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Proposals for Amendments to the Waste Management Licensing Regulations: A Consultation Paper

CHAPTER ONE — INTRODUCTION

Purpose

1.1 The purpose of this consultation paper is to set out the basis and make proposals for a review of a number of waste management licensing exemptions. This chapter outlines the legislative background relating to the exemptions from waste management licensing and why they are used. A brief summary of the proposed exemptions is provided together with information on the consultation process and the views being sought.

1.2 The consultation paper also seeks views on

• proposals for new prescriptions of mobile plant to reflect representations received from both SEPA and the waste management industry;
• proposals for imposition of financial penalties for failure to register exemptions not under review.
• powers for SEPA to refuse to register exemptions or remove exemptions from the register.
• whether the quantities of wastes allowed to be recovered under paragraph 7(Land Treatment) should be reduced.

Scope of the Regulations

Subject to comments received during the consultation exercise, the necessary legislation will be introduced by amendment to the Waste Management Licensing Regulations 1994, planned for the end of 2003.

Legislative Background

1.4 Articles 9 and 10 of the Waste Framework Directive² (WFD) require establishments or undertakings carrying out a waste disposal or recovery operations to obtain a permit from the competent authority. Article 11 of the Directive gives Member States some discretion to provide exemptions from these requirements. These exemptions can be provided for waste recovery operations (or for non-hazardous waste disposal operations at the place the waste is produced), and only if:

• competent authorities have adopted general rules for each type of activity laying down the types and quantities of waste and the conditions under which the activity in question may be exempted from the permit requirements; and
• if the types of quantities of waste and methods of disposal and recovery are such that the conditions imposed in Article 4 are complied with."

1.5 The conditions imposed in Article 4 of the WFD requires all waste to be recovered or disposed of without endangering human health and without using processes or methods which could harm the environment. Exemptions are also subject to the requirement in Article 13 for "appropriate periodic inspections" by the competent authority.

1.6 Under section 33 of the Environmental Protection Act 1990, anyone who deposits, recovers or disposes of controlled waste must do so in compliance with the conditions of a waste management licence. However, Regulation 17 of the Waste Management Licensing Regulation 1994 disapplies this requirement for a number of activities as listed in Schedule 3 to the Regulations. These activities are exempt from the requirement to obtain a waste management licence if they comply with the terms of the exemption.

1.7 Waste management licences are the normal forms of regulatory control. Exemptions are within regulatory control but they do not contain the stringent requirements of waste management licensing. Exemptions are a way of providing a lighter regulatory touch to encourage certain waste recovery activities without polluting the environment or harming human health.

1.8 The exemptions cover a range of low risk waste management activities. These have been in operation since 1994. SEPA and industry now have the benefit of considerable experience of how the exemptions work in practice. The proposed changes to the Regulations have been developed on the basis of advice from SEPA.

1.9 The proposals do not cover any exemptions involving special waste. Exemptions allowing the recovery of special waste must comply with Article 3 of the Hazardous Waste Directive (91/689/EEC), which requires more stringent general rules including limit values for the content of hazardous substances in the waste. The Hazardous Waste Directive also requires that exemptions relating to special waste be sent to the European Commission for approval before they come into force. The Commission would consult other Member States before reaching a decision. This can be a lengthy process and approval of such exemptions is difficult to achieve. Nevertheless, the Executive is considering changes to the existing special waste exemptions and these will be subject to a separate future consultation, and may include small-scale activities such as treatment of former petrol stations, which would contribute towards remediation of brownfield sites. Non-special waste exemptions do not need prior approval from the Commission.

Summary of Proposals

1.10 The exemptions subject to review are as follows (the paragraph numbers refer to the exemption number in Schedule 3 of the 1994 Regulations):

• composting (paragraph 12);
• storage and spreading of sewage sludge (paragraph 8);
• waste recovery at a sewage treatment works (paragraph 10);
• burning of dunnage at a dockside (paragraph 46) and
• Burning waste in the open (paragraph 30).

1.11 There are also proposals to broaden the present descriptions of mobile plant; to implement EC Decision 96/350/EC; and views are being sought on whether the quantities of wastes allowed to be recovered under paragraph 7(Land Treatment) should be reduced.

1.12 The rationale for these proposed changes is to ensure that they:

• encourage genuine recovery operations;
• prevent abuse;
• deliver better enforcement and inspection arrangements; and
• continue to provide protection of the environment and human health.

1.13 For each exemption subject to review, the Executive has revised the types and quantities of waste that may be recovered under the terms of the exemption. Additional registration requirements are also proposed.

Composting

1.14 One of the Executive’s key waste policy objectives, contained in its National Waste Plan³ is to increase the volume of organic waste that is composted. Increasing composting acts to reduce the pressure on waste disposal at landfill and will assist with meeting the targets to divert municipal organic waste from landfill that are set under the Landfill Directive⁴. Composting contributes to the Executive’s commitments on sustainable development by reducing the use of natural resources, which are required to produce artificial fertilisers. It also acts to improve soil structure and nutrient content.

1.15 The current composting exemption restricts composting operations to places where the waste is produced or where the compost is to be used. This is known as the "import/export" restriction and has caused problems for community composting groups who are currently unable to gather waste from various sources, compost it, and then supply the resultant compost to a number of users. It is therefore proposed that this restriction is removed to allow for all general composting, regardless of the initial source of waste and final destination of the composted material. It is hoped that this change will act to encourage the development of further community composting schemes.

1.16 Composting does, however, have the potential to cause environmental pollution, harm to health and nuisance through odours, leachate and potentially harmful bio-aerosols if not carried out properly. It is important for the exemption to address the balance between encouraging composting whilst protecting human health and the environment. Therefore, it is proposed to include four quantity limits, which apply to different composting activities (200t, 250t, 300t, and 400t).

Other proposals

1.17 Other proposed changes to exemptions are:

• to amend paragraph 10 of Schedule 3 of the 1994 Regulations to allow for an increased volume of sludge to be brought in for recovery at sewage treatment works;
• amend paragraph 8 of Schedule 3 of the 1994 regulations to bring the storage of sewage sludge in line with the revised Sludge (Use in Agriculture) Regulations 1989 and to allow for the spreading of the material to industrial crops or other non-agricultural land for ecological improvement;
• provide for a new exemption for the burning of dunnage.
• to add British Waterways to the list of organisations in paragraph 30 of Schedule 3 of the 1994 Regulations.

This consultation also:

• sets out proposals to extend the prescribed list of mobile plant to allow for a wider range of activities to obtain mobile plant licences, and to allow for future innovation;
• proposes implementation of EC Decision 96/350/EC, which lists new disposal and recovery operations covered by the Waste Framework Directive.
• seeks views on decreasing quantities of the wastes which may be spread for agricultural benefit or ecological improvement under paragraph 7(land treatment) from 250 tonnes to 100 tonnes per hectare per year or in the case of dredging from inland waters from 5,000 tonnes to 1,000 tonnes per hectare per year.
• seeks views on imposing financial penalties for failure to register exemptions not under the present review.
• proposes powers for SEPA to refuse to register exemptions or remove exemptions from the register.

Draft Regulations & Partial Regulatory Impact Assessment

1.18 A copy of the proposed draft regulations is at Annex A. A draft Partial Regulatory Impact Assessment (RIA) is at Annex B. The RIA aims to set out the options available for each exemption under review and detail the associated risks, costs and benefits of each option.

1.19 For each exemption, we are seeking further information on the anticipated costs of collating the information required to register the exemption, together with any other costs and/ or benefits that have not been taken into account. These figures will be taken into account when the RIA is finalised.

Registration, Notice Obligations / Administrative Conditions

1.20 The regulations establish the mechanism by which operators register the exemptions under review. The regulations state that each operator or undertaking, which intends to carry out an exempt activity, must submit a written notice to SEPA. This notice must be on a form provided by SEPA for the purpose. With the exception of the exemption for the burning of Dunnage (exemption paragraph 46), this notice must be submitted at least 21 days before the operation is due to commence (transitional arrangements have been provided for existing operators).

1.21 SEPA must within 21 days of receipt of the notice, either register the exemption (by entering the details on the public register), or serve a notice of refusal indicating why registration of the exemption has been denied. If a notice of refusal has not been served within 21 days, the exemption shall be deemed to have been registered. Each exemption will last for one year after which the operator must renotify SEPA.

SEPA will also be given powers to remove any exemption from the register, provided reasons are given.

1.22 The details to be included on the form provided by SEPA, and therefore what the operator must complete, has been provided for in the draft Regulations.

1.23 The form includes a number of new registration obligations in connection with those exemptions now subject to review. These will provide SEPA with more information about the operations taking place under an exemption and allow SEPA to inspect and consider the activities before they take place. The exact nature of the obligations will vary according to the exemption but, in general, they will require establishments or undertakings proposing to recover waste under one of those exemptions to:

• provide their name and address, telephone, fax and email details;
• provide information in the notice of the types and amounts of waste to be recovered and;
• where relevant, provide evidence that the recovery of waste will lead to benefit to agriculture or ecological improvement. This must be based on properly qualified advice;

1.24 In order to be registered, each notice must be accompanied by payment of a fee where required.

1.25 Failure to register the activity with SEPA would be a criminal offence with a penalty on summary conviction of a fine up to level 3 on the standard scale (£1000). For other exemptions not subject to review, the penalty for failure to register will be raised from a flat £10 fine to level 2(£500) on the standard scale. This is to ensure consistency with the scrap metal exemption. Failure to comply with the terms of the exemption itself (as set out in Schedule 3) shall be subject to a maximum fine of £20,000 on summary conviction.

1.26 An exemption, even if registered, does not provide protection from prosecution if the activity is not carried out within the terms of the exemption. Failure to comply with the terms of the exemption provided under Regulation 17 and Schedule 3 could lead to refusal to register or withdraw of the exemption by SEPA. The continuance of such activities would be in breach of section 33 of the Environmental Protection Act 1990, which imposes a maximum of an unlimited fine and/or 2 years imprisonment if convicted on indictment.

1.27 The regulations include a requirement on most operators to keep a record of the quantity, nature, origin and destination of wastes recovered. These records must be kept for at least two years and must be made available to SEPA on request. Failure to keep these records will be subject to a maximum fine of £20,000 on summary conviction.

Fees & Inspections

1.28 Except for the scrap metal exemption (paragraph 45 of Schedule 3), no charges are currently imposed for the registration of exemptions. This means that SEPA must bear the cost of inspecting sites from within its existing provisions using grant-in-aid funding. Article 13 of the Waste Framework Directive places SEPA under a duty to carry out "appropriate periodic inspections" of exempt activities. With regard to this requirement and in keeping with the general policy that SEPA should seek to cover the costs of inspections from operators, it is proposed that SEPA be given the power to levy a fee for those exempt activities under review.

1.29 A fee will not be levied where the waste is wholly or mainly agricultural waste.

1.30 The level of fees will not be set in these Regulations but will be a matter for SEPA to judge on a cost recovery basis, and will be included in their Charging Scheme prescribed under section 41 of the Environment Act 1995. The fee will only cover the costs to SEPA of that particular operation but will not cover SEPA’s enforcement costs (e.g. the costs of prosecution). This would be considered unfair, as legitimate exempt operations would in effect be paying for the unscrupulous operators.

1.31 The registration of each of the exemptions under review will expire after 12 months. Where the activity continues beyond that period, the operator must submit another notice to SEPA. Where an initial fee has been paid, the renewal notice must be accompanied by the payment of a renewal fee.

1.32 SEPA has provided an estimate of the charges proposed for the initial registration of the exemption and also for each exemption. These, together with the other costs and benefits that are expected to be incurred through this revision, are set out in the Partial Regulatory Impact Assessment at Annex B.

European Waste Catalogue (EWC) Codes

1.33 Since the original exemptions were provided, the EU has adopted the European Waste Catalogue (EWC)⁵ for classifying wastes. The EWC lists all wastes subject to control under the Waste Framework Directive, and also incorporates the Hazardous Waste List. All Member States are required to transpose the code into domestic law and apply it as necessary to waste controls under the Waste Framework Directive.

1.34 The EWC descriptions provide a more precise method of identifying the types of waste permitted and so, where possible, the descriptions of the wastes have been taken directly from the EWC. This will also ensure that the requirements under the Waste Framework Directive to specify the types of waste permitted under the conditions of an exemption are fulfilled.

1.35 In some cases, the exact description of the waste as stated in the EWC is too wide or too vague to be included within the terms of the exemption. The description of these wastes has therefore been drafted so that it specifies more clearly the types of waste that are permitted under each exemption.

For example 19 05 03, Off Specification Compost. This has been modified to include compost consisting only of biodegradable waste.

1.36 The EWC lists wastes in chapters by the process or industries from which they arise. For example, Chapter 17 04 lists "construction and demolition wastes (including excavated soil from contaminated sites)".

The chapters are sub-divided in order to further define the process from which the waste arises. It is proposed that the amending Regulations should include the appropriate chapter headings and sub-headings so that users can identify the source and type of the waste allowed under the exemption.

Subsequent Amendments / Guidance

1.37 The Executive recognises that it will be necessary to revise the statutory guidance in Annex 5 of Circular 10/94 once the amending Regulations are brought into force. Annex 5 provides guidance on the interpretation and implementation of the licensing exemptions. We will be consulting on amendments to Annex 5 of Circular 10/94 to bring it in line with changes to the exemptions in a future exercise. SEPA will also be providing practical and technical guidance on how the amended exemptions will be implemented.

Draft Amendment Regulations

1.38 Draft amending Regulations are attached at Annex A.

Regulatory Impact Assessment

1.39 Regulatory Impact Assessment (RIA) identifying the costs benefits and risks associated with each option considered is at Annex B.

Views Being Sought

1.40 The Executive would like to receive any comments you may have on the proposals in this paper. We would also like to receive your opinions on the following questions:

• Will the fact that the exemptions now specify in more detail the types and quantities of waste prevent abuse?
• Will the proposals encourage more recovery of certain wastes, for example, composting waste? Do you agree that the proposed changes to the registration obligations and other administrative requirements will help SEPA to regulate exempt activities more effectively?
• Do you agree that the revised arrangements should lead to better enforcement and inspection by SEPA?
• Do the proposed amendments set the right balance between lighter regulatory control (compared with site-specific waste licences) and the need to provide general rules to protect the environment and human health?
• Given that the aim of the mobile plant prescriptions is to make the scope as broad as possible to allow for the development of new technology, do you agree that the proposed new prescriptions will help disposal and recovery operations?
• Are there any other exemptions that could be reviewed/ introduced in any future review of exemptions?

Consultees

1.41 Consultees include a number of those directly affected by these proposals, for example, businesses and individuals who are currently registered under one of the exemptions subject to review. The consultation paper is being sent to many of those in industries which produce waste for which new exemptions or mobile plant prescriptions will be introduced, and to representative organisations such as environmental and waste interest groups and trade associations. A list of consultees is provided at Annex C. Please let us know if you would like us to send this paper to any other organisations.

Timetable for Introduction

1.42 The Executive will consider whether any changes to the draft amending Regulations and RIA are needed following consideration of the responses to the consultation. We intend to introduce the Regulations by the end of 2003 with the aim of bringing them into force with immediate effect for all the new exemptions. Any activity currently operating under an exemption will have 6 months to either comply with the terms of the revised exemption, apply for a waste management licence (or Pollution Prevention & Control licence if necessary), or cease to operate.

Submission of Responses

1.43 Responses should be sent by 19 September 2003 to:

Mr Peter Brown
Policy Officer
Scottish Executive Environment and Rural Affairs Department
SEPA Sponsorship and Waste Unit
Area 1-J
Victoria Quay
Edinburgh
EH6 6QQ
Telephone: 0131 244 0237
E-mail: waste.team@scotland.gsi.gov.uk

1.44 Please provide details of your name in your response and, where relevant, the organisation you represent.

1.45 It is the practice of the Scottish Executive to make publicly available responses to consultation papers or to deposit them in their libraries. We will do this automatically unless you indicate that all or part of your reply is to be excluded from this arrangement. Those comments sent in confidence will be included in any statistical summary published, but will not otherwise be identified.

Enquiries and Further Copies

1.46 General enquiries should be addressed to Peter Brown at the address shown above. Additional copies of the consultation paper may be obtained free of charge.

The consultation paper is also available on the Scottish Executive website: www.scotland.gov.uk/consultations/environment/wmlr

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