Waste Enforcement
Duties
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.
EPA Enforcement
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.
Directions
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.
Administrative Enforcement
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.
Waste Offences
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, recovering or disposing of waste. They may recover 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.
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. “Brownfield” 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 landowners 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 for over 150 years to deal with statutory nuisances. Later legislation provides for powers to remediate air pollution, water pollution and waste.
Local and other authorities have wide powers under health and safety, building control, derelict site and sanitary services legislation, by which they can 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 the cleanup of waste and contamination caused by 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.
When “brownfield” 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.
Other Controls
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.
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.
The Building Regulations require that reasonable precautions be taken so as to avoid dangers to health and safety arising from substances in the ground.
Offences
The Circular Economy, Waste Management (Amendment) and Minerals Development (Amendment) Act amends the Waste Management Act 1996 by expanding offences punishable by fixed payment notices to certain sections of the Batteries and Accumulators Regulations and the Tyres and Waste Tyres Regulations.
The Act expand the offences punishable by fixed payment notices to include an offence of failing to comply with certain conditions attaching to a waste collection permit. There are fixed payment notices of €500 or €1000.
Operation of CCTV for Certain purposes
An authorised person may submit a proposal for the installation and operation of CCTV in the functional area of a local authority. Specified details are to be included in such a proposal including a site management plan and matters referred to in the Code of Practice. It provides the details that should be included in a site management plan. An impact assessment is to included in the site management plan and that it shall comply and the code of Practice approved.
The proposal shall be submitted to the Chief Executive for approval, that the Chief Executive may decide whether or not to approve the proposal; provides for the Chief Executive to approve, or approve subject to any modifications, terms and conditions that he or she deems appropriate; provides that in deciding whether or not to give his or her approval
The chief executive shall consider the extent to which the proposal is proportionate to, and necessary for, the purposes of deterring environmental pollution, and facilitating the deterrence, prevention, detection and prosecution of offences. The chief executive shall not approve a proposal unless he or she is satisfied that the proposal is proportionate to, and necessary for, the purposes referred to above. The Chief Executive must give his or her approval in writing.
The Chief Executive may at any time and shall at least once every 5 years request an authorised person to carry out a review of the CCTV scheme.
An authorised person carrying out a review shall consider whether the CCTV scheme is being operated in accordance with the approval given, in compliance with the code of practice, whether the operation of the scheme has been successful
The Chief Executive, following the review, may approve the CCTV scheme for a period of not more than 5 years or revoke the approval.
An authorised person must submit a proposal to alter a CCTV scheme, except for repairs or modifications that do not alter the extent of the coverage of the scheme, or the capability of the devices used in the scheme.
Where a Chief Executive revokes an approval, the local authority shall terminate the CCTV scheme within one month. The local authority shall publish the decision to approve, review or revoke a scheme on the website of the local authority.
There is to be a code of practice has been approved by the Minister and laid before the Houses of the Oireachtas.
Operation of mobile recording device
An authorised person may operate a mobile recording device in accordance with a code(s) of practice for purposes of preventing, investigating, detecting and prosecuting offences under the Waste Management Act 1996 or for ensuring his or her personal safety while carrying out these functions.
The operation of a mobile recording device must be necessary for, and proportionate to, the purposes in the legislation. A mobile operating device shall be operated in accordance with a code of practice.
Code of Practice
The Local Government Management Agency shall submit a draft Code of Practice to the Minister as soon as is practicable. The Act provides for terms to be included in the draft Code of Practice.
The Local Government Management Agency is to carry out a Data Protection Impact Assessment and the Code of Practice shall take account of that assessment. It should consult with and the Data Protection Impact Assessment should be provided to those persons prior to the consultation process.
The Minister may approve, or approve with modifications, a Code of Practice submitted to him/her.
The Local Government Management Agency shall review the Code of Practice at least once every 5 years; The Agency shall consult with the bodies prescribed when carrying out such a review; and provides that the Minister shall be informed of the outcome of a review.
The Local Government Management Agency shall submit a further code of practice to the Minister to amend, revoke or replace an existing code of practice or to create a new code of practice. A code/amended code of practice approved by the Minister must be laid before the Houses of the Oireachtas by the Local Government Management Agency and shall be published on the website of the Minister or the Government.
Admissibility of evidence
Evidence obtained under these provision may be admitted as evidence in criminal proceedings and the device from which it was obtained shall not be required to be exhibited in court.
Evidence obtained is to be admitted as evidence despite errors or omissions in the approval given, subject to the error or omission being inadvertent and that the information is in the interests of justice.
There are listed factors as to whether the error or omission was serious or merely technical or the nature of the right infringed. A failure to observe any of these provisions or of any code of practice on the part of any local authority or authorised person, shall not (without prejudice to the power of the court to exclude evidence) of itself affect the admissibility of any evidence obtained.
It is presumed, unless proved otherwise, that any device in a CCTV scheme or any mobile recording device, is capable of producing accurate information or material, that any information produced by the device, and any copies thereof, is accurate, and that the device was operated in accordance with the relevant code of practice.
A person who falsifies, conceals, destroys or otherwise disposes of information gathered by a recording device, permits such activities or knowingly causes damage to, or destroys a recording device, shall be guilty of an offence.
Operation of CCTV for certain purposes
Circular Economy, Waste Management (Amendment) and Minerals Development (Amendment) Act provides for an authorised person to submit a proposal for the installation and operation of CCTV in the functional area of a local authority.
The Actprovides the details that should be included in such a proposal including a site management plan and matters referred to in the code of practice and in a site management plan. A data protection impact assessment shall be included in the site management plan and that it shall comply with part 5 of the Data Protection Act 2018 and the code of practice.
The above proposal shall be submitted to the Chief Executive for approval and that the Chief Executive may decide whether or not to approve the proposal. It provides for the Chief Executive to approve the proposal or approve subject to any modifications, terms and conditions that he or she deems appropriate;
The chief executive shall consider the extent to which the proposal is proportionate to, and necessary for, the purposes of deterring environmental pollution, and facilitating the deterrence, prevention,detection and prosecution of offences. It also provides that the chief executive shall not approve a proposal unless he or she is satisfied that the proposal is proportionate to, and necessary for, the purposes referred to above.
The Chief Executive must give his or her approval in writing, stating the date on which the approval shall expire. The CCTV scheme shall be operated in accordance with the approval given and with the code of practice.
An approval given will expire after not more than 5 years.The Chief Executive may at any time and shall at least once every 5 years request an authorised person to carry out a review of the CCTV scheme.
An authorised person carrying out a review shall consider whether the CCTV scheme is being operated in accordance with the approval given, in compliance with the code of practice, whether the operation of the scheme has been successful/
The Chief Executive, following the review, may approve the CCTV scheme or revoke the approval. The Chief Executive shall revoke an approval given at any time.
An authorised person shall submit a proposal to alter a CCTV scheme except for repairs or modifications that do not alter the extent of the coverage of the scheme, or the capability of the devices used in the scheme, and where approval is given for that proposal, the existing approval shall be revoked.
Where a Chief Executive revokes an approval, the local authority shall terminate the CCTV scheme within one month and provides for the local authority to publish the decision to approve, review or revoke on the website of the local authority.
Code of Practice
The Local Government Management Agency shall submit a draft code of practice to the Minister as soon as is practicable after the coming into effect of this section and provides for the provisions that shall be included in the draft code of practice.
The e Local Government Management Agency is to carry out a Data Protection Impact Assessment, provides that the assessment will include certain specified material and that the code of practice shall take account of that assessment.
The Minister may approve or approve with modifications a Code of Practice submitted to him/her.
The Local Government Management Agency shall review the Code of Practice at least once every 5 years; provides that the Agency shall consult with the bodies prescribed when carrying out such a review; and provides that the Minister shall be informed of the outcome of a review.
The Local Government Management Agency to submit a further code of practice to the Minister to amend, revoke or replace an existing code of practice or to create a new code of practice.
A code/amended code of practice approved by the Minister must be laid before the Houses of the Oireachtas by the Local Government Management Agency and shall be published on a website maintained by or on behalf of a Minister or the Government.
Admissibility of Evidence
Evidence obtained above may be admitted as evidence in criminal proceedings and the device from which it was obtained shall not be required to be exhibited in court.
Evidence obtained is to be admitted as evidence despite errors or omissions in the approval given, subject to the error or omission being inadvertent and that the information is in the interests of justice, subject to the matters specified.
A failure to observe any provision of any code of practice m on the part of any local authority or authorised person, shall not (without prejudice to the power of the court to exclude evidence) of itself affect the admissibility of any evidence thereby obtained.
It shall be presumed, unless proved otherwise, that any device in a CCTV scheme or any mobile recording device, is capable of producing accurate information or material, that any information produced by the device, and any copies thereof, is accurate, and that the device was operated in accordance with the relevant code of practice.
A person who falsifies, conceals, destroys or otherwise disposes of, information gathered by a recording device, permits such activities or knowingly causes damage to or destroys a recording device, shall be guilty of an offence. There is an exception where a person performs the specified activities in line with a code of practice or otherwise in accordance with law.