The Gazette 1996

GAZETTE

NOVEMBER 1996

require persons holding or controlling

waste to carry out specified monitoring

tasks and to maintain records.

Notices to prevent, limit or remedy

pollution

Section 55 may be used to achieve any

of three objectives: (i) to specify

measures to be taken which a local

authority considers will prevent or limit

pollution; (ii) to ensure the cessation of

a waste management operation; or (iii)

to require that the effects of

environmental pollution be mitigated

or remedied. This may involve

removal of waste, disposal subject to

conditions, discontinuance of an

activity and treatment of affected lands

or waters.

The procedure involves serving a notice

within a specified period. An addressee

will have a further specified period to

comply with the notice, and, in case of

default, the authority may intervene to

take reasonable and necessary steps,

and may recover its expenses. The

general provisions concerning the

service of notices are set out in

section 16.

Intervention to prevent, limit or

remedy pollution

Local authorities may step in where this

would prevent or limit actual or likely

environmental pollution resulting from

a waste-related activity, or mitigate or

remedy its effects. Under section 56,

local authorities may, where necessary,

take the requisite steps, carry out

operations, conduct or arrange for

recovery or disposal of waste, and

provide assistance. Again, the authority

may recover costs it incurs in the

exercise of these functions.

2. Criminal offences

Where an offence is committed under

the Act, guilty persons are liable to the

stringent penalties in section 10.

Convictions on indictment may result in

fines up to £10,000,000, plus a

maximum of £100,000 for every

subsequent day on which the offence

continues after the conviction, and/or

imprisonment for up to ten years. On

summary conviction, fines may not

exceed £ 1,500 and £200 per day for

continuing offences; imprisonment may

not exceed 12 months.

The prospect of

a penalty on indictment ever reaching

these heights is tempered by the

obligation placed on the courts to

consider the actual or potential

environmental pollution resulting from

the offence.

Prosecuting authorities may secure their

costs, and the payment to them of fines

awarded by the court, in accordance

with sections 12 and 13.

3. Civil remedies

Any person may seek the orders

provided for in sections 57 and 58.

Under section 57, persons may apply

on motion to the High Court for an

interim or interlocutory injunction.

The court is empowered to make

orders requiring the implementation

of pollution prevention measures or

the prevention of recurrences. In

addition, specified acts or omissions

may be prohibited.

Section 58 remedies concern the

improper holding, recovery or disposal

of waste, and may be sought in the

District, Circuit or High Court. The

remedy comprises an order to

discontinue the above activities, or to

mitigate or remedy them in compliance

with the order, with a view to

addressing environmental pollution

from existing or past waste

management activities. Should the

order not be complied with, the

relevant local authority or the EPA may

act to give effect to its terms and

recover expenditure incurred.

Neither of these courses of action

prejudice the initiation of prosecutions

of offences under the Act.

V. Some other issues

Interaction with other legislation

It is important to note that the 1996 Act

affects existing environmental

legislation. For instance, the Act repeals

a number of provisions relating to

waste, in particular those on aspects of

removal, deposit and disposal of waste

in the

Public Health (Ireland) Act,

1878

, the

Public Health Acts

(Amendment) Act, 1907

and the

Dublin

Corporation Act, 1890

(see Fifth

Schedule). It also revokes the existing

ministerial regulations on waste made

under the

European Communities Act,

1972?

Furthermore, the Act removes from

planning authorities the competence to

address environmental pollution in the

context of waste recovery and disposal

activities, and vests it in the EPA. There

is some degree of controversy

surrounding this reallocation of power.

However, section 54 resolves the matter

firmly in the EPA's favour with the

proviso that it must consult with

planning authorities before granting a

waste licence.

Finally, section 39 of the 1996 Act

greatly widens the licensing functions of

the EPA in the field of waste

management, which hitherto had been

limited to the activities, mainly

incineration, listed in the First Schedule

to the

EPA Act, 1992.

Contaminated land

The Act does not refer to contaminated

land to any significant extent. However,

where contamination of land results

from waste, it may be possible to have

recourse in limited circumstances to

civil remedies provided for in the Act,

particularly section 58.

Access to information

Procedures on access to information

are spread throughout the Act. The

main information provisions are to be

found in section 45 on waste licences;

section 34(11) on waste collection

permits; sections 23 and 26 on

waste management plans; section 19

on local authority and EPA registers;

and section 64 on toxic emissions

inventories.

Coming into operation of the Act

Although the making of statutory

instruments is ultimately a decision

for the Minister, all provisions must

be commenced within two years of

the passing of the Act (section 1(2)).

As was indicated earlier, all the Act's

provisions, bar sections 6(2), 32(2),

57 and 58, have been commenced since

1 July 1996. Further essential

regulations will concern procedures for

waste licensing, permitting and

authorisation. At the time of writing,

promised licensing regulations were

still being awaited. Other vital

regulations would concern aspects of

the general duty of a holder of waste

and standards relating to recovery and

disposal facilities.

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