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2.0 THE EXISTING SYSTEM

2.1 Background to this section

This section sets out the background to the current regulatory system.

Once a material is determined to be waste (see section 2.2), the current system adopts a tiered approach to regulation that is intended to reflect the comparative risks associated with waste management activities as set out in Figure 1 below.

Figure 1 The current tiered approach to regulating waste management activities

2.2 What is Waste?

Whether a material or substance is "waste" is determined by European Community law and is ultimately a matter for the courts to decide. The Waste Framework Directive defines waste as "any substance or object in the categories set out in Annex I of the Directive which the holder discards or intends or is required to discard". Annex I establishes that a broad range of materials, substances and objects may be regarded as waste, including as a final entry in the Annex "Any materials, substances or products which are not contained in the above categories". The intention of Community law is to ensure that a very broad range of substances should be covered by waste law. This is because anything which is discarded has the potential, one way or another, to become a threat to the environment or human health. It is obvious that once any object is discarded it will no longer be taken care of. Similarly "discard" is to be widely interpreted, and includes sending to a recycling or recovery operation. Making what the holder "intends or is required to discard" ensures that a holder of waste does not escape the need to obey waste legislation merely by stockpiling waste with no intention of recovering or disposing of it properly, under the pretence that it had not yet been discarded. However, even though a consumer object, such as a car, or furniture, may well be purchased in the full knowledge that it will be discarded eventually, while it is being actively used it is unlikely it would fall within the definition of waste.

Scottish Office Environment Department Circular 10/94 was the original source of guidance on the definition of waste but many of the concepts in the Circular on the definition are now out of date and have been superseded by more recent case law. The Scottish Executive has required SEPA to disregard the Circular where this is the case. Instead, SEPA's recently published paper - entitled "Is it Waste: Understanding the definition of waste" - provides more up-to-date information on the complex matter of defining waste and some good examples of objects and substances and the circumstances in which they are not regarded as waste in the first place ( e.g. forestry brash that is not discarded). Copies are available on the SEPA internet site at the following location and the document is recommended reading for those responding to this consultation: http://www.sepa.org.uk/pdf/guidance/waste/is_it_waste.pdf

2.3 Exemptions from Waste Management Licensing for lower risk activities

Exemptions are intended to promote and reward environmentally sound waste recovery and recycling. Exemptions are the lowest tier of regulation.

European requirements

The overall framework for exemptions is established in the Waste Framework Directive and is currently implemented in Scotland through the Waste Management Licensing Regulations 1994.

Article 11 of the Waste Framework Directive allows Member States to provide exemptions from the permitting requirements of Articles 9 and 10 for waste recovery operations, in circumstances where:

• the competent authorities have adopted general rules for each type of activity laying down the types and quantities of waste, and the conditions under which the activity in question may be exempted from the permit requirements; and
• the types or quantities of waste and methods of disposal or recovery are such 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'

Although the exemptions have generally been used for lower risk recovery activities, there is limited scope to exempt disposal activities, but only for establishments or undertakings disposing of their own waste at the place where it is produced.

For activities involving only non-hazardous wastes, Member States are simply obliged to inform the Commission of the general rules adopted under the exemption.

For activities involving hazardous waste, i.e. special waste ¹, Member States must send the adopted general rules to the European Commission no later than three months prior to their coming into force so that the Commission may consult other Members States on whether these general rules can be adopted.

Domestic arrangements

In the Waste Management Licensing Regulations there are three levels of exemptions -

1. Certain exemptions for storage do not need to be registered with SEPA. Table 5.1 of Scottish Office Environment Department ² ( SOED) Circular 10/94 makes it clear that establishments or undertakings do not need to register the type of activities that fall under the terms of paragraphs 36, 37, 40, and 41 of Schedule 3 of the 1994 Regulations: these are, in the main, temporary storage of a wide range of wastes.

2. Exemptions for recovery activities. These exemptions must be registered with SEPA. Regulation 18 of the 1994 Regulations sets out the general obligations for notifying and registering exempt activities. The general requirements are as follows:

• SEPA has a duty to establish and maintain a register of establishments and undertakings carrying on exempt activities involving the recovery or disposal of waste. The register is open to members of the public at SEPA's principal offices during normal working hours. ³
• The public register contains -
• The name and address of the establishment or undertaking ⁴;
• The activity which constitutes the exempt activity; and,
• The place where the activity is carried on.

Regulation 18 makes it an offence to undertake an exempt activity involving the recovery or disposal of waste without being registered with SEPA. Persons guilty of an offence under Regulation 18(1) are liable to a fine on summary conviction not exceeding level 2 (currently £500).

Failure to comply with the 'relevant objectives' or the terms of an exemption mean that the activity requires a waste management licence and an offence is committed under section 33 of the Environment Protection Act. Such offences are subject to maximum fine, in summary proceedings, of £40,000. There are many examples of such activities, such as the case that a mountain biking magazine brought to SEPA's attention involving shells from a scallops processing factory that had been used to build farm tracks. The shells had not been properly cleaned before use resulting in fish parts being left rotting on the surface.

SEPA can also remove exemptions from the Public Register, for example in cases where the operator is not or cannot comply with the terms of the exemption. If SEPA has reasonable grounds to believe that an activity will not comply with the terms of an exemption, SEPA will require that the operator of the activity apply for a waste management licence.

Generally registrations involve the completion of a simple short form, available from SEPA, and the registrations are a one-off requirement, and are free of charge.

3. Exemptions for potentially higher risk activities. These exemptions are for activities that can be carried out in an environmentally sound manner but require a higher level of regulatory scrutiny. These exemptions must be registered annually and most attract an initial registration charge (currently ranging from £58 - £739) with a lower annual renewal fee (currently £58 - £613) should the activity continue beyond 12 months. The charges reflect SEPA's costs incurred in operating the exemptions registration system, including the need to inspect such exempt activities annually.

SEPA can refuse to register these exemption registrations if it has reasonable ground to believe the activity will not comply with an exemption. SEPA can also remove these exemptions from the Public Register. If SEPA has reasonable grounds to believe that an activity will not comply with the terms of an exemption, SEPA will require that the operator of the activity apply for a waste management licence if they cannot demonstrate the activity will be carried out in accordance with the exemption.

The reasons for placing activities into this upper tier of exemption vary. For example, exempt composting activities have been the subject of public concern in the past, owing to issues such as odour, stockpiling and improper use. Land restoration exemptions were considered vulnerable to abuse and it was often difficult to distinguish between genuine recovery activities and illegal landfills. SEPA's 1998 report entitled "Strategic Review of Organic Waste Spread on Land" recommended a tightening up of exemption controls on the use of organic waste as fertilizers and soil conditioners in agriculture to ensure that unsuitable materials were not used and materials, such as sewage sludge and other industrial wastes, which raise potential environmental or human health issues, were dealt with correctly. All of these activities are now in this upper tier of exemption.

Registration of these exemptions must be submitted in writing on forms available from SEPA. Copies of this form can be obtained from your local SEPA office or downloaded from the SEPA website. SEPA Guidance Notes are also available to assist with completion of the form and local SEPA office will provide advice as and when necessary.

Details of the charges for 2006/7 are available on SEPA's website.

http://www.sepa.org.uk/pdf/charging/legal/sched3/waste_mgmt_lic_scheme_2006.pdf

2.4 Waste Management Licensing

Waste management licensing is a higher tier of regulation than exemptions. Licences are generally required for activities that pose a greater risk to the environment and where a greater degree of regulatory supervision and control is required. There are also circumstances where the Waste Framework Directive does not allow for exemptions (see section 2.3 above) and a waste management licence is required as a matter of legal fit rather than comparative environmental risk. The licensing system must therefore accommodate a wide range of activities.

European requirements

The Waste Framework Directive requires that waste recovery and disposal activities must be carried out under a permit, or undertaken in accordance with an explicit exemption from permitting. In Scotland, the permit requirement of the Directive is met through a system of waste management licensing.

Articles 9 and 10 of the Waste Framework Directive state that establishments or undertakings must obtain a permit from the competent authority ( SEPA in Scotland) for waste disposal and recovery operations.

A permit for disposal operations must cover the following -

• the types and quantities of waste;
• the technical requirements;
• the security precautions to be taken;
• the disposal site; and,
• the treatment method.

For recovery operations, the Waste Framework Directive does not stipulate what must be included in a permit but SEPA has developed an approach based on Waste Management Paper 4 that a similar range of matters should be covered in a recovery permit.

The Waste Framework Directive further establishes that permits may be -

• granted for a specified period,
• may be renewable,
• may be subject to conditions and obligations, or,
• if the intended recovery or disposal method is unacceptable in terms of environmental protection, may be refused.

Domestic arrangements

The current legal framework for the waste management licensing regime (the licensing requirements) is set out in the Environmental Protection Act 1990 and the Waste Management Licensing Regulations 1994.

There are basically two types of waste management licence: site licences where the licensable activity occurs at a fixed location, and mobile plant licences where the activity occurs wherever the particular mobile plant is located ( e.g. in contaminated land remediation).

Mobile plant licences are only available for certain waste management activities as set out in Regulation 12 of the Waste Management Licensing Regulations. These activities are -

a) an incinerator which is an exempt incinerator for the purposes of Section 5.1 of Schedule 1 to the 1991 Regulations;

b) plant for-

a. the recovery, by filtration or heat treatment, of waste oil from electrical equipment; or

b. the destruction by dechlorination of waste polychlorinated biphenyls or terphenyls ( PCBs or PCTs);

c) plant for the vitrification of waste;

d) plant for the treatment of clinical waste;

e) plant for the treatment of waste soil;

f) plant for the dewatering of muds, sludges, soils and dredgings;

g) plant for the treatment by lime stabilisation of sludge;

h) plant for the treatment of contaminated material, substances or products for the purpose of remedial action with respect to land or the water environment.

The Scottish Executive and SEPA are keen to ensure that the waste management licensing system is not onerous or disproportionate and wish to explore the potential for improvements. Several improvements have already been made to the system to reduce the cost burdens associated with waste management licensing and these are identified below in section 3.2.

2.5 When Does a Waste Cease to be Waste?

The SEPA 'Is it Waste' paper referred to in section 2.2 above also provides up-to-date information on the considerations made in determining when a waste ceases to be waste.

Protocols which set out detailed technical standards for determining when waste is fully recycled into a new product can play an important part in developing markets for recycled goods and, in appropriate circumstances ( i.e. within the context of the aims of the Waste Framework Directive), can be a consideration in determining when a waste ceases to be waste.

WRAP (the Waste & Resources Action Programme) was established in 2001 to promote sustainable waste management and to create markets for recycled resources. It was set up as a not-for-profit company limited by guarantee by DEFRA, DTI, the Scottish Executive, Wales and Northern Ireland and it has taken the lead in the development of protocols of this type.

Building on the success of its "Quality Protocol for the Production of Aggregates from Inert Waste in Scotland" and the BSIPAS 100 certification system for high quality composts, WRAP, in conjunction with SEPA and industry, is developing further protocols to cover:

• Glass recycling
• Thin film (including agricultural) plastic
• IBA (incinerator bottom ash)
• PFA (pulverised fuel ash)
• Wood
• Digestate from Anaerobic Digestion
• Tyres

It is possible that further protocols will be developed for other materials such as PET plastics (Polyethylene terephthalate), HDPE plastics (High-density polyethylene), paper etc.

SEPA is in liaison with WRAP on the development of the protocols. Each protocol that is being developed will be considered by SEPA on its merits to determine whether compliance with the protocols can be a consideration in the legal determination of when a waste ceases to be waste.

The current revision of the Waste Framework Directive, described at 1.3, is likely to result in the concept of protocols being adopted at a Community level. Compost, aggregates, and - subject to a report on its environmental suitability - the burning of tallow, have been suggested for early work. We hope that work done already in the UK may inform the development of any Community protocols. Where the Community does not set Europe-wide standards, it is likely that it will continue to be open to Member States to develop their own. Subject, then, to avoiding duplication of work at a Community level, it may be possible for us to develop further protocols to apply in Scotland.

Q3. Apart from those already suggested, are there any other waste streams for which protocols could usefully be developed? Please give reasons.

More information on WRAP, its programmes of work, and protocols can be found on WRAP's website at http://www.wrap.org.uk/about_wrap/index.html

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