Illegal Dumping: Discussion (Resumed)

We resume our discussion on matters arising from the "RTÉ Investigates" programme which aired on 5 June 2019. We have had engagements with both the Commission for Regulation of Utilities, CRU, and the Electricity Supply Board, ESB, before the summer. I welcome the following representatives from the Environmental Protection Agency, EPA, to this afternoon's meeting: Dr. Tom Ryan, director of the Office of Environmental Enforcement, OEE, Mr. Pat Byrne, senior inspector, Ms Mary Frances Rochford, programme manager, and Mr. Darragh Page, programme manager.

By virtue of section 17(2)(l) of the Defamation Act 2009, witnesses are protected by absolute privilege in respect of the evidence they give to the committee. However, if they are directed by the Chairman to cease giving evidence on a particular matter and continue to so do, they are entitled thereafter only to qualified privilege in respect of their evidence. They are directed that only evidence connected with the subject matter of these proceedings is to be given and asked to respect the parliamentary practice to the effect that, where possible, they should not comment on, criticise or make charges against any or entity by name or in such a way as to make him, her or it identifiable. I also advise them that any submission and opening statement made by them to the committee will be published on its website after the meeting.

I remind members of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official, either by name or in such a way as to make him or her identifiable.

I invite Dr. Ryan to make his opening statement.

Dr. Tom Ryan

I thank the joint committee for inviting the Environmental Protection Agency, EPA, to discuss the issues raised on the "RTÉ Investigates" programme aired on Wednesday, 5 June and the EPA’s investigation into them. I am joined by senior colleagues who were involved in the subsequent investigations.

The EPA has a wide range of regulatory functions which it discharges through licensing, enforcement, guidance and co-operation with other regulatory bodies. In addition, under section 63 of the Environmental Protection Agency Act 1992, as amended, it has a supervisory role in the environmental performance of local authorities. Two distinct issues raised on the "RTÉ Investigates" programme prompted investigations by the EPA, namely, leaks to the environment from fluid filled cables in ESB Networks' distribution system and the management and control by ESB Networks of SF6 gas at the ESB's Moneypoint generating station, including the ESB Networks compound. I propose to address each of these investigations in turn.

The first investigation concerned leaks to the environment from fluid filled cables in ESB Networks' distribution system. The EPA first became aware of the extent of losses of fluid from underground ESB Networks electricity cables in May following the receipt of inquiries from RTÉ. It subsequently received a letter from ESB Networks on 27 May which briefly outlined the extent of the underground fluid filled cables, the nature of the insulating fluid, the leaks associated with the cables, questions about possible reporting obligations to the EPA and a request for a meeting.

Concerned that there might be consequential environmental damage, a possible need for remedial actions and a failure to meet statutory environmental reporting obligations, the EPA undertook to investigate the matters. We met representatives of ESB Networks on 11 June when ESB Networks agreed to prepare a report on the extent and nature of fluid-filled cables, the types of fluid used and their classification, the maintenance and monitoring of cables for leaks by ESB Networks, actions and procedures to be followed when a leak is detected, as well as the extent of the leaks and the reporting to regulatory bodies ESB Networks had undertaken on the leaks. Withd these reports from ESB Networks, we were able to define the scope and objectives of the investigation, details of which are set out in our written submission to the committee.

Turning to the fluid filled cables and based on the information provided, the EPA understands 221 km of underground fluid filled electrical cables were installed by ESB Networks between 1950 and 1989, of which approximately 44 km have since been replaced with non-fluid polyethylene cables. Since 1980 there has been a gradual transition from fluid filled to polyethylene cables. Fluid filled cables remain functional for the transmission of electricity. However, owing to deterioration, vegetative intrusion and/or third party excavation works, the cables may leak fluid to the environment. ESB Networks has confirmed that 68 historical leaks occurred from fluid filled cables located within four local authority areas between 1993 and June 2019. In addition, there have been seven "current and new" leaks since June. ESB Networks has stated it was "not able to locate any information on identified leaks or rate of leakage prior to 1993". Table 1 in our written submission gives some of the data for the last decade.

The fluid used as an insulating liquid in the cables was originally mineral oil and, thereafter, linear alkylbenzene. When the cables lose fluid to the environment as the result of a leak, it must be replaced to ensure continuity of electricity transmission. Addition of fluid continues until the leak is located and repaired. Cable fluid added to the cables prior to approximately 1986 was mineral oil; thereafter linear alkylbenzene was used as the replacement fluid. Mineral oil is classified as hazardous, whereas linear alkylbenzene has been classified as non-hazardous since January. ESB Networks has identified that the fluid lost in the cable leaks is often a mix of mineral oil and linear alkyl benzene and that such a mixture must be classified as hazardous. Linear alkylbenzene will biodegrade in both aerobic and anaerobic conditions, whereas mineral oil is not readily biodegradable in the environment. ESB Networks has commenced a process of assessing the impact of all leaks from fluid filled cables. The assessments are being completed in accordance with relevant EPA guidance and site specific and may involve site investigations to establish the impact, if any, and identify appropriate remedial measures, as necessary.

Moving to a brief examination of the applicable legislation in considering these issues, there are four relevant items. They are the Local Government (Water Pollution) Act 1977, as amended; the Environmental Protection Agency Act 1992, as amended; the European Communities (Environmental Liability) Regulations 2008, as amended; and the European Communities Environmental Objectives (Groundwater) Regulations 2010, as amended. In particular, section 14 of the Local Government (Water Pollution) Act 1977, as amended, requires a person responsible for the discharge of any polluting matter "which enters or is likely to enter any waters" to notify the relevant local authority. Local authorities are the principal response agencies for water pollution incidents. As fluid filled cable leaks involve a discharge of polluting matter, they come within the scope of that requirement. The European Communities (Environmental Liability) Regulations 2008, as amended, came into operation on 1 April and require an operator to take measures to prevent environmental damage where there is an imminent threat or further damage if damage has already occurred. Operators must also notify the EPA of any imminent threat or case of environmental damage. A failure to comply is an offence liable to prosecution.

The EPA required ESB Networks to complete a screening of all leaks that had occurred since April. The screening identified four leaks, with the potential to cause environmental damage. On 8 October the EPA issued four separate directions to ESB Networks requiring the submission of a site assessment report by 31 October and instructing ESB Networks to take preventive measures, as required in the European Communities (Environmental Liability) Regulations 2008, as amended, should an imminent threat of environmental damage be established. A response to the directions was received by the EPA from ESB Networks on 31 October. The EPA has assessed the four responses received and is satisfied that no further action is required under the regulations in three of the cases. It is seeking further information on one case.

The main conclusions in the first investigation were as follows. There were 68 historical leaks between 1993 and June 2019. There have been a further seven "current and new" leaks since June.

The locations and scale of each leak have been identified by ESB Networks and it is undertaking site-specific investigations of each. While ESB Networks reports that it consulted a relevant authority regarding 20 of the 68 leaks identified prior to June 2019, it failed in the case of 48 leaks to notify local authorities in accordance with section 14(1) of the Local Government (Water Pollution) Act. ESB Networks failed to screen the impact of fluid leaks which occurred since 1 April 2009, for the applicability under regulations Nos. 7 and 9 of the European Communities (Environmental Liability) Regulations 2008, as amended, until after June 2019.

ESB Networks has established two protocols since June 2019 to deal with historic and future leaks and the EPA is satisfied with the approach and protocols now being implemented by the company to assess each leak and to engage with the relevant local authorities. The EPA acknowledges that decommissioning of fluid filled cables can be a challenging process but considers fluid filled cables that have a high occurrence of leakage and are in proximity to sensitive receptors should be prioritised for decommissioning. The agency is finalising a full report on this investigation and documenting its findings and recommendations with a view to publication in the coming weeks.

The second investigation concerned the management and control of SF6 gas at the ESB generating station at Moneypoint, including the ESB Networks compound. The EPA is designated as the competent authority in Ireland for the purposes of fluorinated greenhouse gas regulations 2016 and 2014. As the competent authority, the agency is responsible for compliance, monitoring and enforcement of these regulations. Following the "RTÉ Investigates" programme, the agency carried out an assessment of the management and control of SF6 gas at Moneypoint. It should be noted that SF6 is a greenhouse gas with a global warming potential 23,000 times that of CO². The EPA investigation comprised a two-day site visit in June 2019 during which the storage of SF6 was inspected and records assessed. Additional records were requested during and subsequent to the site visit which were considered as part of the overall assessment. A report on EPA findings is currently being finalised and will issue to ESB at Moneypoint in the coming weeks.

Preliminary findings of the EPA investigation indicate that management and control of SF6 at the Moneypoint site is operationally rather than environmentally focused, with sustained and prolonged leaks from equipment within the ESB Networks compound. There are four substations within the ESB Networks compound relevant to SF6. ESB Networks data indicates that 2,376 kg of SF6 leaked from one of the substations since 2013. This represents 0.02% of Ireland’s total national greenhouse gas emissions over the period. The general approach to corrective action by ESB Networks was to top up equipment with SF6 rather than undertake repair. Records available at the time of the EPA site visit relating to the management of SF6 losses from equipment and associated top-ups were inadequate to control and minimise leakage of SF6. During the EPA site visit, these records were insufficient to support the determination of SF6 losses and associated leakage rates. ESB Networks subsequently provided data to support its estimates of SF6 leakage at Moneypoint for assessment by the EPA. The site does not have a robust system for the management, labelling and storage of recovered SF6. The old 400 kV substation was fully de-energised in June 2019. ESB Networks states that since this substation was de-energised, leakage of SF6 is no longer an issue. The EPA is seeking verification of this assertion and the removal of any remaining SF6 before finalising its report. The data provided by ESB Networks indicates that the new substations installed since 2013 are currently operating at the site and have not required top-ups of SF6 since installation. The final conclusion is that ESB Moneypoint, failed to report SF6 leaks to the EPA in accordance with its industrial emissions licence and ESB Networks failed to report emissions of SF6 under European Pollutant Release and Transfer Register requirements. The EPA is considering its enforcement position under applicable legislation and is finalising a full report on this investigation with a view to publication in the coming weeks.

I thank the Chairman and committee members for their patience and for allowing me to read this statement into the record. I assure the committee that the EPA will complete those investigations and reports will issue shortly. I thank members for their attention and am happy to address any questions they may have.

I seek clarification on a number of issues. Dr. Ryan said that of the 68 leaks identified prior to June 2019, the ESB did not comply with section 14 (1) of the Local Government (Water Pollution) Act in 48 cases, in that it did not report them to relevant local authority, namely the Dublin councils. Is that correct?

Dr. Tom Ryan

There were 68 leaks and the ESB claimed to have reported 20 of those to a local authority. In 48 cases, it did not report to any local authority. The local authorities concerned are Dublin City Council, South Dublin County Council, Dún Laoghaire-Rathdown County Council and Cork City Council.

Dr. Ryan also indicated that ESB Networks failed to screen the impact of fluid leaks that have occurred since 1 April 2009 for applicability under regulations Nos. 7 and 9 of the European Communities (Environmental Liability) Regulations 2008, as amended, until after June 2019. In this case, ESB Networks should have been aware of the environmental damage and should also have reported the matter to the EPA. Is that correct?

Dr. Tom Ryan

Yes, a screening should have been performed.

My understanding is that any person or entity who fails to comply with the legislation is guilty of an offence. Who would mount the prosecution in either instance? While I do not want Dr. Ryan to fetter his discretion in any way, I ask whether the EPA and the local authorities are considering all of their options in this matter.

Dr. Tom Ryan

The reporting of the leaks falls clearly within the remit of the local authorities. The leaks should have been reported to the local authorities and it is for them to decide if additional enforcement action is required. The EPA is the competent authority under the environmental liability directive and we are still going through our processes at the moment.

I thank Dr. Ryan for that clarification. I call Deputy Dooley.

I thank Dr. Ryan and his team for their comprehensive statement. The EPA has been so frank and open that there is not a lot to question in the detail. ESB Networks clearly had information that it did not share with the appropriate authorities. It was aware of the leaks because it did provide information on them to the EPA at a later stage. It is clear that at a minimum, the company failed in its reporting duties, which is significant. It is also clear that none of this would have come to light but for the good work of a whistleblower in conjunction with our public service broadcaster, which frames my first question. Was the first information received by the EPA as a result of that broadcast in the middle of this year?

Dr. Tom Ryan

Yes. We were aware of two leaks, as I outlined in my opening statement. One leak was in 2012 and related to ESB marina; the other was in 2006 and related to the ESB generating station at Poolbeg. One of those was within the perimeter of a licensed facility and we dealt with that in that context and closed it out. The other one was just outside a licensed facility and we advised that it be reported to the local authority.

All of the other leaks that have now been highlighted would not have come to light but for the work of "RTÉ Investigates" and the involvement of the whistleblower. Is that correct?

Dr. Tom Ryan

That is correct.

This was my only question but I wish to comment on the matter.

This vindicates the actions of the whistleblower and "RTÉ Investigates" for bringing such important information to the fore, which now allows the EPA to do its work. We have had difficulties with the ESB in the past regarding the way in which the whistleblower was being treated. I know this is a HR issue and I do not want to get into it but the EPA recognises the importance from an environmental perspective of the information provided by the whistleblower. If the committee were to send any message, it should be recognition of the important role the whistleblower has played in bringing this important matter to the fore. In his written submission, Dr. Ryan stated SF6 as a greenhouse gas has a global warming potential of 23,000 times that of CO2. This is pretty stark when we look at it in these terms. He went on to say that it represented 0.02% of Ireland's total national greenhouse gas emissions over that period. This is striking, as is that ESB Networks did not maintain an appropriate inventory or appropriate controls over a gas that is so harmful to the environment. We have come to believe over time, and rightly so because of the personnel in ESB Networks, the quality of what they do and the brand recognition of the company, that by and large it is a very good company that is very well run but at a time like this when we see significant failings it is important that it is documented and appropriate action is taken. I am sure it will help the company to comply better in future. I thank the witnesses for their work.

I am under pressure for time because of another commitment and I appreciate the Chairman allowing me to contribute at this point.

I thank the EPA for coming before the committee and I thank Dr. Ryan and his colleagues for their presentation. Dr. Ryan mentioned a particular issue that arose in the programme, which was responded to in detail, but I will raise another issue while I have the opportunity to do so as the EPA is before the committee. This is the boil water notice that has been served because of the Leixlip water treatment plant in particular. It is a local issue for me but it is also a local issue for most of the greater Dublin area. The EPA was involved in an audit. Will the witnesses briefly describe the results of that audit? Was the audit strategic or operational? I understand three samples were taken. Was it an emergency audit to see whether the water was drinkable again? Was it a procedural audit regarding what could be done differently in future to prevent a recurrence? I appreciate the EPA was, to an extent, stepping into the breach on this occasion. What body is the primary regulator? How can we stop it happening now and in future? This is the big question. If the witnesses would indulge me on this, I would be very grateful.

I am conscious this comes under the remit of another committee. If the witnesses want to answer, they can or perhaps they could provide details at a future time. I am conscious the remit for this particular committee has to do with ESB Networks and that issue comes under the remit of another committee.

Dr. Tom Ryan

An incident is progressing with a significant boil water notice affecting more than 600,000 people. Last Friday, the EPA conducted an audit in response to the incident to try to verify the performance of the plant at that point to assist in the gathering of information that would be required for the HSE, in conjunction with Irish Water, to lift that boil water notice. We carried out our audit. A series of sampling has to take place and the HSE must be satisfied those samples are clear. A meeting is taking place this afternoon to assess the outcome of that series of samples with a view, if everything is okay, to lifting the boil water notice. The audit we undertook is part of our role and remit to go on site and verify the performance of the plant after an issue or incident such as this happens.

Does the EPA does have an ongoing role in monitoring or regulating that facility or similar facilities?

Dr. Tom Ryan

We absolutely do. I will ask my colleague, Mr Page, to speak on this.

Mr. Darragh Page

The EPA is the regulator for drinking water quality in Ireland and we have responsibility to assess the performance of Irish Water and all the water treatment plants in public ownership throughout the country. Irish Water has to notify the EPA whenever there is a failure to meet a water quality standard or if there is an incident that affects the quality of drinking water. Aside from this, we carry out an auditing programme of the water treatment plants throughout the country where some of the audits are carried out in response to incidents and others are carried out at plants that are performing adequately as a random check of those. We have an ongoing role. At the end of the year, every monitoring result carried out on drinking water taps throughout the country is submitted to the EPA. There are almost 200,000 test results. We assess them and publish them every year as part of our annual drinking water report.

What sanctions does the ESB face? What powers of enforcement has the EPA? It appears there has been ongoing correspondence with the agency since the early 1990s. The officials mentioned to Deputy Dooley they knew nothing about it at any stage, with the exception of one incident. What happens now this is out there? What sanctions will be imposed? Are there any penalties? What follow-up will there be from the EPA?

Dr. Tom Ryan

With regard to the leaks from the cables, two incidents were reported to us - one in 2006 and the other in 2012. One was on an EPA licensed site and we dealt with it in that context. The other was outside a site and the ESB was referred to the local authorities. The onus and obligation for reporting leaks is on the ESB. If they take place in the general environment as most of these did, they are reported to the local authorities. It is for the local authority to take action. The first thing the local authority will be interested in is a site-specific impact assessment and whether any damage was done locally. The ESB has undertaken to do a site-specific assessment in all 68 cases. The work will take some time but it is committed to doing it and will do so on a risk-based schedule that will take into account and give primary focus to leaks that may have occurred in or close to sensitive areas. Additional enforcement action will be a matter for the local authorities if they feel prosecution is warranted. This will be a matter that local authorities will consider first. When it comes to the environmental liability directive, it is for the EPA to take enforcement action if it sees fit. We are just concluding our investigation. We have not concluded on that matter yet.

What is the timescale?

Dr. Tom Ryan

We will decide that in the next few weeks.

On the reporting issue, I raised a local issue in our hearings with the ESB to give an example. In 2009, there was a leak in the Dodder Valley area. I classify this area as a sensitive environmental habitat. It is in my constituency but it is an important urban river. During an earlier hearing, I asked Mr. Paddy Hayes whether the ESB had contacted the EPA and he said it had not. He said the ESB thought it was appropriate just to contact the local authority. This was with regard to a leak of mineral oil fuel from a leaking cable. In such an instance is it clear the ESB should have contacted the EPA to report such a leak?

Dr. Tom Ryan

The reporting requirement is to the local authority but for a leak of this nature, a screening assessment under the environmental liability directive should be carried out.

There is quite a high bar for the definition of environmental damage in the scope of that directive but it would be required to carry out screening. If there were consequences of that, they should be reported to the EPA.

Mr. Seamus O'Loughlin referred to the 2003 groundwater directive in his evidence. Was he correct in referring to that directive as having implications where there is leakage from such a cable?

Dr. Tom Ryan

The European Communities Environmental Objectives (Groundwater) Regulations 2010, yes.

With regard to SF6, my ears pricked up when I heard the following sentence from Dr. Ryan's presentation:

...management and control of SF6 at the Moneypoint site is operationally rather than environmentally focused, with sustained and prolonged leaks from equipment within the ESB Networks compound.

That is a remarkable statement from the EPA about one of our largest utilities, a company that presents itself as being to the forefront with regard to environmental responsibility. Dr. Ryan is saying that it did not take environmental responsibility. There were prolonged leaks for a sustained period with a lack of due recording of a remarkably virulent greenhouse gas. Will the EPA consider, among further actions it will take, if there will be some consequences for ESB if that finding is borne out in the EPA's final report?

Dr. Tom Ryan

There is legislation under which we can consider enforcement action if appropriate. There is the licensed site which the compound is on and there are reporting obligations under Pollutant Release and Transfer Register Regulations, PRTR, regulations. We have not gone there yet but, as we conclude our investigation, we will consider what enforcement action we might take. We could also take enforcement action under the European Union (Fluorinated Greenhouse Gas) Regulations 2016.

It is not our role to be judge and jury. I welcome and support the independence and rigour of the EPA. What we have heard today backs up and validates what Mr. Seamus O'Loughlin said to the committee. As Deputy Dooley says, it is further justification of the good work that RTÉ did, in presenting some of his analysis. It is a dark day for the ESB, for a company which needs to have the highest of environmental standards. To have the State's Environmental Protection Agency issue such a judgment on just one example of what we have heard today is very serious for ESB.

I suggest, in light of what we have heard, that we invite ESB back in about this issue. I do not want to get into details but, as have others here, I have had considerable interaction with the whistleblower. He has gone through hell in this time. For some time, the ESB sought to distance itself from discussing the individual issues of the whistleblower. I think we should invite the ESB to attend, in private if necessary to protect all concerned. We will probably be having a debate in another module about the funding of RTÉ and assisting it in its continued investigative work. It is quite striking that the EPA would come before us and tell us that if it was not for the actions of the whistleblower and the capacity of "RTÉ Investigates" to put together such an important report, this really damaging event would not have been addressed. Who knows where that would have gone or if it would have continued? At least now ESB Networks is in the crosshairs. It is under the watchful eye of the EPA. I am sure it will comply now that the cat is out of the bag. It is important work that the committee needs to finish. I thank the EPA for its important role in taking this step but I suggest that we still have more work to do.

I agree with my colleagues that the whistleblower has been vindicated by the EPA's presentation this afternoon. I suggest to the committee that we bring in the ESB but also the whistleblower.

Deputy Lowry asked about the EPA's powers. Do the witnesses feel that the EPA has the requisite functions to make sure that reporting happens or are they merely reactive with regard to enforcement, waiting to be notified of these breaches?

Dr. Tom Ryan

It is difficult because if there is an operator or organisation where an incident occurs, there is an obligation to self-report. That is why, in the regulatory world, if we find that something has happened and an organisation has not reported it, we take it all the more seriously. On the leaks and the SF6, the regulations and appropriate powers are in place. I do not think that we have identified anything additional that we would require in that context.

A whistleblower on "RTÉ Investigates" alerted the EPA to this event. Does that not indicate that the EPA needs more probing powers and enforcement powers, rather than being reactive and waiting for it to be reported?

Dr. Tom Ryan

Incidents have to come to light. In this case, our first contact was with RTÉ. It is difficult to see how we would design powers to detect circumstances where people were not forthcoming in reporting. That is why we would react quite strongly in the regulatory world when we detect non-reporting of incidents.

The EPA is dealing with what is effectively a semi-State company. This is not a fly-by-night operator that is trying to cut margins. It has a monopoly. It is a large-scale company. The principle of self-reporting works well. It is how Revenue collects its money from the vast majority of taxpayers who, in the last number of days, have been filing their returns. It does so on the basis of people making an open and frank disclosure. That is why it is particularly troubling when one looks at the breadth of events that have taken place that have not been reported. One would have to believe that there is a culture of non-reporting. Dr. Ryan identified that the only two reports the EPA received were for areas that were on or very close to a licensed operator. It is fine if it was done within the confines of a licensed environment but if it was further afield and it was a real issue, does Dr. Ryan find it strange that nothing was referenced?

Dr. Tom Ryan

We are active, especially with regard to SF6. We take a risk-based approach in that area. We look at the distributors. There is a system for the validation of people involved in fixing the refrigerators and such that these gases are used in. We are active in that area. We are always looking for intelligence when out on site and doing audits. On this occasion, the information happened to come through RTÉ. The ESB example is a good one in that it has put the protocols in place for future occurrences. There are ongoing issues and since this was detected there have been seven more occurrences. ESB has been dealing with those appropriately and reporting them to the local authorities. It is committed to doing site-specific assessments.

Does the EPA have auditing procedures to ensure that companies and agencies have reporting procedures in place, given that the bottom line is to ensure compliance?

Dr. Tom Ryan

We are going to see this particular issue closed out. There will be reporting requirements to local authorities and there are continued reporting requirements to us under the environmental liabilities directive. We are going to stay actively involved in it until it is closed out, noting that it will be the local authorities that will be the lead agencies in being satisfied that all of these things have been addressed satisfactorily by the ESB.

Is Dr. Ryan happy with the EPA's functions and powers concerning the auditing process?

Dr. Tom Ryan

Yes, Chair, we are.

As there are no further questions, I thank the witnesses for coming before us this afternoon.

The joint committee adjourned at 4 p.m. until 3 p.m. on Tuesday, 26 November 2019.