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The Vacuum - Issue 18 - Waste spacer The Vacuum - Issue 18 - Waste
What is Waste?
by Brian Jack
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In recent years the management of waste has been an Issue that has increasingly come to the public attention. This is in no small measure due to the fact that waste management has also been high on the agenda of legislators and policy makers. In particular the European Community has shown a great deal of interest. During the period since 1st January 1973, when the United Kingdom and Republic of Ireland both joined, the European Community has adopted a wide range of legislation dealing with different aspects of waste management. Recent examples of this include legislation dealing with topics such as end of life vehicles and also waste electrical and electronic equipment.
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The European Community has also stated that its waste management policy is based upon a strategy under which it seeks to place most emphasis upon preventing the creation of waste in the first place, then next promoting the recycling of waste and finally ensuring that waste which has been produced and cannot be recycled is safely disposed of. These policies form the three parts of the so-called 'waste management hierarchy'.
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However, the Issue of waste management is equally bugged by a fundamental problem. This is the question of identifying what exactly is meant by 'waste'. At one level this is relatively simple. In European Community law 'waste' is identified as being any substance or object that the holder discards or intends to discard or is required to discard. Equally, in Northern Ireland, this same definition underpins the operation of the Waste and Contaminated Land (Northern Ireland) Order 1997. This definition is designed to draw the net as wide as possible, in recognition of the fact that holders of waste have every incentive to get rid of that waste in the cheapest manner possible. This of course will not always correspond with a method of disposal that poses no environmental threat.
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However, as it stands, the definition of waste simply begs another question: when can a person be said to have 'discarded' a product or material, or to intend to 'discard' it? In many cases it will be very clear that something has been discarded. However,this is not always the case. The crux of this problem is the fact that if a product is defined as waste then its holder may then come under regulatory control, such as the waste management licensing system. Although a number of exceptions apply, for example in relation to household waste, the waste management licensing system will broadly require that the person possessing waste should obtain a licence before they can do things such as keeping that waste on their land, treating that waste in any way or disposing it within their land. This of course in turn then exposes that person to regulatory scrutiny and to expense.
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The European Court of Justice has dealt with quite a number of cases in which it was asked to clarify the meaning of 'discard'. In these cases it has been asked to advise national courts. By and large the Court has taken a wide approach to the issue. However no one, simple, clear test has been adopted. Every case will therefore have to be considered on its own merits. Past cases have established that the definition of waste covers all substances disposed off by their owners, irrespective of whether they have a commercial value to someone else. So for example, goods collected for recycling could still be seen to be waste until the recycling process was complete. Similarly the fact that manufacturing by products could be used as fuel, it has been held, may not prevent them from coming within the definition of waste. The essential question being whether such processes ought to be subject to regulatory scrutiny in order to protect human health and the environment. Elsewhere the European Court of Justice has also dealt with questions such as whether left over stone stored at a quarry had been discarded. The court here distinguished between two situations. On the one hand if there was a financial advantage to the holder in reusing that stone and also a high likelihood that it would be reused then the stone had not been discarded. On the other hand, where it was a burden to the holder and there was only a mere possibility of reuse then it would indeed have been discarded. However, one thing seems clear, questions will continue to arise as to whether, on the facts of a particular case, specific goods and materials can be said to have been discarded.
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