The EPA has considerable powers in relation to the enforcement of environmental legislation. Its officers may enter premises at any time if they believe that there is a risk of environmental pollution from activities carried on at the premises. They may halt and board any vehicle and require the driver to take it to a particular place. 24 hours notice of an intention to enter into a dwelling house is required unless the occupier consents or a District Court warrant has been obtained.
EPA Officers have substantial powers including taking plans, recording information, photographing, videoing, recording, making tests etc. They may require occupiers or persons employed at the premises to provide information thought necessary for the purpose of exercising the powers.
If there is waste on a premises which constitutes an environmental risk, the EPA may direct the holder to take steps to remove or reduce the risk. If this is not complied with, EPA officers can take steps to ensure that the directions are carried out. The assistance of An Garda Siochana can be obtained.
There are extensive powers for the EPA and other authorities to require applicants for licences to furnish comprehensive information. Notices can be served, requiring persons including licence holders and various other connected parties to produce information and records in relation to waste.
This applies where there are obligations on individuals, license holders, waste dealers, shippers, brokers, etc. to keep information. It is an offence to fail to produce the requisite information. It is an offence to fail to produce the requisite information or give false or misleading statements.
The EPA is obliged to carry out monitoring of the nature and effects of emissions arising from the holding, recovery and disposal of waste. They have duties to, periodically inspect facilities for holding, recovery and waste disposal. They must keep records of their monitoring and inspection. They can require a person to undertake monitoring and require that the records be supplied.
Local authorities and the EPA have powers of administrative enforcement. They may serve a notice on a person who was holding, recovering or disposing of waste where they think it is necessary in order to limit environmental pollution caused or likely to be caused by their activities.
The notice may require specified measures which are considered necessary to prevent or limit the pollution, including the cessation of the holding, recovery or disposal of waste, mitigation or remediation. Other steps may be specified.
The person subject to administrative enforcement has a period in which to make representations regarding the terms of the notice. Having considered the representations, it may be confirmed, amended or revoked. If the notice is not complied with, the local authority may take such steps as it considers necessary to secure compliance at the expense of the defaulter.
It is a criminal offence not to have a licence for waste disposal or recovery or to fail to comply with its conditions. There is a maximum penalty of €15 million or 10 years imprisonment. Directors, controllers and other officers of companies in breach may also be convicted. Where activities appear to have been carried out with the landowner’s consent, it is presumed to be carried on with his consent and he may be prosecuted accordingly.
Breaches of a licence can be prosecuted summarily in the District Court by local authorities or the EPA. Proceedings may be brought in the District Court with a fine of up to €3,000 or 12 months imprisonment or on indictment, up to €60 million and imprisonment of up to 10 years.
There is a further €1,000 per day for summary offences, and €130,000 per day for conviction on indictment. In the case of offences by companies, directors, managers, secretaries and other officers of the company can be prosecuted and found guilty of an offence, if they are involved in the commission of the offence.
Waste Orders and Injunctions
As with planning law, there is a provision by which any person can take enforcement action by way of a High Court Injunction in respect of the holding, recovery or disposal of waste in a manner that causes or is likely to cause environmental pollution or against a person who has failed to recover and dispose of waste in such a manner that it is causing or has caused environmental pollution.
Upon such application, the Court may make an Order requiring steps to be taken to prevent, limit or unwind the waste disposal concerned. The relevant person concerned who is recovering or disposing of such waste may be obliged to carry out measures to prevent or limit a recurrence of the contravention. An order may be made, requiring the person to refrain from or cease the activities. The provisions may include the payment of costs.
This is a speedy procedure which can be taken on short notice by any member of the public. Orders may be made requiring remediation. The Irish Courts have made Orders directly against directors of the company where the company was unable or unwilling to remediate.
Historical Waste /Decontamination
There is a similar but separate procedure available where waste disposal has happened in the past. An application can be made to the High Court or Circuit Courts where a person is holding, recovering or disposing of waste or has held, recovered or disposed of waste in a manner which is causing or has caused environmental pollution.
The Court may order the discontinuance of holding or recovery of waste for a period or may require steps to remedy the effects of the holding, recovery or disposal. Where the person does not comply, the local authority or the EPA may take steps to remedy or mitigate the effects of the activity and recover the expenditure as a debt. The Courts have ordered landowners in illegal dumps to take extensive remedial and recovery steps.
Local authorities have duties to take steps to prevent or limit environmental pollution within their area, likely to be caused by holding, recovery or disposing of waste. They may recovery the cost as a debt from the person whose acts or omissions necessitate the operation of the recovery and disposal concerned.
The provision allows the local authority to undertake the decontamination of lands with historic pollution and recover the costs from former owners and occupiers who have contaminated the land. Legal action for a nuisance may also be taken in respect of improper waste and disposal of waste.
Contaminated Land and Clean Up Requirements
The first coherent Irish legislation liability for contaminated land was introduced under EU Directive in 2008. The EU regulations do not apply retrospectively, unlike the case with equivalent legislation in other jurisdictions.
Contaminated land liability legislation has been in force in the United Kingdom for over 15 years. “Brown field” sites are less common in Ireland, due to the relative lack of a heavy industrial heritage.
The EPA national hazardous waste management plan and Local Authority waste management plans are required to identify previous waste disposal sites, the risks they pose and assess what cost effective measures may be taken in relation to remediation. There is a duty on local authorities to assess contaminated land. There is no specific duty to remediate.
Other Legislative Controls
Although the legislation on contaminated land is recent and only applies to new contamination, there are a number of other grounds and bases in the waste, water pollution, and integrated pollution licence legislation, which effectively provide for liability, for contaminated land and clean up costs.
The authorities have miscellaneous powers which may be used to require land owners to clean up historical environmental pollution created by contamination. The rules are disjointed and vary in their manner of operation.
Local authorities have had powers over 130 years to deal with statutory nuisances. Later legislation provides for powers to remediate air pollution, water pollution and waste.
Planning permissions in the vicinity of known contamination may require a risk assessment and steps to mitigate the risk. Planning permissions and environmental licences may require decontamination. The scope for planning permission to deal with environmental matters has been curtailed in recent years.
Local and other authorities have wide powers under health and safety, building control, derelict site and sanitary services legislation, by which they can to serve notices and seek orders which effectively require decontamination. Under this legislation, they may take remedial action and charge the expense to the owners or occupies as a debt. See our sections in connection with derelict sites and dangerous structures.
Air pollution, water pollution, waste and Integrated pollution control licences may require that steps be taken in relation to the discontinuance of activities and the clean up of contamination as part of the permission. The licences may require cleanup of waste and contamination caused by the previous activities.
Contaminated Land Issues
Contaminated soil may be treated as waste. It may be regarded as a landfill. Waste licenses commonly include conditions that steps be taken on the cessation of the activity, to avoid environmental pollution and return the site to a satisfactory state.
The Building Regulations require that reasonable precautions be taken so as to avoid dangers to health and safety arising from substances in the ground.
A person may be liable at common law under the law of nuisance in respect of contamination. The courts generally require that the damage sustained by the third party is reasonably foreseeable at the time of the activity, in order for liability to apply. However, under the law of nuisance and the so-called rule in Rylands v Fletcher, a person may be held “strictly” liable, i.e. liable, irrespective of negligence, for the escape of dangerous material, accumulated on land.
When “brown field” lands are purchased, warranties or indemnities are commonly required in respect of known contamination risks. This practice has followed largely from the UK practice where there is specific contamination clean up legislation. It is possible to obtain insurance to minimise the risk of environmental liabilities. The degree of coverage would be limited as there are limits to the extent which an insurer can underwrite such risks.
McMahon Legal, Legal Guide Limited and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website.