The Environment Agency (EA) recently announced a change in the point at which waste materials are classed by them as ‘recovered’ and are therefore recognized by the EA as being outside of waste controls.

Previously, waste management controls were sometimes applied by the EA until the product had been dispatched to the customer – the “certainly of use” test. However, following an EA briefing note released in April, which had immediate effect, the EA will now apparently always consider processed material as product as soon as all of the other criteria in the relevant Quality Protocol have been met.

This means that there will be no distinction in the EA’s position between processed material which meets a relevant Quality Protocol and is being stored and that which has been sold or supplied. The recovered product must be stored in a way that conforms with other planning and environmental requirements and, if the material is stored for a very long time with little prospect of its being used, it may be regarded as having been discarded and become waste again.

The Waste Protocols Project, a joint EA and WRAP initiative, has, since 2006, been working to provide certainty on when a waste product is classed as recovered and can be reused as a product, avoiding unnecessary landfill or the need for a permit to use it. It has, so far, issued Quality Protocols defining this point for compost, flat glass and non packaging plastic. Prior to that project there was and is a WRAP Quality Protocol for aggregates which the EA generally recognises. Nine further Protocols are in development for other product types including, tyre-derived rubber, anaerobic digestate, processed fuel oil and, most importantly, soils.

The Quality Protocol for soils is eagerly awaited by the industry. DMH Stallard is advising clients in a number of cases where the client’s position that their processed soils have become a product is being challenged or investigated by the EA. In a further case we are acting for a client company that is being prosecuted by the EA for allegedly keeping waste without a permit and the company’s defence is that the material being processed soils was no longer waste and had become a product. That defence is supported by two leading experts. Preliminary issues of law are due to be heard in the Crown Court later this year.