Ni Eili v Environmental Protection Agency

JurisdictionIreland
JudgeMr Justice Francis D Murphy
Judgment Date30 July 1999
Neutral Citation[1999] IESC 64
CourtSupreme Court
Date30 July 1999

[1999] IESC 64

THE SUPREME COURT

Hamilton CJ

Denham J

Barrington J

Keane J

Murphy J

JR 58/1997
NI EILI v. ENVIRONMENTAL PROTECTION AGENCY
Judicial Review

Between:

Órla NíÉilí
Applicant/Appellant

AND

The Environmental Protection Agency
Respondent
Roche Ireland Limited
Notice Party

Citations:

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 PART IV

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

ENVIRONMENTAL PROTECTION AGENCY ACT 19921992 SCHED 1 (5.6)

EUROPEAN COMMUNITIES (ENVIRONMENTAL IMPACT ASSESSMENT) REGS 1989 SI 349/1989

LOCAL GOVT (PLANNING & DEVELOPMENT) REGS 1994 SI 86/1994 ART 28

EEC DIR 85/337

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S85(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S85

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S86

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S88(2)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S83

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

O'KEEFFE V BORD PLEANALA 1993 1 IR 39

R V CHIEF CONSTABLE OF NORTH WALES POLICE EX-PARTE EVANS 1982 1 WLR 1155

EEC DIR 94/67

ENVIRONMENTAL PROTECTION AGENCY ACT 19921992 SCHED 1 (11.1)

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S92

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S92(2)(a)

MCBRIDE V GALWAY CORP 1998 1 IR 485

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S3

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

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S5

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

GOLDING V LABOUR COURT & CAHILL MAY ROBERTS LTD 1994 ELR 153

O'DONOGHUE V BORD PLEANALA 1991 ILRM 750

CREEDON, STATE V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1989 ILRM 104

BOLTON METROPOLITAN DISTRICT COUNCIL V SECRETARY OF STATE FOR ENVIRONMENT 1995 JPL 1043

MJT SECURITIES LTD V SECRETARY OF STATE FOR ENVIRONMENT 1998 JPL 138

MCELHINNEY V WILLIAMS 1994 2 ILRM 115

FAULKNER V MIN FOR INDUSTRY 1997 ELR 107

Synopsis

Environmental Law

Environmental law; integrated pollution control licence; notice party (Roche Ireland Ltd.) had applied to the respondent for an integrated pollution control licence to install a vapour/liquid incinerator; as nature and scheme of proposed project lay within scope of EC (Environmental Impact Assessment) Regulations, 1989, those Regulations and the Local Government (Planning and Development) Regulations, 1994, required notice party to supply an environmental impact statement; following the giving of notice by respondent of its Proposed Determination, an oral hearing was held at which numerous objections were received from various individuals and organisations; respondent determined to grant the licence, subject to conditions; applicant appeals against dismissal of judicial review application by High Court; whether decision of respondent to grant licence was unreasonable; whether a licence, if granted at all, should have been a licence under s. 83 of the Environmental Protection Agency Act, 1992; whether the respondent had acted unlawfully in granting the licence when notice party had not at that time submitted precise details of the incinerator proposed to be used; whether the respondent had breached its statutory duty to provide reasons for its decision to grant the licence.

Held: Appeal dismissed.

Ní Eilí v. Environmental Protection Agency - Supreme Court: Hamilton C.J., Denham J., Barrington J., Keane J., Murphy J. - 30/07/1999

The applicant initiated judicial review proceedings in respect of a decision of the respondent to issue the notice party with a licence to incinerate hazardous waste. The applicant claimed inter alia that the proposed incinerator would release an unacceptable level of dioxins into the environment and that the respondent had failed to adequately consider this factor in making its decision and in issuing a licence. The applicant also argued that the decision itself was unreasonable, ultra vires and premature. It was also argued that the respondent had failed to furnish adequate reasons for its decision. The claim was rejected in the High Court. The Supreme Court rejected the appeal holding that the respondent in its decision had adequately considered the environmental threat posed by the release of dioxins . The Supreme Court also rejected the other grounds of appeal. The appeal was dismissed.

1

Mr Justice Francis D Murphy Delivered the 30th Day of July 1999

2

On the 17th December, 1996, the Environmental Protection Agency (the Agency) granted to Roche Ireland Limited (Roche) an Integrated Pollution Control (IPC) licence under Part IV of the Environmental Protection Agency Act, 1992, (the 1992 Act). Ms Órla NíÉilí (the Appellant) applied (pursuant to the liberty given in that behalf) for Judicial Review of the decision to grant the IPC licence. By a judgment and order given and made on the 20th February, 1998, Mr Justice Lavan refused that application. It is from that order that the Appellant appeals to this Court.

Background to the Proceedings
3

Syntex Ireland Limited commenced the production of certain chemical products at Clarecastle (near Ennis) in the County of Clare in the year 1975. In December 1994 Syntex Ireland Limited was sold by its American parent to Hoffman La Roche of Basel, Switzerland. Apparently, Syntex Ireland Limited changed its name to Roche Ireland Limited. The Agency, which had been incorporated by the Environmental Protection Agency Act, 1992, issued an IPC licence to Roche in 1995 which prescribed air emission limits for three of their main air emission points. Those interim limits were expressed to expire on the 1st December 1997 after which time the Clarecastle plant was required to meet new emission standards known as the BATNEEC Standards, that is to say, the "best available technology not entailing excessive costs". The possession of the licence issued by the Agency under the 1992 Act and the Environmental Protection Agency (Licensing) Regulations 1994 ( SI No 85of 1994) permitted Roche to carry on an activity to which Part IV of the 1992 Act applied, namely, the activity listed at 5.6 of the First Schedule to the 1992 Act ie. "The manufacture of pesticides, pharmaceutical or veterinary products and their intermediates."

4

On the 31st October, 1995, Roche applied to the Agency for a licence permitting the use of a hazardous waste incinerator. Previously, toxic waste by-products had been exported to the United Kingdom for incineration. It was apprehended that the exportation of toxic waste might be prohibited and, in any event, some change in the process would be required as the then current emissions in the three main air emission vents exceeded the new BATNEEC emission limit values for volatile organic substances and furthermore some changes would be required before the expiration of the then current IPC licence by the 1st December, 1997, in accordance with the time limit set by the Agency. In those circumstances Roche proposed to install a vapour/liquid incinerator to treat the air emissions from the three main air emission stacks as well as waste - halogenated and non-halogenated solvents. The incinerator was proposed to run at temperatures of 1100° Centigrade for halogenated waste and 850° Centigrade for non-halogenated waste with a two seconds "residence time" in both cases. It was anticipated that the proposed incinerator would reduce the volatile organic substances then being emitted to the atmosphere by 95 per cent, a proposal which was bound to be universally welcomed and its attainment not seriously disputed. What caused concern was the fact that the new process incorporating an incinerator would, unlike the then existing procedures, generate and emit a range of toxic chemicals collectively described as "dioxins". Apart from that specific concern, it is clear that the installation of an incinerator and, in particular, an incinerator to burn halogenated waste, was a cause of considerable anxiety to many people living in the vicinity of the Clarecastle plant. As the nature and scheme of the proposed project lay within the scope of the EC (Environmental Impact Assessment) Regulations ( SI 349 of 1989), those Regulations and the Local Government (Planning and Development) Regulations ( SI 86 of 1994) bringing into effect in Ireland the requirement of Directive 85/337/EEC (generally known as the Environmental Impact Directive) required Roche to supply a wide range of information relating to the environmental aspects of the project in the form of an Environmental Impact Statement.

5

That statement was prepared by Forbairt and is dated the 30th August, 1995. Very properly, that report deals with a wide range of environmental issues in what appears to be a comprehensive and through fashion but, in particular, it deals with the air emissions under the existing process and those anticipated from the proposed vapour/liquid incinerator. The statement recognised the obvious attractions of a process which would eliminate (or virtually eliminate) the dispersal of volatile organic substances from the plant. The statement considered a variety of processes by which that might be achieved and favoured that proposed by Roche. On the other hand, it recognised that the incineration of the waste product would generate dioxins. I will quote certain passages from the statement dealing with those chemical substances and the extent of the problems to which they were expected to give rise.

6

First at paragraph 6.33 under the heading "Ambient Air Quality (Dioxin)" the report says:-

"It is established that the burning of many organic materials may give rise to dioxins if the conditions are suitable and certain chemical precursors are present. Dioxin is a collective name for polychlorinated dibenzo-p-dioxins (PCDDs) and the related group, the polychlorinated dibenzo furans (PCDFs). More than two hundred individual chemicals make up both groups, with varying toxicities. In...

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