Responsibility for the disposal of waste does not end when it is collected by a waste contractor. This responsibility is known as 'producer responsibility' and has a statutory and common-law basis.

Environmental legislation applies the 'polluter pays' principle, which can impose personal liability on the directors of a company where it is proved that they did something, or failed to do something, that resulted in pollution being caused. Because of this, a producer of waste must be very careful in the manner in which their waste is disposed of and it follows that it cannot just contract with a third party to remove and dispose of waste.

If the disposal of waste is not done in accordance with legal requirements, the person who purports to transfer the waste (in this case, the healthcare facility) will be deemed to be a 'holder' of waste as well as the person to whom the waste is transferred (the waste collector). If deemed to be holders of waste, healthcare facilities will be subject to onerous conditions and obligations under environmental legislation.

An authorised collector of waste is an entity that holds a waste collection permit issued by the local authority, which in turn will notify the Environmental Protection Agency (EPA). The waste will then be transferred to an operator of a waste facility licensed by the EPA. It is advisable to ensure that the waste collector has a valid waste collector's permit and that the waste operator has a valid EPA licence.

The waste collector should be asked where the waste is being brought to and it should be confirmed that such a facility is a designated disposal site that has been approved by the EPA. There are a number of such facilities in Ireland.

It should be noted that waste disposal operators have come under increasing pressure from the Revenue Commissioners, in particular in relation to VAT payments. Routine spot checks are being carried out by the tax authorities, which may in turn give rise to Revenue audits. It has been discovered that some collectors have not been paying VAT and there have been a number of 'phoenix' companies in the disposal industry.

In recent years, there has been an intensification of action against illegal waste activity. In particular, the Wicklow County Council v. Fenton & Others decision has had a far-reaching impact. This case related to the illegal disposal of hazardous clinical waste in an unauthorised landfill. The judge upheld the principle that the 'polluter pays'. He interpreted it so strictly that orders were made against the two directors of the waste company personally. The landowner, the waste operator and the two directors were joined in the proceedings and, although it was attempted, the hospitals that produced the waste were not joined because of a legal technicality.

It is possible that in future the generators of the waste will also come under the 'polluter pays' principle in such a situation.

Hazardous waste is defined by the EU as waste that may have particular health and safety and environmental concerns. The Hazardous Waste Directive sets out specific requirements when handling hazardous waste. One of these is that hazardous waste should not be mixed with other wastes unless the local authority has granted permission. Such waste must be labelled and packaged. The law also sets out certain conditions in relation to hazardous waste, for example, the Waste Management Act 1996 states that 'a person shall not hold, transport, recover or dispose of waste in a manner that causes or is likely to cause environmental pollution'.

For further information please contact Jennifer Clarke.


Winter 2006.