GovWire

You must try to prevent and minimise the production of waste as much as possible.

If you are the producer or holder of a material and youre unsure if its waste or not, you can use this guidance to check the status of your material. A material can include any substance or object.

You should work out if your material:

• is waste it has been discarded
• was never waste it meets the by-product test or the reuse requirements
• has stopped being waste it meets the end of waste test

When a material is waste discard

A material is waste if the holder has discarded it. The holder is the person or legal entity who has the material at the time its discarded. This may not be the owner for example, if someone has leased the material, they become the holder.

Assessment of whether a material has been discarded is based on the actions of the holder.

A holder may unintentionally, involuntarily or accidentally discard a material. They may also be required to discard it.

The Environment Agency considers all the following factors when they assess if a material is discarded and therefore classed as waste:

• burden
• certainty of use
• fit for purpose
• a specific purpose
• management
• environmental harm
• common classification as waste
• disposal or recovery
• fuel or waste
• an item returned for a refund
• reuse

All the factors must be considered. Its not possible to decide if something has been discarded based on a single factor, unless the law specifically says that it must be disposed of.

When assessing whether a material has been discarded, the Environment Agency must make sure that the aims of the Waste Framework Directive (WFD), which include protection of the environment and human health, are not undermined. They must take a precautionary approach.

Burden

A material is generally considered to be discarded if it is unsuitable, unwanted or surplus to requirements, making it a burden. The holder is more likely to dispose of it in a way that might harm human health or the environment.

Considering the business objective of why a holder deals with a material in a particular way can help assess whether it is a burden to them.

Certainty of use

If there is no certainty that a material will be used it suggests that it has been discarded. The less certain the use of a material, the more likely that it is a burden. Certainty of use is more than just the possibility of use in the future.

Fit for purpose

If a material cannot be used in the way it is meant to be, or it does not meet relevant standards, it strongly suggests that it has been discarded. This is because its unlikely to have a value to the holder or a market, so will be a burden.

If the law states that a material has to be disposed of, the material is waste.

Specific purpose

If a holders material has no specific purpose, it is likely to have been discarded. It is unlikely to have a benefit to the holder and so is likely to be a burden.

Value

A material is likely to be discarded if it has low, no or negative economic value because it is likely to be a burden. But it may not be a burden if it has some other value to the holder.

A material with a high economic value can still be discarded and classed as waste, such as scrap metal.

Management

A material is likely to be discarded if it is managed, for example transported or stored, in a way that could damage it. Damage does not have to have occurred. If damage has occurred however, this makes it even more likely that a material has been discarded.

Environmental harm

If a material is contaminated, and that contamination means there is a significantly greater risk of harm to the environment or human health if the material is not regulated as a waste, it is likely to be considered to have been discarded. For example, if, due to the treatment used, the burning of treated wood will cause a significantly greater risk of harm to the environment if not regulated as a waste, for example due to preservatives, the treated wood is likely to be considered waste. Whether there is significantly greater risk of harm to the environment or human health is a judgment for a technically competent person.

Where a material has not been contaminated, it is not relevant to consider whether its storage or use is potentially harmful, as many non-waste substances can also be harmful. The environmental impact of the process to create a material or how it will be used also have no bearing on assessing if it is waste.

Common classification of waste

A material that is commonly regarded as waste is likely, but not certain, to be waste. Just because something is called waste, does not mean that it is waste. A material that is listed in the List of Waste code is not necessarily waste.

Disposal or recovery

If a material has gone through an operation that is commonly regarded as disposal or recovery, it is likely to have been discarded. This will not always be so, as sometimes such an operation is not actually disposal or recovery because the material involved is not a waste.

For example, landspreading where, depending on the circumstances, the application of material to land can be recovery, disposal or neither (when spreading non-waste material for benefit to land).

If you get material under a contractual agreement requiring recovery or disposal, this is evidence its been discarded and so is waste.

Fuel or waste

If a material is commonly used as a fuel in certain circumstances, it suggests that it is likely to be fuel and not waste when used in similar circumstances.

When deciding whether a material is a fuel or a waste, it is important to look at why it is being burnt and whether it is a disposal activity. If the calorific content of a material that will be burnt is significantly less than a fuel that would be burnt as an alternative, it is likely that it is not fit for purpose and is being disposed of, making it waste.

Return for a refund

Where a material is returned for a refund, it will not have been discarded by the holder returning it.

The person receiving the returned material is in a different position. Whether the material is discarded by them depends on the factors previously set out.

When a material has not become waste

Reuse

A material will not be waste if all the following apply:

• it is used for the same purpose for which it was designed the use must not be subordinate or incidental to the original use
• the previous holder intended for it to be reused
• no repair, or no more than minor repair, is required to it when it is transferred from the previous holder to the new holder, and the previous holder knows this
• any necessary repair is going to be done
• its use is lawful
• it is not managed in a way that indicates that it is waste, for example it is not transported or stored in a way that could cause it to be damaged

If a material becomes waste before it is reused, you will have to apply the end of waste test to it.

The by-product test

A production process with the primary aim of producing intended new products from non-waste materials may also produce unavoidable residues. These residues will have by-product (non-waste) status if they meet all 4 conditions (a) to (d) under WFD article 5 (1).

Condition (a) further use of the substance or object is certain

To decide if your materials use is certain, consider if there is a market or demand for all the material.

To decide if there is a market for your material, consider:

• why it will be purchased if it does not have a specific purpose theres unlikely to be a market
• if it is fit for purpose if it is not there is unlikely to be a market
• how many potential purchasers there are one potential purchaser can be evidence of a market, but your evidence will be stronger if there are larger and more established potential purchasers
• the predicted sales if there are no predicted s
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