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 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. 6 The prospect of a penalty on indictment ever reaching fines up to £10,000,000, plus a maximum of £100,000 for every

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. 8 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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