This means that a waste lubricating oil, even though never intended as a fuel, ceases to be a waste and can be burned as a fuel.
In 2006, the Environment Agency declared that CFO (clean fuel oil) was a “waste” and anyone burning it had to comply with the waste incineration Directive. The Agency’s view was that waste oils could only be burnt without the need for compliance with the Directive if they were originally fuel oils.
The High Court agreed with this last November. However, the Court of Appeal overturned the judgment last week, agreeing that if a material was “sufficiently analogous” to the raw material it replaced and did not increase environmental risks, it should cease being “waste”.
Whilst this is not immediately applicable to other waste streams, and as such not the perfect solution regarding clarity on the issue of “end of waste” that we seek, it signals an important step forward by adding to the existing case law.
DEFRA and the Agency will need to take account of this ruling when developing updated guidance on the interpretation of the definition of waste, which DEFRA will publish shortly for consultation, as well as the ongoing development of waste protocols. More importantly, it has implications for the negotiations on the Waste Framework Directive, which considers criteria that determine the end of waste.