The Scottish Government

« Previous | Contents | Next »

Listen

PART I: INTRODUCTION

Background

1. The European Commission's work on mining waste stems from accidents at mines in Romania and Spain that caused considerable environmental damage. Both accidents involved hazardous chemicals (cyanide and arsenic) being transported considerable distance via water and sludge. The accidents raised significant issues relating to the handling and storage of mining waste; public knowledge and understanding of the risks involved; and communication issues between the various responsible authorities and the public.

The Directive

2. EU Directive 2006/21/ EC on the management of waste from the extractive industries ("the MWD") provides for measures, procedures and guidance to prevent or reduce as far as possible any adverse effects on the environment, and any resultant risks to human health, brought about as a result of the management of waste from the extractive industries. Such "waste" includes tailings (i.e. the waste solids or slurries that remain after the treatment of minerals by a number of techniques), waste rock and overburden (i.e. the material that extractive operations move during the process of accessing minerals, including during the pre-production development stage), and topsoil (i.e. the upper layer of the ground) provided that they constitute waste as defined in Council Directive 2006/12/ EC ("the Waste Framework Directive"). Member States are required to transpose the MWD into national law by 1 May 2008. Annex A lists all the Articles included in the MWD. The full text of the MWD is available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:102:0015:01:EN:HTML.

Defining "waste"

3. Article 3(1) of the MWD provides that, for the purposes of that Directive, "waste" is as defined in Article 1(1)(a) of the Waste Framework Directive. There is no definitive list of what is and is not waste within the meaning of that Article. Whether or not a substance or object is waste, and when waste ceases to be waste, are matters that must be determined on the facts of the case and the interpretation of the law is ultimately a matter for the Courts. It rests, in the first place, with the producer or holder of a substance or object to decide whether it is being discarded and is waste.

4. There is now a substantial body of case law by the European Court of Justice ( ECJ) on the interpretation of the definition of waste and the meaning of "discard". A summary of the ECJ's judgments on the definition of waste is available on the Department of Environment, Food and Rural Affairs website at: www.defra.gov.uk/environment/waste/topics/pdf/ecj-definition.pdf

5. The broad effect of the ECJ's judgments is to interpret the meaning of "discard" for the purposes of determining whether or not substances and objects are waste within the meaning of Article 1(1)(a) of the Waste Framework Directive. In this sense, the ECJ's judgments set out principles which apply to all types of waste. However, two of the ECJ's judgments are of direct relevance to the extractive industries.

6. The main question referred to the ECJ for a ruling in the Palin Granit Oy case (C-9/00) was whether leftover stone resulting from stone quarrying is to be regarded as waste. The ECJ's judgment was that:

"leftover stone resulting from stone quarrying which is stored to await possible use, failing which it will remain indefinitely on the site, is to be regarded as discarded or intended to be discarded and is accordingly to be classified as waste within the meaning of Article 1(a) of [the Waste Framework Directive]."

7. The ECJ also concluded in this case that:

"it is not relevant to the classification of the leftover stone as waste (a) whether it is stored on the quarrying site, a site next to it or further away; (b) that it is the same as regards its composition as the basic rock from which it has been quarried and does not change its composition regardless of how long it is kept or how it is kept; (c) that it is harmless to human health and the environment or (d) that it can be recovered as such without processing or similar measures."

8. In the AvestaPolarit case (C-114/01), one of the main issue considered was:

"are leftover rock resulting from the extraction of ore and/or ore-dressing sand resulting from the dressing of ore in mining operations to be regarded as waste within the meaning of Article 1(a) of [the Waste Framework Directive]"

9. The ECJ's judgment was:

"in a situation such as that at issue in the main proceedings, the holder of leftover rock and residual sand from ore-dressing operations from the operation of a mine discards or intends to discard those substances, which must consequently be classified as waste within the meaning of [the Waste Framework Directive], unless he uses them lawfully for the necessary filling in of the galleries of that mine and provides sufficient guarantees as to the identification and actual use of the substances to be used for that purpose."

10. The judgement also states:

"if a mining operator can identify physically the residues which will actually be used in the galleries and provides the competent authority with sufficient guarantees of that use, those residues may not be regarded as waste. In this respect, it is for the competent authority to assess whether the period during which the residues will be stored before being returned to the mine is so long that those guarantees cannot in fact be provided."

11. The Scottish Government's view is that the ECJ recognised in this judgment that there are circumstances in which residues from mining operations, which are to be used to fill galleries/voids in the mine from which they were extracted, may be classified as non-waste by-products. These circumstances are where:

(a) the mining operator physically identifies the residues which will actually be used to fill the galleries/voids;

(b) the mining operator provides the competent authority with sufficient guarantees of that use; and

(c) the competent authority assesses whether the period during which the residues will be stored before being returned to the mine is so long that those guarantees cannot in fact be provided.

12. Other relevant considerations which the ECJ identified in its judgment on the AvestaPolarit case are that:

(a) the use of the residues to fill the galleries/voids is (i) necessary and (ii) lawful; and

(b) that the residues are used for this purpose without prior processing.

13. For many mineral sites, the restoration plan submitted to the planning authority may have identified, or will identify, all the residues which will be used to fill the excavation void and compliance is secured through planning conditions. Scottish planning policies for mineral sites highlight the importance of ensuring financial guarantees, or other appropriate mechanisms, are in place to ensure appropriate restoration of sites. Where this is the case, operators and planning authorities may agree that the identification and guarantees requirements highlighted by the ECJ are met. This would enable any material used to fill galleries/voids to be classified as a non-waste by-product. Such material would fall outwith the scope of the MWD although it would continue to be controlled by planning conditions and other controls.

14. The onus must be on operators to provide the necessary identification and guarantees and to obtain the express agreement of the planning authority that material can be considered as a non-waste by product. For new sites, it may be possible for the contents of restoration plans and financial guarantees to be tailored to meet these requirements, with planning consent acting as confirmation that the necessary guarantees have been provided. However, for existing sites, it is unlikely that ECJ compliance would have been part of the planning authorities considerations. Where operators of existing sites believe that the necessary identification and agreements are in place, or will be put in place, they should seek the express agreement of planning authorities that this is the case. Such agreement should be obtained as soon as possible. Material will be regarded as "extractive waste" for the purposes of the MWD if such identification and guarantees cannot be provided to the satisfaction of the planning authority.

Q1 Do you have any views on procedures for considering whether extracted material should be classified as a non-waste by product?

Adoption principles

15. The requirements in the MWD will affect all on-shore sectors of the mining and quarrying industry that produce "waste" although impacts on individual operations will depend on whether such waste is classified as inert, non-inert non-hazardous or hazardous. The British Geological Survey was commissioned to undertake a study to assess the nature of the waste produced by active mines and quarries in the UK. This study confirmed that nearly all sites in Scotland produced only inert waste. These findings were based on the current methodology available for classifying waste (i.e. European Waste Classification) whilst acknowledging that ongoing work on the Directive through the EC Comitology process may affect the result of this assessment.

16. As most mining waste in Scotland is likely to be inert, significant environmental damage on the Romanian and Spanish scale is unlikely. Indeed, if well constructed, sensibly located and properly managed and maintained in accordance with existing regulatory requirements, the management of extractive waste should be safe and not cause harm to the environment. Scotland has a good recent track record in this area and it is recognised that the industry takes its responsibilities for safety and environmental protection very seriously. The Scottish Government therefore intend to take full advantage of all available derogations within the Directive. This would, in particular, considerably reduce the regulatory burden on those sites that produce waste that is non-hazardous.

Q2 Do you agree that the Scottish Government should take advantage of all available derogations in the Directive?

Main requirements of the Directive

17. The MWD sets the underlying principles and provisions that must be transposed into domestic law. Many of its measures, including those relating to health and safety and protection of the water environment, are already covered by existing national legislation. However, the way that information is gathered, submitted, considered and approved will need to be revised to take account of the Directive. Most of the following requirements will be dependent on the nature of the waste managed:

• a waste management plan setting out procedures for the minimisation, treatment, recovery and disposal of extractive waste in line with the MWD;
• a major-accident prevention policy, including a safety management system and internal emergency plan - to be drawn up by the operator for the potentially most hazardous waste facilities;
• a permit to operate a "waste facility" for extractive waste;
• closure and after-closure procedures for waste facilities;
• requirement for a financial guarantee (or equivalent) prior to commencement of operations involving the deposit/accumulation of waste in a waste facility.

18. The flow chart at Annex B sets out procedures for classifying waste and confirms that, in relation to the above, sites producing inert waste are likely to be subjected to waste management plan provisions only.

Transposition proposal

19. The Scottish Government's previous consultation on the Directive in 2003 suggested that most of the Directive's requirements were already being met through conditions forming part of the overall planning permission for mining operations. It was, however, acknowledged that it would be necessary to introduce Regulations to change the basis for decision making, in so far as it relates to the management of waste from the extractive industries, so that planning authorities, through the planning application process, would ensure that the objectives of the Directive are met, rather than merely having regard to them as material considerations alongside other considerations. It remains the Scottish Government's intention to bring forward Regulations for consideration by the Scottish Parliament which would set out how existing planning application procedures will be adapted to ensure compliance with the Directive.

20. The Scottish Government's transposition proposals in Part II of this paper continue to reflect the position that waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries should continue to be regulated primarily through the scrutiny afforded by town and country planning legislation. This is currently done through planning conditions which are imposed to control impacts on visual amenity, landscape, traffic, noise, dust, direction of working, moving, handling and sorting of soils and overburden, restoration and after care schemes, etc. Page 26 of Planning Advice Note 50: Controlling The Environmental Effects of Surface Mineral Working sets out the main issues which the planning system must address for controlling mining waste and how planning authorities and operators can ensure that activities are effectively controlled. These principles should continue to apply, adapted as necessary, to secure the high environmental standards promoted by the MWD.

21. Most applications for major new mineral sites are likely to require an environmental statement under the Environmental Impact Assessment (Scotland) Regulations 1999. Schedule 4 of these Regulations identify the information that should be included in such statements. This will include proposed measures to prevent, reduce and where possible offset any significant effects on the environment, including effects on population, fauna, flora, soil, water and air. Scottish Government Circular 15/1999 and Planning Advice Note 58 provide further information on the EIA process.

22. Consideration of many of the requirements in the MWD relating to the extraction, treatment and storage of waste will be addressed by applicants as part of existing EIA procedures for new proposals. If EIA is not required, applications should still contain supporting environmental information setting out proposals for waste management. Such considerations will begin as soon as a project is initiated so that environmental issues can be considered as part of the design of the whole project and therefore better enable applicants to eliminate or reduce impacts as far as possible as the project develops.

23. Resultant planning applications and environmental statements are subject to public scrutiny and consultation with statutory bodies. This should ensure that planning authorities are well placed to specify appropriate mitigation measures. The systematic approach to obtaining and considering environmental information required by EIA goes some way to facilitating the MWD's priority for the promotion of sustainable management of extractive industries with a view to reducing their environmental impact.

24. In order to reduce burdens on planning authorities and operators, the Scottish Government's transposition proposals in Part II of this paper propose that most of the new requirements imposed by the MWD are considered as part of the planning application process. The intention is that there will be statutory requirements to ensure that waste management plans and, where necessary, Article 7 Permits are considered as an integral part of an operator's proposal to work a new site.

Q3 Do you agree that the planning application process is the most appropriate means of transposing the MWD?

Links to other control regimes

25. The grant of planning permission would not remove the need to meet other requirements of the MWD that are, and will continue to be, secured outwith planning control. Such requirements are likely to include:

Environmental Regulation

26. The Water Framework Directive (2000/60/ EC), which aims to protect the quantity and quality of water in the whole water environment, was transposed into Scottish Law by the Water Environment and Water Services (Scotland) Act (2003). This Act gave Scottish Ministers powers to introduce regulatory controls over activities in order to protect and improve Scotland's water environment. The Water Environment (Controlled Activities) (Scotland) Regulations (" CAR") 2005, which came into force on 1st April 2006, provides details of these regulatory controls and applies to:

• discharges to all surface waters and groundwaters (replacing the Control of Pollution Act 1974 and Groundwater Regulations 1998);
• abstractions from all surface waters and groundwaters;
• impoundments (dams and weirs) of rivers, lochs, wetlands and transitional waters;
• engineering works in inland waters

27. The Groundwater Directive (80/68/ EEC) identifies potential pollutants against which groundwater needs protecting. These potential pollutants are grouped together under List I and List II substances. List I substances are particularly harmful pollutants and must be prevented from entering groundwater. List II substances have the potential to cause pollution. The input of List II substances to groundwater must be limited to avoid pollution.

28. The Scottish Environment Protection Agency ( SEPA) regulates discharges to the water environment, including groundwater, under CAR through a system of licences, registrations and general binding rules. CAR requires that both the Groundwater Directive and the Water Framework Directive are complied with. This means that the requirements of the MWD relating to these Directives are achieved through existing CAR controls.

29. A CAR authorisation is not generally required for activities which should not normally cause pollution of the water environment such as the storage of chemicals. SEPA will control these activities by the use of a CAR Enforcement Notice prohibiting or imposing conditions if it is considered that the activity:

• has caused, is causing or is likely to cause significant adverse impacts on the water environment or any part of it; or
• has caused, is causing or is likely to cause a direct or indirect discharge into groundwater of any of the substances listed in Schedule 2 of CAR

30. SEPA has published a Code of Practice ² for the owners and operators of quarries and mineral extraction sites which covers activities which, if carried out in accordance with good practice, should not normally cause pollution of the water environment. The Code does not specifically deal with intentional discharges to the water environment from mineral extraction sites or with impacts on the water environment from abstractions or impoundment activities. These activities are dealt with as CAR authorisations (General Binding Rules, Registrations or Licences).

31. Mining waste is, in most instances, likely to fall outwith the scope of the Pollution Prevention and Control (Scotland) Regulations 2000. This means that the MWD Regulations would need to include new requirements to ensure that the principles of the IPPC Directive (96/61/ EC) relating to air and soil are, where required, applied to the extractive waste industries i.e. the best available techniques required by Article 4. Such objectives would continue to be secured by planning conditions following consultation with SEPA.

Health and Safety

32. Mines and Quarries in Scotland are already covered by comprehensive health and safety legislation that already ensure compliance with most of the provisions in the MWD relating to human health. The most relevant are the Quarries Regulations 1999. These apply to quarries and opencast coal sites:

• being prepared for extraction of minerals;
• where mineral extraction or preparations takes place as part of a work activity;
• where work to prevent water or other material flowing into an adjacent quarry takes place, including after quarrying has finished; and
• being prepared for abandonment, e.g. landscaping.

33. Tips used in conjunction or connection with the operation of a quarry are covered by these Regulations, even if they are some distance from the excavation site. This is the case whether the tip is only used for waste or landscaping material or is, for example, a clay stockpile adjacent to brickworks.

34. The Regulations place duties upon both the person entitled to work the quarry and the operator and includes requirements to produce a Health and Safety document and for all proposed and existing excavations or tips to be appraised at appropriate intervals. Operators also have to follow a set of excavation and tips rules, which specify the way in which the excavation and tips will be constructed and managed to ensure safety.

35. Part II of The Mines and Quarries (Tips) Act 1969 covers disused tips, whether mine or quarry origin. Under these Regulations, local authorities are responsible for ensuring that disused tips do not, by reason of stability, constitute a danger to members of the public. If an authority suspects a tip is unstable, it has the power to ask from the owner, or any other relevant person, all relevant sections, records and plans relating to the security of the tip and its foundations. Authorities can access the tips and its surroundings to carry out site investigations and instruct the owner of the tip to undertake whatever remedial works are considers necessary.

36. In addition, the Health and Safety at Work etc. Act 1974 sets out general duties to secure the health, safety and welfare of persons at work and protecting persons, other than persons at work, against risks to health and safety arising out of or in connection with the activities of persons at work. The Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 sets out reporting requirements and procedures for such events.

Waste Framework Directive

37. Most types of waste are subject to control under the Waste Framework Directive (2006/12/ EC). However, Article 2(1)(b)(ii) excludes from its scope "waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries" where waste of this kind is "covered by other legislation". In Scotland, Planning and Health and Safety legislation are regarded as "other legislation" and Waste Framework Directive regulatory controls have not therefore been applied to mining waste. However, both the Waste Framework Directive and the Landfill Directive (1999/31/ EC) will continue to apply to waste, other than extractive waste, used for the filling in of excavation voids.

Summary

38. The requirements of the MWD impact on planning, environmental and health and safety regulation. In many instances, these requirements are already being met through compliance with existing procedures. The intention is to meet any new requirements by, as far as possible, building on existing arrangements and, where necessary, making adaptations that result in minimising burdens on all concerned. This will clearly involve the need for planning authorities to work closely with SEPA and HSE in considering extractive waste proposals. Part II of this paper sets out how this could be done.

« Previous | Contents | Next »