Environment Agency to review all end-of-waste protocols

Out-Law News | 20 Aug 2019 | 11:33 am | 2 min. read

The Environment Agency (EA) in England has announced a review of the 13 'quality protocols' which establish 'end-of-waste' criteria for waste. The quality protocols govern when certain waste streams cease to be waste and therefore no longer subject to waste regulation.

The 'end-of-waste' protocols establish criteria for when waste materials including glass, compost, aggregates and materials capable of use as fuel cease to be waste, and can instead be used or sold as products in their own right. The EA intends to begin reviewing the compost, anaerobic digestate and poultry litter ash protocols this month, with the rest to follow by the end of 2020.

Environmental law expert James Nierinck of Pinsent Masons, the law firm behind Out-Law, said that the review could have potentially far-reaching implications across a number of business sectors.

"While the periodic review of end-of-waste quality protocols is anticipated in the quality protocols themselves, this announcement represents a full-scale review across all of the 13 end-of-waste quality protocols," he said. "This will impact a wide number of sectors including steel, glass, aggregates, anaerobic digestion, energy from waste (PFA), rubber, biodiesel, fuel oil, biomethane and gypsum."

"Operators in these sectors and who either meet the relevant quality protocol, or receive products stated to be compliant with the quality protocol, should be aware of the review in their sector, the timeframes for this and be prepared to contribute to the review process."

"There will be concerns across industry that the EA may seek to withdraw or tighten end-of-waste quality protocols, which would require additional recovery operations to be undertaken to reach 'end-of-waste' status. From an industry perspective, this could have a significant impact on the circular economy, which prioritises the re-use of materials over disposal," Nierinck said.

The current end-of-waste protocols were developed by the industry, with the support of the EA, between 2004 and 2015. The EA is concerned that some of the quality protocols may now be out of date, in that they may not meet current technical or legal standards or may not support the latest waste processing technologies.

The EA's review will consider the clarity of each quality protocol; whether they are excessively onerous; and whether they are open to abuse or if there is any evidence of unintended risk of pollution, impacts on human health or impacts on the environment. It will also consider the impact of new waste processing technologies, end product markets, product standards or changes in the law on the protocols as currently drafted.

The EA will complete an initial review of each protocol during which it will decide whether it can support the document with its current wording or only minor amendments; or whether it needs substantial revision. If the EA does not support the quality protocol, however the industry would like to see it revised and updated, then the EA envisages "a complete overhaul of the QP to bring it up to date so that it would meet the latest standards".

The EA has said that any substantial revision of a quality protocol will require collaborative work from the relevant sector, potentially through industry associations where these exist.

Nierinck said: "While industry engagement is in general positive, the EA has made clear that the proposed revision process will not guarantee an updated quality protocol". . The EA has said that any updates must be paid for by the industry under the EA's definition of waste charging scheme.

The EA will notify interested parties on its website when each review begins. It also intends to engage directly with relevant industry associations in relation to each protocol.