Consultation on Zero Waste Regulations

Regulations to Deliver Zero Waste

A Consultation on the proposed Zero Waste
(Scotland) Regulations 2011

Purpose

The Zero Waste Plan, published on 9 June 2010, set out the strategic
direction for waste policy for Scotland and proposed 22 actions to be taken to
deliver it. This consultation covers 3 of those actions relating to the
introduction 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 Arrangements

Please 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.uk

Responses should be made on the attached Respondent Information Form
and returned to us by 28 February 2011. Earlier responses would be
welcome.

1.0 A Vision for a Zero Waste Scotland
This vision describes a Scotland where resource use is minimised, valuable
resources are not disposed of in landfills, and most waste is sorted into separate
streams for reprocessing, leaving only limited amounts of waste to go for mixed
waste 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 to
achieve sustainable economic growth. Recycling represents a huge opportunity to
reduce dependency on imports and deliver a sustainable supply of basic raw
materials.

At the heart of the Zero Waste Plan is a change of mindset, a need for every one of
us to start viewing waste as a potential resource and to think about how to use that
resource most efficiently. Many businesses, individuals and public sector
organizations are already making this shift and their leadership and achievements
must be replicated across Scotland.

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2.0 Introduction
2.1 The Zero Waste Plan 2010

Scotland has already embarked on the journey towards a more sustainable approach
to waste and resources. Recycling rates continue to rise, volumes of waste being
sent to landfill are declining, and as a society we are increasingly aware of the
environmental impact of our activities.

However, despite this progress, recyclable materials continue to be landfilled. The
Zero Waste Plan is underpinned by a determination to achieve the best overall
outcomes for Scotland’s economy and environment by making best practical use of
the approach in the waste hierarchy: prevention, reuse, recycling and recovery.

The Zero Waste Plan sets out Government’s intention to develop regulatory
measures to drive source segregation, implement a phased programme of landfill
bans and ensure that only waste which could not have been recycled is incinerated.

Zero Waste Plan Action 4: The Scottish Government will introduce
progressive bans on types of materials that may be disposed of in landfill, and
associated support measures, to ensure that no resources with a value for
reuse or recycling are sent to landfill by 2020.

Zero Waste Plan Action 8: To support the introduction of landfill bans, the
Scottish Government will introduce regulations to drive separate collection
and treatment of a range of resources in order to maximise their reuse and
recycling value, and generate market supply. The initial focus will be on
separate collection of food waste, in order to recover its material and energy
value and avoid contamination of other waste materials.

Zero Waste Plan Action 14: The Scottish Government will introduce
regulatory measures to support the delivery of landfill bans, by ensuring
energy from waste treatment is only used to recover value from resources that
cannot offer greater environmental and economic benefits through reuse or
recycling. These measures will supersede the current 25% cap which
currently applies only to municipal waste, and are likely to result in similar
amounts of resources being available for energy from waste treatment.

The following consultation contains a package of regulatory measures to deliver
these actions. They will initiate a step change in how waste will be managed in
Scotland 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.

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The proposed regulations work together with other policy instruments (e.g. landfill tax
and recycling targets) to help achieve a zero waste Scotland and drive investment
towards the most sustainable waste management solutions for Scotland in the long
term. Each measure should not be seen in isolation; they are package of
interdependent and complementary measures.

The regulatory amendments suggested have been informed by research work carried
out by Eunomia Consulting on landfill bans1. Their research indicated landfill bans,
when coupled with a “requirement to sort”, would deliver net environmental and
financial benefits. The work focuses on defining waste by material type (to conserve
resources) or property (to protect the environment from the impacts of disposal).

2.2 The draft statutory instruments

There 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 measures

The proposed regulatory measures take a resources based approach to managing
wastes from all sectors. In an all waste approach, waste can be broadly split into two
categories – sorted materials for recycling and unsorted waste requiring further
recovery and disposal. The proposed regulations reflect this split by taking a two
pronged approach: (a) to maximise recycling and (b) to maximise resource recovery
and protect the environment through treatment of unsorted waste. Scottish
Government 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.

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http://www.wrap.org.uk/downloads/FINAL_Landfill_Bans_Feasibility_Research.f66a6ebf.8796.pdf

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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 10.0

Under these proposals, much less waste will be transported directly from producer to
incineration or landfill. Source segregation will drive greater volumes of recyclable
materials to appropriate treatment for recycling. Unsorted wastes will be pre-treated
to extract recyclable material, produce Refuse Derived Fuel and reduce
biodegradability of the landfilled fraction. These measures constitute a
complementary package which will drive sustainable economic growth and
encourage Scotland to become one of the most resource efficient economies in
Europe.

2.3 Lead-in times for the proposed regulatory measures

Introducing these measures will require appropriate lead-in times. Scottish
Government’s aim in setting the timings for introduction is to balance the need for
environmental improvement with the time required for local authorities and the
waste management industry to make the necessary adjustments to their practices
and to develop the alternative infrastructure.

For example, the landfill bans research referenced above suggested a lead-in time
of 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 high
to allow for the resource efficiency gains from recycling (paper and card) and
composting and anaerobic digestion (of source separated green and food waste)
to be fully realised.

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A proposed timeline for the landfill bans is illustrated here:

Views are sought from consultees regarding timings of introduction for each of the
five proposed regulatory measures outlines above.

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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

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4.0 Consultation Questions

Q1. 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?

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5.0 Source Segregation and Separate
Collection
5.1 What is Proposed?

Prioritising high levels of closed loop recycling is central to achieving a zero waste
Scotland. The higher the quality of the waste materials collected for recycling the
greater the environmental benefit. Recycling reduces the use of virgin materials and
energy required to extract and process raw materials.

The producer of waste, through their management at source, ultimately determines
the value which can subsequently be derived from it. In order to maintain a high
resource value, it is vital that recyclable materials are separated from other wastes at
source. This key action underpins the whole drive towards a zero waste Scotland. It
supports market demand for high quality and high value recyclate and is the best way
to achieve high recycling rates.

Clean, uncontaminated recyclable materials command higher prices in the recycling
markets. Therefore, producers who source segregate may find that they can reduce
their costs of waste collection and disposal. Many waste management companies in
Scotland already offer separate collection services and have reduced waste
management costs for many of their customers.

In order to give a clear signal to stakeholders about the importance of the zero waste
objective of maximising the quantities of high quality recyclable materials sourced
from Scotland, the Scottish Government is proposing legislative change.

An extended Duty of Care on all waste producers (other than householders) will
require source segregation of the key recyclable materials. This statutory
requirement is intended to place a general responsibility for everyone to do the best
they 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. This
reform will drive a step change in the way trade waste management operates in
Scotland for both producers and the waste industry.

These legislative amendments are supported by a new statutory Duty of Care Code
of Practice made under section 34(7) of the EPA 1990 which replaces all previous
versions 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 the
following 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 that
is—
(a) transmitted by electronic means;

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(b) received in legible form; and
(c) capable of being used for subsequent reference.î.
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;
(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.
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.
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 “the
duties 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. This
means that for example, all shops, offices, factories, restaurants, schools and
hospitals must comply with this new duty. For more information on how source
segregation will be increased for waste from households, please see Section 6.0.

The requirement to source segregate food waste is targeted specifically on those
undertakings involved in food production, food retail or food preparation. This
includes food manufacture, canteens, kitchens, schools, restaurants and
supermarkets.

The Duty also applies to waste carriers who collect source segregated materials.
Waste collectors must make sure that the efforts made by producers to source
segregate are not undermined once those materials are collected and transported.

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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 for
the listed recyclable wastes. With the exception of food waste, which must be
collected in a dedicated container, it is satisfactory under this duty for the listed
recyclable 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 or
further 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 recyclable
waste materials where these have been segregated by the producer. As a carrier of
waste you have a duty to ensure that these recyclable materials are not
contaminated with other wastes whilst you are the holder.

A breach of the Duty of Care may result in enforcement action being taken. In
addition to the penalties under the Environmental Protection Act 1990 carriers could
also 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, waste
managers will be prohibited from mixing these source segregated wastes with
unsorted wastes at a transfer station. Further, these source segregated materials are
banned from landfill. These measures ensure that recyclable waste separated at
source is directed towards recycling.

5.7 Consultation questions

Q1 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 of the Duty of Care Code of
Practice?

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6.0 Household waste collected by Local
Authorities
6.1 What is proposed?

The Duty of Care (as described in the previous section) applies in only a very limited
sense to individual householders. Waste from households is almost always collected
by, or on behalf of, local authorities. Therefore, a different regulatory mechanism is
proposed for waste from households.

The proposed regulation amends Section 45 of the Environmental Protection Act
1990 to require Scottish waste collection authorities to take all technically,
environmentally and economically practicable measures to provide separate
collection services to households for the listed recyclable materials.

Local authorities provide services to a wide range of different housing circumstances
based on geographic and socio – economic variables. Best practice guidance for
collection systems, which optimise capture of recyclates and ensure that the quality
of 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 and
economic benefits.

The Zero Waste Plan makes it clear that the focus of municipal waste policy has
moved away from landfill diversion towards maximising levels of high quality
recycling. Levels of high quality recycling can be maximised through separation and
collection systems which keep materials clean and free from contamination. This
requires a change of mindset for both local authorities and the householders being
provided with the service.


following 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: 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

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(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
(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—
(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.

6.3 Why is this change of focus important?

The environmental benefits of reducing reliance on primary resources through
recycling are well established. The Waste Framework Directive 2008/98/EC
requires Member States to put in place measures to promote high quality recycling.
Key materials identified as being readily recyclable are paper, metal, plastic and
glass. The Directive also promotes better management of biowaste (biodegradable
park and garden waste, food and kitchen waste).

Due to the requirements of the Landfill Directive, the focus, up to now, has been on
reducing the amount of biodegradable municipal waste going to landfill. This has led
to the development of some waste management options which do not maximise the
resource value of the materials contained in the waste, despite nominally meeting the
targets of the Landfill Directive. Scottish Government considers that diverting waste
from landfill is not always the same as recycling.

The focus for local authorities will shift from diversion of Biodegradable Municipal
Waste from landfill and towards achieving high levels of closed loop recycling. This
directs efforts towards activities which are further up the waste hierarchy than landfill
diversion. Greater source segregation of recyclable materials, food and green waste
will 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 differentiates
between waste from households and waste from commercial & industrial premises at
the source segregation and separate collection stage. Once collected, the Zero
Waste 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 Waste
Plan and earlier strategic approaches to waste. Earlier waste strategies focused
mainly on municipal waste management, the driver being the Landfill Directive
requirements to divert biodegradable municipal waste out of landfill. The Zero Waste

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Plan takes an all waste approach ensuring that the same treatment standards are
applied and the regulatory requirements are the same for all wastes – regardless of
whether the waste is household, municipal or commercial & industrial.

Therefore, once the household waste has been collected the same requirements as
described in section 5.6 apply. Waste managers will be prohibited from mixing these
source segregated wastes with unsorted wastes at a transfer station and the source
segregated materials are banned from landfill.


Q4 Do consultees consider that Government should mandate more specifically the
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?

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7.0 Ban on mixing separately collected
recyclables

It is important that sorted recyclables are not contaminated after efforts have been
made both to segregate materials at source and to collect and transport them
separately from other wastes and materials.

These regulatory provisions mean that any environmental permit for waste
management will include condition(s) to prohibit the mixing of separately collected
wastes with other waste where such mixing would hinder future recycling. These
ensure that efforts put into source separation are not undermined later by poor
management.


following amendment to the Waste Management Licensing Regulations 1994

Amendment of the Waste Management Licensing Regulations 1994
3.—(1) The Waste Management Licensing Regulations 1994(3) 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.

Regulation 4 of the Zero Waste (Scotland) Regulations 2011 makes the following
amendment to the Pollution Prevention and Control (Scotland) Regulations 2000:

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Amendment of the Pollution Prevention and Control (Scotland) Regulations 2000

4.—(1) The Pollution Prevention and Control (Scotland) Regulations 2000(4) are amended as
follows.
(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—
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.

7.2 What does this mean for licence / permit holders?

In practice, waste managers will be required to ensure that the listed source
segregated recyclables are kept separate from unsorted waste streams once
unloaded at a transfer station or any other waste management facility.

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8.0 Landfill Bans - Materials

This consultation includes a proposal to introduce two types of landfill ban. The first
type, which this section covers, is a series of material based bans. The second type
of ban is a property based ban based on biodegradable content (discussed in section
10).

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 recyclable
materials from landfill is most effective when accompanied by a “requirement to sort”.
These material based landfill bans therefore support the upstream requirements to
sort the key recyclable materials (discussed in sections 5, 6 and 7) and are not an
alternative to these requirements.

Practical implementation guidance on both the materials and property based landfill
bans has been drafted and forms part of this consultation.


following amendment to the Landfill (Scotland) Regulations 2003:

Amendment of the Landfill (Scotland) Regulations 2003
5.—(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 landfill
does not mean that they must be removed from mixed/unsorted waste prior to
disposal in landfill sites. Unsorted wastes arriving at landfill sites are still likely to
contain the listed materials. The bans apply only to materials which have already
been sorted for recycling – either as part of the new Duty of Care or by householders
using the service provided by their waste collection authority. The ban does not, by
itself, increase levels of recycling for these key materials.

Mandatory source segregation and the household waste services provided by waste
collection authorities, supported by education and enforcement will, over time,
remove the listed wastes from the unsorted waste stream. In time, this unsorted

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waste will be subject to the property based ban, ensuring that it is diverted from
landfill 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 Prevention
and Control (Scotland) Regulations 2000 (PPC Regulations). Landfill permits will be
amended to include permit conditions making it an offence for landfill operators to
accept 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 are
the main driver for delivering high quality materials into the recycling markets.
Scottish Government intends to introduce the “requirement to sort” before introducing
the corresponding landfill ban.

This is in order to provide the waste management industry and local authorities with
sufficient time to organise their collection services and develop the required
additional recycling infrastructure before the ban comes into effect.

Scottish Government proposes to introduce landfill bans on source segregated dry
recyclables and food waste in 2015. This is two years after the requirement to sort
enters into force. Therefore, the programme provides two years to develop collection
infrastructure and a further two years to develop treatment infrastructure.

8.6 Consultation questions

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?

19

Q7 Do consultees consider that banning the listed materials accompanied by a
“requirement to sort” will support investment in the infrastructure required to achieve
high recycling rates?

20

9.0 Energy from Waste Restrictions

Not all waste will be sorted into separate streams for recycling. An unsorted waste
stream will remain. The restrictions on EfW inputs and the property based landfill ban
are 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 does
not include Anaerobic Digestion plants which treat either source segregated biowaste
or the biological fraction of unsorted waste to produce a biogas which is
subsequently used to generate energy.

The approach to EfW under the Zero Waste Plan is not solely about using waste to
generate energy instead of fossil fuels. Energy from Waste is truly sustainable only if
the waste which is burnt could not have been reused or recycled. Therefore, the
reasons 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 one
step up the hierarchy from landfill to mass incineration, Scottish Government intends
to introduce regulations which will restrict inputs to Energy from Waste (EfW) facilities
to

• 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

This resource centered solution shows that EfW is not a substitute for high quality
recycling achieved through source segregation and separate collection, but can be
complementary to these upstream measures.

That inputs to EfW facilities should be restricted to residual waste only is not a new
policy. What is proposed here is that practical implementation will move from the land
use planning system to regulation by SEPA of day to day operations. This proposal
will replace the 25% energy from waste cap for local authority collected municipal
waste with an approach that requires equivalent treatment standards for all waste
streams and sectors (household, commercial and industrial waste), irrespective of
which party collects the waste.

This measure is not intended to add to current stringent environmental protection
measures. The existing Waste Incineration Directive standards provide robust
controls designed to protect the environment and human health.


following 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 extract
recyclable 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

As levels of source segregation are currently low compared to the levels required to
meet the recycling objectives of the Zero Waste Plan, there remains fairly significant
quantities of potentially recyclable material in unsorted waste, (i.e. black bags, litter
bins, skips). There are a number of treatment technologies which can be used to
extract recyclable material from unsorted waste and render the resulting waste
stream “residual”. These are discussed in the accompanying implementation
guidance document. Non-ferrous metals and dense plastics, which are lost during the
incineration process, but which have value as recyclate, should be extracted through
pre-treatment.

There may also be other materials which, although not present in large volumes, are
valuable and should be recycled. Such an example is Waste Electrical and
Electronic Equipment (WEEE). Electronic gadgets may contain small quantities of
valuable raw materials such as gold and other metals and the elements referred to as
the “rare earth metals”. These are essential in a range of high technology
applications such as super-conductors, lasers, renewable technologies, medical
equipment, communications and defence etc. The mining and processing of these
metals can have serious environmental consequences and, currently, most of the
global supplies come from China.

23

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 will
periodically audit residual waste suppliers to ensure that only suitable waste types
allowed by the permit conditions are being accepted for EfW. It will be an offence
under the PPC Regulations to incinerate or co-incinerate waste which is not residual
waste. It is expected that incinerator operators will ensure that their suppliers either
carry out this treatment or they do it in-house.


Q8 What pretreatment 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 wastes, 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?

25

10.0 Landfill Bans – Measurable Property

Scottish Government proposes to introduce a measurable property landfill ban based
on biodegradable content. This type of ban acts in the same way as a landfill ban on
unsorted 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 the
level of biological activity to a defined threshold. As with the other measures
proposed under the Zero Waste Plan, it takes an “all waste” approach and does not
make any distinction between “municipal waste” and waste from other sources.

In order to define the threshold of biological activity, the draft Regulations suggest
using a Total Organic Carbon content of less than 3%. Views are sought from
consultees on possible alternatives.

Implementation guidance on this landfill ban and the material based bans
discussed in Section 8.0 is published alongside this consultation and forms part of
it.


following amendments to the Landfill (Scotland) Regulations 2003:

ì(fb) ….
(fc) as from…….., any waste with an organic content greater than three percent of the total
content;î.

10.3 What does this mean?

The expected outcome would be to move waste out of landfill and into alternative
mixed waste treatments such as Mechanical Biological Treatment, Mechanical Heat
Treatment and EfW. What alternative treatment is provided will depend on a number
of factors and will be left to the market to determine, subject to the requirement that

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any waste incinerated is ‘residual’ and any waste landfilled meets the
biodegradability threshold.

Under this framework, unsorted waste treatment operators will remove recyclable
materials to produce a ‘residual’ waste stream for incineration and a stabilised
fraction for landfill. If these efforts have not been made and the waste has not been
stabilised to below the threshold, processors will not be able to describe the landfill
fraction as “pre-treated prior to landfill” on the Waste Transfer Note.

Plants which seek to meet this threshold through biological treatment will have to
demonstrate compliance through the environmental permit. This will require a testing
plan to be developed to show that the stabilised waste meets the limit under standard
operating conditions.

10.4 How will biological activity be measured?7

Several European countries have established standards for defining stabilised
wastes, based on measures of biological activity (see Table below). Outputs from
stabilisation processes will retain some level of biological activity. The degree to
which bio-stabilisation has occurred can be measured using a respiration index (RI).
This can be either static (SRI) or dynamic (DRI). RI methods measure aerobic
degradation.

The Environment Agency has developed a method which measures anaerobic
degradation, the BM100, which measures biogas production over a 100 day period.
This may more accurately reflect conditions in a landfill but takes much longer to
carry 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 then

7
http://www.greenstar.ie/docs/Eunomia_MBT.pdf

27

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 disposal
options but which cannot meet the threshold e.g. soil, although this will depend on
the threshold chosen. Bespoke permit conditions could also be developed on a
case by case basis with SEPA if required.

Views are sought from consultees about which measurement method would be most
appropriate.

10.5 What does this mean in practice for landfill operators?

Permit conditions will be modified to require that landfill operators accept only wastes
which are below the defined threshold. At the landfill gate any unsorted waste (black
bag type waste) would be rejected and directed for pre-treatment. Otherwise, all
waste 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 the
waste visually at the gate to ensure that the incoming waste complies with the new
requirements.

10.6 What does this mean for the Landfill Allowance Scheme?

The Landfill Allowance Scheme (LAS) was developed to meet Landfill Directive
targets 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

diversion or to carry out mass balance calculations for Mechanical Biological
Treatment facilities with different process efficiencies. Scottish Government
intends to revoke the Landfill Allowance Scheme once the new legislative
measures to regulate waste to landfill are implemented.


Q12 Do consultees think that the timing of the landfill bans (in Section 2.3) is
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?

29

DRAFT – 23 NOVEMBER 2010 APPENDIX 1

Draft Regulations laid before the Scottish Parliament under Schedule 2 paragraph 2(2) to the
European 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 by
section 2(2) of the European Communities Act 1972(8) and all other powers enabling them to do
so.

In accordance with Schedule 2 paragraph 2(2) to that Act, a draft of these Regulations has been
laid 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 and
come 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.
ì(1A) In subsection (1), references to a written description of the waste include text that
is—
(c) capable of being used for subsequent reference.î.
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;

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(c) plastics;
(d) textiles;
(e) paper; and
(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.
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.
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 “the
duties 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
(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


(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:
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.
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 as
follows.
(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—

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32


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.
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.

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 Executive
St Andrew’s House,
Edinburgh
Date

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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 by
section 34(5) and (5A) of the Environmental Protection Act 1990(13) and section 2(2) of, and
paragraph 1A of Schedule 2 to, the European Communities Act 1972(14) and all other powers
enabling them to do so.

These Regulations make provision for a purpose mentioned in section 2(2) of the European
Communities Act 1972, and it appears to the Scottish Ministers that it is expedient for references
to Commission Decision 2000/532/EC(15) to be references to that instrument as amended from
time 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
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14
( )
15
( )
16
( )


“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 electronic
signatures?].

Transfer Notes
8.—(1) Subject to paragraph (4), the transferor and the transferee must, at the same time as the
written description of the waste is transferred, ensure that such a document as is described in
paragraphs (2) and (3) (“a transfer note”) is completed and signed on their behalf, [and that a copy
is 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, of
the categories shown in column 1 of the following Table describes him or her and provide any
relevant additional information specified in column 2 of the Table.

TABLE

17
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35


Category of person Additional information
A local authority
The holder of a waste management licence
under section 35 of the Act or a disposal licence
under section 5 of the Control of Pollution Act
1974(19)
The holder of a permit under the Pollution
Prevention and Control (Scotland) Regulations
2000(20) which authorises the carrying out of a
specified waste management activity within the
meaning of those Regulations
A person to whom section 33(1)(a) and (b) of
the Act does not apply by virtue of regulations
under subsection (3) of that section
A person registered as a carrier of controlled The name of the waste regulation authority with
waste under either section 2 of the Control of whom that person is registered and the
Pollution (Amendment) Act 1989(21) or registration number
Schedule 4 paragraph 12 to the Waste
Management Licensing Regulations 1994(22)

(4) Paragraph (1) does not apply where the waste transferred is special waste within the meaning
of 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 those
Regulations.

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 the
transfer 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 under
regulation 3(1) must carry that copy with the waste and must produce it to any officer of SEPA on
request.]

Duty to furnish documents
11.—(1) A person who has been requested by SEPA to produce any document which that person
is required to keep under regulation 4 must furnish SEPA with it, or with a copy of it, as soon as
reasonably practicable and in any case within 7 days or such longer period as may be permitted by
SEPA.
(2) Any document required to be produced under paragraph (1) must be given to an officer of
SEPA or sent to an address specified by SEPA in writing when making the request.
(3) In this regulation, “writing” includes text that is—

19
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20
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21
( )
22
( )
23
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(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 Executive
St Andrew’s House,
Edinburgh
2011

24
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37

Duty of Care – A Code of Practice

38

1.0 Introduction
This “Duty of Care: A Code of Practice” is made under section 34(7) (as amended) of
the Environmental Protection Act 1990 and replaces all previous versions applicable
in Scotland. This Code of Practice applies in Scotland only. You should have regard
to 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 as
evidence in court and the court shall take it into account in determining any questions
to 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 whether
persons 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 practical
guidance to all waste holders in the waste management chain. The guidance has
been revised to take into account the additional duties proposed under the new
Regulations which also form part of this consultation.

Revised Waste Framework Directive

One 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 Action
Programme called for measures aimed at ensuring the source separation, collection
and recycling of priority waste streams.

This Duty of Care Code of Practice describes the duties of waste holders in ensuring
that Scotland maximises the quantity and quality of the following materials: paper and
card, plastic, metals and glass, available for closed loop recycling. The duties in
relation to source segregation and separate collection requirements also apply to
food waste which can be optimally treated in biological treatment plants.

Keeping recyclable waste clean and separate from unsorted waste improves its
recovery potential by making recycling easier and establishing the stable conditions
and security of supply required to support the reprocessing industry.

Key Zero Waste Principles

In the Zero Waste Plan the Scottish Government committed to take action to
increase the quantity and quality of resources recycled, with the aim of achieving
high levels of “closed loop” resource management.

This Duty of Care includes information on new duties made under section 34 of the
EPA 1990 which are intended to increase the quantities and improve the quality of
recyclate. The targeted materials are paper and card, metals, plastics, glass and food
waste.

Recycling is about much more than merely an alternative to disposal in landfill. It is a
key part of the Government’s Low Carbon Economic Strategy designed to bring
economic growth without the carbon cost of unsustainable resource use. Recycling
reduces the amount of energy used to extract and process virgin materials such as
timber, minerals and oil.

In order to conserve the value of resources and to improve recyclability of materials
contained in waste the Duty of Care requirements in section 34 of the EPA 1990

39

have been extended to require source segregation and separate collection of key
materials.

These statutory Duty of Care requirements and this associated Code of Practice form
part 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 1990

The draft Zero Waste (Scotland) Regulations 2011, which are also the subject of this
consultation, 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 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;
(c) plastics;
(d) textiles;
(e) paper; and

(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 .

These requirements are in addition to the existing Duty of Care requirements, which
require all producers, carriers, importers, exporters, brokers, dealers and processors
of controlled waste to manage that waste correctly by storing it properly, only
transferring it to the appropriate people and ensuring that when it is transferred it is
sufficiently well described to enable its safe recovery or disposal without harming the
environment.

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 parties
comply with the requirements. Failure to comply may lead to enforcement action
under the Environmental Protection Act 1990 and the Zero Waste (Scotland)
Regulations 2011.

40

This code covers the Duty of Care relevant to all aspects of waste management. To
make 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 on
their role(s) within Duty of Care. For example, if you are a waste producer and
carrying your own waste, you will need to read the section on producer and carrier
responsibilities.

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2.0 Glossary of Terms
Basic Characterisation

The Landfill Directive (1999/31/EC) and Council Decision (2003/33/EC) establish
criteria and procedures for the acceptance of waste at landfills including a
requirement for their basic characterisation.

Broker

A person (or establishment or undertaking) arranging the recovery or disposal of
waste on behalf of others including those brokers who do not take physical
possession of the waste.

Carrier

Any person (or establishment or undertaking) transporting waste within Scotland.

Construction Work

The carrying out of any building, civil engineering or engineering construction work
and includes: construction, alteration, conversion, fitting out, commissioning,
renovation or other maintenance, decommissioning, demolition or dismantling of a
structure.

Construction and Demolition Waste

Waste arising from works of construction or demolition, including preparatory works
thereto.

Controlled Waste

The term controlled waste comes from Section 75(4) of the Environmental Protection
Act 1990 and is defined as “household, industrial and commercial waste or any such
waste”.

Dealer

Person (or establishment or undertaking) which purchases and subsequently sells
waste as a principal including dealers who do not take physical possession of that
waste.

Enforcement Officer

An officer of the Scottish Environment Protection Agency or Local Authority who has
powers in connection with the investigation of suspected offences, the detection and
apprehension of offenders and granted powers to act in respect of environmental
offences.

Environmental Permit

A permit or licence issued under the Pollution Prevention and Control (Scotland)
Regulations 2000, the Environmental Protection Act 1990 and the Waste
Management Licensing Regulations 1994.

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Environmental Protection Act 1990

Section 34 of this Act establishes the requirements of the Duty of Care with respect
to waste.

Exemption from an Environmental Permit

Schedule 3 to the Waste Management Licensing Regulations 1994 (as amended)
lists and describes the waste operations which do not require an environmental
permit, providing that the establishment or undertaking carrying them out has
registered that exemption where required. These Regulations also specify the
requirements that an exempt waste operation must meet.

Establishment or Undertaking

Includes any organisation, whether a company, partnership, authority, society, trust,
club, charity or other organisation, but not private individuals.

Green List Waste

Waste which is not, for the purposes of import or export for recovery, regarded as
hazardous. Green list controls apply to some (but not all) imports or exports.

Harm

Harm to the health of living organisms or other interference with the ecological
systems of which they form part and in the case of man includes offence to any of his
senses or harm to his property; and “harmless” has a corresponding meaning.

Household waste

Means waste generated by households.

Householder

The occupier of any domestic property.

Holder of Waste

The producer of the waste or the person, establishment or undertaking that is in
possession 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

With certain exceptions, only wastes that have been subject to ‘treatment’ may be
landfilled, treatment is intended to encourage more recycling and reduce the impact
of the wastes that are landfilled.

Pollution of the Environment

Pollution 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, of
substances or articles constituting or resulting from the waste and capable (by
reason of the quantity or concentrations involved) of causing harm to man or any
other living organisms supported by the environment.

Public Registers

A register maintained by SEPA of all registered waste management activities
including all waste carriers or those exempt from carrier registration, waste brokers
and dealers, those with an environmental permit or those sites registered as
operating under an exemption from environmental permitting.

Season Ticket

A controlled waste transfer note must be created for each load of waste that leaves
your site. However, for repetitive transfers there is provision to use one transfer note
which will cover multiple transfers. One transfer note can be used for multiple
collections for a time period that is recommended not to be longer than 12 months; it
should 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 same

If any of this information changes, then an individual transfer note must be used. It is
advisable that a log be maintained of loads of waste leaving and arriving at sites
under a season ticket.

SIC Codes

SIC is the UK Standard Industrial Classification of Economic Activities (2007).
The SIC code is used to classify business establishments and other statistical units
by the type of economic activities they are engaged in. You are required to record the
appropriate SIC code of the transferor on all controlled waste transfer notes.
Relevant codes can be determined from the Office of National Statistics (ONS) or
their website:
http://www.statistics.gov.uk/methods_quality/sic/downloads/SIC2007explanatorynote
s.pdf

44

Transfer Note

A note which must be created for any transfer of controlled waste. The note must be
signed by both parties and must contain certain prescribed information (see Annex 1
for details) about the waste to be transferred. It should also contain a written
description of the waste and any further information required for the next and
subsequent holders of the waste to manage it without causing pollution of the
environment or harm. A specimen note is provided in Annex 2 of this guidance.

Transferee

The person (or establishment or undertaking) receiving the waste.

Transferor

The person (or establishment or undertaking) holding the waste and who transfers it
to another (different) person (or establishment or undertaking).

Waste

‘Waste’ means any substance or object which the holder discards or intends or is
required to discard.

Waste Collection Authority

A local authority responsible for collecting waste as defined in the 1990 Act.

Written Description

Additional information submitted on the transfer note identifying the nature and
characteristics of the waste. This should help subsequent holders to manage the
waste correctly and to meet their requirements under the Landfill Directive.

WEEE

Waste Electrical and Electronic Equipment that is controlled by the Waste Electrical
and Electronic Equipment Regulations 2006 (as amended).

Waste Export

Any 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 to
be familiar with these controls.

Waste Manager

Waste manager means anyone who re-uses, recycles, recovers or disposes of
waste, including the supervision of such operations and the after-care of disposal
sites, and includes any actions taken as a broker or dealer.

Waste Producer

Any person (or establishment or undertaking) whose activities produce waste
(original waste producer) or anyone who carries out pre-processing, mixing or other
operations which result in a change in the nature or composition of this waste.

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3.0 Your Obligations as a Waste Producer
This section offers guidance to any person (with the exception of householders) who
produces waste in the course of their business activities. This includes both private
sector business such as shops, offices and factories and public sector services such
as 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 under
the Duty of Care. Using a waste broker does not lessen or remove any of these
responsibilities from you in your role as waste producer.

You have a duty to take all reasonable measures to comply with the Duty of Care
whilst the waste is in your possession and when you transfer your waste to
somebody else. This means that you must ensure that you take the following steps;

Step 1 – Separate Recyclable Materials at Source

As the producer of waste, the quality of your management at source ultimately
determines the value which can be derived from it. You therefore have the most
important role under the Duty of Care. This section offers guidance to ensure that the
objectives of the Duty of Care are achieved.

Key to sustainable economic growth is the development of collections schemes that
are able to provide secure supplies of high quality recyclate feedstock. The best way
to achieve this is to separate recyclable materials at source. It supports market
demand for high quality and high value recyclate. Clean, uncontaminated waste
streams will be of higher value to recyclers so segregation may also help in reducing
costs to you.

46

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

In addition, it is the duty of any person carrying on an activity consisting of or
including food production, food retail or food preparation to present the food waste for
collection 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 for
the listed recyclable wastes. Segregation of waste is the key to good waste
management as it keeps contamination to a minimum and makes closed loop
recycling easier. With the exception of food waste, which must be collected in a
dedicated container, it is satisfactory for the listed recyclable 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 or further treated at a Materials
Recovery Facility (“MRF”). However, the value of recyclate increases if materials are
kept clean and separate from each other as far as possible. Your waste contractor
may offer you more favourable contractual conditions if you are able to separate
materials further.

Waste managers are prohibited from mixing your separately collected recyclable
waste with unsorted wastes (e.g. general black bag waste). This ensures that the
effort 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 Waste

You must not allow any waste materials to escape from your control and that of your
employees, or the control of others during subsequent transport. Containers must be
suitable for holding the waste so that it does not escape during transport and
management e.g. do not place loose powder materials or waste paper in an open
builders skip as they are likely to blow away. Such materials should be securely
contained or bagged.

What must I do when storing Waste?

When waste is being stored at your premises you need to make sure that waste is
stored 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

attract others to mix their waste with your own. If this occurs then the waste
carrier or contractor may charge you more or refuse to accept the waste at
their site.

Where can I get advice about packaging for transport?

You should expect your waste contractor (carrier) to advise you on the packaging
requirements for safe transport. If you are employing a waste broker then you might
also be able to obtain such advice from them.

Step 3 - Describe Your Waste

Ensure that any waste being transferred is covered by a waste transfer note including
an adequate written description that will enable anyone receiving it to manage it in
accordance with their own Duty of Care. If you have not described the waste properly
or not told the next holder the properties of the waste, then you may still be liable if
something goes wrong after the waste is transferred.

What information must I provide?

The information you pass on to the next holder is contained in the waste transfer
note. The transfer note is your evidence that the waste was passed on and that it
was adequately described. Guidance on the information that a transfer note MUST
contain is provided in Chapter 9.0

You must keep a copy of the transfer note signed by yourself and the person you
transfer waste to for two years. This can be an electronic copy, including electronic
signatures, provided an enforcement officer can view it. You also need to keep any
additional information with this note such as any analysis results.

In order to reduce administrative burdens a ‘season ticket’ system can be used for a
period up to 12 months. This prevents the need for a transfer note to be produced for
every waste load transferred. However this ‘season ticket’ can only be used for waste
of the same description transferred to the same transferee. Such a season ticket
might be used, for example, for the weekly collection of waste from shops or
repetitive transport of excavated materials from construction works.

You should also keep a log of individual loads collected from you under season ticket
arrangements. For example, you could request weighbridge tickets from your waste
carrier.

If the waste is Special Waste you have the same obligations under the Duty of Care.
A consignment note, rather than a transfer note, is required to comply with the
Special Waste (Scotland) Regulations 1996 together with any additional information
for Duty of Care.

Step 4 - Waste must only be transferred to an Authorised Person

Make sure that any person or business you are transferring waste to or who is
organising waste transfers for you are registered with SEPA to do so. If they are not
registered with SEPA you should confirm that they do not need to be before they take
the waste.

48

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