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Environment Law - Environmental and Natural Resources Law

THE ENVIRONMENTAL PROTECTION AGENCY AND INTEGRATED POLLUTION CONTROL

 The Environmental Protection Agency (the Agency) was set up under the Environmental Protection Agency Act 1992 (the EPAAct). The Act also established the system of licensing known as Integrated Pollution Control (IPC). IPC licensing had previously been introduced in England in 1990.

The idea of IPC licensing was taken up at European level and led to the adoption of Council Directive 96/61 on integrated pollution prevention and control (OJ L257 10.10.96 p 26), known as the IPPC Directive. Ireland implemented the IPPC Directive five years late, in the Protection of the Environment Act 2003. Much of that Act has still to come into force, though the Irish IPC regime was already broadly in line with EU requirements and had to be interpreted in accordance with the objects and purposes of the EU Directive.

The Agency is a statutory body corporate and has legal personality. It can sue and be sued. It is headed by a Board of Directors chaired by a Director General. Part II of the EPAAct deals with the establishment and functioning of the Agency.

 Powers and duties of the Agency

The Agency enjoys a wide remit in relation to the protection of the environment. Its powers are set out in s 52 of the EPAAct.

They are:

(a) Licensing and control of polluting activities;

(b) Monitoring and recording environmental quality;

(c) Support and advice to local and public authorities and to government ministers;

and

(d) Promotion, co-ordination and funding of environmental research.

Additional powers may be conferred on the Agency by the Minister for the Environment. The Agency’s powers in relation to local authorities include setting out procedures to be followed, offering advice, and requiring information and monitoring. This programme-oriented portion of the Agency’s responsibility is possibly its most scientifically significant activity, though of least significance to lawyers.

Section 52(2), on the other hand, is relevant for lawyers because it provides an underlying policy for the Agency’s actions in the fields of licensing and enforcement, where the Agency has most contact with the public and with industry. It outlines the considerations which must guide the Agency’s policy.

The Agency must:

(a) Keep itself informed of public policy;

(b) Have regard to the need for a high standard of environmental protection;

(c) Promote sustainable and environmentally sound development;

(d) Take a precautionary approach where there is reasonable evidence of likely significant environmental harm;

(e) Apply the ‘polluter pays’ principle insofar as possible; and

(f) Balance the need for development against the need to protect the environment.

The Agency must take account of these objectives in its actions. Significantly they are similar to the objectives of EU environmental law laid down in Art 174 of the EC Treaty.

Integrated Pollution Control

IPC is a system of licensing industrial activities in order to control the pollutants they emit.

 Control of environmental pollution

The purpose of the IPC licensing system is to control environmental pollution.

This is defined to include air pollution, water pollution and waste, in a way which ties the EPA Act in with the Air Pollution Act 1987, Local Government Acts 1997-1990, and Waste Management Act 1996.

The pollution displacement problem

Where there are different rules for air pollution, water pollution and waste disposal, waste will tend to be disposed of in such a way as to take advantage of the least strict regime. If air emission standards are strict, waste products may be diverted to water instead, for example. IPC tries to prevent this by setting up one license for all pollutants.

 Implementation of IPPC Directive

Because the IPPC Directive postdates the EPAAct, the Act cannot be regarded as implementing the Directive. Although the deadline for implementation was 30 October 1999, Ireland still only adopted legislation to implement the Directive in 2003. The Protection of the Environment Act should remedy this problem, but much of it has not been commenced at the time of publication. In the meantime, the EPA Act can, and indeed must, be interpreted in order to give effect to the IPPC Directive. This is a straightforward application of the rule laid down by the European Court in Case C-106/89 Marleasing [1990] ECRI-4135. The Directive is very similar to the Irish provisions, so compliance is relatively easy. There may be some incompatibilities but no litigant has yet identified them.

Obligation to hold a licence

A person who wishes to carry on an activity must first obtain an IPC licence.

This is laid down in s 82 of the EPAAct and Art 4 of the Directive. The question ‘is this an activity?’ is the first question to ask in any case.

 Activities

An activity is defined as any activity listed in the First Schedule. An activity is any ‘process, operation or development’. There are 12 classes of activity listed in the Schedule, each subdivided into a number of sub-headings.

The general classes are:

(a) Mineral extraction;

(b) Energy production;

(c) Metal production and use;

(d) Production of mineral fibres and glass;

(e) Chemical production;

(f) Intensive agriculture (pigs and poultry);

(g) Food and drink production;

(h) Wood, paper, textile and leather working;

(i) Extraction and refining of fossil fuels;

(j) Cement production;

(k) Waste disposal or recovery (where combined with an activity under another class only) (Waste Management (Amendment) Act 2001, s 13);

(l) Paints, electroplating and other surface coatings; and

(m) Some minor miscellaneous activities.

In order to determine whether something constitutes an activity, it is always necessary to check the First Schedule to see if it comes within any of the relevant sub-classes.

The 2003 Act amends the list of classes of activity in the First Schedule to the 1992 Act. The two are broadly similar but there are differences of detail.

Activities are covered when they rise above certain intensity, usually measured by reference to the capacity of the activity. For instance, piggeries with a capacity of over 3,000 units need a licence (or 1,000 units on gley (waterlogged) soils), and power stations with a rated thermal input greater than 50MW.

Interpretation of thresholds in the Act poses problems.

Three examples may be noted.

First, in relation to piggeries, pigs are counted as one unit but sows are counted as 10 units. In the case of Shannon Regional Fisheries Board v An Bord Pleanála [1994] 3 IR 449 the High Court held that a ‘maiden gilt’ (a sow which had not yet had her first litter) was a sow and not a pig. The practice had been to treat it as a pig, since sows are counted as 10 units to take account of the waste produced by their offspring. Then in Maher v An Bord Pleanála [1999] 2 ILRM 198 the High Court held that, in spite of this explanation for counting a sow as 10 units, each of the sow’s progeny had to be counted as a separate unit. This meant that piggeries across the country were overnight reckoned to hold twice as many pig units (these cases were brought in relation to environmental impact assessment where Irish law uses the same thresholds). Under the new Act the problem disappears: piggeries which either have more than 2,000 production pigs or 285 sows need a licence.

Secondly, a similar problem arises in relation to slaughterhouses. Where these have the capacity to slaughter more than 300 cattle per day, they need a licence. It is not clear whether this is based on the capacity which they could slaughter in a 24-hour day, or the actual number routinely slaughtered in a working day. This difficulty is replicated under the 2003 Act.

Thirdly, in relation to electrical equipment, power stations can be run in excess of 100% of their nominal value for a limited period of time, so the normal maximum is not the real maximum.

In all instances, thresholds need to be treated with some caution, but also with a measure of common sense. If an activity is at or near the threshold, it is probably better to apply for a licence, but an unduly technical reading is probably not required: it is better for the applicant to decide what capacity the activity will actually be carried out at, and then not to exceed that level, even if it would nominally be possible to do so.

There are differences in threshold level between the Act and the Directive.

Where the Irish threshold is lower than the EU threshold the difference should not pose a problem.

 Established activities and new activities

As a rule, all new activities require a licence. Almost all established activities also require a licence.

An established activity is an activity for which planning permission was granted before the ‘relevant’ day in 1994-1996 or for which planning permission was not required on that day. The relevant day is prescribed in Art 4 of the Environmental Protection Agency (Licensing) Regulations 1994-1996 (SI 85/1994 as amended, the relevant amendment in this case being SI 240/1996) and is either 16 May 1994, 3 April 1995 or 3 September 1996. The Minister set out different days for different classes of activity, and this can be confusing. Provided planning permission was granted after 3 September 1996, the activity is not established. If it was granted before then, it will be necessary to look at the question in more detail. Licensing of established activities was introduced in stages. The Minister specified a number of dates by which different established activities had to have a licence (Environmental Protection Agency Act 1991 (Established Activities) Orders 1995–98 (SI 58/1995 and SI 460/1998)). If a licence has not been obtained by the day specified for that class of activity, it is an offence to continue the activity.

Established activities could continue to operate prior to the grant of a licence, provided the owner applied for a licence before the specified day. The Agency prosecutes the owners of activities for not applying for a licence in time and further unlicensed activities are still coming to light. Where an unlicensed activity is modified, the owner must notify the Agency, and the Agency may require the owner to apply for a licence. Article 5 of the IPPC Directive mirrors the requirements of the Act. Existing installations must obtain an IPPC permit within eight years, or immediately if the installation is to be altered; they should also comply with the objectives of the Directive, public availability of monitoring results and best available technology requirements immediately. Installations are defined in the Annex.

Existing installations are defined as those which are already operating when the Directive is brought into effect, or which have a permit and commence operating within one year of the implementing law. If an activity listed in the Annex of the IPPC Directive is not included in the Schedule of the EPA Act, or if no date has been set by which it must obtain a licence, the Agency cannot require the operator of the activity to apply for a licence. Its duty as competent authority to give effect to the Directive is limited by the rule laid down by the European Court in Case C-168/95 Arcaro [1996] ECR I-4705 that the obligation to reinterpret pre-existing national law to give effect to a Directive cannot be used to impose new obligations on individuals. To impose such obligations would effectively give horizontal direct effect to a Directive, and that cannot be done. Thus, if there is any activity which should be licensable, but is not, this can only be rectified by further legislation.

The Agency as licensing authority

Under s 83 of the EPAAct, you apply to the Agency for a licence. It may grant a licence, with or without conditions, or may refuse a licence. The Agency must have regard to the following criteria:

(a) Relevant air quality, water quality and waste management plans;

(b) Any special control area under the Air Pollution Act 1987;

(c) Any noise regulations; and

(d) Any other matters relating to environmental pollution which it considers necessary.

The Agency must also have regard to any environmental impact statement submitted, and to any further information from the applicant and any comments or submissions from the public or other Member States relating to it, but only insofar as the EIS and comments relate to the risk of environmental pollution.

The Agency is thereby made the competent authority responsible for carrying out that part of an environmental impact assessment (Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, OJ L175 5.7.85 p 40 as amended by Council Directive 97/11/EC, OJ L73 14.3.97 p 5) which relates to matters within its jurisdiction. This issue is discussed in more detail below.

The Agency cannot grant a licence unless it is satisfied that:

(a) Emissions to air and water, and waste disposal or recovery, will comply with any relevant environmental quality standards and emission limits for air, water, waste, noise, or otherwise;

(b) The emissions from the activity will not cause significant environmental pollution (in practice this significant environmental pollution test is very important); and

(c) The Best Available Technology Not Entailing Excessive Cost (BATNEEC) will be used (now Best Available Techniques under the 2003 Act, though the two concepts include a cost element and are quite similar).

In coming to its decision, the Agency must attach conditions to ensure that the above requirements are complied with. Thus, any condition which contributes to the fulfilment of these obligations should be valid.

 The licence application

An IPC licence is effectively a two-stage procedure. The procedure is laid down in s 84 of the EPAAct and in the Environmental Protection Agency (Licensing) Regulations 1994 (SI 85/1994).

Stage 1: Proposed determination

In the first stage, leading up to the proposed determination, an applicant publishes a newspaper notice and erects a site notice informing people of the licence application which the applicant then lodges with the Agency.

The application must contain the application fee and a long list of information about the proposed activity including:

(a) What it is and where it is;

(b) What local authorities are relevant;

(c) What emissions the proposed activity will cause;

(d) How emissions will be monitored and controlled;

(e) What BATNEEC (or, presumably, under the 2003 Act amendments, BAT) the Agency has prescribed and how the applicant will use it (if no BATNEEC has been prescribed, there is no such obligation).

An environmental impact statement should be included where the application is for an activity which requires an EIA.

The Agency assesses the application to see if it is valid. If it is not, the Agency may either reject it outright or may request that the applicant supply further information to complete the application. The Agency can also require that the applicant make a further publication if it believes the original notices were insufficient. It is not unusual for the stage of requirements for further information to continue for a considerable time, with the applicant answering only a part of the Agency’s requirements or needing time to carry out monitoring or research which the Agency requires. Having determined that an application is valid, the Agency will usually require that the applicant publish a further notice of the application, so that interested parties can make submissions.

Once the application has been assessed as valid, time begins to run against the Agency. Section 85(3) provides that the Agency must publish notice of its proposed determination within two months. However, the Agency has jurisdiction to request further information under Art 17 of the Licensing Regulations. Usually the Agency requests so much information before confirming that the application is valid that it has little need to require further information here, and the two powers effectively duplicate one another.

However, if Art 17 is invoked, the time for the Agency to issue its proposed determination is extended to two months from the date on which the Art 17 notice is complied with, and the Agency must publish notice of the extension of time in a newspaper circulating in the area.

The right of interested persons to make submissions is inferred from two provisions. Under s 85(3) the Agency must serve notice of its proposed determination on any person who made a submission on the application. Under s 85(2) the Agency must take account of any submission made in relation to an Environmental Impact Statement submitted as part of a licence application. It must therefore be intended that people can make submissions. Submissions can be made within one month after receipt of the application. Where further information is received, the Agency will normally notify anyone who has made a submission so that he/she can make a submission on the further information. (These provisions are contained in s 87 of the EPAAct as amended by the 2003 Act.)

Once the application is complete, the Agency’s inspector prepares a report and a draft licence (if appropriate) and forwards them to the Board of the Agency. The Board considers the application, submissions and report and issues a ‘proposed determination’ stating how it proposes to decide the application. This concludes the first stage of the procedure. If there is no objection to the proposed determination, the Agency must issue the licence in those terms within one month. If there is an objection, the process moves to its second stage.

 Stage 2: Objection

In the second stage, any person may object to the proposed determination. An objection must be made in writing, accompanied by the appropriate fee, and set out the grounds of objection. The Agency circulates the objection to the licensee and to the local authority. Where there are other objectors, it circulates each objection to each objector as well. The applicant for a licence will often object to the severity of the conditions. Every person to whom an objection is circulated has the right to make a submission on it.

Where a submission contains new information, the Agency may circulate it to the parties, and will normally do so to comply with the requirements of natural justice. The Agency has to satisfy itself that it is appropriate to grant the licence and so it can carry out investigations and commission reports. The results of these should also usually be circulated to the parties. (The parties are the objectors, the applicant, and the local authority.)

Any party may request an oral hearing and the Agency has an absolute discretion whether to hold one. In practice, very few oral hearings have been held under the EPAAct, though a considerable number have taken place under the similar Waste Management Act. If there is an oral hearing, the Agency appoints a Chairman of the hearing to conduct the hearing and to report on it.

The Agency considers the objection(s) and all submissions received and decides what changes, if any, it should make to the proposed determination before issuing its final decision. The decision may be to grant, to refuse, or to grant subject to conditions. In most cases the decision is to grant subject to conditions. A grant without conditions would probably be invalid since the Agency is obliged to impose appropriate conditions to ensure that the statutory objectives are complied with. The Agency must notify the decision to all the parties to the objection. Some aspects of the procedure deserve comment.

The public has the right to access the application under Art 23 of the Licensing Regulations and this facilitates the making of submissions and objections.

Duration and transfer of licences

Where a licence is granted, operation must commence within three years. If it does not, the licence will lapse. If operations cease for a period of more than three years, the licence will also lapse. The Agency can grant a licence for more than three years, and the licensee can apply for an extension of time (s 90). A licence ‘enures for the benefit of’ the activity, so when a landowner sells the land on which the activity is carried out, the licence passes to the new landowner. Where a transfer is proposed, the Agency must be notified, and, under the 2003 Act, the Agency has a role in consenting to the transfer or surrender of a licence.

Review of licences

The Agency can review an IPC licence under s 88 of the EPAAct. Areview can be carried out after three years without the need for further justification. It can be carried out if the licensee agrees or wants it. It can also be carried out after less than three years if there is a significant risk of pollution, or the nature of an emission has changed, or the state of the environment has changed in a way which could not have been foreseen. It can also be carried out if there is new evidence available, or if initial application, but the public notice requirements differ slightly, in particular in that the Agency must publish notice that it is commencing the review. On an application for a review, the Agency originally had no power to refuse the licence, but the 2003 Act confers such a power.

Modification of installations

Where the operator of an activity proposes to carry out any reconstruction, or to modify the activity, where this would materially change or increase the emissions, the Agency must be informed under s 92 (s 98 once the amendments come into force), and it may decide to review the licence.

Relationship to Planning and Development Act: IPC and EIA

Section 98 of the EPAAct (now s 99F) deals with the relationship of IPC to other procedures, and was amended in 2000. Originally, the Agency could only consider the risk of environmental pollution, while the planning authority (or An Bord Pleanála) was precluded from considering the risk of environmental pollution. This was an attempt to establish an absolute line between the planning process and the IPC process. This led to an alleged incompatibility between s 98 and the EIA Directive. It has caused a substantial amount of litigation but there is no decided case on the point.

In effect the EIA was split between the EPA and the planning authorities/An Bord Pleanála. This has meant that the Agency considered the effect of emissions, while the planning authorities considered the effect on the built environment. It was argued that the Agency could not consider whether an activity was appropriate in a particular location, since it could grant a licence for any location, provided the emission limits were strict enough, while the planning authorities could not refuse an application for an activity in a sensitive location, since it could not consider the risk of environmental pollution.

Hence, it was said, the key feature of the risk of an accident was always overlooked. The second argument put forward (more frequently) was that nobody ever considered the interaction between the different effects or decided whether on balance the project should be allowed to go ahead or not and that this breached the whole idea of an assessment. Cases relating to this point are still before the courts and could have an effect on the new version of s 98.

As amended, s 98 allows the planning authority or An Bord Pleanála to take account of the risk of environmental pollution, and to refuse planning permission where the risk is excessive, but not to impose conditions intended to control such pollution. Section 34 of the Planning and Development Act 2000 provides that the planning authority or An Bord Pleanála may request the Agency’s views on the proposed activity, and the Agency has three weeks to give an opinion. new standards have been adopted, or if a special control area order has been made for the area where the activity is located. Under the 2003 Act, all existing licences must be examined to see if they should be reviewed in order to bring them into compliance with the Directive and the new Act. The procedure applicable to a review is essentially the same as for an 6.2.13 Monitoring The IPPC Directive requires that licensed activities should be monitored, that the monitoring results should be communicated quickly to the Agency, and that the monitoring results should be available to the public. In an IPC licence,

licensees are generally required to install monitoring equipment at selected points, and to send the results of monitoring to the Agency which puts them on the register where the public may inspect them. This also enables the Agency to obtain the information it needs to know if a breach of the licence has occurred, or if the activity is causing pollution. The Agency’s other method of obtaining information is through using its powers to inspect activities under s 13.

Enforcement

Section 84(2) makes it an offence to breach the conditions of a licence. In addition, s 8 makes it an offence to breach any provision of the Act. Penalties for offences are laid down in s 9: €1,269.74 on summary prosecution and €12,697,380.78 on indictment. The Agency is authorised to prosecute summarily under s 11, and regularly does so. It has brought a large number of prosecutions across the State. Only the Director of Public Prosecutions can prosecute more serious offences, though to date there have been no prosecutions brought on indictment.

The Agency is also responsible for enforcing the requirement to hold a licence. Section 83 provides that an activity shall not be carried out after a particular date unless a licence or revised licence is in force in respect of the activity. Section 8 makes it an offence to breach any provision of the Act. Penalties are as mentioned above.

 Civil enforcement

Civil remedies are introduced into the EPAAct by the 2003 Act. The Agency can seek an injunction to restrain a breach of an IPC licence or to clear up pollution caused by such a breach (s 99H). The 2003 Act also give the Agency power to suspend or revoke a licence, subject to a right of appeal to the High Court (s 15, amending s 97 of the 1992 Act). It is also open to the Agency or any person to seek an injunction against a licensee in relation to actual or threatened air pollution (Air Pollution Act 1987, s 28B, as inserted by the Second Schedule of the EPA Act itself) water pollution (Local Government (Water Pollution) (Amendment) Act 1990, s 20), or waste (Waste Management Act 1996, s 57). 6.2.16 IPC, IPPC and relationship to other Directives As the IPC procedure has to be implemented in such a manner as to give effect to the IPPC Directive, it is appropriate to set out the scheme of the IPPC Directive below.

Each provision of the Irish legislation may need to be examined in order to determine how it should be interpreted to accord most closely with European law. In the Directive:

• Article 1 sets out the objectives of the Directive.

• Article 2 provides definitions.

• Article 3 sets out general principles which the competent authority must oblige the operator of an activity to comply with, and is a key provision.

• Article 4 provides that all new activities need a permit.

• Article 5 provides that existing activities must comply with some of the obligations immediately, and must obtain a permit within eight years of implementation.

• Article 6 lays down procedures which must be incorporated into the permit regime.

• Article 7 specifies that procedures must be fully co-ordinated where more than one competent authority is involved in granting permits which together constitute an IPPC permit, so that the result will be a fully co-ordinated procedure.

• Article 8 provides that, where a permit is granted, it must contain conditions to ensure that the objectives of IPPC are achieved.

• Article 9 details the matters which the conditions must deal with.

• Article 10 provides that environmental quality standards must be achieved even where best available techniques are incapable of delivering them: additional measures are required.

• Article 11 stipulates that Member States must ensure that the competent authorities are kept informed of the best available techniques.

• Article 12 states that installations cannot be altered without a permit.

• Article 13 requires that permits must be reviewed periodically, particularly where there is pollution, or new legislation, techniques or standards.

• Article 14 deals with compliance and monitoring.

• Article 15 deals with public participation in licensing and public access to information.

• Article 16 addresses exchange of information between Member States in general.

• Article 17 deals with consultation between Member States in relation to installations with transboundary effects.

• Article 18 provides for the Council to set emission limit values for the industries listed in the Annex, except waste activities which are covered by separate legislation.

Procedural rules for EU institutions follow.

The Directive came into force on 14 October 1996 and had to be implemented by 14 October 1999. To date, Ireland has activated only parts of the implementing legislation.

While the IPC procedure laid down in the EPA Act largely gives effect to the IPPC Directive, the Directive itself gives rise to difficulty. It is stated to apply without prejudice to the application of other Community measures, including the Environmental Impact Assessment Directive (Council Directive 85/337 as amended by Council Directive 97/11), the Habitats Directive (Council Directive 92/43), as well as Council Directive 76/464 on water pollution, and Council Directive 84/360 on discharges to the atmosphere from industrial plants, and the Waste Framework Directive (Council Directive 75/442 as amended by Council Directive 91/156). This ‘without prejudice’ approach poses huge problems of interpretation where national implementing legislation has to bring the various EU Directives together into a coherent whole with no guidance from European law itself. It may well be that any Irish failure to implement European law properly may be as much the fault of the EU as of the State.

In Irish law, IPC is a two-stage procedure. An applicant applies for a licence and gets a proposed determination. There is then an opportunity for anyone to object to the grant of the final licence. The public is involved at all stages. The objective of IPC is to prevent environmental pollution. When the Agency considers a licence application, this is its overriding objective. It is usually possible to grant a licence provided the emission limits are set low enough and provided the controls are good enough. Enforcement is usually carried out by way of criminal prosecution in the District Court, but prosecutions on indictment are possible, and injunctive relief will soon be available. The IPC procedure gives effect to the subsequent IPPC Directive and this causes some interpretation difficulty.