The Pollution Prevention and Control (Public Participation etc.) (Scotland) Regulations 2005

Explanatory Note

(This note is not part of the Regulations)

These Regulations are made under section 2 of the Pollution Prevention and Control Act 1999 (1999 c. 24). They implement in Scotland the amendments to the public participation provisions in Directive 96/61/EC made by Article 4 of Directive 2003/35/EC providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC (“the Public Participation Directive”) (O.J. No. L 156, 25.6.2003, p.17).

The requirements of Directive 96/61/EC concerning integrated pollution prevention and control have been implemented in Scotland by means of the Pollution Prevention and Control (Scotland) Regulations (S.S.I. 2000/323) (“the 2000 Regulations”).

Regulation 3 amends regulation 4 of the 2000 Regulations to enable SEPA to grant a permit subject to the condition that the applicant obtains any relevant certificate of technical competence within 2 years, where satisfied that the person is a fit and proper person to carry out certain specified waste management activities.

Regulation 4 amends regulation 17(8) of the 2000 Regulations so as to extend the application of that provision to mobile plant.

Regulation 5 inserts a new regulation 22A into the 2000 Regulations to extend the additional access to justice requirements in Article 4 of the Public Participation Directive to environmental non-governmental organisations.

Regulation 6(a) substitutes a new section 5.4 into Schedule 1 to the 2000 Regulations, which deals with the regulation of certain waste recovery activities. This corrects minor errors in the most recent amendment of that section by S.S.I. 2005/146, regulation 19(f) and (g).

Regulation 6(b) amends the definition of “vehicle coating” in section 7 of Schedule 1 to the 2000 Regulations to exclude certain coating activities from the scope of that definition in certain circumstances.

Regulation 7(a) to (c) amend paragraphs 5, 6 and 9 of Schedule 3 to the 2000 Regulations to enable SEPA to receive and consider applications for permits under those Regulations to allow the continued operation of existing installations, whether or not already subject to an authorisation under Part I of the Environmental Protection Act 1990 (“the 1990 Act”).

Regulation 7(d) substitutes a new paragraph 23 into Schedule 3 to the 2000 Regulations to clarify that the specific powers of variation or revocation under that paragraph are exercisable at any time and without prejudice to more general powers of variation or revocation, for example, under section 10 of the 1990 Act.

Regulations 8 and 9 amend the procedures for public participation in Schedules 4 (grant of permits) and 7 (applications for variation of conditions) respectively to the 2000 Regulations in order to implement the additional public participation requirements in paragraphs 1 to 3, 5 and 6 of article 4 of the Public Participation Directive. These requirements apply to all applications for permits to operate new Part A installations and to variations authorising substantial changes in the operation of a Part A installation or variations resulting from a review by SEPA of a Part A installation under regulation 11(2)(a) of the 2000 Regulations.

Regulation 8 amends Schedule 4 to the 2000 Regulations, which sets out the procedures for applications and determination of permits under regulation 7 of those Regulations. In particular–

(i) regulation 8(a) adds a new paragraph (oa) (relating to alternatives) to the list of information specified in paragraph 1 of Schedule 4 which needs to be provided with the application;

(ii) regulation 8(b) to (o) extends the public participation requirements in Parts 1 and 2 of Schedule 4 to apply the new requirements in Article 4 of the Public Participation Directive to applications for permits to operate new Part A installations, within the meaning of paragraph 6 of Part 1 of Schedule 3 to the 2000 Regulations;

(iii) regulation 8(b) and (c) provides for additional advertisement requirements in respect of applications for permits to operate new Part A installations;

(iv) regulation 8(f) to (l) amends the provisions in Parts 1 and 2 of Schedule 4 to provide for a new “draft determination” stage, which includes additional obligations to advertise, to inform other Member States in the case of installations with transboundary effects, to allow for representations from interested parties, and to provide or make available the additional information specified in Annex V to the Public Participation Directive;

(v) regulation 8(m) to (o) amends the provisions in Part 3 of Schedule 4 to ensure that the additional advertisement requirements under the new paragraph 15B shall not extend to information precluded from disclosure under regulation 28 (national security) or regulation 29 (commercially confidential information).

Regulation 9 amends Schedule 7 to the 2000 Regulations, which sets out the procedures for the variation of conditions of permits under regulation 13 of those Regulations. In particular–

(i) regulation 9(a) to (i) extends the public participation requirements in Part 2 of Schedule 7 to apply the new requirements in Article 4 of the Public Participation Directive to–

(aa) variations authorising substantial changes in the operation of Part A installations; and

(bb) variations in the conditions of a permit to operate a Part A installation proposed by SEPA and resulting from a review under regulation 11(2)(a) of the 2000 Regulations;

(ii) regulation 9(a) amends paragraph 4 of Schedule 7 to the 2000 Regulations to require SEPA to furnish the operator with additional information as well as to provide for additional advertisement requirements in respect of variations affecting the operation of Part A installations;

(iii) regulation 9(b) to (h) inserts, for variations affecting Part A installations, a new “post-advertisement” stage in respect of variations proposed by SEPA and a “draft variation” stage in respect of applications for variations, including, as in the case of applications for permits to operate Part A installations, additional obligations in relation to advertising, the provision of information to other Member States in the case of installations with transboundary effects, new representation requirements, and the obligation to provide or make available information specified in Annex V to the Public Participation Directive.

(iv) regulation 9(i) and (j) amends Part 3 of Schedule 7, in a similar way to the amendments to Schedule 4 by virtue of regulation 8(m) to (o), to exclude information from advertisement on grounds of national security or commercial confidentiality.

Regulation 10 inserts a new sub-paragraph (c) into paragraph 1 of Schedule 9 (Registers) to require SEPA to include in the register the information resulting from the new public participation requirements specified by these Regulations.

Regulation 11 amends the Environmental Protection (Prescribed Processes and Substances) Regulations 1991 (S.I. 1991/472) to increase the threshold from 1 tonne to 2 tonnes for which an authorisation is required under Part I of the Environmental Protection Act 1990 (c. 43) to carry out certain activities involving repainting or respraying of road vehicles.

A Regulatory Impact Assessment relating to Article 4 of the Public Participation Directive has been prepared and copies can be obtained from the SEPA Sponsorship and Waste Division, Scottish Executive Environment and Rural Affairs Department (SEERAD), Victoria Quay, Leith, EH6 6QQ.