Volume 14: Responsibilities for Human and Animal Health
8. Pollution control and waste disposal
PART II: POST-1986 CHANGES TO WASTE AND POLLUTION CONTROL
The European context
The Waste Framework Directive
The 1991 Amending Directive
Other European waste legislation

The European context

8.65 European legislation has increasingly influenced UK waste and pollution controls since the Framework Directive on Waste of 1975 (75/442/EEC as amended). Before 1986, only the Special Waste Regulations 1980 had resulted directly from a European waste directive (in that case the Toxic and Dangerous Waste Directive 1978 (78/319/EEC), but after 1986 more and more UK waste and pollution legislation gave effect to Community Directives and Decisions.

The Waste Framework Directive

8.66 The essential foundation of European waste legislation was the Waste Framework Directive. Its ethos was indicated in the preamble:

Whereas the essential objective of all provisions relating to waste disposal must be the protection of human health and the environment against harmful effects caused by the collection, transport, treatment, storage and tipping of waste.

8.67 Article 1 of the Directive defined waste as 'any substance or object which the holder disposes of or is required to dispose of pursuant to the provisions of national law in force', and disposal meant 'the collection, sorting, transport and treatment of waste as well as its storage and tipping above or under ground and the transformation operations necessary for its re-use, recovery or recycling'. Article 2 paragraph 2 then identified the categories of material excluded from the scope of the Directive. These included wastes which were covered by other Directives, including waste water and gaseous effluents, and the following:

animal carcasses and the following agricultural waste: faecal matter and other substances used in farming.

8.68 The key provision of the Directive was article 4, which sought to ensure that waste was recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular without:

1. risk to water, air, soil, plants or animals; or
2. causing nuisance through noise or odours; or
3. adversely affecting the countryside or places of special interest.

8.69 A judgment of the European Court of Justice reinforced this objective by stating that the article 'indicated a programme to be followed and sets out the objectives which Member States must observe in their performance of the more specific obligations imposed on them by articles 5-11 of the Directive concerning planning, supervision and monitoring of waste disposal operations'. ¹

8.70 Article 3 of the Directive had the relevant objectives of encouraging the prevention, recycling and processing of waste, the extraction of raw materials and energy, and any other process for the re-use of waste. Member States were to establish or designate 'a competent authority' (or authorities) to be responsible for planning, organisation, authorisation and supervision of waste disposal operations and these bodies had to draw up plans as soon as possible relating to the type and quantity of waste, suitable disposal sites, general technical requirements, and any special arrangements for particular wastes (articles 5 and 6). Article 8 required there to be a licensing system for any disposal installation or undertaking and these had to be periodically inspected by the competent authority to ensure that the conditions of the permit or licence were being fulfilled. Article 11 introduced the 'polluter pays' principle for the cost of waste disposal; ie, that it had to be borne by the holder of the waste and/or previous holders or the producer of the waste.

The 1991 Amending Directive

8.71 The 1975 Directive was intended to come into force within 24 months of its notification to Member States; that is, by August 1977. In the United Kingdom, it did not come into force for almost 20 years, and was amended by Directive 91/156/EEC before being implemented in this country. Although the later Directive continued the same general waste management philosophy, by seeking to protect human health and the environment from harm caused by pollution in waste, it did introduce changes significant to this Report. The definition of waste in article 1 now meant 'any substance or object in the categories set out in Annex I which the holder discards or intends or is required to discard'. The Commission was required to draw up, not later than 1 April 1993, a list of wastes belonging to the 16 categories listed in Annex 1, which would be periodically reviewed and amended. Article 1 also defined the terms 'producer', 'holder', 'management', 'disposal', 'recovery', and 'collection', with disposal and recovery being defined by detailed lists of operations contained in Annex II of the Directive.

8.72 The definition of agricultural waste, excluded from the scope of the Directive by article 2, was also amended to 'faecal matter and other natural, non-dangerous substances used in farming'. Article 3 now required Member States to take appropriate measures to encourage the prevention or reduction of waste production and its harmfulness, in particular by, inter alia, the development of appropriate techniques for the final disposal of dangerous substances contained in waste destined for recovery. Two important principles of waste strategy were introduced by a new article 5. Firstly, an integrated and adequate network of disposal installations had to be established by Member States, taking account of the best available techniques not entailing excessive cost (the BATNEEC principle). Secondly, it required that this network enabled waste to be disposed of in one of the nearest appropriate installations, by means of the most appropriate methods and technologies, in order to ensure a high level of protection for the environment and public health (the proximity principle).

8.73 Other significant amendments included the need for all establishments or undertakings carrying out waste recovery operations to hold a permit from the competent authority (new article 10), and for exemptions from disposal licences or recovery permits to be granted for establishments or undertakings either carrying out waste disposal at the place of production or carrying out waste recovery. These exemptions were permitted only if the competent authorities had adopted general rules and conditions for the exemptions, and if the principles of article 4 ² were observed. The two important exemptions relevant to this Report were contained in the list of recovery operations at Annex II B:

R10 Spreading on land resulting in benefit to agriculture or ecological improvement, including composting and other biological transformation processes, except in the case of wastes excluded under article 2(1)(b)(iii) (Animal carcases and agricultural waste as defined).

R11 Use of wastes obtained from any of the operations numbered R1-R10.

8.74 The amended Waste Framework Directive was to be implemented by the Member States through laws, Regulations and administrative provisions by 1 April 1993. In Great Britain it was implemented principally through the Waste Management Licensing Regulations 1994, which are considered later in this chapter.

Other European waste legislation

8.75 Other European legislation which related to waste and pollution and which is relevant to this Report dealt with specific or specialised aspects of these subjects. The main Directives and the legislation in Great Britain which implemented them were as follows:

Table 8.1

8.76 Community policy has therefore had a major influence on waste and pollution legislation in Great Britain from at least as early as 1990. The integration of the protection of human health and an environmental dimension are features of all Community policies which arise from the integration requirements of the Treaty of Maastricht. These requirements are set down by way of a series of objectives including:

1. To preserve, protect and improve the quality of the environment.
2. To protect human health.
3. To secure prudent and rational utilisation of natural resources.
4. To promote measures at international level to deal with regional or world-wide environmental problems.
5. To secure a high level of protection concerning health, safety, environmental protection and consumer protection.

8.77 Accordingly, the underlying theme of European waste and pollution legislation is in all cases to protect human health and the environment. In this, it differed from much of the earlier legislation in Great Britain which had focused on the handling and management/containment of waste. This emphasis shifted substantially after 1986 as the effect of the European Directives fed through.