The Environment (EU Exit) (Scotland) (Amendment etc.) Regulations 2019

The Special Waste Regulations 1996

7.—(1) The Special Waste Regulations 1996(1) are amended as follows.

(2) In regulation 1(4) (interpretation)—

(a) in the definition of “European Waste Catalogue” for “set out in” to the end substitute “as defined in regulation 1B,”,

(b) for the definition of “waste”, substitute—

““waste” has the same meaning as in section 75(2) of the Environmental Protection Act 1990(2) as read with section 75A of that Act,”.

(3) After Regulation 1 insert—

“Annex III to the Waste Directive

1A.   A reference in these Regulations to—

(a) Annex III is a reference to Annex III (properties of waste which render it hazardous) to the Waste Directive, and

(b) hazardous properties is a reference to the properties in Annex III, as read in accordance with regulation 2ZF.

The List of Wastes

1B.— (1) In these Regulations, “the List of Wastes” means the list of wastes established by Commission Decision 2000/532/EC replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste(3), as last amended by Commission Decision 2014/955/EU(4).

(2) A reference in these Regulations in relation to any waste—

(a) being “listed as a waste” and “listed as a hazardous waste” refers to that waste being listed as a waste, or as a hazardous waste, as the case may be, in the List of Wastes, provided, in the case of a waste listed as a hazardous waste, it shall only be considered to be listed as a hazardous waste where any relevant limit value of concentration is met,

(b) being “not listed as hazardous” refers to that waste being not listed as a hazardous waste in the List of Wastes, whether or not it is listed as a waste, and whether or not it is otherwise a hazardous or special waste pursuant to these Regulations,

and cognate expressions shall be construed accordingly.”.

(4) For regulation 2 (meaning of special waste) substitute—

“Meaning of special waste

2.— (1) Subject to paragraph (2), “special waste” is waste that, for the time being—

(a) is listed as hazardous in the List of Wastes provided that any relevant limit value of concentration is met,

(b) is determined to be hazardous waste pursuant to regulation 2ZA, or

(c) is a specific batch of waste which is determined to be hazardous waste pursuant to regulation 2ZB.

(2) For the purposes of paragraph (1), where a determination pursuant to regulation 2ZC has been made in respect of a specific batch of waste, that waste is not “special waste” even where it is of a type listed as hazardous in the List of Wastes.”.

(5) After regulation 2 (meaning of special waste) insert—

“Determination that a waste is hazardous waste

2ZA.— (1) Subject to the following provisions of this regulation, where it appears to the Scottish Ministers that, having regard to the List of Wastes and the limit values of concentration set out in Annex III, there are reasonable grounds to suspect that a waste of a type listed, or falling within a type listed, in the List of Wastes as non-hazardous displays one or more hazardous properties, they may determine that, in Scotland, such waste is hazardous waste.

(2) The Scottish Ministers may revoke a determination made under paragraph (1).

(3) Before making a determination under paragraph (1) or revoking a determination under paragraph (2), the Scottish Ministers must consult the requisite bodies, except where they consider it inappropriate to do so in any case on account of the nature of an emergency or grave danger.

(4) In making a determination under paragraph (1) or revoking a determination under paragraph (2), the Scottish Ministers must take account of the relevant waste management objectives referred to in paragraphs 6(1)(a) and (b), (2) and (3) of schedule 4 of the Waste Management Licensing (Scotland) Regulations 2011(5).

(5) The Scottish Ministers must publish, in such manner as they consider appropriate for the purpose of informing persons likely to be affected, a notice of any determination made under paragraph (1) or revocation under paragraph (2), and the notice must include—

(a) the date and time at which the determination or revocation, as the case may be, is to take effect (which may be immediately upon publication), and

(b) a description of the waste sufficient to identify it,

and must send a copy of the notice to the requisite bodies.

(6) The notice must give reasons for the determination or revocation, as the case may be.

(7) Where waste enters Scotland from England, Wales or Northern Ireland, a determination in force under this regulation shall apply to it notwithstanding that a determination to like effect is not in force in respect of England, Wales or Northern Ireland, as the case may be.

Specific waste to be treated as hazardous waste

2ZB.— (1) The Scottish Ministers, having regard to the List of Wastes and the limit values of concentration set out in Annex III, may determine, in exceptional cases, that a specific batch of waste in Scotland which—

(a) is not listed as hazardous in the List of Wastes, or

(b) though of a type listed as hazardous waste in the List of Wastes, is treated as non-hazardous pursuant to regulation 2ZC,

displays one or more of the hazardous properties, and accordingly that it shall be treated for all purposes as hazardous waste.

(2) A specific batch of waste produced in Wales, England or Northern Ireland and not listed as hazardous in the List of Wastes, which is for the time being determined to be hazardous as referred to in paragraph (3) shall, subject to any determination made under regulation 2ZC, be treated for all purposes as hazardous waste in Scotland.

(3) For the purposes of paragraph (2), a specific batch of waste may be determined to be hazardous—

(a) in relation to Wales—

(i) if listed in regulations made under section 62A(2) of the 1990 Act, or

(ii) if so determined by the Welsh Assembly under regulation 8 of the Hazardous Waste (Wales) Regulations 2005(6),

(b) in relation to England—

(i) if listed in regulations made under section 62A(1) of the 1990 Act, or

(ii) if so determined by the Secretary of State under regulation 8 of the Hazardous Waste (England and Wales) Regulations 2005(7), or

(c) in relation to Northern Ireland, if so determined by the Department of Agriculture, Environment and Rural Affairs under regulation 8 or 9 of the Hazardous Waste Regulations (Northern Ireland) 2005(8).

Specific waste to be treated as non-hazardous

2ZC.— (1) The Scottish Ministers may determine, in exceptional cases, on the basis of documentary evidence provided by the holder, and having regard to the List of Wastes and the limit values of concentration set out in Annex III, that a specific batch of waste in Scotland which—

(a) is listed as hazardous in the List of Wastes, or

(b) though of a type not listed as hazardous waste in the List of Wastes, is treated as hazardous pursuant to regulation 2ZB(2),

does not display any of the hazardous properties listed in Annex III and accordingly that it shall be treated for all purposes as non-hazardous in Scotland.

(2) The Scottish Ministers must not determine that waste shall be treated as non-hazardous under paragraph (1) if it has been diluted or mixed with the aim of lowering the initial concentrations of hazardous substances to a level below the thresholds for defining waste as hazardous.

(3) A specific batch of waste produced in Wales, England or Northern Ireland and listed as a hazardous waste in the List of Wastes, and which is for the time being determined to be non-hazardous as referred to in paragraph (4) shall, subject to any determination made under regulation 2ZB, be treated for all purposes as non-hazardous in Scotland.

(4) For the purposes of paragraph (3), a specific batch of waste may be determined to be non-hazardous—

(a) in relation to Wales, by the Welsh Ministers under regulation 9 of the Hazardous Waste (Wales) Regulations 2005,

(b) in relation to England, by the Secretary of State under regulation 9 of the Hazardous Waste (England and Wales) Regulations 2005, or

(c) in relation to Northern Ireland by the Department of Agriculture, Environment and Rural Affairs under regulation 10 of the Hazardous Waste Regulations (Northern Ireland) 2005.

Provisions common to regulations 2ZB and 2ZC

2ZD.— (1) The Scottish Ministers may revoke a determination made under regulation 2ZB or 2ZC.

(2) The Scottish Ministers must, before making a determination under regulation 2ZB or 2ZC or revoking such a determination, except where they consider it inappropriate to do so on account of the nature of any emergency or grave danger, consult—

(a) the requisite bodies,

(b) the holder of the specific batch of waste, and

(c) any other person appearing to them—

(i) to have an interest in the specific waste, or

(ii) to be otherwise directly affected by the determination.

(3) In making a determination under regulation 2ZB or 2ZC or revoking such a determination, the Scottish Ministers must take account of the relevant waste management objectives referred to in paragraphs 6(1)(a) and (b), (2) and (3) of schedule 4 of the Waste Management Licensing (Scotland) Regulations 2011.

(4) The Scottish Ministers must give notice of any determination made under regulation 2ZB or 2ZC or revocation of such a determination to—

(a) the requisite bodies,

(b) the holder of the specific batch of waste concerned, and

(c) any person they have consulted pursuant to paragraph (2)(c).

(5) The notice must give reasons for the determination or revocation, as the case may be.

Requisite bodies

2ZE.   For the purposes of these regulations, the “requisite bodies” are—

(a) the Scottish Environmental Protection Agency,

(b) the Secretary of State,

(c) the Environment Agency,

(d) the National Assembly for Wales,

(e) the Natural Resources Body for Wales,

(f) the Department of Agriculture, Environment and Rural Affairs, Northern Ireland,

(g) the Health and Safety Executive, and

(h) any organisation appearing to the Scottish Ministers to be representative of persons likely to be affected by the relevant determination or revocation of a determination, as the case may be.

Modification of the Waste Directive

2ZF.— (1) For the purposes of these regulations, the Waste Directive is to be read in accordance with this regulation.

(2) Annex III (properties of waste which render it hazardous) is to be read as if—

(a) in entry HP 9, in the second sentence, “in the Member States” were omitted, and

(b) in entry HP 15, in the text following the table, for the words “Member States” there were substituted “the Scottish Ministers”.”.

(6) In regulation 15(9)(registers), omit the words “having regard to” to the end.

(7) In regulation 17 (restrictions on mixing special waste)—

(a) in paragraph (2)(b), for the words “Article 13 of the Waste Directive” substitute “the measures in paragraph (2A) ”,

(b) after paragraph (2), insert—

“(2A) the measures referred to in paragraph 2(b) are the necessary measures to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular without—

(a) risk to water, air, soil, plants or animals,

(b) causing a nuisance through noise or odours,

(c) adversely affecting the countryside or places of special interest.”

(8) In regulation 17A (duty to separate mixed wastes)—

(a) For paragraph (1)(b) substitute—

“(b) necessary in order to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment and in particular without—

(i) risk to water, air, soil, plants or animals,

(ii) causing a nuisance through noise or odours,

(iii) adversely affecting the countryside or places of special interest.”,

(b) omit paragraph 2.

(1)

S.I. 1996/972, relevant amending instruments are S.S.I. 2004/112, S.S.I. 2011/226, S.S.I. 2018/219 and S.S.I. 2018/391.

(2)

1990 c.43, relevant amending instrument is S.S.I 2011/226.

(3)

OJ L 226, 6.9.2000, p.3.

(4)

OJ L 370, 30.12.2014, p.44.

(5)

S.S.I. 2011/228, relevant amending instruments are S.I. 2011/1043 S.S.I. 2018/391.

(6)

S.I. 2005/1806 (W. 138), relevant amending instruments are S.I. 2011/971 (W. 141) and 2015/1417 (W. 141).

(7)

S.I. 2005/894, amendments have been made by the Wales Act 2014 (c.29) and S.I. 2011/988, S.I. 2015/1360.

(8)

S.R. 2005 No.300, relevant amending instruments are S.R (NI) 2011 No 127 and S.R (NI) 2015 No 288.