HAZARDOUS WASTE COMES OF AGE!

Dave Dingle MSc, MRSC, CChem, MCIW, MCIWEM - Environmental Controller, Cannon Hygiene Ltd

In April the long awaited Hazardous Waste (England and Wales) Regulations 2005 and The List of Wastes (England) Regulations 2005 were published, having been laid before Parliament in late March to be implemented ahead of the General Election. The equivalent Regulations for Wales have been delayed but, according to DEFRA, will be identical to those in England, with the systems for both England and Wales hopefully running seamlessly.

The new Regulations introduce to England and Wales what is largely a completely new management regime for hazardous waste implementing the requirements of the EC Hazardous Waste Directive, 91/689/EC. Whilst, for years, we have had references to hazardous waste in associated legislation, finally we have a complete system within the UK with hazardous waste defined in our own domestic legislation. This differs elsewhere in the UK as detailed in the article on the previous page.

Following the usual round of consultation by the Department of the Environment, Food and Rural Affairs (DEFRA) and the Welsh Assembly and responses from the many interested parties including SMDSA, the Regulations introduce further relaxation of the legislative requirements in addition to those originally proposed. These will potentially benefit smaller waste producers such as dental practices, GP’s, and veterinary practices. However they also bring new hazardous wastes, systems and procedures which will result in those receiving hazardous waste for storage or disposal having additional responsibilities and likelihood of increased costs. The revised charging mechanisms also increase the costs of consignment of hazardous wastes, particularly for those collected on Carriers Rounds, as much of the waste in the healthcare sector is. Implementation of the Regulations will takes place in two stages over the three months between 16 April and 16 July 2005.

A summary of Frequently Asked Questions on the Regulations can be found on the SMDSA and DEFRA web sites. Other DEFRA and Environment Agency guidance on specific aspects is detailed below and can be sourced through the SMDSA web site, with further guidance still to be published.

The Changes

The main de-regulatory aspects compared to the previous system are:

- Removal of the need for pre-notification of hazardous wastes to The Environment Agency

- Removal of the requirement to send a Deposit Copy to The Environment Agency confirming receipt of each consignment of waste at the storage and/or disposal site.

- Removal of the requirement to pay The Agency in advance for individual Consignment Codes.

The features of the special waste system retained for hazardous waste, albeit with some changes, are:

- Consignment notes for each collection

- Copies required to be completed at each stage of the waste movement and retained by the Producer, Carrier and Consignee (i.e. those receiving the waste)

- Provision of information on consignments to The Environment Agency (although in a different way to previously, as outlined below)

- Charges for each consignment of hazardous waste collected (although at different rates).

- Procedure for rejection of consignments

- Prohibition from mixing different categories of hazardous waste or with non-hazardous wastes.

The new and additional requirements brought in by the HWR include:

- Changes to the way hazardous waste is defined

- Requirement for producers of hazardous wastes to register premises to The Environment Agency (unless exempt – see below)

- Additional information required in the Consignment Note e.g. Producer Premises Code, Carriage of Dangerous Goods information, SIC (standard Industrial Classification) Code.

- Confirmation of deposit at the receiving site (whether transfer station or final disposal) to be provided to the Producer

- Quarterly returns to The Environment Agency by those receiving wastes (consignees)

- Fixed penalties where offences are committed

Hazardous Waste Definition

From 16th July, hazardous waste is defined specifically by those wastes having an asterisked entry in The List of Wastes Regulations or any other waste which the Secretary of State determines as hazardous. The List itself is a UK adoption of the European Waste Catalogue, EWC.

It is important to avoid confusion and note that although Schedules 1, 2 & 3 to the Regulations list categories of wastes, constituents, and properties of waste which may render them hazardous, they do not need to be referred to in considering whether waste is hazardous. Only the List of Wastes needs to be considered for that purpose and then the only evaluation of whether a waste is hazardous, or not, is dependent upon whether it is an absolute entry (i.e. waste which is always hazardous) or a mirror entry (i.e. dependent upon an evaluation of the waste). The criteria for consideration of mirror entries is then detailed in those Regulations. The main reason for the Schedules is to provide a mechanism if The Secretary of State wishes to determine other waste as hazardous. Schedule 3 may need to be referenced for a list of hazardous properties when completing consignment notes.

New waste types are now classified as hazardous such as fluorescent tubes, TV’s, PC monitors but the main change in relation to healthcare wastes is that all prescription only medicines are no longer automatically hazardous. Only Cytotoxic or Cytostatic medicines meet the criteria. The Environment Agency have produced a document entitled ‘Interpretation of the definition and classification of hazardous waste technical guidance - WM2’ as guidance on the classification of hazardous waste, although we understand that this is to be reviewed by July. The current version is available from the SMDSA web site, as will any consultation on the process.

The potential for clinical waste to be hazardous due to its infectious nature was already included in the Special Waste Regulations and remains a feature of these Regulations. With a change of criteria and interpretation rests the potential for a majority of clinical wastes to become hazardous and the division into hazardous and non-hazardous categories is currently under furious debate with both DEFRA and The Agency.

As a result, publication of the new NHS guidance document ‘The Safe Management of Healthcare Waste’ has been further delayed. In light of these delays, details on which clinical wastes are hazardous will be featured in the next issue of our Newsletter.

Notification of premises

Each individual premises in England and Wales where hazardous waste is to be produced or removed from after 16th July 2005 must be notified to The Agency before that waste is removed, unless exempt from notification. This can be effected by either the Producer, a Holder or a Consignor (i.e. someone who removes, or causes removal) and can be made from 16th April. The Agency intend to be able to accept notification by post (from 16th April), telephone & internet (from 3rd May) and by electronic data transfer or on disk (from 9th June). The charges for each notification are scaled with the intention of discouraging the use of paper notification and to reflect the processing costs of different methods. These have been initially set at £28 (paper), £23 (telephone), and £18 (other electronic formats). In future charges will be set as part of The Agency’s Annual Charging Scheme and in common with all other charges can only be expected to increase. The Agency will issue a code number when a premises is registered (known as a ‘Premises Code’) which will be required on Consignment Notes. The Premises Code is valid for 12 months and hence will need to be renewed annually. Although the Regulations in Wales are not yet in place, The Agency will be able to process and issue Codes for premises in Wales from 16th April.

The format to be used for Premises Notification is still to be specified by The Agency but must be used so there is little scope for variation. As this newsletter went to press and in spite of dialogue between the Agency, SMDSA and other Associations, details of The Agency format are not expected until June. Clearly there may be substantial IT work to be carried to modify waste contractors systems to match the Agency format if bulk registration of Producers Premises is to be carried out before 16th July, and further delays are likely to cause chaos as the deadline approaches.

DEFRA issued ‘Hazardous Waste Regulations Interim Guidance on Premises Notification’ in January. Hard copies can be obtained by telephoning 08459 556000 (Defra Publications) and this can also be found on the SMDSA web site together with the Agency’s Site Premises Registration Guide.

Exemption from premises notification applies if:

- Less than a total 200kg of all hazardous wastes is removed from the premises in any 12 month period with no limit on the number of consignments, and

- Removal is only by a registered or exempt carrier of waste, and

- The premises are included in a list of industry types specified in the Regulations

The main types of premises exempted are shops, offices, dental, veterinary or medical practices, premises listed in Section (a) to (e) of the Environmental Protection Act 1990 or Schedule 1 to The Controlled Waste Regulations 1992 (examples include prisons, residential and nursing homes). For healthcare premises the total of all types of hazardous wastes will include TV/PC monitors, fluorescent tubes and is not restricted to waste arising from the clinical activities. Exemption is only from premises notification - consignment notes will still be required when hazardous waste is removed from the site.

After 16th July 2005, it will be an offence to collect hazardous wastes from premises unless they have been notified or are exempt. Waste Contractors will therefore require proof of registration or some form of assurance that a premises is exempt, unless the producer has asked the contractor to register them. We would expect that most Waste Management Contractors will offer this service to customers but may make an administration charge.

The Agency are required to provide details of existing Premises’ Registration, and in time this will be available on their web site, although not immediately. Fortunately The Agency will carry out these responsibilities through one centralised location at their National Call Centre (08708 502858) in Rotherham, and forms for paper registration are available from them now or can be downloaded from our web site.

Consignment Notes and Charges

Although the requirements for pre-notification and provision of proof of receipt at the waste management site (Deposit Copies) to The Agency no longer apply, consignment notes will still be required when any hazardous waste is removed from 16 July 2005 onwards. The format of the consignment note is similar to the Special Waste Consignment Note, but with added information such as Premises Code (if not exempt), Carriage of Dangerous Goods information and SIC (Standard Industrial Classification) Code for each producer. More information is now required for each type of waste collected and each individual EWC code. The Consignment Note number will no longer be obtained from The Agency but will be generated by the consignor according to an Agency Coding Standard. Producer (and Consignor if different), Carrier, Consignee and possibly a Producer Confirmation copy may be required. There are new procedures where more than one Carrier is involved in the movement (now confusingly referred to as a Schedule of Carriers).

Where multiple collections are carried out and delivered to the same Consignee (previously referred to as Carriers Schedules) these are now referred to as Multiple Collections with considerably different requirements including a summary Consignment Note for the multiple collection and a separate Annex for each Producer which is considerably more detailed than the existing Carriers Schedule. Unlike the previous Carriers Rounds, there is no restriction on the time which can be taken for a multiple collection without delivery to the Consignee, other than reference to delivering ‘without undue delay’.

The charges for each consignment are then raised by invoicing Consignees on the basis of quarterly returns made to the Agency.

Records and Returns

As outlined above, there are a number of new requirements to provide returns and keep records:

- Consignee returns to Producers/Consignors

- Quarterly returns to The Environment Agency by Consignees

- Registers of consignment notes and Consignee returns by Producers/Consignors 

- Registers of waste held at waste management and disposal facilities, in relation to the locations of storage or disposal

When the waste is accepted at the waste management site, the Consignee must send to the Producer either a copy of the Consignment Note confirming receipt, or a summary detailing all loads delivered from that Producer, in either case within one month of the end of each quarter. Unlike formats for Premises Notification or Consignee Quarterly Returns which are specified by the Agency, these are already detailed in a Schedule to the Regulations.

The quarterly returns of consignments made to the Agency are then used to determine the Consignment charges to be paid in each quarter for which an invoice is sent to the Consignee. As with Premises Notification, the charges depend upon the way in which the quarterly return is made – again discouraging the use of paper -.£19 for each single and £10 for each part of a multiple consignment; or if made electronically £10 for each single and £5 for each part of a multiple consignment. Overall these charges represent significant increases. Agency guidance on providing Quarterly Consignee returns and the specified format have still to evolve as they will not be required until 31st October 2005.

The Agency’s Role

The purpose of these changes is to release Agency resources from administrative tasks in order to carry out more inspections of waste producers and consignees. There is a much greater likelihood that Producers, Carriers and Consignees will receive visits from local Agency offices to inspect systems and registers in future.

Offences and Enforcement

As you would expect there are a range of offences under these Regulations such as collecting from non-notified premises, incorrect completion of consignment notes and associated paperwork, failing to notify premises, provide returns, or keep registers. A new concept is introduced into environmental and waste legislation of fixed penalties for most of these offences, in the same way as road traffic offences. The format of these Notices is detailed in the Regulations, and it is to be expected that after an initial period of applying a ‘light touch’, future offences will result in The Agency serving fixed penalty notices on those they believe are in breach. As with any fixed penalty system there remains an option of non-payment and potential for the matter to be referred to a Court if the defendant believes they are innocent. Unlike the use of speed cameras, where the evidence is very much a matter of fact and inevitably conclusive, the question of whether or not a breach of these Regulations has been committed may be very much subject to interpretation in each case, and more likely to be open to challenge.

Cross Border Movements

The previous article outlines certain differences across the UK due to the devolved Governments. To allow for potential differences in what is hazardous waste in different parts of the UK, the Regulations state that anything which is consigned as hazardous waste in one part of the UK remains hazardous waste in any other part of the UK. Subject to certain exceptions (such as pre-notifying to SEPA in advance if moving waste from England to Scotland due to retention of pre-notification in Scotland) consignment notes prepared in one Country are valid in another Country, although there is the potential problem of double charging under the different systems. This is an aspect which merits further consideration once the Agencies issue further guidance and will be dealt with in more detail in a future Newsletter.

Transitional Provisions

As always with Regulatory changes there are provisions for transition such as to waste licences/permits where waste has become hazardous for the first time (‘changed status wastes) to allow sites to accept wastes up to 16 July 2006, or until a new permit is issued.