Definition of Waste and End of Waste
The ‘waste industry’ – which tends to mean those specialist operators who collect, manage, recycle, and dispose of industrial, commercial or municipal waste – has always been beset by unduly complicated questions of legal definition. The legal meaning of ‘waste’ alone has been the subject of at least 25 significant judgments in the European Court of Justice; has featured in successive versions of the Waste Framework Directive since 1991; has undergone yet another ongoing revision of the Directive in 2018; and has produced two of the most significant court rulings in environmental law in the UK courts.
It is not just the definition of ‘waste’. As the EU and the UK have moved inexorably towards what the EU calls (in the Waste Framework Directive) a “recycling society”, culminating in the EU Circular Economy legislative package in 2018 (which we are told post-Brexit UK will faithfully re-produce as UK law), precision in the understanding of concepts such as ‘end of waste’, ‘recycling’, ‘recovery’, ‘reuse’ and ‘disposal’ has become business-critical for the affected operators and their investors.
Moreover, this is not simply a ‘waste industry’ issue. Any industrial or commercial business which produces significant amounts of what are sometimes generically called “residues” has a stake in this. The manufacturing and extractive industries produce all manner of “residues” which are not viewed by the industry as ‘waste’. These materials often carry commercial value in themselves as secondary products or raw materials or by-products. Whether reused in the manufacturing process or destined for offsite reuse by third parties, the question of legal definition is vital.
All of this represents one of the most difficult and highly specialist fields of law, whose genuine expert practitioners are scarce. It also could be one of the major ‘fault lines’ between EU and UK law after Brexit, and especially in a no-deal scenario.
Despite reams of ‘guidance’, it is an area which continues to defy attempts to understand and interpret it, partly due to the opaque manner in which both legislators and the courts have handled it. It is critically important across many sectors, because in many situations the very commercial viability of an operation depends on it. At the very least, it is critical to understand the correct legal classification of all such materials. Incorrect interpretation usually has criminal and civil liability consequences, including potential issues of contractual breach and/or product liability. Even a ‘correct’ interpretation is not necessarily safe, if the national regulator does not agree and decides to prosecute. This is a major issue in the UK. Conversely, a lawful and regulator-approved conversion of what has been (or considered to be) waste into a re-usable raw material or end product often brings significant competitive advantage.
Vincent Brown has been at the forefront of the relatively recent development of the law in the UK on these matters, and is an acknowledged expert in the field, reflected in his many invitations to address this subject at legal and industrial conferences across Europe over the past decade. He initiated what remains today the leading court case on End of Waste under English law in the Court of Appeal in London, which resulted in a successful ruling in favour of the industrial client which changed the application of EU law in England overnight, but which was based entirely on EU case law and had Europe-wide influence as being the leading judgment in the field of any Member State court.
However, this area of the law has subtly varying practical applications, which reflect the complexities of the law itself and the myriad industrial permutations that can arise in practice. There are different legal routes to non-waste status, with subtly different rules applying depending on the precise facts of each case, and these must be correctly identified and selected. For example, an entirely different line of case law applies depending on whether the ‘converted’ raw material or product has derived from a waste management operation or from an industrial manufacturing process.
Often there will be an international aspect, with aspirations to achieve product status for recycled materials or industrial by-products in more than one jurisdiction, and with such status applying both at the point of production and the point of sale/use, as well as in the transit process in between. In the EU context (and this is unlikely to change post-Brexit, it will just be more complicated), this means mastery of EU law itself and having connections in all the European capitals. Vincent Brown can supply this, having worked across Europe with the European Commission on this question, dealt with cross-border End of Waste situations, and having also many times addressed academic and industrial audiences in the UK and continental Europe on the subject.
Services available from Vincent Brown in this field include:
• advice on ‘waste’ versus ‘non-waste’ classifications;
• advice on ‘secondary products’ and ‘by-products’ versus ‘waste’ classifications;
• advice on ‘End of Waste’ for processed waste streams;
• initial feasibility studies;
• clear understanding at client level of what is required to achieve the relevant outcome;
• case-specific single waste to product assessment;
• strategic review of all waste streams and product lines;
• framing of compliant end of waste submissions to Environment Agencies;
• advice on strict compliance with EU Directives and EU and UK case law;
• industry-wide sectoral assessments and applications to Government;
• consultations with Government and European Commission;
• cross-border advice and applications, guidance and support to client’s foreign lawyers;
• clear advice on recovery versus disposal arguments;
• specialist contracts;
• end of waste product supply contracts.