Disposal & Recovery
Waste Hierarchy and Recovery
The Waste Directive and the Waste Directive Regulations enact the waste hierarchy in Irish law. There is an order of priority of waste operations, prevention, preparing for reuse, recycling, and another recovery, including energy recovery and ultimately and as a last resort only, safe and environmentally sound disposal.
The hierarchy is a priority order and is more than guidance. Departure from the hierarchy is permitted only if justified by the lifecycle overall impact on the generation of waste.
Incineration is deemed recovery rather than disposal as it facilitates energy recovery and resumption and production of fossil fuel use.
Statutory Body Duties
Waste management is defined as including collection, transport, recovery and disposal of waste, including the supervision of such offers, operations, aftercare of disposal sites, and actions taken as a dealer or broker. The cost of waste management is to be borne by the original waste producer or current or previous waste producers in accordance with the polluter pays principle.
EPA and local authorities must take measures to encourage options that deliver the best environmental outcome in applying the waste hierarchy. They must promote compliance with the hierarchy in their waste management function. Waste producers and holders must ensure that waste is treated or recovered in accordance with the hierarchy.
Where recovery is not undertaken, producers and holders must ensure that waste undergoes safe disposal operations, meeting requirements in relation to the protection of human health and the environment.
Waste Disposal and Recovery
There is a preference in waste legislation for recovery over disposal. Disposal should be a last resort where there was no possibility of recovery.
There is a broad policy against incineration, which is not generally considered effective. Landfilling is not a favoured solution.
Waste legislation promotes the principle of self-sufficiency and disposal in the nearest appropriate installations by appropriate means and methods. EU policy seeks to secure that each State should be self-sufficient in relation to waste disposal. It discourages the exportation of waste outside of the EU.
States may take measures to prohibit or limit shipments of waste for disposal if it is done to implement these policies and principles. Restrictions on trade within the EU are allowed only for the protection of health, including the health of humans, animals and plants.
Waste I
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 II
The definition of waste is prospectively very wide. An overly wide definition of waste has been criticised as counterproductive. The subjection of products to the waste management scheme unnecessarily is likely to be inefficient.
EU policy emphasises the precautionary principle. Where there is room for uncertainty, a restrictive approach may be taken. However, it may just not justify an arbitrary decision. The European Court of Justice takes a precautionary approach in interpreting what constitutes an intention to discard.
The concept of discarding should be interpreted in light of the objectives of the EU and domestic legislation. Discarding includes an intention to dispose of and recover. Waste may include items that are capable of economic reuse and recycling.
By-products typically constitute waste. The fact that the by-product can be used does not necessarily mean that it is not waste. Materials that are stored indefinitely without any apparent use, may constitute waste.
Recovery
Different legal arrangements apply in respect of waste which is disposed of or recovered. Recovery generally implies the restoration of goods to a previous state or into a usable form.
In determining whether there is disposal or recovery, the overriding purpose of the operation and utility of the waste should be considered. The fact that waste might be capable of being recovered does not mean that the activity is necessarily recovery.
Waste has been held to be recovered when it is of sufficient beneficial use so as to eliminate or substantially eliminate the environmental harm posed by the original waste. Incineration may be disposed of in some contexts or recovered in other contexts, where it is used principally to generate heat or electricity.
The Minister may make regulations as to whether a particular activity is subject to the requirements of the Acts. The EPA may determine the issue in some circumstances.
Ceasing to be Waste
The question may arise as to when waste ceases to be waste. If it is recovered and represents a new useful product, it would likely cease to be waste. A key criteria is the diminution of the threat to the environment by the original waste and the yielding of materials of sufficient beneficial use. Some by-products may qualify not to be waste, where there is no intention to discard but are intended to be exploited and used.
Difficult questions can arise as to whether fuels and materials arising from the secondary burning of fuel constitute waste. This requires consideration of the particular circumstances, which differ considerably between industries. Secondary fuels may constitute low-grade waste.
Demolition rubble may be capable of being reused. Using it for a useful purpose is a waste recovery operation if it replaces other raw materials and conserves natural resources.
Demolition material is prima facie waste, even if it can be put to a useful purpose. In some cases, the material may not be waste where it has an immediate use. Where the material consists of adulterated material, which is capable of harmful effects, degradation or emitting gases, it is presumptively waste, and its reuse is recovery.
Licences
A licence is required for waste disposal and recovery. Certain recovery and disposal are exempted. Certain activities are covered by local authority / national office permits. Some waste recovery activities require a licence from the EPA. This requirement applies to both local authorities themselves and private parties.
In certain cases, a local authority permit suffices. The local authority itself does not require a permit. This includes certain incineration of waste, recovery of scrap metal and metal waste, recovery and disposal at smaller facilities of non-hazardous waste, but not at landfills.
Certain temporary storage of waste is not deemed recovery or disposal, such as to require a licence, although it may require a waste collection permit. Generally, the maximum duration is six months.
Certain other activities, such as the disposal of household waste within the curtilage of a property, deposit of litter, and transfer to local authorities, do not require licensing. Certain activities in connection with IPC licences are covered by that licence and not the waste licence.
Renewal
A waste recovery/disposal licence may be reviewed. New conditions may be imposed by the EPA.
There is a provision for public participation and publicity regarding the grant of the licence and the review. Written submissions and objections may be made. The decision is made taking into account the application, observations, certain legislative matters and ministerial guidance.
The EPA may seek information regarding the financial ability of the licensor to meet the commitments and requirements of the licence. A bond may be required. Conditions may be attached as with other similar licences. In order to grant a licence, the EPA must be satisfied that it complies with environmental legislation and that it will not cause environmental pollution.
The best available techniques must be used to prevent, eliminate, abate or reduce emissions. The activity must be consistent with the waste or hazardous waste management plan. The applicant must be a fit and proper person.
The relevant financial requirements must be complied with, energy use must be efficient, noise must not contravene regulations, relevant precautions must be taken, and steps must be taken to reduce, cease or avoid environmental pollution risk.
Waste Disposal Facilities
The chief executive of the Council has the power to grant planning permission which materially contravenes the development plan, provided that it is consistent with the waste management plan. The use of land for a waste disposal facility other than certain smaller ones is subject to a public consultation procedure.
The legislation places the obligation on the County Manager to make the relevant decision. The powers were taken from the elected members due to their failures to provide facilities.
Installations for the incineration treatment or landfill of hazardous waste or waste disposal installations for chemical treatment of non-hazardous waste of more than 100 tonnes per day require an Environmental Impact Assessment report.
Planning permission may be required for a waste facility if it involves a material change of use. Where waste recovery is licensed by the EPA, the planning authority may not impose conditions in relation to emissions. A planning authority may refuse planning permission for an activity, notwithstanding that a waste licence has been granted where the planning authority finds it to be unacceptable on environmental grounds.
Landfill
Landfill is subject to the EU landfill directive requiring a reduction in the use of landfill for waste disposal. It provides controls relating to the use and operation as well as post-closure treatment of landfill facilities. States must ensure the total operating costs are passed back to the consumer.
In addition to an ordinary waste management licence, additional requirements are to apply to a landfill facility. The operator of the landfill facility or other facility for the disposal of waste as may be prescribed must impose charges in respect of the disposal of waste. They are specified to apply in respect of particular waste types. They must ensure full recovery of costs, including operational closure restoration and remediation costs over a 30-year period.
EU legislation requires the categorisation of landfill into three waste types, namely hazardous, non-hazardous and inert waste. Operators must submit a site conditioning plan and demonstrate competence in managing the site. They must show adequate financial provisions to deal with maintenance and aftercare. Relevant standards must be followed. Pre-treatment of waste may be required.
The State is subject to targets to reduce landfill waste. The EPA regulates landfill sites and administers the relevant legislation. There are certain exceptions in respect of inert waste for redevelopment, restoration or construction purposes and for certain non-hazardous waste.
Landfill Levy
There is a landfill levy, charged per tonne. It is €75 as of 2023, It is collected by the local authority. The landfill levy applies in respect of waste disposal activities. It is chargeable for the disposal of waste at a landfill facility by means of an activity referred to in the legislation.
Operators of landfill sites and other waste disposal facilities must impose the charge. The purpose is to ensure the full costs of waste disposal are reimbursed. User charges are in addition to the landfill levy.