Water Pollution

Pollutants

It is a criminal offence to permit any pollutant to enter water.  A pollutant includes any poisonous or noxious matter, substances or liquids, which if it entered water, would make it

• poisonous or injurious to fish, spawning grounds or the food of fish
• injure fish or their value as animal food or
• impair its usefulness as spawning grounds or
• render such water harmful or detrimental to public health or
• to domestic, industrial, agricultural, commercial, or recreational use.

Waters include any rivers, lakes, canals, reservoirs, ponds, inland waters, tidal waters, river banks etc.  A prosecution for allowing pollutants to enter water may be taken in the District Court by the local authority or Fisheries Authority (IFI).  It is a defence to a  criminal charge that the person took all reasonable care to prevent the entry of the pollutant into the water, by operating and supervising facilities or by employing practices or operations that are suitable for prevention of pollution.

Water Pollution Licences

Water pollution may be permitted under a licence. Certain specified highly pollutant industries are covered by integrated pollution control licences, issued by the Environmental Protection Agency (“EPA”). Most businesses outside the specified categories are licensed by the Local Authority.

The procedures for applying for a water pollution licence are broadly similar to those which apply to planning permission applications. The applicant must publish a notice of intention to apply for the licence in the newspaper. He must make the relevant plans available to the public. The plans in an application must be made available for inspection in the Local Authority offices for a certain period.

A licence may be granted subject to conditions or refused.  The local authority must ensure that the licence will not cause the waters to breach any prescribed water quality standards. Typically the licence provides for the treatment of any effluent before it is discharged into water.  The licence may deal with the flow rate, composition, nature of treatment, meters, gauges, apparatus, records, etc.  Charges may be payable to the Local Authority.  Licences cease to be effective after three years.  Local authority licences may be reviewed at intervals of not less than three years.

Licence conditions may be reviewed at any time, if a local authority believes that the discharge allowed by the licence is likely to be injurious to public health or render waters unfit for domestic, commercial, industrial, fisheries, agricultural or recreational use. It may also be reviewed if

• there has been a material change in relation to the nature and volume of the discharge,
• a material change in relation to the waters into which the discharge is made,
• further information has become available in relation to the effect of the pollution or if
• the licensee applies to have the licence reviewed.

Following licence review, the conditions may be changed or varied or the licence may be revoked.

An applicant can appeal to An Bord Pleanála in relation to the grant, refusal or revocation of a licence or in relation to conditions. Only the applicant or occupier of other affected persons may appeal.  An Bord Pleanála may grant or refuse the appeal or grant it subject to conditions.

Local Authorities keep registers of licences which are available for inspection. Local authorities prepare water quality management plans for their areas. Licences are granted in accordance and with reference to the relevant plan and certain other factors set out in the legislation.

Civil Enforcement I

The Local Authority has the power to serve notices on persons unlawfully polluting water.   It may also serve notices on persons having control of pollutant matters and premises. The notices specify measures which the Local authority believe necessary to prevent pollutants from entering waters and direct the person to take measures specified. They may order, regulate or restrict the carrying out of any activity or practice that could result in pollution of waters. It may require the provision or relocation of facilities for the collection and storage of pollutants.

Local Authority notices are administrative notices and require that specified action be taken. If the action is not taken, the Local Authority may do the works and charge the costs to the person responsible. The person may make representations to the authority in relation to the terms of the notice.

As with planning law, it is possible for any person to apply to Court for an Order to prevent water unlawful water pollution.  An Order will be granted if the pollution is not permitted by a fisheries licence or a water pollution licence.  The Court may make orders to remediate the effects of an existing discharge.

It may require payment to be made to the applicant or other persons for the costs incurred in investigating, mitigating or remedying the effects of the entry or discharge concerned.  Where the order is not complied with, the local authority may take steps to comply with the Order and recover the costs from the polluter.

Civil Enforcement II

Both the Local Authority notices and Court Orders can require replacement of fresh fish, restoration of spawning grounds, removal of pollutants and treatment of affected waters so as to mitigate or remediate the effects of the pollution. The High Court has wider powers to prohibit persons from causing or permitting the discharge of sewage or trade effluent. It may require that specified measures be carried out. It may prohibit the continuance or recurrence of any act so as to prevent the escape of pollutants. It may require that the occupier carry out specified measures or do or refrain from doing any specified act or omission.

Local authorities have powers to abate or prevent pollution to waters. It may prevent the entry of pollutants, remove pollutants, prevent pollutants from affecting waters. It may take steps to mitigate and remediate any waters or seashore.  Polluters may be ordered to take such steps as are required.

Local authorities may recover the costs of measures taken by them, which were necessitated by the acts or omissions of a person who ought reasonably to have foreseen the necessity for the measures by the Authority.  The sums concerned may be recovered as a debt.  An accidental discharge, spillage or deposit of pollutant matters which has or is likely to enter waters or a sewer must be notified as soon as practicable by the responsible person to the local authority.

Offences

It is an offence to permit a pollutant to enter waters. There are also several offences in relation to the breach of water pollution and trade effluent licences. Breaches of licence conditions are offences.

Where a company is guilty of an offence under water pollution legislation its directors, managers or secretaries may be liable if the offence is committed with their consent or connivance or may be attributable to their neglect.

Where a prosecution is made, the Court may order that the person pays the expenses incurred by the local authority or regional fisheries board in relation to the investigation, detection and prosecution of the offence.

Trade Effluent Licences

A person shall not discharge trade effluent into a sewer except in accordance with a licence granted by the Local Authority. A licence is not required for domestic sewage or storm water.  By concession, many classes of small business are treated a releasing domestic sewage only. The application process broadly similar to that for a water pollution licence, but the procedures are slightly less elaborate.  The local authority has the power to grant or refuse a licence or grant it subject to conditions.

A licence must not be granted if it would cause water quality standards to be breached.  Conditions may be imposed including conditions in relation to monitoring, treating discharges etc.  They may require the provision of meters, maintenance, taking of samples, keeping of records.  Conditions may apply in relation to temperature, composition, volume, the method of treatment, location, times of discharge.  Both water pollution and sewer discharge licences will lapse after three years if not used.

The sanitary authority can serve a notice requiring a person making or permitting a discharge into a sewer without or in breach of licence, requiring the cessation of the breach. The Local Authority can take steps specified in the notice to prevent a discharge and recover the cost from the polluter.  Sewage discharge licences are reviewed periodically in much the same way as a water pollution licence.  There are similar provisions in relation to appeal to An Bord Pleanála.

The local authority itself licences discharges into the sewers.  Public authorities are subject to EU based water treatment standards. A discharge of effluent from a sewer musy comply with standards under urban wastewater treatment regulations.

Local Authority Powers

Local authorities have powers to monitor waters and discharges.  They may collect such information as is required for the performance of their duties.  Local authorities may serve notices requiring persons to give information in writing to the local authority as may be specified in relation to activities and practices as may be necessary.

This includes persons abstracting waters in the Local Authority area, discharging trade or sewage effluent, having custody of pollutant matters, engaging in activities which in the opinion of the Local Authority, may cause polluting matters to enter the water.

Local authorities have powers to serve a notice requiring a person who is making a discharge into a sewer, requiring him to provide details of discharges within a specified period.  Maps, plans, drawings showing the location, extent and condition of facilities for the collection and disposal of effluent may be required.  Details may be required of the pipes, systems, methods and arrangements in use for the disposal of effluent and pollutants.  It is an offence to fail to give the requisite information.

Compensation for Water Pollution

Where trade effluent, sewage effluent or pollutant matter enters waters and causes injury, loss or damage to a person or property, damages by way of compensation may be recovered. This does not apply to discharges made in accordance with licences.

The action may be taken in any Court (depending on the value) seeking compensation from the occupier of the premises from which the effluent originated. There is a defence if the release was caused by an act of God, act or omission of a third party, could not be an act or omission which the occupier could reasonably foresee and have guarded against.

Bye-Laws

Local authorities may make bye-laws preventing or regulating an activity if it considers necessary to prevent or limit the entry of pollutants into waters.  This includes the collection, storage, treatment or disposal of pollutants from any activity for the purpose of agriculture, horticulture or forestry.

This includes any activity involving the application to land or injection of silage effluent, manure, fertilizer, pesticide or pollutants or any other activities, practice or the use of the land for agriculture, horticulture or forestry.

Fisheries Legislation

There are various offences under fisheries law in relation to permitting the entry of any materials into waters which may be injurious to fish spawning grounds, fish food etc.  Breach of legislation may be prosecuted by An Garda Siochana, fisheries board and certain private parties.

A licence may be granted under fisheries legislation is subject to conditions.  This licensing system has been largely supervened by the more modern water pollution licences.  It is a defence to breach of water pollution legislation that a person took all care to prevent entry into water.

Sea Pollution

It is an offence to discharge pollution at sea from a ship registered in Ireland or from any ship in Irish waters of any oil, oily mixture, noxious liquid substance, sewage or other pollutants.  There are defences where the discharge is necessary for the purpose of saving life, of securing the safety of the ships and it is necessary and reasonable.  There is a duty to report any discharge or probable discharge of any such substance.

Masters of ships must keep records relating to the transport of certain substances and of the discharges which occur,  for the purpose of securing the ship or safety at sea.  There are powers to detain ships and masters of ships, where a sea pollution offences have been committed.

The Department of the Marine may give directions to the owner or master of a ship as are necessary to prevent, mitigate or eliminate pollution.  Inspectors and Harbour Masters have powers to detain ships where they satisfied that the ship has or may cause pollution. There is power to refuse entry to ships, where there is cause to believe it does not comply with sea pollution legislation.