o That the government amends the EPA Act, 1992 to include a provision that all IPPC licensees are required to provide:
o public access to the environmental records held by them as required under the licence
o a clearly visible notice at the main entrance to the facility announcing the availability of this information as well as the times when and location where the information can be viewed. The notice should also carry the names and contact details of the person within the organisation responsible for the provision, and the relevant OEE Inspector.
o a public participation programme to the EPA. This programme to be advertised at the time of its inception in the relevant newspapers, and to be displayed at the main entrance to the facility.
o an appropriate place where the public can view the information
o training for the appropriate staff on the provision of environmental information.
o training for the staff responsible for this provision to enable them to assist the public in understanding the information.
o That where there is controversy regarding environmental monitoring at a particular facility the EPA should be empowered through an amendment to the EPA Act to carry out the full range of the necessary environmental monitoring required under the licence, employing the appropriate contractors to perform the monitoring, and charging the Licence holder accordingly.
o That the government amends the EPA Act, 1992 to include a provision that all IPPC licensees that carry substantial stocks of flammable chemicals but where the quantities are below the threshold for section 17 of SI 74 of 2006 (Seveso Sites) are required to:
o provide a regularly updated inventory of same to the EPA and to the relevant local Fire Service
o have a fire safety certificate
o consult with the Fire Services, the EHO and the EPA in the creation of a periodically reviewed pre-fire plan, to include a public information programme
o That the requirements contained in IPPC Licences for the preparation of Environmental Emergency Procedures should include consultation with the public, Fire Services and EHOs. These procedures should include measures to inform the affected public as soon as is possible regarding the nature and gravity of the emergency, indicating the most appropriate actions for them to take to ensure their own safety. They should also include measures for reporting to the public and the relevant authorities after the emergency is over outlining the nature and scale of the event, the short and long term health/environmental consequences and the measures taken to ameliorate them and to prevent recurrences.
o That the EPA meets with the Fire Services to jointly address the general issues of safety and the environment relating to Sub Seveso Sites
o That fire reports should be made available electronically by the fire services free of charge and in paper format for the cost of a photocopy. This is environmental information and is dealt with in S.I. No 133 of 2007.
o That the EPA ensures that the relevant Environmental Health Office is informed in the case of fire at an IPPC licensed premises.
o That the EPA provides a variety of channels to access the information.
The fact that according to CSO figures barely 50% of the population has access to the internet would suggest the need for the Agency to work to proactively provide information through other routes. Information stored as paper files at the regional offices of the EPA is inaccessible to many. These files should be made available online and the public made aware that they are available for viewing free of charge through the local library.
o That universal environmental software is developed to enable the direct online feed of data to the EPA from the IPPC licensed facilities.
That this software is designed to convert this data, in real-time, into user friendly information available to the public through the ENVision environmental mapping system, as well as on site at the IPPC facility. Here it should appear as a graph/bar diagram etc showing the value as a percentage of the limit value, together with a laymanos explanation of the significance of the particular parameter being measured. The software system must also allow the member of the public to go beyond the graphics to access the raw data if they want to. The use of this software should be a condition of the licence.
o That the new ENVision interactive GIS environmental map facility on the EPA website be extended to show real-time environmental information in particular on IPPC licensed premises.
This valuable new tool has great potential for wide access use through public offices libraries schools etc.
o That the EPA provide a basic training package for the staff of the IPPC licensed facilities regarding their public information requirements.
This could be in association with the new software described previously.
o That the licensee is required to periodically publish non-technical information regarding environmental performance of the facility in the local newspaper(s).
o That the public information programme is prioritised as an important condition of the Licence as it provides the opportunity to enhance the activities of the OEE through community monitoring of a facility.
In this regard Section 86 (6) of the EPA Act, 1992 (as amended) should apply equally to this aspect of the licence as to any other.
oSection 86 (6) A person who fails to comply with any condition attached to a licence or revised licence shall be guilty of an offence.o
o That the Licensee should be required to engage with the communities that surround their facilities in a constructive way, to share information and develop good practice.
This engagement should initially include the OEE in the capacity of facilitator and educator of the public with regard to the licensing and enforcement processes.
o That the EPA makes public the internal guidance document for inspectors in relation to assessment of the public information programmes in operation at licensed premises.
3. Regarding the Fisheries Boards
o That the Central Fisheries Board develops and implements a training scheme with regard to SI No 133 of 2007 throughout all the Regional Boards. This to include the need to inform everyone requesting environmental information of their rights under the legislation, as well as posting clear guidance on the Regional Board websites.
o That the Central Fisheries Board develops a universal information management system. That an integrated electronic reporting infrastructure is established to enable central access to all environmental data relating to each activity and location managed by each Regional Fisheries Board. This would have a triple purpose in terms of management, research and public information access. Further that this software converts this data in real-time into user friendly information available through the GIS, as well as on site at regional offices. Where relevant the information should appear as a graph/bar diagram etc showing the value as a percentage of the limit value, or relating fish counts over time etc, together with a layman's explanation of the significance of the particular parameter being measured. The software system must also allow the member of the public to go beyond the graphics to access the raw data if they want to.
o That the Regional Fisheries Boards provide a variety of channels to access the information. The fact that according to CSO figures barely 50% of the population has access to the internet would suggest the need for WRFB to work to proactively provide information through other routes. The location of detailed files as paper copies only and only at regional offices is a problem for access. The use of GIS has great potential for wide access use through public offices, libraries, schools etc.
o That the Regional Fisheries Boards keeps their websites up to date and provide a front page link to the EPA Envision water quality maps.
o That the Regional Fisheries Boards make the provisions of SI 133 of 2007 well known to all the members of the catchment management groups, and that they are encouraged to pass this knowledge on to their members.
o That the Regional Fisheries Boards make the provisions of SI 133 of 2007 well known through the local media, printed and electronic.
4. Regarding Coillte Teoranta
o That the Minister under Section 38.(1) of the Forestry Act, 1988, with the consent of the Minister for Finance, issue directions in writing to the company which underline the provisions of SI 133 of 2007 and require Coillte to provide:
o a structured system for the generation and public reporting of environmental information relating to all its activities that are likely to have significant environmental impacts, including those being carried by subcontractors.
o the necessary infrastructure and capacity building to make access to information effective. To include training for the appropriate staff on the provision of environmental information and training for the staff responsible for this provision to enable them to assist the public in understanding the information.
o That the proposed new Forestry Act include the above provisions, but that these be broadened to include all forestry companies and not just Coillte.
o That Coillte provides a variety of channels to access the information. The fact that according to CSO figures barely 50% of the population has access to the internet would suggest the need for Coillte to work to proactively provide information through other routes. The location of detailed files as paper copies only and only at regional offices is a problem for access.
o That an integrated electronic reporting infrastructure is established to enable central access to all environmental data relating to each activity and location managed or owned by Coillte. This would have a triple purpose in terms of management, research and of public information access. Further that this software converts this data in real-time into user friendly information available through the GIS, as well as on site at regional offices. Where relevant the information should appear as a graph/bar diagram etc showing the value as a percentage of the limit value, together with a layman's explanation of the significance of the particular parameter being measured. The software system must also allow the member of the public to go beyond the graphics to access the raw data if they want to.
o That interactive GIS environmental maps be extended to show real-time environmental information. This use of GIS has great potential for wide access use through public offices, libraries schools etc.
o That Coillte is required to periodically publish non-technical information regarding environmental performance of individual forests or activities in the local newspaper(s).
o That easily visible notices are placed at the entrances to forests and sites of forestry activities describing the activity or forest and announcing where and when the reader can obtain information regarding the environmental aspects of the particular location.
o That all subcontractors are informed of their responsibilities under SI 133 and where necessary that their staff are required to undergo training on the environmental implications of the contracted activity.
o That the ongoing internal public information training programme is prioritised as an important activity within Coillte
o That Coillte should be required to engage with the communities that surround their activities in a constructive way, to share information and develop good practice. This engagement should initially include the training of Coillte staff in facilitation skills and dialogue processes by competent and experienced practitioners, and drawing on the experiences of foresters both from within Coillte and from other countries that have already developed successful strategies in this regard.
o That the FSC process be used as a vehicle to enable the development of best practice in the generation, integrated management and dissemination of environmental information.
Regarding the State of the Environment Reporting
o Public Participation. The contents of an SOE should depend upon the readers interests, in other words upon environmental priorities in our society. It will also depend to a certain extent on available data, but should ideally be driven by national priorities. In this light, and in order to make sure that the report is broadly accepted as well as to ensure its quality, the public should be brought into the existing consultation process alongside the many bodies already consulted on an ad hoc basis, and the draft report should be made available for 6 weeks at the end for a final public review. The model used by the US EPA http://www.epa.gov/Envindicators/abouteii.htm would be a suitable template for this with public reporting of submissions and responses to same.
o Frequency of Reports. Whilst it is recognised that the four yearly SOE report requires the commitment of major resources, the indicators developed for the Environment in Focus 2006 report should be used as the basis of an annual report with regular online updates in between of key data. The UNEP/GRID-Arendal publication Cookbook for State of the Environment Reporting on the Internet provides a layman's guide to providing just such a facility.
o Availability of Sources and Data. The intelligence behind information presented in SOE reports can only be easily made available through interactive web based reporting, where the data that is used can be sourced easily, and references and sources for the data are presented. This is done by creating lists of links, sources and contact information. The information is then made available in layers with the front page presenting graphical format information in a style similar to that used in 'Environment in Focus, 2006'. A click on the visual graphic then presents the next layer and so on to references and sources.
o A Clearinghouse Function. The SOE should also provide links to all sectoral (e.g. Surface Water, Waste etc) SEA and EIA reports as deeper and regional/local resources. The Envision interactive mapping should be a part of the SOE online structure.
o Use the print guidelines produced by the NCBI (National Council for the Blind of Ireland when designing documents.
Recommendations for Public Participation in Environmental Decision-Making
1. General
Establishment of Public Participation Schedule
A public participation schedule or unit should be created and funded by each public body as part of their basic function. The main function of the unit will be to ensure a proactive and effective public participation through capacity building for both the public and staff of the body. When established, it should be monitored by the Department of the Environment.
Capacity Building:
Provision of training and technical guidance for both staff of the responsible public bodies and the public is vital if effective public participation is to be achieved. The training should be regular (at least once in three years) and elaborate to cover the concept, principles and practice of public participatory approaches, and environmental planning. It would not be out of place to arrange pre-consultation trainings, on both context and the nature of the process, for the public and staff of the responsible agency prior to commencement of any participatory process. Such trainings should be subject-specific and made available to the public at no cost to the participants. This will make for more effective public participation as the training will provide the necessary building blocks.
2. Regarding Local Area and County Development Plans, Regional Planning Guidelines and Waste Management Plans
The Decision Making Process :
The final decision on these plans and guidelines is vested on the elected Councillors by the relevant legislation. These Councillors have the right to overrule both professional advice and public input. The power vested on the Councillors is considered very over bearing and has discouraged public participation amongst certain stakeholders. A term encountered during interviews is the DAD syndrome (Decide, Announce and Defend). It is therefore recommended that the law should be reconsidered to allow Councillors vote only on those matters where there is no agreement between the professionals (employed by the responsible Local Authority) and the public. This will greatly encourage more public participation as it will give the public more confidence that their input matters. The present practice where the Councillors can overrule both sides (the public and professionals) even when there is agreement is a valid concern that must be addressed.
Furthermore it is proposed that the variation of these plans and guidelines should adopt a more civic model of public participation. This involves a mutual exchange of information, which recognises local or olivedo experiences as relevant to effective planning. Using more deliberative mechanisms for gathering information about attitudes could act as a means of initiating more communicative relationships between the public and other stakeholders. While there are no guarantees that adopting more deliberative approaches will produce a consensus of opinion, there is a sense in which the processes will be more transparent and defensible. Adopting a civic model could lead to a decrease in the occurrence of conflicts.
3. Regarding Regional Waste Management Plans
Capacity Building : In the field of waste management (in Ireland) the expert, in this case the environmental consultant, is still presented as key information provider, educationalist and primary decision-influencer (if not decision maker), holding privileged and legitimate knowledge. Every modern society where knowledge is progressively specialised and politicised some people will be ignorant in relation to certain complex issues, at some time and in some places.
Provision of training and technical guidance for both staff of the Local Authorities within the Midland Region and the public is therefore, vital if effective public participation is to be achieved. The training should be regular (at least once in three years) and elaborate to cover the concept, principles and practice of public participatory approaches, and environmental planning.
3. Regarding Oral Hearings by An Bord Pleanola
The Decision Making Process.
Where An Bord Pleanola appoints an inspector to gather information through the medium of a public meeting, then the recommendations made by the inspector should carry more weight than they appear to do at present. The role of the hearing is seen by the public as one in which their knowledge and opinions can be heard and taken account of. Where the Bord overturns the recommendation of the inspector it sends out the message that the participants have largely wasted their time. This has discouraged public participation amongst certain stakeholders. In the case of the Oral Hearing on the Monkstown Ring road it is hard to understand how when a senior inspector with An Bord Pleanala wrote 'Having regard to the information contained in the environmental impact statement, and to the information provided during the course of the oral hearing, the Board is not satisfied that there are not feasible alternatives to the proposed road development that would achieve the stated objectives of the Local Authority in relation to the project, but with significantly lesser adverse impacts on the environment', the Bord still had the power to grant approval to the road scheme. It is therefore recommended that the law should be reconsidered to allow An Bord Pleanala to take a contrary view only on those matters where there is no agreement between the professionals (employed by An Bord Pleanala) and the public. This will greatly encourage more public participation as it will give the public more confidence that there input matter. The present practice where the An Bord Pleanala can overrule both sides (the public and professionals) even when there is agreement is a valid concern that must be addressed. Recognising the expertise contained within the Bord, it is recommended that they play a public role in the hearing itself. This would create a greater public confidence in and understanding of the final decision made.
Recommendations for Access to Justice
1. General
* Transposition of Directive 2003/35/EC on public participation, with its provisions for access to justice, into Irish Law.
* Ratification of The Aarhus Convention by Ireland.
* Examination of the far reaching changes contained in the Prisons Act 2007 and the implications they have for Public Participation under Directive 2003/35/EC, the SEA Directive (2001/42/EC) and the Aarhus Convention 1998.
* A Protocol should be established for administrative chains of command monitored by the Department of the Environment, between the sub-national authorities such as the Local
Authorities and An Bord Pleanala, and the EPA.
2. Regarding the Office of the Information Commissioner
* Introduction of enforced timeframes for decision making.
* Provision of multilingual assistance for foreign nationals attempting to use the services of the Information Commissioner, and provision of information in 'dominant minority' languages, based on census figures of minority populations within Ireland.
* Review of the €150 fee introduced by the 2003 Act for appeals to the Information Commissioner. (The Information Commissioner has herself called for this.)
3. Regarding the Office of the Ombudsman
* An Investigation into the internal procedures being used within the Ombudsman's Office for dealing with complaints, into how staff are trained to deal with queries relating to complaints, and a more defined interaction process between the Office of the Ombudsman and the Office of the Information Commissioner where cases overlap.
* Creation of more defined statutory protocol for the Ombudsman's Office dealing with notifying complainants of decisions and progress with their claim, and allowing them access to the person dealing with their complaint and timeframes for decision making. Creation of more defined statutory protocol for the Ombudsman's Office regarding notifying complainants of decisions and progress with their claim, and allowing them access to the person dealing with their complaint and timeframes for decision making. An online password protected log book could be used to assist in this process.
3. Provision of full-time multilingual assistance for foreign nationals attempting to use the Ombudsman's service, and provision of information in many languages, based on census figures of minority populations within Ireland.
4. Regarding An Bord Pleanala Hearings
* The Cost to Participants
The costs associated with planning appeals are often very high for those wishing to take a serious part in the process, and this would appear to be a major barrier to people using the forum, and therefore access to justice on environmental matters.
The cost is larger than it should be due to the level of expert evidence required to prove arguments relating to environmental issues. Also environmental law issue are highly complex and require specialist advice. The process itself is so complex that in all cases participants felt that they could not represent themselves and to use the process properly had to obtain legal and expert advice from the very beginning at County Council stage. The purpose of Administrative tribunals is to eliminate the kind of costs associated with Court cases, in addition to delays, and the An Bord Pleanala process does not appear to be effective in this regard.
Research is needed on measures to ameliorate this. One way could be the provision of experts in the scientific and technical areas involved, if the arguments come down to this. Perhaps some system could be established to create a panel of experts to provide the expertise necessary to individuals and community groups attempting to participate in these tribunals. The funding of Science and Law Shops in Third Level Institutes would be one appropriate way to do this. Another might be stronger regulation for distributing the burden of costs between the parties at the end of the process, with regard to factors such as who stood to profit from the situation, and who has the deepest pockets.
Another alternative is to place the burden of proof on the person who stands to profit the most, and has the deepest pocket, e.g. the developer, to disprove points being made with regard to environmental harm.
* Examination of the issues raised regarding An Bord Pleanala's inability to look at pollution concerns in a case which also comes under the IPPC Licensing scheme, this separation is an artificial one. Clearly the planning Authorities and the Bord have the expertise available to them to take environmental issues into account, as they do this regularly in non IPPC situations. It may well be that by including the environmental considerations fully into the integrated assessment that is the planning process, the project may never get to the stage of needing an IPPC Licence.
* The development of a proper protocol for EPA involvement in Oral Hearings, with a duty for the EPA to take an active part in them where the proposal relates to a potential IPPC Licenced facility.
* Examination of the protocol for holding oral hearings, to see if the system could be improved, and be made more user-friendly. The model of the Compliance Committee of the Aarhus Convention might be looked at in this regard.
* Experts & Representation
The protocol for Conduct of Oral Hearings should be examined to find ways in which An Bord Pleanala can ensure that the decision is not affected by an imbalance of resources between the parties. Attention should be given to the numbers of technical experts and legal representation being presented by both sides. Measures should be introduced to regulate the numbers of professionals and experts being employed by both sides, so that resource disparity and lack of money does not affect the outcome.
* Timing
Attention should be given to the timing and venues of oral hearings, to ensure that they do not discourage community participation. Evening or weekend oral hearings should be considered to better facilitate public participation.
* Capacity Building
Capacity Building at County Council level shows a low level of effectiveness. Perhaps more attention needs to be given to educating staff of public and local government bodies on the rights and needs of the public that they are there to serve
Indeed there seems to be poor effectiveness of public capacity building at all levels. The public seem to be unable to use the Planning Appeals system without expert advice. Perhaps workshops/talks should be held by County Councils on using the systems that they provide, and by An Bord Pleanala on using the planning appeals system, at regular intervals and especially to community groups such as the Community Fora especially in areas where large developments are being initiated.
* Inspector's Reports
An Bord Pleanala Inspectors reports and recommendations should be given more weight, perhaps by introducing measures that only allow the Bord to disregard the findings of the report in exceptional circumstances. This would reflect the fact that the only board member who has fully investigated the situation and heard all of the evidence is the Inspector presiding at the Oral Hearing. The Inspector should be able to call on other expert members of the Board to attend and advise him/her
The only alternative to this would be to require all deciding board members to attend the Oral Hearing.
5. Regarding the High Court
* Establishment of an Environmental Courts List, similar to the Commercial Courts list seen in use in the last few years, to ensure speedy delivery of Commercial Cases by specialist judges
, to provide speedy justice and ensure that the case is dealt with by those with specialist knowledge of Environmental Law, which is a hugely technical area of law.
* The issue of cost barriers to Access to Justice needs to be seriously addressed from all aspects of the problem, from the professional service fees of legal professionals, Cost Shifting Arrangements, and the possibility of covering the cost of cases determined to have an element of public interest from a central court fund.
* Encouragement of pro-bono legal work by professionals, in schemes such as the Bar Council's Voluntary Assistance Scheme, FLAC, and the Northside Law Centre.
* Greater support and education for members of the public attempting to use the legal system
* Greater education to all members of the public as to their rights and with regard to law, starting in secondary schools as part of the curriculum.
* The timeliness of Court Cases needs to be addressed. Although decisions are issued quickly once the case is heard, large delays and uncertainty arise in the process of the hearing, with indefinite schedules and 'overbooking'.
* Cost shifting arrangements should be looked at and formalized for individuals in the cases of
High Court Judicial Review
* Voluntary Assistance Scheme, FLAC, and the Northside Law Centre.
* Active dissemination of information regarding the courts system, and the law.
* Greater outreach to minority groups who might have extra barriers to learning their rights, such as disability, language barrier, or poor literacy.
6. Regarding the Supreme Court
* Environmental Law Case Lists.
To foster an atmosphere of sustainable economic growth in this country, business need to know where they stand in relation to expansion and development issues, and if the situation continues the way it is, we could see economic decline instead of sustainable growth that does not damage the environment and human health. For this reason, specialist environmental law courts where claims are processed quickly by judges with specialist legal and technical knowledge of the challenges faced by the area, would be a great asset. This could be done in the same loose way that the Commercial Law List was created in the High Court. This has been a great assistance to commercial dealings in Ireland by processing claims quickly, clarifying the law and bringing specialist knowledge to the cases on the judiciary's side.
The same concerns apply to environmental law that applied to commercial law cases before the existence of the commercial lists. These cases are urgent, highly technical and specialised in both law and fact, and can result in great loss if not dealt with quickly and correctly.
* The Costs Issue.
One of the main arguments for maintaining barriers to justice is that the costs risk in High Court & Supreme Court cases acts as a deterrent to frivolous or vexatious litigants. Deciding if a case is frivolous or vexatious on the basis of the applicant's economic means is not an acceptable way to filter cases.
Cost shifting arrangements should be looked at and formalized for individuals in the cases of High Court Judicial Review where individuals who have established a genuine case at leave stage should be protected from the possible financial implications of losing, to encourage more active citizenship. This is common in employment law where the courts acknowledge the disadvantaged position of the employee taking on the deeper pockets of the employer. This attitude will not filter easily into environmental law because the way that the Courts view employment law as a separate area in which they will only intrude with great reluctance. Also Public Authorities are not traditionally viewed by the Courts as deep pockets because they are funded by public resources, ignoring the fact that the advantage lies to them when it comes to resources in a case of this kind. Perhaps the current law on Protective Costs Orders in public interest cases needs to be expanded from its current restrictive mode. The only requirement for protection from costs should be that the case raises a genuine arguable case. Perhaps using the tests for injunctive orders such as the Campus Oil test - 'a fair and bona fide question' to be tried, and the other considerations surrounding injunction, and some sort of classification system for applicants, as to the social utility of their action, and the economic consequences, could be a possible solution to when and to whom to grant Protective Cost Orders.
Other possible solutions include establishing a central fund, in the Courts or Government, from which a judge can order costs to be paid, when the justice of the case and the public interest requires.
Also the 'cost follows the event' rule should be discarded as being akin to trial by honour. Costs should always be based on the Party's situations, aggravation of the costs, public interest in the case being taken and other interests. Principles taken from contributory negligence in Tort are interesting in this regard.
