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1.0 INTRODUCTION
1.1 Scope and purpose of consultation
This consultation paper has been issued jointly by the Scottish Executive and the Scottish Environment Protection Agency (SEPA). It discusses the regulation of waste in Scotland. The Scottish Executive is responsible for all aspects of waste law and regulations in Scotland, other than green taxes, product specifications, and imports and exports of waste into and out of the UK. As environmental regulator, SEPA implements all waste regulations, and provides technical and practical advice contributing to the development of policy and legislation. The first chapter of this paper considers the scope and purpose of this consultation, and the underlying principles and context of European law. The second chapter gives an overview of the current regulatory system, and relates the different levels of regulation to the potential risk of different waste operations. The third chapter discusses a range of possible improvements to the regulatory system.
Feedback from the waste management industry and local authorities indicates that there is much to commend about the Scottish Executive and SEPA's approach to waste management regulation within the UK context. However, it is also evident that the "complexity, costs and bureaucracy" associated with waste management licensing are a common bugbear. In response to the wide range of views, the Scottish Executive and SEPA wish to seek views on the current legislative and regulatory system, with a view to capitalising on the good work already undertaken and to improve the regime and its practical application.
The current regulatory system has been in place for some time now, is well understood by practitioners, and has delivered substantial improvements for the environment and human health. We wish to continue to deliver these improvements, and to enjoy the benefits of continuity - but refine the system to improve the regulated sector's experience. We are not convinced that a complete change in the regulatory system would either deliver any improvement to human health or the environment that cannot be delivered by the existing one, or indeed, would be any simpler or less onerous. Any new system would have to implement the same requirements of Community law as at present. In these circumstances our view is that the design and implementation of an entirely new system would prove more costly and burdensome not only to Government and regulators, but also to the regulated sector, which would have to adjust its processes. Instead, we wish to make improvements to the current system that are proportionate to the potential benefits and that do not detract from Scotland's high standards of protection for human health and the environment. Our understanding is that waste managers would generally welcome this approach.
This consultation is the first step in exploring opportunities and mechanisms to achieve real improvements. On the basis of responses to this consultation, the Scottish Executive will consider the necessity for legislative change and SEPA will consider improvements to the administration and implementation of the legislative and regulatory system. Further development work and consultation will take place as necessary in the follow up to this initial consultation.
The essential building blocks of waste management licensing are enshrined in European legislation, principally the Waste Framework Directive (2006/12/EC). Domestic legislation ( i.e. The Environmental Protection Act 1990 and the Waste Management Licensing Regulations 1994) translates the requirements of European legislation into Scots law.
The legislation on waste was written at a time when Scotland's principal means of dealing with waste was to landfill it. New policies, practices and technologies have emerged in recent years which mean that the legislative controls could perhaps be improved to encourage innovation and ensure that the aims and requirements of the Waste Framework Directive are delivered in their modern context. The Scottish Executive and SEPA wish to simplify the system yet safeguard the high levels of environmental and human health protection.
Views are sought to establish whether the correct balance is being struck in translating and implementing the permitting requirements of the Waste Framework Directive as set out below in Chapter 2. More importantly, views are sought on the simplifications that can be made to the Scottish system of waste management regulation to make improvements that benefit both business and the environment. It is hoped that some simplifications may be easy to deliver in a short timescale while others may require longer term investigation, further development and consultation.
This consultation does not consider waste management activities that must be regulated in accordance with the requirements of the Integrated Pollution Prevention and Control Directive (96/61/EC), called " PPC". These fall within the terms of the Pollution Prevention and Control Act 1999 and the Pollution Prevention and Control (Scotland) Regulations 2000, not waste management licensing, and there are additional requirements. This consultation does not cover these operations, but for further information on PPC, see the SEPA website.
http://www.sepa.org.uk/ppc/index.htm
A Part A PPC permit is considered equivalent to a waste management licence ( WML) under the domestic legislation, an existing simplification that avoids any need for dual permitting for those sites.
The European Commission is currently reviewing the application of PPC.
1.2 Underpinning objectives
The main driver of waste policy in Europe and Scotland is the requirement to ensure that waste does not cause harm to human health or the environment. This requirement is explicit in Article 4 of the Waste Framework Directive which requires that:
Member States shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
- without risk to water, air, soil and plants and animals,
- without causing a nuisance through noise or odours,
- without adversely affecting the countryside or places of special interest.
This requirement is replicated in domestic legislation in Schedule 4(4) of the Waste Management Licensing Regulations 1994 as 'relevant objectives'.
SEPA and the Scottish Executive recognise that there has been considerable progress in waste management in Scotland. Those operations that comply with their licences reach high Europe-wide standards. Nevertheless, there are still a significant number of examples of bad practices that contravene the above objectives. These bad practices span a range of recovery, recycling and disposal activities. Very often they are associated with operations that occur entirely outwith the law. For example:
- Fly-tipping blights the landscape, can cause pollution and is expensive to clean up. In one month alone (January 2006), it cost an estimated £262,250 to clear up illegally fly-tipped waste in Scotland.
- There have been several cases of successful prosecution of unlicensed operators who burn waste illegally to save on disposal costs. This can adversely affect local air quality causing problems for neighbours and results in pollution of the environment, for example dioxin emissions.
In such cases, it is not only the protection of environmental and human health that is of concern: businesses that try to comply with the law may be placed at a relative financial disadvantage compared to those that operate illegally.
There are also cases in which exempt (see section 2.3) or licensed (see section 2.4) activities are carried on in a manner that is not compatible with the above objectives:
- The land spreading of organic wastes, for example on agricultural land for agricultural benefit, was in some cases of bad practice associated with water pollution, concerns about human health impacts, and loss of amenity for local communities. This led to the law on exemptions being tightened in 2003.
- Nuisance, in its widest sense, is sometimes associated with waste management including odour, e.g. from spreading undigested sewage sludge on forestry land, dust from rock-crushing operations, or noise from traffic movements. Mechanisms exist within both waste law, and the law pertaining to statutory nuisance, to control such nuisances.
SEPA and the Scottish Executive seek to bring all waste management activities within the scope of a licence or properly registered exemption, and to ensure that authorised licensed activities are properly operated
SEPA licenses and inspects waste management licensed sites to ensure that licence holders maintain high standards of environmental protection. Inspections of licensed operations enable SEPA to identify problems and ensure that the operator takes any necessary remedial action. A written record of SEPA inspections of licensed operations is held by SEPA on a Public Register and allows members of the public to view the inspection reports.
SEPA has a range of enforcement tools at its disposal which it uses in accordance with its published enforcement policy. A copy of SEPA's enforcement policy may be obtained at:
http://www.sepa.org.uk/pdf/policies/5.pdf
Beyond protecting the environment and human health, the Waste Framework Directive also aims to encourage the minimisation and recovery of waste, especially by recycling, the use of recovered materials, and to discourage waste disposal. These aims have been reaffirmed in more recent European legal instruments, such as the Landfill Directive (99/31/EC), which sets ambitious targets for reducing the disposal of biodegradable municipal waste to landfill.
The National Waste Plan for Scotland (2003) sets out the strategy to fulfil these targets and also establishes the direction of SEPA's and the Scottish Executive's policies for sustainable waste management to 2020. Amongst other things, the National Waste Plan seeks to ensure a reduction in landfilling of municipal waste from around 90% to 30% by 2020. Accordingly, there is now a major commitment of funding by the Executive to transform Scotland's record on waste reduction, recycling, composting and other recovery through the Strategic Waste Fund.
New facilities will be required to deliver the National Waste Plan and meet the Landfill Directive diversion targets. This consultation presents an opportunity to identify and address regulatory disincentives and improvements to the waste management licensing system.
1.3 Waste Framework Directive Review
As part of the 6th Environmental Action Programme the European Commission carried out consultations, both general and with national experts, on the Waste Framework Directive, with a view to revising it. Its draft text of a revision was published on 21 December 2005, and has been intensively discussed by the European Council and Parliament since. These discussions still have some way to go, so the final form of the revised Directive is not yet clear, as are the implications for Scotland.
However the general intentions of the Community institutions at least are discernible. The intention is to shift the focus from waste disposal up the so-called "waste hierarchy" to waste recovery and recycling, and waste prevention. The draft Directive is also presented as a deregulatory measure. It would define in one place concepts such as "recovery", which have hitherto been largely defined through European Court of Justice judgments (though without necessarily making "recovered" status easier to attain). It would also repeal the Hazardous Waste Directive (91/689/EEC) and the Waste Oils Directive (75/439/EEC), incorporating such of their provisions as are deemed necessary in the new Waste Framework Directive. It would give a considerable role to comitology in establishing Community-wide standards for recovery processes etc, and could increase the scope and definition of waste plans required from the Member States.
The proposed new arrangements will deliver greater regulatory certainty on what is covered by waste legislation but it is not clear at this stage whether this would result in less control on various economic activities, or more. The Executive and SEPA are both involved in the working group led by the Department for Environment, Food and Rural Affairs (Defra) that is refining the UK negotiating line, whose general focus is to promote the "better regulation" agenda. For further information about the revision of the Directive, please see Defra's consultation paper at:
http://www.defra.gov.uk/corporate/consult/waste-directive/index.htm.
1.4 Better Waste Regulation
The Scottish Executive and SEPA are committed to the principles of better regulation and believe that a regime designed around better regulatory principles should -
- Eliminate outdated or unnecessary provisions in legislation
- Consolidate, streamline or merge regulatory regimes where possible
- Base regulatory permitting, inspection and enforcement on sound risk principles
- Ensure where companies break the law that enforcement can be swift and effective
- Minimise the administrative burdens on companies and regulators wherever possible
- Empower regulators to enforce regulations in a fair, consistent and proportionate manner
- Promote best practice and advice to regulated companies wherever possible
Q1. We are interested in views about the extent to which the proposals in the current consultation address the principles of better regulation noted above.
Q2. If you think further action is warranted with the principles of better regulation in mind, we would be interested in specific proposals for change.
In November 2006, the Scottish Executive published "Strengthening and Streamlining: the way Forward for the Enforcement of Environmental Law in Scotland". This consultation paper sought views on a range of concerns including the lack of operator awareness about environmental laws, the level of fines imposed by courts, the paucity of regulatory enforcement tools and the need for a more consistent approach across environmental enforcement regimes. This consultation is now closed. Those wishing to respond to the consultation were asked to do so by 22 February 2007. A copy of the document can be found on the Executive's website at: http://www.scotland.gov.uk/Publications/2006/11/22152827/0
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