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Anne Harrison examines the frustrations surrounding waste classication.

Earlier this year the Environmental Industries Commission's waste resources management working group, which represents more than 80 companies involved in sustainable waste management, met Ben Bradshaw, the minister responsible for waste.

The group proposed that Defra's revised guidance on the denition of waste should clarify that soil normally be considered to have ceased to be waste in the following circumstances:

Soils remediated on-site to a riskassessed standard - agreed with the Environment Agency - to be reused within the development.

Soils remediated at an off-site soil treatment centre - to a risk-assessed standard agreed with the Environment Agency - as suitable for reuse at a speci c receiving site (either the same site as removed from, or another development).

Soils stabilised on-site to an Environment Agency agreed riskassessed leachability and permeability standard.

Remediation of soils is generally covered by a mobile plant licence.

However, this does not cover reuse of the soil on completion of the remediation (to a risk assessed standard).

In April 2006 the Environment Agency (EA) published its updated guidance The Definition of Waste: developing green field and brownfield sites. Unfortunately, it states that the sections relating to the reuse of contaminated materials onsite, and on establishing when material ceases to be waste, are not to be relied upon by industry until the National Brown eld Strategy has claried the interaction between planning authorities and the EA.

Another factor that throws the amount of progress into question is that the guidance still says any soil, whether contaminated or uncontaminated, which is taken off-site immediately becomes a waste and therefore subject to the requirements of the Waste Framework Directive (WFD).

The guidance also still maintains that materials requiring treatment before being suitable for use - whether contaminated or uncontaminated - are considered to be a waste at the point of excavation or treatment insitu and will also need to be controlled under the WFD.

The guidance does clarify when the EA will not 'generally' regard uncontaminated materials as discarded and therefore waste. The conditions are that they are to be used on the site where they are produced and that (i) they are suitable for that use and require no further treatment; (ii) only the quantity necessary for the specified works is used (otherwise it becomes a disposal activity); and (iii) their use is certain.

It also states that if such works are in accordance with the planning permission, it will generally be taken to satisfy (ii) and (iii).

Where there are a number of developers, then a multi-phase mass balanced approach is acceptable, provided the 'certainty of use' test can be satised, for example, through a collaboration agreement.

These legal documents should give joint and several liability to all developers, including step-in rights.

The EA is concerned that these agreements should provide a 'high confidence safeguard that materials would never be abandoned'. This smacks of going overboard in terms of control. Surely if the materials were abandoned, that is the point at which they would indisputably become waste?

Even more cautiously, the guidance states that recovered aggregates produced in accordance with the Waste and Resources Programme's (Wrap) secondary aggregates protocol are 'not likely' to be waste. The protocol was designed to clarify the point at which recycled aggregates could cease to be classified as waste.

This comment seems overly cautious and does not help industry with any certainty over when materials can cease to be classified as waste and no longer need licensing.

The guidance states the EA 'considers that any soil taken off site is a waste and subject to the requirements of the WFD'. Although the EA says it is considering its position on this, it seems hard to understand why, if the three points in relation to on-site use can be satised, taking the material off-site should be a deciding factor in determining whether it is waste.

Either the material has not yet been discarded - because it is a by-product of the construction/ demolition process - or it is waste at the point at which it was dug up, knocked down or removed, in which case how does that t with the agency's position on on-site use?

Equally frustrating is the statement that materials will only be considered as not requiring further treatment, or will only be treated as recovered, when it is suitable for an agreed use without posing any risk to the environment. Why not use an approach consistent with the contaminated land regime of no signicant possibility of significant harm being caused?

Bradshaw encouraged the EIC to direct its concerns to the proposed revisions to the Waste Framework Directive.

EIC's waste resources and management working group is now putting the finishing touches on a position statement on the WFD which will be submitted to Defra shortly.

Alongside English Partnerships' National Brown eld Strategy work, contaminated soils are the subject of one of the 10 waste protocols being prepared on when a waste can cease to be classified as waste under the current EA/Wrap project.

The EIC working group has presented to the EA advisory board what it sees as key priorities for the types of waste that will make up the rst year of the Waste Protocols Project.

Now that the 10 wastes for the rst year of the project have been announced, EIC is working closely with the EA on the development of the protocols and has put forward industry representatives for each of the technical working groups charged with their development.

All this is also likely to be affected by the Soils Framework Directive from the EU, along with the revised WFD. But it will be some time before these come to fruition.

Anne Harrison is associate (barrister) with law rm Clerkslegal and EIC's representative on the advisory board to the EA/WRAP Waste Protocols project.

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