Classification of a material as a waste can be a critical determination for business operations in providing a key trigger for the potentially onerous obligations of the waste regulatory regime (including criminal sanctions in event of non-compliance).

This issue is complicated by the lack of a comprehensive and clear test.  

Historically, the Environment Agency has offered a service by which, for a fee, it provides an opinion as to the waste status of given material.  

This service has only been available intermittently in recent years and, as we have previously reported, it has been suspended for the past 12 months.  However, last week, the EA announced that the service is now reopened.  Businesses can seek an interim review for a fee of £900, with further technical review provided at an hourly rate of £150.  The Agency estimates that total costs of a technical review will range from £1,500 to £15,000 depending on the complexity of the issues involved.

This will be welcome news for business, but is far from an ideal solution.  Despite the costs involved, the EA's opinion is not determinative or legally binding.  Furthermore, the lack of a clear test makes the form and content of the application to use this service all the more important.  In that regard legal advice on the relevant elements of the definition of waste will continue to be valuable.