On 16 July 2005, the Special Waste Regulations 1996 were repealed and replaced by the Hazardous Waste Regulations 2005. The List of Hazardous Waste Regulations 2005 (LOWR) will also came into force on the same date. These regulations apply in England and Wales.

The HW Regulations require any premises where hazardous waste is produced, except those premises which are "exempt premises", to have been registered with the Environment Agency by 16 July 2005. The EA has stated that less than a third of all small and medium sized businesses are aware of the new rules on hazardous waste.

Aim of the regulations
The two new pieces of legislation are designed to ensure the safe management of hazardous waste by implementing a definition of hazardous waste into domestic legislation (and consequently removing the use of the term "special waste"); requiring producers of hazardous waste to notify their premises; ending the requirement to pre-notify wastes to the EA as currently required under the Special Waste Regulations 1996; providing "cradle-to-grave" documentation for the movement of hazardous waste; and requiring consignees to keep thorough records of hazardous waste and provide the EA with quarterly disposal and recovery information.

What are hazardous wastes?
Hazardous wastes are considered to have one or more properties that are hazardous to health or the environment. The European Commission has drawn up a list of hazardous waste and incorporated this into a revised European Waste Catalogue. This list has been translated into domestic legislation by the LOWR.

"Hazardous waste" is defined in the HW Regulations as any waste listed as hazardous in the LOWR; or any batch of waste determined by the Secretary of State to be hazardous.
 
Most waste defined as "special waste" under the Special Waste Regulations 1996 will (after 16 July) still be covered by the new HW Regulations. However there are certain exceptions. Examples are: agricultural or mines and quarries waste (which are excluded from the HW Regulations until the implementation of new Waste Management Regulations on 1 September 2006) and domestic waste (excluding asbestos). However, some wastes which have not previously been defined as "special waste" will now be classified as "hazardous waste", for example, single use cameras, untreated end-of-life vehicles, dental amalgam, and some discarded electronic and electrical equipment including televisions, computer monitors and some waste wood.

Notification process
Unless premises are "exempt" the EA must be notified of any premises in England or Wales where any quantity of hazardous waste is to be produced or removed from premises after 16 July 2005. Upon receipt of a notification, the EA will issue a registration code unique to those premises (Premises Code). A Premises Code is effective for 12 months from the start date requested by the applicant, which may be up to one month from the date of application. Notification can be made to the EA by the internet, phone, electronically (via a disk or email), or by paper copy. The maximum number of notifications made in any one application is 2000, and costs will vary dependent on the application method chosen (for example notification by e-mail costs £18.00).

The Department for Environment, Food and Rural Affairs has issued guidance which provides that if a single premises is occupied by a number of different organisations which are producing hazardous waste, the parts of the premises occupied by each organisation should be notified individually. This is the case even if the organisations are part of the same group of companies.

The duty to notify premises to the EA is on the hazardous waste producer. The producer will be anyone whose activities produce waste or anyone who carries out the pre-processing, mixing or other operations resulting in a change in the nature or composition of the waste. The producer will normally be regarded as the owner or occupier of a site. However it is possible for a third party, such as a waste management company, to undertake the notification on behalf of the producer.

Exempt premises
It is important to note that under the HW Regulations certain types of businesses may be exempt from the notification requirement. In order to be exempt from the notification requirements of the HW Regulations:

• the premises must fall within the list of exempt premises in the HW Regulations. Examples of such premises include: offices, shops, dental, veterinary or medical practices; and

• the exempt premises listed in the HW Regulations must produce less than 200kg of hazardous waste in any 12 month period. If premises look likely to exceed their 200kg limit, the EA must be notified before this occurs;

• the waste must be collected by a registered waste carrier or an exempt carrier.

If the premises are exempt premises there will be no requirement to notify the EA, although the producer will still be subject to the other provisions in the HW Regulations such as the duty to prepare consignment notes.

Penalties
A breach of the main requirements of the HW Regulations is a criminal offence and a person failing to comply with the HW Regulations will be subject to either fixed penalty or up to £5,000 on summary conviction and an unlimited fine and/or imprisonment for two years on indictment.

Risk of Prosecution
The EA has given a clear indication on its website that after 16 July they will be targeting anyone found to be illegally dumping hazardous waste or deliberately trying to pass off hazardous waste as non-hazardous.

Scotland
The HW Regulations do not apply to Scotland; the pertinent legislation in Scotland remains the Special Waste Regulations 1996 as amended by the Special Waste Amendment (Scotland) Regulations 2004. The Special Waste Regulations 1996 transposed the EC Directive but did not do so entirely. As a result the latter amendments were necessary to fully comply. The 2004 Regulations aligned the definition of “special waste” with that of “hazardous waste” so that both terms have the same meaning. As a result there are some new special wastes such as end-of-life vehicles before they are de-polluted; some waste electrical and electronic equipment; fluorescent tubes; and fridges that contain CFC, HCFC or HFC.

However, not all prescription medicines will be deemed as special waste.

In Scotland, the requirement to notify the Environment Agency does not exist. Producers of hazardous waste in Scotland do not need to register with the Environment Agency even if they export their waste to England or Wales.

Every movement of special waste in Scotland must still be accompanied by a Consignment Note bearing a unique number (code) which can only be purchased from the Scottish Environment Protection Agency (SEPA). This ensures that special wastes in Scotland are responsibly managed from their point of origin until they reach a suitably licensed or exempt facility to be recovered or disposed.

The Scottish Regulations regarding special waste do not apply to domestic waste. Small amounts of special waste generated at a domestic premise and discarded with normal domestic refuse are not subject to the controls of the Scottish Regulations. There is no definition of “domestic” but SEPA suggests it should be interpreted as being only waste from accommodation purely used for living purposes and not commercial gain. Domestic asbestos waste is special waste thus the Scottish Regulations apply. However there is an exception similar to that provided for by the English Regulations where the original producer is also the person who resides at the premises or where the waste producer is acting on behalf of the resident without reward. Therefore a contractor who undertakes work for a householder that generates asbestos waste must comply with the Scottish Regulations.

Domestic special waste aside there is no de minimis rule for small quantities of special waste. Thus if a business deposits a computer screen with otherwise non special waste the entire content is deemed special waste.

The penalties in Scotland mirror those of the HW Regulations.

Christine Lancaster is solicitor and Douglas Taylor is a Partner, in the Safety Health and Environment Department at DLA Piper.