Septic tank owners to pay once-off fee

Over 440,000 septic tank or on-site wastewater treatment system owners around the country will have to pay a once-off registration fee next year. The charge is expected to be no more than €50 and is being imposed under new legislation following a European Court of Justice ruling in 2009.

Inspections of septic tanks and other on-site treatment systems are to be carried out by the local authorities begining in 2013. Initial inspections are expected to be carried out in areas close to drinking water sources. It is expected that every system will also have to be re-registered at no extra cost every five years.

Environment Minister Phil Hogan said "We expect everybody in 2012 to register if they have a septic tank for a registration charge of no more than €50". "In 2013 and subsequent years inspections will be carried out the local authorities with guidelines by the EPA and the Department of the Environment." "The whole purpose of it is that is to ensure that the areas that are of greatest threat to groundwater will be the ones that will be prioritised for inspection" he added.

Background to the ECJ ruling.

On 29 October 2009, the ECJ ruled against Ireland in relation to the treatment of waste waters from septic tanks and other on-site wastewater treatment systems. The Court found that by failing to adopt the necessary legislation to comply with Articles 4 and 8 of Council Directive 75/442/EEC (The Waste Directive) as regards domestic waste waters disposed of in the countryside through septic tanks and other individual waste water treatment systems, Ireland has failed to fulfil its obligations under that directive.

The Irish government in its defence pointed to existing legislation, and a circular issued to local authorities in 2003 regarding the assessment of sites, design, installation and maintenance of septic tanks, as well as the 2005 Sustainable Rural Housing Guidelines. The Government indicated during the case that it intended to make both the 2005 Sustainable Rural Housing Guidelines and the 2007 Development Plan and Development Management Guidelines mandatory. The Government also pointed to the provisions of the Water Services Act 2007 on areas such as rural water services, although the Court dismissed this as a defence, given that the relevant provisions had not been enacted before the case was referred to the Court.

The Court in its judgement argued that EU legislation in this area covers all septic tanks and individual waste water treatment systems, both old and new. It found that Building Control legislation only applied to septic tanks and private waste water treatment systems constructed after 1992, and that the Planning code only applied to septic tanks and private waste water treatment systems constructed after 2000. Therefore, Irish legislation does not adequately cover earlier installations. While the Local Government (Water Pollution) Acts 1977 and 1990 prohibit water pollution, the exemptions under those acts for discharges of domestic sewage of less than 5 cubic metres excludes a large number of septic tanks.

The Court also noted that the standards in Building Control Standard S.R.6 of 1991 (referred to in Technical Guidance Document H) are not suited to the geological and soil characteristics generally found in Ireland. It therefore, found that planning permissions granted on the basis of these standards did not ensure a level of environmental and human health protection that was required under EU law.

In terms of monitoring, the Court found that monitoring systems must involve regular inspections by local authorities of the functioning and maintenance of septic tanks and individual waste water treatment systems. The Court found that Irish local authorities have powers of inspection under various Irish laws, which also set out minimum standards of inspection. However, it argued that these powers are not exercised within a framework of regular checks and inspections at appropriate intervals. The Court rejected any argument that an absence of regular inspections could be justified on the basis of the high number of septic tanks in Ireland.

The Court cited the example of Cavan County Council, who introduced bye-laws in 2004 on water pollution to implement a complete system of management of septic tanks and individual waste water treatment systems, both old and new – this includes a requirement that every waste water treatment system complied with the EPA manual on Treatment Systems for Single Houses, and that inspections be carried out at least every 7 years. The Commission in taking the case against Ireland had conceded that these bye-laws in Cavan had constituted an adequate legal mechanism for complying with the Directive, and therefore, excluded Cavan as part of the subject matter of the legal action.

The Office of the Attorney General has previously advised that the judgement against Ireland will require new primary legislation to deal with inspection, monitoring and enforcement mechanisms and that remediation measures will also be required. I imagine the draft proposal that will come before the Gov will address these issues.

Timely implementation of Ireland's response to the ECJ ruling is critical. The ruling in this case is one of the first under accelerated infringement proceedings which came into effect under the Lisbon Treaty and the EU Commission has signalled its expectation that ECJ judgments should be addressed within 12 to 24 months of the date of the judgment. On 24 November 2010, the Commission formally notified Ireland that failure to comply with the ruling in a timely manner could result in the Commission seeking the imposition of financial penalties by the ECJ. This figures currently stands some where in the region of 26k per day or 9.5 million per year.

The Census 2006 recorded that there were 441,000 septic tanks and other on-site waste water treatment systems serving un-sewered properties in Ireland. This compares to an estimated 83,000 septic tanks in Northern Ireland, 100,000 in Scotland and 800,000 in England and Wales combined. There are no national performance standards or monitoring arrangements for such systems in Ireland. The Environmental Protection Agency (EPA) has identified septic tanks as a potential source of water pollution, particularly of ground water sources which are an important source of drinking water for many people.