LG 309 – Waste Management – © Brian Foley, 2006.
Waste Management
Legal Framework
· Waste Framework Directive 75/442/EEC
· Amended by Directive 91/156/EC
· Waste Management Act 1996
· Waste Management (Amendment) Act 2001
· Protection of the Environment Act 2003
· Regulations
Problem of Waste
· 1998 EPA Estimates
o 80M Tonnes Solid Waste
o Break down – agricultural waste, packaging, domestic
· Landfill Solution
o Unsustainable – EPA 2004 Estimates
o Kildare – 2010, Dublin – 2011, Cork – 2024
· Regulation – landfill levy
o Directive 1999/31/EC - Waste Management (Licensing) Regulations 2004 implement
o targets for reduction of municipal landfill use
o 1995 levels as base – 35% by 2010
o Hazardous v Non-Hazardous categorisation required
o Special regulation for medical waste / liquid / flammable waste
o Conditioning plan – onus on operator – operation/finances etc.
The Role of Planning
· Hazardous waste plan – function of EPA – national level – guidance function for local authorities
· Waste Management Plan –s.22, 1996
· Co-operation possibility (can be ordered to co-operate by Minister)
· Policy and strategy for waste management
· Should be reviewed every 5 years
· Must set objectives designed to reach targets specified in s.22 – general targets about proper waste management
· S.22 – a lot more detail on information which must be included – e.g.
o Ranking of priority of policies in respect of waste
o Forecasts and expectations
o Existing infrastructure
o Assess risks of pollution from existing activities
o More matters covered in WM (Planning) Regulations 1997
Delays in Making a Plan
Waste Management (Prescribed Date) Regulations 2001 – 14th September 2001 – should all have been made by that point
De Burca v Wicklow County Council
· European Communities (Waste Regulations) 1979 – massive delay – over 20 years
· Lost – technical point – but no guidance on how long would be acceptable
Public Consultation
· S.23 – consultation required – publish intention to make a plan – draft for inspection
· Take into account objections and observations
· Some local authorities have a two-step process
· Planning analogy and CRITICAL role of consultation
Keogh v Galway Corporation (No.2)
· Dev plan listed sites for halting sites – wanted to develop another site
· HC – Carney J – material contravention – beyond consultation – robbed point of it
Roughan v Clare County Council
· Barron J – HC – similar – argued that PA do not need list all possible projects in DP
· Rejected – circumvent consultation process
· Application to waste? If plan said nothing about household waste collection?
· If plan says one thing, but then LA wants to do another?
De Burca v Wicklow County Council
· Had not prepared proper WM plan – claimed could not therefore privatise household waste collection
· O’Caoimh J rejected – decisions don’t need to take place within framework of plan if other terms of WMA are not breached
· How far can you push this?
General Obligations
S.28 - people carrying on agricultural, commercial or industrial activities must take such reasonable steps as are necessary to prevent or minimise the creation of waste from any agricultural, commercial or industrial activity or from the making of any product including even waste created at the design stages of that product.
Regulations flesh this out in different cases – e.g.
· Waste Management (Packaging) Regulations, 1997 and Waste Management (Packaging) (Amendment) Regulations, 2000
· Waste Management (Farm Plastics) Regulations 2001:
· Waste Management (Hazardous Waste) Regulations, 1998 and Waste Management (Hazardous Waste) (Amendment) Regulations 2000
S.32 - prohibition on the holding, transport, collection, recovery or disposal of waste in a manner that causes or is likely to cause environmental pollution and that no person is allowed to transfer waste to anyone other than an “appropriate person” – LA or authorised person
General regulatory power under s.29 to make host of regulations for different matters
Waste Collection
Local Authority Issues I – Privatisation
S.33(1) WMA local authorities are required to collect, or arrange for the collection of household waste within their functional areas.
Not in three cases
§ If an adequate waste collection service is available
§ If the estimated costs of the collection of the waste concerned would, in the opinion of the local authority, be unreasonably high
§ If the local authority is satisfied that adequate arrangements for the disposal of the waste can reasonably be made by the holder of the waste.
De Burca v Wicklow County Council
· Argued that a decision to cease the collection of household waste was an abdication of a county council’s responsibilities under s.33(1).
· County Council believed that an adequate private waste collection service was available in its functional area.
· Suggested that all there were was expressions of interest from existing collectors to expand operations into particular areas of Wicklow.
· O’Caoimh J held that, if true, this would not be enough but believed the CC.
· Re costs – held that question of “costs” should not be looked at only from the financial perspective of the county council alone.
· One must ask how much would the service, if operated, cost the polluters – i.e. the households.
· If County Council provided the service, a significant levy would be required, and thus privatisation was cheaper on the householder.
Local Authority Issues II – Stickers
· S.33 once provided that a local authority is under no duty to collect, or arrange for the collection of waste for any person
· If any provision of bye-laws made under s.35 regarding the presentation of waste for collection are not complied with
· Section 35(3) lists some of the kinds of things which bye-laws may deal with such as the types of receptacles – nothing about stickers
· Cork sticker system - Cork Corporation (Presentation of Waste in Wheel Bins) Bye-Laws, 2000.
O’Connell v Cork Corporation.
· SC – Geoghegan J/Hardiman J v Denham J (dissent)
· CC argument – simple – if bye laws not complied with – no duty to collect
· But – were the particular bye laws permitted under s.35?
· SC says no – 35 has a non-exhaustive list – he read it to indicate bye-laws deal with “physical” side of the presentation of waste – not stickers.
· Not mean that the householder was not required to pay for refuse collection.
· Legislative response - s.30 of Protection of the Environment Act, 2003
o New s.33(6)(aa) into the Waste Management Act, 1996.
o S.33(6) now reads that a local authority is under no obligation to collect waste if the person has failed to pay the relevant charge.
o Moreover, s.35(3) was amended by the insertion of a new paragraph (gg) – says bye laws can include sticker requirement
The Manner of Waste Collection
· Local authority itself – or arrange for private collection
· Regulation of private collection – s.34 waste PERMITS – application to LA
· Cheaper to apply for than waste licences
· Once got permit for each LA you collected in – changed under 2001 Act where activities are in more than one LA (Dublin City Council in Dublin)
· WM (Collection Permit) Regs 2001 – public submissions allowed on application
· Can be refused if convicted of certain offences – appeal to DC
· Permit sets conditions – type of vehicle, receptacles, technical and safety standards etc.
Collection Without Permits?
· S.32 – you cannot transfer waste to anyone – only to LA or authorised persons – i.e. those with collection permits
· De Burca – collectors had no permits – CC therefore making people break the law?
· S.32 allows exemptions - Article 5 of the Waste Management (Miscellaneous Provisions) Regulations, 1998
Section 32(2)…shall not apply in respect of the transfer of waste to a person who is not prohibited under [the WMA] from undertaking the collection recovery or disposal of the category of waste in question.
· De Burca – meant collectors were acting legally
· But…s.34 makes it quite clear that “a person other than a local authority shall not…collect waste…save under and in accordance with a permit”.
· Someone without a permit is prohibited from collecting waste.
· Article 5 provides that s.32(2) shall not apply in respect of a transfer of waste to a person who is “not prohibited”. Is a permit is required in order to be “not prohibited”?
Recovery and Disposal of Waste
The Provision of Facilities
· S.38 - local authorities to provide and operate or arrange for the provision or operation of the necessary facilities to recover and dispose of household waste arising within its functional area.
· Local authorities may also, but do not have to, provide for civic dumping facilities.
· Clearly can use privately run facilities
Licensing and Permits
S.39(1) of the WMA
A person shall not dispose or undertake the recovery of waste at a facility…save under and in accordance with a licence under [Part V]
However, s.39(4) provides that the Minister, by regulation specify that s.39(1) may not apply in respect of
§ The disposal in a specified manner of a specified class or classes of waste at its place of production or
§ The recovery in a specified manner of a specified class or classes of waste.
Waste Management (Permit) Regulations, 1998.
Part I – listed activities – no licences if
(i) the activity is being carried on in a manner which does not cause, and is not likely to cause, environmental pollution,
(ii) there is in force in relation to the carrying on of the activity a waste permit granted by the local authority in whose functional area the facility is located, and
(iii) the activity is being carried on in accordance with the conditions attached to the aforementioned permit.
Part II –no licences if have
(i) a certificate of registration has been granted by EPA
(ii) the activity is being carried on in accordance with the conditions specified in the Second Schedule – namely that it does not breach emission limits set under any legislation and does not or is not likely to cause environmental pollution.
· Effect of s.39(4) coupled with the Waste Management (Permit) Regulations, 1998 - less “intense” licensing (i.e. permit based) regime.
Applying for a Waste Licence
· Applications made to the EPA.
· Factors for decision
· The relevant waste management plan or hazardous waste management plan
· Any relevant air quality management or water quality management plan.
· Any environmental impact statement
· Such other matters related to the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity concerned as it considers necessary.
· The policies of government and minister in relation to waste management.
EPA can only grant a licence if it is satisfied that
§ Emissions from the site will not contravene relevant standards
§ Will not cause environmental pollution,
§ BAT will be used to prevent or eliminate or, where that is not practicable, to limit, abate or reduce an emission from the activity concerned
§ That the applicant is a “fit person”
§ Must be disclosure of certain financial details in respect of the proposed site or activity.
§ Consistent with the waste management plan or hazardous waste plan
§ That energy will used efficiently in the carrying on of the process.
§ That noise will not contravene regulations
§ measures will be taken to avoid accidents
§ Measures will be taken at the cessation of the activity to avoid the risk of pollution and to return the site to a satisfactory site.
Other Aspects of Application
· The Waste Management (Licensing) Regulations 2004 – more procedural issues
· Article 13 provides that an EIS must accompany an application if it the application relates to a development listed as requiring and EIS under the planning process.
· Public consultation required – objections can be made.
· Oral hearing may be held – EPA discretion
· Special JR is method of challenge
· S.41 - conditions to a waste licence – free to impose any – some guides listed in s.41.
Review of a Licence
Very like IPPC – discretionary and mandatory – nearly word for word similar.
Surrender, Revocation and Suspension of Waste Licences
Section 48 provides that a licence may be surrendered only if the EPA accepts the surrender.
EPA may require the person seeking surrender to carry out certain steps such as sampling, monitoring and investigations
Section 48A (as inserted by s.41 of the Protection of the Environment Act, 2003) deals with revocation and suspension.
Allows the EPA to revoke or suspend a licence if it appears to the agency that
§ The holder of the licence is no longer a fit and proper person
§ And that the circumstances which lead to that conclusion are serious enough to justify suspension or revocation.
· Appeal lies to HC
· Does not void ones obligations – still bound by licence
Division of Functions
With IPPC
· S.34 of the Protection of the Environment Act, 2003 inserts a new s.39A into the WMA.
· Certain chemical production activities are specified under the schedule to the Environmental Protection Agency Act, 1992
· However, chemical processing may engage in recovery and recycling.
· S.39A refers to the activity as regards the recovery and disposal of waste as the “first activity” and the other activity (i.e. chemical production) as the “second activity”.
· Which activity is dominant?
With Planning Code
· S.54 WMA - If planning has already been granted and planning conditions have been imposed in relation to emission limit values and if a waste licence is granted dealing with the same, then the planning conditions cease to have an effect.
· If a waste licence has been granted, then a planning agency cannot refuse planning permission on the basis that the development would cause pollution or impose conditions relating to the reduction, abatement or elimination of emissions.
· Is an obligation however, for consultation between EPA/planning regimes.
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