___________________________________________________________
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
1
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)
2
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
1
As evidenced by the Commissions decision to instigate proceedings on the issue: see Case C-494/01
OEE Press Release 21st of October 2004
3
See EPA Press release 16th of December 2004
4
s.63(1) as amended by the s.13 of the 2003 Act.
2
3
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.
5
s.63(3) as amended by the s.13 of the 2003 Act.
6
DOEH 2004
at page 43.
7
4
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
8
s.14(3)
s.14 as amended by s.24 of the 2003 Act
10
s.14(1)(a)
11
s.14(1)(b) as amended by s. 24 of the protection of the Environment Act, 2000
9
5
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 19962003
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
12
s. 14 (4) as amended by s24(2) the Protection of the Environment Act, 2003.
6
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
Powers of authorised persons in cases of obstruction
Where an authorised person in the exercise of his or her powers under these
provisions is prevented from entering any premises or if an authorised person has
reason to believe that evidence related to a suspected offence under the WMA 19962003 may be present in any premises and that the evidence may be removed
therefrom or destroyed, the authorised person or the person by whom he or she was
appointed may apply to a judge of the District Court for a warrant authorising the
entry by the authorised person into the premises.17
An authorised person may, in the exercise of any power conferred on him or her by
the WMA 1996-2003 involving the bringing of any vehicle to any place, or where he
or she anticipates any obstruction in the exercise of any other power conferred on him
or her by or under this, request a member of the Garda Síochána to assist him or her in
the exercise of such a power and any member of the Garda Síochána of whom he or
she makes such a request must comply with the request.
Power to take samples
An authorised person may also be empowered to take samples and carry out tests,
examinations and analyses, for the purposes of the WMA 1996-2003.18
Monitoring and inspection powers
Under s.5(1) of the WMA 1996-2003 each local authority and the EPA must carry
out, or cause to be carried out, such monitoring of the nature, extent and effects of
emissions to the environment arising from the holding, recovery or disposal of waste
as it considers to be necessary for the performance of its functions under the Act.
13
s.14(5)(b)
s.14(5)
15
s.14(6)
16
s.14(6)(c)
17
s.14(7)
18
s.14(11)
14
7
Each local authority and the EPA must also carry out such periodic inspection of
facilities for the holding, recovery or disposal of waste, premises where hazardous
waste is produced, and the activities of persons otherwise holding or dealing in waste
as it considers to be necessary for the performance of its function under the Act.19
Each local authority and the EPA must maintain records of any monitoring or
inspections carried out by it under these provisions, as it considers reasonable and
necessary.20
Where it appears necessary so to do for any purpose of WMA 1996-2003, a local
authority or the EPA may require any person who holds or is in control of the
recovery or disposal of any waste to carry out or arrange to have carried out such
monitoring in relation to the activity concerned as the local authority or the EPA may
specify and to keep and to supply to the local authority or the EPA such records of the
said monitoring as the local authority or the EPA may specify. 21 This provision is
separate and additional to any similar obligations, which may be imposed by an IPPC
or Waste Management licence. It is an offence for any person to fails to comply with
a requirement under this provision. 22
Powers under the Litter Pollution Act 1977
The Litter Pollution Act 1997 has increased the powers of local authorities to combat
the problem of illegal dumping of refuse and rubbish. Where a local authority finds
material that is illegally dumped and establishes the identity of the owner of the
material, that person may face prosecution without necessarily having to be caught in
the act of ‘littering’.
Additional powers are also available to local authorities to require a householder or
business operator to indicate how and where they are disposing of their waste. This is
particularly relevant if the householder or business holder is not availing of a refuse
collection service or is bringing their waste to unauthorised disposal facilities. It is to
be anticipated that these powers will be more frequently availed of to address the
increasing growth in littering arising from attempts by householders to avoid domestic
waste charges.
19
s.15(b)
s.15(2)
21
s.15(3)(a)
22
s.15(3)(b)
20
8
ENFORCEMENT – THE PRINCIPAL STATUTORY REMEDIES
A number of provisions of the WMA 1996-2003 establish statutory remedies in
respect of Waste Management. Sections 46 and 47 of the 2003 Act introduce two new
sections - s.55A and s.56A into the WMA 1996, which extend the powers enjoyed by
local authorities under s.55 and s.56 of the WMA 1996 to the EPA. These provisions
will enable the EPA to exercise the powers under s.55 and s.56 to take steps for the
purpose of preventing or remediating environmental pollution without resorting to
Court application. These various remedies and their practical application are
considered in detail below.
Section 55 Waste Management Act 1996-2003
Under s.55(1)(a) of the WMA 1996-2003 where it appears to the EPA or a local
authority as respects its functional area, that it is necessary so to do in order to prevent
or limit environmental pollution caused, or likely to be caused, by the holding,
recovery or disposal of waste, the local authority or the EPA “may serve a notice
under this section on a person who is or was holding, recovering or disposing of the
waste, as the case may be” :A notice under s.55 may require:(a).
the taking of specified measures which the local authority or EPA considers
necessary in order to prevent or limit the environmental pollution concerned or
prevent a recurrence thereof,
(b).
the cesser of the holding, recovery or disposal concerned,
(c).
the mitigation or remedying of any effects of any activity aforesaid in a
specified manner,
within a specified period (not being less than 14 days commencing on the date of the
service of the notice).23
A notice under s.55 may also require the removal and/or disposal of waste to any
location or locations, the taking of measures to prevent the continuance of the activity
to which the notice relates, and/or the treatment of affected lands or waters so as to
mitigate or remedy the effects of the activity concerned. 24 Further, a notice under s.55
may also require the taking of such other action as may be necessary to counteract any
risk of environmental pollution arising from the activity concerned.25
A person on whom a notice under s.55 has been served may, within such period as
may be specified in the notice for the purpose, make representations in writing to the
EPA/local authority concerned regarding the terms of the notice, and the EPA/local
authority, having considered any such representations, may amend the terms of the
notice or confirm or revoke the notice, and must inform the person of such
23
s.55(2)
s55(7)
25
s.55(7)
24
9
amendment, confirmation or revocation.26 A person on whom a notice under s.55 has
been served must, within the period specified in the notice, comply with its terms. 27.
Any person who fails to comply with a notice under s.55 is guilty of an offence.28
It should be noted that notice under s.55 may be served whether or not there has been
a prosecution for an offence under the WMA 1996-2003 in relation to the activity
concerned.29 Further, it is provided that service of a notice under s.55 will not
prejudice the initiation of a prosecution for an offence under the WMA 1996-2003 in
relation to the activity concerned.30 An important limitation of the procedure under
s.55 is that a notice under s.55 ‘shall not apply in respect of the recovery or disposal
of waste’ carried on in accordance with a waste licence a licence or revised licence
granted under Part IV of 1992 as amended by the POE 2003 i.e. an IPPC licence. 31
The remedy under s. 55 is discretionary – in the sense that the EPA or a local
authority ‘may’ serve a notice. It is a condition precedent to the operation of the
provision that environmental pollution has occurred or ‘is likely to be caused’. In
essence s.55 is concerned with the actions necessary to ensure compliance with a
particular notice and is essentially a remedy of specific application.
Section 56 Waste Management Act 1996-2003
A somewhat similar remedy to s.55 is contained in s.56 of the WMA 1996-2003, save
that the provisions of s.56 are somewhat wider in scope. Under s.56(1) where it
appears to a local authority or the EPA that measures are required to be taken in order
to prevent or limit environmental pollution in its functional area, caused, or likely to
be caused, by the holding, recovery or disposal of waste, the local authority or the
EPA may take such steps, carry out such operations, recover or dispose of, or arrange
for the recovery or disposal of, such waste or give such assistance as it considers
necessary to prevent or limit such pollution or to mitigate or remedy the effects on the
environment of any such activity.32
Where a local authority or the EPA takes steps, carries out operations, recovers or
disposes of, or arranges for the recovery or disposal of, waste or gives assistance
under s.56, the local authority or the EPA may recover the costs of such steps,
operations, recovery, disposal or assistance as a simple contract debt in a court of
competent jurisdiction from such person as the local authority or the EPA satisfies the
court is a person whose act or omission necessitated such steps, operations, recovery,
disposal or assistance.33
26
s.55(4)
s.55(5)
28
s.55(8)
29
s.55(3)(a)
30
s.55(3)(b)
31
s.55((1)(b)
32
s
33
s.56(2)
27
10
Remedies for unauthorised holding, recovery or disposal of waste.
Supplementing and complementing the provisions of s.55 and s.56 are two statutory
enforcement remedies s.57 and s.58 which permit a local authority or the EPA to
obtain a wide range of court orders in relation to the holding, recovery or disposal of
waste. A key distinction between these two remedies and those under s.55 and s.56 is
that their operation is not restricted to the relevant local authority or the EPA, ‘any
person’ may apply under s.57 and/or s.58. A further important distinction is that the
operation of s.57 and/or s.58 requires a court application. The two remedies are
considered in detail below.
The POE 2003 Act also amends s.57 and s.58 of the WMA 1996. The practical utility
of these two provisions as a tool of enforcement was undermined by requirement to
satisfy the court that waste was or is ‘held, recovered or disposed of in a manner that
causes or is likely to cause environmental pollution’. This difficulty is addressed by
the amendment introduced by the 2003 Act whereby a person seeking orders under
this section need only satisfy the court that environmental pollution has or is been
caused or that s.34 or 39(1)34 of the act are being contravened. Thus activities such as
the collection, holding or disposal of waste without a waste management licence or a
waste management permit are now brought within the scope of the s.57 and s.58
without any requirement to establish that fact of environmental pollution.
Section 57 Waste Management Act 1996-2003
Under 57(1) where, on application by any person to the High Court, that Court is
satisfied that waste is being held, recovered or disposed of in a manner that causes or
is likely to cause environmental pollution, or s.34 or 39 of the act to be contravened it
may by order:(a).
require the person holding, recovering or disposing of such waste to
carry out specified measures to prevent or limit, or prevent a
recurrence of, such pollution, within a specified period,
(b).
require the person holding, recovering or disposing of such waste to
do, refrain from or cease doing any specified act, or to refrain from or
cease making any specified omission,
(c).
make such other provision, including provision in relation to the
payment of costs, including costs incurred by the agency in relation to
the carrying out of relevant inspections or survey and the taking of
relevant samples and the analysis of the results of any such activities as
the Court considers appropriate.35
There are relatively few limitations and/or preconditions to the operation of s.57. It is
specifically provided that an application under s. 57 may be made whether or not
there has been a prosecution for an offence under the WMA 1996-2003 in relation to
the activity concerned and it will not prejudice the initiation of a prosecution for an
34
35
These provisions deal with waste collection permitting and licensing
s.57(1) as amended by s.48 (c) of the Protection of the Environment Act 2000
11
offence under the WMA 1996-2003 in relation to the activity concerned.36 An
application under s.57 must be by way of motion, and it is necessary for an applicant
to adduce such evidence to satisfy the court ‘is being held, recovered or disposed of in
a manner that causes or is likely to cause environmental pollution’. The Court when
considering the matter may make such interim or interlocutory order as it considers
appropriate.37 Failure to comply with an order made by the court under s.57 would
clearly constitute a contempt of court and is an offence.38
Section 58 Waste Management Act 1996-2003
Under 58(1)(a) where, on application by any person to the appropriate court, that
court is satisfied that another person is holding, recovering or disposing of, or has
held, recovered or disposed of, waste, in a manner that is causing, or has caused,
environmental pollution or s. 34 or 39(1) have been contravened, that court may make
an order requiring that other person to do one or more of the following:
(i).
to discontinue the said holding, recovery or disposal of waste
within a specified period, or
(ii).
to mitigate or remedy any effects of the said holding, recovery or disposal of
waste in a specified manner and within a specified period.
Where a person fails to comply with an order made under this provision, a local
authority, as respects its functional area, or the EPA, may take any steps specified in
the order to mitigate or remedy any effects of the activity concerned. 39 The amount of
any expenditure incurred by a local authority or the EPA in relation to such steps
taken by it is recoverable as a simple contract debt in any court of competent
jurisdiction.
An application for an order under s.58 must be brought in a summary manner. The
court when considering the matter may make such interim or interlocutory order as it
considers appropriate. It would appear that the making of an order under s.58 on an ex
parte basis is precluded in that it is specifically provided that ‘ an order shall not be
made by a court under this section unless the person named in the order has been
given the opportunity of being heard by the Court in the proceedings relating to the
application for the order’.40
The ‘appropriate court’ for the purposes of s.58 is dependant on the estimated cost of
remediation. The application may be taken in the District Court, unless the costs
exceeds €6,350 where the application should be brought in the Circuit court.41 Where
the estimated costs exceed €38,092 the application must be taken in the High Court,
although the High Court retains its original jurisdiction to hear all such cases.
Provision is made for the court to transfer the proceedings to a High Court if it is of
the view that the estimate costs of remediation will exceed its jurisdiction. An
36
s57(3)
s57(2)
38
s.57(4)
39
s.58(4)
40
s.58(3)(a)
41
s.58(1)(b)
37
12
application under s.58(1) in the case of District/Circuit Court Proceedings should be
made to the judge of the District/ Circuit Court for the District/Circuit in which the
activity concerned takes place.42 An application for an order under s.58 must be
brought in a summary manner.
Once again it is specifically provided that an application under s.58(1) may be made
whether or not there has been a prosecution for an offence under the WMA 19962003 in relation to the activity concerned and this will not prejudice the initiation of a
prosecution for an offence under the WMA 1996-2003 in relation to the activity
concerned. The failure to comply with an order under s.58(1), is an offence and
additionally would also constitute a contempt of court. 43
The key distinction between s.57 and s.58 is that the latter section specifically
empowers the court to order a respondent to mitigate or remedy any effects of the
holding, recovery or disposal of waste. The operation of the two provisions is not
mutually exclusive and the provisions have and should be used in a complementary
manner. A further distinction is that as previously noted it would appear that relief
under s.58 is not available on an ex parte basis unlike s.57 where no such limitation
applies.
The practical application of s.57 and s.58
The practical application of s.57 and s.58 was illustrated by the decision of
O’Sullivan J, in Wicklow County Council v Fenton & Swalcliffe Ltd T/A Dublin Waste
& Louise and Eileen Moriarty.44 The applicant, Wicklow County Council sought
relief primarily under Section 58 of the 1996 Act against all the respondents but also
under Section 57. The case related to an illegal landfill. Orders were sought against
the landholder that he cease the holding, recovery or disposal of waste at the site, and
take all measures or steps necessary to prevent or limit the recurrence of
environmental pollution being caused or likely to be caused by reason thereof. In
addition orders were sought against all respondents including that each of them take
measures as the Court sought necessary to mitigate or remedy any effects of
environmental pollution caused by illegal dumping. Orders were also sought as
against all Respondents requiring them to put in place an effective on-going
monitoring, examination and inspection programme following remediation. Finally
the applicant sought that each respondent pay its expenses of managing the land as a
consequence of the illegal dumping. A number of aspects of the decision are of note.
Firstly, O’Sullivan J, expressed the view that having regard to the definition of
environmental pollution in the WMA 1996-2003 there was no requirement for
pollution to have actually occurred for the provisions of s. 57 and s.58 to apply, he
noted:
‘once it is accepted (as it was, at least to a significant extent, by the expert witnesses
called on behalf of the respondents) that the dumped material caused a risk, for
example to the ground water, then such a risk itself constitutes environmental
pollution according to this definition’45
42
s.58(1)(c)
s.58(7)
44
[2002] 2 I.R, Judgement of O’Sullivan J, delivered the 31 st day of July 2002.
45
At Para 4 of the judgement.
43
13
Secondly, in his overall interpretation of the WMA 1996-2003 he adopted the
‘teleological principle’ holding that he must interpret the provisions of s.57 and s.58
in a manner that achieved the objectives of the WMA 1996-2003, and having regard
to
the contents of the Council Directive 91/156/EEC46 and the Council
recommendation 75/436 which established the ‘polluters pays’ principle, transposed
into Irish law by Section 5 of the Waste Management Act, 1996.
Thirdly, whilst O’ Sullivan J, accepted, that because the wording of s.57 and s. 58 and
in particular the use of the word "may" in defining the jurisdiction conferred on the
court, this connoted a jurisdiction that was discretionary in nature. However he
considered that such discretion “must be exercised in accordance with principles
which include the principle that the objectives of the Act and of the underlying
directives must be achieved by the interpretation and application by this court of those
sections”.
Having regard to these consideration O’ Sullivan J, concluded that if a court can be
satisfied under s.57 and s.58 that a particular person causes or is likely to cause
environmental pollution and:
‘if it is established that an activity or omission of such a person brings about or
contributes to the bringing about of such pollution notwithstanding the absence of
proof of intention, foreseeability or recklessness and further notwithstanding that the
act of a third party or some natural event might have intervened as a contributing
factor to or subsequent link in the causal chain linking the person to the
environmental pollution’ 47
It is submitted that this interpretation of s.57 and s.58 in Fenton effectively establishes
that once a nexus has been established between the activity of the polluter and the
environmental pollution itself this suffices to establish the causation referred to in s.
57 and s. 58 and there is no additional requirement on an applicant to establish
negligence.
O’Sullivan J, therefore held for the applicants and granted the orders sought. These
included orders directing the comprehensive and required Dublin Waste (who had
been responsible for the dumping some of the waste) or alternatively the Directors of
Dublin Waste to carry out and/or complete those works in the event that Dublin Waste
was unable or failed to do so. The costs of remediation were to be born by Dublin
Waste with liberty for it to apply to the Court for a contribution of up to 50% from the
landowner. A further order was made that the Applicant be reimbursed the costs and
expenses involved in the prosecution of the offences and the management of the
unauthorised landfill with the landowner and Dublin Waste being held jointly and
severally liable to the Applicant for these.
The decision of O’Sullivan J, in Fenton is the leading precedent on the application of
sections 57 and 58 of the WMA 1996-2003. His interpretation of the provisions and
robust application of same underlines the potency of this remedy in practice.
46
18th March 1991
Emphases added. In this regard he expressly approved the comments of Lord Clyde in Empress Car
Company (Abertillery) Limited v. National Rivers Authority 2 AC 22,[1999].
47
14
ENFORCEMENT – THE PRINCIPAL STATUTORY OFFENCES
Both the Environmental Protection Agency Act 1992 and the Waste Management Act
1996-2003 and the Litter Pollution Act 1997 create a wide range of offences
encompassing all elements of the waste management process. Thus the collection,
holding, transport, recovery and disposal of waste and litter may in certain
circumstances give rise to criminal liability. These offences are supplemented and
augmented by a number of offences in the relevant secondary legislation, such as the
permit, and packaging regulations which are beyond the scope if this paper. It is not
possible address all the statutory offences in this paper, but the principal statutory
offences are discussed in detail below.
Section 32(1) of the Waste Management Act 1996-2003
Under s.32(1) ‘a person shall not hold, transport, recover or dispose of waste in a
manner that causes or is likely to cause environmental pollution’. Any person who
contravenes this provision commits an offence. In a prosecution for a contravention of
s.32(1) it will be a good defence to prove that the activity concerned was carried on in
accordance with a waste collection permit or waste licence under the WMA 19962003 or a licence or revised licence under Part IV of EPA of 1992 i.e. an IPPC
Licence. This statutory defence created by subsection (1) may only be relied upon
where a defendant can satisfy a court that activity of which it is accused is in
‘accordance’ with the terms of the relevant licence. This is obviously a matter for
evidence in each individual case. The provisions of s.32(1) are widely availed of in
cases of illegal dumping, as the broad scope of the offence it creates will generally
‘catch’ all the various elements of illegal dumping
Section 32(2) of the Waste Management Act 1996-2003
Under s.32(2) a person may not transfer the control of waste to any other person other
than:(a).
(b).
(c).
an appropriate person;
a person otherwise authorised under the WMA 1996-2003 ; or
a person authorised under the EPA Act 1992 to undertake the
collection, recovery or disposal of waste.
A person who transfers waste otherwise than in accordance with these provisions will
be guilty of an offence.48
It is important to note that the POE 2003 introduced a significant amendment to s.32.
Section 29 of the POE 2003 amends s.32(6) of the 1996 Act by the introduction of a
presumption, for the purpose of prosecutions, that the carrying on of a waste activity
other than under and in accordance with any requisite authorisation, then it "shall be
presumed, until the contrary is shown, that the carrying on of that activity was likely
to cause environmental pollution". Thus, a prosecution authority is no longer required
to establish environmental pollution. Prior to the amendment introduced by the POE
48
s.32(6)
15
2003 prosecution authorities had frequently encountered difficulties in convincing the
courts to a sufficient standard of proof that the activity had ‘caused or was likely to
cause environmental pollution’. It is submitted it is important not to overstate the
significance of this amendment; it merely alters the burden of proof in respect of one
(albeit important) component of the offence created under s.32. The burden of proof
still lies on the prosecution to establish the commission of the offence. It remains to
be seen as to what extent the amendment introduced by the 2003 Act will resolve
some of the practical difficulties previously alluded to in the prosecution of offences
in respect of illegal dumping under s.32.
Section 33 (8) of the Waste Management Act 1996 –2003
Under s.33(8) of the WMA 1996-2003 provides that a person cannot, without lawful
authority, disturb, interfere with or remove anything which has been deposited at a
facility for the deposit or storage of waste, or any plant, including any receptacles
situated at that facility, as well as anything deposited in a receptacles for waste,
whether such receptacle is for the use by members of the public. It is also an offence
for anyone to obstruct or interfere with the collection of waste by a local authority or
by an authorised waste collector.49
Section 34(1) of the Waste Management Act 1996 –2003
Under s.34(1) of WMA 1996-2003 no one other than a local authority shall for the
purposes of reward or with a view to profit or otherwise in the course of its business
collect waste save under and in accordance with a waste collection permit granted by
the local authority in whose functional area the waste is collected. A person who
contravenes s.34(1) or any requirement of Waste Collection Permit Regulations is
guilty of an offence.
Section 39(1) Waste Management Act 1996-2003
Under s.39 (1) a person must not dispose of or undertake the recovery of waste at a
facility unless such disposal or recovery is in accordance with a licence or a permit
granted in relation to that activity. This is one of the most significant and utilised
enforcement provisions of the 1996-2003 Act and is typically used in cases of
unauthorised dumping. It should be noted that the scope of this provision
encompasses not just disposal but also ‘recovery’ of waste. The operation of this
provision is subject to a number of exemptions.50
It is important to note that the POE 2003 introduced a significant amendment to the
operation of this provision and s.32. It is now provided that in a prosecution under
s.32 or s.39 relating to the recovery or disposal of waste on, in over or under any land
where it is proved (by reason of the nature of the recovery or disposal activity, the
length of time of the activity and certain other circumstances) that it is a reasonable
inference that recovery or disposal was carried on with the consent of the owner of the
land then ‘it shall be presumed, until the contrary is shown, that the recovery or
disposal was carried on with that landowners consent’.51 This amendment is clearly
49
s.33(8)(b)
s.39(7)
51
s.11A of WMA 1996 as amended by s.23 of the POE 2003
50
16
designed to address the problems experienced in prosecutions for illegal dumping
where the landowner would simply plead ignorance of any knowledge of such
activities. The amendment introduced by the POE 2003 would seem to greatly reduce
the scope for the application of such a defence under s.32 or s.39.
Offences under the Litter Pollution Act, 1997
The Litter Pollution Act 1997 (1997 Act) creates a number of offences which are of
relevance in the context of waste management. It is submitted that the 1997 Act will
become of increasing significance in future years because of the not entirely
unanticipated side-effect of the introduction of domestic waste management charges
which has already lead to a growth in littering as result of attempts by householders to
avoid the charges.
At the outset regard must be had to the definition of ‘litter’ under the 1997 Act. The
term ‘litter’ is defined as a substance or object, whether or not intended as waste,
other than waste within the meaning of the Waste Management Act 1996-2003 and
which is properly consigned for disposal, that when deposited in a place other than a
litter receptacle or authorised designated place for litter, is or is likely to become
unsightly, deleterious or unsanitary, either in isolation or in combination with other
matter regardless of its size or volume or the extent of the deposit. The term "deposit"
is widely defined under the Act. It includes, dropping, dumping, abandoning or
discarding the substance or object or allowing it to escape or be released. It is
important to note that the volume or extent of the deposit is irrelevant. It may also be
noted that the intention of the individual when depositing the material is not the
determining fact.
The range of offences and the scope of liability imposed under the 1997 Act is quite
wide. The principal offences under the 1997 Act are summarised below:Section 3(1): prohibits the deposit of any substance or object so as to create litter in a
public place or in any place that is visible to any extent from a public place. There is a
further prohibition on the deposit or loading, transportation or other handling or
processing of any thing, and the carrying on of a business or trade activity in such
circumstances as to create litter or lead to litter in any public place or any place that is
visible to any extent from a public place.52 Also prohibited is the placing of municipal
waste into or near a litter receptacle.53
Section 4(1): imposes an obligation on a person who is the registered owner or who is
in charge of a vehicle being used to transport goods or materials to take measures to
prevent the creation of litter from the vehicle on a public road or in a public place.
This provision also applies to a person who is the owner or who is in charge of a skip,
whether on a vehicle or parked or situated in a public place. 54 It is a good defence to a
prosecution under s.4 for the defendant to show that any litter created as a result of a
failure to take measures to prevent the occurrence was removed and properly disposed
of as soon as practicable after being created.
52
s.3(2)
s.3(3)
54
s.4(2)
53
17
Section 6(1): imposes a wide range of duties on occupiers regarding the prevention
and control of litter. Thus, the occupier of a public place (not being a public road or
building or other structure) shall keep the place free of litter. A further duty is
imposed on the occupier of any land (other than land consisting of a building or other
structure) that is not a public place that is to any extent visible from a public place, to
keep that land free of litter
Section 15(1): imposes an obligation on the owner, occupier or person in charge of a
mobile outlet that is used wholly or partly for the sale of produce, food or drink to
at all times when the outlet is open to customers, to provide and maintain adequate
litter receptacles in order to prevent the creation of litter. The, owner, occupier or
person in charge must ensure they clean up any litter arising out of the operation of
their outlets within a radius of 100 metres from the location of the outlet.
Section 23: A person who obstructs or impedes a litter warden or a member of the
Garda Siochana who is exercising functions under the 1997 Act shall be guilty of an
Offence. Litter wardens are obliged to produce a copy of their certification of their
authorisation to any person who requests it: s.23(4).
Criminal Liability under water pollution legislation
Although not directly concerned with waste management, many aspects of the waste
management process can and have given rise to both civil and criminal liability under
water pollution legislation. This typically arises out of poor management of waste
disposal facilities which results in leachate contaminating either groundwater or local
rivers or lakes. Criminality liability may arise under either the provisions of the Local
Government (Water Pollution) Acts 1977 - 1990 or the provisions of the Fisheries
(Consolidation) Acts 1959 – 1990.
The enforcement of the Local Government (Water Pollution) Acts 1977 - 1990 rests
with local authorities and in certain circumstances with the EPA. A prosecution for an
offence under the 1977 Act may be taken by:
•
•
•
•
the local authority in or adjoining whose functional area any of the waters
concerned are situated; or
any person affected; or
the EPA where an IPPC licence is in place in respect of the activity; or
the Regional Fisheries Boards, who often take prosecutions under the 1977
Act.
The 1977 Act confers extensive powers on local authorities to prevent or control
pollution. These include the power to enter and inspect premises, to take samples, to
serve notices and to take actions to prevent or control pollution. Under the Act, any
person has a power to apply to the court for an order requiring a person responsible
for causing or permitting water pollution to mitigate or remedy the effect of the said
pollution.
A local authority is also empowered to serve a notice requiring the termination of the
entry or discharge of a polluting substance and the remedying of any effects. If there
is a failure to comply, the local authority may take any steps necessary to secure the
18
termination and to recover the cost from the person served with the notice.
Principal offences under the Local Government (Water Pollution) Acts 1977 - 1990
At the outset it should be noted that the scope of the Local Government (Water
Pollution) Acts 1977 - 1990 is relatively wide. The Act applies to rivers, streams,
lakes, canals, reservoirs, aquifers, ponds, watercourses or other inland waters, whether
natural or artificial. Also included within the scope of the Act are tidal waters and,
where the context permits, any beach, river-bank, salt marsh or other area which is
contiguous to rivers, streams, lakes, etc. The term "Aquifer" is defined as ‘any stratum
or combination of strata that stores or transmits sufficient water to serve as a source of
water supply’. This definition brings most (though not all) groundwater within the
scope of the Act. It should also be noted that the definition in the Act is such that it
brings within the control of the Act polluting matter which is disposed of in such
proximity to a water medium as to make it likely that it will ultimately join the
medium during a period of high flows or for some other reason.
The principal offence under the Act is contained in s.3(1) of the 1977 Act. It provides
that it is an offence for a person to "cause or permit any polluting matter to enter
waters". Under s.1 of the 1977 Act, the term "polluting matter" is widely defined. It
includes three components:
(1).
any poisonous or noxious matter and any substance (including any explosive, liquid
or gas);
(2).
the entry or discharge of which (poisonous or noxious matter or substance) 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, or to injure fish in their value as human
food; or
(3).
is liable to impair the usefulness of the bed and soil of any waters as spawning
grounds or their capacity to produce the food of any fish or to render such waters
harmful or detrimental to public health or to domestic, commercial, industrial,
agricultural or recreational use.
A number of aspects of this definition are worthy of comment. Pollution is determined
by reference to injury to stated beneficial users of water. It may be noted that the
definition of polluting matter is not confined to substances that are injurious to human
health. Substances that cause any damage to fish or aquatic life may fall within the
scope of the Act. Also covered are substances that may damage the recreational or
tourism value of waters that fall within the scope of the Act. Thus, substances which
are non-toxic in their own right, e.g. milk, may in certain circumstances fall within the
definition of "polluting matter" under the Act.
It is a defence for the accused to prove that he or she took all reasonable care to
prevent the entry to waters of polluting matter by providing, maintaining, using,
operating and supervising facilities, and by employing practices or methods of
19
operation which are suitable for its prevention. This defence, introduced by the 1990
Act, places an onus on the defendant to establish that suitable measures have been
taken to prevent the entry of polluting matter into the water. It is submitted that it is
apparent that ‘waste’ and/or ‘litter’ entering water would generally fall with the
definition of ‘polluting matter’ contained in Local Government (Water Pollution) Acts
1977 - 1990
Water pollution offences under the Fisheries Acts 1959 - 90
Criminal liability for water pollution may also arise under Fisheries Acts 1959 - 90.
This legislation creates an offence of water pollution under ss.171 and 172 of the
Fisheries (Consolidation) Act, 1959.
Section 171 provides that any person who:
(1)
steeps in any waters any flax or hemp; or
(2)
throws, empties, permits or causes to fall into any waters any
deleterious matter
will be guilty of an offence.
An exception is provided where such an act is done under and in accordance with a
licence granted by the Minister for the Marine. In practice very few licences have
been granted under s.171.
A further offence is contained under s.172 of the Act as amended, which provides
that it is an offence to discharge "deleterious liquid", which is contained or conveyed
in a receptacle which is within 30 yards of any waters, to any waters unless he or she
has complied with a certificate of suitable means for the prevention of deleterious
means. In practice no such certificate has ever issued.
The term "deleterious matter" is defined under s.2 of the Fisheries (Amendment) Act
1962 as:
"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 or 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."
Once again it is submitted that that it is apparent that ‘waste’ and/or ‘litter’ entering
water would generally fall with the definition of ‘deleterious matter’. The Acts apply
to any "Waters" which are defined in s.3 of the 1959 Act as: "any river, lake,
watercourse, estuary or any part of the sea".
It is should be noted that s. 311 of the Fisheries (Amendment) Act 1962 provides that
where an offence under the Fisheries Acts is committed by a body corporate and is
proved to have been committed with the consent or approval of, or to have been
facilitated by any neglect on the part of any director, manager, secretary or other
20
officer of that body corporate, the director, manager, secretary or other officer in
question is also deemed to be guilty of the offence.
The provisions of Sections 171 and 172 are enforceable by the Garda Síochána, the
Central Fisheries Board, a Regional Board or any other person.55 This provision
enables local authorities to take prosecutions under the Fisheries Acts. In practice the
relevant fisheries authorities exercise this power robustly and vast majority of such
prosecutions under s.171 are by fisheries boards.
PENALITIES FOR OFFENCES
Penalties for offences under the Waste Management Act 1996-2000
Under s.10(1) of the WMA 1996-2003 on conviction of an offence (other than an
offence referred to in s.10(2)) any person found guilt will be liable to:
(a) on summary conviction, to a fine not exceeding €3,000 or to imprisonment
for a term not exceeding 12 months, or to both such fine and such
imprisonment, or
(b) on conviction on indictment, to a fine not exceeding €15,000,000 or to
imprisonment for a term not exceeding 10 years, or to both such fine and such
imprisonment.
Section 10 (2) provides that a person guilty of an offence under s.16 (5),(6) (where the
offence consists of a contravention of regulations under subsection (4) of that section,
33 (8), 38 (7) or 40 (13) shall be liable on summary conviction to a fine not exceeding
€3,000 or to imprisonment for a term not exceeding 12 months, or to both such fine
and such imprisonment.
Where the contravention in respect of which a person is convicted of an offence under
the WMA 1996-2003 continues after the conviction, the person shall be guilty of a
further offence on every day on which the contravention continues and for each such
offence the person shall be liable, on summary conviction, to a fine not exceeding
€1000 or (in the case of an offence to which subsection 10(1) applies) on conviction
on indictment, to a fine not exceeding €130,000.56
The POE 2003 Act has introduced a significant amendment to the 1996 Act which
provides that when imposing penalties in respect of offences under the Act the court
must have regard to the risk or extent of environmental pollution and any remediation
required which resulted from the offence. The amendment introduced by the POE
2003 permits the Court to consider not only the extent of the environmental pollution
that arose but also the cost of any remediation necessary at the facility where the
offences were committed. This is an important provision as costs of remediation can
be significant and far outweigh any potential financial penalties imposed under the
WMA 1996-2003.
55
This conferred pursuant to s.309(1) of the 1959 Act (as substituted by s.49 of the
Fisheries Act 1990)
56
S.10(3) of the WMA 1996 as amended by s. 22 (e) of the POE 2003
21
Penalties for offences under the Litter Pollution Act 1997
The POE 2003 significantly increased the existing penalties under the 1997 Act
Under the 1997 Act, as amended by the POE 2003 a person guilty of an offence
under the Act the shall be liable:
(a) on conviction on indictment, to a fine not exceeding €130,000, or
(b) on summary conviction, to a fine not exceeding €3,000.
If the contravention in respect of which a person is convicted of an offence under the
1997 is continued after the conviction, the person shall be guilty of a further offence
on every day which the contravention continues and for each such offence he or she
shall be liable –
(a) on conviction on indictment, to a fine not exceeding €10,000, or
(b) on summary conviction, to a fine not exceeding €600.
The costs of prosecutions under the Waste Management Act 1996-2000
Where a person is convicted of an offence under the WMA 1996-2000 in proceedings
brought by a local authority, the EPA, or a person specified under s.11(2), the court
shall, “unless it is satisfied that there are special and substantial reasons for not so
doing,” order the person to pay to the local authority, EPA or other person, as the case
may be, the costs and expenses, measured by the court, incurred by the local
authority, EPA or other person in relation to the investigation, detection and
prosecution of the offence. These ‘costs’ include costs and expenses incurred in the
taking of samples, the carrying out of tests, examinations and analyses and in respect
of the remuneration and other expenses of directors, employees, consultants and
advisers, as the case may be. The term ‘special and substantial reasons’ is not defined
in the act, but it is submitted the term ‘special’ implies there must be some reason to
require deviation from the norm, whilst the use of the word ‘substantial’ implies that
any such reason should be weighty. As a result of this amendment it is submitted that
it will be very difficult for a defendant in a prosecution under the WMA 1996-2003
avoid the requirement to pay these costs. In any event, analysis of past prosecutions
of under the WMA 1996-2003 indicates in almost all cases the EPA was awarded its
costs, and that typically the amount of such costs was a multiple of any financial
penalty imposed.57 It should also be noted that it is OEE policy when taking
prosecutions to “petition the courts to impose sanctions that ensure that offenders
shall not derive economic benefit from violation of environmental law”.58
Penalties for offences under Water Pollution Legislation
The penalty for offences under the Local Government (Water Pollution Act) 19971990 upon summary conviction is a fine of up to €1,270 and/or six months
imprisonment. The penalty upon indictment is a fine of up to €31,750 and/or five
57
58
The largest award of costs during this period was IR20,000.
At page 2 of the OEE Enforcement Policy which is discussed in further detail below
22
years imprisonment. Provision is made in the Act for a local authority to apply to the
court to have any fine levied by the court paid over to it. Prosecutions for offences
committed by a body corporate may be taken against any director, manager, secretary
or other officer, or any person acting in that capacity, who consented or connived in
the commission of the offence or to whom the offence is attributable by reason of his
or her neglect.
The prosecution of offences under the WMA 1996-2003, and Litter Pollution Act,
1997
The prosecution of offences under the WMA 1996-2003 and the 1997 Act may only
be taken by the local authority, the EPA or the Director of Public Prosecutions. In
Irish criminal law a important distinction is made between indictable and summary
offences, which essentially refers to the manner in which the offences may be tried. In
overly simple terms summary offences are those which are tried by the courts of
summary jurisdiction i.e. the District Court. Indictable offences are those which may
be tried on indictment before a judge and jury i.e. the Circuit Court and the Central
Criminal Court.
Summary proceedings for an offence under the WMA 1996-2003 of the 1997 act
may be brought by a local authority (whether or not the offence is committed in the
authority's functional area) or by EPA. Prosecutions on indictment in the Circuit
Court may only be taken by the Director of Public Prosecutions.59 It should be noted
that where a district judge forms the opinion that the offence in question is not a
minor offence, he or she can decline jurisdiction and send the accused forward for
trial on indictment. Having regard to the increased penalties introduced by the POE
2003 District Court judges have increasingly refused jurisdiction.
Summary proceedings may be commenced either:
(a).
at any time within 12 months from the date on which the offence was
committed, or if, at the expiry of that period, the person against whom
the proceedings are to be brought is outside the State, within 6 months
of the date on which he or she next enters the State,
(b).
summary proceedings may also be commenced at any time within 6
months from the date on which evidence that, in the opinion of the
person by whom the proceedings are brought, is sufficient to justify the
bringing of the proceedings, comes to such person's knowledge,
(c).
whichever is the later, provided that no such proceedings shall be
commenced later than 5 years from the date on which the offence
concerned was committed .
or
or
59
Subsection 2 provides notwithstanding subsection (1), the Minister may, by regulations, provide
that summary proceedings for an offence aforesaid specified in the regulations may be brought by such
person (including the Minister) as is so specified.
23
Summary proceedings for an offence under the WMA 1996-2003 in respect of a
failure to comply with a condition attached to a waste licence or any other
requirements of or under the WMA 1996-2003 in relation to the carrying on of an
activity, the subject of such a licence, may only be brought by EPA.
In the case of indictable offences whilst there is no specific time limit for instigating
proceedings the courts have established that any accused has a right to a trial with
reasonable expedition.60 Thus ‘it is now firmly established that excessive delay in
lodging a complaint can provide a basis to prohibit the prosecution on the grounds
that it would be unfair to the accused to proceed with a trial due to the lapse of time
from the commission of the offence”.61
OFFENCES BY BODY CORPORATE
It is inevitably the position that waste management activities are conducted by a body
corporate typically a limited liability company, which will hold the relevant licence.
In these circumstances it will frequently be the case that criminal liability will attach
to a body corporate. Although the criminal law has always recognised that criminal
liability may attach to a body corporate, in practising fixing liability has proved
difficulty. In recognition of such difficulties a number of statutory provisions have
been introduced to ensure corporate bodies do not evade criminal liability.
Where an offence under WMA 1996-2003 has been committed by a body corporate
and is proved to have been committed ‘with the consent or connivance of or to be
attributable to any neglect on the part of a person being a director, manager, secretary
or other similar officer of the body corporate, or a person who was purporting to act in
any such capacity, that person as well as the body corporate shall be guilty of an
offence and shall be liable to be proceeded against and punished as if he or she were
guilty of the first-mentioned offence’. Where the affairs of a body corporate are
managed by its members, this provision will apply in relation to the acts and defaults
of a member in connection with his or her function of management as if he or she
were a director of the body corporate. It should be noted that both these provisions
only become operative subsequent upon the conviction of the body corporate. The
objective is clearly to ensure that officers a body corporate, in appropriate
circumstances take refuge behind the veil of limited liability. The terms ‘ consent’ and
‘connives’ has been the subject of judicial consideration in UK. It has been held that a
director consents to the action of a company when he is ‘well aware of what is going
on and agrees to it’.62 A director connives where ‘ he is equally aware of what is
going on but his agreement is tacit, not actively encouraging what happens but letting
it continue and saying nothing’.63
They therefore create what has been termed ‘a
form of derivative criminal liability’.64 In practice the Irish courts have displayed a
willingness to extend criminal liability to officers of a body corporate in accordance
with this provision where the evidence indicates this is appropriate. Practically
identically provisions are contained in the Litter Pollution Act 1997, the EPA Act
1992, and the Water Pollution legislation.
60
See generally Walsh, Criminal Procedure ,Chp. 1 pp.16-34.
Ibid p. 26
62
Huckerby v Elliot [1970] All ER 189
63
Supra.
64
See Environmental Liabilities, 2004, Jones and Parpworth a p.238
61
24
CIVIL LIABILITY IN WASTE MANAGEMENT LAW
The legal control of pollution occurs on a statutory and non-statutory basis, thus,
while the most significant legal controls over pollution and waste management
processes are contained in the various specific statutory provisions, e.g. the
Environmental Protection Agency Act 1992, and WMA 1996-2003. However other
non-statutory provisions are of considerable significance in the context of pollution
control and thus may give rise to liability at all stages of the waste management
process.
Of particular relevance in the context of pollution control and thus waste management
is the law of torts. A tort is a particular type of civil wrong, which in certain
circumstances can give rise to a civil remedy for damages or an injunction. It is
important to note that the law of torts is concerned with civil liability as distinct from
criminal liability. In general, to succeed in an action in tort, the person taking the
action (the Plaintiff) must establish that a breach of a recognised legal duty occurred,
and adduce evidence of some actual damage to the Plaintiff which was a result of the
wrongful actions of the defendant. However, there are many exceptions to the above
rules, and the law of torts recognises many defences whereby liability may be
avoided. There are many different types of torts; however, in the context of waste
management the torts of nuisance, negligence, trespass to land, and the rule in
Rylands v Fletcher are the most significant.
Nuisance
The common law has developed the principle of nuisance, which in the legal sense
means annoyance or harm. Nuisance may be public and private, and it is the latter
which is of most relevance in the context of waste management. Private nuisance is an
unlawful interference with a person's use or enjoyment of some right over or
connection with property. To constitute a nuisance the harm complained of must
either amount to an interference with the beneficial use of the property or cause actual
physical damage to the property. To succeed in an action for the tort of private
nuisance, it is necessary to establish some legal interest such as ownership or
occupation of the property which is the subject of the nuisance. The alleged
interference with property must be unreasonable and substantial damage must be
proved. Isolated, minor or trivial interferences are unlikely to constitute a nuisance.
Typically, it is necessary to produce evidence of repeated or continuous substantial
interference to establish nuisance. Examples of private nuisance in the context of
waste management could include the holding, recovery, transport, storage and
disposal of waste in such a manner as to permit noise, smoke, smells, fumes, water or
vibrations to escape onto or interfere with another person's property. If nuisance is
established the remedies can include damages or an injunction to prevent or restrain
the nuisance.
A well known of example of the application of the tort of nuisance is provided by
Hanrahan v. Merck, Sharp & Dohme 65 where the Plaintiff succeeded in an action in
nuisance against a local pharmaceutical plant firm arising from the nuisance caused
65
1988 ILRM 629
25
by offensive smells and the ill health of the second Plaintiff. The application of this
decision to the various waste management process is self-evident and it underlines the
potential liability, which may arise from the tort of nuisance. In the context of waste
management operations there have been a number of actions against waste
management facilities. The decision in McGrane v Louth County Council66 is of some
interest. The case related to a proposal by a local authority to develop a landfill
facility. The Plaintiff suing on his own behalf and on behalf of a residents association
sought an injunction to prevent the development of the facility on the basis that it
would constitute a nuisance. In this regard the Plaintiff adduced evidence that other
landfill facilities operated by the county council had given rise to nuisance. This was
contested by the County Council who argued the facility would be managed in a
manner, which would not give rise to a nuisance, and the Court accepted this
argument. However, the Court granted the Plaintiff the right to “to come back to court
at any time in the future, if an actionable nuisance is created by the manner in which
the site is developed or operated by the County Council”. However, it should be noted
that this case predated the licensing system introduced by the Waste Management Act
1996, the existence of which would probably produce a different result but it does
illustrate potential of the tort of nuisance in the context of waste management.
Negligence
Negligence is the most significant element of the law of torts. Negligence consists of
a breach of a legal duty of care owed by one person to another, as a result of which
breach the other suffers damage reasonably foreseeable as likely to result from the
breach of duty. It is necessary to establish damage. If negligence is established, the
party responsible may be liable for damages. Examples of the tort of negligence
arising in the context of waste management could include the holding, recovery,
transport, storage and disposal of waste where the operators of waste management
facilities or those holding and/or transporting waste act negligently, and as a result of
their negligence environmental damage occurs. In such circumstances those persons
who suffered such damage may be entitled to recover damages if they can establish a
link between the damage suffered and the negligence of the defendants. However the
requirement to establish negligence and forseeability, together with the difficulties of
causation, means that actions in negligence in the context of waste management
represent a relatively unattractive option particular having regard to the existence of
specific statutory remedies.
Trespass
Trespass to land is the unauthorised direct and forcible interference with the property
of another. This interference may take the form of entry on another person's property
or the deposit or removal of material from the property. The interference or entry onto
the property of another must be unauthorised. Environmental pollution may in certain
circumstances constitute a trespass to land. In the context of waste management, this
would most likely occur in circumstances where materials, substances or objects
related to the waste management process enter onto the property of another. Thus, the
unauthorised dumping of waste material on the property of another constitutes
66
High Court, Unreported. 9th of December 1993
26
trespass to land. Remedies to trespass to land include damages and/or an injunction to
restrain any further acts of trespass.
Rylands v. Fletcher
The principle of law referred to as the "rule in Rylands v. Fletcher" refers to the
principle established in the case of that name.67 The case revolved around the
construction of a reservoir on the defendants' land. The contractors engaged by the
defendants failed to block off mine shafts with the result that when the reservoir was
filled up, water went into the mine-shafts and flooded a mine belonging to the
Plaintiff. The principle establishes strict liability (but not absolute liability) if
something brought onto land or collected there escapes. The term "strict liability"
means liability without the need to establish fault. which frequently results from
substances brought onto lands and escaping. However, the principle is subject to
many limitations and restrictions which render its utility as a tool of environmental
protection limited. The most significant restriction is that the use of the land must be
"non-natural". This term has been somewhat unsatisfactorily defined by subsequent
court decisions, where the courts have given a very wide interpretation of what is a
"natural use". The result is that there have been few successful cases under the rule in
modern times, and a potential plaintiff is a likely to rely on the torts of nuisance
and/or negligence. The principle has obvious application in the context of waste
management. Liability could arise under Ryland v Fletcher where leachate from a
waste management facility escapes onto another’s property.
Civil liability for under the water pollution legislation
The Local Government (Water Pollution) Acts 1997-1990 also imposes civil as
opposed to criminal liability in respect of water pollution. These provisions
introduced in the 1990 Act may be viewed as an extension of the application of the
"polluter pays" principle. In certain circumstances, the person responsible for water
pollution under the Act may be required to compensate any person who has suffered
injury, loss or damage as a result of said pollution.
Sections 10 and 11 of the Water Pollution Act 1977 as amended by the 1990 Act,
allow a person to recover damages where polluting matter enters waters. Section 20 of
the 1990 Act provides that where trade effluent, sewage effluent or other polluting
matter enters waters and causes injury, loss or damage to a person or to the property
of a person, the person may recover damages in respect of such injury, loss or
damage.
Damages may be recovered from:
(a)
67
the occupier of the premises from which the effluent or matter originated
unless the entry to the waters was caused by an "act of God" or an act or
omission of a third party over whose conduct such occupier had no control,
being an act or omission that such occupier could not reasonably have
foreseen and guarded against; or
Rylands v Fletcher [1868] LR 3 HL 530
27
(b)
any person who, by an act or omission, occasioned the entry to the waters
which in the opinion of the court, would constitute a contravention by the
person of a provision of the Act.
This provision is without prejudice to any other cause of action that an individual may
have in respect of the injury, loss or damage suffered, i.e. a remedy under the law of
torts. Where the entry of trade effluent or sewage effluent is authorised under a
licence, or where the entry of polluting matter to waters is exempted under s.3(5) of
the Act, civil liability does not arise.
These provisions have been relied upon in the past in the context of waste
management activities. In Seery v. Gannon68, the applicant sought an order under s.
11 of the Water Pollution Act 1977, (as amended), to prevent the continuance of a
dump which the Plaintiffs argued would adversely affect their water supply. Although
in this case the Plaintiffs failed to obtain the order sought the court did adjourn the
matter generally with leave to re-enter the case if at any stage the dump began to
cause pollution to the Plaintiffs water supply. In contrast in Meath County Council v.
Thornton, 69 the Plaintiff a local authority were successful in an action for damages
under s. 10 of the 1977 Act. The circumstances of the case were that a landfill
operator had not adhered to the terms of the planning permission granted for the
operation of the landfill and had polluted the water of a number of Plaintiffs in the
surrounding farmland. It should be noted that the court also remediation of the
damage caused. The cases underline the very real nature of the potential liability
which may arise to operators of waste management facilities from these provisions.
The EU Directive on environmental Liability
After an exceptionally long and troubled gestation period the EU Directive on
environmental liability with regard to the prevention and remedying of environmental
damage70 was adopted by the (Environment) Council of Ministers on the 21st of April
2004. These provisions will clearly have a significant impact on the scope and nature
of civil liability for damage caused by the waste management industry in future years.
A detailed analysis of this complex directive is beyond the scope of this paper but the
essential components of this directive are highlighted below. 71
In general terms the new directive establishes a public-law system of regulation of
environmental liability enforceable by designated competent authorities in each
member states. The directive recognises three types of environmental damages and
imposes a combination of strict liability on the operators of certain regulated activities
listed in Annex III and in the case of damage to habitats and species, fault-based
liability on operators of other, non-regulated activities. It imposes obligations on
operators to prevent and remediate environmental damage and entitles affected
individuals and interest groups to request action from the designated competent
68
High Court, Unreported 27th of July 1992.
High Court, Unreported 14th of January 1994.
70
2004/35/EC
71
[2004]. OJ L143/56. For a detailed analysis of the background to the directive see McIntyre, ‘The
New European Union Directive on Environmental Liability: Substantive Content and Practical
Implications’. IPELJ Vol. 11, No. 3 2004
69
28
authority to receive a prompt reasoned reply, in cases of imminent threat of damage to
the environment.
Member states are obliged to take measures to transpose the directive in to national
law by 30th April 2007 including the designation of competent authority to enforce the
obligations of the directive. Although currently unconfirmed it is anticipated that the
Environment Protection Agency will be designated the competent authority in Ireland
for the purposes of the Directive.
PRACTICAL CONSIDERATIONS IN THE PROSECUTION AND DEFENCE
OF WASTE MANAGEMENT ENFORCEMENT PROCEEDINGS
The approach in the prosecution and defence of waste management enforcement
proceedings is generally similar to that adopted in all civil or enforcement
proceedings . It is suggested that the following matters should be considered.
Making a decision to prosecute
A decision to prosecute in a given case will it is submitted be dependant on a range of
factors. These will include the nature and gravity of the offence, the conduct of the
accused, including the past record of the accused. However possibly the most critical
but not the only factor will be the probability of the prosecution having a successful
outcome. It is submitted there is little advantage pursuing a criminal prosecution that
has a poor chance of ultimate success, although in many cases the outcome can be
difficult to determine. In the case of local authorities and the EPA, regard should be
had to the OEE’s statement of Enforcement Policy. This policy sets out the general
principles, which the OEE intends to follow in relation to enforcement and
prosecution. The policy indicates the OEE will focus its direct actions on priority
issues and investigation of ‘serious cases’ of environmental pollution, but that
persistent minor breaches will not be ignored. When considering whether to prosecute
the policy states that apart from the individual facts of the case considerations will
include “the environmental and other effects of the offence, the forseeability of the
offence or the circumstances leading to it, the intent of the offender, individually
and/or corporately, the history of offending, the attitude of the offender and the level
of co-operation provided to investigating authorities, and where appropriate other
factors that may arise”.72 It is also stated that the OEE will encourage local authorities
to adopt a similar approach to prosecution in relation to enforcement as set out in the
policy.
The decision whether or not to prosecute on indictment is a matter solely for the DPP.
In practical terms this decision is made by the DPP having considered the file of
evidence forwarded by the relevant prosecution authority or the Garda Siochana. In
general the likelihood of a successful prosecution would appear to be overriding
factor in determining whether to prosecute.73 It will be interesting to note whether and
to what extent the DPP will adopt and or have regard to the OEE’s Enforcement
policy in respect of prosecution under environmental legislation. However it should
72
73
at page 4
For more detail see the Statement of General Guidelines for Prosecutors issued by the DPP in 2001.
29
be noted that the DPP does not elaborate or give reasons on its decision to prosecute
or not to prosecute in an individual case, nor is an individual decision of the DPP not
to prosecute subject to review by the Courts.74
Establishing whether a prima facie case made out
At an early stage in proceedings both prosecutor and defendant should for very
different reasons address the question as to whether the essential ingredients and/or
components of the offence(s) are present. In many cases this will be apparent in others
the matter will be uncertain. Thus, in any prosecution under the WMA 1996-2003 or
the Litter Pollution Act 1997, the question should be asked is the matter ‘waste’
within the meaning of the WMA 1996-2003, or is it ‘litter’ within the meaning of the
Litter Pollution Act 1997 ? In some cases this matter will be self-evident but it should
not be assumed. The issue of the definition of ‘waste’ has resulted in a long and
unsatisfactory series of court decisions cumuli mating in the recent decision of the
European Court of Decision in Van walle. As a result fundamental question of
whether a given substance is ‘waste’ can give rise to considerable uncertainty.
Equally both prosecutor and defendant must assess whether all the constituent
elements of the offence present e.g. has there been ‘disposal’ of litter or ‘waste’. In
civil cases the question will be are all the appropriate elements of the Tort present.
Technical defects in pleading
In certain circumstances defects in a summons or an indictment may form the basis
for a dismissal of criminal proceedings. It should be noted that in recent years the
scope for securing a dismissal on the basis of errors or omissions has been greatly
reduced by the provisions of the District Court Rules 1997 and in any event technical
defects are generally cured by appearance.75 The court also has a discretion to amend
the summons.76 Notwithstanding this, particular care is required with the drafting of
summons which must be sufficiently precise to permit the defence to adequately meet
the prosecution case. The following example is illustrative of the problems which may
arise in this context. In a prosecution under the Litter Pollution Act 1997 the
summons made reference to the ‘disposal of domestic and commercial litter’ at a
specified location. At the outset of the hearing the defence applied to have the case
dismissed on the basis that the summons lacked specificity and was too general in
nature in that it failed to specify the type and nature of litter which is was alleged the
accused had disposed. As a result the defendant argued it was prejudiced in the
preparation and conduct of its defence as the particulars disclosed by the summons
did not permit the defence to adequately meet the prosecution case. In reply the
prosecution argued it would adduce detailed evidence during the course of the hearing
which would clearly establish the offence of which the Defendant was charged. The
District Judge acceded to the defendants application and dismissed the prosecution on
the basis that an accused must be furnished with clear particulars of the offence of
which he is charged.
74
See State McCormack v Curran [1987] I.L.R.M 225.
See Order 38,r(1) and(2)
76
See State (Duggan) v. Evans 1978 112 I.L.T.R. 61 as to the approach the district judge should adopt
in this matter.
75
30
Broadly similar considerations apply in the context of the drafting of an indictment,
which must “contain, and shall be sufficient if it contains a statement of the specific
offence or offences with which the accused person is charged together with such
particulars as may be necessary for giving reasonable information as to the nature of
the charges”.77 Whilst the indictment need not specify how the particular offence
occurred “it is necessary to state the acts or omissions which establish the key
ingredients of the offence, particularly where they are instrumental in defining the
accused’s conduct as criminal or in distinguishing the offence alleged from a related
offence”.78
In the context of waste management prosecutions the prosecutor will need to take care
in the drafting of the summons/indictment to ensure that it is not duplicitous. This is
particularly so when the offence relates to a discharge or event of an intermittent
nature. Where a summons/indictment charges a defendant with numerous offences
arising out of events or discharges occurring between certain dates it is at least
arguable that the summons/indictment contains allegations of more than one offence
and is therefore invalid for duplicity. Whilst a single indictment may contain several
counts, no single count should charge more than one offence. If two or more offences
are alleged in a single count the count is said to be bad for duplicity. In practice
establishing whether more than one offence is being charged is challenging
particularly in the context of prosecutions for waste management offences.
Establishing the identity of the Defendant
Where a defendant is a limited liability company or a group pf companies
considerable care should be take to accurately identify the correct company which
was actually responsible for the process or activities the subject matter of the offence.
As each corporation is in law a separate legal entity treated as a different legal person,
if the wrong ‘person’ has been prosecuted, then the proceedings will have to be
withdrawn and recommenced. However a degree of caution must be exercised in that
the courts have lifted the ‘corporate veil’ in circumstances where it is unjustifably
relied upon to evade criminal liability. The general difficulties of establishing
criminal liability against corporate defendants have been discussed in detail above.
Statutory and Common law defences:
As previously noted in many cases the statute creating an offence also sets out
statutory defences. It both prosecuting and defending a waste management case it is of
course essential to check the statute to see whether the defendant could benefit from
any of these defences. In civil cases the application of the Statute of Limitations 1957
must be considered. In the context of non-criminal actions, or actions rooted in
common law there may be scope for the application of common law defences. As a
general proposition these are limited in scope, but a defendant may be in a position to
bring themselves with the scope of such a defence and thus evade liability.
77
78
Section 491) of the Criminal Justice (Administration) Act 1924.
Walsh p.745
31
Evidential issues
The ultimate success any case particularly a criminal prosecution depends upon the
presentation of admissible evidence in court. Such admissible evidence may come in a
wide range of forms including: statements/confessions from the accused, witnesses,
evidence from expert witnesses, technical evidence such as photographs, video
evidence, or other records. The admissibility of evidence particularly in criminal cases
is subject to detailed rules and procedures an account of which is beyond the scope of
this paper. In very general terms in criminal cases the courts will exclude evidence
obtained illegally, unconstitutionally or in an oppressive manner.
In the context of the admissibility of evidence regard should be had to the decision in
EPA v Swalcliffe Ltd T/A Dublin Waste, Louis Moriarty and Eileen Moriarty. 79 The
background to this case was a prosecution in the District Court under s. 39(1) and (9)
of the Waste Management Act 1996 in respect of alleged breaches of a waste licence.
In the course of the prosecution the question arose as whether the companies waste
licence audit report and any oral evidence to be adduced therefrom was admissible in
evidence. The matter was referred by way of case stated to the High Court. On behalf
of the accused it was argued that in the context of a criminal proceedings that the
waste audit report did not constitute a voluntary confession on the part of an accused
and thus the privilege against self-incrimination applied and the audit report should be
excluded. Kearns J, who was of the view that the privilege against self-incrimination
was not involved in the case, emphatically rejected this argument. He went on to
comment:
“in applying for a waste licence, the accused must be taken as having freely accepted
the conditions attaching to the licence, which formed part of the entire package under
the regulatory scheme. It was the accuseds’ own free choice to participate in the
particular activity and at the time they chose to do so they were well aware of their
record keeping obligations and of the penalties for non-compliance with the
requirements of the 1996 Act”
Kearns J, also highlighted the clear societal interest in having an effective waste
management regime and the fact that the regime established under the 1996 Act arose
out of Irelands obligations under the Waste Framework Directive. It would appear
from this case that Waste Audit Reports and indeed any materials voluntarily
furnished to the EPA will not attract the privilege against self-incrimination in any
subsequent criminal prosecution. However, it is submitted that one of the more
significant aspects of this judgement is the emphasis it placed on the fact that the
regime established by the WMA 1996-2003 arose out of obligations imposed under
EU law. This may indicate that in waste management prosecutions any future claims
of evidential privilege will be assessed having regard to such EU obligations in
addition to normal evidential rules to the advantage of the prosecution. Such an
approach may result in a restrictive attitude to claims of evidential privilege.
79
Unreported, High Court, Kearns J. delivered the 21 st of May 2004
32
In a prosecution by summons or on indictment the Defendant is entitled to request
copies of the prosecution evidence in advance. This may include documentary
evidence, records, inspection reports, expert reports and photographs. These together
with all witness statements should be very carefully scrutinised to assess whether they
sustain the case made for the prosecution.
From the perspective of the defendant it may be worth negotiating with the
prosecution body on the basis that the defendant’s previous record of compliance.
Depending on the circumstances it may be possible to persuade the prosecuting
authority not to proceed if one can point a good past record and willingness to assist
the relevant authorities in any way possible especially with the remediation of any
damage caused.
Sentencing in Waste Management cases
The passage of sentence is primarily a matter for the trial judge to determine subject
to any limits prescribed by law for the offence in question. Whilst the courts have
determined some sentencing principles to guide the exercise of this judicial discretion,
considerable latitude is conferred on the individual trial judge. Perhaps unsurprisingly
no specific sentencing principles have emerged in respect of offences cases involving
waste management. Thus in the context of offences arising out of waste management
operations the general principles of sentencing developed by the court are applicable.
The objectives of sentencing were summarised by Gannon J, in State (Stanbridge) v.
Mahon80 as follows:
“The first consideration in determining the sentence is the public interest, which is
served not merely by punishing the offender and showing a deterrent to others but
also by affording a compelling inducement and an opportunity to the offended to
reform. The punishment should be appropriate not only to the offence committed but
also to the particular offender”.81
To date there has been a perception that sentences in respect of offences arising out of
waste management operations have not reflected the gravity of such offences in terms
of the environmental damage caused. It is submitted that it is possible to discern a
change in judicial attitude, driven by the increase in penalties introduced by the POE
2003 and increasing public concern about illegal dumping and related activities.
Given the OEE’s stated intention to increase prosecution for such activities, the
veracity or otherwise of this perception will be tested in the immediate future.
It is considered appropriate to refer to the issue of mitigation in the context of
conviction for waste management offences. It is submitted that the standard approach
to mitigation adopted in all criminal cases is essentially applicable in waste
management cases. Whilst the approach to be adopted will very much dependant of
the individual facts of the case it is submitted that the following matters should be
addressed:
80
81
[1979] I.R. 214
at p. 218 of the judgement.
33
The probability of re-offending: As in all criminal offences the Court should take into
account the probability of the Defendant re-offending. Clearly if the Court can be
satisfied that it is unlikely that the Defendant will re-offend this is a matter that should
operate to the Defendants favour when determining the ultimate sentence.
The circumstances of the Defendant: The court should be informed about the history
of the company, its activities and the extent of its operation at the site in question.
Obviously a defendants records in respect of previous offences is of critical
importance. In addition one may wish to highlight a defendants past record of taking
advice and preventative measures to avoid damaging discharges and its past relations
with the regulatory bodies, all with a view to persuade the court that the defendant
takes its legal responsibilities seriously.
The circumstances surrounding the offence: The facts and the effect of the incident
should be placed in context. In appropriate cases, it is worthwhile pointing out that the
company derived no financial benefit from the offence and/or that there was no
attempt to cover up of the incident. A related question in this regard is whether a
defendant should report an incident as soon as it occurs not withstanding the privilege
against self-incrimination. The advantage of early reporting is that it will permit the
early minimisation of any damage which occurred and it can be used in mitigation at a
later date.
The behaviour of defendant subsequent to offence: In general credit should be sought
and generally will be given for an early plea of guilty and also for immediate
voluntary clean-up and restocking of fish etc – also voluntary taking of advice and a
review comprehensively its internal operating procedure, made any new investments
in new plant and machinery.
The indirect effect of conviction or sentence: In appropriate cases reference can be
made to the potentional adverse financial and cash flow effects of a harsh penalty and
the knock-on employment implications in the locality if a company is forced out of
business as a result of harsh fines. The impact of a conviction on future licence
application’s under WMA 1996-2003 and other environmental legislation should also
be highlighted.
34
FUTURE DEVELOPMENTS AND TRENDS IN WASTE MANAGEMENT
ENFORCEMENT AND LIABILITY
As the foregoing review of enforcement and liability has illustrated there exists an
exceptionally comprehensive statutory framework governing all aspects of the waste
management industry. This is particularly so since the improvements introduced to the
Waste Management Act 1996 by virtue of the passage of the POE 2003. As a result it
is difficult isolate any particular deficiencies or to envisage any pressing
improvements which are required to the current statutory framework in the context of
enforcement of waste management. Thus, it is submitted that whatever difficulties
exist with enforcement and liability in the context of waste management they cannot
be ascribed to deficiencies in the relevant statutory provisions.
The establishment of the OEE, and the National Enforcement Network represents
significant practical progress in the area of enforcement. When this is coupled with
the OEE’s enhanced ‘oversight ’ powers over local authorities the potential for a truly
effective enforcement network is apparent. After a somewhat difficult start the OEE
together with local authorities has begun to make substantial progress in the area of
enforcement. What is already in evidence is a willingness on the part that the OEE
and local authorities to exercise their additional powers in an increasingly robust
manner.
What is also apparent is the greater use of a multi-agency approach towards the
enforcement of waste management with increasing use of the Gardai and the National
Bureau of Criminal Investigation, and the Criminal Assets Bureau. The result will be
almost certainly be a significant increase in prosecutions and convictions. Those
convicted will almost certainly find the imposition of substantial penalties and costs
will be the norm. However, notwithstanding the progress made in the establishment of
the OEE and the existence of a comprehensive enforcement network the real question
is whether central government will provide sufficient resources to permit the effective
deployment of the enforcement network.
One further trend which may emerge will be an increasing ‘civilianisation’ of waste
management enforcement, as environmentalists and the public become more familiar
with the relevant provisions of the WMA 1996-2003 such as s.57 and s.58 and take
direct action against the infringement of the law.
In the context of liability the overriding tend will be a widening and deepening of the
scope and extent of liability in all aspects of the waste management process. This
process will be driven by increasingly tougher regulatory standards on the waste
management industry required by EU law. A key driver in this regard would it is
submitted will be the European Court of Justice. It has consistently taken an
expansive approach towards the issue of liability in waste management, underpinned
by its recent decision in Commission v Van de Walle et al82 where it ruled that an
unintentional spillage of petrol from storage tanks was waste and more significantly
that any soil contaminated by the spillage was also waste, even prior to its was excavation. This decision has huge practical significance for the waste management
82
Case C-1/03,7)
35
industry in Ireland an analysis of which is beyond the scope of this paper, and it
highlights the extent to which liability in waste management is developed at EU level.
However, it is submitted that perhaps the most significant trend in the context of
liability will be a growing realisation of the limitations of the ‘traditional’ regulatory
approach of prescribing regulatory standards and licensing, enforceable by legal
sanction. In recent years it is increasingly possible to discern a growing dissatisfaction
with this ‘traditional’ regulatory approach. This is because it is becoming increasingly
apparent for the traditional regulatory system be effective it must be heavily resourced
the cost of which is prohibitive? .
This issue has been the subject of much academic debate and in recent years a more
serious evaluation of traditional approach to environmental law is underway, which
has inspired a growing wave of proposals to reform or reinvent environmental law.83
Perhaps the most significant line of reinvention is the growth in favour of selfregulation in environmental law, or what is sometimes termed ‘reflexive environment
law.’84 The role of the law according to this theory is to construct ‘a law of ecological
self-organisation using strong external pressures for internal self-regulation’.85 Thus
‘reflexive environmental law’ aims to enlist intermediate social institutions – between
the state and the market in the task of environmental protection.86 In more practical
terms this approach to environmental law argues in favour of allowing and
encouraging private enterprises to ‘self-regulate’ their own environmental
performance. The key trend in this approach is to allow the rules, which govern
behaviour in the market, to be developed, administrated and enforced by the people
whose behaviour is to be enforced. In the context of environment self-regulation this
approach tends to promote self-regulation mechanisms such as Eco-Auditing and
Management schemes and the use of environmental agreements between regulated
entities and governments or private organisations and the development of ‘closed loop
product cycles’.87
Whilst much of this debate has been confined to academic circles it has clearly
impacted on policy makers most notably the EU. It has manifested itself in the
development of policies such as ‘Extended Producer Responsibility initiatives’ the
practical impact of which can be found in recent EU legislation such as the End-of-life
Vehicles directive88 and the Waste from Electrical and Electronic Equipment (WEEE)
directive and the Restriction of the Use of Certain Hazardous Substances in Electrical
and Electronic Equipment (RoHS) directive. This move at the EU level has to some
degree been replicated at domestic level in policy measures such as the introduction
See Ackerman. B, and Steward. R, ‘Reforming Environmental Law’ (1985) 37 Stan LR 1333 and
Knill C, and Lenschow A, ‘Alternative Approaches to implementing Environmental Law’ (Manchester
University Press, 2000)
84
This term has its origins in ideas of the German legal sociologist Gunther Teubner who is generally
credited with the development of the theory of reflexive law which he later applied to Environmental
Law. See Teubner. G, ‘Substantive and Reflexive Elements in Modern Law’ 17 L & Soc Rev 239
(1983) and Teubner. G, Farmer. L, and Murphy. D, (eds), Environmental Law and ecological
Responsibility: The Concept and Practice of Ecological Self-Organisation’ (John Wiley, 1994)
85
Farmer L, and Teubner, ‘ Ecological Self-organisation’ in Teubner et al, supra n 6 at 3.
86
Orts. E, ‘Reflexive Environmental Law’ (1995) 89 Northwest ULR 1227.
87
Gains & Kimber, Redirecting Self-regulation J.E.L Vol. 13 No.
88
Case C460/03 Commission v Ireland, judgement of the Court dated the 28 th of October 2004.
83
36
of waste management charges and proposed producer responsibility initiatives in the
area of construction and demolition waste, and in the newspaper and tyres sectors.89
Whilst there will always be a complimentary role for the ‘traditional’ regulatory
approach it is submitted that this ‘new’ approach is to be welcomed as it recognises
that illegal waste activities are fundamentally economically driven and the solution
will lie in effectively undermining the economic incentives that drive such activities.
However, whatever the precise future shape and direction of enforcement and liability
in Irish Waste Management law, the overarching theme is of ever-increasing
regulation, enforcement and liability.
April 14th 2005
Tom Flynn BL
Law Library,
Four Courts,
Dublin 7.
Tel: 01 8172818
087 2268959
Fax 01-8720455.
E-Mail: tflynnbl@eircom.net
89
See also the endorsement and recognition of the utility of producer responsibility initiatives in Waste
Management: Taking Stock and Moving Forward.
37