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3.0 POTENTIAL CHANGES
This section of the consultation considers changes as they relate to the tiers of regulation set out in Section 2.0.
3.1 Exemptions
The current procedure for making new exemptions and amendments to existing exemptions has been criticised as being inflexible and insufficiently responsive to advances in waste technology and innovation for lower risk recovery activities. It is not uncommon for new lower risk waste management techniques to require a waste management licence because the exemptions law does not cover or anticipate the activity, not because the activity would be unsuitable for an exemption (this was the case e.g. for sites collecting and refurbishing furniture). For activities that are suitable for an exemption from waste management licensing, it then takes time to go through the legislative process to make an exemption and this can create problems for businesses in the intervening period. While SEPA considers individual cases on their merits and will have regard to the Scottish Executive's intentions for prospective changes to exemptions, the strict legal position is that a waste management licence is required until such time as an exemption for the activity has been drafted, consulted on, and approved by the Scottish Parliament. Nor can it be assumed that the exemptions will be approved by the Parliament. Such uncertainty is not helpful, even in situations where SEPA decides not to insist upon waste management licences for activities the Executive intends to lay before Parliament as an exemption.
Since 2003 the Scottish Executive has made significant progress with amendments to the exemptions and amendments are now more frequent and responsive to new activities. However, the procedure can take as long as 2 years if the changes are complex.
Future new exemptions
As the Directive allows competent authorities to make exemptions, SEPA could be given the powers to do this. This would mean that the requirements for legislation, including 12-week consultations and the preparation of regulatory impact assessments (even where the legislation was intended to make less impact) would not apply, and the Parliamentary process would be avoided. While safeguards may be necessary to ensure that the system remained accountable, since essentially the decision would be made by SEPA rather than by Ministers and the Parliament, this could enable the mechanism for amending existing exemptions or producing new ones to be simplified and quickened and would remove any business uncertainty associated with time delays. You may however, prefer to maintain the status quo in which case, all changes would continue to be prone to the delays associated with making legislation. In any event, SEPA would continue to have to consult on proposed changes.
Q4. Would you like to see SEPA take responsibility for drafting and issuing exemptions, or would you prefer to maintain the exemptions in the legislative system? Please provide the grounds for your views and an indication of how any new system would work.
Q5. Are there any activities that you think would be suitable for an exemption that are not currently exempt? You need to provide as much information as possible on the activity and the benefits of covering it with an exemption from licensing as opposed to a waste management licence.
SEPA has the power to refuse or remove exemption registrations from the Public Register. Currently there is no appeal mechanism should SEPA reject a notification for registration or remove a registration from the register. This reflects the fact that exemptions are meant to be a relatively quick route to carrying out worthwhile waste management activities that should be relatively straightforward to control. If an appeal mechanism is introduced, the exemption system would more closely resemble the licensing system. In particular an appeal system might have to be matched by a requirement to consult with affected parties before the exemption could be registered, as is the case with obtaining a full licence. Consultation would inevitably prolong the time taken to register exemptions and would (if the polluter pays principal if to be followed) increase the associated workload/costs for SEPA and operators.
Q6. Should some exemptions, for example, the more complex exemptions (such as those relating to composting and recovery to land and building operations in paragraphs 7, 9, 12 and 19) benefit from an appeal mechanism, with balancing consultation requirements? Please provide the supporting thoughts behind your answer.
Registration
We are keen to reduce the administrative burdens associated with the registration of exemptions and are therefore interested in views on areas where the exemptions registration system could be improved.
Q7. What aspects and areas of the registration system should be improved upon? It would help if you could explain why and how?
An online process for the registration of certain exemptions is already planned. This would also allow the public register to be accessed electronically.
Q8. For which exemptions should electronic registration be considered and if so what impact would this have on you?
Inspection of exempted activities
The Waste Framework Directive requires periodic inspection of exempt activities to ensure compliance. The Waste Management Licensing Regulations 1994 (as amended) require annual inspection of the higher risk exemptions. This reduces SEPA's flexibility to target resources according to risk assessment of exempt activities, adds the cost of an annual inspection to SEPA's charges, and does not take into account the proactive efforts made by operators to optimise their compliance for these exemptions. It may be possible to develop a more flexible, risk based inspection system so that activities that are commonly well managed and safe may benefit from longer intervals between inspections. For example, the requirement for annual inspection could be relaxed, allowing SEPA to inspect less frequently.
Q9. Should the requirement that SEPA inspect exemptions annually be relaxed to require 'periodic inspection' in line with the requirements of the Waste Framework Directive? Please give details of how you think the Directive requirement should be enforced.
3.2 Waste Management Licensing
Waste management licences are intended to address the permit requirements of the Waste Framework Directive as set out in Section 2.0. Following public consultation, the Environmental Protection Act 1990 did, however, include requirements over and above those required by the Directive. Examples are the 'fit and proper person' test, which takes into consideration relevant convictions, requires operators to be technically competent and to make financial provisions, and site clearance (aftercare) provisions. These concepts were designed to apply the polluter pays principle and ensure that waste is only managed by those with sufficient technical knowledge to ensure that the operations they undertake do not adversely impact on the environment or human health.
What follows are detailed areas of discussion where we think there are reasonable prospects for improvements to the waste management licensing system. Other areas are covered in less detail at the end of this section although, importantly, we are interested in any further areas for improvement in the applications and licensing system that consultees identify.
Fit and proper persons
Under Section 74 of the 1990 Act, a waste management licence can only be issued or transferred to a person who is 'fit and proper' to hold such a licence. There are 3 components to the test of fit and proper person status, as set out in the Environmental Protection Act 1990:
- An applicant for a licence must be in a position to demonstrate that he has made or can make adequate financial provision to meet the conditions of the licence and the costs of aftercare.
- Management of the activities authorised by the licence must be in the hands of a technically competent person; and
- Consideration of convictions for a relevant offence;
These are considered below.
Financial Provision
In essence a person is not a fit and proper person to hold a licence if it appears to SEPA that that person 'has not made and either has no intention of making or is in no position to make financial provision adequate to discharge the obligations arising from the licence'.
SEPA considers that for non-landfill waste management activities the primary objective of the financial provision test is to grant licences only to those persons who can demonstrate that they have sufficient financial means to fund the requirements of the licence, including those arising on closure. This may be demonstrated by way of a credit reference check or where this is not appropriate or has failed, an applicant may provide credible evidence from a third party.
This position was adopted by SEPA in 2004 following an internal review and subsequent consultation with industry. Previous SEPA practice was to require financial provision to be made in the form of funds that were set aside or secured. The 2004 proposal was generally well received by industry and following the consultation exercise, financial provision agreements that had been entered into were returned to holders of non-landfill waste management licences.
Prior to 2004, financial provision was perceived to be one of the most costly and time-consuming aspect of the licensing process. SEPA's revised policy streamlines the process making it quicker, easier, transparent and far less costly for both applicants and SEPA as regulator. For those whose financial provision experience relates to pre-2004 practices, this revised position is a significant improvement.
Guidance on the current approach to financial provision can be accessed at:
http://www.sepa.org.uk/pdf/regulation/waste/Financial_Guidance_WML.pdf
Q10. As a financial provision is not a Directive requirement for non-landfills, it may be possible to dis-apply the financial provision requirements of the licensing system for some activities. As SEPA's post-2004 position has already reduced the burden of the financial provision requirement on applicants, would this still be useful or necessary?
Q11. What sorts of activities should such dis-application apply to?
Operator Technical Competence
Scots law currently requires that waste managers demonstrate technical competence. At present, the Waste Management Licensing Regulations 1994 (as amended) specify that the Waste Management Industry Training and Advisory Board ( WAMITAB)'s certificates of technical competence ( COTC), currently covering 28 different activities listed in Schedule 1A to the 1994 Regulations, shall be the only means of demonstrating technical competence in compliance with the requirement in the 1990 Act (and of waste activities under the Pollution Prevention and Control regime). The requirement to demonstrate technical competence in any way, however, is not a feature of the Waste Framework Directive, and in theory could therefore be removed, in whole or in part.
Q12. Do consultees agree that demonstration of operator technical competence is important and should be retained as a requirement of the licensing system? Please explain the reason for your view, whether in agreement or not.
Should the requirement be maintained, the question arises of how it should be demonstrated. Since the formation of WAMITAB and the requirement for COTC's, it has been suggested that competition among different providers of qualifications could provide an incentive for the maintenance of high standards of assessment and could be a means of ensuring that assessment costs are competitive. For example, bodies other than WAMITAB, among them City & Guilds, provide qualifications that are essential under the Ozone Depleting Substances Regulations 2006.
The Scottish Executive may consider supplementing the current WAMITAB arrangement by recognising other externally accredited qualifications. A potential downside of a wider range of accredited qualifications is that new arrangements would add to SEPA's regulatory task, in the short run at least, since SEPA would have to assess the suitability of the new qualification. This would have to be reflected in the associated cost of regulation. The views of consultees are sought on this matter.
Q13. Do consultees agree that the legislation should make provision for more technical competence assessor bodies? If yes, under what conditions?
The Scottish Executive may also consider whether the requirement to demonstrate technical competence should be maintained, but some or all waste management licence operations could be undertaken without formal qualifications. In this situation, only an initial technical competence assessment could be required to be undertaken by SEPA itself before a licence is issued. In this case SEPA would be bound to recover the costs of undertaking this assessment from the applicant through the application fee.
Q14. Do consultees think that for some, or all, waste management activities, a formal, externally accredited technical competence is unnecessary? If so, please provide suggestions and justifications for the types of activities that could potentially be undertaken without technical competence qualifications.
The Scottish Executive and SEPA note that there is no requirement for continued professional development associated with COTC's. In a rapidly changing and evolving waste management industry, continued professional development is often viewed as an essential part of modern industrial development.
Q15. Consultees views are sought on whether they consider that continued professional development should be required, and if so, for whom, and how it could be demonstrated.
Relevant Convictions
It is proposed that the "relevant convictions" requirement of the Fit and Proper Persons test be retained as it is considered a useful deterrent to rogue operators. The "relevant convictions", which are listed in the 1994 Regulations, relate to offences under a range of environmental legislation.
Q16. Do consultees agree that the relevant convictions test should be retained, and are there any areas for improvement in terms of the requirements or in its implementation? If there are alternatives, what are they?
SEPA and Waste Management Licensing
Guidance to SEPA on licensing has been provided through the published series of documents known as Waste Management Papers ( WMPs). WMP4 provides guidance on licensing, including recommendations in Annex 1 as to what should be considered for inclusion in a waste management licence. This guidance is formal guidance under section 35(8) and section 74(5) of the 1990 Act and SEPA is required to have regard to it when licensing activities. In addition, SEPA has developed its own guidance for staff and operators, which is available on its website at www.sepa.org.uk
Q17. Is there enough (or too much) guidance for businesses on waste management licensing? Is it the right sort of guidance or could it be improved? Please provide specific examples of how it could be improved. The more specific you can be in making suggestions, the better.
SEPA has developed a template style of processing and maintaining licences. This helps keep the time and costs associated with the licensing process down and as some of the template conditions are generic, this aids consistency. SEPA tailors the template licences to take account of site-specific circumstances and will include site-specific conditions to supplement or replace the template conditions if necessary. A template licence is included as Appendix 1.
Q18. Do consultees think that SEPA could improve its template approach to licensing and, if so, how could this be achieved?
Mobile Plant Licensing
In conjunction with other UK regulators, SEPA has already taken steps to simplify mobile plant licensing (described at 2.4 above) replacing multiple site licences with a single licence. This reduces the costs of licensing for mobile plant operators who are operating on more than one site at a time.
The Scottish Executive and SEPA are interested in exploring whether the current restrictive list of licensable mobile plant activities should be extended to cover other activities. For example, shellfish processors are often in remote locations where access to a range of licensed waste management techniques or facilities is often limited. Since the introduction of revised Animal By-Products Regulations in 2003, the options for the recovery and disposal of shellfish wastes have been more limited - for example, by the removal of landfill as an acceptable disposal option. Often, in such circumstances it would not be economically viable to build and operate a dedicated local waste management facility for small quantities of waste. An initial assessment by SEPA has indicated that a change in the law to make provision for small scale mobile composting under a mobile plant licence would introduce a locally available solution to the shellfish producers that might not otherwise be economically viable. The initial assessment has shown that a mobile composting unit is technically feasible and there are a number of designs already operating in places such as North America.
Q19. Do you think the SEPA proposal for an amendment to the law to include mobile composting units would be helpful to industries such as the shellfish producers; and who else might benefit from such a composting exemption, e.g. hoteliers, catering facilities?
Q20. Are there any other activities/processes that might benefit from mobile plant licensing? It would help if you could say why the activities/processes might be suitable for a mobile plant licence and what the benefits would be.
More radically, it may be possible to change the legislation to allow SEPA to add to the categories of licensable mobile plant administratively - that is, adding new categories would no longer require legislation and a Parliamentary process.
Q21. Do you think that SEPA should be free to add to the categories of mobile plant that may be licensed without the need for changing Regulations?
General Waste Management Licensing Issues
The Environmental Permitting Programme ( EPP) consultations currently being carried out in England & Wales by Defra are seeking to introduce a new permitting system for environmental licences, which would be unified as far as the very diverse requirements deriving from Community law would allow. This is providing an opportunity to improve and streamline various process requirements relating to the administration of the waste management licensing system. Although we are not proposing to introduce EPP in Scotland, the Scottish Executive and SEPA believe that a range of technical improvements to the licensing system could be made in Scotland that would deliver similar benefits, without a need to change the entire system. We invite consultees to consider some aspects where improvements could be made, which are described below.
Licence Modification
Under the current legislative system, the boundary of fixed sites licensed under the waste management regime cannot be changed. If you want to expand your site, you need a new licence to cover the new area of ground, or to surrender the original licence and apply for a new licence for the larger area. Under the Pollution Prevention and Control ( PPC) regime, on the other hand, the site boundary can be changed. The Scottish Executive and SEPA therefore invite consultees to consider changing the modification requirements to allow operators to increase or decrease their site boundary without requiring a new licence.
Q22. Would it be beneficial to provide a mechanism that will allow an operator to apply to change his site boundary without obtaining a new licence?
Q23. Are there other licence modification issues that should be considered? Please give an indication of the possible advantages and disadvantages.
Under PPC regulations, the regulator can require the operator to apply for a modification to a permit ( e.g. to take account of a change in operations) using notice provisions. These regulator initiated modifications are charged to industry in accordance with the polluter pays principle, whereas waste management licensing regulator initiated modifications are charged through annual subsistence.
Q24. Do consultees agree that SEPA should have similar charging powers for regulator initiated modifications under waste management licensing that it already has under the PPC regime?
Transfer of Licences
In Scotland, the legislation does not allow partial transfers. The benefit of allowing partial transfers is greater flexibility for licence holders.
Q25. Do consultees agree that there would be benefits in allowing both full and partial transfer and if so, what are those benefits? What safeguards would there need to be?
Surrender of Licences
Licences can already be surrendered partially or fully so long as the surrender requirements of the Waste Management Licensing Regulations 1994 are complied with.
The inclusion and consideration of historic waste management activities in the surrender requirements is an issue worthy of further consideration. The contaminated land regime under Part IIA of the Environmental Protection Act 1990 is intended to deal with historic contamination issues and it is proposed that the removal of this requirement would be a simplification of the licence surrender process in cases where there was no suspected pollutant linkage between the current licensed activity (that the surrender process applies to) and historical activities at the site. This would perhaps encourage site remediation and restoration, and remove the duplication between the Waste Management Licensing Regulations and the contaminated land regime. There may however, be practical difficulties for SEPA and licence holders in establishing whether there is a pollutant linkage between the current licensed activity and historical activities at the site.
Q26. Do consultees agree that historic waste management activities should be excluded from the surrender requirement in circumstances where there is no suspected pollutant linkage to licensed activities? Is this practical and what are the advantages or disadvantages of removing this requirement?
Revocation, enforcement and sanctions
As indicated in section 1.4, the Scottish Executive is currently consulting on "Strengthening and Streamlining: the way Forward for the Enforcement of Environmental Law in Scotland" consultation with a view to looking at enforcement of environmental law. In relation to revocation, enforcement and sanction provisions of the waste management licensing regime, the Scottish Executive and SEPA are interested in any specific observations or suggestions that consultees may have.
Q27. Can consultees suggest any improvements to the way licences are enforced and what benefits would those improvements bring?
Inspection of Waste Management Licensed facilities by SEPA
SEPA currently uses information from site inspections and its operator performance assessments ( OPA) to inform and establish proportionate, risk-based inspection frequencies for each site. Through this system, SEPA deploys its resources to target higher risk activities with a higher number of inspection. Operators who perform well benefit from a reduced number of inspections.
Q28. Do you agree that site inspections should be based on risk and operator performance? Please say why.
Waste Management Licensing Charging Scheme
At present, the Environmental Protection Act 1990 provides that the competent authority should be able to charge for the cost it incurs in undertaking the licensing procedures set out above. Indeed SEPA has a duty to recover the costs associated with licensing in accordance with the polluter pays principle. This is achieved through the Waste Management Fees and Charges (Scotland) Scheme 2006. SEPA is currently reviewing the waste management licensing charging scheme with a view to consulting on a revised charging scheme. A copy of the current scheme and the charges for 2007/8 can viewed on the SEPA web site at the following location - http://www.sepa.org.uk/charging/booklets/index.htm
The current charging scheme reflects the relative risks associated with different waste management activities in terms of the types of waste, the quantities of waste, and the type of waste management operation. However, concern is sometimes expressed by companies and community organisations involved in small scale recovery operations about the impact of licensing and the associated costs. We do not want to lose sight of the fact that recovery operations are equally as capable of having an adverse impact on the environment and human health as some disposal operations, but we do want to ensure that costs are proportionate.
Q29. Do you think that charging should include consideration of the potential risks associated with an activity and operator performance?
Final Considerations
There are other areas of waste legislation that this consultation has not touched upon in any detail. The paper has not attempted to outline the requirements of legislation ancillary to the waste management licensing system, such as on duty of care, the need to register as a waste carrier, broker and agent, or special (hazardous) waste. These are all covered by separate sets of Regulations. Nevertheless, if consultees consider that there is scope for further improvements to other parts of the system, the Scottish Executive and SEPA would appreciate your views.
Q30. Do you consider that there are other areas where improvements should be considered, for example: Duty of Care; Registered Waste Carriers; or Special Waste?
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