Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.

Water Pollution

  • Primary Focus – Enforcement – Criminal Law
  • The Legal Framework
  • Local Government (Water Pollution) Act, 1977
  • Local Government (Water Pollution) (Amendment) Act, 1990
  • (The Water Pollution Acts)
  • Vast amount of regulations and Directives
  • E.g. Local Government (Water Pollution) Act, 1977, (Control of Hexachlorocyclohexane and Mercury Discharges) Regulations, 1986
  • Scanell, Environmental and Land Use Law, (Thompson Round Hall, 2006), at Chapter 7.
  • O’Laoghaire, Inland Waters, (Butterworths, 1995) 344.417046343OLA
  • Lots of other acts
  • Oil Pollution of the Sea Act, 1956,
  • Sea Pollution Act, 1991

Example of Regulation – Technical Side of Things

Council Directive 76/160/EEC Concerning the Quality of Bathing Water

Article 3

“Member States shall set, for all bathing areas or for each individual bathing area, the values applicable to bathing water for the parameters given in the Annex”

Annex

Parameters / G (Guide) / I (Mandatory) / Min. Sampling Frequency / Method of Analysis and Inspection
Microbiological
Faecal coliforms /100ml / 100 / 2000 / Fortnightly / Fermentation on multiple tubes. Subculturing of the positive tubs on a confirmation medium. Count according to MPN or membrane filtration and culture on an appropriate medium…subculturing and identification of the colonies.
Physico-Chemical
pH / - / 6-9 / Depends – where quality deteriorates or have reason to test / Electometry with calibration at pH 7 and 9

Water Framework Directive.

  • The Water Framework Directive 2000/60/EC
  • Ecological focus - sustainability of aquatic ecosystems.
  • Not just regulates emissions/quantities of pollutants – “total water management”
  • Water-flow
  • Issues of floods and droughts.
  • River basin management and River basin management plan required for particular defined water-area
  • Must take into account objectives of Directive
  • Prevent further deterioration and protect and enhance the status of aquatic ecosystems
  • Promote sustainable water use
  • Aim for enhanced protection and improvement of the aquatic environment
  • Progressive reduction of pollution and groundwater and prevent further pollution
  • Contribute to mitigating the effects of floods and droughts
  • Implemented by the European Communities (Water Policy) Regulations, 2003
  • Duty on public authorities listed in Schedule 1 of the Regulations to act consistently with these objectives and “do” river-basin management.

Introduction to Water Pollution Acts

  • Prohibition on causing water pollution,
  • Licensing of discharges to waters and to sewers
  • Water quality standards, and also
  • Civil and criminality provisions for polluters.

The Licensing Regime

  • Offences
  • S.171 of the Fisheries (Consolidation) Act, 1959
  • S.3 of the Local Government (Water Pollution) Act, 1977
  • S.4 of the Local Government (Water Pollution) Act, 1977
  • Not offences if licensed
  • IPPC - Specific issues in Waste Management – division with IPPC/Waste
  • Third Schedule to the Waste Management Act, 1996
  • “release of waste into a water body” = “waste disposal activity”.
  • Balancing of “functions” to decide if Waste or IPPC – but its EPA anyway.

Criminal Offences

S.171 of the Fisheries (Consolidation) Act, 1959

The Offence

Any person who

(a) steeps in any waters any flax or hemp, or

(b) throws, empties, permits or causes to fall into any water any deleterious matter

  • “deleterious” matter - s.3 – any substance which entry or discharge into water
  • is liable to render those or any other waters poisonous or injurious to fish…etc

Enforcement

  • Anyone can prosecute – Fisheries Boards in Practice
  • Summary – 6 months or €1270
  • Indictment – 5 years - €31750

Elements of the Offence

Causation and Strict Liability

  • Mens Rea and Actus Reus
  • Strict Liability – Stat. Rape.
  • S.171 – is it a strict liability offence?

Alphacell Ltd v Woodward

Paper making plant – tanks burst into river – no intention for waste to enter the river – House of Lords held all that was required was that prosecutor show polluter carried on “some active operation or chain of operations involving as a result pollution of the stream”.

Maguire v Shannon Regional Fisheries Board

Leak of pig feed – no question of negligence – taken reasonable care- still liable – Lynch J in HC – strict liability offence – policy reasons

Shannon Regional Fisheries Board v Cavan County Council[1]

Cavan CC deliberately discharged sewage – claimed had taken all reasonable care not to – but simply had to as overworked. SC upheld offence as strict liability – Keane J dissent – said one objective of SL is to make people take greater care – undermined if you were liable no matter how much care you took.

Causation

Wrothwell Ltd v Yorkshire Water Authority

Company director deliberately poured herbicide concentrate into a drain – thought it went to sewer – went to stream – fish kill – claimed result was so unexpected he did not cause it – rejected – if he didn’t cause it who did?

May be an easy case, but it gets tricky

Empress Car Hire Company (Abertillery) Ltd v National Rivers Authority

Lord Clyde took from Alphacell that “active operation” required to “cause” - could not include a situation where pollution arose from “absolute passivity”.

But how passive must passive be?

Price v Cormack

Landowner who permitted another to build effluent lakes on his land. They burst and polluted but he was said not to have caused it – “stood by”

Empress

Lord Hoffman saidPrice v Cormack had

Take a far too restrictive view of the requirement that the defendant must have done something. [The Act] only requires a finding that something the defendant did caused the pollution….Maintaining pools of effluent or operating the municipal sewage system is doing something.

So, one may still “cause” pollution, by allowing something to happen on ones land, like in Price v Cormack.

“Permitting”

Two ways to commit s.171 offence – causing and permitting

In Alphacell Ltd.v Woodward, Lord Salmon stated:

The creation of an offence in relation to permitting pollution was probably included in the section so as to deal with the type of case in which a man knows that contaminated effluent is escaping over his land into a river and does nothing at all to prevent it.

  • Supposed to catch the Price v Cormackcase
  • But Lord Hoffman’s view overtakes the relevance of that case

Vehicle Inspectorate v Nuttal.

  • Employer permitted his drivers to work beyond their legal hours.
  • It was said that to “permit” something meant to fail to take reasonable steps to prevent it.
  • Thus, if nothing the employer could have done would have prevented the drivers going beyond the legal hours, then he could not have “permitted it”.

Defences

1. Chain of causation broken

  • Novus Actus Intervenius – pub fight – crap medical services
  • Alphacell - Lord Wilberforce pointed out that natural forces, acts of God and acts of third parties could form a good defence – break chain of causation?
  • Third Parties/Vandals/Eco-Warriors?

National Rivers Authority v. Yorkshire Water Services Ltd

  • Someone broke in and polluted waters
  • Said that such a third party act could not break the “chain of caustion”.

Empress – said defence may exist if the act of a third party is

“so far out of the ordinary course of things that in the circumstances any active operations of the defendant fade into the background” or

if the act of a third party is “of such a powerful nature that the conduct of the defendant cannot amount to a cause at all in the circumstances of the case.”

How do we know these types of cases?

  • Is foreseeability of third party action relevant?
  • In Empress Lord Hoffman held that this was absolutely irrelevant.
  • Causation was something totally different – and he said that many people cause things we not foresee actually occurring.
  • But, he did say that events which are “abnormal and extraordinary” such as terrorist bomb, would break the chain of causation.
  • How do you reconcile this?

2. Act of God

  • Example given in the Divisional Court in Empress was
  • Lightning which splits a tank containing pollutants in two thereby releasing the escape of the pollutants to water
  • Limits to it

3. Statutory Defences

  • Statutory licence is a good defence.
  • S.59(7) of the 1992 Act – compliance with standards – compliance with EPA authorisation.

Local Government (Water Pollution) Acts 1977-90

S.3(1). - A person shall not cause or permit any polluting matter to enter waters

Section 1 defines a polluting matter as

any poisonous and noxious matter and any substance (including any explosive, liquid or gas) the entry or discharge of which into any waters is liable to render those or any other waters poisonous or injurious to fish, spawning grounds or the food of any fish, to injure fish in their value as human food, or to impair the usefulness of the bed and soil of any waters as spawning grounds or their capacity to produce the food of fish or to render such waters harmful or detrimental to public health or to domestic, commercial, industrial, agricultural or recreational uses.

Proof of Harm or Detriment to Public Health

  • Water quality standards?
  • Ad hoc?

Other Elements of the Offence

Causing and permitting already discussed

Defence of reasonable care

  • Defences 1-3 apply with equal force
  • Also have Section 3(3) of the Local Government (Water Pollution) Act 1977 (as substituted by s.66 of the Waste Management Act, 1996) allows a defence of “reasonable care” – need show you

- took all reasonable care to prevent the entry to waters to which the charge relates

- by providing, maintaining, using, operating and supervising facilities, or by employing practices or methods of operation,

- that were suitable for the purpose of such prevention,

- and, where appropriate, that the entry to waters to which the charge relates arose from an activity carried on in accordance with an approved nutrient management plan

  • Slight move from strict liability? Would it make it easier to argue against it as matter of common law?
  • Accused still carries the burden of adducing evidence to show that he took the requisite reasonable care.

1

[1] [1996] 3 IR 267