Disposal and Recovery

Waste Disposal and Recovery

There is a preference in waste legislation for recovery over disposal.  Disposal should be a last resort, where there was no possibility of recovery.  There is a broad policy against incineration, which is not generally considered effective.  Landfilling is not a favoured solution. Waste legislation promotes the principle of self-sufficiency and disposal in the nearest appropriate installations, by appropriate means and methods.

EU policy seeks to secure that each State should be self-sufficient in relation to waste disposal.  It discourages exportation of waste outside of the EU. States may take measures to prohibit or limit shipments of waste for disposal if it is done to implement these policies and principles.  Restrictions on trade within the EU are allowed only for the protection of the health including the health of humans, animals and plants.

Waste I

Waste is defined as a substance listed in the legislation or the European Waste Catalogue, which is intended to be discarded.  Waste may, therefore, cover a wide variety of things.  There is a presumption that certain things are waste, until and unless the contrary is proved.  The Waste Catalogue is updated from time to time and contains an indicative list of substances which may be waste if they are discarded.

The categories of things covered by the definition of waste are broad.  Included are things in which a producer has no commercial interest or opportunity to use or sell, the safe disposal of which is likely to cause additional costs.  Waste may include redundant products, contaminated, damaged and unusable parts and residues

The intention to discard is central.  Virtually anything can qualify as waste.  Waste may include items which can be recycled.  It covers items discarded even if they have a commercial use.  Waste recovery refers to a process by which goods are restored to their previous state or transformed into a usable state or usable component.

Waste II

The definition of waste is prospectively very wide.  An overly wide definition of waste has been criticised as counterproductive.  The subjection of products to the waste management scheme unnecessarily is likely to be inefficient.

EU policy emphasises the precautionary principle.  Where there is room for uncertainty, a  restrictive approach may be taken.  However, it may just not justify an arbitrary decision. The European Court of Justice takes a precautionary approach in interpreting what constitutes an intention to discard.

The concept of discarding should be interpreted in the light of the objectives of the EU and domestic legislation.  Discarding includes an intention to dispose and recover.  Waste may include items that are capable of economic re-use and recycling.

By-products typically constitute waste.  The fact that the by-product can be used, does not necessarily mean that it is not waste. Materials that are stored indefinitely without any apparent use, may constitute waste.

Recovery

Different legal arrangements apply in respect of waste which is disposed of or recovered. Recovery generally implies the restoration of goods to a previous state or into a usable form.  In determining whether there is disposal or recovery, the overriding purpose of the operation and utility of the waste should be considered.  The fact that waste might be capable of being recovered, does not mean that the activity is necessarily recovery.

Waste has been held to be recovered when it is of sufficient beneficial use so as to eliminate or substantially eliminate, the environmental harm posed by the original waste.  Incineration may be disposal in some contexts or recovery in other contexts, where it is used principally to generate heat or electricity.

The Minister may make regulations as to whether a particular activity is subject to the requirements of the Acts.  The EPA may determine the issue in some circumstances.

Ceasing to be Waste

The question may arise as to when waste ceases to be waste.  If it is recovered and represents a new useful product, it would likely to cease to be waste. A key criteria is the diminution of the threat to the environment by the original waste and the yielding of materials of sufficient beneficial use.  Some by-products may qualify not to be waste, where there is no intention to discard but are intended to be exploited and used.

Difficult questions can arise as to whether fuels and materials arising from the secondary burning of fuel constitute waste.  This requires consideration of the particular circumstances, which differ considerably between industries.  Secondary fuels may constitute low-grade waste.

Demoition rubble may be capable of being reused.  Using it for a useful purpose is a waste recovery operation if it replaces other raw materials and conserves natural resources.  Demolition material is prima facie waste, even if it can be put to a useful purpose.  In some cases, the material may not be waste where it has an immediate use.  Where the material consists of adulterated material, which is capable of harmful effects, degradation or emitting gases, it is presumptively waste and its reuse is recovery.

Licences

A licence is required for waste disposal and recovery.  Certain recovery and disposal are exempted.  Certain activities are covered by local authority’s permits.  Some waste recovery activities require a licence from the EPA.  This requirement applies to both local authorities themselves and private parties.

In certain cases, a local authority permit suffices. The local authority itself does not require a permit. This includes certain incineration of waste, recovery of scrap metal and metal waste, recovery and disposal at smaller facilities of non-hazardous waste, but not at landfills.

Certain temporary storage of waste is not deemed recovery or disposal such as to require a licence, although it may require a waste collection permit. Generally, the maximum duration is six months.  Certain other activities, such as the disposal of household waste within the curtilage of a property, deposit of litter and transfer to local authorities do not require licensing.  Certain activities in connection with IPC licences are covered by that licence and not the waste licence.

A waste recovery/disposal licence may be reviewed.  New conditions may be imposed by the EPA.  There is provision for public participation and publicity regarding the grant of the licence and the review.  Written submissions and objections may be made.  The decision is made taking account of the application, observations, certain legislative matters and ministerial guidance.

The EPA may seek information regarding the financial ability of the licensor to meet the commitments and requirements of the licence.  A bond may be required.  Conditions may be attached as with other similar licences as are required. In order to grant a licence, the EPA must be satisfied that it complies with environmental legislation and that will not cause environmental pollution.

The best available techniques must be used to prevent, eliminate, abate or reduce emissions. The activity must be consistent with the waste or hazardous waste management plan. The applicant must be a fit and proper person. The relevant financial requirements must be complied with,  energy use must be efficient, noise must not contravene regulations, relevant precautions must be taken and steps must be taken to reduce, cease or avoid environmental pollution risk.

Waste Disposal Facilities

The county manager has the power to grant planning permission which materially contravenes the development plan,  provided that it is consistent with the waste management plan.  The use of land for a waste disposal facility other than certain smaller ones is subject to a public consultation procedure.

The legislation places the obligations on the County Manager to make the relevant decision. The powers were taken from the elected members, due to their failures to provide facilities.

Installations for the incineration treatment or landfill of hazardous waste or waste disposal installations for chemical treatment of non-hazardous waste more than 100 tonnes per day require an Environmental Impact Assessment report.  Planning permission may be required for a waste facility if it involves a material change of use.

Where waste recovery is licensed by EPA planning authority may not impose conditions in relation to emissions.  A planning authority may refuse planning permission for an activity notwithstanding that a waste licence has been granted where the planning authority finds it to be unacceptable on environmental grounds.

Landfill

EU legislation requires categorisation of landfill into three waste types; namely hazardous, non-hazardous and inert waste.  Operators must submit a site conditioning plan and demonstrate competence to manage the site.  They must show adequate financial provisions to deal with maintenance and aftercare.  Relevant standards must be followed.  Pre-treatment of waste may be required.

The State is subject to targets to reduce landfill waste.  The EPA regulates landfill sites and administers the relevant legislation.  There are certain exceptions in respect of inert waste for redevelopment, restoration or construction purposes and for certain non-hazardous waste.

There is a landfill levy, charged per tonne.  It is collected by the local authority. The landfill levy applies in respect of waste disposal activities.  It is chargeable for the disposal of waste at a landfill facility by means of an activity referred to in the legislation.

Operators of landfill sites and other waste disposal facilities must impose the charge.  The purpose is to ensure the full costs of the waste disposal are reimbursed.  User charges are in addition to the landfill levy.

Packaging Waste

Packaging waste is subject to EU legislation designed to reduce the production of waste and to facilitate its reuse and recycling.  Producers, importers, manufacturers, distributors and retailers who place packaging waste on the market must segregate waste arising on their premises into waste streams.

Packaging waste must be collected by an authorised operator.  Packaging waste sold or consumed at the business premises is subject to regulations. Local authorities are responsible for the enforcement of the regulations. Major producers must comply themselves or participate in a scheme run an approved body.  Repak is the principal approved body.

Major producers or producers who opt for individual compliance must provide segregated take back facilities for packaging waste.  This may be done individually or in co-operation with other business.  Businesses must accept packaging waste free at their premises for the type of waste produced by then. Within a week of being requested, they must collect packaging waste from the producer to whom packaging waste is supplied.

Producers must maintain a sign at their entrance specifying the obligation of self-complying major producers or membership exemption via Repak membership.  They must register with the local authority and pay a fee of €50 per tonne of packaging supplied annually subject to minimum and maximum 500-5000. Packaging waste collected must not be less than 50% of the waste supplied in the preceding quarter.  The latter obligation applies to a major producer who is an importer of packaged goods or who is packer or filler.  A plan must be submitted every three years in relation to steps taken to recover and minimise packaging waste.

A supplier who participates in the Repak scheme has fewer obligations.  Repak itself operates a package recovering scheme. It is open to membership by all packaging suppliers. Certain producers are obliged to publish notices twice yearly of their obligation to accept packaging waste of a type or brand supplied by them, free of charge.  Local authorities must publish similar notices.

Electric Equipment and Vehicles

Electrical and electronic equipment put on the market after July 2006 is subject to collection, treatment and recycling obligations. The regulations apply to goods running on mains or battery power up to a certain voltage.  Certain categories of materials are excluded.  Producers have to register with authorities.  Certain goods must be labelled.  Materials must be collected at source.  Responsibility is individual, but collective schemes are possible.

End of life vehicles and their parts and materials are subject to regulation.  There is provision for the prevention of waste from such vehicles and for the collection, storage, treatment, reuse of components.  Producers of vehicles must take responsibility for recovery of vehicles put on the market after a certain date.  Certain vehicles are exempted.  The obligation applies to vehicles registered after 2002.  Members may be exempted where they are members of a scheme.

There are special obligations on to recover farm plastics.  Importers and manufacturers must create a deposit and refund scheme, collect waste farm plastics and recover such waste.  They must register with local authorities and provide information to the authorities. Participation in a waste recovery scheme operated by an approved body will suffice to fulfil the obligations.

There is a provision in the Directive for the establishment of a collection authority with powers of recovery.  Certain records must be kept.  The collection authority must maintain certain records and accounts.  The waste management plan will prevail over the development plan in relation to waste management issues.