Implementation with monitoring
4.3 DIRECT REGULATION
4.3.1 Introductory remarks
‘Direct regulation’ (popularly referred to as a ‘command-and-control’ approach) is a policy instrument that relies on the legitimacy, authority and sanctioning power of the state for establishing rules of conduct or procedure through legislation, and inducing consent and compliance through implementation, including enforcement.31 In waste management, the command-and-control approach has been necessary to ensure that public health and the environment are protected, particularly from the impact of waste containing hazardous substances.
The application of both criminal and civil sanctions has played a vital role in achieving effective environmental protection. Importantly, the waste industry as we currently know it only exists because of legislation – otherwise waste would be dumped at the lowest cost. Without strong laws and regulations, together with their rigorous enforcement, legitimate businesses would be undermined by criminal operators, causing huge costs to society through health impacts, pollution, clean-up costs and the like.32
The command-and-control approach is based on information and monitoring and relies on inspection and enforcement for its effectiveness, which both can be administratively ‘heavy’ and costly in terms of institutional capacities required. As such this approach is often contrasted to economic instruments, a very different category of policy instruments that rely on market-based incentives and disincentives.33 In reality, however, the two regulatory models frequently operate in tandem, each providing its own advantages and disadvantages.
Countries have different (political) cultures and historical preferences for prevailing instruments, so the balance between the two categories may be different. It should be noted however that the command-and-control approach will remain preferred for situations involving high risks and serious consequences of non-compliance, such as, for example, the use of hazardous substances and the handling of hazardous waste.
Basically, in the field of waste management, direct regulation is used to define what is considered to be waste, and prescribe who is obliged or allowed to do what with it and how (to which standard). Figure 4.3 illustrates the essential issues to be regulated for an effective waste management system.34
Legislation usually comprises two ‘layers’. The first of these is so-called framework legislation,35 which, as the term suggests, defines a ‘framework’ that sets the stage by establishing definitions, responsibilities and obligations. The second layer of legislation comprises the subsequent subsidiary detailed laws and regulations that serve to transpose the broad goals of the framework legislation into specific measurable obligations.
Framework legislation is the necessary first step to give legal status to the strategic goals and create a frame of reference for the subsequent detailed laws and regulations. Furthermore, it is easier to amend and keep subsidiary regulations up-to-date than it is to change a framework law. It is important to recognize this two- step approach, because in some countries the first step of enacting the framework is taken, but then the introduction of detailed regulations gets delayed, which in turn delays the concrete implementation activities.36 As introduced in Section 2.3, waste management happens because one or more main driving forces are at play: either the society is concerned about public health and the environment37 and/or it seeks to promote resource recovery from waste in support of sustainable development. As elaborated below, legislation will have a different focus depending on its goals and the specific driving force behind its development.
31 This is accomplished through formulation, enactment and implementation, including enforcement, of legally binding documents such as laws, directives, regulations, decisions, statutes, executive orders and the like. The exact terms for referring to these documents can vary, both for various documents within a country and for similar documents in various countries.
32 See Chapter 5, in particular Section 5.2.2 on the costs of inaction and Section 5.3.6 on the economic dimension of waste crime.
33 Harrington & Morgenstern (2004), listed in Annex A, Chapter 4, Economic instruments.
34 In the process of preparing legislation it is important to hold interdepartmental meetings where possible contradictions, overlaps and gaps can be identified and addressed;
also, consultations are needed to ensure synergies between national and municipal rules and regulations and targets. (A step-by-step description of how laws are made and transposed, including descriptions of formal processes and the reasons why each step takes place, is beyond the scope of the GWMO.)
35 If a country has expressed its consent to be bound by an international treaty, such as the Basel Convention, then it has the obligation to reflect the content of that treaty at the national level by adopting adequate legislation.
36 The importance of implementation, including law enforcement, is elaborated in Section 4.6, on social instruments.
37 In recent decades, environmental concerns have also been including global climate change.
Figure 4.3 Essentials to be regulated
WASTE HANDLERS PRODUCERS
RESPONSIBILITIES AND AUTHORITIES OF
ACTORS, INCLUDING FINANCIAL
PROCEDURES
PROTECTION OF HEALTH AND THE ENVIRONMENT RESOURCE
RECOVERY PENALTIES
FOR NON- COMPLIANCE
OTHER STRATEGIC
GOALS
DEFINITIONS AND SCOPE
WASTE WASTE HANDLING
HANDLERS PROCESSES
COLLECTION TRANSPORT
TREATMENT
PLANNING AND CONSULTATION
TENDERING
LICENSING PERFORMANCE MONITORING AND
REPORTING
STANDARDS FOR OPERATIONS STANDARDS FOR FACILITIES
MATERIALS NUTRIENTS AND
ORGANIC MATTER ENERGY
GOVERNMENT NON-HAZARDOUS
V. HAZARDOUS END-OF-WASTE
WASTE GENERATORS
IF NOT IN COMPLIANCE
TO WHAT STANDARD
HOW TO COMPLY WHO HAS WHAT RESPONSIBILITIES
WHAT IS ADDRESSED
4.3.2 Legal definitions and classifications
Legal definitions and classifications are vital to the correct application of waste legislation. Ideally, they provide clear and unambiguous guidance as to (1) what materials are considered to be waste, what is hazardous waste (in other words, what materials are within and outside the scope of the law), (2) who the actors are to whom the obligations will apply; (3) what constitutes particular waste handling processes (including prevention, recovery and disposal), operations and facilities. If a substance or a material is designated by law as waste, its handling and processing have to comply with pertinent waste legislation. This has direct, and often substantial, financial and other consequences for both waste generators (to be) affected by the legislation and for the regulator in charge of enforcement. The legal definition of waste is also of great consequence for materials recovered from waste, especially in cases of movement of waste from one country to another and regional approaches among countries such as SIDS.38
In particular, classification of waste into the categories hazardous versus non-hazardous is of great consequence, as technologies associated with the management of hazardous waste tend to be much more costly than those for non-hazardous waste. This makes legal definitions and classification tremendously important for the parties involved.39 Establishing these definitions is therefore an intense political process in which diverse interests are manifested, contested and negotiated, so as to collectively arrive at acceptable definitions. In that context, scientific knowledge on innate – hazardous and other – properties of waste substances is only one of the factors that play a role, along with political or economic implications, viability of implementation, and social
38 This is discussed in Section 4.3.5 below, on legislation for resource recovery.
39 For example, a spirited discussion is ongoing on whether e-waste should be classified as hazardous waste.
Waste governance 137
acceptance. Various industries may lobby their governments to exempt ‘their’ materials from designation as waste so as to avoid the costs associated with compliance with strict environmental regulations pertaining to waste. The already difficult task is further complicated by the uncertainties inherent in scientific knowledge on risks associated with exposure to (waste) substances.40
Finally, particularly relevant for resource recovery from waste is legislation establishing the so-called end-of- waste criteria, which determine under which conditions a waste material ceases to be designated as waste and obtains the status of a product. Such legislation creates legal certainty and reduces administrative burden for the handlers, especially in transport and shipment. Conditions include its suitability for specific purposes, its quality and compliance with pertinent technical standards, as well as the existence of market demand for it.41
4.3.3 Public health legislation
Protection of public health is always the foremost policy goal and principle related to waste management. Due to its importance, this goal is translated into laws that clearly define who is responsible for it. Commonly, it is the waste generator. For generators of MSW, municipalities or counties or a similar level of local government as the ‘proxy-generator’ have a legal responsibility for ensuring that the waste is indeed collected and removed from waste generators’ premises as well as from city streets and public spaces in a safe and timely manner.
The principle of protection of public health is often combined with the ‘polluter pays principle’,42 so that local authorities organize a functional waste system and provide services (or arrange for services to be provided) while (at least the larger) waste generators pay. The municipality’s responsibility is usually further elaborated in local by-laws, which stipulate whether the local authorities will engage their waste department to provide the services itself or will instead engage a third party as a service provider.43 For such a collaboration with others and outsourcing of waste management services to be fruitful and successful, a number of boundary conditions ought to be met; these are discussed in Sections 4.7 on stakeholders and 4.8 on government as a stakeholder.
Based on the same principle, commercial and industrial generators are responsible for arranging that their waste is adequately taken care of.
4.3.4 Environmental legislation
In response to environmental concerns, waste-related legislation prescribes measures of environmental protection required for the physical infrastructure, the ‘hardware’ of a waste management system, thus particularly focusing on facilities, including restrictions on their location. Environmental legislation can also establish legal liability for environmental damage, based on which economic instruments such as mandatory insurance are developed. These are further discussed in Section 4.5.1.
The legislator may choose to formulate environmental legal requirements either as a specific technology or as an environmental performance standard for any technology that may be installed in waste facilities, or it may use a combination of the two approaches. Each of these two formats has advantages and disadvantages, as discussed in Box 4.7.
40 The process is even more complicated if it involves multiple countries, such as the 183 Parties to the Basel Convention, http://www.basel.int/Implementation/LegalMatters/
LegalClarity/tabid/3621/Default.aspx.
41 Article 6 of the Directive 2008/98/EC on waste (the EU Waste Framework Directive) is an example of such legislation, available at: http://eur-lex.europa.eu/legal-content/
EN/TXT/PDF/?uri=CELEX:32008L0098&from=EN. End-of-waste criteria for individual waste streams are available at: http://susproc.jrc.ec.europa.eu/activities/waste/
index.html. Topic Sheet 12, found after Section 4.3.5, shows how end-of-waste can be implemented in practice for compost.
42 This and other guiding principles in waste policies are presented in Annex C under Glossary of guiding principles.
43 Outsourcing options are elaborated in Section 5.6, on financial models for delivering MSWM services.