The new definition of hazardous waste, agreed at EU level in 2000, was supposed to be applied from January 2002. It now looks unlikely to be fully transposed in the UK until 2004.
The UK intends to repeal the existing 'special waste' regime, and replace it with a new hazardous waste system which will better reflect EU requirements and bring wider regulatory improvements. A consultation paper two years ago explained that the new regulations will place the onus for compliance on waste producers rather than carriers.
In place of the existing requirement to notify the Environment Agency before consigning special waste, the new regime will instead require producers of hazardous waste to register with the Agency. They will also receive periodic inspections.
However, because of the log-jam of policy initiatives within the over-stretched Environment Department, detailed proposals for the new regime have been repeatedly delayed. The latest word is that a consultation paper, with draft regulations, will emerge in the autumn. Regulations are unlikely to be laid until 2004. Once they are in place, there is likely to be a lead-in period of a few months to give businesses time to adapt.
All in all, implementation is well over two years behind schedule. But the delay in complying with EU law is only the start of the problem.
Of greater significance to industry is the hiatus caused by the fact that the new hazardous waste definition is already being applied in the regulation of landfills and incinerators. This is because the EU Directives on landfill and incineration, and their implementing regulations, refer directly to the EU definition of hazardous waste.
Under the landfill Directive, for example, operators have already had to declare whether they are running a site for 'hazardous' or 'non-hazardous' waste. It is already illegal, in principle, for a non-hazardous site to accept hazardous waste.
The EU definition also underpins the framework for the ban on co-disposal, to be applied from July 2004. Hazardous and non-hazardous wastes will have to be consigned to appropriate treatment and disposal sites, and it will no longer be permissible to mix them in the same landfill.
Similarly, in the clinical waste field, hospitals have had a difficult time trying to work out which incineration plants are suitable for particular waste streams.
The EU definition of hazardous waste is set out in the new European Waste Catalogue, which was adopted in 2000 and amended through Commission decisions in 2001. Helpfully, the Agency's new technical guidance includes a consolidated version of the EWC, with guidance on how to use it.
In the EWC, hazardous wastes are identified using an asterisk against the six-figure code for the waste in question. Some entries are 'absolute', in that the waste in question is deemed always to be hazardous. However, many others consist of 'mirror' entries, with the wastes being hazardous only if the consignment contains dangerous substances or possesses hazardous properties.
For example, inorganic wastes containing dangerous substances are classified as hazardous - with the EWC code 16 03 03* - while other inorganic wastes have the non-hazardous code 16 03 04. The EWC itself offers little advice on how to determine which wastes fall into which category, but it does set out threshold concentrations for some hazardous properties.
Under the 'duty of care' regime, UK industry is already having to apply the new EWC codes when transferring wastes between sites. In England and Wales, the requirement was introduced by the landfill regulations in 2002.
Many waste producers, and their contractors, are therefore already having to consider whether or not to identify their wastes as 'hazardous' using an asterisk. Inevitably, however, given the parallel regime on 'special' wastes, there will be large volumes of hazardous waste slipping through the net.
The new definition of hazardous waste is expected to embrace three times more waste than is covered by the existing special waste regime, and will also treble the number of companies deemed to be hazardous waste producers.
Identifying hazardous waste:
The Agency's new technical guidance is based on a research project undertaken by Enviros and Land Quality Management.
It makes it clear that the new definition of hazardous waste will continue to exclude domestic waste, but it remains uncertain precisely when waste streams collected by a local authority - such as old televisions or engine oil - count as 'domestic' waste. Separate guidance is to be prepared on this matter.
'Absolute' and 'mirror' entries:
Many of the wastes on the EWC have absolute entries, making it clear whether or not they count as hazardous. In these cases threshold calculations will not be required, the guidance says.
In cases involving mirror EWC listings, wastes should only be consigned as hazardous where they possess one of 14 hazardous properties - ranging from flammability to ecotoxicity - as set out in EU legislation. Where the composition of the waste is known, producers can avoid having to undertake such tests if they can show that the waste does not contain dangerous substances.
The guidance points out that the composition of the waste can often be identified from knowledge of the process or activity that produced it or from a chemical/microbiological analysis of the waste itself. Information on safety data sheets can also help.
The guidance says that, where the holder cannot decide which substances might be present, they should assume a worst case scenario for each component and assess the waste accordingly.
'In the majority of cases there should be sufficient knowledge to assess a waste. However, where the composition of the waste is not known the alternatives include testing the whole waste for hazardous properties or utilising the precautionary principle.'
Many of the mirror entries are based on whether or not the waste in question contains 'dangerous substances'. This is to be assessed using the EU Directive on dangerous substances, which has been implemented in the UK through the CHIP3 regulations.
Following the principles of CHIP3, the new guidance sets out two methods for assessing whether a mirror entry waste contains dangerous substances. The preferred method is to use the hazard classification given in the Approved Supply List, which prescribes hazard information and classification for many common chemicals.
For a waste with a mirror entry to be hazardous it must display a hazardous property. The new Agency guidance explains that this may be determined either by calculation or by tests.
For many wastes, it says, the most appropriate method is to identify the hazardous constituents in the waste and then use their concentrations to identify whether they confer hazardous properties on the waste. If a waste contains dangerous substances at or above the stated 'threshold concentrations' for any of the hazardous properties, it will be deemed hazardous.
Testing may be appropriate in some cases, such as identifying whether a waste is flammable. Sometimes, where the waste composition is complex, testing may be the only option.