Handling of waste: amendment to legislation: consultation

Closed 2 Sep 2019

Opened 5 Aug 2019

Feedback Updated 5 Sep 2019

We Asked

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.

You Said

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 Did

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.

Published Responses

View submitted responses where consent has been given to publish the response.

Overview

The version of section 57 of the Environmental Protection Act 1990 (EPA 1990) that applies in Scotland enables Scottish Ministers to, by notice in writing, direct the holder of any waste management licence to accept and keep, or accept and treat or dispose of, controlled waste at specified places, and on specified terms. It also enables Ministers to direct a person keeping controlled waste to deliver that waste to a specified person, and for the waste holder to pay reasonable costs to the specified person for the treatment or disposal of the waste. If the costs are not paid, there is a discretion to Ministers to pay them. Section 58 of that Act enables Ministers to direct local authorities to accept and treat or dispose of waste.

Sections 57 and 58 have not been substantially amended since they came into force. The current provisions which apply in Scotland are set out in full in the Annex to this consultation. They are of the nature of a failsafe power to ensure that waste is appropriately treated or disposed of in circumstances where the normal regulatory powers fall short or have been exhausted.

We have no record of the current provisions being exercised since devolution as the regulatory and enforcement powers of the Scottish Environment Protection Agency (SEPA) have been relied on to deal with any issues arising.

Read the consultation paper. 

Interests

  • Economy
  • Environment and Climate Change