Consultation on Zero Waste Regulations

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Consultation on Zero Waste Regulations

  1. 1. Regulations to Deliver Zero WasteA Consultation on the proposed Zero Waste (Scotland) Regulations 2011
  2. 2. PurposeThe Zero Waste Plan, published on 9 June 2010, set out the strategicdirection for waste policy for Scotland and proposed 22 actions to be taken todeliver it. This consultation covers 3 of those actions relating to theintroduction of regulatory measures to:• require source segregation and separate collection of specified waste materials;• restrict input to landfill (effectively banning materials which could be re-used or recycled or which could be used to produce energy); and• restrict inputs to Energy from Waste facilities (effectively banning materials which could be re-used or recycled).Consultation ArrangementsPlease send your views and comments on the proposals in this paper to: Zero Waste Delivery Team Scottish Government Area 1-H Victoria Quay EDINBURGH EH6 6QQ Tel: 0131 244 0205 Fax: 0131 244 0245 E-mail: EQCAT@scotland.gsi.gov.ukResponses should be made on the attached Respondent Information Formand returned to us by 28 February 2011. Earlier responses would bewelcome.
  3. 3. 1.0 A Vision for a Zero Waste ScotlandThis vision describes a Scotland where resource use is minimised, valuableresources are not disposed of in landfills, and most waste is sorted into separatestreams for reprocessing, leaving only limited amounts of waste to go for mixedwaste treatment, energy from waste and landfill.A zero waste Scotland will: • be where everyone – individuals, the public and business sectors – appreciates the environmental, social and economic value of resources, and how they can play their part in using resources efficiently; • reduce Scotland’s impact on the environment, both locally and globally, by minimising the unnecessary use of primary materials, reusing resources where possible, and recycling and recovering value from materials when they reach the end of their life; • contribute to sustainable economic growth by seizing the economic and environmental business and job opportunities of a zero waste approach.Successful implementation of Scotland’s Zero Waste Plan 2010 will help Scotland toachieve sustainable economic growth. Recycling represents a huge opportunity toreduce dependency on imports and deliver a sustainable supply of basic rawmaterials.At the heart of the Zero Waste Plan is a change of mindset, a need for every one ofus to start viewing waste as a potential resource and to think about how to use thatresource most efficiently. Many businesses, individuals and public sectororganizations are already making this shift and their leadership and achievementsmust be replicated across Scotland. 3
  4. 4. 2.0 Introduction2.1 The Zero Waste Plan 2010Scotland has already embarked on the journey towards a more sustainable approachto waste and resources. Recycling rates continue to rise, volumes of waste beingsent to landfill are declining, and as a society we are increasingly aware of theenvironmental impact of our activities.However, despite this progress, recyclable materials continue to be landfilled. TheZero Waste Plan is underpinned by a determination to achieve the best overalloutcomes for Scotland’s economy and environment by making best practical use ofthe approach in the waste hierarchy: prevention, reuse, recycling and recovery.The Zero Waste Plan sets out Government’s intention to develop regulatorymeasures to drive source segregation, implement a phased programme of landfillbans and ensure that only waste which could not have been recycled is incinerated.Zero Waste Plan Action 4: The Scottish Government will introduceprogressive bans on types of materials that may be disposed of in landfill, andassociated support measures, to ensure that no resources with a value forreuse or recycling are sent to landfill by 2020.Zero Waste Plan Action 8: To support the introduction of landfill bans, theScottish Government will introduce regulations to drive separate collectionand treatment of a range of resources in order to maximise their reuse andrecycling value, and generate market supply. The initial focus will be onseparate collection of food waste, in order to recover its material and energyvalue and avoid contamination of other waste materials.Zero Waste Plan Action 14: The Scottish Government will introduceregulatory measures to support the delivery of landfill bans, by ensuringenergy from waste treatment is only used to recover value from resources thatcannot offer greater environmental and economic benefits through reuse orrecycling. These measures will supersede the current 25% cap whichcurrently applies only to municipal waste, and are likely to result in similaramounts of resources being available for energy from waste treatment.The following consultation contains a package of regulatory measures to deliverthese actions. They will initiate a step change in how waste will be managed inScotland by aiming to: • Maximise the quantity and improve the quality of materials available for recycling. • Make sure that materials which could have been recycled are not wasted. • Protect the environment by ensuring that only suitable waste streams are finally disposed of in landfill. • Provide greater certainty for investment in infrastructure • Manage waste according to its resource value and not according to where it came from. 4
  5. 5. The proposed regulations work together with other policy instruments (e.g. landfill taxand recycling targets) to help achieve a zero waste Scotland and drive investmenttowards the most sustainable waste management solutions for Scotland in the longterm. Each measure should not be seen in isolation; they are package ofinterdependent and complementary measures.The regulatory amendments suggested have been informed by research work carriedout by Eunomia Consulting on landfill bans1. Their research indicated landfill bans,when coupled with a “requirement to sort”, would deliver net environmental andfinancial benefits. The work focuses on defining waste by material type (to conserveresources) or property (to protect the environment from the impacts of disposal).2.2 The draft statutory instrumentsThere are two new statutory instruments proposed: 1. The proposed Zero Waste (Scotland) Regulations 2011 amend the: • Environmental Protection Act 1990 • Waste Management Licensing Regulations 1994 • Pollution Prevention and Control (Scotland) Regulations 2000 • Landfill (Scotland) Regulations 2003 and 2. In addition, the Environmental Protection (Duty of Care) Regulations 1991 are replaced by the proposed Environmental Protection (Duty of Care) (Scotland) Regulations 2011.Drafts of these statutory instruments are contained in Appendix 1.2.2 Summary of proposed regulatory measuresThe proposed regulatory measures take a resources based approach to managingwastes from all sectors. In an all waste approach, waste can be broadly split into twocategories – sorted materials for recycling and unsorted waste requiring furtherrecovery and disposal. The proposed regulations reflect this split by taking a twopronged approach: (a) to maximise recycling and (b) to maximise resource recoveryand protect the environment through treatment of unsorted waste. ScottishGovernment therefore proposes regulations to require: 1. Source segregation and separate collection of the key recyclable materials. These materials are paper and card, glass, metals and plastics. Food waste is also targeted due to the environmental benefits of managing biowastes separately. Source segregation is a crucial component of a successful recycling strategy because it enables the quality of the materials to be maintained. Making source segregation and separate collection a statutory duty aims to maximize the quantities of high quality materials available for reprocessing. This will provide additional support for the recycling industry by helping to secure supplies of high value materials. Consultees are asked to note specifically that different requirements will apply to household waste collected by local authorities. More details are in sections 5.0 and 6.0.1 http://www.wrap.org.uk/downloads/FINAL_Landfill_Bans_Feasibility_Research.f66a6ebf.8796.pdf 5
  6. 6. 2. A ban on mixing separately collected recyclable materials. Once recyclable materials have been segregated, they must be managed in a way which does not compromise their quality. The proposed regulations will give SEPA statutory powers to include conditions in environmental permits to make sure that source segregated materials are not mixed with other wastes or materials in a way which would hinder their recycling potential. More details are in section 7.0 3. A ban on landfilling the key recyclable materials. This supports the upstream measures taken to maximise levels of quality recycling by banning those same materials from landfill when source segregated and separately collected. More details are in section 8.0. 4. A restriction on the inputs to energy from waste (EfW) facilities. Not all recyclable waste is segregated at source and in some cases it will end up in the unsorted waste stream. To ensure waste materials which could have been reused or recycled are not incinerated, EfW inputs will be restricted, through the environmental Permit, to residual waste and other suitable single stream wastes such as contaminated wood. This restriction means that unsorted waste will not be able to go directly for EfW without first being pre- treated. This provides a second opportunity to remove recyclate missed at the source segregation stage and ensure that Scotland does not simply move from mass landfill to mass incineration. More details are in section 9.0 5. A property based ban on waste disposed of to landfill based on organic content. This is proposed in order to protect the environment from the potential impacts of landfilling biodegradable waste. This will reduce both the volumes and biodegradability of waste being sent to landfill. More details are in section 10.0Under these proposals, much less waste will be transported directly from producer toincineration or landfill. Source segregation will drive greater volumes of recyclablematerials to appropriate treatment for recycling. Unsorted wastes will be pre-treatedto extract recyclable material, produce Refuse Derived Fuel and reducebiodegradability of the landfilled fraction. These measures constitute acomplementary package which will drive sustainable economic growth andencourage Scotland to become one of the most resource efficient economies inEurope.2.3 Lead-in times for the proposed regulatory measuresIntroducing these measures will require appropriate lead-in times. ScottishGovernment’s aim in setting the timings for introduction is to balance the need forenvironmental improvement with the time required for local authorities and thewaste management industry to make the necessary adjustments to their practicesand to develop the alternative infrastructure.For example, the landfill bans research referenced above suggested a lead-in timeof 7-10 years for the case of a ban on the whole category of biodegradable waste.In this scenario, it is also desirable for recycling levels to be already relatively highto allow for the resource efficiency gains from recycling (paper and card) andcomposting and anaerobic digestion (of source separated green and food waste)to be fully realised. 6
  7. 7. A proposed timeline for the landfill bans is illustrated here:Views are sought from consultees regarding timings of introduction for each of thefive proposed regulatory measures outlines above. 7
  8. 8. 3.0 Waste Flows and Policy/Regulatory Drivers Note: the diagram shows the waste flows and regulatory / policy intervention points discussed in this paper and does not show all possible waste / material flows in the economy 8
  9. 9. 4.0 Consultation QuestionsQ1. Are there any other materials or waste streams which should be included in these requirements to sort and separately collect?Q2. Food waste is required to be presented in a dedicated container. Are there any other recyclable materials which should be sorted and presented separately for collection in a dedicated container?Q3. Do consultees have any comments on the new draft Duty of Care Code of Practice?Q4. Do consultees consider that Government should mandate more specifically what actions waste collection authorities must take to improve recycling of waste from households? If so, what are they?Q5. What additional measures, if any, should Government consider in order to oblige householders to recycle?Q6. Do consultees agree that banning the listed materials accompanied by a “requirement to sort” will be effective in achieving high recycling rates? If not, what additional or alternative measures could be adopted?Q7. Do consultees consider that banning the listed materials accompanied by a requirement to sort will help support investment in the infrastructure required to achieve high recycling rates?Q8. What pre-treatment do consultees consider is necessary in order to ensure that only residual waste is managed in EfW facilities?Q9. Do consultees agree that this is an appropriate measure to prevent over- provision of residual waste management infrastructure?Q10. What single stream waste, such as contaminated wood, do consultees consider are appropriate for EfW?Q11. Scottish Government intends that the EfW restrictions will apply immediately to any new installation. What transitional period should be allowed for existing EfW installations to comply with the regulations?Q12. Do consultees consider that the lead-in times for the landfill bans are reasonable?Q13. What test method do consultees consider should be used to assess the level of biological activity?Q14. Do consultees have any other comments? 9
  10. 10. 5.0 Source Segregation and SeparateCollection5.1 What is Proposed?Prioritising high levels of closed loop recycling is central to achieving a zero wasteScotland. The higher the quality of the waste materials collected for recycling thegreater the environmental benefit. Recycling reduces the use of virgin materials andenergy required to extract and process raw materials.The producer of waste, through their management at source, ultimately determinesthe value which can subsequently be derived from it. In order to maintain a highresource value, it is vital that recyclable materials are separated from other wastes atsource. This key action underpins the whole drive towards a zero waste Scotland. Itsupports market demand for high quality and high value recyclate and is the best wayto achieve high recycling rates.Clean, uncontaminated recyclable materials command higher prices in the recyclingmarkets. Therefore, producers who source segregate may find that they can reducetheir costs of waste collection and disposal. Many waste management companies inScotland already offer separate collection services and have reduced wastemanagement costs for many of their customers.In order to give a clear signal to stakeholders about the importance of the zero wasteobjective of maximising the quantities of high quality recyclable materials sourcedfrom Scotland, the Scottish Government is proposing legislative change.An extended Duty of Care on all waste producers (other than householders) willrequire source segregation of the key recyclable materials. This statutoryrequirement is intended to place a general responsibility for everyone to do the bestthey can with their recyclable wastes and will require a significant change of mindset.No longer will it be acceptable to fill one mixed waste bin with all waste streams. Thisreform will drive a step change in the way trade waste management operates inScotland for both producers and the waste industry.These legislative amendments are supported by a new statutory Duty of Care Codeof Practice made under section 34(7) of the EPA 1990 which replaces all previousversions applicable in Scotland. The CoP also forms part of this consultation.5.2 What do the regulations say?Regulation 2 of the draft Zero Waste (Scotland) Regulations 2011 makes thefollowing amendment to section 34 of the Environmental Protection Act 1990.2.—(1) The Environmental Protection Act 1990(2) is amended as follows. (2) After section 34(1) insert— ì(1A) In subsection (1), references to a written description of the waste include text thatis— (a) transmitted by electronic means;2() 10
  11. 11. (b) received in legible form; and (c) capable of being used for subsequent reference.î. (3) After section 34(2) insert— ì(2A) Subject to subsection (2D), it shall be the duty of any person who producescontrolled waste (other than an occupier of domestic property in respect of waste produced on thatproperty) to present the following wastes for collection separately from all other wastes:— (a) glass; (b) metals; (c) plastics; (d) textiles; (e) paper; and (f) card (including cardboard).(2B) Subject to subsection (2D), it shall be the duty of any person carrying on an undertakingwhose activities consist of or include food production, food retail, food distribution or wholesalingor food preparation to present the food waste produced by that person in the course of that activityfor collection separately from all other wastes.(2C) Subject to subsection (2D), it shall be the duty of any person who carries controlled waste tocollect and carry separately from other types of waste those types of waste which have beenpresented for collection separately in accordance with either subsection (2A) or (2B).(2D) The duties contained in subsections (2A) to (2C) do not apply to the extent that compliancewith them would be unreasonable.î. (4) After section 34(5) insert—ì(5A) The Scottish Ministers may, by regulations, make provision imposing requirements on anyperson who is subject to any of the duties imposed by subsections (2A) to (2C) as respects themaking and retention of documents and the furnishing of documents or copies of documents.î. (5) After section 34(6) insert— ì(6A) Any person who fails to comply with any of the duties imposed by subsections (2A)to (2C) or with any requirement imposed under subsection (5A) shall be liable on summaryconviction to a fine not exceeding level 5 on the standard scale.î. (6) In section 34(7), for “the duty imposed on them by subsection (1) above” substitute “theduties imposed on them by subsection (1) and subsections (2A) to (2C)”.5.3 Who does the new Duty apply to?This Duty applies to all waste producers with the exception of householders. Thismeans that for example, all shops, offices, factories, restaurants, schools andhospitals must comply with this new duty. For more information on how sourcesegregation will be increased for waste from households, please see Section 6.0.The requirement to source segregate food waste is targeted specifically on thoseundertakings involved in food production, food retail or food preparation. Thisincludes food manufacture, canteens, kitchens, schools, restaurants andsupermarkets.The Duty also applies to waste carriers who collect source segregated materials.Waste collectors must make sure that the efforts made by producers to sourcesegregate are not undermined once those materials are collected and transported. 11
  12. 12. 5.4 What do waste producers have to do?Under these proposals waste producers have a new statutory duty to:• Present glass, metal, plastic, textile, paper and card for collection separately from all other wastes.• Present food waste for collection separately from all other wastes if carrying on an activity consisting of food production, food retail or food preparation.In order to comply with this Duty, it will be necessary to have separate containers forthe listed recyclable wastes. With the exception of food waste, which must becollected in a dedicated container, it is satisfactory under this duty for the listedrecyclable wastes to be collected in the same container as each other. This is called‘co-mingling’. The co-mingled wastes will be separated either at the kerbside orfurther treated at a Materials Recovery Facility (“MRF”).5.5 What must waste collectors/carriers do?Under these proposals waste carriers have a new statutory duty to:• Collect and carry source segregated recyclable materials separately from other wastes.• Provide a suitable collection service to their customers.It is the duty of a waste carrier to collect and carry separately the listed recyclablewaste materials where these have been segregated by the producer. As a carrier ofwaste you have a duty to ensure that these recyclable materials are notcontaminated with other wastes whilst you are the holder.A breach of the Duty of Care may result in enforcement action being taken. Inaddition to the penalties under the Environmental Protection Act 1990 carriers couldalso lose their registration to carry waste.5.6 What will happen to the recyclable waste after collection?To further complement efforts to source segregate and separately collect, wastemanagers will be prohibited from mixing these source segregated wastes withunsorted wastes at a transfer station. Further, these source segregated materials arebanned from landfill. These measures ensure that recyclable waste separated atsource is directed towards recycling.5.7 Consultation questionsQ1 Are there any other materials or waste streams which should be included inthese requirements to sort and separately collect?Q2 Food waste is required to be presented in a dedicated container. Are there anyother recyclable materials which should be sorted and presented separately forcollection in a dedicated container?Q3 Do consultees have any comments on the new draft of the Duty of Care Code ofPractice? 12
  13. 13. 6.0 Household waste collected by Local Authorities6.1 What is proposed?The Duty of Care (as described in the previous section) applies in only a very limitedsense to individual householders. Waste from households is almost always collectedby, or on behalf of, local authorities. Therefore, a different regulatory mechanism isproposed for waste from households.The proposed regulation amends Section 45 of the Environmental Protection Act1990 to require Scottish waste collection authorities to take all technically,environmentally and economically practicable measures to provide separatecollection services to households for the listed recyclable materials.Local authorities provide services to a wide range of different housing circumstancesbased on geographic and socio – economic variables. Best practice guidance forcollection systems, which optimise capture of recyclates and ensure that the qualityof the material is not compromised, is being developed by Zero Waste Scotland.This work will help local authorities design whole collection systems (for recyclate /“sorted” waste and mixed / “unsorted” waste) which have both environmental andeconomic benefits.The Zero Waste Plan makes it clear that the focus of municipal waste policy hasmoved away from landfill diversion towards maximising levels of high qualityrecycling. Levels of high quality recycling can be maximised through separation andcollection systems which keep materials clean and free from contamination. Thisrequires a change of mindset for both local authorities and the householders beingprovided with the service.6.2 What do the regulations say?Regulation 2 of the draft Zero Waste (Scotland) Regulations 2011 makes thefollowing amendment to section 45 of the Environmental Protection Act 1990 Separate collection of recyclable waste: Scotland (7) After section 45B insert—ìSeparate collection of recyclable waste: Scotland45C.—(1) This section applies to any waste collection authority whose area is in Scotland (“aScottish waste collection authority”). (2) Subject to subsection (5), where a Scottish waste collection authority has a duty byvirtue of section 45(1)(a) to arrange for the collection of household waste from any domesticproperty, the authority shall ensure that the arrangements it makes in relation to that propertyinclude arrangements for the provision of receptacles to the occupier of that property which willenable the occupier to present— (a) the wastes referred to in subsection (3) for collection separately from all other wastes;and 13
  14. 14. (b) food waste for collection separately from all other wastes.(3) The wastes are: (a) glass; (b) metals; (c) plastics; (d) textiles; (e) paper; and (f) card (including cardboard).(4) Subject to subsection (5), where a Scottish waste collection authority is subject to the duty setout in subsection (2) it shall collect and carry separately from other types of waste— (a) wastes referred to in subsection (3) which are presented for collection separatelyfrom other types of waste by the occupier of that property; and (b) food waste which is presented separately for collection by that occupier.(5) Subsections (2) and (4) do not apply to the extent that separate collection and carriage wouldnot be technically, environmentally or economically practicable.î.6.3 Why is this change of focus important?The environmental benefits of reducing reliance on primary resources throughrecycling are well established. The Waste Framework Directive 2008/98/ECrequires Member States to put in place measures to promote high quality recycling.Key materials identified as being readily recyclable are paper, metal, plastic andglass. The Directive also promotes better management of biowaste (biodegradablepark and garden waste, food and kitchen waste).Due to the requirements of the Landfill Directive, the focus, up to now, has been onreducing the amount of biodegradable municipal waste going to landfill. This has ledto the development of some waste management options which do not maximise theresource value of the materials contained in the waste, despite nominally meeting thetargets of the Landfill Directive. Scottish Government considers that diverting wastefrom landfill is not always the same as recycling.The focus for local authorities will shift from diversion of Biodegradable MunicipalWaste from landfill and towards achieving high levels of closed loop recycling. Thisdirects efforts towards activities which are further up the waste hierarchy than landfilldiversion. Greater source segregation of recyclable materials, food and green wastewill also be necessary to meet the targets set out in Annex A of the Zero Waste Plan.6.4 What will happen to the recyclable waste after collection?Consultees are asked to note that this regulatory approach only differentiatesbetween waste from households and waste from commercial & industrial premises atthe source segregation and separate collection stage. Once collected, the ZeroWaste Regulations deal with all waste, regardless of its origin, in the same way -based on its properties and management method, and not based on its source.This illustrates one of the differences between this approach under the Zero WastePlan and earlier strategic approaches to waste. Earlier waste strategies focusedmainly on municipal waste management, the driver being the Landfill Directiverequirements to divert biodegradable municipal waste out of landfill. The Zero Waste 14
  15. 15. Plan takes an all waste approach ensuring that the same treatment standards areapplied and the regulatory requirements are the same for all wastes – regardless ofwhether the waste is household, municipal or commercial & industrial.Therefore, once the household waste has been collected the same requirements asdescribed in section 5.6 apply. Waste managers will be prohibited from mixing thesesource segregated wastes with unsorted wastes at a transfer station and the sourcesegregated materials are banned from landfill.6.5 Consultation QuestionsQ4 Do consultees consider that Government should mandate more specifically theactions waste collection authorities must take to improve recycling of waste fromhouseholds? If so, what are they?Q5 What additional measures, if any, should Government consider in order tooblige householders to recycle? 15
  16. 16. 7.0 Ban on mixing separately collected recyclables7.1 What is proposed?It is important that sorted recyclables are not contaminated after efforts have beenmade both to segregate materials at source and to collect and transport themseparately from other wastes and materials.These regulatory provisions mean that any environmental permit for wastemanagement will include condition(s) to prohibit the mixing of separately collectedwastes with other waste where such mixing would hinder future recycling. Theseensure that efforts put into source separation are not undermined later by poormanagement.7.2 What do the regulations say?Regulation 3 of the draft Zero Waste (Scotland) Regulations 2011 makes thefollowing amendment to the Waste Management Licensing Regulations 1994Amendment of the Waste Management Licensing Regulations 19943.—(1) The Waste Management Licensing Regulations 1994(3) are amended as follows.(2)After regulation 12D insert—ìConditions of [waste management] licences: separately collected wastes12E.—(1) SEPA shall ensure that any [waste management] licence granted or varied on orafter…..contains such conditions as it considers necessary to ensure that waste which has beencollected and carried separately from other types of waste in accordance with section 34(2C) orsection 45C(4) is not mixed with any other type of waste or material, to the extent that suchmixing would hamper further recovery. (2) Any [waste management] licence which is in force on….. is modified so as to include,as a condition of the licence until it is next varied, the following condition: ìThe mixing of any waste which has been collected and carried separately from other types of waste in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act 1990 with any other type of waste or material is prohibited to the extent that such mixing would hamper further recovery.î. (3) In the event of any inconsistency between the condition set out in paragraph (2) andany other condition of the licence, that other condition shall be superseded by the condition set outin paragraph (2) to the extent of such inconsistency.î.(3) After regulation 17(3) insert—ì(3A) In the case of an exempt activity involving the storage, treatment, recovery or disposal ofwaste by a person at a site other than the place at which that waste was produced, paragraph (1)applies only if that person ensures that waste which has been collected and carried separately fromother types of waste in accordance with section 34(2C) or section 45C(4) is not mixed with anyother type of waste or material to the extent that such mixing would hamper further recovery.î.Regulation 4 of the Zero Waste (Scotland) Regulations 2011 makes the followingamendment to the Pollution Prevention and Control (Scotland) Regulations 2000:3() 16
  17. 17. Amendment of the Pollution Prevention and Control (Scotland) Regulations 20004.—(1) The Pollution Prevention and Control (Scotland) Regulations 2000(4) are amended asfollows.(2) After regulation 9 insert—ìConditions of permits: separately collected wastes9A.—(1) SEPA shall ensure that any permit granted or varied on or after…. in respect of anyactivity falling within Schedule 1 Part 1 Chapter 5 or 6 contains such conditions as it considersnecessary to ensure that waste which has been collected and carried separately from other types ofwaste in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act1990 is not mixed with any other type of waste or material, to the extent that such mixing wouldhamper further recovery.(2) Any permit which is in force on…. in respect of any such activity is modified so as to include,as a condition of the permit until it is next varied, the following condition—ìThe mixing of any waste which has been collected and carried separately from other types ofwaste in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act1990 with any other type of waste or material is prohibited to the extent that such mixing wouldhamper further recovery.î.(3) In the event of any inconsistency between the condition set out in paragraph (2) and any otherpermit condition, that other condition shall be superseded by the condition set out in paragraph (2)to the extent of such inconsistency.7.2 What does this mean for licence / permit holders?In practice, waste managers will be required to ensure that the listed sourcesegregated recyclables are kept separate from unsorted waste streams onceunloaded at a transfer station or any other waste management facility.4() 17
  18. 18. 8.0 Landfill Bans - Materials8.1 What is proposed?This consultation includes a proposal to introduce two types of landfill ban. The firsttype, which this section covers, is a series of material based bans. The second typeof ban is a property based ban based on biodegradable content (discussed in section10).The materials proposed to be banned from landfill are paper and card, glass, metal,plastics, textiles and food waste.The landfill bans research referenced in section 2.1 indicated that banning recyclablematerials from landfill is most effective when accompanied by a “requirement to sort”.These material based landfill bans therefore support the upstream requirements tosort the key recyclable materials (discussed in sections 5, 6 and 7) and are not analternative to these requirements.Practical implementation guidance on both the materials and property based landfillbans has been drafted and forms part of this consultation.8.2 What do the regulations say?Regulation 5 of the draft Zero Waste (Scotland) Regulations 2011 makes thefollowing amendment to the Landfill (Scotland) Regulations 2003:Amendment of the Landfill (Scotland) Regulations 20035.—(1) The Landfill (Scotland) Regulations 2003(5) are amended as follows.(2) After regulation 11(1)(fa) insert— ì(fb) as from…., any waste which has been collected and carried separately from other waste types in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act 1990;8.3 What materials are banned?The materials which are banned from landfill are source segregated glass, metal,plastic, textile, paper, card and food waste.It is important for consultees to understand that banning these materials from landfilldoes not mean that they must be removed from mixed/unsorted waste prior todisposal in landfill sites. Unsorted wastes arriving at landfill sites are still likely tocontain the listed materials. The bans apply only to materials which have alreadybeen sorted for recycling – either as part of the new Duty of Care or by householdersusing the service provided by their waste collection authority. The ban does not, byitself, increase levels of recycling for these key materials.Mandatory source segregation and the household waste services provided by wastecollection authorities, supported by education and enforcement will, over time,remove the listed wastes from the unsorted waste stream. In time, this unsorted5() 18
  19. 19. waste will be subject to the property based ban, ensuring that it is diverted fromlandfill towards alternative treatment (see section 10).A flow diagram illustrating the materials based bans is shown below.8.4 What does this mean for landfill operators?Landfills are regulated through a permitting system under the Pollution Preventionand Control (Scotland) Regulations 2000 (PPC Regulations). Landfill permits will beamended to include permit conditions making it an offence for landfill operators toaccept these source segregated wastes for disposal at their landfill sites.8.5 How will these bans be timed?The upstream source segregation requirements for the listed recyclable materials arethe main driver for delivering high quality materials into the recycling markets.Scottish Government intends to introduce the “requirement to sort” before introducingthe corresponding landfill ban.This is in order to provide the waste management industry and local authorities withsufficient time to organise their collection services and develop the requiredadditional recycling infrastructure before the ban comes into effect.Scottish Government proposes to introduce landfill bans on source segregated dryrecyclables and food waste in 2015. This is two years after the requirement to sortenters into force. Therefore, the programme provides two years to develop collectioninfrastructure and a further two years to develop treatment infrastructure.8.6 Consultation questionsQ6 Do consultees agree that banning the listed materials accompanied by a“requirement to sort” will be effective in achieving high recycling rates? If not, whatadditional or alternative measures could be adopted? 19
  20. 20. Q7 Do consultees consider that banning the listed materials accompanied by a“requirement to sort” will support investment in the infrastructure required to achievehigh recycling rates? 20
  21. 21. 9.0 Energy from Waste Restrictions9.1 What is proposed?Not all waste will be sorted into separate streams for recycling. An unsorted wastestream will remain. The restrictions on EfW inputs and the property based landfill banare the proposed regulatory instruments to manage the unsorted waste stream.This section of the consultation presents the proposal to restrict inputs to EfW plants.For the purposes of the restrictions, Energy from Waste plant includes incineration,gasification, pyrolysis and other Advanced Thermal Treatment technologies. It doesnot include Anaerobic Digestion plants which treat either source segregated biowasteor the biological fraction of unsorted waste to produce a biogas which issubsequently used to generate energy.The approach to EfW under the Zero Waste Plan is not solely about using waste togenerate energy instead of fossil fuels. Energy from Waste is truly sustainable only ifthe waste which is burnt could not have been reused or recycled. Therefore, thereasons for introducing restrictions are twofold: • To conserve resources. For waste management to be sustainable in the long term, resources which could have been reused or recycled must not be incinerated. Until segregation at source becomes commonplace in all households and businesses there will be recyclable materials remaining in the unsorted waste stream. Pre-treatment will recover the remaining value from recyclable material in unsorted waste, remove non-combustibles to make a high calorific fuel and reduce the tonnage going forwards to suitable EfW technologies. • To ensure that investment in residual treatment infrastructure does not lock Scotland into supplying EfW plants with large quantities of waste in order to generate energy. Scottish Government considers that investment in infrastructure which depends on continuing high levels of unsorted waste, at the expense of delivering flexible long term solutions, could undermine the overall Zero Waste objectives. Over provision of residual waste treatment infrastructure could undermine the economic case for recycling. The quantities of unsorted waste generated will decrease over time as progress is made towards high levels of recycling (at least 70%) and waste prevention measures reduce overall waste arisings. Although EfW has an important contribution to make in managing unsorted waste and providing electricity and heat, this must not be at the expense of efforts to prevent and recycle waste which have higher overall climate change and resource efficiency benefits.Therefore, in order to ensure that waste management in Scotland does not move onestep up the hierarchy from landfill to mass incineration, Scottish Government intendsto introduce regulations which will restrict inputs to Energy from Waste (EfW) facilitiesto • Residual wastes. • Other suitable waste types. For example, it may be best to burn waste types such as treated wood and waste oil and to recover energy. 21
  22. 22. This resource centered solution shows that EfW is not a substitute for high qualityrecycling achieved through source segregation and separate collection, but can becomplementary to these upstream measures.That inputs to EfW facilities should be restricted to residual waste only is not a newpolicy. What is proposed here is that practical implementation will move from the landuse planning system to regulation by SEPA of day to day operations. This proposalwill replace the 25% energy from waste cap for local authority collected municipalwaste with an approach that requires equivalent treatment standards for all wastestreams and sectors (household, commercial and industrial waste), irrespective ofwhich party collects the waste.This measure is not intended to add to current stringent environmental protectionmeasures. The existing Waste Incineration Directive standards provide robustcontrols designed to protect the environment and human health.9.2 What do the regulations say?Regulation 4 of the draft Zero Waste (Scotland) Regulations 2011 makes thefollowing amendments to the PPC Regulations: Conditions of permits: incineration and co-incineration 9B.—(1) SEPA shall ensure that any permit granted or varied on or after……for a waste incineration installation contains such conditions as it considers necessary to ensure that wastes accepted for incineration or co-incineration comprise only residual wastes or [other suitable wastes- to be defined] or both. (2) In this regulation and in Schedule 4, “residual wastes” means wastes which have been subject to all reasonably practicable efforts to extract recyclable material prior to incineration or co-incineration.î. (3) In Schedule 4 Part 1 paragraph 1B(1)— (a) in paragraph (d), omit “and”; (b) in paragraph (e), at the end insert “; and”; and (c) after paragraph (e) insert— ì(f) only residual wastes or [other suitable wastes- to be defined] are accepted by the operator.î.9.3 What is ‘residual waste’?Residual waste is defined in the draft Zero Waste (Scotland) Regulations 2011 as“wastes which have been subject to all reasonably practicable efforts to extractrecyclable material prior to incineration or co-incineration”In practical terms this means the following: • Source segregated recyclable waste cannot go to EfW. • Unsorted waste cannot go directly from the producer to EfW. • Rejects from Materials Recovery Facilities can be accepted at EfW. • Unsorted waste which has been undergone pre-treatment can be accepted at EfW. 22
  23. 23. As levels of source segregation are currently low compared to the levels required tomeet the recycling objectives of the Zero Waste Plan, there remains fairly significantquantities of potentially recyclable material in unsorted waste, (i.e. black bags, litterbins, skips). There are a number of treatment technologies which can be used toextract recyclable material from unsorted waste and render the resulting wastestream “residual”. These are discussed in the accompanying implementationguidance document. Non-ferrous metals and dense plastics, which are lost during theincineration process, but which have value as recyclate, should be extracted throughpre-treatment.There may also be other materials which, although not present in large volumes, arevaluable and should be recycled. Such an example is Waste Electrical andElectronic Equipment (WEEE). Electronic gadgets may contain small quantities ofvaluable raw materials such as gold and other metals and the elements referred to asthe “rare earth metals”. These are essential in a range of high technologyapplications such as super-conductors, lasers, renewable technologies, medicalequipment, communications and defence etc. The mining and processing of thesemetals can have serious environmental consequences and, currently, most of theglobal supplies come from China. 23
  24. 24. 24
  25. 25. 9.5 What will this mean for EfW operators?At the gate any unsorted waste would be rejected and directed for pre-treatment.Otherwise, all waste accepted for EfW would be expected to a) have come from a compliant waste treatment plant and be declared ‘residual waste’ on the Waste Transfer Note (WTN). b) have undergone appropriate pre-treatment as a front end process at the EfW facility. c) be a suitable single stream waste such as contaminated wood, waste oil etc and declaring itself to be so on the WTN.SEPA, when regulating the inputs to incineration and co-incineration plants willperiodically audit residual waste suppliers to ensure that only suitable waste typesallowed by the permit conditions are being accepted for EfW. It will be an offenceunder the PPC Regulations to incinerate or co-incinerate waste which is not residualwaste. It is expected that incinerator operators will ensure that their suppliers eithercarry out this treatment or they do it in-house.9.6 Consultation QuestionsQ8 What pretreatment do consultees consider is necessary in order to ensure thatonly residual waste is managed in EfW facilities?Q9 Do consultees agree that this is an appropriate measure to prevent over-provision of residual waste management infrastructure?Q10 What single stream wastes, such as contaminated wood, do consulteesconsider are appropriate for EfW?Q11 Scottish Government intends that the EfW restrictions will apply immediately toany new installation. What transitional period should be allowed for existing EfWinstallations to comply with the regulations? 25
  26. 26. 10.0 Landfill Bans – Measurable Property10.1 What is proposed?Scottish Government proposes to introduce a measurable property landfill ban basedon biodegradable content. This type of ban acts in the same way as a landfill ban onunsorted waste.The purpose of this landfill ban is: • to reduce the volumes of waste being landfilled by directing unsorted waste to pre-treatment. • to extract remaining resource value from the unsorted waste stream. • to protect the environment from the climate change impacts of landfilling biodegradable waste.Unsorted waste will have to be stabilised in a pre-treatment process to reduce thelevel of biological activity to a defined threshold. As with the other measuresproposed under the Zero Waste Plan, it takes an “all waste” approach and does notmake any distinction between “municipal waste” and waste from other sources.In order to define the threshold of biological activity, the draft Regulations suggestusing a Total Organic Carbon content of less than 3%. Views are sought fromconsultees on possible alternatives.Implementation guidance on this landfill ban and the material based bansdiscussed in Section 8.0 is published alongside this consultation and forms part ofit.10.2 What do the regulations say?Regulation 5 of the draft Zero Waste (Scotland) Regulations 2011 makes thefollowing amendments to the Landfill (Scotland) Regulations 2003:Amendment of the Landfill (Scotland) Regulations 20035.—(1) The Landfill (Scotland) Regulations 2003(6) are amended as follows.(2) After regulation 11(1)(fa) insert—ì(fb) ….(fc) as from…….., any waste with an organic content greater than three percent of the totalcontent;î.10.3 What does this mean?The expected outcome would be to move waste out of landfill and into alternativemixed waste treatments such as Mechanical Biological Treatment, Mechanical HeatTreatment and EfW. What alternative treatment is provided will depend on a numberof factors and will be left to the market to determine, subject to the requirement that6() 26
  27. 27. any waste incinerated is ‘residual’ and any waste landfilled meets thebiodegradability threshold.Under this framework, unsorted waste treatment operators will remove recyclablematerials to produce a ‘residual’ waste stream for incineration and a stabilisedfraction for landfill. If these efforts have not been made and the waste has not beenstabilised to below the threshold, processors will not be able to describe the landfillfraction as “pre-treated prior to landfill” on the Waste Transfer Note.Plants which seek to meet this threshold through biological treatment will have todemonstrate compliance through the environmental permit. This will require a testingplan to be developed to show that the stabilised waste meets the limit under standardoperating conditions.10.4 How will biological activity be measured?7Several European countries have established standards for defining stabilisedwastes, based on measures of biological activity (see Table below). Outputs fromstabilisation processes will retain some level of biological activity. The degree towhich bio-stabilisation has occurred can be measured using a respiration index (RI).This can be either static (SRI) or dynamic (DRI). RI methods measure aerobicdegradation.The Environment Agency has developed a method which measures anaerobicdegradation, the BM100, which measures biogas production over a 100 day period.This may more accurately reflect conditions in a landfill but takes much longer tocarry out than the aerobic test methods. Country Testing Protocol Measurement Period Limit Value 1 Germany AT4 (SRI) Activity after 96 hours 5 mg O2 / g dm 1 Austria AT4 (SRI) Activity after 96 hours 7 mg O2 / g dm Italy DRI 12 data points in 24 hours 1000 mg O2 / kg VS / h 3 UK BM100 100 days N/A Cumulative activity over 96 hours (measurements 3 DR4 N/A taken using kg LOI as 2 opposed to VS) Cumulative activity over 96 35,000 – 55,000 mg/kg VS US DRI (ASTM) hours / 96 h (suggested limit) Notes: 1. dm – dry matter 2. LOI – loss on ignition; VS – volatile solids 3. The impact of MBT treatment on waste to be landfilled is taken into account for the purposes of the landfill allowance trading scheme (LATS). Under the LATS, it is assumed that 68% of untreated waste is ‘active’ or ‘biodegradable’. For treated waste, the biological activity of the material is measured before and after treatment at an MBT facility using both the BM100 (as mandatory) and the DR4 (as a correlation exercise) protocols. The percentage difference in ‘biodegradability is then7 http://www.greenstar.ie/docs/Eunomia_MBT.pdf 27
  28. 28. calculated and used to measure the amount of biodegradable municipal waste sent to landfill.There may be some wastes for which landfill is the most appropriate disposaloptions but which cannot meet the threshold e.g. soil, although this will depend onthe threshold chosen. Bespoke permit conditions could also be developed on acase by case basis with SEPA if required.Views are sought from consultees about which measurement method would be mostappropriate.10.5 What does this mean in practice for landfill operators?Permit conditions will be modified to require that landfill operators accept only wasteswhich are below the defined threshold. At the landfill gate any unsorted waste (blackbag type waste) would be rejected and directed for pre-treatment. Otherwise, allwaste accepted for landfilling would be expected to: a) have come from a compliant MBT plant. b) have come from a compliant incinerator or gasifier. c) be inert in nature (and declaring itself to be so).Landfill operators will be expected to inspect both the Waste Transfer Note and thewaste visually at the gate to ensure that the incoming waste complies with the newrequirements.10.6 What does this mean for the Landfill Allowance Scheme?The Landfill Allowance Scheme (LAS) was developed to meet Landfill Directivetargets on reducing the amount of biodegradable municipal waste sent to landfill.For the purposes of the LAS, municipal waste was defined as waste managed by,or on behalf of, local authorities.Biodegradable Municipal Waste (BMW) diversion targets will be met through pre-treatment of mixed waste. Therefore, there is no need for the LAS to monitor BMW 28
  29. 29. diversion or to carry out mass balance calculations for Mechanical BiologicalTreatment facilities with different process efficiencies. Scottish Governmentintends to revoke the Landfill Allowance Scheme once the new legislativemeasures to regulate waste to landfill are implemented.10.7 Consultation QuestionsQ12 Do consultees think that the timing of the landfill bans (in Section 2.3) isreasonable?Q13 What test method do consultees consider should be used to assess the levelof biological activity?Q14 Do consultees have any other comments? 29
  30. 30. DRAFT – 23 NOVEMBER 2010 APPENDIX 1Draft Regulations laid before the Scottish Parliament under Schedule 2 paragraph 2(2) to theEuropean Communities Act 1972, for approval by resolution of the Scottish Parliament. DRAFT SCOTTISH STATUTORY INSTRUMENTS 2011 No. ENVIRONMENTAL PROTECTION The Zero Waste (Scotland) Regulations 2011 Made - - - - Coming into force - -The Scottish Ministers make the following Regulations in exercise of the powers conferred bysection 2(2) of the European Communities Act 1972(8) and all other powers enabling them to doso.In accordance with Schedule 2 paragraph 2(2) to that Act, a draft of these Regulations has beenlaid before and approved by resolution of the Scottish Parliament.Citation, commencement and extent 1.—(1) These Regulations may be cited as the Zero Waste (Scotland) Regulations 2011 andcome into force on . (2) These Regulations extend to Scotland only.Amendment of the Environmental Protection Act 1990 2.—(1) The Environmental Protection Act 1990(9) is amended as follows. (2) After section 34(1) insert— ì(1A) In subsection (1), references to a written description of the waste include text that is— (a) transmitted by electronic means; (b) received in legible form; and (c) capable of being used for subsequent reference.î. (3) After section 34(2) insert— ì(2A) Subject to subsection (2D), it shall be the duty of any person who produces controlled waste (other than an occupier of domestic property in respect of waste produced on that property) to present the following wastes for collection separately from all other wastes:— (a) glass; (b) metals;8()9()
  31. 31. DRAFT – 23 NOVEMBER 2010 APPENDIX 1 (c) plastics; (d) textiles; (e) paper; and (f) card (including cardboard). (2B) Subject to subsection (2D), it shall be the duty of any person carrying on an undertaking whose activities consist of or include food production, food retail, food distribution or wholesaling or food preparation to present the food waste produced by that person in the course of that activity for collection separately from all other wastes. (2C) Subject to subsection (2D), it shall be the duty of any person who carries controlled waste to collect and carry separately from other types of waste those types of waste which have been presented for collection separately in accordance with either subsection (2A) or (2B). (2D) The duties contained in subsections (2A) to (2C) do not apply to the extent that compliance with them would be unreasonable.î. (4) After section 34(5) insert— ì(5A) The Scottish Ministers may, by regulations, make provision imposing requirements on any person who is subject to any of the duties imposed by subsections (2A) to (2C) as respects the making and retention of documents and the furnishing of documents or copies of documents.î. (5) After section 34(6) insert— ì(6A) Any person who fails to comply with any of the duties imposed by subsections (2A) to (2C) or with any requirement imposed under subsection (5A) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.î. (6) In section 34(7), for “the duty imposed on them by subsection (1) above” substitute “theduties imposed on them by subsection (1) and subsections (2A) to (2C)”. (7) After section 45B insert— ìSeparate collection of recyclable waste: Scotland 45C.—(1) This section applies to any waste collection authority whose area is in Scotland (“a Scottish waste collection authority”). (2) Subject to subsection (5), where a Scottish waste collection authority has a duty by virtue of section 45(1)(a) to arrange for the collection of household waste from any domestic property, the authority shall ensure that the arrangements it makes in relation to that property include arrangements for the provision of receptacles to the occupier of that property which will enable the occupier to present— (a) the wastes referred to in subsection (3) for collection separately from all other wastes; and (b) food waste for collection separately from all other wastes. (3) The wastes are: (a) glass; (b) metals; (c) plastics; (d) textiles; (e) paper; and (f) card (including cardboard). (4) Subject to subsection (5), where a Scottish waste collection authority is subject to the duty set out in subsection (2) it shall collect and carry separately from other types of waste— 31
  32. 32. DRAFT – 23 NOVEMBER 2010 APPENDIX 1 (a) wastes referred to in subsection (3) which are presented for collection separately from other types of waste by the occupier of that property; and (b) food waste which is presented separately for collection by that occupier. (5) Subsections (2) and (4) do not apply to the extent that separate collection and carriage would not be technically, environmentally or economically practicable.î.Amendment of the Waste Management Licensing Regulations 1994 3.—(1) The Waste Management Licensing Regulations 1994(10) are amended as follows. (2) After regulation 12D insert— ìConditions of [waste management] licences: separately collected wastes 12E.—(1) SEPA shall ensure that any [waste management] licence granted or varied on or after…..contains such conditions as it considers necessary to ensure that waste which has been collected and carried separately from other types of waste in accordance with section 34(2C) or section 45C(4) is not mixed with any other type of waste or material, to the extent that such mixing would hamper further recovery. (2) Any [waste management] licence which is in force on….. is modified so as to include, as a condition of the licence until it is next varied, the following condition: ìThe mixing of any waste which has been collected and carried separately from other types of waste in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act 1990 with any other type of waste or material is prohibited to the extent that such mixing would hamper further recovery.î. (3) In the event of any inconsistency between the condition set out in paragraph (2) and any other condition of the licence, that other condition shall be superseded by the condition set out in paragraph (2) to the extent of such inconsistency.î. (3) After regulation 17(3) insert— ì(3A) In the case of an exempt activity involving the storage, treatment, recovery or disposal of waste by a person at a site other than the place at which that waste was produced, paragraph (1) applies only if that person ensures that waste which has been collected and carried separately from other types of waste in accordance with section 34(2C) or section 45C(4) is not mixed with any other type of waste or material to the extent that such mixing would hamper further recovery.î.Amendment of the Pollution Prevention and Control (Scotland) Regulations 2000 4.—(1) The Pollution Prevention and Control (Scotland) Regulations 2000(11) are amended asfollows. (2) After regulation 9 insert— ìConditions of permits: separately collected wastes 9A.—(1) SEPA shall ensure that any permit granted or varied on or after…. in respect of any activity falling within Schedule 1 Part 1 Chapter 5 or 6 contains such conditions as it considers necessary to ensure that waste which has been collected and carried separately from other types of waste in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act 1990 is not mixed with any other type of waste or material, to the extent that such mixing would hamper further recovery. (2) Any permit which is in force on…. in respect of any such activity is modified so as to include, as a condition of the permit until it is next varied, the following condition—10( ) 11( ) 32
  33. 33. DRAFT – 23 NOVEMBER 2010 APPENDIX 1 ìThe mixing of any waste which has been collected and carried separately from other types of waste in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act 1990 with any other type of waste or material is prohibited to the extent that such mixing would hamper further recovery.î. (3) In the event of any inconsistency between the condition set out in paragraph (2) and any other permit condition, that other condition shall be superseded by the condition set out in paragraph (2) to the extent of such inconsistency. Conditions of permits: incineration and co-incineration 9B.—(1) SEPA shall ensure that any permit granted or varied on or after……for a waste incineration installation contains such conditions as it considers necessary to ensure that wastes accepted for incineration or co-incineration comprise only residual wastes or [other suitable wastes- to be defined] or both. (2) In this regulation and in Schedule 4, “residual wastes” means wastes which have been subject to all reasonably practicable efforts to extract recyclable material prior to incineration or co-incineration.î. (3) In Schedule 4 Part 1 paragraph 1B(1)— (a) in paragraph (d), omit “and”; (b) in paragraph (e), at the end insert “; and”; and (c) after paragraph (e) insert— ì(f) only residual wastes or [other suitable wastes- to be defined] are accepted by the operator.î.Amendment of the Landfill (Scotland) Regulations 2003 5.—(1) The Landfill (Scotland) Regulations 2003(12) are amended as follows. (2) After regulation 11(1)(fa) insert— ì(fb) as from…., any waste which has been collected and carried separately from other waste types in accordance with section 34(2C) or section 45C(4) of the Environmental Protection Act 1990; (fc) as from…….., any waste with an organic content greater than three percent of the total content;î. A member of the Scottish ExecutiveSt Andrew’s House,EdinburghDate12( ) 33
  34. 34. DRAFT – 23 NOVEMBER 2010 APPENDIX 1 SCOTTISH STATUTORY INSTRUMENTS 2011 No. ENVIRONMENTAL PROTECTION The Environmental Protection (Duty of Care) (Scotland) Regulations 2011 Made - - - - Laid before the Scottish Parliament Coming into force - -The Scottish Ministers make the following Regulations in exercise of the powers conferred bysection 34(5) and (5A) of the Environmental Protection Act 1990(13) and section 2(2) of, andparagraph 1A of Schedule 2 to, the European Communities Act 1972(14) and all other powersenabling them to do so.These Regulations make provision for a purpose mentioned in section 2(2) of the EuropeanCommunities Act 1972, and it appears to the Scottish Ministers that it is expedient for referencesto Commission Decision 2000/532/EC(15) to be references to that instrument as amended fromtime to time.Citation, commencement and extent 6.—(1) These Regulations may be cited as the Environmental Protection (Duty of Care)(Scotland) Regulations 2011 and come into force on . (2) These Regulations extend to Scotland only.Interpretation 7.—(1) In these Regulations— “the Act” means the Environmental Protection Act 1990; “the European Waste Catalogue” means the list of wastes set out in Commission Decision 2000/532/EC establishing a list of wastes, as that instrument may be amended from time to time; “local authority” means a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994(16), and “area” in relation to such an authority is to be construed accordingly; “SEPA” means the Scottish Environment Protection Agency;13( ) 14( ) 15( ) 16( )
  35. 35. DRAFT – 23 NOVEMBER 2010 APPENDIX 1 “SIC code” means the relevant code included in the UK Standard Industrial Classification of Industrial Activities 2007 (SIC 2007) published by the Office for National Statistics on 14th December 2007 and implemented on 1st January 2008(17); “transferor” and “transferee” mean respectively, in relation to a transfer of controlled waste by a person who is subject to the duty in section 34(1) of the Act, the person who transfers the waste and the person who receives it. (2) References to any document being signed include references to [provision for electronicsignatures?].Transfer Notes 8.—(1) Subject to paragraph (4), the transferor and the transferee must, at the same time as thewritten description of the waste is transferred, ensure that such a document as is described inparagraphs (2) and (3) (“a transfer note”) is completed and signed on their behalf, [and that a copyis provided to any person carrying the waste when that person uplifts it]. (2) A transfer note must— (a) give the name and address of the transferor and the transferee; (b) state whether or not the transferor is the producer or importer of the waste, and if so which; (c) if the transfer is to a person for authorised transport purposes, specify which of these purposes; (d) identify the type of activity which produced the waste by reference to the SIC code; (e) identify the geographical location of that activity by reference to the postcode at which and local authority area within which it is carried on; (f) identify the waste to which it relates by reference to the appropriate six-digit codes in the European Waste Catalogue and state— (i) its quantity and whether on transfer it is loose or in a container; (ii) if in a container, the kind of container; and (iii) the time [date?] and place of transfer; (g) state whether or not the waste consists of or includes any waste which requires [specialist treatment]; (h) state whether the waste consists of or includes waste of any of the types listed or referred to in section 34(2A) or (2B) of the 1990 Act which was presented for separate collection by the waste producer in accordance with those provisions; (i) state whether the waste is intended to be incinerated or co-incinerated, and if so whether it consists only of waste which has been subject to all reasonably practicable efforts to extract recyclable material prior to incineration or co-incineration or of [other suitable waste - to be defined]; (j) state whether the waste is intended to be landfilled, and if so whether it complies with regulation 11(1)(fb) and (fc) of the Landfill (Scotland) Regulations 2003(18); and (k) give the initial destination and holder of the waste, including the address, any site name and the issuing authority and number of any [relevant] licence or permit issued by SEPA, the Environment Agency or, in Northern Ireland, the Department of the Environment. (3) A transfer note must also state as respects the transferor and the transferee which, if any, ofthe categories shown in column 1 of the following Table describes him or her and provide anyrelevant additional information specified in column 2 of the Table.TABLE17( ) ISBN 0116216417. 18( ) 35
  36. 36. DRAFT – 23 NOVEMBER 2010 APPENDIX 1Category of person Additional informationA local authorityThe holder of a waste management licenceunder section 35 of the Act or a disposal licenceunder section 5 of the Control of Pollution Act1974(19)The holder of a permit under the PollutionPrevention and Control (Scotland) Regulations2000(20) which authorises the carrying out of aspecified waste management activity within themeaning of those RegulationsA person to whom section 33(1)(a) and (b) ofthe Act does not apply by virtue of regulationsunder subsection (3) of that sectionA person registered as a carrier of controlled The name of the waste regulation authority withwaste under either section 2 of the Control of whom that person is registered and thePollution (Amendment) Act 1989(21) or registration numberSchedule 4 paragraph 12 to the WasteManagement Licensing Regulations 1994(22) (4) Paragraph (1) does not apply where the waste transferred is special waste within the meaningof the Special Waste Regulations 1996(23) and the consignment note and, where appropriate,schedule required by those Regulations are completed and dealt with in accordance with thoseRegulations.Duty to keep copies of written descriptions of waste and transfer notes 9. The transferor and the transferee must each keep the written description of the waste and thetransfer note or copies of them for a period of [two] years from the date of transfer of the waste.[Duty to carry transfer notes 10. Any person who carries [controlled] waste and who has received a copy transfer note underregulation 3(1) must carry that copy with the waste and must produce it to any officer of SEPA onrequest.]Duty to furnish documents 11.—(1) A person who has been requested by SEPA to produce any document which that personis required to keep under regulation 4 must furnish SEPA with it, or with a copy of it, as soon asreasonably practicable and in any case within 7 days or such longer period as may be permitted bySEPA. (2) Any document required to be produced under paragraph (1) must be given to an officer ofSEPA or sent to an address specified by SEPA in writing when making the request. (3) In this regulation, “writing” includes text that is— (a) transmitted by electronic means; (b) received in legible form; and19( ) 20( ) 21( ) 22( ) 23( ) 36
  37. 37. DRAFT – 23 NOVEMBER 2010 APPENDIX 1 (c) capable of being used for subsequent reference.Revocation 12. The Environmental Protection (Duty of Care) Regulations 1991(24) are revoked.[Transitionals?] A member of the Scottish ExecutiveSt Andrew’s House,Edinburgh 201124( ) 37
  38. 38. Duty of Care – A Code of Practice 38
  39. 39. 1.0 IntroductionThis “Duty of Care: A Code of Practice” is made under section 34(7) (as amended) ofthe Environmental Protection Act 1990 and replaces all previous versions applicablein Scotland. This Code of Practice applies in Scotland only. You should have regardto this Code if you produce, store, transport or manage waste in Scotland.The Code is made under statute and under section 34(10) of the Act is admissible asevidence in court and the court shall take it into account in determining any questionsto which it appears to be relevant. The intention is that the Code will assist the courts,when hearing cases under Section 34 of the 1990 Act, in determining whetherpersons subject to the duty took reasonable measures to comply with it.This is a consultation on the Duty of Care Code of Practice. This constitutes practicalguidance to all waste holders in the waste management chain. The guidance hasbeen revised to take into account the additional duties proposed under the newRegulations which also form part of this consultation.Revised Waste Framework DirectiveOne of the aims of the Directive is to help move Europe closer to a “recycling society”which recognises waste as a resource. The 6 th Community Environment ActionProgramme called for measures aimed at ensuring the source separation, collectionand recycling of priority waste streams.This Duty of Care Code of Practice describes the duties of waste holders in ensuringthat Scotland maximises the quantity and quality of the following materials: paper andcard, plastic, metals and glass, available for closed loop recycling. The duties inrelation to source segregation and separate collection requirements also apply tofood waste which can be optimally treated in biological treatment plants.Keeping recyclable waste clean and separate from unsorted waste improves itsrecovery potential by making recycling easier and establishing the stable conditionsand security of supply required to support the reprocessing industry.Key Zero Waste PrinciplesIn the Zero Waste Plan the Scottish Government committed to take action toincrease the quantity and quality of resources recycled, with the aim of achievinghigh levels of “closed loop” resource management.This Duty of Care includes information on new duties made under section 34 of theEPA 1990 which are intended to increase the quantities and improve the quality ofrecyclate. The targeted materials are paper and card, metals, plastics, glass and foodwaste.Recycling is about much more than merely an alternative to disposal in landfill. It is akey part of the Government’s Low Carbon Economic Strategy designed to bringeconomic growth without the carbon cost of unsustainable resource use. Recyclingreduces the amount of energy used to extract and process virgin materials such astimber, minerals and oil.In order to conserve the value of resources and to improve recyclability of materialscontained in waste the Duty of Care requirements in section 34 of the EPA 1990 39
  40. 40. have been extended to require source segregation and separate collection of keymaterials.These statutory Duty of Care requirements and this associated Code of Practice formpart of a package of measures which will ensure that resources with value for reuse,recycling or recovery are not sent to landfill by 2020.Duty of Care etc as respects waste: Section 34 of the EPA 1990The draft Zero Waste (Scotland) Regulations 2011, which are also the subject of thisconsultation, amend section 34 of the Environmental Protection Act 1990 as follows:In section 34, after subsection (2) insert-ì (2A) Subject to subsection (2D), it shall be the duty of any person who producescontrolled waste (other than an occupier of domestic property in respect of wasteproduced on that property) to present the following wastes for collection separatelyfrom all other wastes:— (a) glass; (b) metals; (c) plastics; (d) textiles; (e) paper; and (f) card (including cardboard).(2B) Subject to subsection (2D), it shall be the duty of any person carrying on anundertaking whose activities consist of or include food production, food retail, fooddistribution or wholesaling or food preparation to present the food waste produced bythat person in the course of that activity for collection separately from all otherwastes.(2C) Subject to subsection (2D), it shall be the duty of any person who carriescontrolled waste to collect and carry separately from other types of waste those typesof waste which have been presented for collection separately in accordance witheither subsection (2A) or (2B).(2D) The duties contained in subsections (2A) to (2C) do not apply to the extent thatcompliance with them would be unreasonable.î .These requirements are in addition to the existing Duty of Care requirements, whichrequire all producers, carriers, importers, exporters, brokers, dealers and processorsof controlled waste to manage that waste correctly by storing it properly, onlytransferring it to the appropriate people and ensuring that when it is transferred it issufficiently well described to enable its safe recovery or disposal without harming theenvironment.Householders also have some, albeit limited, obligations under the Duty of Care.All parties have a role to play in policing the Duty of Care, ensuring all other partiescomply with the requirements. Failure to comply may lead to enforcement actionunder the Environmental Protection Act 1990 and the Zero Waste (Scotland)Regulations 2011. 40
  41. 41. This code covers the Duty of Care relevant to all aspects of waste management. Tomake the process of using it easier the sections have been determined by roles.Some readers may need to read more than one section of guidance, depending ontheir role(s) within Duty of Care. For example, if you are a waste producer andcarrying your own waste, you will need to read the section on producer and carrierresponsibilities. 41
  42. 42. 2.0 Glossary of TermsBasic CharacterisationThe Landfill Directive (1999/31/EC) and Council Decision (2003/33/EC) establishcriteria and procedures for the acceptance of waste at landfills including arequirement for their basic characterisation.BrokerA person (or establishment or undertaking) arranging the recovery or disposal ofwaste on behalf of others including those brokers who do not take physicalpossession of the waste.CarrierAny person (or establishment or undertaking) transporting waste within Scotland.Construction WorkThe carrying out of any building, civil engineering or engineering construction workand includes: construction, alteration, conversion, fitting out, commissioning,renovation or other maintenance, decommissioning, demolition or dismantling of astructure.Construction and Demolition WasteWaste arising from works of construction or demolition, including preparatory worksthereto.Controlled WasteThe term controlled waste comes from Section 75(4) of the Environmental ProtectionAct 1990 and is defined as “household, industrial and commercial waste or any suchwaste”.DealerPerson (or establishment or undertaking) which purchases and subsequently sellswaste as a principal including dealers who do not take physical possession of thatwaste.Enforcement OfficerAn officer of the Scottish Environment Protection Agency or Local Authority who haspowers in connection with the investigation of suspected offences, the detection andapprehension of offenders and granted powers to act in respect of environmentaloffences.Environmental PermitA permit or licence issued under the Pollution Prevention and Control (Scotland)Regulations 2000, the Environmental Protection Act 1990 and the WasteManagement Licensing Regulations 1994. 42
  43. 43. Environmental Protection Act 1990Section 34 of this Act establishes the requirements of the Duty of Care with respectto waste.Exemption from an Environmental PermitSchedule 3 to the Waste Management Licensing Regulations 1994 (as amended)lists and describes the waste operations which do not require an environmentalpermit, providing that the establishment or undertaking carrying them out hasregistered that exemption where required. These Regulations also specify therequirements that an exempt waste operation must meet.Establishment or UndertakingIncludes any organisation, whether a company, partnership, authority, society, trust,club, charity or other organisation, but not private individuals.Green List WasteWaste which is not, for the purposes of import or export for recovery, regarded ashazardous. Green list controls apply to some (but not all) imports or exports.HarmHarm to the health of living organisms or other interference with the ecologicalsystems of which they form part and in the case of man includes offence to any of hissenses or harm to his property; and “harmless” has a corresponding meaning.Household wasteMeans waste generated by households.HouseholderThe occupier of any domestic property.Holder of WasteThe producer of the waste or the person, establishment or undertaking that is inpossession of it or who, as a broker, has control of it.Pre-treatment of Waste (for the purposes of Article 6 of the Landfill Directive(1999/31/EC))The legal definition of treatment requires three things (the ‘three-point test’):1. It must be a physical, thermal, chemical or biological process including sorting.2. It must change the characteristics of the waste.3. It must do so in order to:(a) reduce its volume, or(b) reduce its hazardous nature, or(c) facilitate its handling, or(d) enhance its recovery. 43
  44. 44. With certain exceptions, only wastes that have been subject to ‘treatment’ may belandfilled, treatment is intended to encourage more recycling and reduce the impactof the wastes that are landfilled.Pollution of the EnvironmentPollution due to the release or escape (into any environmental medium) from:(a) the land on which controlled waste is treated,(b) the land on which controlled waste is kept,(c) the land in or on which controlled waste is deposited,(d) fixed plant by means of which controlled waste is treated, kept or disposed of, ofsubstances or articles constituting or resulting from the waste and capable (byreason of the quantity or concentrations involved) of causing harm to man or anyother living organisms supported by the environment.Public RegistersA register maintained by SEPA of all registered waste management activitiesincluding all waste carriers or those exempt from carrier registration, waste brokersand dealers, those with an environmental permit or those sites registered asoperating under an exemption from environmental permitting.Season TicketA controlled waste transfer note must be created for each load of waste that leavesyour site. However, for repetitive transfers there is provision to use one transfer notewhich will cover multiple transfers. One transfer note can be used for multiplecollections for a time period that is recommended not to be longer than 12 months; itshould then be renewed if required. This is called a "season ticket".A season ticket can only be used if none of the following details change:• the waste carrier remains the same• the producer or collection premises remains the same• the description of waste remains the sameIf any of this information changes, then an individual transfer note must be used. It isadvisable that a log be maintained of loads of waste leaving and arriving at sitesunder a season ticket.SIC CodesSIC is the UK Standard Industrial Classification of Economic Activities (2007).The SIC code is used to classify business establishments and other statistical unitsby the type of economic activities they are engaged in. You are required to record theappropriate SIC code of the transferor on all controlled waste transfer notes.Relevant codes can be determined from the Office of National Statistics (ONS) ortheir website:http://www.statistics.gov.uk/methods_quality/sic/downloads/SIC2007explanatorynotes.pdf 44
  45. 45. Transfer NoteA note which must be created for any transfer of controlled waste. The note must besigned by both parties and must contain certain prescribed information (see Annex 1for details) about the waste to be transferred. It should also contain a writtendescription of the waste and any further information required for the next andsubsequent holders of the waste to manage it without causing pollution of theenvironment or harm. A specimen note is provided in Annex 2 of this guidance.TransfereeThe person (or establishment or undertaking) receiving the waste.TransferorThe person (or establishment or undertaking) holding the waste and who transfers itto another (different) person (or establishment or undertaking).Waste‘Waste’ means any substance or object which the holder discards or intends or isrequired to discard.Waste Collection AuthorityA local authority responsible for collecting waste as defined in the 1990 Act.Written DescriptionAdditional information submitted on the transfer note identifying the nature andcharacteristics of the waste. This should help subsequent holders to manage thewaste correctly and to meet their requirements under the Landfill Directive.WEEEWaste Electrical and Electronic Equipment that is controlled by the Waste Electricaland Electronic Equipment Regulations 2006 (as amended).Waste ExportAny waste to be exported (or imported) is subject to a range of regulatory controls(see also Green List Waste above). Anyone that is planning to export waste needs tobe familiar with these controls.Waste ManagerWaste manager means anyone who re-uses, recycles, recovers or disposes ofwaste, including the supervision of such operations and the after-care of disposalsites, and includes any actions taken as a broker or dealer.Waste ProducerAny person (or establishment or undertaking) whose activities produce waste(original waste producer) or anyone who carries out pre-processing, mixing or otheroperations which result in a change in the nature or composition of this waste. 45
  46. 46. 3.0 Your Obligations as a Waste ProducerThis section offers guidance to any person (with the exception of householders) whoproduces waste in the course of their business activities. This includes both privatesector business such as shops, offices and factories and public sector services suchas schools, hospitals and prisons.What are my Responsibilities?As a waste producer, you have a duty to:• Present glass, metal, plastic, textile, paper and card for collection separately from all other wastes.• Present food waste for collection separately from all other wastes if you carry on a business consisting of food production, food retail or food preparation.• Take care of the waste while you hold it, for example during storage, so it does not escape from your control.• Ensure your waste is transferred to someone who is authorised to receive it, for example, a registered waste carrier or waste manager with the relevant authorisation.• Ensure that the transfer of waste is covered by a waste transfer note including a full description of the waste and retain a copy of this note for two years.• Ensure that the waste description is accurate and contains all the information you are reasonably in a position to give for safe handling, transport, treatment, recovery or disposal by subsequent holders.• Ensure if you are carrying your own waste that you are appropriately registered with SEPA.Where you use a waste broker or dealer, then you both have responsibilities underthe Duty of Care. Using a waste broker does not lessen or remove any of theseresponsibilities from you in your role as waste producer.You have a duty to take all reasonable measures to comply with the Duty of Carewhilst the waste is in your possession and when you transfer your waste tosomebody else. This means that you must ensure that you take the following steps;Step 1 – Separate Recyclable Materials at SourceAs the producer of waste, the quality of your management at source ultimatelydetermines the value which can be derived from it. You therefore have the mostimportant role under the Duty of Care. This section offers guidance to ensure that theobjectives of the Duty of Care are achieved.Key to sustainable economic growth is the development of collections schemes thatare able to provide secure supplies of high quality recyclate feedstock. The best wayto achieve this is to separate recyclable materials at source. It supports marketdemand for high quality and high value recyclate. Clean, uncontaminated wastestreams will be of higher value to recyclers so segregation may also help in reducingcosts to you. 46
  47. 47. It is the duty of any person who produces controlled waste (other than householders)to present the following wastes for collection separately from all other wastes:- (a) glass; (b) metals; (c) plastics; (d) textiles; (e) paper; and (f) card (including cardboard).In addition, it is the duty of any person carrying on an activity consisting of orincluding food production, food retail or food preparation to present the food waste forcollection separately from all other wastes.What must I do when segregating my waste?In order to comply with this Duty, it will be necessary to have separate containers forthe listed recyclable wastes. Segregation of waste is the key to good wastemanagement as it keeps contamination to a minimum and makes closed looprecycling easier. With the exception of food waste, which must be collected in adedicated container, it is satisfactory for the listed recyclable wastes to be collectedin the same container as each other. This is called ‘co-mingling’. The co-mingledwastes will be separated either at the kerbside or further treated at a MaterialsRecovery Facility (“MRF”). However, the value of recyclate increases if materials arekept clean and separate from each other as far as possible. Your waste contractormay offer you more favourable contractual conditions if you are able to separatematerials further.Waste managers are prohibited from mixing your separately collected recyclablewaste with unsorted wastes (e.g. general black bag waste). This ensures that theeffort put into source separation will not be undermined later by poor management.Further, those separately collected wastes are prohibited from landfill.Step 2 - Prevent the Escape of WasteYou must not allow any waste materials to escape from your control and that of youremployees, or the control of others during subsequent transport. Containers must besuitable for holding the waste so that it does not escape during transport andmanagement e.g. do not place loose powder materials or waste paper in an openbuilders skip as they are likely to blow away. Such materials should be securelycontained or bagged.What must I do when storing Waste?When waste is being stored at your premises you need to make sure that waste isstored in; • containers which segregate wastes to facilitate recycling that are clearly labelled with their contents so that people know what can and cannot be placed in them and the next holder of the waste can clearly see what the containers hold. • a secure location where access to it is limited to persons you have identified. If waste is kept in a less secure location, loose materials or specific objects may be blown or washed away or even stolen. Less secure storage may also 47

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