The Landfill Allowances Scheme (Scotland) Regulations 2005

Made: 16th March 2005

Coming into force in accordance with regulation 1(2) and (3)

The Scottish Ministers, in exercise of the powers conferred on them by sections 6, 7, 10 to 13, 15, 16, 26 and 36 of the Waste and Emissions Trading Act 2003[^f00001] (“the Act”) and all other powers enabling them in that behalf, having consulted in accordance with section 27(2) of the Act such bodies or persons appearing to them to be representative of the interests of– waste disposal authorities in Scotland; persons concerned in the operation of landfills in Scotland; any other affected persons; as they consider appropriate, hereby make the following Regulations, a draft of which has in accordance with section 28(4) of the Act (since these Regulations include the first regulations to be made by the Scottish Ministers under sections 6, 7 and 11 of the Act), been laid before, and approved by a resolution of, the Scottish Parliament:

waste disposal authorities in Scotland;

persons concerned in the operation of landfills in Scotland;

any other affected persons;

PART 1 — General

Citation, commencement and extent

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• (1) These Regulations may be cited as the Landfill Allowances Scheme (Scotland) Regulations 2005.

• (2) Except as specified in paragraph (3) below, these Regulations shall come into force on 1st April 2005.

• (3) Regulation 8 shall come into force on 1st April 2008.

• (4) These Regulations extend to Scotland only.

Interpretation

2

• (1) In these Regulations–

• “the Act” means the Waste and Emissions Trading Act 2003;

• “collected municipal waste” means municipal waste which is recovered or disposed of in pursuance of arrangements made by a waste disposal authority or a waste collection authority;

• “disposal” has the meaning given by regulation 2(1) of the Waste Management Licensing (Scotland) Regulations 2011;

• “electronic communication” has the same meaning as in section 15(1) of the Electronic Communications Act 2000[^f00003];

• “European Waste Catalogue” has the same meaning as in regulation 1(4) of the Special Waste Regulations 1996,

• “landfill allowance account” means the landfill allowance account contained in the landfill allowances register under regulation 16(2);

• “Landfill Directive” means Council Directive 99/31/EC on the landfill of waste as last amended by Directive (EU) 2018/850 of the European Parliament and of the Council,

• “operator of a landfill” means the person who has control over the operation of the landfill;

• “reconciliation period” means the period of 6 months following the end of a scheme year;

• “recovery” has the same meaning as in Article 3 of, and Annex II to, Directive 2008/98/EC of the European Parliament and of the Council on waste and repealing certain Directives, as amended by Commission Regulation (EU) 1357/2014 replacing Annex III to Directive 2008/98/EC;

• “relevant authority” means–the monitoring authority;the Scottish Ministers;

• “scheme year” means a year beginning with 1st April in any of 2005 to 2019[^f00007];

• “treatment” has the same meaning as in section 22(4) of the Act;

• “vintage” means in respect of landfill allowances allocated for–different scheme years, the chronological order in which those allowances were allocated;for the same scheme year, the order in which those landfill allowances were allocated for that year; and

• “waste facility” means a facility for the disposal or recovery of waste other than a landfill;.

• (2) In these Regulations references to waste being sent by a waste disposal authority to a landfill or a waste facility are references to waste being sent to such a landfill or facility in pursuance of arrangements made by the authority.

• (3) In these Regulations a landfill allowance is available to a waste disposal authority for a scheme year if–

• (a) for the purposes of regulation 7 it has–

• (i) been allocated to the authority for that scheme year, and

• (ii) not subsequently been transferred or withdrawn;

• (b) for all other purposes it has been–

• (i) allocated to the authority for that scheme year, or

• (ii) banked, borrowed or transferred to that scheme year,

and not subsequently been banked, borrowed, transferred or withdrawn.

Giving notices and notifications, and the submission of forms and returns

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• (1) Subject to paragraph (2), where under these Regulations a person is required or authorised to–

• (a) submit a form, notice or return to another person; or

• (b) notify another person of any matter;

the form, notice, return or notification must be in writing.

• (2) Where–

• (a) that other person has an address for the purposes of electronic communications–

• (i) any return may be submitted, or

• (ii) any notice or notification may be given,

by way of such communications;

• (b) regulation 4(3)(a) applies, the form may be submitted to the monitoring authority by way of electronic communications to the address specified in the form;

• (c) regulation 4(3)(b) applies, the form may be submitted to the monitoring authority via the website;

• (d) a relevant authority maintains a website for the purpose of enabling returns to be submitted to the monitoring authority, any return which is enabled to be so submitted may be submitted to the monitoring authority via the website.

Electronic registers and forms

4

• (1) The register established or maintained under regulation 16 may be in electronic form.

• (2) Where that register is in electronic form, that authority may make it available for inspection by the public on a website maintained by the authority for that purpose.

• (3) Any form provided by the monitoring authority under these Regulations may be provided–

• (a) in an electronic form, or

• (b) for completion and submission to the monitoring authority on a website maintained by a relevant authority for that purpose.

PART 2 — Allocation and the banking, borrowing and transfer of landfill allowances

Allocation of allowances

5

As soon as reasonably practicable after the Scottish Ministers have complied with section 4(4) of the Act, the monitoring authority must assign all landfill allowances allocated to a waste disposal authority under that section–

• (a) to the waste disposal authority’s landfill allowance account;

• (b) a unique reference number (which may include any letter) from which the following information may be ascertained–

• (i) the waste disposal authority to which the allowance is allocated,

• (ii) the year for which the allowance is allocated,

• (iii) the vintage of the allowance for that year.

Banking landfill allowances

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• (1) All landfill allowances which–

• (a) are available to a waste disposal authority for a scheme year, and

• (b) have not been utilised for that scheme year after the monitoring authority complies with regulation 15,

must be banked for use in the following scheme year.

• (2) Paragraph (1) does not apply–

• (a) in a target year,

• (b) where the following scheme year is a target year.

Borrowing of landfill allowances

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• (1) Subject to paragraphs (2) and (3), a waste disposal authority may borrow for use in a scheme year (other than the scheme years mentioned in paragraph (3)) up to 5% of the landfill allowances available to it for the following scheme year (rounded down to the nearest whole allowance).

• (2) Paragraph (1) does not apply–

• (a) in a target year,

• (b) where the following scheme year is a target year;

• (3) In respect of a scheme year which begins on 1st April 2005, 1st April 2006 or 1st April 2007, a waste disposal authority may borrow for use in the relevant scheme year up to 10% of the landfill allowances available to it for the following scheme year (rounded down to the nearest whole allowance).

• (4) Where a waste disposal authority intends to borrow a landfill allowance it must submit a borrowing request to the monitoring authority before the end of the reconciliation period for the scheme year.

• (5) A borrowing request must–

• (a) be made on the form provided by the monitoring authority;

• (b) specify–

• (i) the name of the waste disposal authority,

• (ii) the number of landfill allowances which it intends to borrow.

• (6) The monitoring authority is not required to consider a borrowing request unless it is made in accordance with paragraph (5).

• (7) If the conditions in paragraph (9) are satisfied the monitoring authority must–

• (a) remove the number of landfill allowances specified in the borrowing request from the part of the waste disposal authority’s landfill allowance account relating to the following scheme year;

• (b) include those allowances in the part of the account relating to the scheme year;

• (c) notify the waste disposal authority which made the request–

• (i) that its request has been accepted,

• (ii) of the amendments that have been made to its landfill allowance account.

• (8) If the conditions in paragraph (9) are not satisfied the monitoring authority must notify the waste disposal authority–

• (a) that its request has not been accepted,

• (b) of the reasons why.

• (9) The conditions referred to in paragraphs (7) and (8) are that–

• (a) the borrowing request complies with paragraphs (1), (2) or, as the case may be, (3);

• (b) the number of landfill allowances specified in the request are available to the waste disposal authority for the following scheme year;

• (c) accepting the borrowing request would not cause the waste disposal authority to exceed the limit on borrowing under paragraph (1) or, as the case may be, paragraph (3); and

• (d) the authority is not suspended from borrowing landfill allowances under regulation 9.

Transfer of landfill allowances

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• (1) Subject to paragraph (2) a waste disposal authority may transfer to any other waste disposal authority, whether by way of trade or otherwise, landfill allowances which–

• (a) are available to the waste disposal authority for a scheme year, and

• (b) have not been utilised.

• (2) A waste disposal authority must not transfer an allowance from any scheme year for which the allowance is available to the authority unless the transfer is to that same scheme year.

• (3) Where a waste disposal authority (“the transferor”) agrees to transfer a landfill allowance to another waste disposal authority (“the transferee”) the transferor must submit a transfer request to the monitoring authority before the end of the reconciliation period for the scheme year in which the agreement is made.

• (4) A transfer request must–

• (a) be made on the form provided by the monitoring authority;

• (b) specify–

• (i) the names of the transferor and transferee,

• (ii) the number of landfill allowances to be transferred,

• (iii) for each landfill allowance the scheme year for which the allowance is available to the transferor,

• (iv) the date the transfer was agreed,

• (v) the price (if any) to be paid.

• (5) The monitoring authority is not required to consider a transfer request unless it is made in accordance with paragraph (4).

• (6) If the conditions in paragraph (8) are satisfied, the monitoring authority must–

• (a) delete the landfill allowances from the transferor’s landfill allowance account;

• (b) add each landfill allowance to the transferee’s landfill allowance account for the scheme year for which, immediately before the transfer, it was available to the transferor;

• (c) notify the transferor and transferee–

• (i) that the request has been accepted,

• (ii) of the amendments that have been made to their landfill allowance accounts.

• (7) If the conditions in paragraph (8) are not satisfied the monitoring authority must notify the transferor and transferee–

• (a) that the request has not been accepted,

• (b) of the reasons why.

• (8) The conditions referred to in paragraphs (6) and (7) are that–

• (a) the agreement complies with paragraphs (1) and (2),

• (b) all landfill allowances are available to the transferor for the scheme years specified pursuant to paragraph (4)(b)(iii), and

• (c) neither the transferor nor the transferee is suspended from transferring allowances under regulation 9.

Suspension of banking, borrowing and transferring of landfill allowances

9

• (1) The Scottish Ministers may suspend any or all waste disposal authorities from banking, borrowing and transferring landfill allowances if they consider–

• (a) in a scheme year occurring between target years that there is a risk that the total amount of biodegradable municipal waste sent to landfills by waste disposal authorities in Scotland will exceed the maximum amount for Scotland which is specified under (or pursuant to section 3(1) of the Act is treated as having been specified under) section 2(1)(a) of the Act, or

• (b) it necessary to exercise their power under section 5 of the Act (alteration of allocations under section 4).

• (2) The Scottish Ministers may suspend a waste disposal authority from banking, borrowing and transferring landfill allowances if they have reason to believe that–

• (a) the waste disposal authority has failed to comply with–

• (i) its duty under section 9 of the Act (duty not to exceed allowances), or

• (ii) any requirement under these Regulations; or

• (b) an unauthorised person may attempt, or has attempted, to submit a borrowing or transfer request to the monitoring authority on behalf of the waste disposal authority.

• (3) If the Scottish Ministers suspend a waste disposal authority from banking, borrowing and transferring landfill allowances under paragraphs (1) or (2), at the same time they must notify the monitoring authority and the waste disposal authority of–

• (a) that fact,

• (b) the reasons for the suspension.

• (4) The Scottish Ministers may lift a suspension if in any case falling within–

• (a) paragraph (1)(a), they are satisfied that there is no significant continuing risk that the total amount of biodegradable municipal waste sent to landfills by waste disposal authorities in Scotland will exceed the maximum amount mentioned in that paragraph;

• (b) paragraph (1)(b)–

• (i) the allocation of landfill allowances has been altered, or

• (ii) they no longer consider that an alteration is necessary;

• (c) paragraph (2)(a), they are satisfied that the failure to comply is unlikely to recur;

• (d) paragraph (2)(b), they are satisfied that there is no further risk of the unauthorised submission of a borrowing or transfer request.

• (5) If the Scottish Ministers lift a suspension under paragraph(4), at the same time they must notify the monitoring authority and any waste disposal authority which, as a consequence, is no longer suspended from banking borrowing and transferring landfill allowances of–

• (a) that fact,

• (b) the reasons for lifting the suspension.

• (6) The effect of suspending a waste disposal authority from banking, borrowing and transferring landfill allowances is that no landfill allowances may be–

• (a) transferred to or from the waste disposal authority’s landfill allowance account under regulation 8,

• (b) banked or borrowed within that account under regulation 6 or 7.

• (7) In paragraph (2)(b) “unauthorised person” means a person who is not authorised by a waste disposal authority to submit borrowing or transfer requests on the authority’s behalf.

PART 3 — Monitoring

Monitoring authority

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SEPA is the monitoring authority for Scotland.

Obligation for waste disposal authorities to keep records and make returns

11

• (1) A waste disposal authority must keep records containing the following information for each scheme year–

• (a) the amount by weight of collected municipal waste;

• (b) the amount by weight of municipal waste sent to landfills by the authority; and

• (c) the amount by weight of municipal waste sent to waste facilities by the authority.

• (2) In relation to municipal waste mentioned in paragraph (1)(b) and (c) the records must contain details of–

• (a) the total amount of waste by weight sent to each landfill or waste facility,

• (b) the description of, and the appropriate code in the European Waste Catalogue for, the waste referred to in sub-paragraph (a).

• (3) The records under paragraph (1) must be kept for a period of 3 years beginning on the day after the day on which the reconciliation period for the scheme year ends.

• (4) A waste disposal authority must submit to the monitoring authority a return containing the information in paragraphs (1) and (2) for each 3 month period in a scheme year ending on 31 March, 30 June, 30 September and 31 December within 3 months of the end of that period in such form and to such extent as specified by the monitoring authority.

• (5) The monitoring authority, or a person authorised in writing by the monitoring authority, may by notice require a waste disposal authority to–

• (a) produce for inspection or for removal for inspection elsewhere, records it is required to keep under paragraph (1);

• (b) supply the monitoring authority with information about, or evidence as to, matters connected with the sending of biodegradable municipal waste to landfills;