Integrated Pollution Prevention and Control
The Protection of the Environment Bill 2003 is set to amend a range of environmental legislation, but a central focus will be to transpose the Integrated Pollution Prevention and Control Directive (96/61/EC). Integrated pollution prevention and control (IPPC) is the latest command and control system for regulating the environmental impact of industrial activities. IPPC will build upon the existing regime for the control of industrial pollution in Ireland - integrated pollution control (IPC) - which is set out at Part IV of the Environmental Protection Agency Act 1992. The bill, when passed, will replace the existing Part IV with a new Part IV.
Integrated Pollution Prevention and Control
The objective of IPPC under the directive is to control the environmental impact of industrial activities with significant polluting potential. The emphasis in IPC was on the control of environmental emissions from such activities. IPPC licences, however, are designed not only to regulate emissions by means of a single licence, but also to emphasize the ultimate environmental impact. It is intended to reduce environmental impacts arising from energy use, raw material usage and noise, and to control accident prevention measures and heat generation. IPPC also seeks to reduce environmental impacts by the recognition in licences of local environmental conditions, and by requiring licences to cover abnormal operating conditions including cessation of operations and aftercare.
Definitions in the bill reflect the emphasis on environmental impacts. The revised definition of 'environmental pollution' includes the indirect as well as direct introduction of harmful substances into the environment, and encompasses interference with amenity value and offending human senses. An extended definition of 'emission' is designed to include heat, indirect releases, release of greenhouse gas emissions and, notably, emissions from diffuse sources (in addition to point sources).
The technical basis of IPC licensing was best available technology not entailing excessive costs. In line with the IPPC Directive, the bill will formally make best available techniques (BAT) the basis of IPPC licensing. Guidance in the form of a so-called 'BREF' (BAT reference notes) is being developed under an EU programme and this will provide information on what is considered to be BAT in licensable sectors.
The bill prohibits the carrying on of certain activities without a licence. This prohibition applies to licensable activities commenced after the bill is passed. For licensable activities commenced prior to the passage of the bill, phasing-in arrangements apply. Licensable activities are set out in the first schedule to the bill, which lists 13 broad industry sectors (including mineral, energy, metal and chemicals). Each licensable sector is sub-divided into different activities which are declared to be licensable by reference to intensity or threshold of activity or other factors. For example, within the energy sector, one type of activity that is licensable is "the operation of combustion installations with a rated thermal input equal to or greater than 50 megawatts".
Notably, the Environmental Protection Agency, when considering an application, is now formally entitled to consider whether the applicant is a fit and proper person - that is, somebody:
- without a conviction under environmental laws;
- who holds the requisite technical knowledge and qualifications; and
- who can meet the necessary financial commitments.
The Environmental Protection Agency Act 1992 specifies conditions that may be attached to an IPC licence. The new bill, in addition, specifies conditions that must be attached to an IPPC licence. These include:
- conditions specifying emission limit values for environmental pollutants;
- conditions specifying requirements concerning soil and groundwater protection; and
- conditions relating to waste management.
Following the Environmental Protection Agency's consideration of an application, there is notification of a proposed determination to the applicant, to the relevant local authority and to any person who made a submission. Thereafter there may be objections and/or a request for an oral hearing. The Environmental Protection Agency has discretion as to whether to hold an oral hearing. The new bill includes a more elaborate oral hearing provision which deals with the formal request and fee for, and the conduct of, an oral hearing. The period for objection by a non-applicant will be 28 days from notification of a proposed determination (under IPC licensing it was 21 days). The period for seeking judicial review is to be eight weeks from the date of grant/refusal (previously two months).
New arrangements regarding licence transfer are proposed. The new system recognizes that a licence can be the subject of transfer subject to prior notification to the Environmental Protection Agency by the holder and the proposed transferee.
While the Environmental Protection Agency will retain the power to substitute a fresh licence for an original licence post-review, the bill will enable the agency to make amendments to licences post-review in certain cases. Any licence condition may be amended. The term 'revised licence' will apply to an amended licence as well as to a substituted licence.
The bill includes two important controls over the operation of IPPC licences. Firstly, it proposes to grant a power to the Environmental Protection Agency to revoke or suspend the operation of a licence if it deems that the licensee has ceased to be a fit and proper person. Secondly, the High Court is to be given a new general supervisory power to require the person in charge of a licensed activity to refrain from doing anything where, "on application of any person", the court is satisfied that an activity is being carried on "in contravention of the requirements of the Protection of the Environment [Act] 2003". This would represent a significant new element of control over IPPC licensed activities.
All licensable activities commenced after the bill is passed will require an IPPC licence. The bill recognizes that IPPC compliance is more easily achieved at start-up stage, and has separate arrangements for activities commenced or applications made before the bill is passed. These are not altogether clearly set out in the bill, but may be summarized as follows:
- 'Established activities' are those carried on prior to October 29 1999 or, if not carried on by that date, those which are the subject of a planning application by that date and which are commenced before October 29 2000. In such cases the minister may, by order, specify a prescribed date after which an established activity of any specified class may not be carried on without an IPPC licence.
- Separately considered are those activities commenced between October 29 1999 and the passage of the bill which previously were not IPC licensable, but which are now specified as licensable activities in the new bill. These activities must have an IPPC licence or be the subject of an IPPC licence application within six months of the passage of the bill.
- Any licence or revised licence already granted and in force immediately before the passage of the bill will continue in force. This provision is without prejudice to other provisions of the bill.
- By September 30 2007 the Environmental Protection Agency must examine all existing and revised licences already granted and in force immediately before the passage of the bill, in order to determine whether, in light of the IPPC Directive, these licences should be fully reviewed or simply amended to bring them into conformity with the directive. If the agency determines that a particular licence should be reviewed, it must commence that review no later than September 30 2007. If it determines that the licence need not be reviewed, it must declare so in writing. If it determines that amendments to conditions only are required to achieve conformity, then those amendments must be made before September 30 2007. Even where it considers that compliance can be achieved by licence amendments, the agency is empowered - where it considers that it is in the public interest to do so, or because of other special considerations - to carry out a full licence review nonetheless.
- Applications for licences, or for the review of licences/revised licences, that are made but not finally determined at the time of the passage of the bill shall continue to be dealt with by the Environmental Protection Agency and determined as if they were applications for IPPC licences under the bill.
For further information on this topic please contact Conor Linehan at William Fry by telephone (+353 1 6395397) or by fax (+353 1 6395333) or by email ([email protected]).