On 19 November 2009, John Gormley, the Minister for the Environment, Heritage and Local Government launched a report on international waste management, prepared by a group of Irish and international consultants led by Dr. Dominic Hogg of Eunomia Research and Consulting. The Eunomia Report (the Report) is a detailed analysis of the waste sector, which highlights the issues confronting waste operators (both at local authority and privatised level) in reducing waste levels and improving recycling rates through cost effective methods of waste management. Landfill Directive A key focus of the Report is the aim of diverting biodegradable waste from landfill, as required under the 1999

This has recently been replaced by new Landfill Directive, 2008/99/EC (2008 Landfill Directive), which will require Member States to apply significant criminal sanctions to breaches of a large number of EU Directives and Regulations, where prohibitive measures are required at national level. The 2008 Landfill Directive is required to be transposed into national law by member states by 26 December 2010. It is not clear at this point as to whether it will have any retrospective effect.

The main policy initiative highlighted in the Report in this regard is to achieve a position where less than 10% of waste produced in Ireland is consigned to landfill, with an obvious impact for operators of landfill sites. Accompanied by a recent increase from €15 to €20 per tonne in landfill levies at authorised landfill facilities, the principal waste policies are aimed at encouraging the use of segregated collection of biodegradable waste and the composting, recycling or reuse of waste as alternatives to landfill, with a view to Ireland reaching the targets specified at EU level. The landfill levy rate for waste disposed of at unauthorised facilities remains at €20 per tonne. Significant increases in landfill levies are also proposed in the Report, to take effect between 2010 and 2012.

Also discussed in the Report are the objectives of minimising waste at source and achieving sustainable production, consumption and waste material management, themes which will be the focus of legislation implementing the Waste Framework Directive 2008/98 EC (WFD). The WFD is due to be implemented by member states by 12 December 2010. It will replace and/or update much of the existing law on waste in Ireland. The changes are to include clarifications on the definitions of waste, recycling and recovery and the introduction of a new waste hierarchy to set the order of priority in which waste is to be treated and dealt with, as well as new thresholds on incineration, waste reduction and waste management targets.

The Report highlights the concept of producer responsibility as key to the implementation of the principal environmental objectives. It has been proposed at EU level that the existing "Producer Responsibility Directives" (including on packaging, Waste Electrical and Electronic Equipment (WEEE), End of Life Vehicles (ELVs) and Batteries), be supplemented by measures to achieve extended producer responsibility.

This is in accordance with the objectives set out in Article 8(2) of the WFD relating to the design stage of a product, the generation of waste in the course of production and the recovery and disposal stages of products which have subsequently become waste. In certain cases, it is not clear to what extent the producer is financially responsible for meeting targets or what penalties may apply if they do not meet such standards.

There is an ongoing issue of concern for all waste operators as to the potential for local authorities to impose requirements as to the direction of waste collected by the operators to specific facilities (as opposed to a type of facility consistent with the application of the principle of the waste hierarchy). The Report sets out a recommendation in this regard that the Waste Management (Collection Permit) Regulations 2007 be amended to make it clear that "commercial waste cannot be directed to a specific facility of any type, and that, as far as any residual commercial waste is concerned, the treatment/disposal of the material would be expected to be determined by the market and the relevant legislation in place". This recommendation reinforces the principle of the waste hierarchy, which requires waste management strategies to prioritise (i) reduction (ii) reuse and (iii) recycling of waste, in that order.

Compliance by waste operators with the new legislative developments and policy initiatives which are taking place is highly dependent on the availability of the appropriate waste treatment facilities in Ireland. These are noted in the Report to be lacking, particularly in respect of residual waste treatment capacity for solid recovered fuel. The diversion of biodegradable waste from landfill to other facilities will also depend largely on the definitions applicable to 'biodegradable waste', 'organic waste' and 'stabilised waste', some of which are to be further addressed in the legislation implementing the WFD.

The Report found, in comparing Ireland with other jurisdictions, that some countries focus upon ensuring that waste is not sent to landfill, but have a high level of incineration of waste, while others have more successfully implemented measures to encourage movement of waste into recycling. The Report suggests that where producer responsibility measures are in place, producers should be "fully financially responsible for delivering the services required to meet their obligation."

For further information please contact Zelda Deasy or Gerry Halpenny.

December 2009.