ChemRegs Newsletter – July 2018

New Environment Agency Definition of Waste Service

In England, if you produce a product from waste, you can once again ask the Environment Agency for a formal opinion on the waste status of your material i.e. determine if it is no longer considered as waste.

The Environment Agency used to have a Definition of Waste Panel, but this was closed in March 2017 due to staff shortages. The panel played an important role in advising businesses on creating new products out of their waste, as well as providing advice on the EU End of Waste Regulations.

When the Panel was shut, users were directed to a webpage containing guidance on determining the waste status of materials and to the online “IsItWaste” tool.

The IsItWaste tool allows businesses to self-assess to get an indicative outcome about whether their waste-derived material can be classed as non-waste and so be outside of waste controls. There is no charge to do a self-assessment.

The Environment Agency have now enabled the tool to be used to submit a formal application for a Definition of Waste assessment i.e. obtain their opinion on the product. However, there is a charge to use this service.

Users pay an interim charge of £750 when they submit a request for a definition of waste opinion. Once payment is received the submission will be checked to see if it has the right information and is in the correct format. The Environment Agency will then provide a cost estimate to do the full assessment; this will be based on £125 per hour plus VAT.

Once the charging agreement has been signed, the Environment Agency will do the assessment and give their opinion on the waste status of the material. They may need to ask for more information to complete the assessment.

Please note that when using the ‘IsitWaste’ tool, submission to the Environment Agency is for businesses in England only. Natural Resources Wales do not have an end of waste panel and discussions regarding the status of the waste should be with the local Natural Resources Wales Officer. Scotland also has their own system.

The tool is available from 7am to 7pm Monday to Friday. It is based on the ‘by-products’ (Article 5) and ‘end of waste’ (Article 6) parts of the Waste Framework Directive (WFD 2008/98/EC).

Unsubmitted assessments are kept for 1 year from the day information is entered and any information held in the tool, whether submitted or not, may be subject to Freedom of Information requests. Submitted data to the Environment Agency is held for at least 6 years.

The tool has 2 separate tests and the user needs to choose which one is right for their situation. The first of these is for a by-product assessment, and the second is for an end of waste assessment. To decide which test to use, users are advised to see Defra’s legal definition of waste guidance.

The by-product tool has the following sections:

Step 1: start report (company details)

Step 2: production and composition (of your material)

Step 3: materials processing

Step 4: market assessment (for the use of your intended product)

Step 5: technical product requirements

Step 6: Environmental and Impact Assessment

Step 7: making a submission

The end of waste tool has the following sections:

Step 1: start report (company details)

Step 2: description and source (of your material inputs and the processing of these)

Step 3: market assessment (for the use of your intended product)

Step 4: technical product requirements

Step 5: Environmental and Human Health Impact Assessment

Step 6: making a submission

To use the tool, users can either register within the tool and have a username and password, or use the tool as a guest user (but the information will not be saved).

Once all the mandatory questions have been complete, the tool will provide an indicative outcome and allows users to print a PDF summary of the questionnaire. The indicative outcome is based on the information put into the tool, but will not be validated by the Environment Agency.

If a request for a definition of waste opinion is submitted, the Environment Agency will give the opinion in a letter via an email. The letter will state whether the material meets either the end of waste test or is a by-product and will explain why.

If the material is not waste, although it will now be outside of waste controls, it will then need to comply with all relevant and applicable product legislation, including the registration, evaluation, authorisation and restriction of chemicals (REACH) regulations or Ground Water Authorisations. It is the responsibility of the business to check what relevant legislation applies.

Other News

Hazardous Waste Classification

A new EU Regulation may impact how businesses classify their wastes.

EU Regulation 2017/997 of 8 June 2017 amending Annex III to Directive 2008/98/EC of the European Parliament and of the Council as regards the hazardous property HP 14 ‘Ecotoxic’ comes into force this month.

When the Hazardous Waste Regulations were amended in 2015, in order to align the classification criteria more closely with that of the CLP Regulation, the criteria for hazardous property HP14, ecotoxic, was left out.

EU Regulation 1357/2014, which inserted the revised classification rules into Annex III of the revised Waste Framework Directive (WFD) had the following for ecotoxic:

“waste which presents or may present immediate or delayed risks for one or more sectors of the environment”, but it did not give any indication as to what chemical classifications would be attributable to this hazard property.

Further guidance was given in the UK in the joint agency technical guidance document WM3 that told waste holders to use the pre-2015 rules (R-phrases) and the equivalent updated rules (CLP/GHS H-codes and M-factors) for hazardous to the aquatic environment and hazardous to the ozone layer.

The EC then conducted a consultation to help decide the best way to determine whether wastes that require classification based on their components fall into the ecotoxic category or not. The conclusions drawn from this consultation have led to the updated classification provisions being published as a regulation (EU 2017/997), which applies from 5 July 2018.

This new regulation includes criteria for ozone depleting substances and the summation equations for acute and chronic aquatic hazards, along with cut-off values as previously outlined in the 2015 edition of WM3, but does not include “M-factors” for calculations involving aquatic acute hazard category 1 (H400) and aquatic chronic category 1 (H410).

M-factors are multiplication factors assigned to certain substances by CLP to amplify their potency as an aquatic pollutant when calculating whether a mixture is hazardous.

This may well be revised at a later date, as per EU 2017/997 regulation 7, but for the time being it looks like many wastes, such as those containing heavy metals that are currently classified as hazardous via HP14 due to the use of M-factors, may no longer be classified in this way from 5 July 2018 onwards.

In terms of how this affects England and Wales with regard to Brexit and EU Membership, the Hazardous Waste (England and Wales) (Amendment) Regulations 2015 made direct reference to Annex III of the revised WFD, so this regulation will apply automatically from 5 July 2018.

HSE EU Exit Notice

The HSE has published a Notice on their website, giving an update to chemical businesses on the implementation period for Brexit and the UK’s aims for its future partnership with the EU.

The Notice is intended to provide information with regard to developments in the EU withdrawal negotiations for businesses affected by chemicals regulatory processes.  It explains the terms of the political agreement reached between UK negotiators and EU negotiators in March 2018. The terms of that agreement are not yet legally binding and remain subject to signature and ratification/conclusion between the parties.

Subject to conclusion and ratification of the draft Withdrawal Agreement, the implementation period will start on 30 March 2019 and last until 31 December 2020.

During the implementation period the UK will no longer be a Member State of the EU, but market access will continue on current terms. This means that UK-EU trade will be able to continue on current terms until the end of 2020.

Subject to finalisation of the Withdrawal Agreement, the following will apply during implementation period:

• Registrations, approvals, authorisations and classifications in place before March 2019 will continue to be valid in the same way that they are now.
• REACH will continue to apply to the UK.
• The process for registering new chemicals under REACH will remain the same as it is now, which will require UK companies to register with the European Chemicals Agency (ECHA).
• The UK will continue to recognise all new registrations, approvals, authorisations and classifications granted by the EU.
• It is expected that HSE will not be able to act as a ‘leading authority’ to conduct certain assessments under the Plant Protection Products, Biocides and REACH regulations. HSE will work with affected businesses to minimise disruption and delay to their ongoing assessments.
• UK-based businesses will have the same rights as EU-based businesses to have their cases accepted and processed by ‘leading authorities’ based in other EU member states.
• HSE will continue to process product applications under the Biocidal and Plant Protection Products Regulation for the UK market under the national authorisation route. Any applications will be considered against the current rules and standards.

The UK expects to secure a comprehensive agreement with the EU on any future relationship. However, the government is continuing to prepare for all scenarios including the scenario in which no mutually satisfactory agreement can be reached.

The European Union (Withdrawal) Act will convert current EU chemicals regulation into domestic law. This means that the requirements established through these regulations will continue to apply in the UK.

The UK is also exploring terms on which it could remain part of ECHA. It has also started work to build a UK chemicals IT system to support the registration of chemicals placed on the UK market to guarantee continuity for businesses whatever the outcome of negotiations.

ChemRegs is going to attend the HSE Chemicals EU Exit Workshop in Liverpool on the 1 August 2018 and will report on this in the August Newsletter.

For more information on anything in this Newsletter, please contact us at info@chemregs.co.uk