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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Ni Eili v. Environmental Protection Agency [1999] IESC 64 (30th July, 1999) URL: http://www.bailii.org/ie/cases/IESC/1999/64.html Cite as: [1999] IESC 64 |
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1. 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 Orla Ni Eili (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.
2. 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 85 of 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”
.
3. 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
4. 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 thorough 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
6. The
Environmental Impact Statement was forwarded to the Agency on the 27th October,
1995,
and
on the same date notice of the application to the Agency for a licence and for
a review of the existing licence was published in various newspapers including
the
Clare
Champion.
More
than one hundred submissions and objections were received in response to that
advertisement.
7. In
a memorandum dated the 26th April, 1996, the Agency’s inspector, Mr Frank
Ryan, analysed the application by Roche, the contents of the EIS and the
submissions received in i-elation thereto. It was his recommendation that an
IPC licence should be granted in accordance with the draft submitted to the
Board of Directors of the Agency.
8. On
the 9th May, 1996, the Agency gave notice in accordance with section 85 (2) of
the 1992 Act of its Proposed Determination of a review of the IPC licence
indicating - as required by section 85 aforesaid - that in the event of no
objection being taken to the proposed determination the Agency would make its
decision in accordance with that determination and
9. As
numerous objections were received from various individuals and organisations
(including Roche which objected to various conditions imposed or to be imposed
on the revised licence) the Agency directed an oral hearing to be conducted
under section 86 of the 1992 Act and appointed Mr Kieran O’Brien to
conduct that hearing. The hearing was held at Ennis. It commenced on the 25th
September 1996 and the objectors and their advisors were heard over a period of
four days. Evidence was taken from twenty-three witnesses including Dr Charles
V Howard, a medical doctor, a specialist in toxicology and a lecturer in the
pathology section of Liverpool University and Professor Rappe whose
curriculum
vitae
qualifies
him as an expert on dioxins in relation to which he has advised the World
Health Organisation, the European Union and various government bodies.
10. In
his report on the hearing Mr Kieran O’Brien recommended the granting of
the licence subject to the revision of certain of the conditions contained in
the original Proposed Determination.
11. At
a meeting of the Agency on the 12th December, 1996, the Agency determined to
grant a revised licence to Roche under the conditions set out therein.
12. Leave
to seek judicial review of the decision of the Agency was sought and obtained
on the 14th February, 1997, on the grounds set out therein. An application to
amend the statement of grounds was subsequently sought but refused by the order
of Mr Justice Kelly on the 6th May 1997. An appeal from that decision is still
pending before this Court.
13. The
grounds on which the Appellant was given leave to seek judicial review were
extensive but, as the submissions made on her behalf indicate, were focused on
the following propositions:-
14. In
his judgment the learned trial Judge recited the detailed submissions on fact
and on law which had been made to him by the Appellant, Roche and the Agency
and concluded by rejecting the propositions advanced on behalf of the
Appellant. In addition, the learned trial Judge refused to permit
cross-examination of any of the deponents by whom affidavits were sworn for the
purposes of the proceedings before him or to permit Counsel for the Appellant
to open what was described as
“the
Dutch Report”
exhibited
in an affidavit sworn by Dr
15. Howard.
Those rulings, as well as the substantive judgment and order, are the subject
matter of the appeal to this Court.
16. There
was little dispute between the parties as to the principles applicable in
determining whether a Court should set aside the decision of an administrative
body as having been made in excess of the powers entrusted to it by Statute.
The extent of the unreasonableness required to justify such an intervention was
identified in the judgment of
State
(Keegan) v. the Stardust Compensation Tribunal
[1986]
IR 642 at 658 in the following much-quoted terms:-
17. Chief
Justice Finlay (at pages 7 1-72 of his judgment) explained - particularly in
relation to the Planning Acts - the limited function of the Courts in matters
such as these in the following terms:-
19. Counsel
for the Appellant sought to overcome these formidable obstacles by relying
primarily on this simple proposition:
“The
issue”,
said
Mr Gaffney, SC, on behalf of the Appellant,
20. To
evaluate the submission of the Appellant on this issue it is necessary to
identify with some precision the areas of conflict between the Doctor and the
Professor. Not surprisingly, these two experts, whilst committed to the views
which they expressed, were in agreement on the basic chemistry of the dioxins,
the procedures by which they are detected; the means by which they are
measured, the notation by which they are recorded and the data generally known
and widely accepted by their peers in relation to these toxic substances.
21. The
December IPC licence restricts the emission of dioxins from the Clarecastle
plant to .1 mg/m
3
per
day and imposes conditions to that effect, the breach of which would expose
Roche to massive penalties. Professor Rappe thought this was a reasonable and
appropriate limit. It was the same limit as that fixed by the European Union
(see Council Directive 94/67/EC of the 16th December 1994) and one-half of the
level set by the US EPA. It conforms also with views which the Professor had
formed as a result of the very many studies which he had himself undertaken in
conjunction with other distinguished organisations. However, Dr Howard in the
course of the hearing referred expressly to a US EPA draft report which
expressed concern in relation to the non-cancer causing low dose effect of
PCB’s and dioxins. Professor Rappe pointed out that the particular report
had been heavily criticised, that it was labelled
“Draft
-
do
not quote or cite”
and
had been returned to the US EPA for re-evaluation. Furthermore, Professor Rappe
pointed out that the US EPA continued to licence incinerators on the basis of
proposed emission for dioxins of .2 mg/m
3
-
twice that permitted for the Clarecastle plant.
22. Perhaps
the main thrust of Dr Howard’s argument was the absence of what he
considered to be adequate analysis of the existing or ambient dioxin levels in
the locality of the plant. In
23. Dr
Howard referred critically to the tests and analysis which had been made in
relation to the presence of dioxins in the locality of the plant and the
inadequacy, as he saw it, of those researches. He pointed out that foetuses and
breast-fed infants were especially vulnerable to dioxins because their intake
from their mothers was high in proportion to the foetal and infant body weight
over a short period of time. Apparently, he had suggested at the oral hearing
that the level of dioxin in the local populous should be measured
by
“analysing a pooled breast milk sample from nursing mothers in the
area”
for
dioxin contamination. Apparently, he explained - though this is not recorded in
the notes of the inspector - that this is a procedure adopted in other
industrialised countries.
24. Of
course, Professor Rappe necessarily and clearly recognised that dioxins are
toxic. Indeed, the voluminous documentation dealing with the subject sets out
the relative toxicity of the different chemicals comprising this dangerous
group. Again, it appears to be universally accepted that dioxins disperse
rapidly in air, more slowly in water and accumulate over
25. It
is true that neither Professor Rappe nor Roche provided the Agency with
information as to the presence of dioxins in human beings, less still
breast-feeding mothers. There is no suggestion that evidence of that nature was
directly available to the Agency. In the final analysis the potential danger of
dioxins to human beings necessarily depended upon the quantities which they
ingest. Dr Howard emphasised what conventional wisdom had long established,
namely, that a safe or unsafe dosage level must be measured by reference to the
body weight of the persons exposed. Throughout the hearing and in the affidavit
sworn by the experts, these levels were discussed in picograms per kilogram
(pg/kg) per day. It is this factor which explains and necessarily confirms the
vulnerability of the infant breast-fed by a mother who has accumulated in her
system a quantity of dioxins which might be of a small but significant amount.
Professor Rappe for his part gave evidence at the hearing of evaluations and
re-evaluations of dioxin exposures undertaken by the Nordic Councils in 1955
which decided not to change what they had determined as the safe dosage level
namely, 5 pg/kg body weight per day.
26. Whilst
the Agency does not appear to have had any direct evidence of the levels of
dioxins in the local population, there was indeed a considerable body of
evidence available as to the
27. As
already pointed, out the EIS prepared in August 1995 recorded background dioxin
levels some samples taken at four locations in the area of the plant. The
analysis of those samples showed existing concentrations to be at minimal
levels. Even those figures were necessarily overstated. Where no dioxins were
detected, the assumption was made that they existed (or, more correctly, the
most toxic of the dioxins existed) and was present at the lowest level at which
it would have been detected if it had been present. In fact in only two cases
were dioxins actually found. The Agency had the added advantage that there was
in existence a report commissioned by them in April 1996 entitled
“Dioxins
in the Irish Environment”
based
on a survey carried out in June 1995 by Colman Colcannon. The cows’ milk
samples taken in the course of that survey were in fact analysed by Professor
Rappe at the University of Urnea, Sweden. That report emphasised the toxicity
of the dioxins and explained the effects thereof in experiments on animals
“at
levels [of] hundreds or even thousands of times lower than for most other
chemicals of environmental interest”
[pg.3].
The methodology of the report was explained in relation to the sampling that
was taken and the location of those samples. As it happens, two were taken in
County Clare, one in the South East and one in the West of the County. Some
were taken from neutral areas and other areas designated as
“hot
spots
“,
that is to say, areas which were regarded as potential dioxin sources such as
waste incinerators. What the report established was that, either in absolute
terms or by reference to other European countries, the ambient dioxin levels
were modest indeed. Furthermore it was recognised, and must be recognised, that
dioxins are generated, as Professor Rappe explained in his evidence, by routine
domestic and agricultural operations such as the burning of grasses
28. The
typical maximum rural background air level was given in the EIS report as .001
mg/m
3.
The predicted ground level concentration derived from the incinerator was
assessed at .00003 mg/m
3.
What the authors of the statement concluded was that this did not involve any
significant increase in dioxin levels as a result of the incinerator. Mr
Ryan’s report to the Board in 1996 took the same view and the Inspector
in his report concluded [at p605 - 2]:-
29. In
the final analysis it seems to me that such dispute as did exist between the
Doctor and the Professor - and more particularly the possibility of any concern
arising in the minds of the directors of the Agency - was the nature and extent
of the samples which should be undertaken before concluding that the
anticipated emission of dioxins as dispersed in the locality taken in
conjunction with existing levels of dioxin would not cause a health hazard.
31. In
my view there was nothing unreasonable or irrational in any way in a decision
based confidently on the views expressed by Professor Rappe confirming as it
did the views incorporated in the EIS and the reports. I am satisfied that the
learned trial Judge was correct in rejecting the argument based on
unreasonableness.
32. Mr
Justice Lavan declined to permit the Appellant to make this case. It was not
one of the express grounds on which leave to apply for judicial review had been
granted and the argument that it was implicit was, in my view, rightly rejected
by the trial Judge. Furthermore, even if this ground had been available to the
Appellant it does not appear that any argument based on it had been addressed
to the hearing officer having regard to the intensity, and I have no doubt the
sincerity, of the Appellant’s belief in the case which she seeks to
present I would offer the following observations on this purported argument.
The 1992 Act does not create different categories of licence. The distinction
in terminology does not involve differences in quality. No comparison could be
drawn between the 1992 Act and, say, the Intoxicating Liquor Acts. In relation
to the sale of intoxicating liquor there are important distinctions to be drawn
between public house licenses and restaurant licenses and between off-licenses
and on-licenses. Under the 1992 Act an industrialist either holds or does not
hold a licence to permit him to carry on an activity
33. Finally,
I would say that even if this argument were available to the Appellant and well
Founded I do not accept that it would form a proper basis for the exercise of
the Court’s discretion to grant an order of
certiorari.
As
was pointed out in
McBride
v. Galway Corporation [1998] 1 IR 485
,
it is inappropriate to grant such an order where the substance of the
legislation has been complied with - as was undoubtedly the case here - even if
precise requirements of the legislation were not met.
34. The
Appellant rightly recognised that the licensing provisions of the 1992 Act
apply to
“an
activity
and
not to
“an
incinerator”
or
other particular plant or machinery. What is argued, however, is that the
statutory
“activity”
is
defined in section 3 of the 1992 Act as meaning:-
35. The
particular process in this case is
“the
incineration of hazardous waste
“.
Article 10 of the 1994 Licensing Regulations provides that an application for a
licence shall:-
36. The
licensing section of the 1992 Act (section 83) specifically provides that the
Agency should not grant a licence or a revised licence unless it is satisfied
that (amongst other things):-
37. What
the Appellant argues is that these statutory requirements cannot be observed
because neither the Appellant (nor the other objectors) nor the Agency had the
opportunity to evaluate or analyse the actual incinerator to be operated and
the exact method and procedure to be used in the process or activity to be
licensed.
38. In
my view this argument, though attractive, is misconceived. The information,
drawings and explanations furnished in relation to the nature of the proposed
incinerator fully explained the technology which is to be used in the course of
the activity. It was clearly explained how the then ongoing vapour emissions
from the three main stacks would be treated in the incinerator process and the
technology was sufficiently explored to be compared with several other options
which were investigated and compared with that proposed by Roche. Indeed, it
seems that the Agency and the various experts were able to satisfy themselves
that the technology proposed by Roche was the best available without seeking to
prefer or justify it on any basis of cost. Whilst the Appellant and other
objectors (as well as the Agency) might have had some residual concern as to
whether the particular plant to be installed would achieve the result
anticipated by Roche and their advisors, any such misgivings were properly
satisfied by the express conditions imposed by the licence granted. If the
incinerator failed to operate at 11000 Centigrade or if the
“residence”
time
fell below two seconds (whether due to shortcomings in the incinerator or
otherwise), the licence conditions would be breached.
39. A
further condition imposed in relation to the installation of the plant provided
even more protection for the environment. Condition 7.3 of the Licence
expressly provides that, before the incinerator became operational the
commissioning programme had to be agreed with the Agency to demonstrate the
achievement of the operational parameters, the waste destruction efficiency and
the specified emission limit values fixed by the licence. The condition
41. This
is not a case in which an obligation is imposed by implication on an
administrative tribunal or body to give reasons for its decision. In the
present case the Licensing Regulations at Article 28 expressly provide as
follows:-
42. The
Appellant is, therefore, clearly correct in saying that the Agency was under an
obligation to give reasons and that not once but twice. First, it must give
reasons for its decision for its
“Proposed
Determination”
and,
secondly, reasons for its actual decision to grant a licence. The issue between
the parties related to the manner in which these reasons should be expressed
and the documentation in which they should be located.
43. The
reasons at the proposed determination stage could differ materially from those
at the licensing stage. The reasoning or
‘judgment”
of
the Agency at the different stages is likely to be provided for the benefit of
different parties. At the stage of the proposed determination, I would assume
that it is the Applicant who is most likely to be concerned by conditions
imposed by the Agency on his intended activity and the reasons by which it
justifies any particular intrusion on his industrial enterprise. The
application will only proceed to the decision process if objections are made
formally to the proposed and pursued determination. It would follow that such
objectors would at that stage have a clear interest in knowing the reasons of
the Agency for granting a licence opposed by them and, in particular, in those
cases - such as the present - where the opposition was based on expert evidence
and not merely personal preference or social pressures.
44. The
decided cases do provide some guidance as to the manner in which administrative
bodies may explain the reasons for their decisions. In
Golding
& Ors v. The Labour Court & Cahill Roberts Ltd
[1994]
ELR 153, 159, Mr Justice Keane pointed out that:-
45. More
specifically, in
O’Keeffe
v. An BordPleanala
[1993] 1 IR 39 (at page 76) Finlay CJ said of reasons provided by An Bord
Pleanala in the form of a combination of a brief
46. I
have no difficulty in accepting that the principles enunciated by Chief Justice
Finlay in the
O’Keeffe
case
would be properly and readily applied to a decision by the Agency in relation
to a proposed determination. The Applicant for the licence would readily
understand that the Agency was satisfied that the statutory conditions would be
met if, but only if, the conditions specified by it were met. Moreover, the
Applicant would have ample information and evidence with which to seek judicial
review if he wished to contend that any of the conditions imposed were
ultra
vires
the
Agency.
47. Where
a decision to grant a licence is made, the position is different. In that
event, by definition, objections will have been made to, and submissions
received by the Agency in relation to such objections. If a licence is indeed
granted, it might be inferred that those objections had been overruled or the
submissions rejected. That would not be an adequate compliance with the
Regulation. Those who have gone to the trouble and expense of formulating and
presenting serious objections on a matter of intense public interest must be
entitled to obtain an explanation as to why their submissions were rejected. I
did comment -perhaps not very helpfully - as to the nature and extent of the
reasons which administrative tribunals must give for their decisions in
O’Donoghue
v. An BordPleanala
[1991] ILRM 750
(at
757)
in
the following terms:-
48. Those
comments accord with the subsequent decision of the House of Lords in
Bolton
Aktropolitan District Council v. The Secretary of State for the Environment
[1995] IPL 1043 and the more recent decision of the Court of Appeal in England
in
MJT
Securities Ltd v. Secretary of State for the Environment [1998] TPL 138.
In
the latter case, Evans U summarised the statutory obligation at page 144 in the
following terms:-
49. In
the present case I have no doubt that the Agency was required to identify the
serious objections put forward by the various organisations (including that to
which the Appellant belonged) and to show that there was an answer to those
objections which the Agency could, and did, rationally prefer.
50. Where,
as in the present case, there are numerous (over one hundred) objections
presented by a wide range of interested parties (not all of whom had the
benefit of legal advice), there must have been difficulties in listing and
reviewing all of the objections, the arguments and the evidence in support
thereof and the conclusions or possible conclusions thereon. In my view, the
Hearing Officer, Mr Kieran O’Brien, in his reports appears to have
performed this task with extraordinary clarity and cohesion and fully deserved
the compliment paid to him by the Agency at their meeting of the 12th December,
1996. Mr O’Brien dealt with the wide range
51. The
minutes of the meeting of the Board of the Agency held on the 12th December,
1996, recorded the presence of the Director General and three other members of
the Board. In addition, the Hearing Officer, Mr O’Brien, (who is
described in the minutes as Chairman or ‘Chairman: oral hearing”),
was also present. The minutes list the full documentation which the Chairman
had compiled from the date of his appointment to his final recommendations. It
appears that the Chairman (Mr O’Brien) made a presentation in relation to
those documents. Again, the minutes record that there was a detailed discussion
on the Chairman’s report and the attachments. The operative record of the
decision of the Board then appears in the following terms:-
53. The
foregoing is the decision of the Agency to grant the licence and, clearly, the
reasons for doing so are because the Board accepted the recommendations of the
hearing officer appointed by them. Perhaps it might have been more appropriate
for the Agency to say (and for the secretary to record) that the Board accepted
not merely the recommendations but also the findings and the conclusions of
their Hearing Officer. On the other hand it seems that the acceptance of the
recommendations necessarily implied the acceptance of the conclusions on which
they were based. In my view, the Agency in its decision indicated that it was
granting the licence sought by Roche because it was satisfied to accept, adopt
and apply the conclusions reached by the Hearing Officer and his proposed
rejections and arguments raised by the objectors. The reasons for the rejection
of the objections are to be found therefore in the report of the Hearing
Officer and these are as ample as any party could require. They were
incorporated by reference in the decision and in my view it was not essential
in the circumstances of the present case to repeat those reasons in the minutes
of the Board meeting. I am sure that the licensing regulations anticipated that
the record of the decision of the Agency would itself explain shortly and
simply why the objections raised were rejected.
54. Certainly
it is desirable that the reasons for the decisions of the Agency should be
readily available without the necessity of excessive research or inquiry. In
the present case, the number of objections and the important issues which they
raised were such that their consideration and ultimate rejection could not be
recorded otherwise than by reference to a voluminous schedule which would
merely duplicate the report of the inspector. In the circumstances I am
satisfied that the manner in which the reasons were given was, in the
circumstances of the present case, sufficient compliance with the Regulations.
In less complex cases it would not be appropriate to adopt a similar course.
55. Subsequent
to the meeting and decision of the Board, the Agency granted the licence in a
document dated the 17th December, 1996, which was issued under the seal of the
Agency purporting to be the actual grant of the revised licence. That did not
contain - nor was it required by Article 28 of the 1994 Regulations to contain
- reasons for the decision to grant such a licence. It is the decision to grant
the licence and not the licence itself which is required to contain the reasons.
56. Accordingly,
I am satisfied that the learned trial Judge was correct in rejecting the
argument based on the inadequacy of reasons.
57. As
to the grounds of appeal arising from the particular rulings made by the
learned trial Judge in the course of the hearing it is, I believe, sufficient
to say that the learned Judge was entitled n the exercise of his discretion to
refuse to permit cross-examination on the affidavits filed in the proceedings (
see
McElhinney v. Williams [1994] 2 ILRM 115
)
and, more particularly, the learned Judge was clearly correct, in my view, in
refusing to permit the introduction of the “Dutch Report” or any
other evidence which had not been referred to in the proceedings
58. It
was the duty of the Agency, he contended, to make itself aware of all relevant
material before granting a licence to incinerate hazardous waste. The report
was highly material, he submitted, and clearly it was not considered by the
Hearing Officer or by the Agency. It was on that ground he claimed that the
decision should be set aside. Whilst undoubtedly the Agency has the statutory
obligation to perform its duties to the highest professional standards it would
be quite unrealistic to suggest that the Agency was bound to familiarise itself
with every publication on the issues arising on the applications before them.
There must be some limit to the researches which a regulatory body can properly
undertake without delaying unreasonably or indefinitely its decision on
applications properly made to it. Indeed, the fact that the Dutch Report was
delivered by the Health Council of the Netherlands to the Minister for Health
Welfare and Sports of that country on the 6th August, 1996 - it is not clear on
what date it was circulated - explains why no reference was made to it in the
course of the hearing in September, 1996, and the fact that the report contains
a list of the literature considered by the Council exceeding one hundred and
fifty books or papers or reports illustrates the unreality of the contention
that a decision should be invalidated because the Agency could be shown to have
been unaware of the contents of any particular academic contribution.
59. In
these circumstances, the appeal must in my view be dismissed but before doing
so there are two peripheral matters to which I wish to draw attention. First, I
would recall the observation made by the Chief Justice to the effect that the
Appellant and other objectors performed an important public service by
expressing their concern and raising specific
60. Finally,
it may be helpful to remind the Appellant and others similarly placed that the
grant of a licence under the 1992 Act does not confer on the licensee the
permission to cause injury to health or damage to the environment or any
immunity from any other illegal process. It merely permits an activity to be
carried on which would be otherwise illegal. If the conduct of the licensee in
any case were to cause injury or damage or otherwise constitute a public
nuisance, the persons affected would continue to have available to them a
well-stocked arsenal of legal and equitable remedies although one would hope
that the conduct of the