Environmental Protection Agency
The Environmental Protection Agency (“EPA”) is a national agency. It has broad responsibility for promoting high standards of environmental protection, promoting sustainable and economic use, sound development, applying the polluter pays principle and balancing development and environmental needs. The Agency has a number of broad environmental functions, including
- licensing and control of particularly serious polluting activities (integrated pollution control licences);
- monitoring and recording environmental quality;
- advising local and public authorities;
- promoting and funding environmental research.
Integrated Pollution Control
European Union environmental law requires integrated pollution control licences. Integrated pollution control licensing cover air pollution, water pollution and waste. Integrated pollution control licensing provides a single licence for all pollutants. Certain activities require an integrated pollution control licence. The activities are categorised in legislation and may change from time to time.
IPC licences are required for certain activities, including the below.
- mineral extraction, energy production, metal production and use;
- production of fibres and glass;
- chemical production;
- intensive agriculture, food and drink production,
- wood, paper, textile and leatherworking;
- fossil extraction and refining fuel,
- cement production;
- waste disposal and recovery where combined with an activity under another class;
- paints, electroplating, surface coatings; and
- other miscellaneous.
Generally speaking, activities in the above categories, are covered where they exceed certain size or percentages. There are different thresholds applicable to each category. They may be measured in terms of capacity, output or other criteria. For example, power stations above a certain wattage output may be subject to integrated pollution control licensing. The Minister for the Environment can extend the scope of activities that are subject to IPC licensing. IPC licensees must comply with EU standards and procedures.
When IPC legislation was introduced in the mid-1990s, existing activities within its scope were subject to licensing in phased stages. Existing installations were obliged to obtain a licence within a certain period. New activities falling within the category were obliged to obtain a licence before commencement.
The EPA grants integrated pollution licences with or without conditions. It may grant or refuse a licence. In granting licences, it must have regard to the air quality, water quality and waste management plans of the relevant local authorities, any special control area order under the Air Pollution Act, noise regulations and any other matters relevant to environmental pollution, that it considers necessary. The EPA must have regard to any environmental impact statements that are submitted and to submissions made by the public insofar as they relate to pollution issues.
In granting a licence, the EPA must be satisfied that the emissions to air, water, waste disposal and recovery will comply with the requisite environmental quality standards and emission limits for air, water, waste, noise, etc. The emissions must not cause significant environmental pollution. The best available technology not entailing excessive cost should (BATNEEC) should be used. The EPA must append conditions to the licence to ensure the above principles are complied with.
An IPC licence is a good defence to breaches of water pollution, air pollution and waste management legislation. Where IPC applies it is not possible to seek air pollution, water pollution, fisheries licences in relation to the same matter.
The procedures for the application for and IPC licence requires that the applicant publishes a newspaper notice and site notice and lodges the application. It must contain certain information, including in particular the emissions and activity concerned what emissions are produced, how they will be monitored and controlled and what BATNEEC measures will be used.
An environmental impact statement may be required under the Environmental Impact Assessment legislation. The EPA may accept the application if it is compliant with the requisite requirements. It may require further information or publication. If the application is complex, it may require further information and the process can continue for some considerable time. The EPA may require information which takes time to furnish and consider. The EPA may require the applicant to publish a further notice to enable third parties to make submissions.
Once a valid application has been accepted, the EPA must publish its determination within two months. It can request further information before confirming the application is valid. The two months then run from the date on which the notice requiring further information is complied with. Generally, the request for further information is made before the application is validated. However, it can request further information after accepting that the application is valid.
Certain agencies and bodies must be given notice of the application for an IPC, by the EPA. The EPA must take account of submissions made in relation to an IEA if applicable. Submissions can be made within one month of the notice.
The applicant must be a fit and proper person. IPC Licences may not be granted, if they cause significant environmental pollution, fail to comply with requisite air quality standards, do not use best available techniques, do not in use energy efficiently or do not provide for adequate measures to deal with accidents and/or consequences.
The best available technology not entailing excess costs (BATNEEC) principle is applied to prevent or eliminate pollution, where it is not practical to limit and abate emissions from an activity. “Best” is the most effective means of achieving a high level of protection of the environment.
“Technology” includes the manner in which an installation is designed, managed, operated and commissioned and decommissioned. “Available” technology means technology, techniques and skills which allow implementation of the activity under economically and technically viable conditions.
BATNEEC looks at the individual operator. Evidence may be required by the EPA of the ability of the applicant or transferee to meet the financial commitments or liabilities which will result from the activities.
IPC Licence Decision
When the application is complete, the EPA’s inspectors prepare a report and draft licence. The board then considers the application and the report and makes a determination. The EPA then issues its draft licence on terms and conditions. During the second stage, an objection may be made to the proposed determination. This must be made in writing, setting out the grounds.
The objection is notified to the licensee and local authority. Other objectors are circulated. The applicant itself may appeal in relation to the severity of the conditions. An oral hearing may be requested by any party. The EPA decides as to whether to hold one. They are rare in practice.
The EPA considers the objections and submissions made and what changes it should make, before issuing making a final determination. The EPA will normally refuse or make a determination with conditions. The EPA notifies the parties who have made objections. The public has a right to access information.
If activities are not commenced within three years, the licence will lapse. A licence can be granted for more than three years and an application can be made to extend it. The licence covers the landowner and the activity and can be passed to a new owner. The EPA must be notified of transfer and has a role in consenting to the transfer.
The EPA can review licences every three years. If there is a significant risk of pollution or the nature of the emission has changed, a review can take place earlier. A review can be carried out if there are new standards, a special control area has been made or there is new evidence available. The procedure for review of an IPC is broadly similar to that in relation to the initial application.
Where an operator of an activity proposes to carry out changes or modifications of the activity which will materially change or increase the emissions, the EPA must be informed. It may choose to review the licence.
Formerly the EPA dealt exclusively with the environmental aspects and the planning authority dealt exclusively with the planning aspects. The planning authority considered the physical impact on the built environment while the EPA considered environmental issues.
The legislation was amended to allow the planning authority and An Bord Pleanála to take account of environmental pollution and to refuse planning permission where they believed the risk to be excessive. They could not impose conditions to control pollution. This is a matter for the EPA. An Bord Pleanála may request the EPA’s views on the activity and the EPA must give a view within three weeks.
Compliance and Enforcement
EU law requires that activities licensed under integrated pollution control licences must be monitored. Monitored results must be communicated to the EPA and made available to the public. Generally monitoring equipment is required at certain points and the results must be sent to the EPA who put them on a public register.
The EPA has powers to inspect activities to ensure compliance. Failure to hold a licence where one should be held is also an offence. Breach of a licence is an offence. Penalties are €1,000 on summary prosecution and €12,697,284 on indictment. A significant number of prosecutions have been brought. The consent of the DPP is required to the prosecution of more serious offences.
The EPA can obtain an Injunction by reason of breach of an IPC licence the clear up of pollution caused by the breach. The EPA may suspend or revoke a licence. There is an appeal to the High Court. The EPA or any third party can seek an Injunction against a licensee in respect of actual or threatened air pollution.
IPC plant operators must minimise environmental effects and prevent accidents. Licensees have to demonstrate that the relevant site will be returned to a satisfactory state after the operation. Licensees must prevent and minimise waste and must recycle where possible. Energy efficiency obligations apply.