The Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019

Made: 19th March 2019

Coming into force in accordance with regulation 1(2)

The Secretary of State makes these Regulations in exercise of the powers conferred by—in relation to Part 1, the provisions mentioned in paragraphs (b) and (c);in relation to Part 2, section 2(2) of the European Communities Act 1972 ;in relation to the remainder of the Regulations, section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018 .

The Secretary of State makes these Regulations in exercise of the powers conferred by—

in relation to Part 1, the provisions mentioned in paragraphs (b) and (c);

in relation to Part 2, section 2(2) of the European Communities Act 1972 ;

in relation to the remainder of the Regulations, section 8(1) of, and paragraph 21 of Schedule 7 to, the European Union (Withdrawal) Act 2018 .

The Secretary of State is a Minister designated for the purposes of section 2(2) of the European Communities Act 1972 in relation to measures relating to the prevention, reduction and elimination of pollution caused by waste .

In accordance with paragraph 2(2) of Schedule 2 to the European Communities Act 1972 and paragraph 1(1) of Schedule 7 to the European Union (Withdrawal) Act 2018, a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

PART 1 — Introductory

Citation and commencement

1

• (1) These Regulations may be cited as the Waste (Miscellaneous Amendments) (EU Exit) Regulations 2019.

• (2) They come into force as follows—

• (a) as regards this Part and Part 2, on the day after the day on which they are made;

• (b) as regards the remainder, on exit day.

PART 2 — Amendment of out of date references

Environmental Protection Act 1990

2

• (1) The Environmental Protection Act 1990 is amended as follows.

• (2) In section 33(13) , as it extends to England and Wales, for the words from “Directive 2008/98/EC ” to the end substitute “ the Waste Framework Directive ”.

• (3) In section 34(2A) , as it extends to Scotland, for “Waste Directive” substitute “ Waste Framework Directive ”.

• (4) In section 57(8) , as it extends to England and Wales, in the definition of “waste”, for “Directive 2008/98/EC of the European Parliament and of the Council on waste” substitute “ the Waste Framework Directive ”.

• (5) In section 62A(1)(b) and (2)(b) , for “Directive 2008/98/EC, as last amended by Council Regulation (EU) 2017/997 ” substitute “ the Waste Framework Directive ”.

• (6) In section 75 —

• (a) after subsection (1), insert—

(1A) “Waste Framework Directive” means Directive 2008/98/EC of the European Parliament and of the Council on waste, as last amended by Council Regulation (EU) 2017/997.

• (b) in subsection (2)—

• (i) as it extends to England and Wales, for “Directive 2008/98/EC of the European Parliament and of the Council on waste” substitute “ the Waste Framework Directive ”;

• (ii) as it extends to Scotland, in paragraph (a), for “Waste Directive” substitute “ Waste Framework Directive ”;

• (c) omit subsection (12) as it extends to Scotland.

Waste and Emissions Trading Act 2003

3

• (1) Section 37 of the Waste and Emissions Trading Act 2003 is amended as follows.

• (2) In subsection (2), as it extends to England and Wales and Scotland, at the end insert “ , as last amended by Council Regulation (EU) 2017/997 ”.

• (3) For subsection (2), as it extends to Northern Ireland, substitute—

(2) For the purposes of this section, “the Waste Directive” means Directive 2008/98/EC of the European Parliament and of the Council on waste, as last amended by Council Regulation (EU) 2017/997.

PART 3 — Amendment of primary legislation

Control of Pollution (Amendment) Act 1989

4

Section 1(3) of the Control of Pollution (Amendment) Act 1989 is amended as follows—

• (a) after paragraph (a), omit the final “or”;

• (b) omit paragraph (b).

Environmental Protection Act 1990

5

• (1) The Environmental Protection Act 1990 is amended as follows.

• (2) In section 57(8), as it extends to England and Wales, in the definition of “waste”, after “Waste Framework Directive” (as substituted by regulation 2(4)), insert “ , as read with Articles 5 and 6 of that Directive, ”.

• (3) In section 75(1A) (as inserted by regulation 2(6)(a)), at the end insert “ , and read in accordance with section 75A ”.

• (4) After section 75 insert—

(75A) (1) For the purposes of this Part, the Waste Framework Directive is to be read in accordance with this section. (2) A reference to one or more member States in a provision of the Waste Framework Directive imposing an obligation or conferring a discretion on a member State or member States is to be read as a reference to the appropriate authority, waste regulation authority or local authority which, immediately before IP completion day, was responsible for the United Kingdom's compliance with that obligation or able to exercise that discretion in respect of England, Wales or Scotland. (3) Article 2 is to be read as if— (a) in paragraph 2— (i) in the words before point (a), for “other Community legislation” there were substituted “ retained EU law ”; (ii) in points (b) and (c), for “Regulation (EC) No 1774/2002” there were substituted “ Regulation (EC) No 1069/2009 ”; (iii) in point (d), as it extends to England and Wales, for the words from “Directive 2006/21/EC ” to the end there were substituted “ the Mining Waste Directive ”; (iv) for point (d), as it extends to Scotland, there were substituted— (d) extractive waste, which has the same meaning as in regulation 2(1) of the Management of Extractive Waste (Scotland) Regulations 2010 (S.S.I. 2010/60) . (b) in paragraph 3, the words from “Without prejudice” to “Community legislation,” were omitted; (c) paragraph 4 were omitted. (4) Article 5 is to be read as if— (a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted; (b) after paragraph 1 there were inserted— (1A) Any decision as to whether a substance or object is a by-product must be made— (a) in accordance with any regulations setting out detailed criteria on the application of the conditions in paragraph 1 to specific substances or objects; and (b) having regard to any guidance published by the appropriate authority or the waste regulation authority for the purposes of this Article. (c) paragraphs 2 and 3 were omitted. (5) Article 6 is to be read as if— (a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted; (b) after paragraph 1 there were inserted— (1A) Any decision as to whether a substance or object has ceased to be waste must be made— (a) in accordance with any regulations or retained direct EU legislation setting out detailed criteria on the application of the conditions in paragraph 1 to specific types of waste; and (b) having regard to any guidance published by the appropriate authority or the waste regulation authority for the purposes of this Article. (c) in paragraph 2— (i) the first subparagraph were omitted; (ii) in the second subparagraph, for “Those detailed criteria” there were substituted “Any detailed criteria set out in guidance as referred to in paragraph 1A”; (iii) the third and fourth subparagraphs were omitted; (d) paragraph 3 were omitted; (e) in paragraph 4— (i) in the first subparagraph— (aa) in the first sentence, for the words from the beginning to “Member State”, there were substituted “Where criteria have not been set out as referred to in paragraph 1A(a), the waste regulation authority”; (bb) the second sentence were omitted; (ii) in the second subparagraph— (aa) for “Member States” there were substituted “The waste regulation authority”; (bb) “by competent authorities” were omitted. (6) Article 7 is to be read as if— (a) before paragraph 1 there were inserted— (A1) In this Article, the “list of waste” means the list contained in the Annex to Commission Decision 2000/532/EC, as that list has effect in England, Wales or Scotland (as the case may be). (b) in paragraph 1— (i) the first and second sentences were omitted; (ii) for the third sentence there were substituted “The list of waste shall, except as provided in Commission Decision 2000/532/EC, be binding as regards determination of the waste which is to be considered as hazardous waste or as non-hazardous waste.”; (c) paragraphs 2, 3, 6 and 7 were omitted. (7) Annex 3 is to be read as if, in entry HP 9, in the second sentence, “in the Member States” were omitted. (8) In this section— - “appropriate authority” means— 1. in relation to England, the Secretary of State; 2. in relation to Wales, the Welsh Ministers; 3. in relation to Scotland, the Scottish Ministers; - “local authority” means— 1. in England outside Greater London— 1. a district council, 2. a county council, or 3. the Council of the Isles of Scilly; 2. in Greater London— 1. the council of a London borough, 2. the Common Council of the City of London, 3. the Sub-Treasurer of the Inner Temple, or 4. the Under-Treasurer of the Middle Temple; 3. in Wales— 1. a county council, or 2. a county borough council; 4. in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994 .

Waste and Emissions Trading Act 2003

6

• (1) The Waste and Emissions Trading Act 2003 is amended as follows.

• (2) In section 1—

• (a) in subsection (1), for “must” substitute “ may ”;

• (b) omit subsection (2);

• (c) for subsection (4) substitute—

(4) The power under subsection (1)(a) is exercisable only with the agreement of the Scottish Ministers, the Welsh Ministers and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland. (4A) The power under subsection (1)(c) is exercisable only with the agreement of the Scottish Ministers. (4B) The power under subsection (1)(d) is exercisable only with the agreement of the Welsh Ministers. (4C) The power under subsection (1)(e) is exercisable only with the agreement of the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.

• (d) omit subsection (5).

• (3) In section 23, for subsection (3) substitute—

(3) The power under subsection (2) is exercisable only with the agreement of the Scottish Ministers, the Welsh Ministers and the Department of Agriculture, Environment and Rural Affairs in Northern Ireland.

• (4) In section 37—

• (a) in subsection (2)—

• (i) after “section” insert “ and section 37A ”;

• (ii) at the end (and, in that subsection as it extends to England and Wales and Scotland, after the insertion made by regulation 3(2)) insert “ , and read in accordance with subsections (3) to (9) ”;

• (b) after subsection (2) insert—

(3) A reference to one or more member States in a provision of the Waste Directive imposing an obligation or conferring a discretion on a member State or member States is to be read as a reference to the appropriate authority, appropriate agency or local authority which, immediately before IP completion day, was responsible for the United Kingdom's compliance with that obligation or able to exercise that discretion in respect of England, Wales, Scotland or Northern Ireland. (4) Article 2 is to be read as if— (a) in paragraph 2— (i) in the words before point (a), for “other Community legislation” there were substituted “ retained EU law ” or, in relation to Northern Ireland, EU legislation which has effect by virtue of the Protocol on Ireland/Northern Ireland in the EU withdrawal agreement; (ii) in points (b) and (c), for “Regulation (EC) No 1774/2002” there were substituted “ Regulation (EC) No 1069/2009 ”; (iii) in point (d), as it extends to England and Wales, for the words from “Directive 2006/21/EC” to the end there were substituted “ the Mining Waste Directive ” (see section 37A); (iv) for point (d), as it extends to Scotland, there were substituted— (d) extractive waste, which has the same meaning as in regulation 2(1) of the Management of Extractive Waste (Scotland) Regulations 2010 (S.S.I. 2010/60). (v) for point (d), as it extends to Northern Ireland, there were substituted— (d) extractive waste, which has the same meaning as in regulation 2(2) of the Planning (Management of Waste from Extractive Industries) Regulations (Northern Ireland) 2015 (S.R. 2015 No. 85) . (b) in paragraph 3, the words from “Without prejudice” to “Community legislation,” were omitted; (c) paragraph 4 were omitted. (5) Article 5 is to be read as if— (a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted; (b) after paragraph 1 there were inserted— (1A) Any decision as to whether a substance or object is a by-product must be made— (a) in accordance with any regulations setting out detailed criteria on the application of the conditions in paragraph 1 to specific substances or objects; and (b) having regard to any guidance published by the appropriate authority or the appropriate agency for the purposes of this Article. (c) paragraphs 2 and 3 were omitted. (6) Article 6 is to be read as if— (a) in paragraph 1, “Member States shall take appropriate measures to ensure that” were omitted; (b) after paragraph 1 there were inserted— (1A) Any decision as to whether a substance or object has ceased to be waste must be made— (a) in accordance with any regulations or retained direct EU legislation setting out detailed criteria on the application of the conditions in paragraph 1 to specific types of waste; and (b) having regard to any guidance published by the appropriate authority or the appropriate agency for the purposes of this Article. (c) in paragraph 2— (i) the first subparagraph were omitted; (ii) in the second subparagraph, for “Those detailed criteria” there were substituted “Any detailed criteria set out in guidance as referred to in paragraph 1A”; (iii) the third and fourth subparagraphs were omitted; (d) paragraph 3 were omitted; (e) in paragraph 4— (i) in the first subparagraph— (aa) in the first sentence, for the words from the beginning to “Member State”, there were substituted “Where criteria have not been set out as referred to in paragraph 1A(a), the appropriate agency”; (bb) the second sentence were omitted; (ii) in the second subparagraph— (aa) for “Member States” there were substituted “The appropriate agency”; (bb) “by competent authorities” were omitted. (7) Article 7 is to be read as if— (a) before paragraph 1 there were inserted— (A1) In this Article, the “list of waste” means the list contained in the Annex to Commission Decision 2000/532/EC, as that list has effect in England, Wales, Scotland or Northern Ireland (as the case may be). (b) in paragraph 1— (i) the first and second sentences were omitted; (ii) for the third sentence there were substituted “The list of waste shall, except as provided in Commission Decision 2000/532/EC, be binding as regards determination of the waste which is to be considered as hazardous waste or as non-hazardous waste.”; (c) paragraphs 2, 3, 6 and 7 were omitted. (8) Annex 3 is to be read as if, in entry HP 9, in the second sentence, “in the Member States” were omitted. (9) In this section— - “appropriate agency” means— 1. in relation to England, the Environment Agency; 2. in relation to Wales, the Natural Resources Body for Wales; 3. in relation to Scotland, the Scottish Environment Protection Agency; 4. in relation to Northern Ireland, the Department of Agriculture, Environment and Rural Affairs; - “appropriate authority” means— 1. in relation to England, the Secretary of State; 2. in relation to Wales, the Welsh Ministers; 3. in relation to Scotland, the Scottish Ministers; 4. in relation to Northern Ireland, the Department of Agriculture, Environment and Rural Affairs; - “local authority” means— 1. in England outside Greater London— 1. a district council, 2. a county council, or 3. the Council of the Isles of Scilly; 2. in Greater London— 1. the council of a London borough, 2. the Common Council of the City of London, 3. the Sub-Treasurer of the Inner Temple, or 4. the Under-Treasurer of the Middle Temple; 3. in Wales— 1. a county council, or 2. a county borough council; 4. in Scotland, a council constituted under section 2 of the Local Government etc. (Scotland) Act 1994; 5. in Northern Ireland, a district council established under section 1 of the Local Government Act (Northern Ireland) 1972 .

• (5) After section 37 insert—