an “end-of-waste” status and begin a new life as a product.

The EA’s interpretation of the Turkish import restrictions is that the following plastics are prohibited.

  • Plastic mixtures (single polymer types, like PVC, may be allowed subject to obtaining prior informed consent).

  • PET, PP and PE mixtures.

  • Plastic wastes containing any polymers produced as a result of mechanical treatment of wastes and therefore classified as EWC 19 12 04 [see European Waste Catalogue topic].

Waste wood: hazardous or not hazardous?

A recent change to EA guidance demonstrates that the status of a waste material is not necessarily set in stone. The EA had decided that any waste wood from buildings more than 14 years old which had not been classified must be regarded as hazardous waste. This is more costly to treat and/or dispose of than non-hazardous waste and is not suitable for recycling. Now, in a move that has been welcomed by the industry, the Agency has issued new guidance (RPS 249) which allows potentially hazardous waste wood received at household waste recycling centres to be considered as non-hazardous if it is sent for Industrial Emissions Directive Chapter IV-compliant biomass or the manufacture of panelboard.

Basic principles behind the definition of waste

The UK law on the definition of waste originally derived from the EU Waste Framework Directive, as amended in 2018. Anything that has been discarded is waste, regardless of its potential usefulness. So, when plastic arrives from a kerbside collection at a Materials Recycling Facility, it is definitely waste. Similarly, timber removed from a demolition site is waste.

Once at a waste facility, the material will undergo some kind of treatment. It will achieve “end-of-waste” status if it meets:

  1. the substance or object is to be used for specific purposes

  2. a market or demand exists for such a substance or object

  3. the substance or object fulfils the technical requirements for the specific purposes, and meets the existing legislation and standards applicable to products

  4. the use of the substance or object will not lead to overall adverse environmental or human health impacts.

This set of conditions is known as the “harmonised end of waste test”.

The last condition, relating to adverse impacts on the environment or human health, is further qualified by the “comparator approach”, which takes into account the fact that some virgin materials, such as fuel oils, can be polluting or harmful to health. With this approach the waste-derived material is compared with the non-waste material that it is intended to replace. It must be possible to usethe waste-derived material in exactly the same way as the non-waste material with no greater environmental or human health impact.

Furthermore, users and sellers of materials that have ceased to be waste, must make sure that the materials meet relevant requirements under chemical and product legislation.

UK government guidance

The most up-to-date guidance from Defra was published in 2018. assets.publishing.service.gov.uk. The guidance document provides a useful flowchart to help businesses decide whether a material has ceased to be waste.

Some of the questions on the flowchart are relevant to the example of shredded plastic going to Turkey; in particular:

  • has the waste only been pre-treated and not fully converted into a usable product?

  • has all contamination been removed?

  • is it certain to be used?

Quality protocols

Recognising that it is not always easy to give a definitive answer as to whether a material passes the “end-of-waste” test, the EA has drawn up a set of quality protocols for specific materials. If a waste-derived material meets the standards set out in the quality protocol, it is not waste. The quality protocols currently available relate to:

  • non-packaging plastics

  • gypsum from plasterboard

  • biodiesel

  • aggregate from waste steel slag

  • flat glass

  • rubber from tyres

  • anaerobic digestate

  • biomethane

  • aggregates from inert waste

  • poultry litter ash

  • compost

  • pulverised fuel ash and furnace bottom ash.

Under review

The Agency is in the process of reviewing the quality protocols to make sure they meet current technical standards and best practice. They believe that a review is needed because of issues including poor practice, contamination of product materials and abuses of the protocol.

For each protocol they will choose one of three options.

  • Keep it with a few minor amendments.

  • Review and revise it with the help of industry.

  • Scrap it and draw up new guidance.

The new documents will be known as Resources Frameworks. This process has led to unhappiness among aggregates recyclers, who have been asked to set up and fund a group to review the aggregates protocol by 1 December 2021. Recycled aggregates contribute approximately 28% of the total UK’s aggregate supply and there is a fear that if the protocol is withdrawn, this recycling may not be able to continue.

Delay to Definition of Waste service

With the quality protocols in a state of flux, businesses are looking to Defra for help as they seek to apply the end-of-waste criteria to specific waste-derived materials. In the past, Defra has offered a Definition of Waste service but this was suspended in September 2020. The date for reinstating it has been postponed twice, and is currently set at 1 September 2021. This leaves businesses fully responsible for either assessing their own waste-derived materials or taking the safer option of leaving them in the waste stream.