The Mining Waste Directive
The Position in Scotland
BACKGROUND
On 15th March 2006, the European Parliament and Council adopted Directive 2006/21/EC on the management of waste from extractive industries ("the Directive"). Member States were required to implement the Directive into national law by 1 May 2008. A Consultation Paper on the Mining Waste Directive ("the Consultation Paper") was issued by the Scottish Government on 4th April 2008. The consultation closes on 30th June 2008. It will obviously not be possible to meet the Directive's transposition date of 1 May 2008 but the intention is to lay implementing regulations as soon as possible during summer 2008.
The Consultation Paper notes that many of the Directive's requirements are already being met through conditions which are attached to planning permissions and through existing EIA procedures. Consequently, in order to reduce burdens on planning authorities and operators of mines/quarries, the Scottish Government's intention is to modify existing planning application procedures so that they incorporate most of the Directive's requirements. This will be complemented by building on existing environmental and health and safety regimes, requiring planning authorities to work more closely with SEPA and HSE.
A CLOSER LOOK AT THE MINING WASTE DIRECTIVE
Who does the Directive apply to?
The requirements of the Directive apply to all on-shore sectors of the mining and quarrying industry that produce "extractive waste" (see more on definition below). However, the impact on individual mines/quarries will depend on whether the waste produced is classified as inert, non-inert, non-hazardous or hazardous because derogations from certain requirements of the Directive are permitted depending on the classification of waste produced. A recent study undertaken by the British Geological Society has confirmed that almost all (354 out of 368) active mines and quarries in Scotland produce only inert waste with only 14 capable of producing hazardous waste. As a result, the Consultation Paper confirms that the Scottish Government intends to "take full advantage of all available derogations within the Directive".
Scope of the Directive
The Directive covers the management of waste resulting from the prospecting, extraction, treatment and storage of mineral resources and the working of quarries – defined as "extractive waste" in the Directive.
Waste which is generated by these activities but which does not directly result from mining and quarrying is not covered by the Directive. Furthermore, waste resulting from offshore mineral extraction is not covered by the Directive.
Importantly, the Directive defines "extractive waste" by reference to the wide definition of "waste" in the Waste Framework Directive ("WFD") as interpreted by the European Court of Justice ("ECJ"). Two of the ECJ's judgements in particular are relevant to the extractive industry - the Palin Granit Oy case (C-9/00) and the AvestaPolarit case (C-114/01). The Palin Granit Oy case gave a very wide interpretation of "waste" deciding that "leftover stone resulting from stone quarrying which is stored to await possible use, failing which it will remain indefinitely on the site, is to be regarded as discarded or intended to be discarded and is accordingly to be classified as waste within the meaning of Article 1(a) of [the Waste Framework Directive]".
However, the ECJ recognised in the AvestaPolarit case that there are circumstances in which residues from mining operations which are to be used to fill voids in the mine from which they were extracted, may be classified as non-waste by-products provided certain circumstances are present. The Consultation Paper confirms that the Scottish Government agrees with this type of approach. It intends that all non-waste material returned to the excavation void would be exempt from the requirements of the Directive although planning and other controls would still apply.
Categorising sites
All non-exempted sites producing "extractive waste" will be covered to varying degrees by the Directive. As noted above, exemptions include waste which does not directly result from mining and quarrying and waste resulting from offshore mineral extraction. Once it has been established that a site is not an exempt site, there are three categories into which a facility could potentially fall. These are (i) waste facilities, (ii) Category A waste facilities and (iii) non-waste facilities.
"Waste facilities" are defined in the Directive as sites where extractive waste is deposited or accumulated either (a) at any time at Category A waste facilities and facilities where waste is characterised as hazardous in its Waste Management Plan (see more on definition below); (b) for more than 6 months at facilities where hazardous waste is generated unexpectedly; (c) for more than 1 year at facilities where non-hazardous, non-inert waste is produced; or (d) for more than 3 years at facilities producing unpolluted soil, non-hazardous prospecting waste and inert waste.
"Category A waste facilities" are defined in the Directive as those sites where (a) a failure or incorrect operation could give rise to a major accident on the basis of a risk assessment; or (b) waste classified as hazardous is above a certain threshold (although neither the Directive nor the Consultation Paper specifies what that threshold should be).
"Non-waste facilities" are sites which do not fall into the category of either "waste facility" or "Category A waste facility" (subject to the exemptions mentioned above).
The categorisation of a site is important as it will determine how many requirements of the Directive apply.
Main requirements of the Directive
The Consultation Paper notes that many of the measures contained in the Directive (e.g. those relating to health and safety and protection of the water environment) are already covered by existing national legislation. However, there are further requirements which will need to be addressed in the forthcoming regulations. These requirements are as follows:
- Waste Management Plan (WMP) – the operator of any category of a facility will be required to prepare and submit a waste management plan containing information such as the proposed classification of the waste facility, the waste characterisation, a description of the operation generating the waste and any subsequent treatment and proposed control and monitoring procedures. It must also demonstrate how operators will comply with their duty to use best available techniques to prevent or reduce adverse effects (see more under "Who is responsible" below). Depending on the category of the facility however, additional information will be required in the WMP. For example, if a facility is categorised as a "waste facility" or a "Category A waste facility" the WMP must also include proposals for closure and after-closure. In all cases, the WMP is to be reviewed every five years (Article 5);
- Major Accident Prevention Policy (MAPP) – the operator of a Category A waste facility will be required to draw up a major accident prevention policy including a safety management system and internal emergency plan. Operators of such facilities will also need to appoint a safety manager who will be responsible for the implementation and periodic supervision of the MAPP (Article 6);
- Apply for a Permit – the operator of a "waste facility" or a "Category A waste facility" must apply for a permit to operate such a facility for extractive waste (Article 7);
- Closure Procedures – closure and after-closure procedures will apply to "waste facilities" and "Category A waste facilities" (Article 12);
- Financial Guarantee – a financial guarantee (or equivalent) must be put in place prior to commencement of operations involving the deposit/accumulation of waste in a waste facility. The Consultation Paper confirms however that by using the derogations in the Directive, a financial guarantee will not be required unless the waste is to be deposited in a "Category A waste facility". It is therefore expected that the requirement for a financial guarantee will only apply to a small number of facilities in Scotland. The Consultation Paper makes clear that if a financial guarantee is required, it should be considered as part of the planning process and that, where required, planning permission should only be granted once an acceptable financial guarantee is in place (Article 14).
In summary, sites which only produce inert waste and thus do not fall into the category of either a "waste facility" or a "Category A waste facility" are likely only to be subject to the Waste Management Plan provisions. Those sites classified as "waste facilities" will, in addition to producing a WMP, be required to obtain a permit which complies with Article 7 and will be subject to the closure procedures specified in Article 12. Only "Category A waste facilities", because of the higher risk associated with them, will be subject to all of the above requirements.
Who is responsible for the facility's compliance?
The Directive uses the term "operator" which is defined as "the natural or legal person responsible for the management of extractive waste in accordance with the national law of the Member State in which waste management takes place…". The operator can therefore be a company or an individual.
The Directive states that operators must take all measures necessary to prevent or reduce as far as possible any adverse effects on the environment and human health resulting from extractive waste. This duty applies during operation of the mine/quarry and after its closure. Measures to be adopted must be "best available techniques", a familiar concept in environmental law. The Consultation Paper proposes that adopted measures should be "best available techniques not entailing excessive cost", a concept first used in the Environmental Protection Act 1990, and that operators should demonstrate compliance as part of the Waste Management Plan which will be submitted as part of the planning application.
The Directive also states that Member States are to take appropriate measures to ensure the management of a waste facility is in the hands of a "competent person" and that technical development and training of staff are provided. "Competent person" is defined in the Directive as "a natural person who has the technical knowledge and experience, as defined by the national law of the Member State in which the person operates, to perform the duties arising from the Directive". The Consultation Paper confirms that existing rules under the Quarries Regulations 1999 are generally sufficient to cover these competency requirements although some additional provision will be necessary in the forthcoming regulations.
Monitoring/inspection
The planning authority will be responsible for monitoring operator compliance with the conditions attached to the planning permission. Article 17 of the Directive introduces a new requirement for planning authorities to inspect those waste facilities requiring an Article 7 Permit. The Scottish Government plans to introduce a fee charging regime so that planning authorities can charge operators a fee for regular site visits to monitor compliance.
Enforcement powers
The Consultation Paper confirms that the current enforcement powers of planning authorities, SEPA and HSE will be sufficient. Currently, planning authorities have discretionary powers under planning legislation to take enforcement action if they consider that the conditions attached to planning permissions have been, or are likely to be, contravened. SEPA has powers of enforcement in relation to discharge consents and HSE also has enforcement powers under health and safety legislation. The Consultation Paper proposes that HSE, along with SEPA, would now become a statutory consultee for all mineral planning applications.
National Inventory of Closed Facilities
Article 20 of the Directive requires Member States to ensure that a national inventory of closed waste facilities, including abandoned facilities, is created, regularly updated and made available to the public by 1 May 2012. The inventory should only include sites which cause serious negative environmental impacts or have the potential to become a serious threat to human health or the environment in the short or medium term. The Scottish Government is considering how best to take this forward and asks for views in the Consultation Paper.
When do facilities have to comply with the requirements of the Directive?
Existing Facilities
Member States must ensure that all existing "waste facilities" and "Category A waste facilities" comply with the provisions of the Directive by 1 May 2012 (although any requirements for a financial guarantee will not have to be met until 1 May 2014). The Scottish Government intends the Regulations to specify 1 May 2010 as the date that operators of such facilities must submit the necessary information to planning authorities. This date should allow enough time for planning authorities and, if necessary, SEPA, to issue the necessary consents prior to the Directive's compliance date of 1 May 2012.
The Directive does not include specific transposition provisions for existing "non-waste facilities". However, the Consultation Paper proposes that operators of non-waste facilities should be required to submit the information required by the Directive (i.e. Waste Management Plans) within 18 months of the Regulations coming into force.
New Facilities
Planning applications for new mineral developments which are undetermined at 1 May 2008 or made after that date must comply with the provisions of the Directive with immediate effect, i.e. planning permission should not be granted on or after that date unless the applicant has complied with the relevant provisions of the Directive.
However, given that further work is being undertaken by the European Commission in relation to waste characterisation and waste facility classification, the Scottish Government recognises that until these measures are agreed and further guidance provided, it would be difficult to undertake the various classifications required by the Directive. In a letter dated 30th April 2008 sent from the Scottish Government to all Heads of Planning in Scotland, it is made clear that planning authorities can therefore continue to determine existing and new applications in accordance with current statutory requirements, which are generally considered sufficient to ensure extractive waste is managed in a way that meets the Directive's objective of protecting the environment and human health. The letter further states that the intention is for the Regulations to include provisions to ensure that all sites approved prior to the Regulations coming into force (i.e. including those approved after 1 May) comply with the Directive within a prescribed timescale. Further guidance on these issues and others will be produced by the Scottish Government (working closely with planning authorities and industry) in due course.
Going forward, the Scottish Government expects that applicants for new mineral developments will hold initial discussions with the planning authority, SEPA and HSE. Following these discussions, applicants will be able to self-classify the waste status of the site and include the relevant information required by the Directive with their planning application. Consultation with SEPA and HSE would then confirm that the self-classification was correct. In cases where an Article 7 Permit is required, the Consultation Paper envisages that by obtaining both the planning permission and any necessary consents, for example, CAR consents granted by SEPA and any HSE consents, the operator shall have met the requirements for an Article 7 Permit and shall then be entitled to start operating the facility, i.e. there will be no stand-alone "Article 7 Permit" but rather a combination of existing permissions/consents.
The Position in England and Wales
Draft regulations setting out a new permitting regime for the management of mining and quarrying wastes were issued for consultation by the Department for Communities and Local Government (DCLG) on 17th January 2008. The consultation states that the preferred option is for these operations to fall under the new Environmental Permitting regime (combining waste management licensing and PPC permitting and administered by the Environment Agency) which came into force in England and Wales on 6th April of this year. Other options being considered are transposition through town and country planning legislation together with the application of existing water pollution controls (similar to the position being considered in Scotland outlined above), and a hybrid of both the Environmental Permitting regime and town and country planning legislation. The DCLG's consultation closed on 11th April.
The Position in Northern Ireland
Northern Ireland is to undertake its own consultation on implementation of the Directive but, as yet, no consultation has been published.
McGrigors LLP
April 2008
|
Jennifer Ballantyne Partner Tel. +44 (0)141 567 9355 jennifer.ballantyne @mcgrigors.com |
 |
© 2008 McGrigors LLP. All rights reserved. The information contained herein is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, there can be no guarantee that such information is accurate as of the date it is received or that it will continue to be accurate in the future. No one should act on such information without appropriate professional advice after a thorough examination of the particular situation. Neither this nor any other communication is intended to be, or should be construed as, an invitation or inducement (direct or indirect) to any person to engage in investment activity. McGrigors is regulated by the Law Society of Scotland. McGrigors London is regulated by the Law Society of England and Wales.