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 orders to abate the nuisance. Nuisances include smoke and combustibles.
The Public Health legislation made provisions for the prevention of public “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 Quality
An EU Directive (2008) on ambient air quality and cleaner air for Europe (CAFE ) is the framework EU legislation on air quality. A number of directives have been made under it and have been given effect in Ireland through various regulations. There are regulations on air quality assessment, the management of air quality standards and specific regulations on particular pollutants.
The Air Pollution Act is administered by local authorities. Above the relevant threshold for particular industries, air pollution licensing is dealt with by the Environmental Protection Agency under the integrated pollution control licence or industrial emissions directive licensing schemes.
As with other pollutants planning permission conditions also regulate air pollution emissions. 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 licence is given to an industrial plant under the Air Pollution Act by a local authority or where an integrated pollution control license is granted by the Environmental Protection Agency.
Special Controls
Special controls on emissions may apply in certain areas. They may apply to both industrial and non-industrial processes.
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 a 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 and certain non-smokeless solid fuels. Similar orders apply in Cork and elsewhere.
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 making and altering the plan is broadly similar to that for a development plan. Local authorities must have regard to the advice of the EPA.
Required to Make Plan
There are national regulations providing for indicative levels for specified pollutants. 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. Relatively few air management plans have 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 reflect 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.
EU Requirements
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 or 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 air pollution and other legislation.
Monitoring and Enforcement
The EPA has advisory and oversight functions in relation to national air quality management. 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 arise 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, and documents, carry out inspections and require information.
Local authorities must carry out steps to monitor air quality in emissions. They can require the occupier of premises to carry out monitoring of the extent and effect of an emission.
Local authorities may require the occupier of commercial premises to monitor emissions and furnish records to them.
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.
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 or on indictment with per day fines for continuing offences or imprisonment.
Occupiers of Premises
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, an 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’s 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 an 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 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 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.
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. Steps ordered by the High Court may be undertaken notwithstanding that they may otherwise require compliance with planning permission etc.
Civil Liability
A person who has suffered injury, 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 a result of an act of God or a 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 the best practical means as prescribed.
Provision for civil liability is set out in the Environmental Protection Agency Act. Anybody suffering damage or loss because of an 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 licence 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 the best practicable means specified by EU legislation.
Offences
Persons guilty of offences under the Air Pollution Act are generally subject on summary conviction to a fine up to €5,000 (class A) together with, prospectively,a continuing fine of €500 (class E) per day or to imprisonment for up to 6 months or both.
On conviction on indictment, the penalty is up to €500,000 or imprisonment for up to 2 years imprisonment or both.