.svg)
Classifying waste can be a real headache, as both the regulatory frameworks have changed in recent years and the approach to be adopted differs according to the objective being pursued. Here's an update on the subject.
When should a site classify its waste?
First of all, a reminder: any producer or holder of waste is responsible for its management and traceability. This responsibility extends to the final disposal or recovery of the waste. The situations in which a site must classify waste are as follows:
- Definition of waste storage rules and determination of the most appropriate treatment method (recovery or disposal). This involves referring to the waste nomenclature or European Waste Catalogue (EWC).
- Identification of the waste transportation rules to be followed when transporting waste to the treatment facility. In this context, the ADR classification applies.
- Assessment of the site's ICPE (Installations Classées pour la Protection de l'Environnement) classification, with regard to headings 4000 of the ICPE nomenclature. This is based on the "quantity likely to be present in the facility", which also includes waste. In this context, the CLP "product" regulations will apply.
The two main difficulties in classifying waste
The first difficulty, even if there have been developments on the subject, is linked to the fact that the legislative texts governing waste and chemicals respectively (REACH and CLP) are not "perfectly" coherent. TheEuropean Union is currently working on possible solutions to the obstacles they represent for thecircular economy.
The second difficulty concerns the regulatory frameworks to be used in France, which have changed in recent years to bring them into line with European regulations.
Today, Decision 2000/532/EC of May 3, 2000 is the basis for finding a suitable treatment route and assigning the EWC code. The latter stipulates that the criteria defined in Annex III of Directive 2008/98/EC are to be applied when assessing the hazardous properties of waste. This means that the classification of hazardous waste must be based on the HP hazardous properties of the waste.
For a waste, which could be assigned codes corresponding to hazardous and non-hazardous waste, the Decision of May 3, 2000 and the Technical Recommendation on the classification of waste (2018/C124/01) provide that a hazardous property may be assessed on the basis of the concentration of hazardous substances in the waste, as indicated in Annex III of Directive 2008/98/EC. Or, unless otherwise stipulated in Regulation (EC) No 440/2008, in compliance with the rules governing animal and human testing.
Assigning the right CED code can be tricky
Assigning the right EWC code, which will determine storage rules and treatment channels, can sometimes be tricky. Let's take the case where, for a given waste, you have to choose between an MD (Hazardous Mirror) or MND (Non-Hazardous Mirror) EWC heading. Once the composition of the waste has been established, based, for example, on the SDSs of the substances making up the mixture (it is possible to use other sources, such as a waste analysis database), one of the following methods must then be applied to determine whether the waste has hazardous properties:
- Calculation to determine whether the threshold values based on the hazard statement codes (which depend individually on the properties HP 4 to HP 15, see Annex 3 of the recommendation) are reached or exceeded by the substances present in the waste in question.
- Test to determine whether or not the waste has hazardous properties
For example, a mixture A containing 10% H315 (causes skin irritation), 30% H412 (harmful to aquatic organisms, causing long-term adverse effects) and 60% water. The waste is not classifiable as HP4 "Irritant - skin irritation and eye damage", as at least 20% of H315 is required for this hazard property. On the other hand, it does fall under the HP14 property "Ecotoxic", as at least 25% of H412 is required to fall under this property. It is therefore a hazardous waste.
An analysis of case law shows that judges penalize the waste producer for assigning the wrong waste code.
Waste classification with regard to ICPE classification
If we now analyze the impact of mixture A on the ICPE classification of the site, we find that, with its hazard statements H315 and H412, and after consulting the ICPE nomenclature set out in articles R. 511-9 to R. 511-12 of the French Environment Code, it cannot be assigned to any ICPE heading.
Waste classification for transport
Finally, is mixture A subject to the ADR, i.e. does it come under class 9: "Environmentally hazardous substances and articles"? Given that hazardous waste is not necessarily subject to ADR...
Some ideas can be found in the following articles:
- Article 2.2.9.1.10.3.1 (definition of class 9)
Substances meeting the criteria for acute 1, chronic 1 or chronic 2 toxicity in accordance with table 2.2.9.1.10.3.1 are considered hazardous to the environment (aquatic environment).
- Article 2.1.3.5.4
If the hazard characteristics of the substance fall within more than one class or group of substances not covered by 2.1.3.5.3 above, it shall be classified in accordance with the same procedure but the relevant class shall be selected according to the hazard predominance table 2.1.3.10.
- Article 2.1.3.5.5
If the substance to be transported is a waste, the composition of which is not exactly known, its assignment to a UN number and packing group in accordance with 2.1.3.5.2 may be based on the shipper's knowledge of the waste, and on all available technical and safety data, such as those required by current safety and environmental legislation. In case of doubt, the highest degree of hazard should be selected.
There is therefore no direct link between property HP14 "Ecotoxic" and class 9 ADR...
Good luck solving the puzzle of waste classification!