Scottish Statutory Instruments
2005 No.22
ENVIRONMENTAL PROTECTION
The Waste (Scotland) Regulations 2005
Made 20th January 2005
Coming into force in accordance with regulation 1(1)

The Scottish Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 and section 2 of the Pollution Prevention and Control Act 1999 (“the 1999 Act”), having, in accordance with section 2(4) of the 1999 Act consulted the Scottish Environment Protection Agency, such bodies or persons appearing to them to be representative of the interests of local government, industry, agriculture and small businesses respectively, and such other bodies and persons as they consider appropriate; and of all other powers enabling them in that behalf, hereby make the following Regulations, a draft of which has, in accordance with section 2(8) of the 1999 Act, been laid before, and approved by a resolution of, the Scottish Parliament:
1972 c. 68. Section 2(2) was amended by the Scotland Act 1998 (c. 46), Schedule 8 paragraph 15(3). The functions conferred upon the Minister of the Crown under section 2(2) of the European Communities Act 1972, insofar as within devolved competence, were transferred to the Scottish Ministers by virtue of section 53 of the Scotland Act 1998.
1999 c. 24; the functions of the Secretary of State were transferred to the Scottish Ministers by virtue of section 5(3) of that Act and section 53 of the Scotland Act 1998.

Citation, commencement and extent
1. (1) These Regulations may be cited as the Waste (Scotland) Regulations 2005 and shall come into force on the day after the day on which they are made (hereinafter referred to as “the relevant date”).
(2) These Regulations extend to Scotland only.

Interpretation
2. In these Regulations–
“permit” shall have the same meaning as it has for the purposes of regulation 7 of the Pollution Prevention and Control (Scotland) Regulations 2000;
S.S.I. 2000/323; relevant amendments were made by S.S.I. 2002/493, S.S.I. 2003/146, 170 and 235 and S.S.I. 2004/110.
“waste management licence” shall have the same meaning as it has for the purposes of section 35(1) of the Environmental Protection Act 1990; and
1990 c. 43.
“the 1994 Regulations” means the Waste Management Licensing Regulations 1994.
S.I. 1994/1056; relevant amendments were made by S.I. 1995/288, 1996/593, 634 and 972, 1998/606 and S.S.I. 2000/323, 2003/171 and 2004/112.

Amendment of the Environmental Protection Act 1990
3. (1) The Environmental Protection Act 1990 is amended as follows.
(2) Section 33 (prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste) is amended as follows–
(a) for subsection (2) there is substituted–

“(2) Subject to subsection (2A) below, paragraphs (a) and (b) of subsection (1) above do not apply in relation to household waste from a domestic property which is treated, kept or disposed of within the curtilage of the dwelling.
(2A) Subsection (2) above does not extend to the treatment, keeping or disposal of household waste by an establishment or undertaking.”;

(b) in subsection (8) after “subsection (9)”, there is inserted “or (10)”;
(c) in subsection (9) after “waste”, there is inserted “(other than household waste of the description specified in subsection (10) below)”; and
(d) after subsection (9) there is added–

“(10) A person who commits an offence under subsection (1)(c) above in relation to household waste from a domestic property within the curtilage of the dwelling shall be liable–
(a) on summary conviction, to imprisonment for a term not exceeding three months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or a fine or both.”.

(3) For subsection (2) of section 34 (duty of care etc. as respects waste) there is substituted–

“(2) An occupier of domestic property–
(a) shall, as respects the household waste produced on the property, take reasonable steps to secure that any transfer of waste is only to an authorised person or to a person for authorised transport purposes; and
(b) shall not otherwise be subject to the duty imposed by subsection (1) above.”.

(4) Section 75 (meaning of “waste” and related expressions) is amended as follows–
Relevant amendments were made by paragraph 88 of Schedule 22 to the Environment Act 1995 as commenced by the Environment Act 1995 (Commencement No. 22) (Scotland) Order 2004, S.S.I. 2004/541 (C.40).
(a) the word “or” immediately after subsection (6)(c) is omitted; and
(b) at the end of that subsection there is added–

“; or
(a) any mine or quarry”;

(c) in subsection (7) after “premises” where it first occurs, there is inserted “(including premises used for agriculture within the meaning of the Agriculture (Scotland) Act 1948)”;
(d) at the end of subsection (7)(b) “and” is added;
(e) subsection (7)(c) is repealed;
(f) in subsection (8) omit “but no regulations shall be made in respect of such waste as is mentioned in subsection (7)(c) above”;
(g) at the end of subsection (12)(a) “and” is omitted;
(h) at the end of subsection (12)(b) there is added–

“; and
(a) the decision of the European Commission, dated 24th May 1996, adapting Annexes IIA and IIB to Directive 75/442/EEC on waste
(Commission Decision 96/350/EC (O.J. L 135, 6.6.1996, p.32).”.

Amendment of regulation 2 of the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991
4. (1) Regulation 2 of the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991 (exemption from registration) is amended as follows.
S.I. 1991/1624; relevant amendments were made by regulation 10 of S.I. 1992/588 and regulation 23 of S.I. 1994/1056.
(2) For sub paragraph (i) of paragraph (1), there is substituted–

“(i) a person who transports only waste which comprises animal by-products collected and transported in accordance with Article 7(1) or 7(2) of the Community Regulation;”.

(3) After paragraph (1)(i) there is added–

“(j) a person who transports only waste from a mine or quarry or waste from premises used for agriculture.”.

(4) In paragraph (2) the following definitions are inserted at the appropriate places–

““agriculture” has the same meaning as in the Agriculture (Scotland) Act 1948; and
1948 c. 45; “agriculture” is defined in section 86(3).
“the Community Regulation” has the same meaning as in regulation 2(1) of the Animal By Products (Scotland) Regulations 2003
S.S.I. 2003/411.”.

Amendment of the Controlled Waste Regulations 1992
5. (1) The Controlled Waste Regulations 1992 are amended as follows.
S.I. 1992/588; relevant amendments were made by regulation 24 of S.I. 1994/1056.
(2) Regulation 1(4)(a) is revoked.
(3) In regulation 7, for paragraphs (3) and (4), there is substituted–

“(3) Waste which comprises animal by-products collected and transported in accordance with Article 7(1) or 7(2) of the Community Regulation shall not be treated as industrial waste or commercial waste for the purposes of section 34 (duty of care as respects waste).
(4) In this regulation, “Community Regulation” has the same meaning as in regulation 2(1) of the Animal By-Products (Scotland) Regulations 2003 and “animal by-products” has the same meaning as in the Community Regulation.”.

(4) In Schedule 3 (waste to be treated as industrial waste)–
(a) paragraph 14 is omitted;
(b) at the end the following shall be added–

“19. Any other waste which is Directive Waste, with the exception of any waste which is expressed by any other provision of these Regulations or section 75(5) or (7) of the Environmental Protection Act 1990 to be household waste or commercial waste.”.

(5) In Schedule 4 (waste to be treated as commercial waste) at the end the following shall be added–

“10. Waste from premises used for the purposes of breeding, boarding, stabling or exhibiting animals.”.

Amendment of the Waste Management Licensing Regulations 1994
6. (1) The 1994 Regulations are amended as follows.
(2) In regulation 1(3) (interpretation), the following definition is inserted at the appropriate place–

““mines or quarries waste” means waste from a mine or quarry;”.

(3) Subject to regulation 8(4) of these Regulations regulation 15 (groundwater) is revoked.
(4) In regulation 16 (exclusion of activities under other control regimes from waste management licensing)–
(a) in paragraph (1)(c) “and” is omitted;
(b) at the end of paragraph (1)(d) there is inserted–

“; and
(a) the disposal of agricultural waste under an authorisation granted under regulation 18 of the Groundwater Regulations 1998.
S.I. 1998/2746.”.

(5) In regulation 18 (registration in connection with exempt activities)–
(a) in paragraph (1) the words “, after 31st December 1994,” are omitted; and
(b) for paragraph (1A), there is substituted–

“(1A) Paragraph (1) above shall not apply in the case of an exempt activity falling within regulation 8 of the Waste (Scotland) Regulations 200[4].”.

(c) for paragraph (10)(c), there is substituted–

“in the case of an exempt activity falling within paragraph 23 of Schedule 3, the authority responsible for granting an authorisation under regulation 27 of the Animal By Products (Scotland) Regulations 2003 under which the exempt activity is carried on.
S.S.I. 2003/411.”.

(6) In regulation 20 (registration of brokers)–
(a) in paragraph (1) the words “after 31st December 1994” are omitted; and
(b) in paragraph (4)–
(i) in sub paragraph (c) the word “or” where it secondly occurs, is deleted; and
(ii) at the end there is inserted–

“;
(a) arranges on behalf of another person (as dealer or broker) for the disposal or recovery of agricultural waste or mines or quarries waste only; or
(b) arranges on behalf of another person (as dealer or broker) for the disposal or recovery of waste comprising animal by-products only.”.

(7)
(1) In Schedule 3 (activities exempt from waste management licensing)–
(a) in paragraph 12, for Table 3C, substitute–
A new paragraph 12 was inserted by regulation 14 of S.S.I. 2004/275.
TABLE 3C
Code and type of waste (as referred to in Table 3B) Codes referred to in the European Waste Catalogue.	Composting activity	Maximum total quantity (including storage and treatment)
Plant tissue waste 02 01 03 Wastes from forestry 02 01 07 Waste bark and cork 03 01 01 Biodegradable waste from gardens and park wastes (including cemetery waste 20 02 01)	Open air windrow composting without containment Containment in this context means composting in a vessel, in a sealed building or by some other process equally effective to produce a wholly contained and controlled environment. and without any impermeable pavement or sealed drainage	400 Tonnes
All above wastes namely 02 01 03, 02 01 07, 03 01 01, 20 02 01 plus 15 01 01, 02 01 06, 15 01 09, 20 01 10 and 20 01 11	Open air windrow composting without containment on an impermeable pavement with sealed drainage	400 Tonnes
Any type of waste referred to in Table 3B	Composting with containment of waste	400 Tonnes
(b) paragraph 16 is omitted;
(c) for paragraph 23, there is substituted–

“23. (1) The recovery of waste consisting of animal by-products at a collection centre in accordance with an authorisation under regulation 27 of the Animal By Products (Scotland) Regulations 2003 if the total quantity of waste being recovered at that collection centre at any time does not exceed 10 tonnes.
(2) The storage of the waste intended to be submitted to such treatment if–
(a) storage takes place in a secure place; and
(b) no waste is stored for more than twelve months.
(3) In this paragraph, “animal by-products” and “collection centre” have the same meaning as in the Community Regulation as defined in regulation 2(1) of the Animal By Products (Scotland) Regulations 2003.
S.S.I. 2003/411.”.

(2) in paragraph 30–
(i) for sub paragraph (1)(a) there is substituted “the waste consists of plant tissue;”;
(ii) at the beginning of sub paragraph (1)(b) there is inserted “it is agricultural waste or”; and
(iii) after sub paragraph (3), there is inserted–

“(4) The treatment of land for the benefit of agriculture or ecological improvement by incorporation into soil of ash from waste which is burned on that land in reliance on the exemption conferred by sub-paragraph (1) above .”.

(8) In Part I of Schedule 3A (Plans and documents required for registration), for Table 4C, substitute–
Schedule 3A was inserted by regulation 11 of S.S.I. 2003/171 as amended by S.S.I. 2004/275.
TABLE 4C
	Parameter					
Codes referred to in European Waste Catalogue	Neutralising Value	Micro-biology	Oils & Fats	Potential toxic elements	Prescribed substances ie. Substances prescribed in Schedule 6 to the Environmental (Prescribed Processes and Substances) Regulations 1991 S.I. 1999/472; amended by S.I. 1993/1749, 2405, 1995/3247, 1998/767, S.S.I. 2000/323. .	Carbon/ Nitrogen ratio
03 03 11, 03 03 99	✓			✓	✓	✓
02 01 99, 03 01 01, 03 01 05, 03 03 01 17 05 04, 20 02 02		✓		✓	✓	
02 02 03		✓	✓			
02 03, 02 04, 02 05, 02 06, 02 07	✓		✓			
03 03 09, 10 13 04, 10 01 99	✓			✓	✓	
02 01 03, 02 04 01, 19 05 03, 20 02 01		✓		✓	✓	✓
04 02 10, 04 02 15, 04 02 20, 04 02 21, 04 02 22						✓
04 01 07			✓	✓	✓	
17 05 06, 19 06 03, 19 06 04, 19 06 05, 19 06 06				✓	✓	
(9) In Part I of Schedule 4 (general provisions relating to the Waste Framework Directive etc.)–
(a) in paragraph 9 (modifications of Part II of the Environmental Protection Act 1990) sub paragraph (6) is revoked;
(b) in paragraph 10 (modifications of Part I of the Control of Pollution Act 1974) sub paragraph (3) is omitted;
(c) in paragraph 11 (references to “waste” in planning and water legislation) for “1972” there is substituted “1997”; and
(d) in paragraph 12 (registration by professional collectors and transporters of waste, and by dealers and brokers)–
(i) for sub paragraphs (1) and (2) there is substituted–

“(1) Subject to sub paragraph (3) below, it shall be an offence for an establishment or undertaking falling within–
(a) sub paragraph (a), (c), (f) or (g) of regulation 2(1) of the Controlled Waste (Registration of Carriers and Seizure of Vehicles) Regulations 1991; or
(b) sub paragraph (j) of that regulation 6 months after the relevant date,
to collect or transport waste on a professional basis unless it is registered in accordance with the provisions of this paragraph.
(2) Subject to the sub-paragraph (3) below, it shall be an offence for an establishment or undertaking falling within–
(a) sub paragraph (a), (b) or (c) of regulation 20(4) of these Regulations; or
(b) sub paragraph (e) or (f) of that regulation after the relevant date,
to arrange for the recovery or disposal of waste on behalf of another person unless it is registered in accordance with the provisions of this paragraph.”;

(ii) in sub paragraph (11) for “and “controlled waste” have the same meaning as they have” there shall be substituted “has the same meaning as it has”.

Amendment of the Groundwater Regulations 1998
7. (1) The Groundwater Regulations 1998 are amended as follows.
(2) In regulation 1(3) (interpretation), in the definition of “authorisation”–
(a) at the end of sub-paragraph (d), “and” is omitted; and
(b) at the end of sub-paragraph (e), there is added–

“; and
(a) a waste management licence (within the meaning of Part II of the Environmental Protection Act 1990).”.

(3) In regulation 2 (exclusion)–
(a) insert “or” at the end of sub paragraph (1)(b);
(b) omit “; or” at the end of sub paragraph (1)(c); and
(c) omit sub paragraph (1)(d).
(4) In regulation 3 (discharge of functions), for “Part I of the Environmental Protection Act 1990 (integrated pollution control)”, there is substituted “, Parts I and II of the Environmental Protection Act 1990 (integrated pollution control and waste on land)”.

Transitional and savings provision
8. (1) Subject to paragraphs (2) and (3), any activity involving the deposit, disposal or recovery by any person at any premises of mines or quarry waste or agricultural waste (including any such waste which is special waste) carried on immediately before the relevant date shall be deemed for the purposes of regulations 17 and 18 of the 1994 Regulations to be carried out in reliance upon an exemption in Schedule 3 to those Regulations.
(2) The exemption which is deemed to be conferred by paragraph (1) shall cease to have effect–
(a) provided the person carrying on the activity applies to SEPA for a waste management licence or a permit under regulation 7 of the Pollution Prevention and Control (Scotland) Regulations 2000 in relation to that activity within the period of 12 months beginning on the relevant date –
S.S.I. 222/323; amended by S.S.I. 2002/493, S.S.I. 2003/146, 170 and 235.
(i) on the date on which the licence or permit applied for is granted; or
(ii) if the application is (or is deemed to be) rejected, on the date on which the period for appealing expires without an appeal having been made or any appeal is withdrawn or finally determined; or
(b) in any other case, 12 months after the relevant date.
(3) Paragraph (1) does not apply to an activity to which the Landfill (Scotland) Regulations 2003 apply.
S.S.I. 2003/235; amended by S.S.I. 2003/343.
(4) Regulation 15 of the 1994 Regulations shall continue to have effect in relation to any waste management licences authorising any of the activities described in sub paragraphs (a) to (d) of regulation 15(1) of those Regulations before the relevant date.
(5) In this regulation, “mines or quarries waste” and “agricultural waste” shall have the same meanings as they have in regulation 1(3) of the 1994 Regulations.
The definition of “agricultural waste” was inserted by S.S.I. 2003/171.
ROSS FINNIE
A member of the Scottish Executive
St Andrew’s House, Edinburgh
20th January 2005

(This note is not part of the Regulations)
These Regulations make miscellaneous changes to waste management legislation by amending the Environmental Protection Act 1990 (c. 24) (“the 1990 Act”); the Controlled Waste (Registration of carriers and seizure of vehicles) Regulations 1991 (“the 1991 Regulations”); the Controlled Waste Regulations 1992 (“the 1992 Regulations”); the Waste Management Licensing Regulations 1994 (“the 1994 Regulations”) and the Groundwater Regulations 1998 (“the 1998 Regulations”).
Regulation 3 amends sections 33, 34 and 75 of the 1990 Act. Regulation 3(2) replaces section 33(2) of the 1990 Act such that the offence in section 33(1)(c) (prohibition on unauthorised or harmful deposit, treatment or disposal etc. of waste) of that Act will apply to occupiers of domestic property who treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health but will not otherwise apply to household waste treated, kept or disposed of within the curtilage of the dwelling by them. A person who commits an offence under section 33(1)(c) above in relation to household waste from a domestic property within the curtilage of the dwelling shall be liable to the penalties set out in the new subsection (10) of section 33 inserted by regulation 3(2)(d).
Regulation 3(3) replaces section 34(2) (duty of care etc. as respects waste) of the 1990 Act such that an occupier of domestic property shall take reasonable steps to ensure that any household waste produced on the property is transferred to an authorised person but shall not otherwise, be subject to the duty of care imposed by section 34(1) of that Act.
Regulation 3(4) amends section 75 (meaning of waste and related expressions) of the 1990 Act–
(a) to distinguish waste from any mine or quarry (which is now categorised as “industrial waste”) from waste from premises used for agriculture (which is now categorised as “commercial waste”);
(b) to categorise waste from mines, quarries and agricultural premises within the controlled waste regime;
(c) to delete the wording in section 75(8) of the 1990 Act which prevents the making of regulations with regard to such waste in the future; and
(d) to amend section 75(12) in order to refer to all of the relevant amendments to Directive 75/442/EEC (“the Waste Framework Directive”). Section 75 of the 1990 Act, as amended by paragraph 88 of Schedule 22 to the Environment Act 1995 (as commenced by the Environment Act 1995 (Commencement No. 22) (Scotland) Order 2002 (S.S.I. 2004/ ) provides that “waste” in the definition of “controlled waste” bears the same meaning as it has for the purposes of the Waste Framework Directive.
Regulation 4 amends regulation 2 of the 1991 Regulations which exempts certain persons from registration as carriers of controlled waste in certain circumstances. Regulation 4(2) replaces regulation 2(1)(i) of the 1991 Regulations to exempt a person who transports only waste which comprises animal by-products collected or transported in accordance with certain provisions of the Animal By Products Regulations 2003 (S.S.I. 2003/411). Regulation 4(3) inserts a new provision within this category of exemptions for a person who transports only waste from a mine or quarry or waste from premises used for agriculture.
Regulation 5 amends the 1992 Regulations, which define circumstances in which controlled waste is categorised as household, industrial or commercial waste for the purposes of the 1990 Act.
Regulation 6 amends the 1994 Regulations for various purposes, including–
(a) to insert a definition of mines and quarries waste (regulation 6(2));
(b) to revoke regulation 15, which made provision for the authorisation of waste management licensing activities impacting on groundwater (regulation 6(3));
(c) to insert a new paragraph 23 into Schedule 3, to provide for an exemption from waste management licensing for certain activities involving animal by products (regulation 6(7)(c)).
Regulation 7 is in light of regulation 6(3) of these Regulations. Regulation 7(2) amends the definition of “authorisation” in regulation 1(3) of the 1998 Regulations to include a waste management licence as defined. This is to ensure that any waste management licensing activities which may impact on groundwater should be subject to an assessment and authorisation by SEPA under the 1998 Regulations.
Regulation 8 is a transitional provision to allow–
(a) those involved in the deposit, disposal or recovery of mines or quarry waste or agricultural waste to apply for a waste management licence or a pollution prevention and control permit in respect of the carrying out of these activities; and
(b) allow regulation 15 of the 1994 Regulations to continue to apply to those who have been granted an authorisation under that regulation.
Section 2(2) of the European Communities Act 1972 (c. 68) is relied upon for the enabling powers for regulations 3 and 7 of these Regulations. Section 2 of the Pollution Prevention and Control Act 1999 (“the 1999 Act”) is relied upon for the enabling powers for the remaining provisions of these Regulations.
Regulatory Impact Assessments in relation to these Regulations have been placed in the library of the Scottish Parliament 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.