Supreme Court of Ireland Decisions

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

5. First at paragraph 6.33 under the heading “Ambient Air Quality (Dioxin)” the report says:-

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:-

18. Chief Justice Finlay then concluded as follows (at pg. 72):-

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.

30. Logically, the Doctor must be correct in stressing the dioxin levels in the milk of nursing

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

40. I am satisfied that the learned trial Judge was correct in rejecting this argument.

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:-

52. Having dealt with one other matter, the minutes then go on to record as follows:-

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

61. I would dismiss the appeal.