The Environmental Protection Agency granted a licence for a hazardous-waste incinerator in Co Clare without having received final design details of that incinerator, the Supreme Court was told yesterday.
The EPA's decision to license an incinerator to Roche Ireland Ltd at its pharmaceutical plant at Clarehill, Clarecastle, near Ennis, when the design of that incinerator was not known to the agency or notified to the public, was an abdication of its statutory responsibilities, it was submitted for Ms Orla Ni Eili, of Harmony Row, Ennis.
It was further argued that any attempt by the EPA to address the provisional design of the incinerator in conditions attached to the permission was an illegal use of conditions under the EPA Act.
At no stage during the EPA's consideration of Roche's licence application did the agency have sufficient information available to it to meet the statutory requirement, which stipulated that before granting a licence the agency must be satisfied that "the best available technology will be used to prevent or eliminate or, where that is not practicable, to limit, abate or reduce an emission from the activity [incineration]".
The submissions were made on the second day of the appeal by Ms Ni Eili against a High Court decision upholding the EPA's granting of an incinerator licence to Roche in December 1996.
In the High Court Mr Justice Lavan had found there was "a proper, rational basis" for the EPA's decision. Ms Ni Eili appealed that decision to the Supreme Court on 20 grounds.
In court yesterday Mr Maurice Gaffney SC (with Mr Paul Callan SC and Mr Colm O hEochaidh) continued to advance submissions on behalf of the appellant.
The court was told that Ms Ni Eili had argued in the High Court that sketches relating to the incinerator, which were submitted to the EPA for adjudication with Roche's licensing application, were so inadequate that the EPA could not lawfully exercise its statutory function to assess the technology sought to be used by Roche for incineration purposes.
The operation for which the licence was sought was the incineration of hazardous waste, and this could only be carried out by an incinerator.
Thus, it was argued, for a licence to be granted, the applicant company must specify precisely the details, plans and size of the incinerator to be used.
It was claimed the sketches Roche submitted were generic and did not describe the technology which would be used but merely the process which a subsequently designed technology would facilitate.
It was submitted that Roche had provided further information on the project to the EPA but did not furnish the design details as required. Nonetheless, the EPA had proceeded to issue the licence on condition that Roche provided final design details no later than 12 months before use.
In those circumstances, it was argued, there was no evidence available to the EPA on the actual incinerator at the time the agency made its decision to grant a licence to Roche. The final design of the incinerator was the subject of a condition on the licence but the EPA, it was submitted, was not entitled to use conditions in that manner.
The condition merely required Roche to supply design details and did not require that those details meet with the approval of the EPA.
A further effect of the EPA's approach was that the third-party procedure for objectors under the EPA Act was nullified. Ms Ni Eili contended that she, like any other member of the public, had a right to object to any particular and specific incinerator proposed by Roche, and its design, but the failures of the EPA had removed that right.
While there had been a hearing on the licence application, and an opportunity to make oral submissions, these did not give effect to one's right to hear the other side and make submissions on a key point, the actual incinerator to be operated and the exact method and procedure to be used.
The appeal continues today.