The principle behind the Waste Management legislation is that the polluter should pay and cover the cost of recovery. The legislation deals with waste at all parts of the chain from its creation to its disposal. The waste legislation does not apply to the matters covered by air pollution, water pollution and radioactive substances legislation.
The fundamental principle of waste management is that waste movements must be tracked and monitored from the start to finish. Persons who have custody, have responsibility for waste and cannot simply abandon it. There are provisions for tracking both hazardous and non-hazardous waste.
As with other environmental legislation, waste legislation is heavily influenced by common European Union rules. States are under an obligation not to permit environmental pollution under the waste framework directive. They must ensure waste is disposed of, without harm to human health or the environment.
There is a range of EU legislation dealing with waste, ranging from the benign to the toxic. There are numerous standards and EU Directives in relation to certain classes of pollutant. There are numerous specific standards on particular pollutants. There are special provisions in relation to hazardous waste.
Each local authority is responsible for the implementation of waste legislation in its area. Local authorities are encouraged to co-operate and may make joint management plans on a regional basis. They may co-operate and enter partnerships with each other in relation to waste facilities.
The Environmental Protection Agency (“EPA”) has waste management functions including advising, licensing and enforcement in respect of certain types of waste. The EPA deals with the importation of hazardous waste. The EPA makes a national hazardous waste management plan. The Department of the Environment and Local Government may re-designate waste management functions from local authorities to the EPA and vice versa.
The local authority and EPA may make requirements in relation to the disposal of waste. The EPA may issue guidance on hazardous waste. Provision may be for the disposal of waste other than household waste in a particular manner or at a particular facility. It is an offence to discard waste or deposit it at a local authority facility in breach of the relevant requirements.
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 Management Plan
Local authorities must prepare waste management plans for non-hazardous waste. It deals with prevention, minimisation, collection, recovering and disposal of non-hazardous waste. It must also deal with the matters in relation to hazardous waste for which they are responsible. Joint plans may be made by councils. The plans must be reviewed as often as necessary, and at least every five years.
The making, variation and replacement of the waste management plan are undertaken by the County Managers and not the elected members. The power to adopt the waste management plan was transferred from the elected members in 2003.
There are national guidelines on waste management plans. The provisions in relation to waste management plans are modelled on those relating to the making development plans. Copies of the draft plans are prepared and made available. The public may inspect and make comments.
The plans must make provision for policies and priorities for the prevention and minimisation of waste. This includes provision for
- types, quantities and origins of waste expected to arise during the period either in the area or transported into it;
- general facilities, plants and equipment available for recovery and the collection, recovery and disposal;
- technical requirements for disposal and aftercare facilities;
- identification of sites at which waste disposal or recovery activities is taken on;
- assessment of risks associated with such activities;
- measures to ensure that the polluter pays.
The waste management plan must include information regarding implementation of the hazardous waste management plan. The authority must take account of the proper planning and development of their area and other applicable environmental waste management plans. The local authority must take account of their obligations under other legislation such as wildlife, transport, water pollution, habitats and their general functions as local authorities.
The local authority is obliged to take steps to attain the objectives in the waste management plan made by it. The EPA in dealing with an application for a licence must take account of the waste management plan for the area. Local authorities may not grant waste collection permits unless their conditions are such that they conform to the plan.
Waste Management Plan Issues
Waste management plants must encourage and support the recovery of waste. They should seek to ensure that waste that cannot be recovered or prevented, is disposed of, without environmental pollution. They should seek to must ensure that the polluter pays. in so far as possible.
There have been a number of legal challenges in relation to waste management plans. They have been generally been taken by community groups and environmental protection entities and have been aimed at preventing the development of particular waste disposal sites. Most of the challenges have been technical in nature and have failed.
Planning authorities and Bord Pleanála may not refuse planning permission for development, solely because it is not specifically mentioned in the waste management plan if it considers the development would facilitate the achievement of the objectives of the plan.
The local authority development plan is deemed to include the objectives of the waste management plan.
Hazardous waste is waste that is listed in legislation or has certain properties. The list of hazardous waste is updated and extended from time to time. The provisions that apply to waste also apply to hazardous waste. Additional and more onerous provisions also apply to hazardous waste. The EPA has published guidelines on the distinction between waste and hazardous waste.
Hazardous waste sites must be identified and recorded. Hazardous waste cannot be mixed, other than under certain conditions. Particular hazardous wastes such as asbestos, batteries and waste oils are subject to more thoroughgoing regulations. Hazardous waste from one category may not be mixed with that from another, without the local authority’s consent.
The movement of hazardous waste is tightly regulated. It may not be transferred unless it is lalabelledn accordance with EU requirements. Carriers must take precautions to ensure that wastes are separated and not mixed. Special permits are required in relation to the collection of hazardous waste.
Persons transporting waste are obliged to procure documentary evidence that the transferee has received the hazardous waste. The EPA can require consignors and carriers to give notice of proposed consignments. Copies of consignment note must be retained for five years.
Hazardous Waste Management Plan
The EPA prepares a national hazardous waste management plan. The plan must deal with the prevention and minimisation of hazardous wastes, the recovery of hazardous waste, the collection and movement of hazardous waste and the disposal of hazardous waste that cannot be prevented or recovered. The plan must deal with contaminated sites and the risk associated with them. It must provide for the identification of remedial measures for such sites.
The hazardous waste management plan must be reviewed at least once every five years. There is an element of prior publicity and democratic participation in the process.
The local authority development plan is deemed to include the objectives of the relevant waste management plan.The local authority may grant planning permission for a development consistent with the waste management plan even though it would contravene the development plan. Certain special procedures apply.
Waste Management and Recovery
The waste legislation provides measures to reduce the production of waste and promote recovery. Regulations may be made imposing recovery responsibilities on producers in respect of specified classes of items. Obligations may be imposed on producers in respect of activities subject to integrated pollution control licences. There may be requirements for waste reduction programmes, prohibitions, limitation of production eco-labelling, use of best available technology, limitation of production, assessments, packaging requirements.
A producer whether agricultural, commercial, industrial or manufacturing, has a duty to prevent or minimise waste production. There are extensive powers to make requirements relating to the design and use of parts and packaging, the operation of deposit and refund schemes, taking back of specified waste, record keeping, product standards, separation programmes and the provision of receptacles. The Minister may provide support for voluntary recycling schemes.
Local authorities have significant duties in relation to management, minimisation and recovery of waste. Local authorities may be obliged to facilitate compacting or biological transformation processes for organic municipal waste. They are also obliged to make appropriate provision for waste management, particularly recycled products within private developments, including facilities for storage, separation and collection of waste and recyclable products.
Obligation of Persons in Possession of Waste
A person may not dispose of, transport, or recover waste in a manner which may cause environmental pollution. This obligation covers the owner or person in charge or possession of waste. A person shall not transfer control of waste other than to certain categories of authorised persons.
The owner or person who controls waste retains responsibility for it, if he transfers control of it to an unauthorised person. An authorised person is a council or person otherwise authorised under waste management legislation to collect, recover or dispose of the particular class of waste concerned.
If waste is transferred to an unauthorised person, both the transferor and transferee are deemed to continue to be holders of the waste and liable for the consequences. The ownership of the waste does not pass. It is an offence to transfer waste to an unauthorised person. It is a defence to the above prohibition that an activity is carried out in accordance with the terms of a waste permit license authorisation or certificate.
The holder of waste must notify the local party of any spillage or accident which is likely to cause environmental pollution. The EPA must be notified in the case where hazardous waste is involved.
Waste collected or recovered by a local authority becomes its property. Strictly speaking, where waste is not deposited with the local authority in compliance with the specified conditions for its receipt, it does not pass to the local authority.
The Waste legislation modifies certain civil liability rules, so as to increase the risk of civil liability for persons holding waste. It is presumed that the holding, transport, recovery or disposal of waste is likely to cause environmental pollution where the relevant authorisation is not in force or not been complied in many respects.
It is then a matter for the defendant to prove the activity did not cause environmental pollution. Regulations can be made requiring persons holding waste, to take out insurance to cover liability for damages for injury to persons or property from waste.