Introduction to waste law

Dr Yvonne Scannell

Art 15 Waste management

• Duty on MS to ensure that waste is managed without risk to

• - water, air, soil, or animal• - without causing nuisances through noise

or odours• - without adversely affecting the

countryside or places of special interest• Irish, Italian and Greek cases.

EU Self sufficient and MS to move towards this

• Waste for disposal• Municipal waste collected from private

households • But can limit imports of waste for recovery

in incinerators if this is against their wmp’s • Can ban exports of waste on

environmental grounds.

Proximity art 16

• Waste must be disposed of at nearest appropriate installation by means of the most appropriate methods and technologies in order to ensure environmental protection but this does not mean MS has to have the full range of recovery facilities.

Waste Hierarchy art 4 Directive 2008/98/EC

• prevention of waste • Prepare for re- reuse• safe disposal of waste. • Best option must be chosen but economic

costs are relevant in choosing it. • Material recovery preferable to energy

recovery• Energy recovery preferable to disposal in

landfills • Compliance mandatory

New Hierarchy

Exceptions to hierarchy

• For specific waste streams when justified for reasons of ,inter alia, technical feasibility, economic viability and environmental protection

General principles relevant to waste

• Prevention• Polluter pays• Proximity• Disposal near to place of generation• Self sufficiency in waste disposal and

recovery

• Directive 2008/98

Waste Framework Dir. (Dir.2008/98/EC ,

Waste Streams

Waste Treatment Operations

Landfill 99/31/EC

Sewage Sludge

Dir. 86/278/EEC

Batteries and Accumulators

Dir. 91/157/EEC &93/86/EEC

COM(2003)723

Packaging and

Packaging Waste

Dir. 94/62/EC

PCBs Dir.96/59/EC

End-of-life VehiclesDir 2000/53 EC

Hazardous Waste Directive Waste Shipment RegulationReg. (EC) 1013/2006

Framework Legislation

Incineration)Directive 2000/76/EC

Mining Waste

Dir 2006/21/EC

RecyclingEU Standards, …,

as part of Recycling Strategy

Waste oils Dir

75/439/EEC

Titanium Dioxide

Dir 78/176/EEC

Waste electric and electronic equipment

Dir.2002/95EC

Restriction of

Hazardous Substances

Dir.2002/95ECrepeal with WFD revision

Simplify in 2006

European CommissionUnit ENV G4, Sustainable Production and Consumption

Definition of waste Art 3.1

• “waste” any substance or object which the holder discards or intends to or is required to discard,

• Discard test has led to re-definitions of former wastes

• E.g use of waste as a biomass. Meat and bonemeal, chicken litter, mushroom litter

Discard is not defined

• Includes waste disposal and waste recovery activities

• Examples of waste disposal and recovery operations are in Annexes to Waste Directive

• Reason for these examples is to show Member States what could be included in the terms disposal and recovery.

• But even if an activity is listed in Annexes THERE MUST ALSO BE AN INTENT TO DISCARD

Waste disposal includes:

• Landfill. Permanent impoundment. Sometimes incineration.

• Essentially the material is being permanently abandoned.

• Sending waste to a disposal operation is almost certainly discarding it

• Sending it for recovery is not necessarily!

Examples of waste recovery

• Recovery activities include • recycling• use of any waste principally as a fuel or

other means to generate energy, • land spreading as a fertiliser if done

properly in accordance with a plan• Land reclamation • A less strict regime applies to waste

recovery because it is legislative policy to encourage waste recovery.

The following not wastes

• (a) gaseous effluents emitted into the air;• (b) land (in situ) including unexcavated

contaminated soil and buildings permanently connected with land;

• (c) uncontaminated soil and other naturally occurring material excavated in construction operations for certain use on that site.

Excluded from definition art 2

• (a) waste waters if covered by other EU legislation ;

• (b) animal by-products including processed products covered by Regulation 1774/2002, except those which are destined for incineration, landfilling or use in a biogas or composting plant;

• (c) carcasses of animals that have died other than by being slaughtered, including animals killed to eradicate epizootic diseases, and that are disposed of in accordance with Regulation(EC) No 1774/2002;

• (d) mining and quarry waste covered by Directive 2006/21/EC

Covered by other legislation

• (d) radioactive waste;• (e) decommissioned explosives;• (f) faecal matter, if not covered by

paragraph 2(ie ABP), straw and other natural non-hazardous agricultural or forestry material used in farming, forestry or for the production of energy by environmentally friendly processes or methods

Tests art 5- byproducts

• Further use certain • Can be used without further processing

other than normal industrial practice• Substance or object produced as an

integral part of a production process• Further use is lawful (complies with all env

controls, doesn’t cause pollution)

Article 5(1)

• formally recognises the circumstances in which materials may fall outside thedefinition of waste.

• This change is intended to reflect the reality that many by-products are reused before entering the waste stream

• Substances used as fuels, fertilisers, sawdust for housing animals.

Byproducts

• If a byproduct is going to be used without further processing as an integral part of the operation, it will not be a waste

• Incomplete recovery – sewage sludge briquettes in Scotland but cf recovered solvents case(the recovered solvents not a waste if they met specs for fuel)

• Sludge was a waste because heavy metals not destroyed until it was burned but if no heavy metals, it would have been ok

End of waste EOW– art 6

• introduces a definition for end-of-waste that recognises the increasing importance of waste recovery.

• Not waste if statutory conditions are complied with and there has been sufficient recovery,

• Commission will develop EOW criteria for materials such as aggregate, paper, glass, metal, tyres and textiles.

Article 6(2) End of Waste

The Substance or object must be commonly used for specific purposes

Market or demand exists for it

Fulfills technical requirements for the substance and complies with product standards and legislation (e.g. fuel)

Will not lead to overall adverse environmental or health impacts

Recycling targets

• The WFD introduces the first EU wide recycling targets.By 2020, Member States must reuse or recycle 50% (by weight), in total, of certain categories of household waste (and possibly from other origins having similar waste streams) and reuse, recycle orrecover 70% (by weight) of non-hazardous construction and demolition waste.

Extended producer responsibility .Art 8

• MS may take legislative or non-legislative measures to ensure that any person who professionally develops, manufactures, processes, treats, sells or imports products has extended producer responsibility (e.g take back obligations ) dealing with the subsequent management of the waste and financial responsibility for such activities. Eg packaging, plastics on farms

Product design

• Measures to encourage the design of products that are tailored to the requirements of an Extended Producer Responsibility regime are also promoted.

ECJ and Producer Responsibility

• Van der Valle – contaminated land • Total – the producer was responsible. • [Note both producers rich] • EU obligation on people to take

reasonable care to ensure that their waste is properly handled. But extent of this obligation is not stated.

New s. 32 General duty of a holder of waste

[(1)  A person shall not—  • (a)  cause or facilitate the abandonment,

dumping or unauthorised management or treatment of waste, or

• (b)  hold, transport, recover or dispose of waste, or treat waste, in a manner that causes or is likely to cause environmental pollution.

 

Duty on holders s.32 1 A

It shall be the responsibility of the original waste producer or other waste holder to carry out the treatment of waste himself or herself or have the treatment handled by a dealer or an establishment or undertaking which carries out waste treatment operations or arranged by a private or public waste collector in accordance with section 21A and subsection (1) .

•  •  

EPA and LA must

• take the necessary measures to ensure that, within their territory or area of responsibility, the establishments or undertakings which collect or transport waste on a professional basis deliver the waste collected and transported to appropriate treatment installations in accordance with subsection (1)

Duty of care

S. 32 (2A)(a) When the waste is transferred from the original waste producer or waste holder to an appropriate person for preliminary treatment, the responsibility for carrying out a complete recovery or disposal operation shall not be discharged as a general rule.

Producers is still responsible if

• (b) Without prejudice to the TFS Regulation, the Agency and Dublin City Council, as the case may be, may specify the conditions of responsibility and decide in which cases the original producer is to retain responsibility for the whole treatment chain or in which cases the responsibility of the producer and the holder can be shared or delegated among the actors of the treatment chain.

New definition of producer from 2011 Regs

A person whose activities produce waste (in this Act referred to as the ‘original waste producer’), or

who carries out pre-processing, mixing or other operations resulting in a change in the nature or composition of such waste;

Tombesi- in the ECJ

• The fact that the materials have an economic value not mean that they cannot be waste.

• recyclable raw materials were waste.

Examples

• Palin Oy – indefinate storage of rock generated in a quarry was waste. (Now ok if 3 yrs+ if stored for recovery)

• Fact that a substance may harm the environment is irrelevant in testing if it is waste

• Avesta Polarit- leftover rock and ore in a mine was not waste because it was definitely going to be used to fill voids

• Commission v Spain – slurry used as a fertiliser not a waste if properly controlled (Cf Brady v EPA)

• Van der Valle – contaminated land is waste but problems with this and Directive 2008/98 makes exceptions for unexcavated contaminated land

Wide definitions a disincentive• Subjects holder to complicated legal

controls.• but too readily may lead to abuse by bogus

recyclers who are disposing illegally.• criminal penalties upon failure to respect

national implementing rules.• In the US materials which are destined

for certain types of recycling are not wastes• leads to lack of harmony in EU law.

Waste Management Plans• integrated and adequate network of waste

disposal installations. • obligations of proximity, self sufficiency and

polluter pays• procedure for making like development

plans (public participation required)• Must state measures or arrangements to be

taken or entered into with a view to securing the objectives of the plan.

• EC Commission v Ireland – systemic failure

2011 Waste Directive Regs WMPs must

Identify of necessary remedial measures in respect of such sites, and measures proposed to be taken, or, where such measures have already been identified, measures taken, to achieve such remediation, having regard to the cost-effectiveness of available remediation techniques

•  

Authorisation systems

• EPA licences for “big” waste licences isssues. Local authorities and private sector

• Local authority permits for small ones and recovery

• Registration where licensing too burdensome for the issue involved.

• LA issue to private sector• EPA to LAs

A case study: FENTON

ActorsMater Private and Blackrock Clinic have medical wasteWaste Disposal Company takes itMr and Mrs Moriarty are owners of the companyFenton is owner of the dump where it is landfilledThe local authority The truck driver

All except Local Authority held liable for cleaning up the waste. Veil of incorporation lifted

Irish Ispat

• Owners Irish Steel, a state company which had irresponsibly disposed of radioactive waste for 30 years

• Irish Ispat bought Irish steel. A few years later goes out of business

• Liquidator appointed• Who pays for cleanup? Shareholders in

Irish Ispat or State?• Held State – the State was the polluter

Producer Responsibility

• Litter• Packaging• Farm plastics• WEEE• Tyres• Restrictions on hazardous substances• Producers of certain wastes have to

takeback or arrange for the takeback of their waste products

Standards of remediation – who dictates ?

• Laois Co Co v Scully• Peart J. held that in the circumstances,

compliance with the requirements of waste legislation required remediation as proposed by the local authority but he was prepared to accept that in principle “an equally satisfactory solution” by less expensive means proposed by the polluter might have been acceptable.

• Cork Co Co v O’Regan – remediation postboned

Proportionality

• Scully• Ronan

• If there are two ways of remediation, the cheaper must be chosen if it produces the same (or almost the same) results.

• Issue of double enforcement

Restriction of Hazardous Substances (RoHS)

• Under the terms of the Directive, electrical and electronic equipment put on the market must not contain

• lead, mercury, • cadmium, • hexavalent chromium, • polybrominated biphenyls (PBB) or • polybrominated diphenyl ethers (PBDE). 

Philosophies • Extended producer responsibility to

guarantee waste managed properly• Separate waste’ priority waste streams;

separate hazardous waste; no landfilling of recyclables

• Separate collection and treatment of biowaste. Art 5 of Landfill directive

• Polluter pays “real” environmental costs• Effective, proportionate and disuasive

penalties

EU a Recycling Society

• Break link between waste and growth• Develop waste prevention programmes • Set targets for reuse and recycling • Have economic incentives

•  • s.32 of the Waste Management Acts.

Section 32 has been substantially amended by s.16 of the Waste Directive Regulations, which came into force on March 31, 2011. Each subsection of s.32 is important...

• Separately,•

pollution.’’ This differs from the previous offence under s.32(1), in that, there is now an additional obligation to not treat waste in a manner that causes or is likely to cause environmental pollution. In addition, the new s.32(1A)(a) also makes an original waste producer or a waste holder responsible for the treatment of waste himself or herself or obliges him/her to have the treatment handled by an authorised person (including a dealer who acts in a role of principal to purchase and subsequently sell waste) who carries out waste treatment operations or to have the treatment arranged by an authorised waste collector.

• Article 32 of the Waste Directive Regulations introduces a new obligation on persons holding, treating or otherwise in control of waste to ensure that waste management is carried out without endangering human health, without harming the environment and, in particular:

•  • (a) without risk to water, air, soil, plants

or animals;• (b) without causing a nuisance through

noise or odours; and• (c) without adversely affecting the

countryside or places of special interest.•  • The EPA and local authorities are obliged

to take ‘‘necessary enforcement measures’’ in order to ensure that this waste management obligation is being complied with. A person who contravenes this section will be guilty of an offence.