The Management of Extractive Waste (Scotland) Regulations 2010

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations implement Directive 2006/21/EC of the European Parliament and of the Council of 15th March 2006 on the management of waste from extractive industries (“the Directive”).

Regulation 2 provides definitions, most of which are derived from the Directive. Two types of areas are defined for the application of the Directive, an “extractive waste area” and a “waste facility”. For the latter, a definition of a “Category A waste facility” is also provided, this type of waste facility being the subject of the additional controls in Part 6 of the Regulations.

Regulation 4 provides that planning permission is needed to commence or continue operation of an extractive waste area or waste facility, though there are transitional provisions for existing facilities in regulation 5. For extractive waste areas and certain waste facilities to which the Directive applies less detailed controls, regulation 5(2) provides that the only requirement is to obtain approval of a waste management plan (details of which are set out in regulation 11), before 1st May 2012. Even that requirement may be waived by the planning authority in some cases, in terms of regulation 5(6). Other existing operators of waste facilities must obtain planning permission before 1st May 2012.

Part 3 reduces what the Regulations would otherwise require in relation to particular types of areas and facilities. For example, regulation 6 provides that the only planning conditions to be imposed on an extractive waste area are those relating to use and updating of a waste management plan; regulation 8 allows complete waiver of waste management planning conditions in particular circumstances.

Part 4 sets out procedures for applying for planning permission, and for its grant.

Regulation 10 makes the requirements of these Regulations supplementary to other statutory planning requirements.

Regulation 11 sets out what a waste management plan must include. This plan is central to the system the Directive requires, and includes the category into which the area or facility falls. Schedule 1 gives the objectives of the plan, and Schedule 2 provides for how waste is to be characterised.

Regulation 12 provides for public consultation, and consultation with the Scottish Environment Protection Agency and the Health and Safety Executive prior to a planning authority considering an application.

In terms of regulation 13, planning permission may not be granted unless a planning authority is satisfied that the waste management plan meets the requirements of the Regulations and categorises the area or facility appropriately.

Part 5 provides mandatory conditions that are deemed to be imposed on grants of planning permission (though these are subject to the transitional provision in Part 2 and the reductions for particular types of areas and facilities in Part 3).

Regulation 14 requires that extractive waste be managed in accordance with the waste management plan and, for waste facilities, that certain details of how the premises will operate be provided before operations commence.

Regulation 15, which only applies to some waste facilities, requires that a financial guarantee be provided to ensure that planning obligations will be discharged, including at the after-closure and rehabilitation stages of the land affected by the facility. This guarantee may be provided by an industry-sponsored mutual guarantee fund.

Review and update of the waste management plan is required by regulation 16. This is the responsibility of the operator.

Regulation 17 ensures that the operator of a waste facility is obliged to notify the planning authority of substantial changes in its operation, and allows that authority to review the requirements imposed on such a facility at any time, and in every case no later than every five years.

Part 6 provides additional requirements for Category A waste facilities. These requirements take account of the additional public safety concerns that arise from operation of this particular type of waste facility. Such a facility requires to have a major-accident prevention policy, implemented through a safety management system, and an internal emergency plan. This Part, and Schedules 3 and 4, sets out how these requirements are to be prepared and used.

Part 7, which applies only to some waste facilities, gives requirements when such a facility is being constructed, modified and operated.

Regulations 22 and 23 require record-keeping and monitoring, particularly as regards the physical stability and environmental effects of the facility.

In terms of regulation 24, a planning authority must inspect a waste facility annually to ensure compliance with planning conditions and implementation of the waste management plan. There is also provision for independent validation of monitoring report findings, as appropriate.

Part 8 deals with closure and after-closure of waste facilities. The consent of the planning authority is required before closure can commence, unless conditions in the planning permission relevant to closure are met.

Regulation 26 provides that a waste facility be finally closed until the planning authority has approved closure and made provision for ongoing responsibilities in respect of the land affected. Details of those responsibilities are set out in regulation 27.

Regulation 28 provides for a publicly available register of closed waste facilities.

Part 9 makes general provision in respect of appeals to the Scottish Ministers, enforcement through the planning enforcement system and compensation that may be payable to operators in certain circumstances (which is to be determined in accordance with existing provisions relating to compensation on review of mineral permissions). It also, in regulation 32, enables documents to be sent electronically.

A regulatory impact assessment has been prepared and placed in the Scottish Parliament Information Centre. Copies may be obtained from the Scottish Government, Directorate of the Built Environment, Victoria Quay, Edinburgh EH6 6QQ. Transposition notes are available from the same place.