The question of whether a material or substance is waste or not is, to say the least, troublesome. The European Commission has published an ‘Interpretive Communication’ to assist with whether or not something is waste or a non-waste in the context of production processes – the distinction between products, production residues and by-products is discussed in the Communication. The concern of the Commission is that currently the lack of consistency in decisions of National Courts on similar facts as well as the excessively wide interpretation of the definition of waste is imposing unnecessary cost on businesses and is furthermore reducing the attractiveness of materials that would otherwise be reutilised.
This is of course something our waste recycling clients have been complaining about for years. After the recent decision in the OSS case will the Environment Agency take a leaf out of the Commissions’ book and modify its own stance on what is and isn’t waste. If some of the Environment Agency’s recent decisions are anything to go by this would not appear to be the case!
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