Controlled waste has to be disposed of at a permitted site unless an exemption applies. It can only be transported by a registered waste carrier and its movement has to be recorded by a waste transfer note.

The first issue is what is waste? This is defined as “any substance or object which the holder, i.e. the producer or the person who is in possession of it, discards or intends or is required to discard.

This definition has proved to be problematic particularly in relation to surplus materials, residues or by-products which are usable in some way, or which have economic value. But at what point may the material be said to have been recovered and therefore cease to be waste?

There have been a number of decisions of the European Court of Justice on the definition which have failed to lay down any definitive criteria or provide any real degree of certainty. In one recent case, stone residues arising from a granite quarry were stockpiled pending possible use. They were not, in any way, harmful to human health or the environment. The Court held that in the absence of any guarantee of re-use the material was to be treated as discarded and therefore waste.

Landfill sites and treatment plants have to be permitted to accept and process controlled waste. The permits are required to cover energy efficiency, accident prevention and site restoration as well as pollution control. This will reduce landfill capacity and drive up disposal costs. When this is coupled with escalating Landfill Tax rates and Producer Responsibility obligations, there will be created ever- increasing pressures for waste minimisation and recycling.

These pressures make the exemption of waste activities from the permitting regime of increasing importance. If an exemption applies, the controlled waste does not have to be taken to a permitted site.

An example is the use of waste arising from demolition or construction work or tunnelling or other excavations or which consists of ash, slag, clinker, rock, wood or gypsum, which is used for construction work. This exemption has to be registered with the Environment Agency. There are physical limits on quantities and the waste has to be suitable for use for the purposes of the relevant work. Furthermore in undertaking the waste activity in question, the method of disposal or recovery has to be consistent with the need to attain certain objectives including ensuring that there is no risk to water, air, soil, plants or animals; that no nuisance is caused and that the countryside is not adversely affected.

The waste regime is extremely complex. Most of the legislation originates in Europe and is supposed to be applied throughout the European Union so as protect the environment and provide a level competitive playing field for industry. Interpretation of the legal requirements is fraught with uncertainty. Operators are subject to criminal prosecution if they err. Many offences are based on strict liability – where lack of intent or the absence of negligence provides no defence. The UK Regulators tend to operate a rigorous prosecution policy. The same cannot be said for the whole of the European Union so the playing field is in practice somewhat skewed!

Contact our waste law team in Cannock or Lichfield for further information.