Whether a material is classified as a waste has a significant impact on business operations: it dictates whether the burdensome regulatory regime for waste applies to the material and creates criminal liability for non-compliance.

Given the consequences, you might hope that there is a clear test for whether a material is a waste or not. Unfortunately, that is far from the case. The definition of waste has been one of the most vexed issues in environmental law over the past 30 years.

For the past few years businesses have been able to seek some comfort by obtaining opinions from a definition of waste panel sitting within the Environment Agency. The opinion is not legally binding but it does mitigate against the risk of enforcement action within England, and businesses wishing to establish cross-border trade in the materials could use it as a starting point for further discussions with other European regulators.

However, an update on the Environment Agency’s website has quietly announced that the panel has been suspended and the service closed.

In the absence of an Environment Agency opinion service, businesses will now need to take their own advice without the comfort of an Environment Agency sign-off procedure. The best risk-mitigation measure will be a robust independent opinion that can be used in the event of challenge by regulators, in the UK or elsewhere. Burges Salmon has significant experience advising on the definition of waste across numerous products and sectors. For more information please contact Simon Tilling or your usual environment team contact.