Environmental Law

1. Some Practical Problems Identified

The Waste Bill, 1995 has just been amended in the Select Committee on Finance and General Affairs. No-one can fail to notice that the Bill's timely passage through the D il and Committee stages has resulted in it being on course for enactment during Ireland's forthcoming six months EU presidency. There remains only the report stage in the D il and Seanad before the Bill will be signed into law and becomes an Act.

This proposed legislation is to be welcomed as the first attempt under Irish law to comprehensively deal with the issue of waste from the Irish national, regional and Local Authority perspective. Designed as a framework piece of legislation, future implementation of the policies laid out in its 88 pages (70 sections) will require detailed ministerial regulation.

The framework, however, is not as tight as it could be. There are a number of issues concerning practical compliance which this paper will address. These include:-

• Although purporting to give effect to Council Directive 91/271/EEC concerning urban waste water treatment [OJ. No. L135/40, 30th May, 1991], the Act is not intended to apply to sewage and sewage effluent, its treatment or discharge to waters unless such waste water originates from a waste holding, recovery or disposal site.
• The opportunity has been lost to give an Irish statutory basis to an explicit hierarchy of waste treatment commencing with waste prevention and culminating in recycling, recovering and re-use. The Select Committee unsuccessfully made such a proposal, setting out in detail a waste hierarchy which would affect management of waste policy according to a defined set of priorities.
• Historic site contamination has not been directly addressed. Whereas there is no provision for a register of contaminated sites, there are a number of anomalous provisions which refer to historic liability:-

(a)In circumstances where a waste licence has been transferred, the transferee will be held statutorily responsible for all liabilities, requirements and obligations under the licence of the transferor "regardless of how and in respect of what period, including a period prior to the transfer of the licence." [Section 47 (6) of the Waste Bill, 1995].

(b)Sections 57 and 58 of the Bill concern themselves in a non-licensing situation with the powers of the High Court in relation to remedies for unauthorised holding, recovery or disposal of waste or for doing so in a manner which does or is likely to cause environmental pollution. The Bill is structured in a way which deals not only with current and possible future occurrences of pollution [Section 57] but also with situations where someone "has held, recovered or disposed of waste in a manner that is causing or has caused environmental pollution" [Section 58 (1) (a)]. The person responsible for such historic pollution may be ordered not only to discontinue holding the waste, but also to recover it or dispose of it within a specified period and may also be ordered to mitigate or remedy any effects caused by doing so.

• There is the practical problem of how to deal with the mixed disposal site where both hazardous and non-hazardous material is dumped. In particular one must query how the Environmental Protection Agency ("the Agency") will go about its obligation of identifying sites where hazardous waste disposal has been carried on or where it has been carried on to a "significant extent". [Section 26 (2)(c) of the Waste Bill, 1995].
• Title to waste is addressed differently as between collection of waste and transfer of waste. Under the provisions relating to collection of waste by a Local Authority, it is provided that waste which is collected or recovered by a Local Authority "shall become the property of the Authority" [Section 33 (7)]. The type of waste meant to be covered by this section includes (a) "household waste", defined under the Act as waste produced within the curtilage of a building or self contained part of a building used for the purposes of living accommodation; and (b) "municipal waste", which is defined as household waste as well as commercial and other waste which, because of its nature or composition, is similar to household waste. However, because a reference in the Bill to waste must be construed as including a reference to hazardous waste unless the contrary intention appears, the question of title passing both in relation to hazardous and non-hazardous waste is apparently treated in the same manner.
• In relation to transfer of waste between one party and an ultimate disposer, the Bill provides that there is a general duty on the holder of waste not to transfer the control of waste to any person other than an appropriate person, namely somebody permitted or licensed to accept such waste (including the Local Authority). Where a person transfers the control of waste to an inappropriate (unlicensed) person in contravention of that general rule, the Bill provides for two consequences. Firstly, any act done or instrument made by a person to transfer title in the waste for that purpose shall not operate to transfer that title. Secondly, the person who has sought to unlawfully transfer the control of waste shall be deemed to continue to be a holder of the waste, in addition to the transferee who is the actual holder of the waste. [Section 32(7) of the Waste Bill, 1995].
• In practice, the means of passing title to waste or accepting responsibility for that waste, whilst not having passed title, is a matter which is negotiated. The Bill, when enacted however, will clearly identify persons who, regardless of any private commercial contractual arrangements, will be held liable at law for damage or harm caused by the waste, in that they will be responsible either as deemed or actual holders of the waste.

2. Key Points of Note

The legal responsibility for waste is allowed to extend to the various persons in control or possession of that waste as it progresses along its life cycle. The practical impact on this chain of responsibility of "the polluter pays" principle remains to be seen. Liability for offences under the Act is largely criminal and may be dealt with either in a summary manner or on indictment. Where offences are carried out by bodies corporate, not only does the usual wording drawing aside the corporate veil apply, but also we see specific reference to managing members of a body corporate.

Those members, together with a Director, Manager, Secretary or other similar officer of the company as well as anyone purporting to act in any such capacity, will be guilty of an offence committed by the body corporate where the consent, connivance or neglect of any of those persons is proved. The particular reference to Managing Members is as follows:-

"Where the affairs of a body corporate are managed by its members, Sub-Section (1) shall apply in relation to the acts and defaults of a member in connection with his or her functions of management as if he or she were a director of the body corporate". [Section 9(2) of the Waste Bill, 1995].

• There is a broad definition of "person in charge" which includes in relation to any premises, the occupier of the premises or a manager, supervisor or operator of an activity relating to the holding, disposal or recovery of waste which is carried on at the premises [Section 5 of the Waste Bill, 1995].
• There will be a new statutory obligation on owners or managers of supermarkets, service stations or other sales outlets to provide free of charge waste disposal bins for the disposal of waste packaging from products purchased at their premises. [Section 29 (4) (i)]
• There is provision for authorised persons to be empowered to enter any premises, halt and board vehicles, seize goods and machinery etc. in order to pursue any purpose connected with the Bill, with a small saver in relation to private dwellings which generally must receive at least 24 hours notice in writing.
• A deposit and refund scheme is to be operated not only by the producer but also by the retailer or distributor of specified waste.
• There is a new "life cycle assessment" requirement with which producers of specified waste must comply. This new concept recently amended into the Bill entails, in relation to a product, an assessment of the effects on the environment of its manufacture, distribution, marketing and use and also includes an assessment of its recovery or, as appropriate, disposal. The life cycle assessment includes a requirement to assess the use of energy and raw materials in, and the production of waste from any of the above processes. [Section 27 (1) of the Waste Bill, 1995].
• There is a specific newly amended focus on agricultural, commercial and industrial activities. Persons carrying on such activities must have "due regard to the need to prevent or minimise the production of waste" from that activity and take all such reasonable steps as are necessary for the purposes of such prevention of minimisation which may include reviewing the design of the product. As is the case throughout the provisions of the Bill, the Minister is empowered to make Regulations in this case specifying the steps, as respects any particular activity, which it shall be regarded are reasonable to take in order to achieve those purposes. When the Minister does make such Regulations, the Bill clearly states that any person who carries on such an activity "shall take those steps accordingly". [Section 28 (2) (a) and (b)].
• The Regulations referred to above will also possibly cover not only the keeping of specified documents, records and particulars and the giving of specified information to specified persons, but - and again this is a Select Committee amendment - it also may provide for the publication of specified information in relation to the conduct of a waste audit or the implementation and operation of a waste reduction programme.
• There is an active defence policy throughout the Bill. A person who can show that he or she has taken all reasonable steps or in the alternative can show compliance with the terms and conditions of any Licence or Permit or who in certain circumstances can demonstrate the adoption of an environmental audit or environmental management system, will be entitled to rely upon each or any of those matters as grounds of defence.

3. The Waste Bill Viewed in Context

The Bill cannot be viewed in isolation. It is part of Ireland's response as a Member State of the European Union to the obligation to increasingly harmonise the law on the topic of waste management and disposal. The historical background to the Bill is the 5th Environmental Action Programme, in place until the year 2000. That Programme contains as one of its fundamental aims the adoption of the policy of sustainable development. The Bill's future implementation will undoubtedly be affected by any future decision within the EU towards strict liability for environmental damage caused by waste.

For the present contextual background, it must be viewed alongside two other systems in operation within this jurisdiction. These are:

(1)the IPC Licensing System under Part IV of the Environmental Protection Agency Act, 1992; and

(2)the European Council Directive 94/62 on Packaging and Packaging Waste.

IPC Licensing System

As my fellow speaker Iain MacLean of the Environmental Protection Agency will be dealing with the topic of IPC licensing I do not propose to go into this area in any detail save to note that the IPC licensing scheme has recently been extended to waste incineration. Assuming that the conditions to be imposed on such waste related IPC licences will be broadly similar to those which have gone before, there will be an obligatory requirement to implement an environmental management programme which in itself has, thus far, included a waste reduction management plan. It will be interesting to see how such conditions will be made relevant for such activities.

EC Directive on Packaging and Packaging Waste

The Bill will enact a large number of European legal instruments including the EC Directive on Packaging and Packaging Waste. A new and separate structure is expected very shortly to be put in place under the Directive, in respect of which there are a number of important target dates:

Target                                   Date

Came into force:                        -  20th December, 1994

Implementation deadline:                -  30th June, 1996

Essential composition deadline:         -  20th December, 1997

Last date for non-complying                                         packaging to remain on market           -  20th December, 1999

Irish, Greek and Portuguese                                         derogated 25% recovery and                                               25% recycling deadline:                 -  30th June, 2001

Irish, Greek and Portuguese                                        derogated 50% recovery and                                               25% recycling deadline:                 -  31st December, 2005

European Council Review Date:           -  30th June, 2006. 

Objectives of Directive:

• To prevent harm to the environment.
• To harmonise the laws of the Member States concerning packing waste in order;-

to prevent Member States using packaging requirements as a barrier to trade, e.g. refusing goods on the basis that they are environmentally unfriendly since their packaging is not recyclable.

to prevent a distortion to trade, by one State having more stringent packaging waste, recovery and recycling requirements.

Scope of Directive:

The Directive covers all packaging and packaging waste placed on the market, whether released at industrial, commercial, office, shop, service, household or any other level, regardless of the material used.

Targets:

Ireland has gained a derogation from the general requirement that a minimum of 50% of packaging waste by weight will be "recovered", and 25% "recycled" by 30th June, 2001 (5 years from the implementation deadline).

In the case of Ireland (similar to Greece and Portugal) on the grounds of "the presence of rural and mountain areas" (Article 6.5 of the Directive) the Directive specifies that Ireland must attain at least 25% recovery and 25% recycling of packaging waste by 30th June 2001 and attain 50% recovery and 25% recycling by 31st December, 2005. These targets are due to be reviewed upwards by the Council by 30th June, 2006 (10 years after the implementation deadline).

The Directive allows Member States to exceed the maxima of 65% for recovery and 45% for recycling if the Member States can show to the Commission that the levels are not an arbitrary means of discrimination or a disguised restriction on trade between the Member States.

Requirements on the Composition of Packaging - Annex II:

By the 20th December, 1997 (3 years after the Directive's entry into force) Member States must ensure that packaging is only placed on the market if the essential requirements as to the composition and reusable make of the packaging are met (Article 9 of the Directive). However, packaging manufactured before 20th December, 1994 which does not meet the essential requirements laid down in the Directive can remain on the market until 20th December, 1999.

The Directive does not specify materials from which the packaging must be composed. Instead it states, for example, that the packaging must be manufactured in such a way as to enable it to be recoverable and/or biodegradable. But the Waste Bill does specifically provide that it may regulate products and their packaging, to include regulating the design of the product and its packaging.

Implementation of the Directive

There is no intention to immediately issue regulations under the Directive apart from those areas which may be regulated under the Waste Bill in due course. Instead, adopting a novel and pragmatic approach, the Minister entered into a dialogue with IBEC resulting in IBEC setting up a task force on the manner in which the Directive ought to be implemented in Ireland. The task force is expected to make its report to the Department in the very near future and certainly by Christmas 1995. No doubt the task force will have learnt from the German experience and the consequences on the market place in Germany of their industry's self-regulating in this area so that we can avoid having to cope with a gross imbalance in recyclable material over what should have been an effective reduction in packaging.

4. Current Liability for Environmental Damage due to Waste

Statutory Liability

Apart from the IPC licensing system, lately extended to activities involved in waste disposal, and packaging and packaging waste management under the relevant EC Directive, there remains a very real potential for legal exposure to environmental liability separate and apart from that envisaged under the Waste Bill, for poorly managed waste.

Common Law Liability

Unlike statutory liability which involves penalties for breach of a licence or permit, this potential liability arises under the pre-existing set of common law rules known as the torts of negligence, nuisance, trespass and the rule in Rylands -v- Fletcher (as recently amended by the English House of Lords).

Civil liability, accompanied by its remedy of compensatory damages, in contrast to (hitherto) relatively small court fines, can be a powerful motivator to industry to maintain an effective system of waste management. You will already be aware of the potentially enormous fines of up to IRœ10 million plus daily fines of up to IRœ100,000 which can be imposed for breaches under the Waste Bill. Of particular relevance is the fact that such fines undoubtedly will be channelled either to the Local Authority, to the Agency or to a "specified person" within the meaning of the Bill [Section 13 of The Waste Bill, 1995], thus directly funding those bodies. This fact must in time prove to be an incentive to fine more vigorously.

In addition, current liability for clean up costs and remediation is the direct responsibility of the polluter under an array of environmental legislation affecting the air and water which already exists, as well as under the Environmental Protection Agency Act, 1992 and as proposed under the Waste Bill.

The combined effect of current liability under common law and existing statute law together with the proposed new obligations under the Bill highlights the need for a determined and focused review on the part of producers of their waste products with a view to adopting a form of waste management appropriate to each producer. The Government's Policy Statement on Waste Management indicates that regulations will be brought in applying the "polluter pays" principle to certain priority waste streams, in particular, batteries, construction and demolition waste, electronic waste, end-of-life vehicles and rubber tyres. However, the product scope is vast, including wastes from paper, plastics, packaging and piping, liquids, metals, contaminated cans and containers and discarded computer equipment. The Bill imposes a statutory duty on holders of waste not to permit that waste to cause pollution.

5. New Obligations on Commercial Activities

It is not easy to draw any specific conclusions as to the immediate impact on individual businesses of the enactment of the Bill, precisely because it is designed as a framework piece of legislation. In the overall context of waste prevention and recovery, the Bill provides for wide ranging regulatory measures promoting waste prevention and recovery. This, in turn, may very well involve imposing obligations upon not only producers but also on distributors, on retailers and even on consumers.

The following are some examples of specific new obligations which may be imposed by the Minister under the regulatory provisions of the Bill on the industrial and commercial sectors:-

• Industrial, commercial and services sectors may be required to carry out waste audits and implement waste reduction programmes;
• There may be a controlled use of an acceptable logo or sign indicating good waste prevention practice along the lines of the Eco label.
• There may be an obligation to provide data to the Agency which the Agency will then publish, regarding the use and emission of specified toxic substances by an industry.
• Controls may be imposed in relation to sensitive raw materials, products and wastes.
• Controls may be imposed on the production, design, composition or use of substances, products, their components or packaging.
• There may be obligatory publication by businesses of reports on compliance with waste prevention requirements.
• There may be an obligatory taking back of used products or packaging by retailers/distributors;
• There may be a requirement to introduce a deposit and refund scheme for specific products or packaging;
• Obligatory setting of waste recovery targets may be required of specified recovery activities;
• There may be an obligation to operate a source separation programme;
• There may be an obligation to provide bottle banks and similar recovery facilities free of charge by retail outlets;
• There may be an obligatory imposition of charges for bags etc. at retail outlets;
• There may also be an obligation on consumers to return used products or packaging.
• Industry dealing with toxic emissions will be required to maintain a toxic emissions inventory which will be supervised by the Environmental Protection Agency. Its purpose will be to improve the quality of information to the public and encourage progressive reductions of targeted hazardous wastes in particular with a view to controlling or prohibiting products which may cause water pollution.

Within the proposed reorganisation of waste management at national and local level, we may therefore anticipate an increased cost factor and a greater exposure to liability under all of the above headings.

6. The Funding of Waste Management by the Polluter

As to implementation, in practice this will require serious funding. There is no money available for the day to day funding of the running costs of waste management as envisaged under the Bill. The only monies currently available, through a combination of EU funding and the exchequer's purse is earmarked to encourage the development of waste management strategies and recycling policies. Other than this essential research and development phase, which the Bill provides may be funded by the Agency or Local Authority, the Department of the Environment has got its message across clearly that it will use a two-pronged approach (and I use that term advisedly) in encouraging the producer to reduce the waste mountain.

Both the Agency and the Local Authority are empowered to apply what is known as "the polluter pays principle", identified in the Bill under the Interpretation Section as the principle set out in Council Recommendation 75/436/Euratom, ECSC, EEC of 3rd March, 1975 [O.J. No. L 194/1, 25th July, 1975] regarding cost allocation and action by public authorities on environmental matters.

The Agency in particular concerning its overall responsibility to oversee the management of hazardous waste, proposes to give effect to this principle in no uncertain manner. Proof of this intention can be seen in the way in which the Bill has recently been amended, by the removal of the words "insofar as it is practicable" so that the relevant section as it now is drafted, provides for the obligation to "have regard to the need to give effect to the polluter pays principle;" [Section 26 (2) (d)]

In order to implement the principle two clear methods of fund raising can be identified:-

1. The imposition of steadily increasing landfill costs;

2. Prosecutions resulting in large fines which can be channelled back to the Local Authority or to the Agency, whichever is involved in the prosecution.

7. The Costs of Landfill

The Department of the Environment's latest "Environment Bulletin" [November, 1995 Issue] confirmed that Local Authorities were recently invited to submit applications for financial assistance for waste management expenditure. For the period up to 1999, some IRœ30 million is planned for investment. A breakdown of that figure reveals IRœ18 million is earmarked to support municipal waste recovery facilities; IRœ10 million is proposed to support facilities for hazardous waste recovery; the remaining IRœ2 million is intended for waste strategy studies. The investment is part of the Solid Waste Sub-Programme of the Operational Programme for Environmental Services 1994 - 1999, co-financed by the European Regional Development Fund. The Department is waiting for specific approval from Brussels on the specific types of project to be assisted, but a spokesperson has indicated that the first tranche of monies to become available will be for waste strategy studies and for recycling infrastructure plans. Individual Local Authorities, the eight Regional Authorities and the private sector, as well as combinations of the above, are welcome to make submissions for funding in this area.

Landfill costs were recently discussed by the Environment Minister Brendan Howlin on RTE's radio programme, Morning Ireland. Costings in the region of œ70 - œ80 million per annum were given, of which Local Authorities only recoup approximately œ20 million. Current landfill charges clearly do not in any way reflect or cover the costs of running the landfills. Any new landfill proposed within this jurisdiction will, of necessity, have to comply with the proposed new strict technical and environmentally focused regulations under the Bill which will be costly both to implement and manage. There is no doubt but that the cost of dumping waste material at landfill sites in the not too distant future will be a multiple of the current costs. What that multiple will ultimately be remains to be seen, but indications are that a factor of at least 4 or 5 would not be far wrong.

8. Potential Areas of Legal Exposure

Since the polluter pays principle is to inform the scheme of regulations yet to issue under the Waste Bill, certain areas can be focused upon as potentially more costly than before. These include:-

• Primary responsibility for devising, operating and financing systems of return and collection of packaging waste will lie with the producers, importers, distributors and retailers. Failure to do so voluntarily will probably result in imposed recycling targets, deposit and refund schemes and take-back schemes, under the regulatory provisions of the Bill.
• A proposed Waste Licensee must prove itself to be a fit and proper person to carry out waste recovery and disposal operations and in this regard it may be required to provide substantial security in relation to financial commitments arising under the Licence.
• Property owners, occupiers and managers must be aware of their exposure where waste which is harmful in itself or which ultimately causes harm originates from the property. "Land" is defined under the Waste Bill as including its subsoil and the structures upon it. Thus, a property owner need be concerned not only about leaking underground storage tanks, but also must consider the possibility of harmful leachate emanating from the property though aquifers as well as the potential build up of natural toxic gases within buildings.
• As employers, the health and safety aspects of waste management and the potential hazards of waste cannot be underestimated. Whereas the Bill provides that certain offences can be successfully defended by proving that the person charged has operated the activity in accordance with a permit or licence, or has in place an environmental audit or environmental management system, this will not prevent a common law action being brought or indeed a claim under one of the various regulations under the Safety, Health and Welfare at Work Act, 1989.
• Lenders must be alive to the exposure to environmental damage where the lender steps into the shoes of the borrower company by managing it through receivership or effective shadow directorship. If the borrower company has recently been the transferee of a waste licence in relation to a waste activity where liability has already arisen for environmental damage, then the Bill provides for the transfer of that liability.

9. Conclusion

Overall, the view of industry as indicated by Dr. Mary Kelly of IBEC on behalf of the Task Force on Recycling is that the Waste Bill is a very significant development which will give waste management a much higher place on the commercial and industrial agenda. The manner in which the EC Directive on Packaging and Packaging Waste is proposed to be implemented by industry-led voluntary arrangements may be a very good indicator of the way in which the Waste Bill may be implemented. It could reasonably be seen as an initiative which could pave the way for a partnership between Government and industry in environmental protection, something which the writer would encourage and welcome. The legal view is typically somewhat more reserved, in that the real test and proof of this legislation must await the implementation of regulations in practice. Nonetheless, it would be wise to make provision for increased management costs, increased landfill costs, increased insurance costs and to appreciate that there will undoubtedly be an extension of potential legal liability as we move closer to the goal of sustainable development in Ireland.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.