Law and the Environment Conference

___________________________________________________________

LAW AND THE ENVIRONMENT CONFERENCE

University College, Cork

14th April, 2005

Liability and Enforcement in Irish Waste Management Law

TOM FLYNN

BA LL.B M.Sc, Dip EIA Mgmt,

Barrister-at-Law

Lecturer in Planning & Environmental Law

Department of Planning and Environmental policy,

University College, Dublin

© Tom Flynn 2005

INTRODUCTION

My objective in this paper is to provide an overview of principal issues in the area of liability and enforcement in Irish waste management law. In the relatively limited time available to me it is not possible furnish an exhaustive account of many issues in liability and enforcement which arise in the context of waste management. My focus is on some of the practical issues, which have arisen in the context of enforcement of waste management law with particular emphases on criminal liability. The topics of enforcement and liability are considered in tandem, but the primary emphasis is on enforcement. The approach in this paper is essentially practical not academic, however some attempt is made to reflect on the future direction of enforcement and liability in Irish waste management law.

The areas, which I propose to address, are:

· The principal statutory enforcement powers

· The principal statutory remedies

· The principal statutory offences

· Penalties for offences

· Civil liability and waste management

· Practical considerations in the prosecution and defence of waste management enforcement proceedings

Prior to addressing these matters in detail it is considered appropriate to make some general observations with a view to placing the issue of enforcement and liability in Irish Waste management law in context.

OVERVIEW ENFORCEMENT AND LIABILITY IN IRISH WASTE MANAGEMENT LAW

It is probably an understatement to say that Ireland has never had a particularly good record in the area of waste management. However, the combination of the rapid economic growth of late 1990’s coupled with the increasingly rigorous regulatory regime introduced by the Waste Management Act 1996 greatly increased many of the pre-existing problems in the area of waste management. The failure to develop recycling and a comprehensive network of waste disposal facilities considerably accentuated these problems.

It is submitted that the biggest issue in Irish waste management law is the problem of illegal dumping and related illegal activities. The issue has been highlighted by a number of high profile cases of illegal dumping which have received significant media attention. The scale of the problem of the ‘legacy’ of illegal dumping and the extent of its ongoing nature is only now becoming apparent. A particular problem with cross-border dumping is increasingly evident. Further, attracted by the very significant economic gains to be made out of such activity it is now apparent organised criminal elements are involved in these activities. This has posed significant challenges for the enforcement authorities who have grappled to address the problem effectively. In particular there has been a perception (somewhat unfair in my view) that the EPA and local authorities have been unwilling to effectively address this issue. It is clear that the EU is unhappy with Irelands enforcement record in the area of waste management.[1] The establishment of the Office of Environmental Enforcement (‘OEE’) was clearly an attempt to address these criticisms. The OEE has attempted to develop an enforcement network through the establishment of the National Enforcement Network. Additional funding of €7 million was made available by central government from the Environmental Fund to support a programme of concerted enforcement of the waste code. In recent months a number of local authorities have begun to robustly exercise their enforcement powers with a number high profile anti-dumping operations. More recently the OEE has indicated it will specifically target the area of illegal waste dumping, particularly cross-border dumping, through its National Enforcement Network with greater involvement of the Gardai and Criminal Assets Bureau.[2] The OEE has also launched a series of concerted actions aimed at identifying and dealing with unauthorised movement of waste. The initial focus has been on waste being moved illegally to Northern Ireland. These enforcement actions have been organised on a multi-agency approach, involving the OEE, local authorities, and the Gardai, with the co-operation of the Northern Irish authorities.[3] However, this enhanced level of enforcement activities and a number of successful prosecutions, has proved no disincentive to the quite serious criminal elements involved in this activity. It is to be anticipated that the coming months will see a much greater emphasis on enforcement and the exercise of the enhanced powers of enforcement introduced by the Protection of the Environment Act, 2003 (‘POE 2003’).

The problems caused by illegal dumping and related activities have raised the issue of effective enforcement of waste management law. This has prompted a significant legislative response in the form of the POE 2003, which are now considered in detail.

THE IMPACT OF THE PROTECTION OF THE ENVIRONMENT ACT, 2003

The POE 2003 was introduced primarily to ensure Irelands compliance with the provisions of the Integrated Pollution Prevention and Control directive. However, in recognition of the difficulties with illegal dumping, the 2003 Act introduced a number of enhanced enforcement provisions, which are analysed in detail throughout this paper.

In the context of enforcement of waste management law arguably the most significant amendment introduced by the POE 2003 is the amendment of s.63 of the EPA Act 1992. It operates to impose a general duty on the EPA to oversee local authority statutory functions in relation to environmental protection. Under the amended provisions the EPA is empowered to oblige a local authority to furnish specified information, within a specified period, either generally or in a specific case to it in relation to any of its statutory functions in relation to environmental protection. A local authority is obliged to comply with such a request from the EPA.[4]

Section 63(2) of the EPA act as amended by the 2003 Act also empowers the EPA to notify a local authority of its intention to undertake a general appraisal of the local authorities operational activities in the context of its functions in relation to environmental protection. Upon such notification, the EPA is empowered to enter local authorities premises for the purposes of undertaking such an appraisal. A local authority is under a statutory duty to facilitate EPA access to its premises, to provide records and information, and generally cooperate with the EPA in the exercise of its powers under this provision. Although not specifically stated such, it is submitted that an appraisal could clearly include an appraisal of a local authorities enforcement functions under the WMA 1996-2003.

Upon receipt of information relating to the carrying out of by a local authority of its environmental functions or subsequent to an EPA appraisal of a local authority under these provisions the EPA may take any or all of the following steps:

· Issue advice and recommendations to the local authority;

· Provide such other assistance, support or guidance which the it considers in consultation with the local authority, would be helpful; or

· Issue a direction to the local authority to require it to perform a specified action within a specified period.[5]

A local authority is under a statutory duty to comply with the EPA in the exercise of its powers under this provision. Somewhat unusually the failure by a local authority to cooperate with the EPA in the exercise of its powers under these provisions is a criminal offence. Although it is not explicitly stated it is clear that the inclusion of these powers is clearly an attempt to address the perceived tardiness of some local authorities in exercising their enforcement powers under environmental legislation.

These provisions if robustly exercised by the EPA clearly have the potential to put considerable pressure on local authorities to exercise their enforcement powers in an effective manner. However, it remains to be seen to what extent and in what manner the EPA chooses to exercises its powers under the new provision.

At a political and policy level there now appears to be an acknowledgement of past deficiencies in the area of enforcement of waste management law. Thus the recent policy document Waste Management: Taking Stock and Moving Forward [6] promises that:

‘priority will be assigned to the provision of additional resources from the Environmental Fund in order in order to fully and effectively deal with illegal waste practices’[7]

It remains to be seen whether this political and policy commitment is matched by the allocation of the promised resources in practice.

THE PRINCIPAL STATUTORY ENFORCEMENT POWERS

Introduction

To facilitate the effective enforcement of its provisions the WMA 1996-2003 confers an extensive range of powers of entry, inspection and direction. Such powers are only exercisable by ‘authorised persons’ under the Act. The POE 2003 further enhanced the powers of ‘authorised persons’ in regard to inspection and collection of evidence. Typically an ‘authorised person’ will be an appropriate member of the local authority or a member of the EPA’s staff. It is important to note that every authorised person must be furnished with a certificate of his or her appointment and when exercising any power conferred on him or her by or under WMA 1996-2003, the authorised person must, if requested by any person affected, produce the certificate to that person.[8] However, following an amendment introduced by the POE Act members of the Garda Siochana are now also deemed ‘authorised persons’ for the purpose of the Act. Amendments introduced by the 2003 Act expanded and clarified the powers of an authorised person under the WMA 1996 to stop and seize vehicles and the status of video and electronic evidence obtained under the provisions of the legislation.[9]

General powers of authorised person

Under s.14(1) of the WMA 1996-2003 an ‘authorised person’ may, for any purpose connected with the act, at all reasonable times, or at any time if he or she has reasonable grounds for believing that there may be a risk of environmental pollution arising from the carrying on of an activity at the premises or that such pollution is occurring ‘enter any premises and bring thereon such other persons (including members of the Garda Síochána) or equipment as he or she may consider necessary for the purpose’.[10] However this right of entry is subject to the restriction that an authorised persons shall not, other than with the consent of the occupier, enter into a private dwelling unless he or she has given to the occupier of the dwelling not less than 24 hours notice in writing of his or her intended entry. This exception itself is made the subject of an exception by subsection (7) that permits immediate entry on foot of a District Court Warrant.

An authorised person may any time halt and board any vehicle and require the driver of the vehicle to take it to a place designated by the authorised person, and such a vehicle may be detained at that place by the authorised person for such period as he or she may consider necessary for the purpose.[11]

Powers of entry

Whenever an authorised person enters any premises or boards any vehicle, pursuant to Section 14, the authorised person may do any of the following:[12]

(a) make such plans, take such photographs record such information on data loggers, make such tape, electrical, video or other recordings and carry out such inspections,

(b) make such tests and make such copies of documents and records (including records in electronic form) found therein and take such samples,

(c) carry out such surveys, take such levels, make such excavations and carry out such examinations of depth and nature of subsoil,

(d) require that the premises or vehicle or any part of the premises or anything in the premises or vehicle shall be left undisturbed for such period,

(e) require from an occupier of the premises or any occupant of the vehicle or any person employed on the premises or any other person on the premises, such information,

(f) require the production of and inspect such records and documents, including records held in electronic form and take copies of or extracts from, or take away if considered necessary for the purposes of inspection or examination, any such records or documents, as the authorised person, having regard to all the circumstances, considers necessary for the purposes of exercising any power conferred on him or her by or under the WMA 1996-2003

It should be noted that the above powers were updated by the POE 2003 to encompass the testing and the taking of evidence by video and/or other electronic formats thus reflecting technical changes since the passage of the 1996 Act. This amendment also expanded the powers of an authorised person to inspect and take records to include records in electronic format e.g. computer records or e-mail.

Powers of direction in respect of waste

If an authorised person who, having entered a premises or boarded a vehicle, pursuant to the s.14, considers that waste thereon or therein is such, or is being handled or transported in such manner, as to constitute a risk of environmental pollution, they may direct the holder of such waste to take such measures as are considered by that authorised person to be necessary to remove that risk. These measures may include, the disposal of the waste, in such manner and place and within such period as the authorised person may specify. If a holder of waste fails to comply with a direction of an authorised person under this provision, the authorised person ‘may do all things as are necessary to ensure that the direction is carried out’.[13] The costs incurred by an authorised person in doing any such thing shall be recoverable from the holder of the waste by the authorised person, or the person by whom the authorised person as appointed, as a simple contract debt in any court of competent jurisdiction.[14]

Any person who refuses to allow an authorised person to enter a premises or board any vehicle or to take any person or equipment with him or her in the exercise of his or her powers under this provision, and/or obstructs or impedes an authorised person in the exercise of any of his or her powers under this provision and/or fails or refuses to comply with any requirement of this provision or of an authorised person, is guilty of an offence.[15] It is important to note it is also an offence for any person to give to either to an authorised person, a relevant local authority or the EPA, information which to his or her knowledge is false or misleading in a material respect.[16]