To handle waste from private households, Ireland depends on some 400,000 septic tanks spread across the countryside. Scotland has only 100,000 septic tanks and England has 800,000. The typical septic tank system is shown below:
Semi-solid material periodically has to be pumped out of the tank and the liquid effluent from the tank drains to a leachfield so that it is filtered before migrating to any water source.
The problem is that many of Ireland’s septic tanks were constructed decades ago or even recently without much regulatory oversight, and they leak, and the leachfields are too wet or of inadequate soils to filter the contaminants. As a consequence many of these systems are suspected or known to be leaking pollutants into groundwater, surface streams, and lakes, undermining efforts to cleanup Ireland’s water resources. Despite efforts by many in the environmental and wider community to get the national or local governments to take corrective action, little was done. Once again, it took action by the European Union to get the government to take corrective measures.
In the Commission of the European Communities v. Ireland, Case C-188/08, the European Court of Justice (2009) found that Ireland was in breach of EU Directive 75/442, as amended and as applied to the disposal of domestic waste waters in the countryside through septic tanks and other individual waste water treatment systems. The Court found that the Directive unequivocally required that Ireland subject septic tank systems and other individual waste water systems throughout the countryside “to appropriate periodic inspections.” See Article 13 of Directive 91/156/EEC. Except for County Cavan, no such inspections were provided for through any Irish laws. The Court examined those nationals laws offered up by the Irish government as complying with the Directive and the Court found them all wanting. The national laws included the Public Health (Ireland) Act, 1878; the Local Government (Water Pollution) Acts, 1977 and 1990; and the Planning and Development Acts 2000-2006. Each was deficient in some respect and collectively they did not provide compliance with the Directive.
The inadequacies of the national government’s efforts were underscored by Cavan County Council’s bye-laws in 2004 that implemented a comprehensive system of managing septic tank and other individual waste water systems, both old and new, that required they all comply with the current Irish EPA standards, and that subjected these waste water systems to inspections every 7 years.
In late 2011, the current coalition government issued the Water Services (Amendment) Bill, 2011 (the Bill) in an attempt to resolve the deficiencies found by the EU Court, and avoid substantial fines for continuing to fail to comply with the waste Directive. There has been an uproar from the countryside expressing concerns or outrage over the prospect of rural homeowners having their antiquated septic tanks inspected, found wanting, and then being required to pay perhaps substantial money to upgrade their systems to comply with current EPA standards. It has not helped that the septic tank regulation, and potential costs, are proposed around the same time as Household Charges (property taxes) are being re-introduced, and charges for use of public water are not far behind. The rural community’s cry of injustice with regard to waste water charges is based in part on the sense that city waste water systems have been upgraded — they desperately needed the upgrades — with public money while they are being required to pay for their upgrades with their own money.
The good news in the Bill for rural dwellers is that there is little in the way of obligations for them to inspect or upgrade their septic tank systems. The bad news is that there is little in the way of obligations to protect water supplies. The worst news is that the Bill in and of itself does not comply with the decision of the EU court because the huge hole in the legislation is the lack of any requirement for periodic inspections or any indication of what standards will apply if there are inspections.
In a nutshell, the Bill provides that each owner of a property that uses a septic tank, or other “domestic waste water treatment system,” is required to register that fact and pay a fee that will be set by regulation but which cannot exceed €50. Basically that is all that is required by the Bill for property owners.
What has worried most people is what happens when their septic tank is inspected and found to be in violation of some regulatory standard, and what that will cost them to fix. What is blaringly absent from the Bill is any sense of guidance on what systems will be inspected, how often, and what standards will apply in the inspections. Under what circumstances an inspection is deemed necessary is left to a “National Inspection Plan” and regulations that are yet to be developed. Those developments will determine whether the new legislation will satisfy the EU court and, more importantly, satisfy the need to protect water resources for the people of Ireland. It is this void that may undermine the attempts by the government to use this Bill to avoid the fines from the EU.
The Bill does provide a number of details about who will inspect, what happens if a problem is found, and what appeals there are. While we await the critical development of the National Plan and related regulations, we can assess what happens when inspections are deemed necessary, according to the Bill.
Either the local water authority (or soon to be constituted national water authority) or the Environmental Protection Agency can “direct” an inspection of any septic tank or similar waste water system, again without our knowing what triggers such an inspection. The inspections will be done by people appointed by the EPA after they qualify by applying for appointment, taking training courses, meeting professional/technical qualifications and paying a fee, all of which requirements will be prescribed by the EPA.
The Inspector is authorized to entry property to inspect the septic tanks system and while the occupier can refuse entry it is an offense under the Bill to so refuse.
If the inspection indicates that the septic system contravenes applicable standards — what standards will apply is the great unknown — then the Water Authority, but apparently not EPA, issues an Advisory Notice to the owner of the property that provides information about the violation, the remedy required, and the deadline for complying. Within 21 days, the “aggrieved person” can apply to the Water Authority for a second inspection which will cost the owner not more than €200.
The Water Authority arranges for the second inspection, which can either confirm that there is a violation, and the remedy specified, or confirm the violation but modify the remedy, or cancel the violation. If the Advisory Notice is cancelled, then the owner gets a refund of the fee.
If the violation is confirmed, with or without modification, the aggrieved person can appeal to the District Court. Of course the owner can also implement the remedy at this time. There does not seem to be any right for the Water Authority to appeal a second inspection that cancels the violation.
Alternatively, if the owner gets an Advisory Notice, indicating a violation, the owner can carry out the remedy and notify the Water Authority of that fact. The Authority then has the responsibility to re-inspect, to the extent deemed appropriate, at no cost to the owner. Presumably the Authority could decide, for an “appropriate” reason, not to undertake a second inspection. Strangely, when the Authority re-inspects after the owner does the remedy, it can notify the owner that the septic tank is now in compliance. Absent is any indication of what power the Authority has to take further enforcement action if it determines that the remedy carried out by the owner is not sufficient to comply with whatever standard is applicable.
It is not clear what happens if the owner applies for second inspection and that inspection confirms the violation and the owner does not want to appeal to the District Court. Presumably the owner would carry out the remedy and so notify the Water Authority. But what is the obligation or power of the Authority to confirm that the remedy was implemented, and what enforcement powers does the Authority have to make the owner correct any deficiencies in the remedy?
While the Bill is silent on the critical issues – which septic tanks get inspected, according to what EPA standard and how frequently – there have been public statements that the government will adopt a “risk-based” “proportionate” approach to inspections. See Press release from Department of Environment, Community and Local Government. On the Irish EPA website, the agency states that it has the responsibility to develop a National Inspection Plan and that it will be a “risk-based approach” that “will target resources to where they are needed most and deliver the best outcome for public health and the environment at the lowest possible costs.” Allocating resources to where they are needed most is, of course, sensible and necessary, especially in difficult financial times. And the challenges of monitoring and inspecting individual septic tanks systems spread out across the countryside are daunting.
But the devil is in the details and we await the National Inspection Plan to see if it requires a less than full roster of septic tanks for inspection (only septic tanks that are already known to be impacting water resources?) and if it remains silent on when, if ever, other less risky septic systems will be subjected to inspections, and according to what standards. Such a regulatory approach would certainly fall far short of Cavan’s approach and it was the Cavan regime that was condoned by the EU Court as an appropriate regulatory scheme. (see Note 1)
Indeed, any national plan that requires less than Cavan County will raise serious questions for the EU Court, as well as for all those who want Ireland’s water resources protected.
The Cavan County regulatory scheme appears to be much less bureaucratic than what is proposed in the Water Services Bill. The Cavan scheme allows the owner or occupier to retain an inspector who provides an assessment and proposes remedial measures if the system in not in compliance with EPA standards and the owner is obliged to carry out the remedy, to keep records of maintenance and inspections, and to have the septic system re-inspected every seven years.
Water Services (Amendment) Bill, 2011.
Department of Environment, Community and Local Government, “Minister Hogan publishes Water Services (Amendment) Bill 2011
Environmental Protection Agency (Ireland), “Wastewater legislation for single houses,”
Environmental Protection Agency (Ireland), Urban Waste Water Discharges in Ireland for Population Equivalents Greater than 500 Persons – A Report for the Years 2006 and 2007
Environmental Protection Agency (Ireland), Code of Practice: Wastewater Treatment Systems for Single Houses
Commission of the European Communities v. Ireland, Case C-188/08 (Failure of a Member State to fulfill obligations – Directive 75/442/EEC – Waste – Domestic waste waters discharged through septic tanks in the countryside – Waste not covered by other legislation – Failure to transpose)
Council Directive 75/442/EEC of 15 July 1975 on waste
as amended by Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste
and codified as Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste
Minister Hogan publishes Water Services (Amendment) Bill 2011
(3 November 2011)
Cavan County Council Waste water treatment systems for single houses – Bye-Laws 2004