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GAZETTE
NOVEMBER 1996
The Waste Management Act, 1996:
Obligations and Enforcement
by David Meehan, Solicitor
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implementing outdated European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.
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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
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.
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