Handling of waste: amendment to legislation: consultation

We sought your views on whether or not the proposed extension of the Power of Direction in Section 57 of the EPA 1990 is:

(A) Necessary to ensure full compliance with EU obligations and:

(B) Appropriate to prevent damage to human health and harm to the environment in circumstances where no other mechanism is available.

The consultation received 10 responses. 7 were from organisations and 3 from individuals.

There was agreement that the extension was necessary from 5 respondees.

Of the remaining 5 respondees, 4 provided comment on the format of the regulations whilst supporting the need for the extension.

The comments received centred around 3 main themes.

• The lack of a right to appeal;
• That extensive consultation with SEPA and waste operator take place before the power of direction was issued’ and
• Account be given in the legislation to the changes to waste permits and licenses in the upcoming Integrated Authorisation Framework.

The remaining respondee commented on the general need for the extension.

No formal objection to the proposed extension was received.

We responded to the five respondees who made comment on (a) the format of the regulations and (b) the need for them and provided answers to their comments as follows:-

We explained that there is no appeal mechanism in respect of Ministerial powers of direction as the direction may only be used where immediate action is to prevent environmental harm or protect human health. A right of appeal would potentially delay action being taken, thus defeating the purpose of the provision.

We advised that consultation with SEPA would be standard practice, and we would consult with SEPA and the operator to explore whether agreement could be reached without having to use the power of direction, which we see as a last resort. We consider it would not be appropriate to add those steps to the legislation, as this could also potentially delay action being taken, thus defeating the purpose of the provision.

We confirmed that the drafting would work to include authorisations under the Integrated Authorisation Framework, once waste is included in that regime. Further, should that give rise to a need to make consequential amendments, powers are available to make those amendments.

We confirmed that notwithstanding existing EU obligations, Scottish Ministers consider it appropriate and necessary in the interests of protecting human health and the environment, to extend the current power of direction to all operators which accept, keep or dispose of waste.

 We have published those responses where consent has been given to publish.

As there were no formal objections, arrangements have been made to lay the draft regulations before the Scottish Parliament.