Managing hazardous waste: environmental regulation and practical tips for EHS managers

If a business handles hazardous substances, it will inevitably also handle hazardous waste. Even small quantities of hazardous waste – a couple of batteries or a single tube of adhesive, for example – must be managed within strict legal requirements. Waste regulation can be complex and the consequences of non-compliance serious.

With major changes in legal requirements, such as digital waste tracking, anticipated in the next year or so and increased regulatory scrutiny, it is essential that compliance is embedded into everyday business activities. 

Emma Tattersdill: "Hazardous waste management is governed by a stringent and evolving legal framework that places significant responsibilities on EHS managers."

Understanding hazardous waste

Correctly identifying whether a waste stream is hazardous is the foundation of environmental compliance. Misclassification remains one of the most common regulatory compliance failures.

From a legal perspective, waste is hazardous if it poses a risk to human health or the environment because of its properties or the substances it contains. Hazardous properties include toxicity, flammability, corrosivity and reactivity.

Typical examples of hazardous waste include chemicals (such as brake fluid, paint thinners, lubricants and varnishes), non-edible oils, pesticides, batteries, some electrical equipment (including items like fridges that contain ozone-depleting substances) and asbestos. 

Some hazardous waste may seem obvious but others are possibly less so. In one recent case, we supported a business facing enforcement action after waste oil had been correctly identified as hazardous but rags contaminated with the oil had not. In another, an employee had disposed of an empty tube of hydrocarbon-based mastic in a bin intended for domestic waste. 

The waste duty of care

Legislation imposes a legal duty of care on anyone who produces, holds, stores, transports or receives any type of waste.
 
This duty requires every business to take reasonable steps to ensure that waste:

• Does not escape – meaning it is stored, transported and disposed of safely and securely 
• Is transported only by a properly licensed carrier
• Reaches an appropriately authorised disposal or recovery facility, and
• Is accompanied by appropriate documentation, including, among other things, an accurate narrative description and waste code.

Businesses must also ensure they maintain accurate records, retain them for specified periods and make them available to the relevant regulator on demand. 

While businesses must ensure that they handle their waste in accordance with environmental laws, the duty of care also means taking reasonable steps to ensure that third parties receiving, holding or disposing of the waste are compliant. Importantly, it isn’t possible to contract out of the duty of care responsibilities.

If a third party receives an organisation’s waste and disposes of it unlawfully, it will not be a defence – if proper checks and procedures are absent – to say that, contractually, compliance was someone else’s responsibility. It follows that some essential due diligence checks are required when arranging for a waste contractor, for example, to remove and dispose of waste. 

While the waste duty of care applies to both hazardous and non-hazardous waste, a failure to accurately identify waste as hazardous will significantly impact on the ability to comply with the duty. Misclassification will lead to documentation that doesn’t carry an accurate description and/or waste code, appropriate safeguards may not be in place for storage or transport of the waste, and the material may be taken to a facility that is not authorised to receive it. 

If waste is misclassified, the material may be taken to a facility that is not authorised to receive it. Photograph: iStock

Failing to comply with these legal obligations inevitably exposes the business to enforcement action, usually in the form of civil or criminal penalties. Regulators have other wide-ranging powers, including the power to confiscate vehicles or equipment that are believed to have been used in the commission of a waste offence, or to issue a site closure notice. 

Importantly, this isn’t just a business level issue. For many waste offences that occur in a business setting, individuals may face personal criminal liability – particularly if they have a degree of management responsibility for any operations or events that give rise to an incident or breach of the law. In the example of the mastic tube, above, we were contacted because the local authority regulator had issued a fixed penalty notice to an individual employee. 

In the event of a prosecution, courts have shown themselves to be very willing to impose heavy fines (and, in the most serious cases, terms of imprisonment) for waste offences, as well as ancillary orders, such as director disqualification orders. For many, the court order with one of the greatest impacts is a financial confiscation order under the Proceeds of Crime Act. 

Storage and handling requirements

Hazardous waste needs to be stored safely and securely to prevent escapes, contamination, chemical reactions and fires. This is likely to involve:

• Storing waste in suitable, clearly labelled containers
• Preventing leaks through proper containment and bunding
• Segregating incompatible wastes, and
• Using impermeable surfaces and appropriate drainage controls.

Prior to transport, waste must be packaged safely, labelled correctly and accompanied by appropriate documentation. Records of all movements must be retained.
Poor storage or transport practices can result in prosecution or other regulatory enforcement action, civil claims associated with environmental damage and/or costly clean‑up operations.

Hazardous waste consignment notes 

The duty of care requires waste movements to be accompanied by appropriate documentation. For hazardous waste, this means a hazardous waste consignment note. 

The requirement applies whether waste is leaving the premises with a licensed carrier, moving between two company sites or being deposited on site.

The content of a hazardous waste consignment note is prescribed by law and will not necessarily be the same as a waste transfer note that would accompany non-hazardous waste. Those responsible for completing the documentation need to recognise the difference and understand the requirements.

For example:

• A specific consignment code must be generated for every movement of hazardous waste, although non-hazardous waste transfer notes do not require this type of unique movement identifier
• Hazardous waste consignment notes require a statement of the waste’s physical form (solid, liquid, gas, sludge), although non-hazardous waste transfer notes only require a description and details of how the waste is contained
• Consignment notes must identify the hazardous properties of the waste.

Importantly, waste documentation must include the correct European Waste Catalogue, or EWC, code for the material. All types of waste, hazardous and non-hazardous, must be classified using these six-digit codes, with codes grouped by waste source and activity.

Recent compliance breaches include use of unauthorised carriers. Photograph: iStock

Accurate classification requires a good understanding of the coding system and of hazardous properties – and chemical analysis may be required to determine whether the waste has a hazardous property before a code can be correctly applied. Technical guidance (WM3: Waste Classification Technical Guidance) provides an authoritative methodology for choosing the right code and determining hazard status.

The hazardous waste consignment note is intended to provide an audit trail, ensuring the waste is tracked from producer to final disposal. Facilities receiving hazardous waste must also provide consignee returns, which help close the loop on the waste’s lifecycle and must be retained alongside consignment notes. 

Digital waste tracking

One of the most anticipated regulatory reforms in this field is the introduction of digital waste tracking, which is intended to replace paper-based transfer and consignment documentation.

The new system aims to improve transparency, accuracy and real‑time monitoring of waste movements across the waste chain and has been supported by many as a valuable tool for the prevention of waste crime. It will, though, require businesses to adopt new digital systems, update internal procedures and train staff. 

Although the timelines are subject to change, the Government’s current proposal is for the scheme to be mandatory for waste-receiving sites by October 2026, with expansion to other operators in 2027.  

Best practice strategies for EHS managers

We are currently seeing a particular focus from regulators on monitoring waste classification and the movement of hazardous waste.
 
Some of the most common – and most serious – compliance breaches we are seeing include:

• Misclassifying hazardous waste as non‑hazardous
• Missing consignment notes, inaccurate descriptions of waste or incorrect EWC codes
• Poor storage practices resulting in contamination or fire risk, and
• The use of unauthorised carriers, or failure to verify that a waste carrier holds the appropriate registration. 

How, then, can EHS managers manage the risks associated with hazardous waste? Best practice strategies are likely to include:

1. Conducting a full hazardous waste review and updating it annually

An annual review should allow a business to audit its waste streams (checking its approach to waste classification and seeking external technical support if necessary), update due diligence checks of waste carriers and any other organisations or individuals involved in the waste management chain, appraise waste documentation and assess storage conditions. This should help the business to quickly identify and resolve likely compliance risks.


2. Strengthening supplier and contractor controls

Carry out due diligence checks to ensure all carriers, consignees and waste facilities are properly authorised and, crucially, keep a record of the checks that have been made. Make use of the regulators’ publicly accessible online registers of carrier licenses, environmental permits, exemptions and enforcement action. Ensure contracts include clear compliance obligations and appropriate remedies in the event of non-compliance. Ensure the annual waste review allows for updating checks on supplier and contractor compliance and that any concerns are actively followed up.

3. Maintaining robust records

Retain evidence of how waste has been classified and why a particular code has been allocated. Retain copies of carrier licences, consignment notes, consignee returns and internal audit documentation. Digital tracking is likely to improve record-keeping but internal controls remain essential.

4. Preparing for digital tracking

Begin transitioning to digital data capture and waste tracking systems ahead of digital tracking becoming mandatory. This may involve updating internal software, reviewing workflows and training staff. 

5. Training staff on hazardous waste procedures 
Build hazardous waste awareness into induction programmes and regular update cycles. 

Of course, not everyone needs the same depth of knowledge but everyone that handles waste within the business should understand:

• Hazardous properties and site/role-specific waste streams
• Safe handling practices 
• Rules for storage and/or disposal 
• Emergency procedures for spills, and
• Who to contact if something goes wrong. 

Relevant staff will need to understand how to complete and file waste consignment documentation, maintain digital records, check carrier licences and undertake other due diligence checks.

Supervisors and managers, in particular, are likely to need more detail on duty of care responsibilities, internal audits and inspections and management of contractors and carriers.

We generally find that compliance with internal procedures, and therefore regulatory requirements, increases when the reasons for the rules have been explained. It can be helpful to explain why the distinction between hazardous and non-hazardous waste matters as well as the consequences of getting it wrong – such as when a simple mistake over waste storage and segregation led to a fire and likely contamination risk.
 
Raising awareness doesn’t all have to be about the risks and sanctions, though. Published survey results have demonstrated that staff often value an organisation’s commitment to environmental responsibility in its own right and this can be an important factor in staff retention or recruitment. This has been demonstrated across all age groups but appears to be particularly prevalent in those aged 20–29 (see, for example, the European Investment Bank Group climate survey). 

Conclusion

Hazardous waste management is governed by a stringent and evolving legal framework that places significant responsibilities on EHS managers. This article has explored the issues from an environmental perspective but, inevitably, there will also be health and safety implications if hazardous waste is not managed correctly. 

From classification through to storage, transport and final disposal, every stage requires diligence, accurate documentation and robust internal controls. With expected reforms and increased regulatory scrutiny, the stakes for compliance have never been higher.

By understanding the legal requirements, staying informed about regulatory changes, and implementing practical management systems, EHS managers can protect their organisations from risk while contributing to safer workplaces and a healthier environment.

Emma Tattersdill is an environmental partner at Bexley Beaumont solicitors, specialising in environmental law. Contact her at:
bexleybeamont.com
[email protected]