Ni Eili v Environmental Protection Agency

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Lavan
• Judgment Date: 26 February 1998
• Neutral Citation: [1998] IEHC 188
• Docket Number: J.R. No. 58 of 1997
• Date: 26 February 1998

NI EILI v. ENVIRONMENTAL PROTECTION AGENCY & ROCHE IRELAND LTD

JUDICIAL REVIEW

BETWEEN

ORLA NI EILI

APPLICANT

AND

THE ENVIRONMENTAL PROTECTION AGENCY

RESPONDENT

AND

ROCHE IRELAND LIMITED

NOTICE PARTY

[1998] IEHC 188

J.R. No. 58 of 1997

THE HIGH COURT

Synopsis

Administrative

Judicial review; certiorari; natural justice; regulation of emission of pollutants; integrated pollution control licence granted by respondent in order to operate a hazardous waste incinerator; whether decision to grant licence unreasonable and ultra vires; whether irrelevant considerations taken into account with regard to design of incinerator; whether sufficient evidence on which to base decision; whether failure to give reasons; duty and function of respondent considered; whether EU emission requirements complied with by respondent; Environmental Protection Agency Act, 1992; Environmental Protection Agency (Licensing) Regulations, 1994 Held: Certiorari refused (High Court: Lavan J.20/02/1998)

Ni Eili v. Environmental Protection Agency

Citations:

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) REGS 1994 SI 85/1994 ART 17(1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S88(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S85(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S85(1)

EEC DIR 94/67

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

P & F SHARPE LTD V DUBLIN CITY & COUNTY MANAGER 1989 IR 701

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S86(8)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)

MCCORMACK V GARDA COMPLAINTS BOARD 1997 2 ILRM 321

TRULOC LTD V MCMENAMIN 1994 1 ILRM 151

GARDA REPRESENTATIVE ASSOC V IRELAND 1994 1 ILRM 81

O'REILLY VO" SULLIVAN UNREP SUPREME 26.2.1997 1997/11/3523

SCHWESTERMANN V BORD PLEANALA 1995 1 ILRM 269

CARTON V DUBLIN CORPORATION 1993 ILRM 467

LITTONDALE LTD V WICKLOW CO COUNCIL 1996 2 ILRM 519

RYAN V COMPENSATION TRIBUNAL 1997 1 ILRM 194

ACT SHIPPING LTD V MIN FOR MARINE 1995 2 IR 406

STOKES V O'DONNELL 1996 2 ILRM 538

ASSOCIATED PROVINCIAL PICTURE HOUSES V WEDNESBURY CORPORATION 1947 2 AER 680, 1948 1 KB 223

FAULKNER V MIN FOR INDUSTRY & COMMERCE UNREP SUPREME 10.12.1996 1997/3/953

MAIGUESIDE COMMUNICATIONS V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) UNREP MCGUINNESS 18.7.1997 1998/8/2542

RAJAH V COLLEGE OF SURGEONS 1994 1 IR 384

MCGABHANN V LAW SOCIETY 1989 ILRM 854

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(2)(a)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(2)(b)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(2)(c)

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) REGS 1994 SI 85/1994 REG 10(1)(h)

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

GOLDING V LABOUR COURT & CAHILL MAY ROBERTS LTD UNREP KEANE 14.3.1994 1994/3/804

WASTE MANAGEMENT ACT 1995 S4

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S100

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S101

LOCAL GOVT (WATER POLLUTION) ACTS 1977–1990

AIR POLLUTION ACT 1987 S13

ENVIRONMENTAL PROTECTION AGENCY (EXTENSION OF POWERS) ORDER 1994 SI 206/1994 ART 4

ENVIRONMENTAL PROTECTION AGENCY (EXTENSION OF POWERS) ORDER 1994 SI 206/1994 ART 10

ENVIRONMENTAL PROTECTION AGENCY (EXTENSION OF POWERS) ORDER 1994 SI 206/1994 ART 16

AIR POLLUTION ACT 1987 S28

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(5)

RYAN V AG 1965 IR 294

C, STATE V FRAWLEY 1976 IR 365

A WARD OF COURT (WITHHOLDING MEDICAL TREATMENT) (NO 2), IN RE 1996 2 IR 79

DPP, PEOPLE V J T 3 FREWEN 141

CARRIGALINE COMMUNITY TV V MIN FOR COMMUNICATIONS 1997 1 ILRM 241

RADIO LIMERICK ONE LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1997 2 ILRM 1

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)(a)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)(b)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)(c)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)(d)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)(e)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83(3)(f)

ENVIRONMENTAL PROTECTION AGENCY ACT 19921992 SCHED 1 PARA 11

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) REGS 1994 SI 85/1994 ART 10

BOLAND V BORD PLEANALA UNREP SUPREME 21.3.1996 1996/1/119

IRISH PHARMACEUTICAL UNION, STATE V EMPLOYMENT APPEALS TRIBUNAL (EAT) 1987 ILRM 36

FENCHURCH PROPERTIES LTD V WEXFORD CO COUNCIL 1992 2 IR 268

TV3 LTD V INDEPENDENT RADIO & TELEVISION COMMISSION (IRTC) 1994 2 IR 439

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S82

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S88

KELEGHAN V CORBY & DUBLIN CORPORATION 1977 111 ILTR 144

HOULIHAN V BORD PLEANALA UNREP MURPHY 4.10.1993 1993/12/3737

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S87(2)

ENVIRONMENTAL PROTECTION AGENCY (LICENSING) REGS 1994 SI 85/1994 REG 28

BOLTON METROPOLITAN DISTRICT V SECRETARY OF STATE FOR ENVIRONMENT 1995 TLR 309

ANHEUSER BUSCH V CONTROLLER OF PATENTS 1987 IR 329

SAVE BRITAINS HERITAGE V SECRETARY OF STATE FOR ENVIRONMENT 1991 2 AER 10

TOWN & COUNTRY PLANNING (ENQUIRIES PROCEDURES) RULES 1988 R17(1)

PAYCEART MILLS ARBITRATION, IN RE 1963 1 AER 612

R V MAYOR OF LONDON EX PARTE MATSON 1996 8 ALR 49

GREAT PORTLAND ESTATES PLC V WESTMINSTER CITY COUNCIL 1984 3 AER 744

ELLIS V SECRETARY OF STATE FOR ENVIRONMENT 1974 31 P & CR 130

HOPE V SECRETARY OF STATE FOR ENVIRONMENT 1975 P & CR 121

R V WESTMINSTER CITY COUNCIL EX PARTE ERMAKOV 1996 2 AER 302

C V P 1992 COD 29

CITY & COUNTY MANAGEMENT (AMDT) ACT 1955 S4

1 Judgment of Mr. Justice Lavan delivered the 26 day of February 1998

2 The Notice Party, Roche Ireland Limited are a subsidiary of the well known multi national pharmaceutical group F Hoffman La Roche of Basel Switzerland. It bought Syntex Ireland Limited which, since 1975, had been manufacturing pharmaceutical products and their intermediates in a factory near Clarecastle, 5 km south of Ennis, County Clare. As a result of the coming into operation of the Environmental Protection Agency Act, 1992and in particular the Environmental Protection Agency (Licensing) Regulations, 1994 (S.I. No. 85 of 1994) the company was obliged to apply for an Integrated Pollution Control Licence under Part IV of the Act. This was on the basis that the company was carrying on an activity to which Part IV of the Act applied, namely the activity listed at 5.6 of the First Schedule to the Act, i.e. "the manufacture of pesticides, pharmaceutical or veterinary products and their intermediates.

3 The Notice Party and it s predecessors have operated a pharmaceutical manufacturing plant at Clarecastle, Co. Clare since 1975. An IPC Licence was granted to the Notice Party by the Respondent on the 1lth October, 1995 containing interim air emission limits which under the terms of this licence will expire on the 1st December, 1997 and after which the Notice Party will be required to meet new BATNEEC (Best Available Technology Not Entailing Excessive Cost) emission standards. On the 31st October, 1995 the Notice Party applied for a revision of this licence under Section 88(2) of the Environmental Protection Agency Act, 1992(the Act of 1992) which would allow for the operation of a hazardous waste incinerator on its premises at its premises at Clarecastle, Co. Clare. The purpose of this proposal was to reduce atmospheric emissions of volatile organic substance by the Notice Party by 95%. The proposal would entail an increase of less than 1% in the background dioxin levels.

4 The Notice Party submitted an Application, an Environmental Impact Statement and such additional information as was required by the Respondent. The Respondent received a large number of objections from various third parties comprising mainly local residents and farmers and fishermen working in the Clarecastle area. A proposed determination granting a revised licence to the Notice Party subject to thirteen conditions was issued by the Respondent on the 9th May, 1996 in accordance with Section 85(2) of the Act of 1992. The Respondent received a number of objections to the proposed licence both from the Notice Party (being the applicant for the licence) objecting to the conditions imposed and from third parties objecting to grant of the licence per se. The Applicant in these proceedings was one such objector under the umbrella organisation Clare Alliance Against Incineration (CAAI). In accordance with procedure, the Respondent circulated the written objections received from each objector to all other parties and allowed submissions in writing to be made by all parties on those objections (see Exhibit "B" of the Affidavit of Kieran O'Brien dated 7th May, 1977).

5 The Respondent then convened an oral hearing under Section 86 of the Act of 1992 and Kieran O'Brien was appointed a Chairman to conduct the oral hearing. The hearing was held at Ennis, commenced on the 25th September, 1996 and lasted for four days. Four objectors attended the hearing including the Notice Party and CAAI of which the Applicant was a member. Three of the parties had legal representation and evidence was heard from twenty-five witnesses including the Applicant. The Chairman furnished a report of the hearing to the Respondent.

6 At a meeting of the board of the Respondent on the 12th December, 1996 it was decided to grant the revised licence to the Notice Party subject to certain modifications of the draft conditions and the said licence was granted by way of decision dated the 17th December, 1996.

CHRONOLOGICAL SUMMARY OF RELEVANT DATES

7 (i) An Integrated Pollution Control Licence was granted to Roche Ireland on the 10th October, 1995 by the Environmental Protection Agency ( EPA).

8 (ii) An Application for a licence was lodged with the EPA on 31st October, 1995 to authorise the use of a hazardous waste incinerator for the first time and a request for a review of the existing licence was made on the 8th...