The Gazette 1996

GAZETTE

NOVEMBER 1996

The Waste Management Act, 1996: Obligations and Enforcement

by David Meehan, Solicitor

waste's nature is determined by how it is dealt with, and this can be established as a matter of fact, intention or law; determinations can, however, be rebutted. When a substance or object falls within the definition, certain specified activities in relation to it are regulated. Section 4(2) distinguishes hazardous from other wastes, on account of the greater risks they pose for environmental media. In order to be classified as a hazardous waste, it is necessary to conform to the appropriate criteria set out in the three parts of the Second Schedule to the Act. Accordingly, a substance or object must be of a certain type (Part I), in specified cases containing certain constituents (Part II) and in all instances exhibiting specified properties (Part III). Hazardous wastes are exposed to more stringent regulation than non- hazardous wastes. Persons and activities covered by the Act Persons in the private sector involved in the production, collection, holding, transport, recovery or disposal of waste are regulated in some manner by the Act. In general, persons involved in the holding, transport, recovery or disposal of waste are subject to the general duty not to cause environmental pollution in the course of their operations. Those involved in the collection, holding, transport, recovery or disposal of waste must do so in accordance with some form of public authority consent.' With respect to the public sector, the Minister for the Environment is to promulgate a waste programme with respect to public authority activities (section 30). This is to be followed up by ministerial guidelines and criteria to which public authorities are to have regard. Local authorities which undertake waste recovery or disposal activities must apply to the EPA for a licence.

In recent years, waste management has increasingly become environmental law's poor relation. Since 1977, substantial statutes have been passed on water and air pollution, and on integrated pollution control. However, in that time operators in the waste sector have only had to face the sparse requirements of statutory instruments implementing outdated European Community directives. Moreover, public authority scope for enforcement was severely constricted by paltry maximum penalties for criminal offences and by negligible civil law options. Indeed, enforcement action on waste was frequently taken through provisions in other environmental legislation, most notably the 1963 Planning Act and the 1977 Water Pollution Act? The law in this sector has finally been brought up to date by the Waste Management Act, 1996. The Act was passed by the Oireachtas in May 1996, and all of its provisions, except sections 6(2), 32(2), 57 and 58, were commenced on 1 July 1996 by ministerial order; 2 the Act's provisions in the latter three cases are considered below. This Act is the culmination of a long process of weighing up responses to Ireland's physical and legal waste problems. It is a piece of framework legislation which, as well as laying down general ground rules, places specific obligations on the private and, to a lesser extent, public sectors. Responsibilities have been clearly sign- posted, and the Minister has retained a number of discretionary options' which may be invoked should progress in waste management not measure up to expectations. For instance, undertakings involved in the production and management of waste are subject to a variety of rules, including requirements

David Meehan

to obtain licences, new statutory duties and enforcement sanctions, as well as to pressures to adopt proper management practices. This article will concentrate on the principal obligations introduced by the Act and on enforcement. 4

II. The Act's Scope

Definition of "Act" waste The technical nature of the Act is amply illustrated by the definition of waste itself. According to section 4(1) waste is taken to mean: "any substance or object belonging to a category of waste specified in the First Schedule or for the time being included in the European Waste Catalogue which the holder discards or intends or is required to discard, and anything which is discarded or otherwise dealt with as if it were waste shall be presumed to be waste until the contrary is proved." In practice, this means that if matter (i) either falls under one of the 16 headings in the First Schedule to the Act, or appears in the European Waste Catalogue and (ii) is in the nature of a waste, then it is governed by the Act. A

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