The Environmental Protection Agency effectively took a risk with the health of local people in Co Clare when it granted a licence permitting a pharmaceutical company to operate a hazardous waste incinerator near Ennis, the Supreme Court was told yesterday.
The EPA, as a decision-making body, was not entitled to take that risk or to ask the courts to approve it, it was submitted. If the agency was entitled, under the EPA Act, to proceed in its decision-making process without being obliged to establish that there was no risk to human health, then the Act was unconstitutional.
The court is hearing an appeal by Ms Orla Ni Eili, of Harmony Row, Ennis, a member of the Clare Action Against Incineration Group, against a High Court decision upholding the granting by the EPA of the incinerator licence to Roche Ireland Ltd.
Roche had sought, and secured from the EPA in December 1996, a licence to build the incinerator at its plant at Clarehill, Clarecastle, near Ennis. The EPA had received a large number of objections to the proposal.
In a 56-page judgment, delivered on February 20th, Mr Justice Lavan found that there was "a proper rational basis" for the EPA's decision.
Ms Ni Eili has appealed that judgment on some 20 grounds, and the hearing opened before the Supreme Court yesterday. In submissions, she argued that the High Court judge erred in law and in fact in holding that there was ample evidence before the EPA on which it could properly and reasonably make its decision.
She said the EPA was obliged by law not to grant a licence unless it was satisfied that the licensed activity would not endanger human health. But the only medical evidence before the EPA during the consideration of its licence application was to the effect that it was impossible to determine what effect the proposed daily emission of dioxins would have on human health in the absence of data which would inform the EPA about the existing levels of dioxin contamination in the local human population.
It was submitted that certain limited and unreliable information regarding levels of dioxin contamination in the environment had been available to the EPA from Roche Ireland's Environmental Impact Statement.
A national cows' milk study for dioxin had been conducted in 1995 which mentioned two locations for study in Co Clare, but there was no evidence on the exact location of that Clare sampling. Ms Ni Eili argued that the evidence from that study was not sufficient evidence upon which the EPA could have discharged its statutory duty to protect human health from endangerment.
She also argued that the trial judge failed to have regard to evidence that the EPA had entertained doubts concerning the level of dioxin contamination at Clarecastle, Co Clare. She said that the EPA, at the meeting at which it took the decision to grant the licence, had agreed to grant £5,000 for a dioxin study. If the EPA was satisfied in granting the licence that there was no danger to human health, no further dioxin study would have been necessary, she argued.
Several grounds of appeal related to the trial judge's handling of the High Court hearing, and it was submitted that rulings by Mr Justice Lavan rendered the hearing wholly unsatisfactory. Ms Ni Eili argued that the judge had erred in law and in the exercise of his discretion by refusing to admit into evidence the "Dutch Report" dealing with harmful effects of, and risks from, dioxins.
It was also submitted that the trial judge erred in refusing Ms Ni Eili an opportunity to cross-examine witnesses and in restricting the grounds on which she sought to establish that the EPA's decision was invalid.
The appeal continues today.
