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Department for Environment, Food & Rural Affairs

Review of the Special Waste Regulations

1. Introduction

1.1 The Special Waste Regulations 1996 are the centrepiece of our hazardous waste controls. Since the Regulations came into force on 1 April 1996, the Environment Agency has been able to monitor movements of a wide range of hazardous wastes. This has encouraged better management of these potentially hazardous substances. Furthermore, the amount and quality of data on hazardous waste available to the Agency has increased substantially.

1.2 However, much has changed in the field of hazardous waste management since 1996. The Hazardous Waste List (94/904/EC), that defines the scope of the Hazardous Waste Directive (91/689/EEC), has been refined, increased in length, and incorporated within the European Waste Catalogue. We need to implement these major changes through national law by 1 January 2002. Furthermore, a number of new European Directives have made, or will shortly make, a significant impact on the sector. Notable among these are the Hazardous Waste Incineration Directive (94/67/EC), the Landfill Directive (99/31/EC) and the Integrated Pollution and Control Directive (96/61/EC). Producer responsibility measures, such as the End-of-life Vehicles Directive (2000/53) and the proposed Waste Electrical and Electronic Equipment Directive, also contain provisions relating to hazardous waste.

1.3 The 1996 regulations define “special waste” in a way that it is not wholly consistent with the definition of “hazardous waste” in the Hazardous Waste Directive. The inconsistencies between the two definitions are increasingly causing practical and legal difficulties. For example, the Waste Incineration Directives, the Landfill Directive and the Integrated Pollution and Control Directive contain provisions relating to facilities that deal with hazardous, rather than special, wastes. The differences between the two concepts are, quite reasonably, not widely understood.

1.4 Some producers and managers of hazardous waste have suggested that using the term “special waste”, rather than “hazardous waste” (the description used throughout the rest of Europe), is inappropriate and confusing. We have already indicated in Waste Strategy 2000 that we will be considering adopting the European terminology.

1.5 Waste Strategy 2000 set out the Government’s vision for waste management in the future. It said that the Government is committed to reducing the quantities of hazardous waste, reducing the hazardousness of wastes and making sure that they are managed safely. More specifically, the Strategy indicated that the ongoing evaluation and appraisal of Special Waste Regulations would be used to determine whether their aims and objectives could be met more efficiently.

1.6 Largely because of these developments and concerns, the Department recently commissioned a review of the Special Waste Regulations from the consultants Enviros Aspinwall. This study involved extensive consultation with a wide range of people with an interest in hazardous waste, including waste producers, waste managers, regulators and non-governmental organisations (NGOs). An encouraging consensus emerged on the steps that we could take to improve the Regulations.

1.7 Enviros Aspinwall recommended that the Department should consider a number of changes. These include:

WHAT WE PROPOSE TO DO

1.8 We need to implement the recently agreed changes to the European Waste Catalogue (now incorporating the Hazardous Waste List) by 1 January 2002. We will, therefore, need to amend the Special Waste Regulations before this date.

1.9 In addition, we propose to take this opportunity to:

1.10 This consultation paper seeks views on a number of proposals that the Department is considering exploring further. The majority of these are based on the recommendations of the Enviros Aspinwall report.

1.11 Following this consultation, we will consider the points made before drawing up more detailed proposals and draft legislation. These will be the subjects of a further consultation in Summer 2001.

1.12 Comments on the proposals contained in this paper should be sent to the address given below by Friday 22 June 2001.

Grant McPhee
Zone F/15
Ashdown House
123 Victoria Street
London SW1E 6DE
e-mail: Grant.McPhee@defra.gsi.gov.uk

1.13 A partial Regulatory Impact Assessment (RIA) assessing the likely costs and benefits of the changes proposed in this consultation paper has been prepared. This is available electronically from the e-mail address given above. Please include the phrase ‘RIA’ in the subject heading of any e-mail requesting this document.

1.14 Both this consultation paper and the RIA will also be available on the DETR web site at www.dtlr.gov.uk/consult.htm.

1.15 This consultation paper applies to England.

2. An alternative approach to the definition and classification of hazardous waste

2.1 The Enviros Aspinwall report identified a number of future options meriting more detailed evaluation. Following a consideration of these options, the Department is considering changing the procedures for dealing with consignments of hazardous waste as described below. We would welcome your views.

CHANGES TO THE DEFINITION OF ‘SPECIAL WASTE’

2.2 Enviros Aspinwall found that the majority of people who use the current special waste classification system find it too complicated.

2.3 The Special Waste Regulations 1996 define “special waste” in a way that does not exactly match the definition of “hazardous waste” in the EC’s Hazardous Waste Directive. The main difference is that wastes not on the EC’s Hazardous Waste List are only considered special if they display a restricted amount of the hazardous properties listed at Annex III of the Hazardous Waste Directive (in other words those at H3A (first indent), H4, H5, H6, H7 or H8). For example, a waste not listed on the current Hazardous Waste List would presently be ‘special waste’ if it displayed the property H4 (irritant), but not if it was considered H14 (ecotoxic).

2.4 The Special Waste Regulations (SWR) also apply qualifying thresholds to all the wastes listed on the current Hazardous Waste List (reproduced in Part I of Schedule 2 of the SWR). This means that a waste on the current Hazardous Waste List is only hazardous if it also breaches one of the thresholds set out in Part II of Schedule 2 of the SWR. For example, a waste is only considered to be special due to it displaying the hazardous property H7 (carcinogenicity), if it contains more than 0.1% of a known carcinogen.

2.5 The recent changes made to the European Waste Catalogue (now incorporating the Hazardous Waste List) make this particular provision redundant. Non-hazardous mirror-entries have been introduced for those wastes that can be either hazardous or non-hazardous (depending on whether they display one or more hazardous properties). The revised European Waste Catalogue was published in the Official Journal of the European Community on 16 January 2001. It will come into force 1 January 2002.

2.6 Given the recommendations of the Enviros Aspinwall report, and the changes that will be made to the European Waste Catalogue, we are minded to base the definition of special waste solely on the Hazardous Waste Directive and the revised European Waste Catalogue. We also propose replacing the term “special waste” with “hazardous waste”.

2.7 Under the proposed new system, hazardous waste would be:

(a) any waste listed as hazardous in the revised European Waste Catalogue;

(b) any unlisted waste displaying one or more of the hazardous properties (H1 to H14) listed in Annex III of the Hazardous Waste Directive; and

(c) all prescription-only medicines.

2.8 The European Commission is currently considering whether to add selected medicines, as hazardous entries, to the European Waste Catalogue. In the absence of any Europe-wide classification system, we propose to continue to regard all prescription-only medicines as hazardous waste.

2.9 If a waste holder considered a waste listed as hazardous (without a mirror-entry) in the revised European Waste Catalogue, to be non-hazardous, they would have to submit scientific evidence supporting their claim to the regulators. If the regulators accepted this evidence, the UK would notify the European Commission of the need to amend the European Waste Catalogue. To ensure a consistent enforcement position, the Environment Agency would generally continue to consider the notified waste to be hazardous until the Commission and other Member States approved the amendment.

2.10 If the Environment Agency considered a waste not listed as hazardous in the European Waste Catalogue to be hazardous, then it would generally be considered hazardous waste domestically with immediate effect (in line with Article 1(4) of the Hazardous Waste Directive). The UK would then notify the Commission of the need for an amendment to the European Waste Catalogue.

2.11 The advantages of this approach would be:

(a) the revised European Waste Catalogue would be fully implemented;

(b) it would remove the problems of inconsistencies between “hazardous waste” and “special waste”;

(c) it would simplify the implementation of future EC Directives where controls will be applied to “hazardous waste” as defined by the Hazardous Waste Directive. Examples will be the Landfill Directive the Waste Incineration Directive and the Integrated Pollution and Control Directive;

(d) It would simplify the definition and lead to a reduced need for testing of wastes.

2.12 We are, therefore, minded to replace the current definition of “special waste” with a definition of “hazardous waste” based solely on the Hazardous Waste Directive and the revised European Waste Catalogue.

Use of the current version of the Approved Supply List from the CHIP legislation, to identify hazardous properties
2.13 The Enviros Aspinwall report recommended that we use the current version of the Approved Supply List from the Chemicals (Hazard Information and Packaging for Supply) Regulations to classify special waste. We do not consider this to be a viable option. For legal reasons, the Special Waste Regulations must specifically mention the appropriate version of the Approved Supply List. This list is updated frequently, sometimes several times each year. It would be impractical and unnecessarily costly to update the Special Waste Regulations to reflect each change. The Department is not, therefore, minded to accept this recommendation.

3. Changes to procedures for hazardous waste

3.1 Enviros Aspinwall recommended a number of changes to the consignment note system as described in the paragraphs below:

THE DEPARTMENT’S PROPOSALS

3.2 The Department has considered the recommendations of Enviros Aspinwall and considered whether any other changes are required. We are minded to change the system for special waste as described in the paragraphs below.

New requirement for the Environment Agency to inspect waste producers and waste management facilities
3.3 Although the regulators do inspect special waste producers and waste management facilities from time to time and are required to do so by Schedule 4 of the Waste Management Regulations 1994 (as amended), such inspections are not (with the exception of exempt activities) required at specified intervals. Consultation carried out by Enviros Aspinwall suggested that the Environment Agency should be focusing on those producers and facilities that do not comply with the Regulations. Hence, we are proposing to incorporate such a requirement in the revised regulations that inspections are made at periodic intervals. The regulations will also include provision to take enforcement action against producers who fail to register under the Producer Regulation System described in paragraphs 3.4 to 3.8 below.

Producer registration system
3.4 The Enviros Aspinwall report suggested adopting a system requiring special waste producers to register annually with the Environment Agency before they can move waste. Waste producers would have to identify as far as possible the types and likely amounts of waste they will consign during the forthcoming year, the number of consignments and the intended treatment or disposal sites for particular waste streams.

3.5 At present, the Environment Agency is notified on the basis of individual consignments or successions. Under section 62 of the Environmental Protection Act 1990 (as amended by paragraph 80 of Schedule 22 to the Environment Act 1995), the Special Waste Regulations allow the Environment Agency to recover the costs it incurs in enforcing the regulations. At present, the fees charged are set out in regulation 14(1) of the Special Waste Regulations and are based on individual consignments or successions. However, Section 41 of the Environment Act 1995, allows the Agency to set fees by means of a charging scheme. Under a producer registration system, producers would pay an annual fee, possibly based on the number of consignments they make in any one year. This fee might be scaled in some way, possibly to reflect the disposal route used (see paragraphs 3.22 to 3.27). Clearly, the consignments actually made during the year may differ from those notified at registration. Amended information can, therefore, be provided via the quarterly reports described in paragraph 3.9 below. A mechanism will be devised to allow for the adjustment of fees where actual consignments differ from those predicted at registration. One possibility would be to adjust the fee payable for the following year.

3.6 Each consignment would still need to be accompanied by a consignment note to meet the requirements of Article 5(3) of the EC’s Hazardous Waste Directive. However, the Environment Agency would no longer be sent copies. Each note would continue to have a unique consignment code and the regulators would allocate these at the time of producer registration. If the number of codes allocated at this stage proves to be more or less than producers actually need, adjustments can be made later.

3.7 In the longer term, this system would reduce the administrative burden for the Environment Agency, as it would no longer need to track each individual consignment note. This would free regulatory resources for producer inspections and advice to industry. Such a system might, however, be impractical for small-scale or one-off producers.

3.8 We can see significant advantages in this approach, but are concerned about the difficulties it might create for small-scale or one-off producers. The Department is considering the introduction of a producer registration system and would welcome the views of consultees. However, we suggest that producers should be allowed to use their waste management contractors to register and provide details of likely consignments on their behalf where they consider that it would not be economically feasible to do this themselves. It should be noted, however, that producers would still retain the legal responsibilities for their consignments. One-off producers would be able to contact the Environment Agency separately for the consignment of their waste and would pay a fee at that stage.

Removal of requirement for pre-notification
3.9 Under The Special Waste Regulations 1996, many consignments of special waste must be pre-notified to the Environment Agency. This means that the Agency must be notified at least 72 hours before the waste can be moved, giving them some scope to prevent inappropriate disposal. However, it can cause difficulties where consignments need to be moved quickly.

3.10 The producer registration System would give the Environment Agency some advance indication of consignments for the year ahead, allowing more time to sort out any potential problems. The Agency could also save a significant amount of time by not processing individual pre-notifications and so could focus on cradle to grave audits of consignments. This should allow more time for inspections of waste producers and waste management facilities and for taking enforcement action against producers that fail to register. There appear to be significant advantages in dropping the requirement for 72 hours notice of individual consignments and thus the Department is minded to remove the requirement for pre-notification.

Provision of quarterly producer returns
3.11 Enviros Aspinwall also suggested that special waste producers should have to provide quarterly reports to the Environment Agency on the consignments produced in the previous three months. Currently the Agency records details of consignments on the basis of individual consignment notes copied by the consignor. However, Enviros Aspinwall suggested that, the Agency would instead use quarterly reports to update the information provided at registration. Although, the reports would be an extra requirement for waste producers, the overall burden on them should not increase bearing in mind that they would no longer have to pre-notify. In addition, most producers are thought to keep this information and so should be able to produce the reports quite easily. The reports would also reduce the burden on the Agency by removing the requirement to log individual consignment notes and by aggregating data into more easily managed units. This would free regulatory resources for producer visits and other enforcement action. The reports would also give information to the regulators for producer visits. The Department is considering the introduction of these quarterly reports, and would welcome the views of consultees.

Provision of quarterly returns from consignees
3.12 Enviros Aspinwall recommended introducing such reports as part of their suggested producer registration system. Again, there are no such reports under the Special Waste Regulations 1996. The Environment Agency currently records details of waste received by consignees on the basis of the individual consignment notes sent by consignees. Under this proposal, the Agency would no longer receive copies of individual consignment notes from consignees. Instead, waste management facilities (“consignees”) would make quarterly returns to the Agency on the consignments actually received. The Agency would use these to confirm that waste had finally been consigned as the producers had suggested. These reports may be a small extra requirement for consignees, but would reduce the burden on the Agency, leaving it with more time to focus on cradle to grave audits and enforcement action. The Department is considering the introduction of these quarterly reports.

Notification of waste producers of the deposit/receipt of the waste
3.13 Under the current consignment note system, the person who produced the waste receives no record to confirm that the intended consignee has accepted it. Enviros Aspinwall recommended that waste management companies send a copy of the completed consignment note (the “producer’s receipt”) to waste producers confirming that they have accepted it. This would mean that producers get evidence that their waste has been handled as they had intended.

3.14 The producer’s receipt would also help to transpose Article 4(2) of the Hazardous Waste Directive. This requires producers to keep records of the quantity, nature and origin of the waste. Where relevant, they must also record the destination, frequency of collection, method of transport and of treatment. At present the consignor keeps a copy of the consignment note provided to the carrier. Under the proposed system, the consignor would still keep a copy. However, the consignor may not be the waste producer and even where they are the same, the producer gets no record that the consignee has received the waste.

3.15 This proposal will not place an additional burden on waste management facilities as the producer’s receipt will replace the consignment note currently sent to the Environment Agency. The Department is, therefore, minded to introduce these “producer receipts”.

Amendment of consignment notes to allow for multiple carriers
3.16 At present, where there is more than one carrier involved in moving special waste, each carrier needs a separate consignment note. This can happen, for example, for movements between islands and between Northern Ireland and Great Britain.

3.17 The Enviros Aspinwall Report recommends that we amend the consignment note to allow the transfer of waste to another carrier in a similar way to the consignment notes used for international movements of waste under Council Regulation (EEC) No. 259/93. The Department is proposing to adopt this recommendation for all cases where more than one carrier moves special waste. It would provide a single consignment note for such movements and, in particular, would reduce the burden on waste producers in Northern Ireland and allow better tracking of waste. It would also reduce the burden on the Environment Agency and, in particular, remove the difficulty of matching consignment notes that exists under the current arrangements. This would free regulatory resources that could be used for producer inspections and other enforcement action. The Department is, therefore, minded to amend the consignment note to allow for multiple carriers.

Requirement for producer/holder to consign the waste
3.18 At present, the consignor “consigns” the waste by completing Part D of the consignment note. The consignor may be the producer or holder of the waste, or may be a waste management company who “consigns” waste on their behalf.

3.19 Enviros Aspinwall proposed increasing the responsibility placed on the producer/holder by requiring them to complete Parts A, B and D of the consignment note. This would raise awareness of the amount of waste consigned and might improve waste descriptions. Placing the responsibility on to the producer or holder is also consistent with Duty of Care requirements.

3.20 However, such a requirement could increase the burden on small businesses that rely on waste management companies to prepare waste descriptions and to consign the waste. The Department would appreciate views on this proposal before considering it further.

Amendments to carrier’s round consignment notes
3.21 Enviros Aspinwall recommended that we amend the carrier’s round consignment notes so that carriers have to summarise the total type and quantities of waste they collect on a round. This might help with acceptance of the waste at the consignee’s site and would reduce the burden on regulators in terms of quantifying waste collected on carriers’ rounds. This would free regulatory resources, which could be used for producer inspections and providing advice to industry. However, it could place an additional burden on waste carriers. Again, the Department would appreciate the advice of consultees before considering this issue further.

Introduction of Scaled Charges
3.22 At present, consignment charges are the same irrespective of the type of waste. The exception is lead-acid batteries, where the fee is slightly lower to encourage recycling. However, the Waste Strategy 2000 stresses the importance of minimising hazardous waste produced and encouraging recycling and re-use where possible. Enviros Aspinwall suggested that scaling the amount producers pay in consignment fees according to the amount of hazardous waste they produce or the way they dispose of it might achieve this. A number of possible options were suggested and are described below.

3.23 Fees could be scaled according to the treatment or disposal option used. Under the current system, consignments of lead acid batteries are subject to a lower fee as they are normally recycled. This could be extended to encourage more recycling/recovery. The fee structure could be based on either

(a) a lower fee for any hazardous waste sent to a recycling or recovery operation rather than to disposal; or

(b) A lower fee for specific waste streams that are regularly recycled or recovered.

3.24 We consider option (a) to be the most beneficial as it would encourage producers of any waste to consider whether the waste could be recycled or recovered before consigning it. Option (b) might be open to abuse as producers of waste eligible for the lower fee might still consign it to disposal. However, there are difficulties with either approach. For example, treatment may not be an option for all waste streams. We would appreciate the views of consultees.

3.25 Alternatively, we could base the fee on the quantity of waste. The greater the annual quantity of waste generated, the greater the fee. Such an approach would be possible with a producer registration system. However, such a fee structure might encourage producers to concentrate waste, which could potentially increase its hazardousness. It might also lead to an increase in fly tipping.

3.26 A third option would be to base fees on the hazardousness of waste. The more hazardous the waste stream, the higher the fee. However, this would be impractical, as it would be almost impossible to define the hazardousness of a particular waste stream. It might also deter waste minimisation which can increase the hazardousness of waste whilst reducing the total volume.

3.27 A final option would be to scale fees according to how close waste is to the waste disposal or treatment facility. The cost of consigning waste would be based on the distance the waste is moved, with fees increasing the greater the distance travelled. We do not think this is very practical because it would place remote communities at a disadvantage. It might also deter recovery and re-use as disposal to landfill might be the closer to the site of production and so cheaper.

4. Other proposed changes to the Special Waste Regulations

SEPARATION OF WASTE

4.1 Article 2(4) of the Hazardous Waste Directive states that “Where waste is already mixed with other waste, substances or materials, separation must be effected, where technically and economically feasible, and where necessary in order to comply with Article 4 of Directive 75/442/EEC”. Article 4 of Directive 75/442/EEC (the Waste Framework Directive) requires Member States to take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular without:

4.2 The current Special Waste Regulations do not require separation where waste is already mixed with other waste. The Department proposes including a requirement in the new regulations to require the separation of such waste where technically and economically feasible.

EXEMPTION OF DOMESTIC WASTE

4.3 Household waste is exempt from the Special Waste Regulations. This exemption was intended to transpose Article 1(5) of the Hazardous Waste Directive, which states that “Domestic waste shall be exempted from the provisions of this Directive”.

4.4 We have accepted that the definition of ‘household waste’ used in the Special Waste Regulations (which includes waste from premises used by charities, camp sites, prisons, and halls used for public meetings) goes beyond the intended scope of the exclusion foreseen in the Directive. The Department therefore proposes limiting the scope of the exemption for household waste to domestic waste only. This means that hazardous waste produced at the type of facilities listed above would become subject to the Special Waste Regulations. However, it is thought that most of the waste produced in such places would be non-hazardous and some hazardous waste is already being consigned.

5. Waste from ships

5.1 Regulation 9 of The Special Waste Regulations 1996, sets out the current arrangements for special waste removed from ships to a reception area in a harbour area, or by pipeline to any such facilities provided outside a harbour area. Not all the proposals outlined above could appropriately be applied to such waste. The Department is considering making special arrangements for it, possibly by requiring the waste facility to register as “producer” and take on the responsibilities of both producer and consigne. The views of consultees would be appreciated.

6. Summary of proposals

6.1 In summary, the Department is considering making the following changes to the current procedures for hazardous waste:

6.2 We would welcome views on these options.

Glossary

Carrier = the person who collects waste from the premises at which it is being held and transports it to a different place.

Carrier’s round = a journey made by a carrier during which he collects more than one consignment of special waste and transports all consignments collected to a single consignee.

Consignor = the person who causes the waste to be removed from the premises at which it is held.

Consignee = the person to whom the waste is to be transported.

Consignment note = a note in a form set out in the Special Waste Regulations, which must accompany all movements of special waste. The note gives details of the person consigning the waste, the carrier and the person receiving the waste. It also gives a description of the waste, including the chemical and biological components of the waste.

Consignment code = a unique number allocated to the individual consignment or to the consignments in a single carrier’s round.

Part A of the consignment note = details of where the waste is being moved to and from.

Part B of the consignment note = a description of the waste, including the chemical and biological components that make the waste special.

Part D of the consignment note = certification by the consignor that the description of the waste and carrier’s details are correct and that the carrier is registered or exempt and was advised of the appropriate precautionary measures.

Hazardous Waste List = a list established under the Hazardous Waste Directive of wastes which have at least one of the hazardous properties listed in Annex III of that Directive.

European Waste Catalogue = a catalogue of wastes established under the Waste Framework Directive (75/442/EEC). Commission Decision 2001/118/EC (as amended by 2001/119/EC) will effectively replace the original European Waste Catalogue (94/3/EC), and the Hazardous Waste List (94/904/EC), with effect from 1 January 2002.

Hazardous properties (H1-H14) = properties which may harm human health or harm the environment. A waste must display one of these hazardous properties (above the thresholds set out in Article 2 of the revised European Waste Catalogue, where appropriate) to be eligible for addition as a hazardous entry to the European Waste Catalogue.

H1 = explosive

H2 = oxidising

H3A = highly flammable

H3B = flammable

H4 = irritant

H5 = harmful

H6 = toxic

H7 = carcinogenic

H8 = corrosive

H9 = infectious

H10 = teratogenic

H11 = mutagenic

H12 = substances and preparations which release toxic or very toxic gases in contact with water, air or an acid

H13 = substances and preparations capable by any means, after disposal, of yielding another substance e.g. a leachate which possesses any of the characteristics listed above.

H14 = ecotoxic.

Further copies of this paper are available from:
Defra Publications
Admail 6000
London
SW1A 2XX

Tel: 08459 556000
Fax: 020 8957 5012
Email: defra@iforcegroup.com

Product code 01EP0010

Published 29 March 2001
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