FROM THE SENIOR POLICY EXECUTIVE

DIRECT TEL 020 7591 3209

e-mail: s-corp@esauk.org

4 March 2008

To: Ms Gill Ross Jones, Environment Agency

Cc: Ms Liz Parkes, Environment Agency
Messrs Roy Hathaway & Andy Howarth, Defra
Better Regulation Executive

Dear Gill

Direct Ecotoxicity Testing of Incinerator Bottom Ash/Revisions to Agency Guidance WM2

ESA is concerned that the Environment Agency’s revised position on direct ecotoxicity testing
differs from the approach taken in the rest of the EU and appears to gold plate regulatory
requirements.
The possible outcome of the Agency’s revised position regarding direct testing of IBA is that one
million tonnes of IBA could now be incorrectly classified as hazardous waste. The Agency’s revised
position has huge implications for the public perception of energy from waste facilities, the UK's
Waste Strategy, hazardous waste disposal capacity in the UK and the [proposed] WRAP/Agency
IBA protocol.
ESA’s concerns stem from the Agency’s recently revised interpretation on how the water
accommodated fractions (WAF) used to test incinerator bottom ash (IBA) should be prepared and
how data should be interpreted to assess ecotoxicity. ESA is supported in its view by WRc who
were contracted as expert consultants to assist ESA and our Members to establish the status of
British MSW IBA.
All the European ecotoxicity data that ESA is aware of has been calculated on the basis of the total
mass of waste. If, as in Europe, the test requirements are interpreted in terms of a total mass the
results would indicate that IBA in the UK as in the rest of the EU is non-hazardous and would
present no ecotoxicity risk if re-used in the environment.
ESA is also concerned that the Agency appears now to be suggesting, in its proposed revisions to
its WM2 guidance, that 'direct testing' may not in fact be a valid way of analysing ecotoxicity,
despite the fact that the CHIP Regulations 2002 - which require the classification of dangerous
substances according to their hazards - clearly allow direct testing. The Agency’s proposed
revisions to WM2 are particularly frustrating given that in 2005 the, Agency originally suggested
that ESA’s Members carry out direct testing of UK MSW IBA, an exercise that has cost ESA and our
Members about £100,000.
It is essential that the Agency continues to allow direct ecotoxicity testing for certain types of
waste that cannot be accurately classified and characterised in any other way in order to obtain a
definitive and accurate measure of whether a material is hazardous due to ecotoxicity. One
example would be where the inherent variability of the material – such as in the residues from
municipal waste incinerators- makes inappropriate the method of calculation recommended by the
Agency. Although the Agency now seem to be favouring a purely desk based assessment based on
composition, the reality is that sufficiently accurate and precise techniques are not currently
available to determine mineralogy at the low levels required and that the ecotoxicological impact
of the synergistic/antagonistic effects of complex mixtures cannot be quantified in any other
means other than by direct tests.
ESA’s position on direct testing is supported by research carried out Europe, in particular the recent
UmweltBundesAmt study on the Characterisation of Waste carried out in Germany. This was
completed in conjunction with CEN TC292 and clearly states the importance of direct testing.
Background
Early in 2006, in consultation with the Agency, ESA commissioned the development of a testing
protocol for H14 ecotoxicity, which would be used in a UK wide sampling and testing programme
to provide scientific data to support the case for continued classification of UK MSW IBA as 'non
hazardous'. The protocol was completed in July 2006 and sent to the Agency with an offer to
discuss the detail with the Agency’s science team. The Agency did not consider discussion to be
necessary, and on 2 October 2006 it confirmed that “The Environment Agency Science Group have
reviewed the proposed test methodology and have identified that it is acceptable and complies
with Agency guidance. So we agree that further investigation regarding the ecotoxicity of IBA
should proceed on this basis."
Sampling and testing of IBA from Member’s facilities commenced in early 2007 in accordance with
the above protocol: the final report was completed in September 2007 and circulated to the
Agency. ESA considers that the report provided robust evidence that the Agency should continue
to categorise UK MSW IBA as non-hazardous.
However, at a meeting with the Agency on 4 December 2007, the Agency asserted that the
methodology operators had used to analyse ecotoxicity of IBA was invalid. The Agency also
suggested that 'direct testing' may not in fact be a valid way of analysing ecotoxicity, despite the
fact that, as above stated, ‘direct testing’ was originally the Agency’s suggestion.
Environment Agency Guidance WM2 clearly states WAF should be prepared by adding 0.1 g of
waste to 1000 ml of water with appropriate toxicity tests being conducted on the resulting
solutions. The stated methodology in WM2 is consistent with the CEN1 approach to sample
preparation outlined in BS EN 12457-3. However, at a meeting on 4 December 2007, and following
completion of the extensive testing programme by ESA’s Members based on the above
methodology, the Agency indicated that assessing the toxicity of WAFs on basis of the above
methodology was not valid and that the 0.1g weight of material used to prepare the WAFs should
instead be based on total dissolved solids (TDS) rather than the total mass of waste. The Agency
appears to have based its position on its own interpretation of OECD guidance ‘Series on Testing
and Assessment - Method 23’. However, the Agency’s position does not appear to recognise the
above mentioned CEN standard, nor does it appear to acknowledge that none of the considerable
quantity of existing European studies on IBA classification have adopted the approach now being
advocated by the Agency.
ESA would welcome assurances from the Agency that it does not intend to goldplate European
regulatory requirements and confirmation that it will continue to recognise the status of UK MSW
IBA as non hazardous. ESA would be happy to meet representatives of the Environment Agency to
discuss any of the points arising out of this letter.
Yours sincerely,

Sam Corp
1
CEN, the European Committee for Standardization