Scottish Government

2.0 The Regulatory Framework

The Current Framework

2.1 The landfill sites that are subject to the Landfill Directive are currently regulated under the Waste Management Licensing (WML) regime established under Part II of the EPA 1990. However, in future, landfill sites subject to the Integrated Pollution Prevention and Control (IPPC) Directive ² will be regulated under the new Pollution Prevention and Control (PPC) regime which implements the IPPC Directive in Scotland. The PPC regime has been introduced by the Pollution Prevention and Control (Scotland) Regulations 2000 (SI2000/323) made under the Pollution Prevention and Control Act 1999.

The Integrated Pollution Prevention and Control Directive

2.2 IPPC applies an integrated environmental approach to the permitting and regulating of a range of industrial activities, including landfill. 'Integrated permitting' means that emissions to air, water and land, plus a range of other environmental effects, must be considered together. It also means that the regulators must set permit conditions so as to achieve a high level of protection for the environment as a whole. These conditions are based on the use of Best Available Techniques (BAT), which balances the costs to the operator against the benefits to the environment. IPPC is wider in scope than the regimes under Part 1of the EPA which it replaces, both in terms of the industrial processes and the environmental impacts covered. In particular, IPPC requires steps to be taken to return sites to a 'satisfactory state' on cessation of activities, ensure energy is used efficiently, avoid waste in accordance with the Waste Framework Directive, and prevent accidents and limit their consequences.

The Implementation Process

2.3 Landfill sites which do not qualify under the IPPC Directive criteria are currently subject to the WML regime under Part II of the EPA 1990.

2.4 PPC is being implemented progressively for different industrial activities between now and 2007. At present the PPC Regulations do not envisage existing landfill sites coming into the PPC regime until 2007. However, the Scottish Executive believes that in order to implement the Landfill Directive it expects to bring landfill sites into the regime at an earlier date; and that the regulations will be amended accordingly.

2.5 The forthcoming split of sites between the WML regime and the PPC regime potentially complicates the implementation process. The Scottish Executive therefore considers that the requirements of the Landfill Directive should be met for all sites by regulations made under the provisions of the Pollution Prevention and Control Act 1999.

2.6 Regulating all landfills under the PPC regime will allow for:

• A single set of regulations and accompanying guidance giving increased consistency and clarity of interpretation and application of the Directive in accordance with the principles of Better Regulation policy.
• A 'one-stop shop' (excluding planning consent) approach to regulation for all landfills representing a significant step towards increasing integration of environmental protection regulation and the inclusion of all other waste operations in an integrated pollution control regime
• Possible cost savings through economies of scale to be achieved by avoiding the need to duplicate effort on operating and maintaining two regimes for landfill sites with the corresponding need for two sets of guidance and training.

Timetable for bringing in PPC controls for all Landfills

2.7 The Scottish Executive is proposing that landfill sites will be brought into the PPC regime using a staged application process. All landfill site operators are required to submit a Landfill Directive conditioning plan by 16 July 2002. This must include information on how the site will comply with the requirements of the Directive, and any corrective measures to be taken for this purpose. Following a high level sift of all the conditioning plans, SEPA will prioritise their detailed consideration of the plans so that those sites which either seek closure, or which at the high level sift, appear unable to meet the requirements of the Directive are considered first followed by the rest in a rolling programme based on the risk they pose. Sites that are to be closed would not enter the PPC regime but would be closed under the WML regime. Part II of the EPA 1990 would therefore need to be amended to allow the post-closure requirements of the Landfill Directive to be applied to these sites.

2.8 In parallel, SEPA will write to operators of those sites which have not been identified for closure requiring them to submit a PPC application for the site during a specified time period. This date will correspond with the date within the rolling programme outlined above when SEPA will be considering the site conditioning plan in detail to determine whether or not to approve it. At this point, SEPA will consider the already submitted conditioning plan alongside the PPC permit application. In effect, the PPC application will consist of the conditioning plan plus any additional information required by the PPC Regulations and would be subject to public consultation. If both the conditioning plan and the PPC application are satisfactory then a PPC permit will be issued and the site will transfer to the new regime. Any improvement works required for the site to meet the Landfill Directive requirements would be set out in the conditions of the PPC permit. The Scottish Executive is still in discussions with SEPA about the timetable for the completion of the permitting process set out above but it is envisaged that all PPC applications will have been determined by 2005, or at the latest 2006. Views are welcome on this proposal.

2.9 Readers wishing to know more about the application and interpretation of the IPPC Directive through the PPC Regulations are referred to 'IPPC - A Practical Guide' ³

2.10 The use of the PPC regime to implement the Landfill Directive raises two key issues: the compatibility of existing PPC provisions with those in the Landfill Directive and, for those non-IPPC Landfills, the compatibility between the PPC provisions and those they are currently subject to under the WML regime.

Implications for IPPC Landfills

2.11 Article 1(2) of the Landfill Directive states that the technical requirements of the IPPC Directive will be fulfilled by compliance with the requirements of the Landfill Directive. The Scottish Executive takes the view that this means that where there is a general requirement arising from the IPPC Directive and a specific Landfill Directive requirement covering the same matter the latter is deemed to satisfy the former. Thus, for example, Article 9 of the IPPC Directive requires IPPC permits to include BAT based emission limit values or equivalent parameters or technical measures. Article 9 also provides that, if necessary, the permit is to include appropriate requirements ensuring the protection of soil and ground water. Annex I of the Landfill Directive contains specific requirements to limit the emission of landfill gas and requirements for the protection of soil and ground water (bottom liners etc). The effect of Article 1(2) of the Landfill Directive is that these specific Annex I requirements are deemed to satisfy the general IPPC Article 9 requirements in relation to emissions to air and to ground water.

2.12 If, however there is a general IPPC requirement with no corresponding specific Landfill Directive requirement, then the IPPC requirement will apply. For example, Article 3 of the IPPC Directive states that the regulator must ensure that installations must be operated in such a way that energy is used efficiently. There is no corresponding specific provision in the Landfill Directive and therefore the IPPC requirement will apply.

2.13 The technical requirements of the Landfill Directive will be transposed by extending the PPC Regulations and schedules to the Regulations. The Regulations will be accompanied by statutory guidance. The extensions of the PPC regime that will be necessary to incorporate these requirements are discussed in detail later in this consultation paper.

2.14 In addition to the technical requirements of the Landfill Directive, there will also be some changes to the administrative and procedural requirements of PPC as applied to landfills - for example, the information to be included in application forms - to comply with the full requirements of the Directive. The transposition of the administrative requirements of the Landfill Directive will be achieved by extending the PPC Regulations. These requirements are discussed later in this consultation paper.

Implications for Non-IPPC Landfills

2.15 Landfills not covered by the IPPC Directive ⁴ and that are transferred to the PPC regime will have to comply with all the requirements of the Landfill Directive as incorporated in the PPC Regulations. However, they will not be expected to comply with any additional technical requirements arising from the IPPC Directive where these would place an additional burden on operators above and beyond those applying under the WML regime and the Landfill Directive.

2.16 Nevertheless, it is the Scottish Executive's intention to apply the PPC administrative and procedural framework to non-IPPC landfills. This will provide for a consistent approach to the regulation of all landfills irrespective of size, which will benefit both the regulator and the regulated. However, this will mean that non-IPPC landfills will be subject to a number of new administrative or procedural requirements. These are as follows:

The permit holder

2.17 Under the WML regime permits are granted to the person 'who is in occupation of the land' whilst under PPC the permit is granted to the person who 'has control over the operation of the installation'.

2.18 Although the provisions of the two regimes seem to differ, it is the Scottish Executive's view that other provisions under the WML regime, such as the Fit And Proper Person test, which implement Article 9 of the Waste Framework Directive, apply to the person or undertaking that 'carries out the operation'. Therefore applying the PPC requirement to non-IPPC sites landfill sites should not have any practical implications. In the event that there are any waste management licences held by persons who fit the WML requirements but not the PPC requirement then the operator would have to ensure that the application under the PPC regime was made by the person best fitting the PPC definition. Views are welcome on this proposal.

The permit

2.19 Under both regimes no site or installation can operate without a permit. Permits should not be granted if the applicant cannot comply with the conditions of the permit. However, under PPC, permits should also not be granted if the regulator believes that the operator will not comply with the conditions of the permit.

2.20 The PPC provision requires the regulator to refuse an application for a permit if it thinks that the operator will not comply with its conditions. For example, this may be where the regulator doubts whether the applicant would comply with permit conditions if:

• It is unclear who has operational responsibility for activities at the installation
• The operator's management system is inadequate
• The operator's technical competence is inadequate
• The operator has a poor record of compliance with previous regulatory requirements

Some of these circumstances are already addressed by the Fit and Proper Person (FAPP) test under the WML regime. However, this PPC provision will provide the regulator with a useful extra power, in addition to FAPP, to ensure that sites are operated by those who are qualified to do so and who are committed to complying with permit conditions. As the circumstances this power is intended to address apply equally to all landfills, the Scottish Executive believes that this provision should not be dis-applied for non-IPPC landfills. It is in the interest of both the regulator and the waste management industry generally to have landfill sites run by responsible operators. Views are welcome on this proposal.

Applications

2.21 Under PPC, applicants for a permit, within 28 days of making the application, must advertise it in one or more local papers and in the Edinburgh Gazette. The Regulator is obliged to take into consideration any representations received when determining the application. There is no such requirement under the WML regime.

2.22 Applying the PPC requirement to non-IPPC sites would place a new administrative and financial burden on operators as part of the application procedure. However, the costs of advertising are likely to be small and the additional administrative burden of placing an advert should not be significant - the process of advertising the application takes place in parallel to the regulator's determination of the application and should not extend the determination period. The Scottish Executive therefore takes the view that the advantages of having a consistent and transparent regulatory system for all landfills outweigh any extra burden this will place on operators of non-IPPC sites.

2.23 Such provisions are an important factor in building public confidence in the regulatory regime and reflect the emphasis in the National Waste Strategy: Scotland on the importance of public involvement in the decision-making process. Providing an opportunity for the public to comment on the application will allow them to air concerns in an open and involved way. Making the public part of the process can also offer an opportunity to develop a more informed relationship between operators of landfill sites and local communities. Conversely, excluding the public from the process for small landfills could be seen as demonstrating an attitude of 'regulator knows best', which in turn can lead to suspicion amongst local communities. It may, however, be appropriate for operators of small landfills to be required only to advertise in a local newspaper and not the Edinburgh Gazette. Views are welcome on the proposal that operators of non-IPPC sites should be subject to the requirement to advertise.

Applications

2.24 Under the PPC regime, permit applications must contain the following information

• Name and address of the applicant
• A description of the installation and the activities to be carried out
• Raw and auxiliary materials and energy to be used in carrying out the activities
• Nature and quantities of emissions
• Proposed technology and other techniques for preventing, or where that is not practicable, reducing emissions
• Proposed measures for monitoring emissions
• A description of measures to be taken to avoid waste generated by operation of the installation
• A description of additional measures proposed to comply with the general PPC principles that
  

  -	all appropriate measures are taken against pollution, in particular through the application of Best Available Techniques
  -	no significant pollution is caused
  -	waste production is avoided
  -	energy is used efficiently
  -	necessary measures are taken to prevent accidents
  -	upon cessation of activities, necessary measures should be taken to avoid pollution risk and return the site to a satisfactory state

• Information obtained or conclusions arrived at pursuant to Articles 5,6 and 7 of the Environmental Impact Assessment Directive
• A non-technical summary of the information contained in the application

2.25 It is the Scottish Executive's view that these requirements are not significantly different to the information that is currently required as part of an application for a waste management licence (as set out in Waste Management Paper 4) or that will be required under the Landfill Directive. The principal difference is that the PPC regime requires information about measures taken to comply with the PPC 'general principles'. However, for landfill sites these general principles will be covered by the specific requirements of the Landfill Directive - with the exception of the requirement to use energy efficiently. Therefore, operators will be expected to provide information in their applications reflecting the more specific Landfill Directive requirements and not the general PPC principles.

2.26 Under PPC there are a number of statutory consultees who must be consulted on permit applications and variations involving substantial change - Health Boards, Local Authorities, Planning Authorities, The Food Standards Agency, Harbour Authorities (where appropriate), Fisheries Committees (where appropriate) and Scottish Natural Heritage (where appropriate). The Health and Safety Executive is a statutory consultee for sites with a nuclear licence or where a major accident prevention policy document is required under the COMAH Directive. The regulator must take account of statutory consultees' advice. The only statutory consultees under the WML regime are the Health and Safety Executive, the Planning Authority and, where the site is located in an SSSI, Scottish Natural Heritage.

2.27 The Scottish Executive's view is that permit applications from both IPPC and non-IPPC landfills should be submitted by the regulator to the list of statutory consultees defined in the PPC regime. This will allow for consistent regulation and will bring the expertise and experience of a wide range of organisations to bear in the application process. Views are welcome on this proposal.

Permit conditions

2.28 The regulators of the PPC regime have to take the following general principles into account when setting permit conditions:

• All the appropriate measures are taken against pollution, in particular through the application of the Best Available Techniques
• No significant pollution is caused
• Waste production is avoided in accordance with Waste Framework Directive and where waste is produced it is recovered or, where that is technically and economically impossible, it is disposed of while avoiding or reducing any impact on the environment
• Necessary measures to be taken to prevent accidents
• Necessary measures take upon definitive cessation of activities to avoid pollution risk and return site to satisfactory site
• Energy is used efficiently

2.29 The Scottish Executive considers that all these principles are reflected in the specific requirements of the Landfill Directive with the exception of the principle that energy is used efficiently. This general principle is not covered by a corresponding requirement in the Landfill Directive and to apply it to non-IPPC landfills would potentially be imposing extra technical requirements on the operators of such sites. We therefore propose that this requirement should be dis-applied for non-IPPC landfills. Views are welcome on this proposal.

2.30 Under the PPC regime, there are specific requirements that the Regulator must reflect in permits. These specific requirements include:

• The inclusion of Emission Limit Values for pollutants or equivalent parameters and technical measures based on BAT
• Appropriate requirements for ensuring protection of the soil and ground water and measures concerning the management of waste generated by the installation
• Suitable release monitoring requirements and an obligation to supply the regulator with data obtained
• Measures relating to conditions other than normal operating conditions for example, start up, leaks, malfunctions, stoppages and definitive cessation of activities
• Provisions on minimisation of long distance or trans-boundary pollution

2.31 The Scottish Executive considers that most of the above requirements are satisfied by corresponding specific technical requirements of the Landfill Directive and that there is therefore no justification for exempting non-IPPC landfills from these requirements. The exception is the provisions on the minimisation of long distance or trans-boundary pollution. All the requirements outlined in para 2.30 will therefore be applied to permits for non-IPPC landfills with the exception those relating to long-distance or trans-boundary pollution Views are welcome on this proposal.

Variation of permit conditions

2.32 Under PPC operators wishing to make a 'substantial change' to permit conditions (i.e. a change having a significant negative effect on the environment or human beings) must, within 28 days of making the application, advertise it in one or more local papers and in the Edinburgh Gazette. The Regulator is obliged to take into consideration any representations received when determining the request for variation of conditions. There is no such requirement under the WML regime.

2.33 As for the requirement under PPC to advertise applications for a permit the Scottish Executive recognises that this would be a new burden for operators of non-IPPC sites. However, the costs and administrative burden on operators is unlikely to be significant given that such applications are likely to be a relatively infrequent event and the costs and time involved in placing an advert will represent only a very small proportion of the overall cost of regulation. The Scottish Executive therefore considers that the requirement to advertise applications for substantial change should also be applied to non-IPPC landfills. The advantages of having a consistent and transparent regulatory system for all landfills, as discussed in paragraph 2.23, outweigh the extra burden this may place on operators of non-IPPC sites. It may, however, be appropriate for operators of small landfills to be required to advertise only in a local newspaper and not the Edinburgh Gazette. Views are welcome on this proposal that operators of non-IPPC sites should be subject to the requirement to advertise applications for substantial change.

2.34 Under the PPC regime, the regulator must give notice of its determination of an application for variation within 3 months (if proposed change is not substantial) or 4 months (if the proposed change is substantial). Under the WML regime an application for variation is deemed to have been rejected if not granted within 2 months.

2.35 Although the period before which the regulator must give notice of its determination of notice under the PPC regime is longer than that under the WML regime, the Scottish Executive considers that the additional requirements of the Landfill Directive mean that an extended determination period is justified for all landfills. Any derogation of the determination period for non-IPPC sites would also act against a more consistent regulatory approach. However, the fact that the maximum period for determination of an application will be extended does not, of course mean that, all applications will take 3 or 4 months to determine. The length of time to determine an application will depend on the regulatory effort needed to consider the application as is the case under the WML regime. Views are welcome on this proposal.

2.36 Under the PPC regime an appeal against a Variation Notice does not stay its effect. Under the WML regime an appeal against a variation notice does stay its effect unless the Variation Notice includes a statement that the change in permit conditions is necessary to prevent pollution of the environment or harm to public health.

2.37 The Scottish Executive considers that in the interests of consistency the PPC provisions should apply to all landfills. Appeals by an operator of non-IPPC sites against a Variation Notice should not prevent its provisions taking effect and the notice must be obeyed until Scottish Ministers determine the appeal. Views are welcome on this proposal.

Surrender or Transfer of the permit

2.38 The PPC regime allows the partial transfer or surrender of a permit. There is no provision for this under the WML regime.

2.39 The Scottish Executive considers that this is a potentially useful regulatory tool that offers considerable benefit to operators and which should be extended to the regulation of non-IPPC sites . Views are welcome on this proposal.

Enforcement Notices

2.40 The PPC regime allows for appeals against enforcement notices. There is no right of appeal against similar provisions in the WML regime.

2.41 The Scottish Executive takes the view that in the interests of consistency, operators of non-IPPC sites should now enjoy a right of appeal against enforcement notices. Views are welcome on this proposal.

Suspension Notices

2.42 The PPC regime allows the regulator to serve Suspension Notices if the operation of the installation involves an imminent risk of serious pollution. Under the WML regime Suspension Notices can be served if an operator is in breach of conditions and has failed to rectify the breach within the specified time period. There is no 'test' of imminent risk of serious pollution.

2.43 The Scottish Executive considers that in the interests of consistency SEPA's powers under PPC relating to suspension notices should apply to all landfills and that the WML regime powers should not be retained for non-IPPC landfills. Suspension Notices would therefore only be served if there was an imminent risk of serious pollution Views are welcome on this proposal.

Revocation Notices

2.44 Under the PPC regime, revocations come into effect at least 28 days after the notice is served whilst under the WML regime revocation comes into effect on the date specified in the notice.

2.45 The Scottish Executive considers that in the interests of consistency, the same provisions as those covering IPPC landfills should govern revocation notices served on operators of non-IPPC sites. Views are welcome on this proposal.

2.46 Under both regimes an appeal against a revocation notice stays its effect. However, under the WML regime this does not apply if the notice includes a statement that revocation is necessary to prevent pollution of the environment or harm to public health.

2.47 The Scottish Executive considers that applying the PPC requirements to all landfills would achieve consistency of regulation. Maintaining the WML provisions for non-IPPC sites would potentially give the regulator stricter powers of control over the smaller and potentially less-polluting sites which would be disproportionate. Views are welcome on this proposal.

Appeals

2.48 The WML regime allows 6 months from rejection of the application or date of any notice for an appeal against the regulator's decision. The PPC regime also allows 6 months for appeals against the rejection of an application, individual permit conditions, or a refusal to vary conditions, transfer or surrender of the permit. However, for revocation the appeal must be made before the date on which the revocation takes effect and appeals against variation, suspension or enforcement notices must be made within 2 months of the date of the notice.

2.49 Applying the PPC requirements to non-IPPC landfills would reduce the time operators of non-IPPC landfills have to appeal against certain actions of the regulator (from 6 months to 2 months after the event). However, the Scottish Executive believes that the PPC requirements should be applied to all landfills. This will provide consistency of regulation and will help avoid confusion (particularly for operators of sites both above and below the IPPC threshold) over the time limits that could result in appeals being void. The Scottish Executive considers that 2 months is a realistic period in which to collate the documents required for an appeal under the PPC regime. It is also the case that, in general, it will be in the interest of the operator to make an early appeal: until an appeal has been determined the requirements of these notices stand. Under the PPC regime Scottish Ministers can extend the time limits for individual appeals if there are compelling reasons to do so. Views are welcome on the proposal that the time limits for appeals under the PPC regime should be applied to all landfill sites.

Fees and Charges

2.50 Non-IPPC landfills would be brought into the PPC charging regime alongside IPPC landfills. No decisions have yet been taken about the levels of fees and charges to be levied but they will be proportionate to the amount of regulatory effort that SEPA is required to devote to these sites, which in turn will be decided on the basis of risk. It is likely that the regulatory effort will increase in some instances. In these cases the costs and benefits of increased regulation will be assessed. The fees and charges regime to be introduced will be the subject of further consultation.

Timing of transfer of non-IPPC landfills to the PPC regime

2.51 Non-IPPC landfills will not form a discreet category within the proposed phase-in discussed in Paragraphs 2.8 -2.9 but will be considered as part of the broader risk-based approach. However, the nature of such sites suggests that they will be dealt with towards the end of the phase-in period.

Implications for non-IPPC landfills exempt from the Landfill Directive

2.52 The Landfill Directive allows certain sites to be exempted from certain requirements of the Directive. These sites are:

• Landfill sites for non-hazardous or inert wastes with a total capacity not exceeding 15,000 tonnes or with an annual intake not exceeding 1,000 tonnes serving islands, where this is the only landfill on the island and where this is exclusively destined for the disposal of waste generated on that island.
• Landfill sites for non-hazardous or inert waste in isolated settlements if the landfill site is destined for the disposal of waste generated only by that isolated settlement.
• Underground storage sites - The Directive allows underground storage to be exempted from some requirements of the Directive - mainly monitoring requirements.

The Scottish Executive must compile a list of sites that fit the above criteria for onward transmission to the Commission by 2003. Advice from SEPA and a survey of Local Authorities in early 1999 suggested that several local authorities did have sites that could qualify for the isolated and island site exemptions. The Scottish Executive will be contacting all local authorities in 2001 to draw up a list of exempt sites. It therefore follows that the Scottish Executive intends to make use of the isolated settlement and island sites exemptions. We would welcome consultee's views on this.

2.53 In the event that there are proposals to develop landfills in these categories, these sites would also be transferred to the PPC regime. It would make no sense to retain a tiny rump of operational landfills within the WML regime. In this case, sites would be exempted from the requirements of both the IPPC Directive and the relevant provisions of the Landfill Directive.

2.54 The Scottish Executive is not proposing to take up the exemptions relating to underground storage and this is discussed further in Chapter 3.

Closed Landfills

2.55 Landfills closed before 16 July 2001 will not be subject to the requirements of the Landfill Directive. However, such sites will retain Waste Management Licences until such time as the Regulator accepts their surrender under Part II of the EPA 1990. These landfills will therefore continue to be regulated under the WML regime for the present.

2.56 However, as part of the wider proposal to bring all Part II installations into the PPC regime, the Scottish Executive is considering the practicality of transferring closed landfills that are still subject to the WML regime into the PPC regime in due course. Any landfills transferred in this manner would not be expected to comply with any additional after-care requirements imposed by the Landfill Directive. Views are welcome on this proposal.