Comment

Representation ID: 825

Received: 27/04/2022

Respondent: The Environment Agency

SP1 – Waste prevention and re-use
Para 7.8. “This can include measures such as using recycled materials in construction or re-using suitable construction waste on site for engineering or landscape purposes.”

The Environment Agency has legislation (permits/exemptions) for this process including Recovery Permits and U1 exemption. There is also the CL: AIRE Code of Practice (CoP) which allows the reuse of excavated materials on-site or their transfer between sites, without being classified as waste. The CoP therefore provides an alternative to the use of Permits or exemptions. However with them all the suitability of the material should always be considered.

With that in mind if materials that are potentially waste are to be used on-site, the applicant will need to ensure they can comply with the following exclusion from the Waste Framework Directive (WFD) (article 2(1) (c)) for the use of, ‘uncontaminated soil and other naturally occurring material excavated in the course of construction activities, etc.…’ Meeting these criteria will mean waste permitting requirements do not apply.
Where the applicant cannot meet the criteria, they will be required to obtain the appropriate waste permit or exemption from us.

A deposit of waste to land will either be a disposal or a recovery activity. The legal test for recovery is set out in Article 3(15) of WFD as:

• any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy.
• We have produced guidance on the recovery test which can be viewed at https://www.gov.uk/government/publications/deposit-for-recovery-operators-environmental-permits/waste-recovery-plans-and-deposit-for-recovery-permits#how-to-apply-for-an-environmental-permit-to-permanently-deposit-waste-on-land-as-a-recovery-activity
More information on the use of waste in exempt activities can be found here: https://www.gov.uk/government/collections/waste-exemptions-using-waste
Non-waste activities are not regulated by us (i.e. activities carried out under the CL:ARE Code of Practice), however the applicant would need to decide if materials meet End of Waste or By-products criteria (as defined by the Waste Framework Directive).
The ‘Is it waste’ tool, allows you to make an assessment and can be found here: https://www.gov.uk/government/publications/isitwaste-tool-for-advice-on-the-by-products-and-end-of-waste-tests