Contamination
Contaminated Land Liability
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.
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, but the consequences do not become apparent after 30 years.
Other Liability
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, common law nuisance and various schemes of legislation in effect make provision for historic contamination.
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. Other legislation which may apply includes derelict sites, sanitary services, habitats, wildlife and health and safety at work.
Much legislation provides local authority powers to require work to be done. If the works are not done, the local authority commonly has the 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.
Permissions and Licences
Planning permissions and environmental licenses may provide conditions for to remediation of historical contamination. In redevelopment projects, historical contamination is likely to be required to be remediated by planning conditions.
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.
The EPA has published a code of practice in relation to the investigation of historical contamination.
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 or the cessation of the activity.
Duties to Take Steps & Report
Where there is an imminent threat of environmental damage and the operator of an activity is aware or ought to be aware of the circumstances that there is an imminent threat, the occupier/operator must take the necessary preventative steps. He or she must contact the Environmental Protection Agency as soon as possible. Failure to do so is an offence.
Where environmental damage has occurred, the operator is aware or ought to be aware of it and that it has caused it, it is obliged to notify the Environmental Protection Agency without delay and immediately take all steps practicable to control, remove, manage contaminants and the cause of damage as may reasonably be expected in the circumstances, so as to prevent further environmental damage or damage to human health. Failure to do so is an offence.
Certain environmental organisations active in promoting the environment during the previous 12 months may initiate a complaint and request. The EPA must consider the request and consult with the operator. It decides whether to grant the request.
A decision is made, which is notified to the relevant complainant and the owner occupier, et cetera. This may be challenged by judicial review only within eight weeks.
Remedial Action
Where the Environmental Protection Agency is aware that environmental damage has occurred, it must issue a direction to the person concerned or another appropriate person to take the necessary remedial steps. It may require specified information and/or require specific preventative measures to be taken. The EPA may give instructions in relation to what is to be done.
The EPA may take steps itself ,where environmental damage has occurred and it considers it appropriate because of failure by the operator, failure to identify the operator or where the operator can rely on the limited defences available. The Environmental Protection Agency considers observations and submissions of the owner, occupier and persons who have sufficient interest in the matter and environmental organisations.
The Environmental Protection Agency determines what remedial action should be taken with reference to the criteria in the legislation. It must issue a direction to the operator who caused the environmental damage setting out the required steps. A direction may be appealed to the District Court within seven days.
Action by the Environmental Protection Agency under the environmental liability directive is to be taken within five years of the date on which preventative or remedial measures required have been completed or when the EPA became aware of the identity of the operator concerned.
Costs
An operator who has caused environmental damage is liable for the costs of preventative and remedial measures. Where there is an imminent risk, that party is liable for the costs of steps taken to prevent the risk.
The Environmental Protection Agency can recover its costs from operators. Costs which may be recovered include the cost of assessing damage, alternatives for action and the legal administrative enforcement costs including, monitoring and supervision costs.
It is a defence that the environmental damage was caused by an act or omission of a third party and the operator has appropriate safety measures in relation to the activity or it occurred while complying with the orders or instructions of a public authority under their statutory functions.
Defences & Exemptions
It is a defence for the operator if it proves to the Environmental Protection Agency that it was not at fault and that the environmental damage was caused by an act, omission, authorised and fully in accordance with an authorisation given under the relevant legislation.
An operator is exempt from liability for remedial action pursuant to the environmental liability directive where it proves to the EPA that it was not at fault and the damage was caused by an act, omission activity or any matter using a product or in the course of an activity which is demonstrated was not considered likely to cause environmental damage according to the state of scientific and technical knowledge at the time it took place.
The EU legislation applies to acts, omissions, events and incidents after 1 April 2009. It does not apply to acts, omissions, events and incidents after that date arising from the activity which took place and was finished prior to that date. It does not apply where more than 30 years have passed since the act omission event or incident which caused the damage.
Offences
Breach of legislation is subject to penalties on summary conviction of up to €3000 and or six months’ imprisonment and on conviction on indictment up to €500,000 and /or three years imprisonment. It is a defence if the person took all reasonable steps to avoid committing the offence.