Circular’s Ian Farrell asks: when is waste not waste? When it’s been turned into a valuable commodity that can be used again – but at what point would the regulators agree? Welcome to “end of waste”.
There are very good reasons why waste material is regulated. If it’s disposed of in the wrong way, waste can be harmful to the environment and to human health. Our sector has learned to live with regulation – even to embrace it thanks to the level playing field it creates for competition.
As circular practices – such as reuse, repair and recycling – become more common, however, waste legislation looks increasingly inflexible and outdated, leading some to say that it stifles innovation and causes more environmental harm than it prevents.
The problem lies in defining end of waste (EoW) – the point at which a waste material can be declassified as such, following its recycling and repurposing. Before we look more closely at this, it’s also worth considering the other end of the timeline: the beginning of waste.
“These two points – the beginning and the end of waste – are very closely linked,” says Dr Anna Willetts, CIWM president and waste-industry lawyer, who has represented many clients in discussions with regulators about whether a recycled material can be declassified. “Quite often, an argument or defence will come down to questioning whether a material should have been classified as waste in the first place,” she says.
An argument or defence will come down to questioning whether a material should have been classified as waste in the first place.
Willetts adds that a material must be defined as waste if it meets the definition set out in the Waste Framework Directive (WFD): “anything which the holder discards, or intends to or is required to discard.” This can include something sent for recovery or recycling, and applies to anything discarded accidentally.
There are some exceptions that need to be considered next: is the material the by-product of the production of something else, and is it an integral part of the production process? Is it certain to be used?
Can it be used further with no additional processing? Does it have a lawful use and meet the product, health and environmental regulations? If the answer to all of these is “yes”, the material may not have to be classified as waste in the first place.
Another escape clause is “can the material be used again for exactly the same purpose?” A recovered catalyst from a chemical reaction, for instance. Again, if the answer is “yes”, it’s not waste. If it’s not “yes”, it’s waste, and you’ll need the right permits to handle, transport and store it.
“I always ask whether there was the intention to discard the material, which the Waste Framework Directive and case law shows is a fundamental consideration,” Willetts says.
“In 2009, there was a case of a garden centre operator who demolished some greenhouses and other buildings, crushed up the rubble and took it to another of his sites to use as hardcore for a new car park. Very circular economy, that. But the regulator prosecuted him and the transport company he used, because they said the rubble was waste, and it had been transported and deposited without a waste licence.
“The High Court disagreed, and found in favour of the garden centre owner, who declared that he always intended to use the rubble on the other site and never intended to discard it.
I always ask whether there was the intention to discard the material.
“But there have been other cases since then where the holder of the waste is different from the party who wants to use it. One person might have demolished a building and a third party has approached them and said ‘can I have that as hardcore for a car park?’ In that case, this was likely intent for the rubble to become waste, and you can’t just take back that intent – so it may legally be waste, and the EA [Environment Agency] could successfully prosecute in those situations.”
Regulation such as this might have been intended to protect the environment from serious harm by unscrupulous characters burying any old rubbish – for example, hardcore – but Willetts says the broad-ranging application of these rules is stifling innovation and the circular economy.
“Sending one lot of perfectly usable ‘waste’ concrete rubble to a landfill and then having to buy, effectively, the same material as a virgin product – with all of the CO2 emissions that go with that landfilling – doesn’t sound very circular to me,” she says.
Once a material is classified as waste, there are four ways in which this categorisation can be lifted. The first is to follow one of the existing EoW regulations from the WFD, which are enshrined in UK law. This applies to a very limited, specific collection of materials – iron, steel and aluminium scrap, glass cullet and copper scrap.
Second, use one of the 13 quality protocols or resource frameworks that are defined in the WFD. These apply to a limited number of materials, and have specific inputs and uses. It should also be noted that these are all currently under review and can be withdrawn at any time.
The third option is self-assessment: no need to notify the regulator; simply use your common sense and ensure that the recycled material follows the guidelines set down by the regulator. Sounds simple enough, but this is by far the riskiest option, as neither the regulator nor the court is under any obligation to agree with your assessment. You could still be prosecuted for handling waste without a licence and fined accordingly. That’s quite a lot of pressure for a business to be operating under.
Finally, there is the option to go to the regulator to ask for an opinion, which offers a lot more certainty than simple self-assessment. The problem here is that services such as the EA’s definition of waste service, in England, are notoriously slow to make a decision. It also charges £125 per hour for the service, with no indication of how long a judgement will take.
They are trying to do the right thing and have some fantastic ideas for reuse and recycling.
When Willetts submitted a freedom-of-information request to the regulator in 2017, she learned that the majority of submissions received by the definition of waste service were rejected.
“My clients are frustrated,” she says. “They tell me: ‘The Agency’s refusing to give us end-of-waste status. We’re absolutely certain we’ve done everything to meet the legal and technical requirements.’ So they request legal opinions on their procedures to give them comfort and confidence that they have made the correct assessments instead of the uncertainty of waiting for a decision from the regulator.”
Willetts says it’s this kind of situation that piqued her interest in the subject of EoW and led to her writing her CIWM presidential report on the topic in 2022.
“It’s where all this frustration started from,” she says. “It’s a really interesting area of waste law, but it’s not sustainable for the waste industry to work like this. Especially those starting up with innovative ideas. They are worried all the time that they are going to get prosecuted for still dealing with waste when there is such a lack of certainty.
“They are trying to do the right thing and have some fantastic ideas for reuse and recycling. They sometimes feel, though, that the regulators assume the worst about organisations in the waste sector and challenge them to prove otherwise, whereas I think it should be the other way around – look at the great entrepreneurial ideas coming through and turn it on its head.”
Willetts has been meeting representatives of the English, Scottish, Welsh and Northern Irish regulators to discuss how end-of-waste legislation can be adapted and transformed to encourage innovation in the circular economy space. It’s a project she has been working on with Tina Benfield, CIWM’s technical manager, who has some sympathy for the position the regulators are in.
It’s like trying to open a gate without allowing a coach and horses to bolt through it.
“It’s like trying to open a gate without allowing a coach and horses to bolt through it,” she says. “You want to be able to get valuable, useful materials back into circulation, but, in doing so, you don’t want to create a situation where other people are taking advantage – and that’s really difficult. A lot of people out there have a material that they’d like to declassify.
“I’ve heard of all kinds of strange schemes, from requests to put waste toothpaste in a composter – the answer is ‘no’, by the way – to people wanting to ‘encapsulate’ something, ‘store it’ so it ‘won’t be waste’. Of course, that’s wrong too. They’d be basically pouring concrete over it and putting it in a hole in the ground. Where is the usefulness in that?
“Remember, if one person gets around the legislation, there will be a lot of people queuing behind them to do the same thing, so the regulators make it difficult for that reason and guard the gates very carefully.”
The gates to an economy
So, how should the regulators reform regulations that frustrate businesses and stifle innovation without making life easier for waste criminals or those looking to take advantage? A tightrope needs to be walked.
In her 2022 Presidential report, Willetts made eight recommendations, one of which involves relying more on existing non-waste environmental and market legislation to regulate recycled materials, rather than so heavily on end of waste.
“Many of the concerns that end-of-waste legislation tries to mitigate are already controlled by the markets and their regulatory regimes, so there is the potential there to relax end-of-waste rules and rely on those other rules instead,” says Willetts.
Many of the concerns that end-of-waste legislation tries to mitigate are already controlled by the markets and their regulatory regimes.
“There are many potential benefits to doing this, not just for the businesses producing the recycled material, but also for the regulators. The more we release them from the role of regulator, surely the more the regulator can focus its resources on illegal activities. And, by speeding up the end-of-waste process, there is the potential to divert more waste from landfill and back into the circular economy.”
Willetts also floats the idea of an end-of-waste practitioner group, made up of regulators, industry representatives and specialist advisers, who could take on the task of granting end-of-waste status to new recycled materials from innovative processes.
“From what I understand,” she says, “the main reason the EA’s definition-of-waste panel rejects applications for a quality protocol is that those applications aren’t very good. But rather than reject them outright, why not work with those applicants to get their processes and procedures better so they can reach end-of-waste status?
“CIWM has thousands of members, many of whom are experts in their field. Could we set up some kind of steering committee for these submissions, whereby someone comes in with their polymers, for example, and we get three polymer experts to assess it.
“They can say to the EA, ‘this process has been signed off by these experts and they are satisfied the material has achieved end of waste safely and properly according to the proper criteria’. That would give them the comfort they need that it’s been done properly, and save time and resources.”
CIWM has thousands of members, many of whom are experts in their field.
Keeping useful resources in circulation for as long as possible is a basic tenet of the circular economy and, clearly, the UK’s regulators can help this happen by making it easier to recycle materials in new and innovative ways. Willetts hopes her Presidential report will be the catalyst for change to happen, and says it’s already been useful in promoting discussion.
“The EA has met with Tina [Benfield] and I to discuss the report’s findings and recommendations, and it’s great that it has engaged with CIWM on this. If nothing else, its raised awareness that this is a problem in the industry and change needs to happen.”
Case study – bio bean
A great example of a company taking a waste material and transforming it into something useful is bio-bean, a Cambridgeshire-based organisation that’s won awards for its innovative approach to reusing spent coffee grounds, turning them into useful products.
Bio-bean estimates that the UK gets through 98 million cups of coffee every day, resulting in about 250,000 tonnes of wet waste coffee grounds that would normally go to landfill and other wasteful disposal methods.
Instead, bio-bean turns them into its Coffee Logs for fuel, flavouring ingredients for the food & beverage industry, or a precursor material – called Inficaf – that can be used in plastics, cosmetics, automotive friction, foundry materials, construction and more.
“Bio-bean is very interested in the regulations around end of waste,” says managing director George May. “Our experience of the process has been challenging. As the first and only business processing spent coffee grounds on an industrial scale into sustainable bio-based products, certainty around our ability to process the grounds into a value-adding material and end product is critical.
Bio-bean is very interested in the regulations around end of waste.
“We initially used the [now-discontinued] IsItWaste tool to verify that we take the grounds through end of waste, and subsequently engaged with the Determination of Waste Panel several times. But the panel’s intermittent availability – allied with the lack of clarity over timeframe, process and cost, and the commercial uncertainty that this creates – has meant we’ve not progressed further than an initial scoping application.
“We’ve undertaken a wide range of testing and analyses, and have implemented strict quality controls, so are confident of our process.
“Through discussions we’ve had with the panel and others at the EA, our view is that the regulations are not currently drafted to give the regulator the agility to support and advance circular economy and innovation-focused businesses. It’s the proverbial square peg, round hole conundrum, and more needs to be done to ease the process and encourage greater innovation in this space.”
Read the full report, Improving the way we regulate circular resources in the UK, here.