At the beginning of this month a SEPA consultation was published in relation to
new draft guidance on the recovery and disposal of waste in
quarries. The consultation
runs until 31st March 2017.
The draft guidance is presented as dealing with the infill or
restoration of quarries. However, there is a suggestion by SEPA
that it signals a wider change of policy (or at least practice) in
relation to other similar activities currently carried out by way
of an exemption from waste management licensing but which might not
continue to be authorised as such. Instead such activities would
either be considered: (a) disposal of waste in which case a PPC
permit would be required or (b) a recovery operation to be dealt
with under a waste management licence.
Under the waste framework directive there are specific
definitions of what constitutes both recovery and disposal of
waste. However, the test in terms of the draft guidance arguably
goes further than the directive definitions: in order for an
activity to be considered a recovery rather than disposal
operation, the waste materials being used must be a
replacement for non-waste materials which would otherwise have been
used for the same purpose and to the same extent. The
test, similar to that already employed in England and Wales
(although there it has been recently tested in the courts) is
effectively a two stage process in respect of which operators will
have to provide a positive answer to the following questions:
Is there a reasonable chance
that the operation would remain worthwhile and an operator would
still proceed with the works using non-waste materials?
Are the waste materials
proposed suitable for the works?
There are a number of issues with the draft guidance and how
this test will work in practice that will need addressed as part of
Although a number of things
(including the extent of the works, the type and volume of
material, and compliance with other regimes (namely planning and
health and safety)) will be considered by SEPA, the first stage of
the test will largely be based on the provision of evidence that
the operation would still be financially viable without the waste
materials (i.e. using virgin materials). If there is a legitimate
use for waste materials, in place of virgin resources, should the
main focus in determining the classification of that use as a
recovery operation be financial?
A significant portion of the
draft guidance relates to this financial element and it is
questionable to what extent that focus dilutes the importance of
other factors, such as the desire to encourage the sustainable use
of resources. Such sustainability and the wider move toward a more
circular economy are both expressed as high priority goals for SEPA
in their One Planet Prosperity strategy. Is there a degree of
The potential impact on the
costs of construction, development and demolition projects if,
going forward, a larger proportion of the waste materials produced
have to be disposed of in an inert landfill site rather than
recovered for use in a quarry or similar could be substantial.
There is a suggestion that, at least in relation to the infilling
of quarries, an existing exemption from Scottish Landfill Tax would
be applicable but that needs further consideration.
On the basis that there will be
less feasible exempt sites, as a result of the introduction of the
guidance, what will happen, in the interim period, to material
which cannot go to landfill? A number of operators have already
either had exemption (primarily paragraph 9 or 19) applications
rejected or experienced difficulty in having them accepted which
demonstrates that SEPA have been acting on the principle of this
new guidance for the last 12 months or so, notwithstanding that the
consultation has only just been released. It appears that a few
isolated disagreements, regarding the use of these exemptions for
the infilling of quarry sites in the west of Scotland triggered a
more widespread reaction within SEPA. That seems to have led to
exemption applications (particularly for the infilling of quarries)
being: (a) more closely scrutinised than might previously have been
the case and (b) determined on the basis of the test now set out in
the new guidance prior to the change of practice being fully
Given the potential
consequences that this draft guidance could have both for
development and the waste industry and the need for further
clarification of the points set out above which could present
serious concerns for many, wide consideration and engagement with
the consultation needs to be encouraged!
This article was originally published by Materials
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