Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
WATER POLLUTION
 Primary Focus – Enforcement – Criminal
Law
 The Legal Framework
 Local Government (Water Pollution) Act,
1977
 Local Government (Water Pollution)
(Amendment) Act, 1990
 (The Water Pollution Acts)
 Vast amount of regulations and Directives
 E.g. Local Government (Water Pollution)
Act,
1977,
(Control
of
Hexachlorocyclohexane and Mercury
Discharges) Regulations, 1986
 Scanell, Environmental and Land Use
Law, (Thompson Round Hall, 2006), at
Chapter 7.
 O’Laoghaire,
Inland
Waters,
(Butterworths, 1995) 344.417046343OLA
 Lots of other acts
o Oil Pollution of the Sea Act, 1956,
o Sea Pollution Act, 1991
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Example of Regulation – Technical Side of
Things
Council Directive 76/160/EEC Concerning the Quality of
Bathing Water
Article 3
“Member States shall set, for all bathing areas or for
each individual bathing area, the values applicable
to bathing water for the parameters given in the
Annex”
Annex
Parameters
G
(Guid
e)
Microbiolog 100
ical
Faecal
coliforms
/100ml
I
(Mand
atory)
2000
PhysicoChemical
pH
6-9
-
Min.
Method of Analysis
Sampling
and Inspection
Frequency
Fortnightly Fermentation on
multiple tubes.
Subculturing of the
positive tubs on a
confirmation medium.
Count according to
MPN or membrane
filtration and culture
on an appropriate
medium…subculturing
and identification of
the colonies.
Depends – Electometry with
where
calibration at pH 7 and
quality
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deteriorates
or have
reason to
test
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Water Framework Directive.







The Water Framework Directive 2000/60/EC
Ecological focus - sustainability of aquatic
ecosystems.
Not just regulates emissions/quantities of
pollutants – “total water management”
Water-flow
Issues of floods and droughts.
River basin management and River basin
management plan required for
particular
defined water-area
Must take into account objectives of Directive
 Prevent further deterioration and protect and
enhance the status of aquatic ecosystems
 Promote sustainable water use
 Aim
for
enhanced
protection
and
improvement of the aquatic environment
 Progressive reduction of pollution and
groundwater and prevent further pollution
 Contribute to mitigating the effects of floods
and droughts
 Implemented by the European Communities
(Water Policy) Regulations, 2003
 Duty on public authorities listed in Schedule 1 of
the Regulations to act consistently with these
objectives and “do” river-basin management.
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Introduction to Water Pollution Acts




Prohibition on causing water pollution,
Licensing of discharges to waters and to sewers
Water quality standards, and also
Civil and criminality provisions for polluters.
The Licensing Regime
 Offences
 S.171 of the Fisheries (Consolidation) Act,
1959
 S.3 of the Local Government (Water Pollution)
Act, 1977
 S.4 of the Local Government (Water Pollution)
Act, 1977
 Not offences if licensed
 IPPC - Specific issues in Waste Management –
division with IPPC/Waste
 Third Schedule to the Waste Management Act,
1996
 “release of waste into a water body” = “waste
disposal activity”.
 Balancing of “functions” to decide if Waste or
IPPC – but its EPA anyway.
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Criminal Offences
S.171 of the Fisheries (Consolidation) Act, 1959
The Offence
Any person who
(a) steeps in any waters any flax or hemp, or
(b) throws, empties, permits or causes to fall
into any water any deleterious matter
 “deleterious” matter - s.3 – any substance
which entry or discharge into water
 is liable to render those or any other waters
poisonous or injurious to fish…etc
Enforcement
 Anyone can prosecute – Fisheries Boards in
Practice
 Summary – 6 months or €1270
 Indictment – 5 years - €31750
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Elements of the Offence
Causation and Strict Liability
 Mens Rea and Actus Reus
 Strict Liability – Stat. Rape.
 S.171 – is it a strict liability offence?
Alphacell Ltd v Woodward
Paper making plant – tanks burst into river – no intention
for waste to enter the river – House of Lords held all that
was required was that prosecutor show polluter carried
on “some active operation or chain of operations
involving as a result pollution of the stream”.
Maguire v Shannon Regional Fisheries Board
Leak of pig feed – no question of negligence – taken
reasonable care- still liable – Lynch J in HC – strict
liability offence – policy reasons
Shannon Regional Fisheries Board v Cavan County
Council1
Cavan CC deliberately discharged sewage – claimed had
taken all reasonable care not to – but simply had to as
overworked. SC upheld offence as strict liability –
Keane J dissent – said one objective of SL is to make
people take greater care – undermined if you were liable
no matter how much care you took.
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[1996] 3 IR 267
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Causation
Wrothwell Ltd v Yorkshire Water Authority
Company director deliberately poured
herbicide concentrate into a drain – thought it
went to sewer – went to stream – fish kill –
claimed result was so unexpected he did not
cause it – rejected – if he didn’t cause it who
did?
May be an easy case, but it gets tricky
Empress Car Hire Company (Abertillery) Ltd
v National Rivers Authority
Lord Clyde took from Alphacell that “active
operation” required to “cause” - could not
include a situation where pollution arose from
“absolute passivity”.
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
But how passive must passive be?
Price v Cormack
Landowner who permitted another to build
effluent lakes on his land. They burst and
polluted but he was said not to have caused it –
“stood by”
Empress
Lord Hoffman said Price v Cormack had
Take a far too restrictive view of the
requirement that the defendant must have
done something. [The Act] only requires a
finding that something the defendant did
caused the pollution….Maintaining pools
of effluent or operating the municipal
sewage system is doing something.
So, one may still “cause” pollution, by
allowing something to happen on ones land,
like in Price v Cormack.
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
“Permitting”
Two ways to commit s.171 offence – causing and
permitting
In Alphacell Ltd.v Woodward, Lord Salmon stated:
The creation of an offence in relation to
permitting pollution was probably included in
the section so as to deal with the type of case
in which a man knows that contaminated
effluent is escaping over his land into a river
and does nothing at all to prevent it.
 Supposed to catch the Price v Cormack case
 But Lord Hoffman’s view overtakes the
relevance of that case
Vehicle Inspectorate v Nuttal.
 Employer permitted his drivers to work
beyond their legal hours.
 It was said that to “permit” something meant to
fail to take reasonable steps to prevent it.
 Thus, if nothing the employer could have done
would have prevented the drivers going
beyond the legal hours, then he could not have
“permitted it”.
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Defences
1. Chain of causation broken
 Novus Actus Intervenius – pub fight – crap medical
services
 Alphacell - Lord Wilberforce pointed out that
natural forces, acts of God and acts of third parties
could form a good defence – break chain of
causation?
 Third Parties/Vandals/Eco-Warriors?
National Rivers Authority v. Yorkshire Water Services
Ltd
 Someone broke in and polluted waters
 Said that such a third party act could not break the
“chain of caustion”.
Empress – said defence may exist if the act of a third
party is
“so far out of the ordinary course of things that in the
circumstances any active operations of the defendant
fade into the background” or
if the act of a third party is “of such a powerful nature
that the conduct of the defendant cannot amount to a
cause at all in the circumstances of the case.”
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
How do we know these types of cases?
 Is foreseeability of third party action relevant?
 In Empress Lord Hoffman held that this was
absolutely irrelevant.
o Causation was something totally different
– and he said that many people cause
things we not foresee actually occurring.
o But, he did say that events which are
“abnormal and extraordinary” such as
terrorist bomb, would break the chain of
causation.
 How do you reconcile this?
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
2. Act of God
 Example given in the Divisional Court in
Empress was
 Lightning which splits a tank containing
pollutants in two thereby releasing the escape
of the pollutants to water
 Limits to it
3. Statutory Defences
 Statutory licence is a good defence.
 S.59(7) of the 1992 Act – compliance with
standards
–
compliance
with
EPA
authorisation.
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Local Government (Water Pollution) Acts 197790
S.3(1). - A person shall not cause or permit any
polluting matter to enter waters
Section 1 defines a polluting matter as
any poisonous and noxious matter and any
substance (including any explosive, liquid or
gas) the entry or discharge of which into any
waters is liable to render those or any other
waters poisonous or injurious to fish, spawning
grounds or the food of any fish, to injure fish
in their value as human food, or to impair the
usefulness of the bed and soil of any waters as
spawning grounds or their capacity to produce
the food of fish or to render such waters
harmful or detrimental to public health or to
domestic, commercial, industrial, agricultural
or recreational uses.
Proof of Harm or Detriment to Public Health
 Water quality standards?
 Ad hoc?
Other Elements of the Offence
Causing and permitting already discussed
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Environmental Science and the Law – Water Pollution – © Brian Foley, 2006.
Defence of reasonable care
 Defences 1-3 apply with equal force
 Also have Section 3(3) of the Local Government
(Water Pollution) Act 1977 (as substituted by s.66
of the Waste Management Act, 1996) allows a
defence of “reasonable care” – need show you
- took all reasonable care to prevent the entry to
waters to which the charge relates
- by providing, maintaining, using, operating and
supervising facilities, or by employing practices or
methods of operation,
- that were suitable for the purpose of such
prevention,
- and, where appropriate, that the entry to waters to
which the charge relates arose from an activity
carried on in accordance with an approved nutrient
management plan
 Slight move from strict liability? Would it make it
easier to argue against it as matter of common law?
 Accused still carries the burden of adducing
evidence to show that he took the requisite
reasonable care.
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