Transcript General

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.
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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
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Prevention
Polluter pays
Proximity
Disposal near to place of generation
Self sufficiency in waste disposal and
recovery
• Directive 2008/98
European Commission
Unit ENV G4, Sustainable Production and Consumption
Framework Legislation
Waste Framework Dir.
(Dir.2008/98/EC ,
Hazardous Waste Directive
Waste Shipment Regulation
Reg. (EC) 1013/2006
Waste Treatment Operations
Incineration)
Directive 2000/76/EC
Recycling
Landfill
EU Standards, …,
as part of Recycling Strategy
99/31/EC
Waste Streams
Waste
oils
Titanium
Dioxide
Dir
75/439/EEC
Dir 78/176/EEC
repeal with
WFD
revision
Simplify in
2006
Sewage
Sludge
Dir. 86/278/EEC
Batteries and Packaging
Accumulators
and
Packaging
Dir. 91/157/EEC &
93/86/EEC
Waste
COM(2003)723
Dir. 94/62/EC
PCBs
Dir.96/59/EC
End-of-life
Vehicles
Dir 2000/53 EC
Waste
electric
and
electronic
equipment
Dir.2002/95EC
Restriction
of
Hazardous
Substances
Dir.2002/95EC
Mining
Waste
Dir 2006/21/EC
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
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 the
definition 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 or
recover 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
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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) .
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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.
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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 costeffectiveness of available remediation
techniques
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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
Actors
Mater Private and Blackrock Clinic have medical waste
Waste Disposal Company takes it
Mr and Mrs Moriarty are owners of the company
Fenton is owner of the dump where it is landfilled
The 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
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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
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Break link between waste and growth
Develop waste prevention programmes
Set targets for reuse and recycling
Have economic incentives
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• 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