When the Hazardous Waste (known as Special Waste in Scotland) Regulations were amended in 2015, in order to align the classification criteria more closely with that of the EU Classification, Labelling and Packaging (CLP) Regulation EC No. 1272/2008 the criteria for hazardous property HP14, ecotoxic, was left out.
If you’re not aware, CLP is an implementation of the classification and labelling elements of the United Nations Globally Harmonised System of Classification and Labelling of Chemicals (GHS) with a few provisions excluded and a few EU-specific provisions added in for good measure. It’s supposed to harmonise the classification of chemicals worldwide, which should (in theory) help facilitate international trade.
“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 joint agency technical guidance document WM3 which instructs waste holders to use the pre-2015 rules (R-phrases) and the equivalent updated rules (CLP/GHS H-codes and M-factors) for the hazards of hazardous to the aquatic environment and hazardous to the ozone layer.
The European Commission 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: EU 2017/997 as a regulation, which will apply from 5th July 2018.
This 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 what is more interesting, is what it does not include.
For calculations involving aquatic acute hazard category 1 (H400) and aquatic chronic category 1 (H410), the new criteria does not include “M-factors”.
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 5th July 2018 onwards.
In terms of how this affects us in England and Wales, regardless of our 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 5th July 2018.
For further information regarding the regulation of waste and the classification of hazardous wastes, you may be interested in our online course: