Definition of waste: 2018 Waste Framework Directive amendments
Updated 31 August 2021
Applies to England, Northern Ireland and Wales
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This publication is available at https://www.gov.uk/government/publications/legal-definition-of-waste-guidance/definition-of-waste-2018-waste-framework-directive-amendments
English and Welsh law was updated on 1 October 2020 to include changes to the Waste Framework Directive (WFD) made in 2018. This was done through the Waste (Circular Economy) (Amendment) Regulations 2020.
The changes to the WFD include changes to article 5 and 6, which cover by-products and end of waste criteria.
The Waste and Environmental Permitting etc. (Legislative Functions and Amendments etc.) (EU Exit) Regulations 2020 and The Waste (Wales) (Miscellaneous Amendments) (EU Exit) Regulations set out how articles 5 and 6 of the WFD should be read now that the transition period has ended. Any detailed criteria will now be set by the UK.
1. Definition of waste
The law is still the same. Article 3(1) WFD says:
‘Waste’ means any substance or object which the holder discards or intends or is required to discard.
The meaning of ‘discard’ is also still interpreted using case law.
You still must decide whether a substance or object is waste based on the article 3(1) definition and case law.
2. By-products
Article 5(1) WFD test still applies for whether a substance or object is a by-product.
You still must decide whether a substance or object is a by-product based on meeting all of the article 5(1) conditions and relevant case law.
You must take account of guidance published by the appropriate authority or agency when you decide if a substance or object is a by-product, for the purposes of article 5.
3. End of waste
The 2018 Waste Framework Directive (WFD) amendments change article 6 relating to end of waste. You must now use the harmonised end of waste test instead of applicable case law.
The Environment Agency (EA) and Natural Resources Wales (NRW) do not expect the changes to article 6 to result in any substantial change to the outcome of end of waste decisions.
The harmonised end of waste test sets out conditions in article 6(1) that you must meet to achieve end of waste status, as below:
a) the substance or object is to be used for specific purposes
b) a market or demand exists for such a substance or object
c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products
d) the use of the substance or object will not lead to overall adverse environmental or human health impacts
Your end of waste decision must also, where necessary, meet the requirements in points (a) to (e) of article 6(2) of the WFD.
This is to take into account limit values for pollutants and any possible impact on the environment and human health. You may also consider any relevant case law when interpreting the conditions.
3.1 Comparator approach
You should use the comparator approach when assessing if you have met article 6(1)(d). This should still form the basis of any self-assessment or evidence you provide to the EA and NRW.
With this approach you compare the waste-derived material against a specific and relevant non-waste material that would likely be replaced by it.
You must make sure the waste-derived material can be used in exactly the same way as the non-waste comparator material with no greater environmental or human health impact.
Article 6 (5) now clarifies that users and sellers of materials that have ceased to be waste, which are being used or sold for the first time, must make sure that the materials meet relevant requirements under chemical and product legislation that apply to the materials.
You must take account of any regulations or retained direct EU legislation, as well as guidance by the appropriate authority or agency when you decide if a subject or object has ceased to be waste, for the purposes of article 6.
4. Quality protocols
Current quality protocols are still relevant when you decide on end of waste status for the substances and objects to which they apply.
The EA and NRW will consider how to introduce the new requirement for a ‘statement of conformity’ when each quality protocol is reviewed. This is required by article 6(1)(e) of the WFD.
After this review, we will:
- update some quality protocols and republish them as a resource framework
- take a final decision on the ‘statement of conformity’
Check the current quality protocols for converting waste into non-waste products.