IPC Licence Issues

Integrated Pollution Contol

The  Protection of the Environment Act, 2003 introduced a wider concept of integrated pollution control implementing updating EU Directives.  The IPC licence seeks to control all emissions to air, water, land including noise emissions, in an integrated manner.  It also provides for energy usage, minimising waste and measures for site protection. It is wider in nature than the original concept of integrated pollution control.

The legislation seeks to ensure that new industrial installations are subject to a wider, more holistic approach, to environmental protection from design to operation. Under the new approach, energy conservation is required.  The licence holder must minimise the environmental effects of their facilities and prevent environmental accidents and damages.  End of life decommissioning must be provided for.  There must be recycling where possible.

IPC licensing and control applies to processes, developments or operations specified in legislation which is carried out in an installation.  An installation is a fixed unit or plant, where an activity is carried on. The Minister may designate further activities for the purpose of IPC licensing.

A change in nature of the activity may cause it to require a new IPC licence.  There is a procedure whereby the EPA can be requested to opine as to whether a change in a facility or activity, may require a new license or revised license.  If there is a substantial increase in the emissions from the activity or significant new emissions, a new or substituted license may be required.

Licence Application

The EPA has published guidance notes on licence applications. The EPA will undertake pre-application discussions in relation to applications for licenses.  These are informal but are advisable. Applicants are obliged to notify certain entities of the intention to apply for an IPC license.  This includes the planning authority and certain other entities, prescribed by law.

There is an eight-week period in which to consider the application.  This may be extended by a request for further information.  If the application is non-compliant, time does not commence until a compliant application has been lodged.  Similarly, if a request for further information is mad, the time does not commence to run again until it has been answered.

The bodies required to be consulted, include the Department of the Environment, Health and  Safety Authority, the fisheries authority and the sanitary authorities. They are given a copy of an Environmental Impact Statement in relation to the application.

The EPA, in assessing the application for an IPC, considers the relevant air quality management plan, water quality management plan, waste quality management plan of the relevant authorities, noise regulations,  governmental policies, the EIS, comments and observations of the various consulted bodies such other matters, as it considers appropriate.

Grant of Licence

In granting the licence, the EPA must specify the emission value limits in respect of pollutants which are likely to be emitted in significant amounts.  They should be measured.  The emission limits may be revised from time-to-time, where appropriate.  Provision may be made for the end of life decommissioning.

The EPA may not grant licenses where it would breach the relevant air quality standard prescribed by law, would not comply with water pollution legislation or would not comply with EU standards. The emissions must not cause significant environmental pollution. The best available technology must be used.

Waste must be prevented, minimised, recovered or disposed of,  with the minimum impact on the environment. Energy must be used efficiently in the activity.  Necessary measures must be taken on cessation of the activity, in order to alleviate any ongoing environmental risk.  Steps will be taken to minimise accidents. The EPA must ensure that the activity does not adversely affect a designated European site.

The best available techniques are the most effective and advanced in the development of an activity and its method of operation which indicate the practical suitability of particular techniques for providing, in principle, the basis for emission limit values designed to prevent or eliminate, or where it is not possible practicable, generally to reduce emissions and impact on the environment as a whole.

The best technique is means which is the most effective in achieving a high general level of protection for the environment.  Available techniques are those developed on a scale which allows implementation in the relevant activity, under economically and technically viable conditions, taking into account the costs and advantages, whether or not the techniques are used or produced in the State as long as they have reasonably accessible.  Techniques include both the technology used and the way in which it is designed, built, managed, maintained and operated.

Best Available Techniques

BATNEEC was replaced in 2007 by BAT.  BAT refers to Best Available Techniques /Technology.  BAT looks at the perspective of the average business in the sector.  In contrast, BATNEEC looks at the particular situation of the business or polluter concerned.  BAT does have regard to the economic costs but it requires more in terms of the technical state-of-the-art. It does not require that which is only theoretically or scientifically available.

BAT takes account of the interests of the entire sector of business.  In deciding on licensing applications, geographical and local environmental circumstances are taken into account. BAT requires the taking into account a wider range of environmental factors including waste prevention, recovery, energy and water conservation.

The principles must be proportionate in accordance with general principles of EU law and the protection of property rights.  However, it is a matter for the licensee to show that the costs are excessive so that the increased costs outweigh the environmental benefit.

The Environmental Protection Agency has published notes for guidance on BAT in certain sectors.  It will have regard to these in licensing.  The EPA may require evidence of the financial ability of the licensor to undertake the requisite obligations.  A bond or other security may be required.  Other measures may be taken in order to secure compliance.

Grant of Licence

The EPA may impose license conditions.  The types of license conditions are specified in the legislation.  The conditions may require to be achieved within certain timelines. The notice of the proposed decision must be given within eight weeks of the date of application.  This may be extended if there is a valid request for further information during periods in which the outcome of the request is awaited.

Notice of the proposed decision is given to the applicant and is published. Members of the public may object to the proposed determination or request an oral hearing.  If there are no objections, which remain unwithdrawn, the EPA makes a decision as soon as may be after the end of a 28-day period after the notice is given.

Third parties including the applicant may object to the proposed determination.  A person objecting, may request an oral hearing within certain time limits.  The EPA has a discretion as to whether to hold such a hearing.  If it does so, it must give notice to certain persons affected.  The EPA takes account of the objections in its ultimate determination.  It may carry out investigations to assist the process.

The decision is to be given as expeditiously as may be.  This is generally four months after the expiration of the relevant period.  If it cannot meet the deadline, it must notify the parties and give another target deadline. Reasons must be given for the decision. The reasons given should inform the public and licensees of the substantive reasons for the decision.  The courts have not approved formulaic reasoning.

Notice of the decision is published in newspapers and is available in the planning office for inspection.  It must contain certain information.  It is also published on the Internet.  Registers of decisions are maintained.

An IPC licence supervenes and is deemed compliant with water pollution, air pollution and waste management licensing.  Such licenses cannot be granted for activities licensed under IPC.  The license may, to some extent, immunise an entity from liability for environmental damage subject to conditions.

Review of Licences

The licensee or the EPA may review the licence periodically, but not more often than every three years.  A review may be made within three years exceptionally.  A license must be reviewed when particular circumstances occur or may be reviewed in other listed circumstance.

The EPA must publish its notice to review a license.  A review is mandatory, where there has been an alteration or reconstruction of the activity which substantially changes the emissions.

The procedures for review are broadly similar to the procedures for grant of a licence.  The EPA will have regard to changes in the specific environment and technological changes since the previous license.  A licensee may be required to submit information and documentation.  A review may be as extensive as the original application or may be more limited.

An amendment to a license requires a less elaborate procedure.  It does not involve public consultation.  It may facilitate anything done pursuant to an existing license or contemplated by it.  It may correct errors in the previous licence.

Transfer and Surrender

A license may be transferred.  A joint application of the transferor and the transferee to the EPA is required in the prescribed form. The EPA must be satisfied that transferee is a fit and proper person and has complied with various requirements prescribed by legislation.  The license may be transferred subject to conditions.  That transferee assumes the obligations of the license.

A license may be surrendered, provided the EPA agrees.  There isaz procedure for application for a surrender of a licence.  Conditions may be imposed. The Agency must consult with interested parties.  The key issue will be the ongoing status of the installation concerned, from an environmental perspective.  A licence surrender may not be accepted if there is ongoing pollution.

The EPA maintains a register of licences.  They are available for inspection by the public.  In practice, they are available on the Internet.

A license holder must notify the EPA of any alteration of the activity if it would be likely to cause new or increased emissions.  If the EPA considers the emissions are substantial, it may review the license.

There are special provisions applicable to the judicial review of EPA licenses.  They are broadly similar to those applicable to planning decisions. The challenge must be made within eight weeks. This application for leave for review must be made on notice to the Authority.

Enforcement Civil

The EPA has published details of its enforcement policies.  It has ongoing policing, auditing and monitoring functions.  Licence holders must report incidents which are likely to have a significant environmental effect.  They must supply ongoing monitoring requirements and summarise their performance under the terms of various licenses.

A license may be suspended or revoked if the licensee is not a fit and proper person.  The licensee must be given the opportunity to make representations before revocation or suspension.  There is an appeal to the High Court.

The Minister may vest the enforcement powers of  Sanitary and Local Authorities under other environmental legislation in the EPA.  Certain powers have been already extended to the EPA, under the various pieces of environmental legislation.  Where this occurs, the EPA takes the place of those bodies in relation to enforcement. The EPA may issue warning letters and notes of non-compliance.  They are various statutory remedies.

There is provision for civil enforcement by way of application to the High Court for an injunction. The procedures and principles are similar to those applicable in relation to planning law. An application may be made to the High Court or Circuit Court for an order requiring a person to refrain from an activity or making such other order, as may be appropriate.  The application is made by motion on notice.  Breach of the order may be enforced as contempt of court and is also an offence.

Enforcement Criminal

The EPA may prosecute for breach of license conditions and requirements and for the breach of environmental legislation generally. A range of offences is created.  Failure to have the requisite license is subject to prosecution summarily or indictment.

On summary conviction, a fine up to €3000 and/or 12 months imprisonment may be imposed.  On conviction on indictment, a fine up to €15 million or 10 years imprisonment may be imposed. A continuing fine of up to €1,000 on summary conviction and €130,000 per day on conviction on indictment may apply.

The EPA has extensive powers to investigate incidents and make reports. It may, after consultation with the Minister, set up an inquiry to investigate any incident. The results of the inquiry may be published.

Fees are payable to the Agency in relation to ongoing monitoring, licensing applications’ monitoring and reviews.  Licensees may be required to pay EPA’s cost and expenses and pay sanitary authority expenses in relation to enforcement.

Local Authority

Where a license proposes discharge of effluent into sanitary authority facilities, the consent of the sanitary authority is required.  The sanitary authority must make its decision within four weeks.  They may attach conditions.

Where a license has been granted, the planning authority may not impose conditions relating to emissions and control.  These are properly the subject of an environmental license.  Equally, existing conditions may lapse where an EPA license, IPC or IPPC license is granted.

The local authority may refuse planning permission on environmental grounds, notwithstanding that the EPA has licensed the activity concerned.  A planning authority may request the EPA to make observations in relation to planning applications, with an environmental element. Due process would normally require the planning authority to defer to the Environmental Agency on environmental issues.