Environmental Authorisations (Scotland) Regulations 2018 draft - proposed amendments: consultation

7. Waste Technical Provisions

7.1 Introduction

7.1.1 While successful in reducing harm from waste management activities and facilitating millions of tonnes of resource recovery, decades of evolution has left waste permitting legislation unnecessarily complex both for SEPA and waste managers. There are at least eight separate statutory instruments (and associated amendments) for inclusion in the waste regime in the 2018 regulations; this has been made more complex since leaving the EU.

7.1.2 The current waste regulatory regime can be poorly mapped to risk, can over-regulate low risk activities, and under-regulate higher risk activities. Parts of it have not changed since 1994 and have not kept pace with the new waste and resource economy where value recovery has priority. Also, the waste regulatory regime is not well enough equipped to prevent the infiltration of serious and organised crime into the industry.

7.1.3 The draft Regulations and the proposed types of authorisations required for waste activities, set out in SEPA’s consultation, aim to create “an authorisation regime which protects the environment and communities, prevents waste crime and supports the move to a zero-waste society and a circular economy.” We want a waste permitting framework which can:

• maintain a high level of environmental protection and alignment with the technical standards at EU level
• provide simplified and responsive regulation that is proportionate to risk
• reduce administrative burdens and increase regulatory clarity
• favour the practical application of the waste hierarchy
• prevent waste crime

7.1.4 Transitioning waste management permitting into the 2018 Regulations will have benefits for the waste industry. These include:

• authorising radioactive substance, waste, water, and industrial activities under a single framework
• more flexible permitting approaches, such as entire site permits and corporate permits to suit the needs of operators
• the ability to use standard conditions in permits and registrations to improve regulatory consistency
• a broader ‘Fit and Proper Person’ test, better able to uphold high standards in the industry and to tackle threats from criminal activity
• more effective enforcement tools to better deal with non-compliance, failing sites and illegal deposits of waste
• a more flexible approach to suspension and revocation of authorisations gives SEPA more effective powers to intervene where necessary
• a lighter touch approach to waste collection points supporting innovative means of recovering waste
• a simplified and strengthened approach to waste carriers
• a review of the exempt activities or ‘exemptions’ system to better map to risk, remove administrative burden and apply the ‘Fit and Proper Person’ test where necessary
• a joined-up approach for applying waste (including sewage sludge) to agricultural land for benefit.

7.1.5 Waste activities requiring an authorisation under the draft Regulations are

• the storage, treatment (including sorting), recovery and disposal of waste, including the supervision of such operations and the aftercare of disposal sites
• the collection and transport of waste on a professional basis
• acting as a dealer or broker in or on land, or in the vicinity of land when connected with a waste management activity taking place on land, with:
  • “waste” defined in accordance with the Waste Framework Directive (Directive 2008/98/EC) (WFD) as set out in Section 75 of the Environmental Protection Act 1990 (EPA 1990),
  • “Collection,” “recovery,” “disposal,” “broker” and “dealer” defined in accordance with the WFD.

7.1.6 This broad definition captures the current range of regulated waste activities, including those specified in Articles 23 and 26 of the WFD and enables integration of relevant waste provisions in the Pollution Prevention Control Regulations 2012 (the PPC regulations), and Environmental Protection Act 1990 (the EPA 1990), the Waste Management Licensing (Scotland) Regulations 2011 (the WML regulations), the Sludge (Use in Agriculture) Regulations 1989, the Landfill (Scotland) Regulations 2003, carriers licensing and broker and dealer’s licensing.

7.1.7 As the proposed definition of “waste management” is broad, in addition to the various exclusions from the definition of ‘waste’ in Article 2 of the WFD, the management of waste carried on in connection with a person’s private dwelling or a place where the person is resident is excluded under the proposed amendment to regulation 3 of the 2018 Regulations. This ensures that, for example, carrying household waste to a civic amenity (CA) site, burning leaves, or burying a dead pet in a garden will not fall within the scope of the 2018 regulations.

7.1.8 Regulation 7 of the 2018 Regulations provides a general prohibition such that a “person must not carry on a regulated activity except in so far as it is authorised… …and carried on in accordance with, and to the extent authorised by, that authorisation”. This is equivalent, in relation to waste, to section 33(1)(a) of EPA 1990 which makes it an offence to “deposit or treat, keep or dispose of waste in or on land” without an authorisation.

7.1.9 The proposed waste activity does not refer to “controlled waste” as defined in Section 75 EPA 1990 and the Controlled Waste Regulations 1992. It is not necessary to refer to this definition for the purpose of waste permitting; however, it is not proposed to repeal the definitions as they are relevant to the carrying out of waste collection functions by local authorities.

Question 25 Do you agree that the regulations adequately capture waste activities?

7.2 Major Changes

7.2.1 The major change identified for waste activities is the activity of applying sewage sludge to land. This activity has been included as a new activity in the technical requirements. Any comments regarding the technical requirements in schedule 18 in the draft Regulations should be addressed in the section 2 where there are questions relating to each new activity.

7.3 Minor Changes

7.3.1 Geographical extent. The draft Regulations limit the geographical scope to maintain a clear boundary between SEPA’s regulatory role and that of Marine Scotland. The draft Regulations maintain an equivalent provision to the existing provision in section 33(1) of EPA 1990 which references “in or on land”, limiting the requirement for an authorisation for waste activities to activities which occur “in or on land, or in the vicinity of land when connected with a waste management activity taking place on land”.

7.3.2 The addition of activities that are “in the vicinity of land when connected to a waste management activity taking place on land” is to ensure that those activities which are partly on land and partly in the marine environment such as ship and offshore de-commissioning facilities can be regulated as a waste management activity under the 2018 Regulations.

Question 26 Do you have any comments on the geographical extent in the draft Regulations?

7.3.3 Technical requirements. The draft Regulations set out a range of technical requirements deriving from EU Directives and from matters of domestic policy in relation to the waste management of specific types of waste. These have their own technical schedules in the draft regulations order to address necessary requirements for environmental regulation and include some aspects of hazardous waste management, the waste management of waste motor vehicles, waste batteries and waste electrical and electronic equipment and dry recyclable waste, the landfilling of waste, and waste to land (sludge). The incineration and co-incineration of liquid and solid waste at a waste incineration or co-incineration plant is both an emissions activity and a waste management activity. The draft Regulations bring these technical requirements together for the first time making it much easier for users to navigate and implement.

7.3.4 Transitional arrangements. Where these activities already need a waste management licence under EPA 1990 the existing licence will automatically become an authorisation under the draft Regulations without the need for licence holders to reapply. People currently operating under exemptions from the requirement to hold a waste management licence under the WML regulations will need to apply for a new authorisation (at registration or permit level) unless a GBR covers their activity, the person in control of the activity will need to apply for a new authorisation before their current exemption expires. We expect this transition will start in 2025 and anticipate simple exemptions will end in 2026.

7.3.5 Waste carriers and brokers registrations will be deemed to be Registrations under the draft Regulations and will keep their existing expiry date. The registered carrier or broker will need to apply for a new authorisation under the draft Regulations before the expiry date, as is the case under the current process, but will be subject to the ‘Fit and Proper Person’ test in the 2018 Regulations.

7.3.6 Requirements applying to all waste management activities are set out in Schedule 11. The draft Regulations align with various requirements in the Waste Framework Directive (Directive 2008/98/EC) (WFD).

Question 27 Do you have any comments on the requirements applying all waste management activities (Schedule 11) in the draft Regulations?

7.3.7 Requirements applying to landfill activities are set out in Schedule 13. The draft Regulations align with the requirements of the Landfill Directive (Directive 1999/31/EC) and reflect existing provisions in the Landfill (Scotland) Regulations 2003.

Question 28 Do you have any comments on the requirements applying to landfill activities (Schedule 13) in the draft Regulations?

7.3.8 Requirements applying to hazardous wastes mixing and treatment of waste oil are set out in Schedule 12. The draft Regulations align with requirements in Articles 17, 18 and 21(1)(c) of the Waste Framework Directive (WFD).

7.3.9 With respect to waste oil, regulation 15 of the WML 2011 and regulation 31 of the PPC Regulations apply different technical standards. The draft Regulations create a single technical standard for waste oil, more closely aligned to the Waste Framework Directive.

Question 29 Do you have any comments on the requirements applying to hazardous waste mixing and treatment of waste oil (Schedule 12) in the draft Regulations?

7.3.10 The requirements for management of separately collected recyclable waste and for operating a materials facility are set out in Schedule 14. The draft Regulations bring in existing requirements relating to the management of separately collected recyclable waste . They aim to further Scotland’s ambitions for a circular economy and a zero-waste society by supporting recycling chains and improving the quality of dry recyclable wastes made available for reprocessing.

7.3.11 These provisions are currently in both the PPC Regulations and the WML regulations. There is a change in scope to certain of these requirements relating to compliance with the Materials Recovery Code. These are necessary to implement Extended Producer Responsibility for Packaging (EPR) in Scotland and have been separately consulted upon in relation to EPR. They are not being considered in this consultation.

Question 30 Do you have any comments on the requirements for management of separately collected recyclable waste and for operating a materials facility (Schedule 14) in the draft Regulations?

7.3.12 Requirements on the management of end-of-life vehicles (ELV) (are set out in Schedule 15). The draft Regulations align with Directive 2000/53/EC on end-of-life vehicles as last amended by Directive 2018/849 (ELV Directive). These requirements are currently transposed by the WML regulations.

7.3.13 The draft Regulations require SEPA to only authorise a relevant activity subject to conditions that will achieve the technical storage and treatment requirements as set out in schedule 15 of the draft regulations and which align with f Article 6 and Annex 1 to the ELV Directive.

7.3.14 The draft Regulations maintain the policy of going beyond the requirements of the ELV Directive and apply to ‘waste motor vehicles’ which is broader than ‘ELVs’ as defined in the directive. The broader term ‘waste motor vehicles’ includes, for example, tractors, buses, and motorcycles.

Question 31 Do you have any comments on the requirements for the management of waste motor vehicles (Schedule 15) in the draft Regulations?

7.3.15 Requirements applying to the management of Waste Electrical and Electronic Equipment (WEEE) are set out in Schedule 16. The draft Regulations require that SEPA only authorise a relevant activity subject to conditions that will achieve the technical storage and treatment requirements of Articles 8(2), 8(3), 8(5) and 9, and Annexes VII and VIII of the Waste Electrical and Electronic Equipment Directive (2012/19) (the WEEE Directive). This reflects existing provision in the WML regulations.

7.3.16 With respect to activities which are storage only or where treatment is restricted to the preparation for reuse (i.e. repair and refurbishment), the draft Regulations continue to apply the discretion in Article 8.2 of the WEEE Directive and so, for such activities, the requirements to remove fluids and components do not apply.

Question 32 Do you have any comments on the requirements applying to the management of WEEE (Schedule 16) in the draft Regulations?

7.3.17 Storage and treatment of batteries (Batteries Directive). Requirements applying to the management of waste batteries are set out in Schedule 17. The draft Regulations align with the technical storage and treatment standards set Batteries and Accumulators and Waste Batteries and Accumulators Directive (2006/66) (“the Batteries Directive”), which are currently implemented by existing provision in the WML 2011.

7.3.18 The draft Regulations require that SEPA only authorise a relevant activity subject to conditions that will achieve the technical storage and treatment requirements of Article 12.2 and Annex III Part A of the Batteries Directive.

Question 33 Do you have any comments on the requirements applying to the management of waste batteries (Schedule 17) in the draft Regulations?

7.3.19 General Binding Rules are used for low-risk activities, where it is judged that the activity can be carried out without the need for direct authorisation from SEPA, provided that the associated rules are applied.

7.3.20 We are proposing four GBRs for in relation to specific waste management activities:

GBR–1 - temporary storage of waste at the place of production

GBR–2 - temporary storage of waste at a place controlled by the producer

GBR–3 - temporary storage and treatment of waste at a collection point

GBR–4 - the deposit of non-hazardous dredging sludges or sediment on or alongside the bank or towpath of inland waters from which they have been dredged.

7.3.21 It should be as easy as possible to get waste into the legitimate waste management system. New circular approaches to resource management means new forms of waste collection are emerging all the time. Creating GBRs for these activities supports emerging innovative methods of collecting waste and removes any administrative issues associated with getting recyclable and other specialist materials into the formal waste management system. The GBRs will replace certain existing registrable exemptions under the WML 2011 and result in hundreds fewer activities needing to be registered with SEPA.

7.3.22 GBR 1 – Temporary storage of waste, other than waste liquid digestate, at the place of production - authorises the temporary storage of waste at the place of production and basic treatment of that waste at that place. This will allow:

• temporary secure storage of waste at the place of production which occurs at almost every business premises in Scotland
• a range of basic treatment operations to facilitate storage and transport

7.3.23 Treatment activities make waste easier to store and transport for recovery or disposal somewhere else are also authorised, for example:

• compacting paper and cans to facilitate less frequent collections
• de-watering food waste prior to collection of the solid fraction
• separating recyclables into separate storage containers
• shredding confidential paper
• crushing oil filters or aerosol cans.

7.3.24 GBR 2 – Temporary storage of waste at a place owned or occupied by the producer - authorises the temporary storage and basic treatment of waste at another place owned or occupied by the person who produced that waste. This will allow:

• waste to be brought back to the producer’s premises for temporary storage prior to collection where it is produced at a remote place
• a range of basic treatment operations to facilitate storage and transport.

7.3.25 Examples include, but not limited to -

• healthcare waste produced by medical practitioners or vets during home visits and returned to their surgery or practice
• a builder/landscaper/tradesperson who generates waste in the course of trade or business and return it to a storage yard to place in designated skips
• roadside recovery companies who return car tyres, oil, car parts or batteries to their central base for placing in designated containers
• retailers who back-haul cardboard and other packaging waste from customers to a central facility for bulking prior to collection
• a tree surgeon produces brash and trimmings and brings them back to their yard for temporary storage
• a local authority takes used fluorescent tubes removed from schools and other buildings back to a central point for collection.

7.3.26 GBR 3 – Temporary storage of waste at a collection point - authorised the temporary storage and treatment of waste at a collection point. “Collection point” means a place which is used for the collection of waste where the person does not receive payment for collecting the waste by the waste producer or collect waste as its main business activity. This will allow:

• operation of a collection point for wastes such as batteries, clothing, or glass
• carrying out a range of basic treatment operations to facilitate storage and transport. See above discussion in relation to GBR 1 for examples of basic treatment options.

7.3.27 Examples include, but not limited to:

• community collection points or bring banks at churches, schools, car parks and supermarkets
• recycling boxes in offices for staff to deposit household batteries
• out of date medicines returned to pharmacies
• operating a needle exchange
• receiving wastes from ships at a collection point provided within a harbour
• take back schemes in shops for consumer goods such as electrical items
• operating a collection point for plasterboard off-cuts at a DIY store
• operating a collection point for cardboard at a wholesaler
• auction marts providing space to deposit agricultural plastics

7.3.28 GBR 4 –The deposit of non-hazardous dredging sludges or sediment on or alongside the back or towpath of inland waters from which they have been dredged - allows the non-hazardous dredged sludge or sediment from an inland water to be placed in the immediate vicinity of the bank or towpath provided that it does not lead to the heightening of the bank. This is a lower risk activity that can be appropriately addressed by means of a GBR.

Question 34 Do you have any comments on draft GBRs 1 to 4?

7.3.29 Other amendments. We are also taking the opportunity to make minor amendments in relation to the waste activities arrangements, and these are set out in Annex D. The 2018 Regulations will enable SEPA to continue to work with operators of regulated activities to protect, and improve, the environment in a similar way to now. The activities and technical requirements are largely unchanged though there will be some differences in detail.

Question 35 Do you have any comments on the minor amendments relating to waste activities as set out in Annex D?

7.4 Legislative changes being made

7.4.1 The draft Regulations consolidate parts of: .

• sections 33 to 44 (except for S.34), 59, 64, 65, 66, 71, 73, 74, 78 of the Environmental Protection Act 1990 (EPA 1990)
• The Waste Management Licensing (Scotland) Regulations 2011
• Section 5 of Schedule 1 to the Pollution Prevention & Control (Scotland) Regulations 2012 (PPC 2012)
• Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991
• Sludge (Use in Agriculture) Regulations 1989
• Special Waste Regulations 1996
• End-of-Life Vehicles (Storage and Treatment) (Scotland) Regulations 2003
• Landfill (Scotland) Regulations 2003

7.4.2 The Waste Management Licensing (Scotland) Regulations 2011, the Landfill (Scotland) Regulations 2003, and the End of Life Vehicles (Storage and Treatment) (Scotland) Regulations 2003 will be repealed and replaced by schedules 11-17 of the 2018 Regulations once amended. The Sludge (Use in Agriculture) Regulations 1989 will be repealed for Scotland and replaced by schedule 18. The Pollution Prevention and Control (Scotland) Regulations 2012 will also be repealed and replaced by the combined effect of the Industrial Emissions activities schedules, the other emission activities schedules and the waste management technical schedules. In doing this the draft Regulations align all or parts of the following European Directives in line with our policy to maintain alignment, where possible, with EU law

7.4.3 Continued EU alignment has been done in such a way that prescriptive requirements are applied only where necessary under the various Directives , thereby enhancing flexibility within the regime, and enabling effective risk-based regulation.

7.4.4 Some existing technical standards go beyond EU requirements, and these too will be carried over. For example, compliance with the MRF Code of Practice which forms part of the requirements addressed in schedule 19, and the upcoming ban on landfilling Biodegradable Municipal Waste.

7.4.5 Provisions relied upon by local authorities and regulators other than SEPA will remain in place to ensure continuity of enforcement. For example, local authorities use Section 33 of the EPA 1990 to tackle fly-tipping and as such these provisions will be retained.

7.4.6 For clarity, the Duty of Care obligations (section 34 of the EPA 1990) and the consignment note procedures in the Special Waste Regulations 1996 are not included in these reforms as they do not relate directly to the granting of authorisations. Amendments to these systems will be consulted on as part of Digital Waste Tracking.

7.4.7 Lastly, nothing in this consultation will affect the Extended Producer Responsibility schemes (packaging, WEEE, batteries and ELVs) or the Trans Frontier Shipment (TFS) regime.