Contaminated Land Liability
The Environmental Liability Directive provided for general liability for environmental contamination. It is not retrospective. It does not apply to
- damage caused by an emission, event or incident which took place before 1st April 2009,
- damage caused by an emission, event or incident which takes place after the 1st April 2009, when it derives from a specific activity that took place and finished before this date and
- damage, where more than 30 years have passed since the emission, event or incident resulting in the damage occurred, i.e. where the event occurs after the date of commencement on but the consequences do not become apparent after 30 years.
Apart from the above, there is no direct Irish legislation on liability for contamination, equivalent to that enacted in the United Kingdom in 1995. However, various schemes of legislation in effect, make provision for historic contamination. Contaminated sites have been less of a feature in Ireland than in the UK. However, there are significant environmental risk sites in various types of business and operations, including certain agricultural processing, petroleum, unlawful landfills, scrap yards and gasworks.
Local authorities in their waste management plants must identify historic waste disposal and recovery sites. They are obliged to identify contamination of soil in their area. They must consider the risks and remediation measures which should be taken.
The waste management legislation provides for categorisation of land in terms of contaminants. The EPA has published assessment procedures for contamination. A site is regarded as contaminated if there are dangerous and hazardous substances, beyond the certain levels, where they may pose a hazard to human health and the environment.
Various Legislative Controls
Authorities may use existing environmental legislation to require landowners to deal with current, future and historic contamination. There is a range of legislation which is potentially applicable. This includes older public health, air, pollution, water pollution and waste management legislation. Planning permissions and environmental licenses may provide conditions as to remediation of historic contamination.
Other legislation which may apply, includes derelict sites, sanitary services, habitats, wildlife and health and safety at work. Much legislations provides local authority powers to require works to be done. If the works are not done, the local authority commonly has power to enter, do the works and charge the costs. In practice, the extent to which the powers are used vary considerably. It may be influenced by the extent to which the operator concerned can bear the cost.
In redevelopment projects, historical contamination is likely to be required to be remediated by planning conditions. The EPA has published a code of practice in relation to the investigation of historical contamination.
IPC licenses will commonly require remediation and clean-up when the relevant plant and activities are ceased. Financial security may be required. This may require remediation above the state and condition at the outset.
Contaminated Land and Waste
Contaminated land may constitute waste, if it includes or is comprised of discarded material. If such materials are stockpiled, if may be regarded as having been disposed of, and the landfill directive may apply. It may cease to be waste if it is treated, so that it is no longer contaminated.
Contaminated ground may be waste, even if the deposits are accidental or arise from an escape from an activity. The occupier or user may be deemed to be in possession of the waste and subject to the waste management obligations. Waste licenses must contain measures requiring remediation on the cessation of the activity.
There are special controls on hazardous waste. Producers must keep records for a minimum of three years. It must cover the quantity, nature, frequency of collection, transport and origin of the waste and its treatment where transferred to another person. The information must be supplied to the EPA or local authority. Hazardous waste must be placed in containers and packaged in accordance with EU standards. It cannot be mixed with other waste.
The transportation of waste requires a permit or licence. Non-hazardous waste is subject to local authority licensing. Hazardous waste is subject to more rigourous licensing. International transhipment of waste is subject to special regulation. The storage of waste, even on a temporary basis, may require registration with the local authority with a permit.
Hazardous substances are subject to special waste management provisions. Regulations require producers of such substances to keep and retain records for a period. They must detail the nature and origin of the waste, its treatment, collection, mode of transport and the details of transferees. Information must be made available to authorities on foot of notice given.
Hazardous waste must be labelled and may not be mixed with other waste. Requirements may be made by statutory notice to persons requiring that they defray or contribute to the cost of inspection and investigations. Breach of any of the provisions is a criminal offence.
PCPs are subject to special regulations. There are specific rules in respect of disposal, decontamination, labeling, warnings, storage and separation. There are requirements to notify the EPA. PCPs may not be imported, produced, supplied or used, other than as notified to the EPA. There are other requirements in respect of the handling and maintenance of PCPs.
PCBs must be dealt with in accordance with specific EU Directives, translated by waste management regulations. They must be disposed of as soon as possible. Equipment and containers must be decontaminated and disposed of. Labelling is required in relation to equipment and premises indicating PCB contamination. A source separation program must be put in place in respect of certain quantum of PCBs, where there is a component of other equipment. It must be removed and collected separately for recovery or disposal.
A holder of PCB or equipment contaminated by it, must give notice with prescribed information to the EPA. It is unlawful to import or supply PCBs or contaminated equipment or to hold or use PCBs or equipment, other than those notified to the EPA. There are certain other restrictions on use. The EPA has published a management plan for PCBs.
A very wide range of legislation applies to hazardous substances.
The Radiological Protection Act established the Radiological Protection Institute. This body controls and licences radioactive substances. See our section on health, safety and welfare to work in relation to the use of ionising radiation.
EU legislation deals with the transportation of radioactive waste and substances. One of the early objectives of the present European Union was the common management of an atomic energy.
There detailed controls on fertilisers and animal feedstuffs. They are licensed by the Department of Agriculture. A substantial amount of EU legislation existed in relation to the sampling and analysis of feedstuffs and certain prohibited contents. Feedstuffs may only be manufactured under Department of Agriculture license.
There are detailed European wide standards in relation to pesticides and biocides. There are limitations on permissible pesticide residue in agricultural products. Pesticides are licensed by the Department of Agriculture and must comply with new EU regulations.
The poisons legislation controls the retail sale of pesticides, poisons, weed killers veterinary and medical products. There are details in respect of labelling, transport, record keeping and storage. Certain products may only be sold by pharmacists. Others may be sold by pharmacists or licensed retail outlets.
Dangerous substances are subject to detailed control principally based on common EU standards. There are provisions relating to a range of substances which are potentially dangerous.
There are regulations regarding classification, packaging, labelling and transport of dangerous substances.
Certain substances are identified as dangerous. Certain substances are listed. New substances must be assessed by the manufacturer and classified.
Dangerous chemicals must display certain labels and be accompanied by a safety data sheet. They must identify particular hazards and show certain hazards symbols. Certain information must be given including details of the manufacturer. The information required is set out in legislation. It includes instruction, details on toxicity, stability, handling, storage and transport.
There are requirements to assess the risk to human health and the environment from existing and new chemical substances. New substances must be notified and submitted to the national authorities. National authorities notify European authorities.
Dangerous substances are subject to older domestic legislation administered by the Health & Safety Authority. Retail and private petroleum stores must be licensed by the local authority or the harbour authority.
There are detailed regulations on the transport of dangerous substances. Drivers must be properly trained. The Health & Safety Authority are the enforcement body in Ireland.
A person involved in activities involving asbestos is required to take steps to prevent and limit asbestos waste. There are specific provisions in respect of batteries. Certain types of batteries must not be supplied or advertised. Appliances must facilitate removal of batteries. Certain details must be given of battery contents and materials.
It is prohibited to discharge waste oils to waters or drainage systems. They must not be mixed with PCBs or other waste. Persons producing more than 500 litres a year must maintain records for two years with information on transfer and production.
Directives on incineration of municipal waste requires the operation of strict technical conditions for plants. It applied to existing plants and after a period, applied to all existing plants. There are specific provisions in relation to incineration of hazardous substance and waste oils, implemented by 2003 regulations. The EPA may apply the waste regime or IPPC regime to incinerators.