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Whether a material is classified as a waste has a significant impact on business operations: it dictates whether the burdensome regulatory regime for waste applies to the material and creates criminal liability for non-compliance.
Given the consequences, you might hope that there is a clear test for whether a material is a waste or not. Unfortunately, that is far from the case. The definition of waste has been one of the most vexed issues in environmental law over the past 30 years.
How far should the regulator go to help businesses resolve this knotty question? In a leading Court of Appeal judgment a decade ago, Lord Justice Carnwath (as he then was) suggested that the Environment Agency might play a role in assisting the regulated community to understand the definition of waste.
The Environment Agency responded with two options. The first is a 'self-declaration' using the Agency's IsItWaste? online tool. It is a basic, and rather limited, tool, only really suited for simple examples. In a world where there is significant innovation to achieve a circular economy, it is of limited application.
The second has been to host an on-again, off-again service for obtaining an opinion. The opinion is not legally binding but it does mitigate against the risk of enforcement action within England, and businesses wishing to establish cross-border trade in the materials could use it as a starting point for further discussions with other European regulators.
The service was closed in 2016, but came on-line again, re-branded as the Definition of Waste Service (DoW Service) and with authority to charge for its services. We had a number of interactions with the DoW Service during its latest incarnation.
It is a real disappointment, therefore, that this week the DoW Service shut it doors to new applications until at least January 2021.
In the absence of the DoW Service, businesses will now need to take their own advice without the comfort of an Environment Agency sign-off procedure. The best risk-mitigation measure will be a robust independent legal opinion that can be used in the event of challenge by regulators, in the UK or elsewhere.
The Definition of Waste (DoW) Service is temporarily suspended until at least 1 January 2021. This means you cannot submit a request to the Environment Agency for an opinion on the waste status of your material.
