The Regulatory Reform (Scotland) Act 2014 established a new statutory purpose for the Scottish Environmental Protection Agency (“SEPA”). It was entrusted to protect and improve the environment (environmental success) in ways that, as far as possible, create health and well-being benefits (social success) and sustainable economic growth (economic success). Since that time, SEPA has taken the opportunity to review, redesign and reinvigorate its approach to environment regulation reflecting scientific knowledge against a backdrop of modern challenges including climate change, resource scarcity and biodiversity loss. As part of the process it has focused on waste as a resource and the promotion of circular economy opportunities. This work is ongoing and developing as the awareness of issues in sectors heightens and legal tools (and thereby flexibility) at SEPA’s disposal have increased.

We review the key documents (and essential reading) signposting the direction of travel for SEPA and for the whole of the waste supply chain in Scotland. Further developments, as noted below, should be expected shortly. All those involved in the use and supply of materials and waste should be alert to the opportunities and consequences of engagement, compliance and “beyond compliance” contrasted with increased scrutiny and challenge to non- compliance.

The starting point: One Planet Prosperity

As many readers will be aware, in August 2016 SEPA launched “One Planet Prosperity – Our Regulatory Strategy”. It outlined SEPA's intent to implement practices to achieve its statutory purpose with new organisational characteristics to embrace and work with third parties and communities. It was also a direct call to action to all regulated business to achieve the common purpose of a sustainable economy.

The One Planet approach recognises that there are multiple influences on the environmental performance of organisations The environment being an integral part of business rather than a sideline issue and the importance of senior business engagement led the way for individual sector plans for all business regulated by SEPA. It was envisaged that the plans would set out in practical terms a clear agenda to deliver SEPA’s statutory purpose by tackling compliance issues; mapping out the most promising “beyond compliance” opportunities and harnessing key levers that influence each sector.

 

The Waste to Resources Framework

Given the pivotal importance of the waste sector’s role in achieving One Planet Prosperity, in October 2016 SEPA published a Waste to Resources Framework. The vision outlined is that “sustainable use of resources creates prosperity and the management of waste does not cause environmental harm”. Four high level aims underpin the vision shaping SEPA’s engagement with the sector and its areas of priority. These are: (i) waste activities are compliant; (ii) maximum value is derived from resources circulating in the economy; (iii) waste crime is eradicated and (iv) businesses are realising the benefits of resource efficiency. The ways in which to achieve the aims were to be addressed via sector plans.

The Landfill Sector Plan

Until May this year, SEPA consulted on the first sector plans including landfill. Whilst a few changes following the consultation are anticipated, the key principles in the draft Landfill Sector Plan (the “Plan”) are expected to remain the same. The launch of the final version Plan should happen over the summer period with immediate implementation.

The Plan details how SEPA will regulate the sector to ensure continued protection and improvement of the environment, and applies to all open and closed landfill sites authorised by SEPA totalling 54 operational and 222 non-operational sites. The touchstone of the Plan is that “compliance with environmental law is non-negotiable and all regulated businesses in the sector need to comply”.

The Plan should be read, trained out and kept near not only by those involved in landfill operations but by all those in the materials and waste supply chain from demolition contractors to brokers through to waste carriers including those noted as potential key influences on the sector. These include organisations such as the Scottish Environmental Services Association, CIWM but also more broadly construction, retail consortiums, utility companies and more holistically supermarkets and insurance companies.

The Plan’s Vision

The stated vision is to ensure that all operators reach and maintain full compliance with Scotland’s environmental protection laws and help as many operators move beyond compliance. Five expectations underpin the vision:-

  1. Landfills provide a valuable service as an environmentally sound disposal route for wastes which cannot be recycled or recovered.
  2. Operators are compliant with the law, operate to high standards, are good neighbours in their communities and have adequate financial provision in place
  3. Operators are responding to increasing waste prevention, reuse and recovery rates by rethinking operations and diversifying their businesses.
  4. The waste supply chain supports a circular economy within the sector by maximising the economic recovery of waste and only landfilling waste that has reached the end of its life.
  5. Landfills are closed and restored in such a way that protects the environment, including gas utilisation or flaring to reduce greenhouse gas emissions.

The present reality and dialogue required

At present landfill generates the highest proportion of public complaints about regulated sites. The Plan states that operators will get the relationship that their attitude and performance earns. The more an operator demonstrates a positive and open attitude and performance demonstrating moving towards compliance, maintaining compliance or moving beyond compliance, the more SEPA’s support will be advice and guidance. Where there is significant or chronic non-compliance, the more SEPA will use enforcement action where appropriate. A wide range of actions to improve compliance are earmarked (see table 1). However, it is clear that responsibility rests firmly with the operator.

John Higgins, Landfill Sector Lead at SEPA has commented that “Landfill was chosen as one of the first Sector Plans as it was identified that, whilst compliance across the Scottish waste and resources sector has generally improved, the performance of a number of landfill operators has remained unacceptable resulting in a disproportionate level of chronic non compliance with the potential to adversely impact on communities. The Sector is also experiencing significant change in Scotland due to increasing waste prevention, re-use and recovery rates and the 2021 ban on the landfilling of bio-degradable municipal waste. The primary purpose of our plan is to resolve the non-compliance issues to ensure protection of the local environment and communities while reflecting how SEPA will support the Sector to respond to the challenges it faces. The plan will be implemented on a national basis using regulatory tools and the influence of others through new partnerships to support the Sector”.

Beyond Compliance

The Plan identifies opportunities in materials, energy and land-use in a variety of ways suggesting how SEPA may be able to support the fulfilment of the opportunities and encourage consideration of others. Some opportunities expressly noted are the potential market for production of high quality engineering products from usable fractions from inert materials, the efficient and effective use of surplus heat generated at landfill sites; maximising use of national grid connections for alternative sustainable power generating sources and sustainable land uses for restored landfills.

The Intended Outcomes of the Plan are wider than traditional enforcement including protection and improvement of the environment and protection of communities but also supporting business to operate effectively and successfully in their markets.

Conclusion

The new regulatory approach is ambitious and allows for informed flexibility in approach to target genuine issues and secure improvements. This could result in more meaningful interaction to the benefit of all. The Plan should be reviewed carefully and considered in conjunction with policies and procedures and any gaps identified and addressed by operators. The expectations of SEPA are abundantly transparent. The onus is on the landfill operator and those supplying waste not only to comply with requirements but to maximise any potential opportunities created by the Plan’s approach. The ability to positively change behaviours and outcomes is clear.

An edited version of this article was published in the CIWM Journal August 2018: www.ciwm-journal.co.uk.