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Mining Waste Directive: Consultation Paper

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PART II: TRANSPOSING THE DIRECTIVE

Modifying the planning system

39. The Scottish Government's intention is to modify existing planning application procedures so that they explicitly incorporate most of the requirements of the MWD. This will ensure that proposals for the management of extractive waste are considered as an integral part of the whole mineral extraction process and that the total impact of development on local communities and the environment can be fully addressed. Planning controls will continue to be complemented by existing environmental and health and safety legislation although some standalone provisions will be needed to ensure compliance with Article 6's requirements relating to major accident prevention (see Part III of the consultation paper).

40. The following paragraphs set out proposals to transpose the Directive. Once prepared, the content of draft MWD Regulations will be discussed with major stakeholders and notified to others through the E-publications planning newsletter. It is clearly not possible to meet the Directive's compliance date of 1 May 2008 but the intention is to lay the MWD Regulations as soon as possible during Summer 2008.

Working together

41. As confirmed in Part I of this paper, the requirements of the MWD impact on planning, environmental and health and safety regulation and there is a need for the relevant regulatory bodies to work closely together to ensure that the objectives of the Directive are delivered as efficiently as possible. SEPA is already a statutory consultee on all mineral planning applications. This is not the case in relation to HSE and this leaves open the possibility that a planning application can be approved only for it to require subsequent modifications to meet the requirements of health and safety legislation in relation to, for example, the physical stability of tips. This may lead to breaches in compliance with the MWD. However, this situation can be avoided if HSE were to be made a statutory consultee on all new planning applications involving extractive waste. The Executive's advice will help ensure that health and safety aspects of all proposals are appropriately covered prior to work commencing.

Q4 Do you agree that HSE, like SEPA, should become a statutory consultee for all mineral planning applications?

Meaning of "development"

42. The MWD Regulations will include provision which will amend the definition of "development" in Section 26 of the Town and Country Planning (Scotland) Act 1997 to make explicit that "development" includes the "management of extractive waste" (i.e. the management of waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries). This should ensure beyond doubt that those requirements of the MWD which fall outwith environmental and health and safety regulation will be subject to the granting of planning permission.

42. Classes 63 and 64 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 currently grants permitted development rights relating to waste tipping at mines. These Classes include activities that now must be considered in the context of the MWD. It is therefore intended that the MWD Regulations will revoke both Classes to remove existing permitted development rights so that planning permission would be required to undertake these activities. The Class would be removed for new applications from Summer 2008 and by the required Directive implementation date of 1 May 2012 for existing developments.

Q5 Do you agree that the meaning of "development" should be amended to include the "management of extractive waste"?

Q6 Do you agree that permitted development rights for new applications should be removed from Summer 2008 and by 1 May 2012 for existing sites?

The draft Regulations

44. The MWD Regulations will set out the required statutory procedures for controlling the "management of waste resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries". This is defined in Article 2(1) of the MWD as "extractive waste". Article 3 of the MWD sets out other definitions that will be used in the Regulations.

Proposed scope of the Regulations

45. Part I of the consultation paper confirms the circumstances in which non-waste material returned to the excavation void would be exempt from the MWD. In addition, Article 2 of the MWD excludes a number of further activities from the scope of the Directive. These are:

  • waste which is generated by the prospecting, extraction and treatment of mineral resources and the working of quarries, but which does not directly result from those operations;
  • waste resulting from the offshore prospecting, extraction and treatment of mineral resources;
  • injection of water and re-injection of pumped groundwater as defined in the first and second indents of Article 11(3)(j) of Directive 2000/60/ EC, to the extent authorised by that Article;

46. Article 2(3) also allows competent authorities to reduce or waive the requirements of the Directive for the deposit of non-hazardous waste generated by prospecting of mineral resources (except oil and evaporates other than gypsum and anhydrite), and the deposit of unpolluted soil and of waste resulting from the extraction, treatment and storage of peat, as long as the general requirements under Article 4 are met. As confirmed above, it is the Scottish Government's intention to take advantage of all available derogations within the Directive. Planning authorities will, therefore, be given powers to waive or reduce the Directive's requirements in the circumstances set out in Article 2(3).

47. The implications of the other exemptions and derogations provided for in Article 2(3) are set out in subsequent paragraphs.

48. Recital (20) of the MWD also confirms that waste placed back into excavation voids either for their rehabilitation or for construction purposes related to the mineral extraction process, such as the building or maintenance within voids of means of access for machinery, haulage ramps, bulkheads, safety barricades or berms, needs also to be subject to certain requirements in order to protect surface water and/or groundwater, secure the stability of such waste, and ensure appropriate monitoring upon cessation of such activities. Accordingly, such waste will not be subject to those requirements of the MWD relating exclusively to "waste facilities", except for the requirements mentioned in the specific provision on excavation voids at Article 10. Such waste is still caught by Article 5's requirements for a waste management plan

49. The following types of waste are also excluded from the scope of the MWD but will remain under the control of the Waste Framework Directive and, where appropriate, the Landfill Directive:

a) waste which is generated at a prospecting, extraction or treatment site and transported to a location that is not a waste facility within the terms of the Directive. Recital (8) of the Directive confirms that the management of waste of this kind will continue to be subject to control under the Waste Framework Directive, the Landfill Directive and other relevant Community legislation;

b) extractive waste which is deposited, at a waste facility, with non-extractive waste. This is because a waste facility within the terms of the Directive is an area designated for the accumulation or deposit of extractive waste only and the deposit of other types of waste is subject to control under the Waste Framework Directive and, where appropriate, the Landfill Directive.

General requirements

50. Article 4 of the MWD requires operators to take measures to prevent or reduce as far as possible any adverse effects on the environment and human health. Such measures are to be based, amongst other things, on the best available techniques applied through Directive 96/61/ EC on integrated pollution prevention and control and should take account of the technical characteristics of the waste facility, its geographical location and the local environmental conditions. The measures set out in Directive 96/61/ EC cover issues such as low waste technology, overall impact on the environment, accident prevention, energy efficiency and the consumption of raw materials. These measures do not presently apply to extractive waste in Scotland so the Regulations will need to include a requirement for operators to demonstrate compliance with Article 4. It is proposed that such compliance should adhere to the Best Available Techniques Not Entailing Excessive Cost principles that are used for the purposes of the Environmental Protection Act 1990 and in EC pollution control Directives and that operators should demonstrated compliance as part of the waste management plan required under Article 5. Non-hazardous prospecting waste and peat sites will need to demonstrate compliance with Article 4 separately if planning authorities have reduced or waived the other requirements in the Directive.

51. Article 21(2) requires Member States to ensure that the competent authority follows or is informed of developments in best available techniques. Article 21(3) confirms that the Commission shall organise an exchange of information between Member States and the organisations concerned on best available techniques, associated monitoring and developments in them. The Commission will publish this information. It is likely that the Scottish Government will need to provide further guidance/advice in due course to highlight the outcome of this further work.

Q7 Do you agree that there should be a general requirement for mining waste to be subject to the principles of Best Available Techniques Not Entailing Excessive Cost and that this should be demonstrated through waste management plans?

Categorising sites

52. The flow chart at Annex B sets out how the Directive impacts on particular waste streams. This confirms that all non-exempted sites producing extractive waste will be covered to varying extents by the MWD and, in particular, will need to comply with Article 5 requirements for a waste management plan although some of the provisions in Article 5 apply only to those sites that are categorised as either a "waste facility" or a "Category A waste facility".

53. "Waste facilities" are those sites where the accumulation or deposit of extractive waste, whether in a solid or liquid state or in solution or suspension, takes place for the following time-periods:

  • no time-period for Category A waste facilities and facilities for waste characterised as hazardous in the waste management plan;
  • a period of more than six months for facilities for hazardous waste generated unexpectedly;
  • a period of more than one year for facilities for non-hazardous non-inert waste;
  • a period of more than three years for facilities for unpolluted soil, non-hazardous prospecting waste, waste resulting from the extraction, treatment and storage of peat and inert waste.

54. Such facilities are deemed to include any dam or other structure serving to contain, retain, confine or otherwise support such a facility, and also to include, but not be limited to, heaps and ponds, but excluding excavation voids into which waste is replaced, after extraction of the mineral, for rehabilitation and construction purposes. The Scottish Government's interpretation is that the definition of waste facility also excludes the following from its scope:

  • the accumulation or deposit of unpolluted soil, non-hazardous prospecting waste, waste resulting from the extraction, treatment and storage of peat and inert waste for a period of less than 3 years; and
  • the accumulation or deposit of non-hazardous non-inert waste for a period of less than 1 year unless in either case the waste is deposited in a Category A waste facility.

55. In addition to a waste management plan, operators of waste facilities will be requited to obtain a Permit which complies with Article 7 of the MWD. Permits are subject to the further requirements of Articles 8 (public participation), 11 (construction and management of waste facilities); 12 (closure and after-closure procedures); 13 (prevention of water status deterioration, air and soil pollution); 14 (financial guarantees) and 17 (inspections by the competent authority). However, Article 2(3) of the MWD provides that, "inert waste and unpolluted soil resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries and waste resulting from the extraction, treatment and storage of peat shall not be subject to Articles 7, 8, 11(1) and (3), 12, 13(6), 14 and 16, unless deposited in a Category A waste facility." In addition, the Scottish Government intends to take advantage of the derogations which allow Member States to waive the requirements of Articles 11(3), 12(5) and (6), 13(6), 14 and 16 for non-hazardous non-inert waste unless deposited in a Category A waste facility.

56. Category A waste facilities are defined in Annex III of the Directive as those sites where if:

  • a failure or incorrect operation, e.g. the collapse of a heap or the bursting of a dam, could give rise to a major accident, on the basis of a risk assessment taking into account factors such as the present or future size, the location and the environmental impact of the waste facility; or
  • contains waste classified as hazardous under Directive 91/689/ EEC above a certain threshold; or
  • it contains substances or preparations classified as dangerous under Directives 67/548/ EEC or 1999/45/ EC above a certain threshold.

57. Only Category A waste facilities will be subject to Article 6's major accident prevention requirements and, because of the higher level of risk associated with these sites, most of the provisions of the Directive will be relevant, particularly those relating to financial guarantees and transboundary effects.

The Nature of Mining Waste In Scotland

58. As part of the transposition process, the British Geological Survey has undertaken a study to assess the nature of the waste produced by active mines and quarries in the UK. The report concluded that, in Scotland, there were 368 active mines and quarries in operation at December 2006. 354 of these sites produced inert waste only. Only 14 opencast coal sites are listed as capable of producing hazardous waste.

59. Subsequent discussions confirmed that the generation of hazardous waste at opencast coal sites is likely to be an extraordinary occurrence rather than the norm since the majority of sites extract using a dry dig process, which produces inert overburden. The generation of hazardous waste occurs when coal is recovered by washing, a process usually supplementary to a dry dig coal recovery operation. The washing process produces water containing suspended solids that must be treated before disposal; this waste can be classified as hazardous.

60. This suggests that the vast majority, if not all, of waste produced at sites in Scotland will be inert. However, under Article 22 of the Directive, the EC is required to adopt by 1 May 2008 a number of specific implementing and amending measures. This includes interpretation of the definition of 'inert waste' set out in Article 3(3) and involves further research and discussions between the Commission and Member States. The UK Government is actively involved in this process and it is recognised that the outcome will have a bearing on the impact of the Directive on UK mining and quarrying industries. The UK is seeking to ensure that the outcome is based on a proportionate and risk-based approach to the management of extractive waste. It is expected that formal proposals on these matters will be brought forward shortly by the Commission for agreement by Member States.

New operations

61. The expectation is that applicants for new mineral developments would hold initial discussions with the planning authority, SEPA and HSE. This will provide an opportunity to consider the principle of using the land for mining or quarrying development; the categorisation of extractive waste; and the operator's proposals for the minimisation, treatment, recovery and disposal of waste (in line with Articles 4 and 5 of the Directive). Such pre-application discussions should already be an integral part of the planning application preparation process and in managing the interface between planning, pollution and health and safety controls.

62. The expectation is that, following these discussions, applicants will be able to self-classify the waste status of the site, and include the relevant information required by the Directive with their planning application. Subsequent consultation with SEPA and HSE should result in confirmation that self-classification is correct.

Q8 Do you agree that operators, following discussions with SEPA and HSE, should be able to identify the nature of mining waste involved?

Non-waste facilities

63. Following initial discussions, the operator would submit a planning application to the planning authority. This would include a standalone waste management plan which, in accordance with Article 5(1), should set out the operators proposals for the minimisation, treatment, recovery and disposal of extractive waste, taking account of the principles of sustainable development. To enable compliance with the Directive in one consideration process, the Scottish Government intend to require plans to contain the information required to comply with Articles 4, 5 and 10 of the Directive by including at least the following elements (it should be noted that all the Directive's requirements are included for ease of reference although those in bold will only apply to waste facilities):

(a) where applicable, the proposed classification for the waste facility in accordance with the criteria laid down in Annex III:

(i) where a Category A waste facility is required, a document demonstrating that a major-accident prevention policy, a safety management system for implementing it and an internal emergency plan will be put into effect in accordance with Article 6(3);

(ii) when the operator considers that a Category A waste facility is not required, sufficient information justifying this, including an identification of possible accident hazards;

(b) waste characterisation in accordance with Annex II of the Directive and a statement of the estimated total quantities of extractive waste to be produced during the operational phase;

(c) a description of the operation generating such waste and of any subsequent treatment to which it is subject;

(d) a description of how the environment and human health may be adversely affected by the deposit of such waste and the preventive measures to be taken in order to minimise environmental impact during operation and after closure, including the aspects referred to in Article 11(2) (a), (b), (d) and (e);

(e) the proposed control and monitoring procedures pursuant to Articles 10, when applicable, and 11(2)(c);

(f) the proposed plan for closure, including rehabilitation, after-closure procedures and monitoring as provided for in Article 12;

(g) measures for the prevention of water status deterioration in accordance with Directive 2000/60/ EC and for the prevention or minimisation of air and soil pollution pursuant to Article 13;

(h) a survey of the condition of the land to be affected by the waste facility, where applicable; and

(i) how operations will comply with the best available techniques of Article 4.

Q9 Do you agree that compliance with Article 4 should be demonstrated through waste management plans?

Considering waste management plans

64. Waste management plans should provide sufficient information to enable planning authorities to evaluate the operator's ability to meet the following objectives set out in Article 5(2):

(a) to prevent or reduce waste production and its harmfulness, in particular by considering:

(i) waste management in the design phase and in the choice of the method used for mineral extraction and treatment;

(ii) the changes that the extractive waste may undergo in relation to an increase in surface area and exposure to conditions above ground;

(iii) placing extractive waste back into the excavation void after extraction of the mineral, as far as is technically and economically feasible and environmentally sound in accordance with existing environmental standards at Community level and with the requirements of this Directive where relevant;

(iv) putting topsoil back in place after the closure of the waste facility or, if this is not practically feasible, reusing topsoil elsewhere;

(v) using less dangerous substances for the treatment of mineral resources;

(b) to encourage the recovery of extractive waste by means of recycling, reusing or reclaiming such waste, where this is environmentally sound in accordance with existing environmental standards at Community level and with the requirements of the Directive where relevant;

(c) to ensure short and long-term safe disposal of the extractive waste, in particular by considering, during the design phase, management during the operation and after-closure of a waste facility and by choosing a design which:

(i) requires minimal and, if possible, ultimately no monitoring, control and management of the closed waste facility;

(ii) prevents or at least minimises any long-term negative effects, for example attributable to migration of airborne or aquatic pollutants from the waste facility; and

(iii) ensures the long-term geotechnical stability of any dams or heaps rising above the pre-existing ground surface.

65. Many of the waste management plan objectives should already be an integral part of the consideration process for new developments and, in most instances, compliance with existing requirements in relation to planning, environmental and health and safety regulation and good practice advice should go some way to securing compliance. Such advice is primarily provided in PANs 50 and 64 and SEPA's Code of Practice for owners and operators of mineral sites.

66. Planning authorities would continue to determine planning applications by assessing whether the proposed development is an acceptable use of land and the environmental effects of extraction and restoration and aftercare proposals are acceptable. In addition, authorities would have to evaluate the operator's ability to meet the objectives of the waste management plan as set out in Article 5(2). Ensuring plans meet the requirements of Article 5(2) would be a statutory requirement, rather than a material consideration, whilst recognising, in some instances, that the measures proposed by operators will continue to be secured through existing environmental or health and safety regulation.

67. SEPA and HSE will be statutory consultees for all planning applications. Their advice on the contents of waste management plans will be crucial in helping the planning authority decide whether proposals are consistent with the environmental and health and safety requirements of the Directive, whether additional information was required, and the conditions to be attached to any planning permission. The planning authority would be obliged to consider the advice provided by SEPA and HSE when considering the planning application.

68. If the planning authority is satisfied that the site does not involve a waste facility it can proceed to determine the application. The waste management plan element of the application should only be approved if it complies with Articles 4, 5 and 10 of the Directive. Planning permission would be made subject to a condition that the waste management plan shall be reviewed every five years and/or amended, as appropriate, in the event of substantial changes to the waste deposited and that any amendments should be notified to the planning authority.

69. Where planning permission is approved, applicants would still need to obtain separately relevant SEPA consents and comply with laws relating to health and safety.

Q10 Do you agree that the process for considering waste management plans for non-waste facilities are workable?

Waste facilities that do not require an Article 7 Permit

70. The Directive exempts waste facilities from requiting an Article 7 Permit in specific circumstances. This includes, in particular, where inert waste or unpolluted soil is accumulated or deposited for more than 3 years and the facility is not classified as posing a major accident risk under Category A. When assessing such risk, Recital (15) confirms that "a waste facility should not be classified in Category A solely on the basis of risks to the safety and health protection of workers" which is covered by other Community Legislation. In addition to being exempt from requiring an Article 7 Permit, such facilities are also exempt from the requirements of Article 8, 11(1) and (3), 12, 13(6), 14 and 16.

71. A planning applications involving a waste facility which does not require an Article 7 permit should be considered in the same way as a site requiring only a waste management plan. However, operators will be expected to comply with additional waste management plan requirements relating to waste facilities. Again, consultation with SEPA and HSE should clarify which requirements will be secured through existing environmental or health and safety regulation. As with waste management plans, such requirements should not form part of planning authorities' considerations.

Waste facilities requiring an Article 7 Permit

72. Where operators have "self-classified" that development would involve a "waste facility" and that an Article 7 Permit is required, applications must, in addition to Article 5 requirements, also include at least the following information:

a) the identity of the operator;

b) the proposed location of the waste facility, including any possible alternative locations;

(c) the waste management plan submitted as part of the planning application;

(d) if required, adequate arrangements by way of a financial guarantee or equivalent, as required under Article 14;

(e) the information provided by the operator in accordance with Article 5 of Directive 85/337/ EEC (1) if an environmental impact assessment is required under that Directive.

Financial guarantees

73. In relation to (d) above, Article 14 of the Directive requires a financial guarantee (e.g. in the form of a financial deposit, including industry-sponsored mutual guarantee funds) or equivalent, before the commencement of operations involving the accumulation or deposit of extractive waste in a waste facility. The purpose of this guarantee is to ensure that all the Directive's obligations placed upon waste facilities, including after-closure provisions, are discharged; and that there are funds readily available at any given time to rehabilitate the land affected by the waste facility to a satisfactory state.

74. There are associated provisions setting out the general basis for calculating the guarantee, and requiring periodical adjustments to the size of the guarantee. The European Commission is preparing technical guidelines for the establishment of the financial guarantee, as required by Article 22 of the Directive.

75. The exclusions and use of the derogations provided by Article 2(3) of the Directive mean that a financial guarantee would not be required unless the waste is to be deposited in a 'Category A' waste facility. It is therefore envisaged that the requirement for a financial guarantee will apply only to a small number of extractive waste facilities, if any.

76. If a financial guarantee is required, it should be considered as part of the planning application process. Such consideration is already the norm in cases where planning authorities consider that a financial guarantee is necessary before a planning application to extract minerals is approved. Article 7 requires that no waste facility shall be allowed to operate without a permit and that an operator should only be granted a permit if all the relevant requirements of the Directive is complied with. This will mean that, where required, planning permission should only be granted if an acceptable financial guarantee is in place. This will be confirmed in the Regulations.

Q11 Do you agree that planning permission for Category A waste facilities should be withheld until an adequate financial guarantee is in place?

77. If a planning application involving a waste facility is submitted and does not include any of the above information (where required) then the planning authority should advise the applicant of the need to provide the outstanding information. Once received (whether with the application or subsequently), the planning authority should consult with SEPA and HSE in the same way that they would for a planning application involving a waste management plan. In most instances, it is likely that consultation will take place conjointly on both the waste management plan and waste facility requirements.

78. Article 8 sets out the Directive's requirements for notifying the public of an application for an Article 7 Permit. Existing planning application procedures ensure that proposals for new mineral sites are subject to public advertisement so are considered to already fully meet the requirements of Article 8.

79. Planning authorities would determine planning applications by assessing whether the proposed development would be an acceptable use of land in the context of the development plan and all other material considerations. In addition, the planning authorities would have to consider whether the proposed extractive waste management operations complied with the Directive's general objectives, as set out in Article 4; the requirements for a waste management plan set out in Article 5, and that the operator has complied with all the requirements of the Directive relevant to waste facilities. SEPA and HSE will be statutory consultees for all planning applications. Their advice will be crucial in helping the planning authority decide whether the application met the requirements of the Directive, whether additional information was required, and the conditions to be attached to any planning permission. The planning authority would be obliged to consider the advice provided by SEPA and HSE when considering the planning application.

80. Where planning consent is granted, it should be subject to a condition that the waste management plan and waste facility are reviewed every five years and/or amended, as appropriate, in the event of substantial changes to the operation of the waste facility or to the waste deposited and that any amendments should be submitted for the approval of the planning authority. In addition, conditions should secure compliance with Article 7(4) requirements relating to monitoring results and best available techniques; Article 11 requirements relating to the construction and management of waste facilities; and Article 12 requirements relating to closure and after-closure procedures. The need to comply with these requirements, and how this should be done, will be clarified in the Regulations.

Obtaining an Article 7 Permit

81. Article 7(3) of the Directive confirms that the competent authority shall only grant a permit if it is satisfied that the operator complies with the relevant requirements of the Directive and Article 7(1) makes clear that "no waste facility shall be able to operate without a permit". The planning application process cannot, on its own, confirm such compliance since meeting all the requirements of the Directive will be reliant on other consenting regimes outwith planning control. Article 7(1) of the Directive, however, allows for the possibility for an Article 7 Permit to be a combination of consents. Any planning permission, including a satisfactory financial guarantee (where required), will therefore be only one part of an Article 7 Permit.

82. To ensure full compliance with Article 7, the draft Regulations will include a requirement that, regardless of planning consent, no waste facility will be able to operate until the operator also obtains any consents under the Water Environment (Controlled Activities) (Scotland) Regulations 2005 needed to meet the requirements of the Directive. The operator would then need to apply (subject to payment of the appropriate fee) for the necessary consent from SEPA before operations at the waste facility can commence. Such consents would then form further elements of the permit required under Article 7. Accordingly, the operator would need to obtain both the planning permission granted by the planning authority and any relevant authorisations and consents granted by SEPA in order to meet the requirements for an Article 7 permit and commence operations at the waste facility.

Category A waste facilities

83. If a waste facility is classified as a Category A waste facility then, in addition to the financial guarantee requirements of Article 14, it will have to comply with Article 6's requirements relating to major-accident prevention and information. This is considered further in Part III of the consultation paper.

Competency

84. Article 11(1) includes an additional requirement on member states to take "appropriate measure to ensure that the management of a waste facility is in the hands of a competent person and that technical development and training of staff are provided" in relation to any waste facility involving non-inert waste or a Category A waste facility. A further requirement at Article 11(2)(c) is that there are suitable plans and arrangements for regular monitoring and inspection of the waste facility by competent persons and for taking action in the event of results indicating instability or water or soil contamination."

85. The Quarries Regulations 1999 already require that all those working at a quarry must be competent before works start, whether or not they are employees of the quarry operator; and that there are sufficient competent people on site to manage the quarry and supervise as necessary. The requirement for competence is not restricted to quarry managers and those who work on the site, but also to all those in the management structure whose decisions affect quarry operations. HSE's policy on competence is at www.hse.gov.uk/foi/internalops/sectors/manuf/3_05_15.pdf. The Scottish Government's view is that these existing arrangements already meet the competency requirements in the Directive in relation to health and safety, including instability monitoring and inspection requirements.

86. The Regulations will need to make specific provision to ensure compliance with the competency requirements relating to water or soil contamination in Article 11(2)(c) of the Directive. It is proposed that the model in health and safety legislation is followed. This would mean that the Regulations would place a general requirement on operators to ensure that "suitable plans and arrangements for regular monitoring and inspection of the waste facility by competent persons and for taking action in the event of results indicating water or soil contamination." are in place, including "technical development and training" of such persons.

Q12 Do you agree that placing a general requirement on operators is an appropriate means of securing the competency requirements of Article 11?

EXISTING SITES

Compliance dates

87. The Scottish Government's aim is to implement the Directive in a way that imposes minimum burden on planning authorities and operators. However, the Directive sets out compulsory requirements to evaluate waste management plans and, where necessary, to ensure permits are in place before a waste facility can operate. Member States must ensure that all existing waste facilities comply with the provisions of the Directive by 1 May 2012 although any requirements for a financial guarantee will not need to be met until 1 May 2014. The intention is for the Regulations to specify 1 May 2010 as the date that operators of waste facilities must submit the necessary information to planning authorities. This date, which will apply regardless of whether an Article 7 Permit is required, should allow sufficient time for planning authorities and, if necessary, SEPA, to issue the necessary consents ahead of the Directive's compliance date of 1 May 2012. This will be particularly crucial if the site involves an Article 7 Permit since all the necessary consents must be in place by 1 May 2012 or operations would need to cease until consents are obtained.

88. The Directive does not include specific transposition provisions for existing sites not involving a waste facility. The Scottish Government is therefore proceeding on the basis that there is an expectation that such sites should comply with the Directive as soon as possible after the Regulations come into force. The regulations will, however, need to set out a realistic timetable that allows sufficient time for the preparation and submission of waste management plans. It is proposed that 18 months should be sufficient. This would include an initial period to ensure that all operators are informed of the new requirements.

Q13 Do you agree with the proposal to specify 1 May 2010 as the date that operators of waste facilities must submit the information required by the Directive?

Q14 Do you agree that operators of non-waste facilities must submit the information required by the Directive within 18 months of the Regulations coming into force?

Removing permitted development rights

89. Certain waste functions currently benefit from permitted development rights under Class 63 of the Town and Country Planning (General Permitted Development) (Scotland) (Order) 1992. These functions are conditional on waste management schemes being approved by planning authorities. The Scottish Government's understanding is that waste activities are, instead, generally covered within the main application for mineral extraction and that existing permitted development rights are rarely used. The intention is for the MWD Regulations to end these rights since there is no guarantee that approved schemes satisfy the requirements of Article 5 of the Directive. Existing sites with waste management schemes already in place will continue to benefit from these rights until 1 May 2012.

90. For existing sites, new arrangements must be put in place to ensure that activities fully meet the requirements of the Directive. It is likely that, for these sites, mining waste activity would have been considered as an integral part of overall extraction proposal rather than a separate activity. So, whilst operating standards at many sites will be of a standard promoted through the Directive, necessary arrangements must still be put in place to ensure that the requirements, particularly those relating to the provision of information, are met. Such arrangements must necessarily be tailored to reflect the waste produced at the site.

Existing sites not requiring an Article 7 Permit

91. Where a site is not classified as a waste facility it is proposed that a lighter regulatory touch can be adopted to ensure activities at existing sites fully meet the requirements of the Directive. The intention therefore is for the Regulations to provide that if a site was already in operation on 1 May 2008, and operations complied with an existing planning permission/permitted development rights, then operators would be required to submit a waste management plan that complied with the relevant provisions of the Directive. The Regulations will confirm that plans should be submitted within 18 months and subsequent activities at the site must be carried out in accordance with the plans as subsequently approved by the planning authority.

92. The Regulations would require approved plans to be reviewed every five years and/or amended, as appropriate, in the event of substantial changes to the way waste is deposited. Any amendments shall be notified to the planning authority. These plans would continue on this basis and remain outwith the planning application process.

93. When preparing waste management plans, operators will, in most instances, begin by revisiting information already submitted with the planning application, including the accompanying Environmental Statement, with the intention of resubmitting this in a way that ensures compliance with Article 5. This will also include identifying where the requirements of the Directive are being met through compliance with non-planning legislation. For example, all existing sites will already be covered by health and safety legislation relating to the physical stability of mines to a standard which already secures compliance with the Directive. The Plan should also identify whether more must be done to ensure compliance with the Directive and how the operator intends to do this.

94. Once received, planning authorities will need to ensure that the Plan does not relate to a waste facility and that sufficient information is provided to enable them to ensure that their responsibilities under the Directive are met. In reaching a decision on the waste management plan, consultation with HSE should not be necessary although the views of SEPA may need to be sought.

95. Existing waste facilities which do not require an Article 7 permit should be considered in the same way as a site requiring only a waste management plan. The Regulations will confirm that plans should be submitted by 1 May 2010 and subsequent activities at the site must be carried out in accordance with the plans as subsequently approved by the planning authority. As with new sites, operators will be expected to comply with additional waste management plan requirements relating to waste facilities. Again, consultation with SEPA and HSE should clarify which requirements will be secured through existing environmental or health and safety regulation. As with waste management plans, such requirements should not form part of planning authorities' considerations.

Modification to planning permission (agreement with operators)

96. In instances where the existing planning permission is subject to conditions that are contrary to any approved waste management plan (i.e. soil handling strategies and restoration plans) then it may be necessary to modify the planning permission. The 1997 Act includes Order making provisions that enable planning authorities to modify existing planning permissions. Section 67 sets out the procedures to be followed when an operator does not object to the modification. These procedures require public advertisement and provide for instances where objections to the modification are received. Where, following agreement of a waste management plan, the original consent has to be revisited insofar as it applies to the management of waste it is anticipated that operators will generally be content to agree to such revisions and, if necessary provide appropriate information, to ensure compliance with the Directive and that the procedures at Section 67 of the Act will be the most appropriate way to bring the planning permission into line with the waste management plan.

Q15 Do consultees agree that existing Section 67 procedures provide the most appropriate mechanism for bringing planning permissions into line with waste management plans?

97. Where submitted Plans do not meet the requirements of the Directive it is hoped that matters can be resolved through discussions with the operator. In the unlikely event that this cannot be done, planning authorities would be required to take the necessary action to ensure compliance. In extreme cases , planning permission and the conditions attached to that permission, insofar as they relate to the management of extractive waste, may need to be modified . In such instances an Order under Section 65 of the Act would be necessary following the procedures set out in Section 66.

98. Compensation is payable in the event of modification of planning permission which affects working rights. It is not anticipated that modifications to planning permissions to ensure compliance with Directive requirements would affect working rights in general, as the modifications would simply require different ways of operating in relation to waste management activities. Therefore it is unlikely that the issue of compensation will arise.

Q16 Do provisions in the 1997 Act provide sufficient and appropriate powers to enable planning authorities to bring existing consents into line with the Directive, if needed?

Waste facilities requiring a permit

99. As with new operations, operators would need to come to a view as to whether an extractive waste facility (under the terms of the Directive) existed and, if such a facility did exist, whether an Article 7 permit was required to operate that facility. Where this is the case, it is proposed that operators must submit a planning application (including a waste management plan) by 1 May 2010. This would be dealt with in the same way as a new application. It is not clear how many sites will be affected by this requirement until considerations on what constitutes inert waste have concluded. However, it is not anticipated that there will be many. This is considered to be the most appropriate way of ensuring that the Directive's requirements, particularly those relating to public participation are met.

Q17 Do you agree that existing sites requiring an Article 7 Permit should be required to submit a planning application by 1 May 2010?

100. The application should include all the information, including the proposed waste management plan, to ensure compliance with the relevant requirements of the Directive. The application should relate only to those aspects of the operation involving the management of extractive waste. The planning authority would then determine the application in the normal way, subject to consultation with the SEPA, HSE and the public. As with new operations, the planning authority would only grant planning permission if it were satisfied that the operation complied with all the relevant requirements of the Directive. Planning permission would supersede existing consents so the Order provisions needed for non-waste facility would not be needed.

101. As with new applications, operators may need to apply to SEPA for any necessary consents/modifications and, where necessary, ensure compliance with Article 6 in order to meet Article 7 permitting requirements. These would need to be obtained by 2012 to enable continuous operation of the waste facility. If this is not done, operations must cease until the necessary consents have been received. The financial guarantee requirement, if required, would not need to be met until 1 May 2014.

Publicity

102. There would be an imperative to ensure that mineral operators were aware of the new provisions and the need to submit revised waste management plans, etc. The Scottish Government will work with industry representative bodies to ensure that this is done. However, it will also be necessary for legislative provisions to be put in place to ensure all operators receive appropriate notification. Given that there are procedures in place requiring mineral sites to be reviewed (Schedule 10 of the 1997 Act) the expectation is that planning authorities should be aware of all working sites in their areas. The intention is therefore to include provision in the Regulations requiring planning authorities to notify all operators in their area that from 1 May 2012 it will not be lawful to operate an existing waste facility unless it is operated in accordance with the Directive. Such notification should be done within 6 months of the Regulations coming into force.

Fees

103. Existing sites that require an Article 7 Permit will be subject to the Town and Country Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations. However, there is no existing provision relating to fees to planning authorities for considering waste management plans. A comparison may be made to procedures for the review of old mineral permissions. These reviews do not incur a fee because operators have already paid a fee to obtain their original development consent.

Q18 Should the Regulations specify a fee for considering waste management plans?

Other transitional provisions

104. Article 24 of the Directive sets out transitional provisions, which will apply to extractive waste management operations which are in existence at the time the Directive comes into force on 1 May 2008. As confirmed above, it is intended to use 1 May 2010 as the date for both submitting waste management plans and, if required, a planning application. Failure to do so will mean that operators will not be in compliance with the Directive.

105. Article 24(4) provides that only some of the Directive's requirements will apply to waste facilities that:

  • stopped accepting waste before 1 May 2006;
  • are completing the closure procedures in accordance with applicable Community or national legislation or programmes approved by the competent authority; and
  • will be effectively closed by 31 December 2010.

106. The Scottish Government proposes to rely on the existing legislative framework to deliver the Directive's requirements applying to any such waste facility. Closure procedures will therefore continue to be governed by planning conditions dealing with the restoration and aftercare of mineral sites, and existing health and safety and environmental legislation covering other aspects, such as health and safety precautions, pollution control and operator competence, will continue to apply. The exclusions and derogations in Article 2(3) of the Directive will also be relevant as to which of the Directive requirements will apply to any particular waste facility covered by Article 24(4).

107. However, in order to ensure that the relevant requirements of the Directive are met in respect of closure and after-closure procedures, the Scottish Government proposes to place an obligation on planning authorities to make sure that the existing mineral planning permission for any waste facility covered by Article 24(4) will satisfy the Directive's requirements, including the general requirements of Article 4. The Scottish Government does not expect that any significant changes to planning permission conditions will be necessary as planning authorities are already expected to control the environmental effects of mineral sites by use of planning conditions. However, the Scottish Government proposes to provide a power for planning authorities to impose additional planning conditions where necessary, to ensure compliance with the relevant requirements of the Directive.

108. The Scottish Government must notify the Commission of waste facilities falling within Article 24(4) by 1 August 2008. As this information is not held centrally, it will be necessary for the Scottish Government to contact planning authorities and operators separately to obtain the information required by the Commission.

109. Article 24(3) applies to waste facilities closed by 1 May 2008. Operators of such facilities are required to comply with the Directive only in respect of after-closure procedures. The Scottish Government's view is that existing legislation delivers these requirements of the Directive and does not propose to make any legislative changes.

Live applications

110. Existing application undetermined at 1 May 2008 must comply with the provisions of the Directive with immediate effect. This means that planning permission should not be granted on or after that date unless the applicant has complied with the relevant provisions of the Directive. Where relevant, applicants should be asked to categorise the extractive waste associated with the proposed development and to submit any further information that is necessary to enable the application to be determined. Planning authorities should then consider this information in the same way as they would an application for a new operation, as set out previously in the consultation paper. OTHER ISSUES

Environmental Impact Assessment

111. Proposals for new mineral sites will be covered by the provisions of the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 1999 if the proposed development falls within Schedules 1 or 2 of the Regulations. Where EIA is required, operators will need to assess the impacts of the whole development i.e. both the extraction of minerals and the associated management of extractive waste. Article 7(2)(e) confirms that any environmental impact assessment should form part of the application for a permit. This is not considered to impose significant new burdens. For existing sites, any application involving a waste facility may also trigger EIA if it involves a Schedule 1 or 2 development. When considering this, account should only be taken of the area of land where the management of waste take place and not to other aspects relating to the original planning consent.

112. The Directive does not apply EIA provisions to waste management plans in the same way as it does for the Article 7 permitting process. The Scottish Government's view is that such plans are concerned with the minimisation, treatment, recovery and disposal of extractive waste and this is separate from any "development consents" that have already been obtained by operators. However, the need to consider whether EIA is relevant will be triggered if an approved waste management plan necessitates the need to revisit the original development consent.

Transfer of permissions

113. Where the operator of a waste management operation changes, planning permission runs with the land, so that anyone carrying out an operation on the land concerned is bound by the planning permission and accompanying conditions. There would therefore be no need to apply for a transfer of the planning permission. However, operators would need to apply for transfer of other consents, such as groundwater consents, and also meet operator competence authorisation requirements.

Monitoring

114. The planning authority would be responsible for monitoring operator compliance with the conditions attached to the planning permission and Article 17 introduces a new requirement for planning authorities to inspect waste facilities covered by Article 7. The Scottish Government's intention is to introduce a fee charging regime so that planning authorities can charge operators a fee for regular site visits carried out to mineral sites to monitor compliance with the planning permissions to which they are subject. Such arrangements should help authorities periodically review the planning permission for waste facilities requiring an Article 7 permit and, where necessary, update permit-related conditions in the circumstances set out in Article 7(4) (e.g., where there are substantial changes in the operation of the waste facility).

Enforcement

115. Planning authorities currently have discretionary powers under planning legislation to take enforcement action if they consider that the conditions attached to the planning permission had been, or were likely to be, contravened. To ensure compliance with the Directive, the exercise of planning authority enforcement powers in relation to the management of extractive waste would have to be made subject to a duty to give effect to the Directive's requirements. SEPA has existing powers of enforcement in relation to the discharge consents, as do HSE in relation to health and safety legislation.

Inventory of closed waste facilities

116. Article 20 of the Directive requires Member States to ensure that an inventory of closed waste facilities, including abandoned waste facilities, is drawn up, periodically updated and made available to the public by 1 May 2012. The Inventory should include only those sites which cause serious negative environmental impacts or have the potential of becoming in the medium or short term a serious threat to human health or the environment. The Scottish Government is considering how best to take this work forward. Once a national Inventory is complete, it may be appropriate to pass this work on to local authorities so that they can maintain, and update, the Inventory for sites in their areas as required by the Directive.

Q19 Do you have any thoughts on how the inventory requirements of the Directive can be met?

Regulatory Impact Assessment

117. A Regulatory Impact Assessment will be prepared to accompany the final version of the Regulations. This will be subject to prior discussion with the industry.

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Page updated: Tuesday, April 8, 2008