Environmental Science and the Law: Waste Management – © Brian Foley, 2006.

Waste Management

The Problem of Waste, the Landfill Solution and Beyond

Waste in Ireland, and indeed in most, if not all countries, is a serious problem. First of all, we create a lot of it. In 1998 the EPA estimated that 80 million tonnes of solid waste were produced in Ireland, with 64.6 million tonnes being produced by agriculture with rest being accounted for through industrial and municipal waste.[1] In the same year it was estimated that roughly 1.8 million tonnes of household and commercial waste was collected. Of the 80 million tonnes, it was estimated that roughly 680,000 tonnes was created by packaging waste, which would be predominantly created in the municipal, commercial and industrial sectors.

Second, aside from creating waste, we need to have somewhere for it to go. The traditional answer has been to use landfills – i.e. to bury the waste. Landfills, however, are now the least favoured method for dealing with waste. This is for two reasons. First, landfills can leak what is known as “landfill gas” which is one of the most serious man-made contributes to methane emissions, and consequently to the green-house effect. Second, we are simply running out of space. It was estimated by the EPA in 2004 that Dublin had 7 years of landfill capacity remaining, as did the Midlands, and Connaught. Cork and the North-east were estimated to that 20 and 19 years remaining capacity, but Kildare was said to only be “landfill viable” for 6 more years – until 2010.

Thus various measures have been taken to reduce reliance on landfills, notably the adoption of a landfill levy in June 2002 (€15 per tonne).[2] At the European level, Directive 1999/31/EC has placed a ban on using landfill for certain hazardous waste as well as stipulating targets for the reduction of municipal waste sent to landfills. The Directive stipulates that 1995 levels of landfill use are to be taken as a base level and goes on to require that by 2006, we were supposed to reach 75% of 1995 levels, then 50% by 2009, and 35% by 2010. At the policy level, the Directive has been taken on board with in the 1998 policy document Changing Our Ways, which set targets similar to the above including a 50% diversion of household waste from landfill to alternative waste management channels.

Also, the Waste Management (Licensing) Regulations, 2004 go some way towards implementing Directive 1999/31/EC into Irish law. Those regulations go into some detail in respect of what types of waste is acceptable in landfills and what is not. For example, liquid waste may not be accepted at a landfill, and nor can waste which, in the context of the landfill may be explosive of flammable or “infectious healthcare waste”[3] Moreover the regulations specify that the EPA must distinguish between landfills which accept non-hazardous and hazardous waste – such waste cannot be mixed in the one landfill. Article 50 of the Regulations specifies, in detail, what may be accepted at a non-hazardous landfill including general municipal waste.

As part of the attempt to increase the environmental-sensitivity of the landfill method, the regulations also impose an obligation on the controller of a landfill to prepare and submit to the EPA a “conditioning plan”. This, to put it basically, requires the provision of a range of information concerning the operation, finances and management of the landfill. In summary, landfills may be the least favoured option, but they still have a role to be play in Ireland, albeit one that is being phased out and increasingly regulated with a tough hand.

Moving Beyond the Landfill

One of the main objectives of the Waste Management Act 1996 was to provide a framework to avoid over-reliance on landfill. Thus, the Act provides a regulatory framework for the use and licensing of recycling and recovery activities. Recycling, of course, refers to “the subjection of waste to any process or treatment to make it re-usuable in whole or in part”.[4] Recovery, however, has a more general meaning. It refers to “any activity carried on for the purposes of reclaiming, recycling, or re-using waste…”.[5] In a nutshell really, recycling is the process itself, recovery refers to activities by which that process may be achieved. The Act also provides general regulatory powers to deal with problems associated with waste, and since 2001, has empowered the Minister to enact regulations imposing a levy on the use of plastic bags obtained at the point of sale in supermarkets, service stations or other retail outlets.[6] It also provides the basic legislative framework for the licensing of household waste collection and sets out local authority obligations in that regard and in respect of the provision of municipal waste facilities.

As with most Irish environmental law, the legislation dealing with waste management was enacted, primarily, to meet European requirements. The main piece of legislation is the Waste Management Act, 1996 which was enacted to meet obligations created by, amongst others, the Waste Framework Directive 75/442/EEC its amending Directive 91/156/EC.[7] The 1996 Act was amended by the Waste Management (Amendment) Act, 2001 and again by the Protection of the Environment Act, 2003. The Waste Management Act, 1996, however, does not contain an exhaust list of technical rules about waste management – rather it creates the foundation for the development of a comprehensive regulatory framework. Our focus will not be on the minutiae of regulations made under the Act, but on hopefully reaching a general understanding of the parent legislation coupled with some of the legal and policy issues arising thereunder.

The Role of Planning and Policy in Waste Management

Overview of Waste Management Plans

Section 22 of the Waste Management Act, 1996 (hereafter referred as “the WMA”), places a responsibility on local authorities to formulate a waste management plan for their respective functional areas.[8] The WMA, however, does permit local authorities to co-operate in relation to waste management policy – two or more local authorities are allowed to prepare a co-operative waste management plan. Section 24 also empowers the Minister to require (if he sees the need) two or more local authorities to co-operate in this way, even if they are not doing so voluntarily.

The plan is supposed to detail strategy and policy in relation the “prevention, minimisation, collection, recovery, and disposal of non-hazardous waste” and it must also specifically deal with the issue of hazardous waste.[9] Section 22 provides that the plan should be reviewed every 5 years.

Section 22(6)sets out basic targets which the Waste Management Plan is to achieve. The local authority, it seems, is generally free to decide on what objectives are necessary in order to reach the targets which are:

( a ) to prevent or minimise the production or harmful nature of waste,

( b ) to encourage and support the recovery of waste,

( c ) to ensure that such waste as cannot be prevented or recovered is disposed of without causing environmental pollution, and

( d ) to ensure in the context of waste disposal that regard is had to the need to give effect to the polluter pays principle,

S.22(7)provides, in somewhat greater detail (and subject to regulations which the Minister may make) that the Waste Management Plan must include information or have regard to various matters including the following

  • It must set forth its general policies and objectives in respect of the prevention and minimisation of waste and the respective priorities which are assigned to each of those policies and objectives.
  • It must set forth its general policies and objectives in respect of the management of its activities in relation to collection, recovery and disposal of waste, and again, set its priorities as between those activities.
  • It must set out what measures the local authority are going to take to prevent or minimise the production of waste.
  • It must contain forecasts and expectations in relation to waste. The local authority must detail estimates on the type, quantity and origins of waste expected to arise in the functional area and it must detail estimates on the type of quantity of waste expected be to be transported into or out of its functional area for disposal.
  • It must set out the relevant infrastructure available or required for dealing with waste.
  • It also has to describe the efforts made to enforce the WMA,
  • Lastly, it should identify sites where waste disposal or recovery has taken place and assess risks of environmental pollution created as a result.

It should be noted that the Minister, by regulation may alter the required scope and form of waste management plans. This has been done with the Waste Management (Planning) Regulations, 1997. These regulations go into some detail (too much to reproduce here) in relation to what kinds of matter must be dealt with a plan including specific headings under which quantities of waste must be estimated, details in relation to the operation of waste management facilities, assessments of future and likely trends which may effect waste policy including population increases and matters relating to pending EU law and an evaluation of alternative policy options.

Hazardous Waste and the EPA Role in National Planning

The EPA, under the s.26 of the WMA has a special function in relation to the creation of a National Hazardous Waste Plan. This provides something of a co-ordinating function because, as we have seen, local authorities must deal, in their Waste Management Plans with hazardous waste issues. When they are doing so, they are obliged to have “due regard” to the recommendations in the EPA’s national plan

Delays in Making a Plan

In De Burca v WicklowCounty Council[10] the applicant claimed that respondent county council had failed to prepare a waste management plan as it is obliged to. It is important to note that the claim was not that the County Council had failed in its obligations under the WMA but rather that it had failed in its obligations under earlier waste regulations – namely the European Communities (Waste) Regulations, 1979 which obliged the creation of a waste plan “as soon as possible” after those regulations were made, on the 18th December 1979.

The difficulty with this claim turns on a very legal point. It was accepted by O’Caoimh J in the High Court that a waste management plan had not been prepared within an appropriate time (nearly twenty years here!). However, the applicant was a member of the county council and was aware that the plan was currently under preparation. She sought a legal order known as mandamus to direct the County Council to prepare the plan. However, mandamus depends on first calling upon the person on who you seek it against, to perform the task – i.e. in this case, formally asking for a plan to be prepared which, it seems, was not done in this case and thus the order could not be granted. Moreover, the decision does not go into any detail in respect of just when the delay in preparing a plan under the 1979 regulations became too long. It is pretty clear that a delay of nearly 20 years beggars belief, but the decision offers no guidance on just how long the legislation would tolerate such delay.

It should be noted that whereas the legislation and De Burca do not seem to offer much guidance, s.22 provides that local authorities must make plans by “dates as may be prescribed”. In this regard, the Waste Management (Prescribed Date) Regulations, 2001 set the 14th of September 2001 as the prescribed date for making a waste management plan under s.22.

Public Consultation and the Waste Management Plan

Section 23 imposes a requirement for public consultation to take place before the adoption of a waste management plan. The intention to make or vary a plan must be published in a newspaper which is available in the relevant area telling people that the plan can be inspected at some specified place and inviting written submissions on it. This must allow a period of no less than two months for the public to inspect and present submissions to the local authority. The local authority is not bound by submissions in any way, but must consider them before it “decides as it sees fit”. In practice, local authorities tend to follow a two-step procedure where some form of consultation takes place before the preparation of a plan begins, and then the formal consultation process in relation to the “draft” document will begin.

As we have seen, planning authorities have a similar function in relation the adoption of development plans. However, unlike in respect of waste management plans, the role of public consultation has been the subject of several cases, which, in principle, seem quite relevant to the adoption of a waste management plan.

Keogh v Galway Corporation (No.2)[11]

In its development plan, the planning authority had indicated that it intended to provide halting sites in various locations in Galway. That plan was put through a consultation process and adopted with those sites identified in the draft plan. However, it was later decided to develop another halting side which had not been identified in the plan.

In the High Court, Carney J held that this would amount to a material contravention of the development plan. He appeared to argue as follows. The development plan is adopted on the basis that people have the right to have some form of input into it. Thus, the plan actually adopted, is the plan which has been open to consultation. If the planning authority could later propose things which were not mentioned in the development plan, then it has side-stepped the possibility that submissions would have been raised at the consultation process in relation to such “undisclosed” developments.

Roughan v Clare County Council[12]

In this case Barron J quite clearly approved the kind of reasoning used by Carney J in Keogh. Here, it was submitted that planning authorities are not required to include all possible development objectives which it may wish to pursue in its development plan. Barron J rejected this argument holding that it would circumvent the consultation process for the simple reason that people would not be able to make submissions in relation to development objectives which are not “on the face” of a draft development plan.

It would seem that the same logic should apply to a waste management plan. If, for example, a local authorities waste management plan says nothing about, for example, the collection of household waste, then it would seem arguable that it cannot, after the plan is adopted, decide on a particular way of collection. If it could, then it would be arguable that it has circumvented the point of the consultation process. However, one could equally point out that people could make submissions on the basis that the plan had nothing to say about collection. The clearer case may then be where a waste management plan says one thing, but where the local authority later decides to do another – perhaps where it originally indicates local authority responsibility for waste collection, but then later decides to privatise that service.

However, the decision in De Burca v Wicklow County Council may pour some cold water on the above. It was argued here that in the context of failure to prepare a waste management plan, Wicklow County Council could not make a decision to privatise household waste collection. If we pause for a minute, we can think about the situation where, for example, a waste management plan stipulated that a local authority would carry out its own refuse collection and which then changes its mind once the plan was adopted. There would be an argument that, in such a case, the value of public consultation had been lost. This case, however, concerned an absolute failure to adopt a plan and it would not be unreasonable to think that this is even worse from the perspective of consultation. O’Caoimh J rejected, however, that such decisions could only take place in the context of an established waste management plan so long as the other requirements of the WMA are met.

De Burca does not really address the issue in any depth, but it does seem to found an argument that a waste management plan does not “hem in” a local authority in the same sense that a development plan does. On the one hand, this is reasonable enough – after all there is no such thing a “material contravention” of a waste management plan. On the other hand, the decisions in Keogh and Roughan were not made on the basis that the planning authority was engaging in a material contravention of the development plan, but on the basis of the public role in the consultation process. It would seem, then, to be something of an open question.

General Obligations Provisions Relating to Waste Prevention and Recovery

There are two general obligations contained the WMA. The first is that under 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. This, of course, seems quite vague. Consequently, the Minister is empowered to make regulations which specify just what may count as “reasonable steps” for the prevention of minimisation of waste which people carrying on the relevant activities are obliged to take.