Regulatory Guidance available on the Food Waste Regulations

Legislation requiring food waste segregation and recovery is one of a number of national initiatives that respond to EU policy mandating the reduction of the use of landfill. Commencing in 2010, it initially affected commercial sources of food waste, such as supermarkets, hotels, restaurants and canteens. A later initiative affecting householders progressively entered into force between 2013 and July 2016, with the inhabitants of all cities, towns and villages with a population in excess of 500 now having to be supplied with a food waste collection service.

Earlier this year, a detailed guidance note was issued to local authorities on the enforcement aspects of this legislation. This guidance explains the regulations on commercial and household food waste in some detail, reflecting the fact that, while the principle of having compulsory recycling of food waste seems relatively simple, putting it into practice is a rather more complex matter.

While the guidance is aimed at helping local authorities in their food waste enforcement duties, it provides helpful summaries and detailed explanation of the legal obligations that apply to the retail, hospitality and other obligated sectors, to food waste collectors and to operators of recycling infrastructure.

The guidance note is entitled “Waste Management (Food Waste) Regulations 2009 & European Union (Household Food Waste and Bio-waste) Regulations 2015 – An Enforcement Guide”. A copy can be found by clicking on this link.

New Obligations on State Bodies from the Climate Change Act

 

Photo © Albert Bridge

The Climate Action and Low Carbon Development Act 2015 was published in January 2016. While the main content of the Act has received significant press coverage, a facet less discussed in the public domain is Section 15 and, particularly, its ramifications. In essence, that Section places a legal obligation on all Governmental Departments and on many other state and semi-state bodies to consider climate change effects, and the need for greenhouse gas mitigation, when they are carrying out any of their other statutory functions.As the list of affected organisations subject to Section 15 of the Climate Action Act is very wide, it seems likely that many state bodies may be blissfully unware of these obligations. Besides local authorities, Governmental departments – including the Office of Public Works – and bodies such as Irish Water, this provision applies to all major hospitals, an Garda Síochána, EirGrid Plc, ESB Networks and Iarnród Eireann.   As will be shown below, while Section 15’s obligations might appear relatively slight, an abject failure by an obligated body to consider what Section 15 requires seems to invite a legal challenge in the national courts.

First Irish Solar Farms Approvals raise EIA Law Issues

Richborough Solar Farm, UK. © Oast House Archive

In July 2015, two planning appeals were determined by an Bord Pleanála on the first applications in Ireland for the development of solar farms. The reports on both of these appeals provide a useful analysis of the relevant issues relating to this type of development.

What is particularly interesting is how the matter of whether environmental impact assessment (EIA) was needed is considered. While an Bord Pleanála determined that neither project warranted EIA, these appeals do highlight some uncertainty about how this type of development fits into the EIA framework. As it is likely that further planning applications will be made to develop more solar farms in Ireland, it seems highly desirable that the national legislation is clarified to give certainty to planning authorities, developers and third parties about the relevant rules.

When is EIA Screening Necessary?

Screening is one of the two key stages at the start of environmental impact assessment (EIA), with the other being scoping. Scoping determines the extent of the actual EIA process and the content of the environmental impact statement (EIS); screening involves deciding whether EIA is needed at all.

While an inadequate EIA or EIS can be rectified by the submission of further information, getting the screening stage wrong can cause difficulties that may be harder to rectify. It may also have long-term ramifications on developers, even when they are blameless for a mistake done by the planning authority.

Solar Farms & EIA: a New Challenge to the Planning System?

While solar farms have become relatively commonplace in the UK, they have yet to be established to any extent in Ireland. The reason is that Ireland’s renewable energy subsidies are much less generous than our nearest neighbour’s. However, as the cost of solar panels has decreased significantly and developers have become more experienced with the technology, it is likely that increasing levels of applications will be submitted in the next few years. A recent German report predicts that solar power soon will be the cheapest form of electricity generation for many parts of Europe.

Surprisingly, Ireland does have a favourable climate for solar farms, which generate electricity from photovoltaic panels. Equivalent UK figures suggest that this latitude receives as much as 60% of the annual sunlight falling on the equator. The Wheal Jane solar farm in Cornwall gives a ready appreciation of the nature of the technology, comprising some 5,800 individual solar panels over four hectares. The total generation capacity is 1.4MW.

Two key challenges are presented to planning authorities by solar farms:

First European Court Ruling on Fracking and EIA

On 11 February 2015, the Court of Justice of the European Union (CJEU) ruled in Case 531/13 on whether exploratory drilling in Austria for shale gas required an environmental impact assessment (EIA). Besides clarifying whether exploratory drilling requires a mandatory EIA, the judgment also provides some more general rules on how the issue of a proposed project’s cumulation with other development is to be considered. This aspect of the Court’s findings seem helpful both in respect of decisions about whether EIA is needed and also in relation to the scope of such assessments.

Case C-531/13 was instigated by the Austrian municipality of Straßwalchen and 59 other applicants, who desired to challenge an authorisation issued by the federal government to allow test drilling. Austria’s national court referred the case to the CJEU

Wicklow Judgment endorses Waste Permit Review and Revocation Process

The High Court judgment of O’Reilly v Wicklow County Council has confirmed the mechanics of statutory process for the review and revocation of a waste facility permit.  It may also provide a useful analogy to clarify the essentially similar procedures that apply to waste collection permit holders.

High Court vindicates EPA approach to Waste Licence Enforcement

An interesting judgment was handed down by Mr Justice MacEochaidh at the High Court on 16^th January 2015: EPA v Midland Scrap Metal Co Ltd. This related to an appeal brought by Midland Scrap Metal Company Ltd against the firm’s conviction in the District Court in October 2012. The case involved a prosecution by the Environmental Protection Agency (EPA) for the contravention of Section 39 of the Waste Management Act. The judgment vindicates the EPA’s interpretation of that section and sets a key precedent relating to the scope of the waste licensing system in Ireland.

The case related to a waste facility that was licensed by the EPA and formerly operated by Greenstar Ltd at the Cookstown Industrial Estate in Tallaght.

Might the new Regional Waste Management Plans become obstacles to Waste Infrastructure Development?

Waste management planning has come a long way since it was first mooted in the early 1970s. At that time, the private sector waste industry was very much in its infancy, with the collection and disposal of non-hazardous waste being viewed as a public service. While this approach is still the norm in some EU states, the position in others has changed significantly. This is particularly the case in Ireland, with the virtual withdrawal of local authorities from waste collection and waste infrastructure provision.

The requirement for EU states to produce waste plans was contained in the original Directive on Waste (75/442), being continued to this day by the most recent version of that Directive (2008/98). However, as set out above, the context of waste planning has changed significantly, with the original “command and control” approach to the provision of waste collection and disposal infrastructure being subject to two key challenges:

• A much more complex waste management system now exists, which has moved from quite localised waste collection-disposal catchments to an extensive and intricate system of waste recycling, intermediate and final processing and waste recovery, coupled with EU-wide and, for certain recyclables, global waste transport;
• Various forms of commercial competition between different private sector waste collectors and infrastructure providers has become the norm in many countries, with this system perhaps exhibiting its most extreme version in Ireland.

In the penultimate week of November, all three Draft Regional Waste Management Plans were launched for public consultation.  Copies can be found at the following links, with the consultation period ending on 30^th January 2015:

• Southern Draft Regional Waste Management Plan 2015-2021
• Connacht-Ulster Draft Regional Waste Management Plan 2015-2021
• Eastern-Midlands Draft Regional Waste Management Plan 2015-2021

A key issue that all stakeholders in waste management in Ireland will be looking at is how the plans handle the issue of the provision of future waste infrastructure. This matter is addressed in Part 3 of each Plan. Already, concerns about the approach being taken have been raised by representatives of the waste industry, both in the pre-consultation period and since then. It would seem that a particularly vital issue concerns how the “need” issue is being portrayed; in other words, how the plans approach the key question of what infrastructure is required over the next 5-10 years, where it is needed and how much of it is needed.

Huge Fines on Greece and Italy demonstrate the Risk of Non-compliance with EU Environmental Law

On 2nd of December 2014, the Court of Justice of the European Union issued landmark judgments relating to two Member States’ non-compliance with EU waste law. Multi-million euro fines were levied on Greece (Case C-378/13) and Italy (Case C-196/13) for continued non-compliance with the Directives on Waste, Hazardous Waste and Landfill.

In its judgment against Greece, a one-off fine of €10 million was imposed, with the Court also ordering that a further €14.52 million should be paid for every six months non-compliance continues. The separate judgment against Italy mandated a lump sum fine of