Air Pollution Control
Public Health Legislation
The older public health legislation gives local authorities powers to deal with so-called statutory nuisances. These include nuisances injurious to health, accumulations, smoke and similar emissions.
Local authorities are bound to inspect their area for nuisances. They may serve a notice requiring the nuisance to be abated on the owner and occupier of the premises.
Local Authorities may take steps themselves to abate a nuisance. If the notices are not complied with, they may apply to the District Court for an orders to abate the nuisance. Nuisances include smoke and combustibles.
The Public Health legislation made provisions for the prevention of public of “statutory” nuisances. The penalties do not apply if the accumulation or deposits is necessary for carrying out a business or manufacture, it is not kept for any longer than necessary and the best means have been taken for preventing injury to public health.
Air Pollution Acts
The Air Pollution Acts is a modern comprehensive scheme of legislation to deal with air pollution. It also gives effect to European Union air pollution rules and standards. The Minister for the Environment has the power to specify environmental standards and issue guidelines under the legislation. The Air Pollution Acts are primarily implemented by local authorities. The EPA has powers to ensure local authorities carry out their functions.
Air pollution is the presence of a pollutant liable to be injurious to public health or have an injurious effect on flora or fauna or damage property or interfere with amenities or with the environment. The EU sets air pollution standards and limitations for particular types of pollutants.
There is a duty on the occupier of any premises, other than a dwelling house, to use the best practical means to limit and prevent air pollution. This duty applies over and above duties which may apply under a licence. It is an offence for an occupier of premises (including a dwelling house) to allow an emission of such a quantity to be a nuisance. This may be subject to a daily fine or imprisonment on summary prosecution or indictment.
The following are defences to the above-mentioned offences;
- the best practical means have been used,
- the emissions are in accordance with an air pollution licence,
- the emissions are in accordance with emission limit value,
- the emissions are in accordance with a special control area order,
- emissions of smoke in accordance with the regulations,
- the emissions do not cause air pollution.
Industrial Plant Licences
An industrial plant may require an air pollution licence. An Industrial plant includes plants used for certain listed industrial processes. These are listed in the legislation. Where an integrated pollution control licence is required, this substitutes for an air pollution licence. Environmental Protection Agency regulation under an integrated pollution licence applies to particular pollutant industries. Other plants are licensed by local authorities under air pollution licences. Plants not subject to the obligation to licence must still comply with emission standards prescribed by law.
Conditions may be imposed in an air pollution licence in relation to air pollution requirements. Conditions relate to a range of matters such as monitoring, compliance. Criteria in relation to the location of plants may apply. They may require air standards and emission limits. They may place restrictions on the use of particular fuels or impose monitoring requirements. Preventative measures may be required. Use of the best available techniques, not entailing excessive expenditure is a guiding principle.
The procedure for applying for an air pollution licence is broadly similar to that for a water pollution licence. A notice must be given in a newspaper specifying the requisite details. Published fees are payable. The Local Authority may request further information. It may carry out investigations necessary to decide the application. Third parties have a right to make submissions or observations. There is no obligation on the local authority to consult. The licence application must be considered within two months. Reasons must be given for the decision. There is a right of appeal to An Bord Pleanála.
The local authority in deciding on an application must have regard to its air quality management plan and any special control area in operation for the area. Local authorities must have regard to the general policy directives of the Department of the Environment. They should also have regard to EU legislation. They must be satisfied in granting a licence, that the best practical means were used to prevent and limit emissions, that the emissions will comply with the relevant limit values, that the air quality standards will not be contravened and that the plant emissions will not cause significant air pollution.
The licence applies to the particular plant and persons using it. A license does not necessarily immunise the plant from breach of any other law such as the civil law of nuisance and breach of other standards. For example, planning permission may also be necessary. However, a licence regularises compliance with the Act.
Each local authority maintains a register of licences which are available for inspection by the public. Local authorities must enter details of revised licences.
BATNEEC
The standard of best available technology probably not entailing excessive cost (BATNEEC) applies under EU legislation. It is a broad concept which relates not only to the actual technology but also to use, maintenance, operation, supervision, training, etc. The current state of technical knowledge and performance standards achievable by various technologies methods etc. must be considered. Regard must be had to the current state of technical knowledge, the requirements of the environment and the costs which would be incurred in providing, maintaining, using and operating the facilities.
The standards may require the use of newer technology, particularly where dangerous emissions are concerned. The cost of provision of the best practical methods and means is a relevant consideration. The issues of costs is set off against the seriousness of the pollution. If the emissions are relatively harmless, there would in practice be some relaxation of the requirements for the best practicable means. If the plant is near the end of its life, there may be less justification for requiring re-equipment and redevelopment.
Review of Licences
Licences may be reviewed not less than three years from the date of the last review. They may be reviewed at any time with the consent of the licensee. In certain situations, the local authority must review the licence where changes in the air quality standards apply or where there is a special control area order. Where the local authority intends to review a licence, it must notify the occupier of the plant concerned. An occupier must be given notice of the right to make representations. The occupier may be required to provide information.
The licensee itself can apply for the review of the licence, subject to following certain procedures. The local authority must in carrying out its review, have regard to the change in air quality and the development of technical knowledge. A revised licence may be issued as soon as the review is completed. A licence can be revoked. Any person can appeal the grant or refusal of a licence to An Bord Pleanála. The procedures are somewhat like the planning appeal procedure.
Alterations to the Plant
The occupier of a licensed plant or an industrial plant which is not subject to licensing requirements must notify the local authority of any proposals to alter or reconstruct the plant or alter any process. This is because it could affect emissions or cause new emissions. Upon receipt of notice, the local authority may require the plant to apply to review a licence or require a licence for a plant that is not already subject to licence.
The alteration or reconstruction may not be undertaken until the review has been completed or a new licence has been granted. Planning permission may also be required. The local authority must respond within one month of the date of notice by the occupier, with its decision as to whether a licence is required.
The local authority can make charges in accordance with ministerial regulations in relation to emissions. This only applies once the Minister makes regulations under the Air Pollution Act.
Special Controls
Planning authorities may make conditions relating to air pollution, as well as the full range of environmental considerations. Such conditions do not apply where a license is given to industrial plant under Air Pollution Act by a local authority or where an integrated pollution control license is granted by the Environmental Protection Agency
Special controls on emissions may apply in certain areas. They may apply to both industrial and non-industrial processes. The Orders will specify the area concerned and the measures required. Special control area orders are made by the local authority and confirmed by the Minister. There is certain public consultation involved.
The local authority may serve a notice on the occupier of a premises in a control area or q prospective control area, requiring alterations to the premises as required. There is a procedure whereby an application may be made to the District Court so that the lease of the premises must be varied to enable the works to be done. The Minister for the Environment may make a scheme of financial assistance towards the cost of works necessitated by an Order and notice.
The Minister may impose special controls on emissions. There is a Smoke Control Order in the Dublin area restricting the sale and distribution of bituminous coal. This also applies to Cork and distribution of non-smokeless solid fuels.
Air Quality Plans
Local authorities must make an air quality management plan. Local authorities may be directed by the Minister to make an air quality management plan. Two or more local authorities may make a joint plan. The plan must contain the objectives necessary for the prevention and limitation of air pollution and the preservation of air quality. They must be consistent with such standards and emissions as are prescribed by the Minister. Where the standards exceed those allowed in the plan, the local authorities must take remedial steps.
Plans must be reviewed every five years. Local authorities must have regard to the air quality management plan in deciding on applications for licences. They may depart from them. The procedure for the making and alterations of the plan is broadly similar to that for a development plan. Local authorities must have regard to the advice of the EPA.
There are national regulations providing for indicative levels for specified pollutants. regulations Most of them derive from EU law, which prescribes limit values for various pollutants. When the levels are exceeded, the local authority must prepare a comprehensive accessible air quality management plan or review or review an existing plan to ensure compliance with the limit.
The EPA can be required by the Minister to make an air quality management plan. The EPA advises local authorities in relation to requirements for air quality plans, limit values and margins for tolerance for pollutants. Very few air management plans have in fact been made.
Air Quality Standards
The Minister has the power to prescribe air quality standards. These provide for the permitted concentration of pollutants. These regulations effectively perfect the State’s obligation under numerous EU Directives prescribing limit values for certain of the more notorious pollutants. Local authorities may not grant licences if the emissions would exceed the air quality standard. If the standard is exceeded, the licence must be reviewed.
Occupiers of premises have a duty not to exceed the requisite emission values. Even if a local authority does not serve notice, the obligation to comply with the emissions standard still applies.
There are specific EU directives on certain types of plants. EU law requires that they must obtain licences which in Ireland, are an air pollution licence or an integrated pollution control licence. There are specific EU standards in relation to emissions from large combustion plants, municipal waste incineration plants, incineration of hazardous waste and control of volatile organic compound emissions. There are also EU directive ceilings on particular types of pollutants.
There are air quality standards and limits for sulphur dioxide, lead, nitrogen dioxide, benzene, carbon monoxide, ozone, arsenic and certain other substances in the air. The EPA is responsible for monitoring the level of pollutants in the atmosphere. There are emission and limit values for volatile organic compound emissions.
There are standards in relation to products which are designed to limit of prevent air pollution. There are detailed regulations in respect of petrol, diesel, gas, oil and other fuels.
The regulations on fuel oils specify standards and limits for certain environmentally dangerous substances within the compound/mix. The EU Directives have been translated into domestic law by various statutory instruments made under the air pollution and other legislation.
Monitoring and Enforcement
The EPA has advisory and oversight functions in relation to national air quality managing. The Environmental Protection Agency has enforcement powers under the Environmental Protection Agency Act.
Local authorities may serve notices requiring information in relation to any activity or anything used on a premises. They must specify the information they require. They may require periodic returns. This may also rise under planning conditions. Local authorities have powers to inspect, take samples and require information as necessary.
They are entitled to enter premises at reasonable notice. They may not enter a private dwelling house, without a warrant. The person entering may take samples, inspect records, documents, carry out inspections and require information.Local authorities must carry out steps to monitor air quality in emissions.
Local authorities can require the occupier of premises to carry out monitoring of the extent and effect of an emission.
Either the EPA or the local authority can prosecute breaches of air pollution legislation. Failure to comply with the Act is a criminal offence. If it is committed by a company with the consent, connivance or approval of directors, managers, secretaries or other officials they may be prosecuted. There are penalties on summary conviction of €1,270 plus €127 per day or on indictment, €12,700 plus €1,270 per day for continuing offences or imprisonment.
Occupiers of Premises
Occupiers of premises, other than a dwelling house, must notify the authorities as it is practicable after an incident which may cause air pollution. Failure to do so constitutes an offence.
Local authorities may require the occupier of commercial premises to monitor emissions and furnish records to them.Occupiers of premises must report instances which may cause air pollution, as soon as possible. This could include an accidental emission. There are penalties for failure to comply.
Local authorities may serve a notice on the occupier of a premises where there has been an emission, requiring specified measures to be taken. They must have regard to the air quality management plan and any special control area. The notice specifies measures which appear necessary to prevent or limit air pollution.
Where the owner of the premises does not consent, application can be made to the District Court where it is required to vary a lease or where the occupier must get a third party consent. The occupier may make representations in relation to the notice. This may result in a variation of it. The EPA has equivalent powers where a IPC is involved.
Injunction Against Air Pollution
Where urgent action measures are necessary the local authority may take steps to carry out operations or give assistance as are necessary to prevent or limit pollution. It may recover the costs from persons. There is a broadly similar power to in relation to local authority water pollution.
An Application can be made to the High Court for an Injunction to restrict or prohibit air pollution, where there is a serious risk of air pollution, where an emission from an industrial plant contravenes its licence or where a plant should have a licence but does not have one. The Court Order may require the emission to be terminated or mitigated. It may require payment of the costs incurred by the applicant or other person in investigating, mitigating and remedying the effects of the emission. The application may be made in the High Court, District Court or Circuit Court. The person named as respondent must have an opportunity to be heard in the proceedings.
Steps ordered by the High Court may be undertaken notwithstanding that they may otherwise require compliance with planning permission etc. A person who has suffered injury or loss or damage as a result of air pollution, may recover compensation. This is in addition to their rights under common law and other remedies. This right of compensation applies unless the emission was as a result of an act of God or third party over whom the common occupier had no control. It does not apply to an emission in accordance with a licence or emission values specified under legislation or an emission in accordance with best practical means as prescribed.
Civil Liability
Provision for civil liability is set out in the Environmental Protection Agency Act. Anybody suffering damage or loss because of emission, is entitled to claim damages from either the occupier of the premises from which the emission originated, or if it is caused by a third-party, from that party.
There are exemptions where the emission is permitted under a license lawfully granted, within its terms and condition. Similarly, an EPA license is a defence. There is an exemption where the emission is in accordance with best practicable means specified by EU legislation.