Snapshot: environmental regulations for mining activities in Ireland

Environment

What are the principal environmental laws applicable to the mining industry? What are the principal regulatory bodies that administer those laws?

The Environmental Protection Agency Act 1992 is the core legislation in Ireland, which is supplemented by a number of EU directives, many of which have been transposed into law in Ireland. The Environmental Protection Agency (EPA) is the main agency responsible for enforcing environmental laws in Ireland. For mining projects, the EPA works in conjunction with the planning authorities and the Geoscience Regulation Office, a division of the Department of Environment, Climate and Communications.

Mining activities are generally subject to Directive 85/337/EEC (the Environmental Impact Assessment Directive), meaning that an environmental impact assessment (EIA) must be carried out and approved by the EPA before a mining project may take place. A mining project will require an integrated pollution control (IPC) licence or an industrial emissions (IE) licence from the EPA and the EIA will form part of the licence application process. The class of activity will determine whether an IE or an IPC is required. EPA licence requirements for mining projects are derived from Directive 2008/1/EC concerning integrated pollution prevention and control and Directive 2010/75/EU (the Industrial Emissions Directive), both of which have been transposed into law in Ireland.

Directive 92/43/EEC on the Conservation of Habitats, Flora and Fauna and the Irish Waste Management (Management of Waste from the Extractive Industries) Regulations 2009 are significant for mining projects. The Waste Management Regulations deal with mine waste and they also set out the requirements for closure and after-care of the mine. Other Irish environmental-related legislation that may be applicable to a mining project in Ireland include:

• the EC Environmental Objectives (Surface Waters) (Amendment) Regulations 2012;
• the EC Environmental Objectives (Groundwater) Regulations (SI 9/2010); and
• the Control of Major Accident Hazards Regulations 2015.

Common law rules must also be considered by companies operating in Ireland, particularly rules of tort law such as the duty of care, nuisance and the rule in Rylands v Fletcher (which deals with the storage and release of hazardous substances).

What is the environmental review and permitting process for a mining project? How long does it normally take to obtain the necessary permits?

Along with a state mining lease or state mining licence, a mining project requires planning permission under the Planning and Development Act 2000 and an EPA licence before the commencement of production.

There are two types of licence granted by the EPA: an IE licence and an IPC licence. Mining projects normally require an IPC licence but some projects require an industrial emissions licence instead because the mine carries out activities that fall under the Industrial Emissions Directive. For example, a mine would require an industrial emissions licence if it had a landfill or if there are hazardous substances on site. The EPA operates a streamlined process for the IPC and industrial emissions licences.

Applicants are encouraged to make pre-application enquiries to the EPA. The applicant commences the process by publishing notice of its intention to apply for an EPA licence in a newspaper, erecting a site notice and notifying the planning authority. The application submitted to the EPA will generally require an environmental impact assessment report, environmental liabilities risk assessment, Natura 2000 impact statement and a closure, restoration and aftercare management plan (CRAMP). The EPA may request additional information from the applicant and may review submissions received from any person. The EPA liaises with the planning authority and the Department of the Environment, Climate and Communications during the application process. The EPA will issue a proposed determination to all notified parties. The proposed determination may be subject to objections and the applicant or an objector may request an oral hearing. After the EPA has considered any objections and the oral hearing takes place, the EPA issues a final determination. Parties have eight weeks to apply for a judicial review of the decision in the High Court.

A decision to grant planning permission is normally subject to appeal to the planning appeals authority, An Bord Pleanala. An application for judicial review must be made within eight weeks from the date on which the licence is granted or from the date on which the decision not to grant the licence is made. The review and permitting procedure is generally a year-long process but in some situations has taken longer.

Related requirements are sometimes imposed as a condition of planning permission. These include a construction and environmental management plan detailing groundwater and surface-water management measures along with a programme of pre-development of archaeological test-trenching by a qualified archaeologist in accordance with the National Monuments Acts 1930–2004. Drainage channels may need to comply with the Guidelines on Protection of Fisheries, published by Fisheries Ireland in 2016.

Do government agencies or other institutions in your jurisdiction provide incentives or publish environmental and social governance (ESG) guidelines for green projects?

Enterprise Ireland is an Irish government agency that provides grants and other financial support to green projects. Some of these financial supports assist established companies to become more environmentally friendly while there are also other financial supports available for green start-ups. Enterprise Ireland granted €4.6 million to the Irish Bioeconomy Foundation to fund the Irish Bioeconomy Pilot facility located at the former Lisheen zinc mine, which will be re-purposed as a national centre for bioeconomy research.

Directive 2003/87/EC (the Emissions Trading Directive), which has been transposed into Irish law, covers factories, power stations and other participants. It operates under a cap-and-trade system whereby participants have a limit on the amount of emissions they may produce and must purchase additional allowances if they exceed the limit. Participants that achieve emissions targets under the limit may sell their surplus allowances. There is a cap on the total number of allowances in the market.

What is the closure and remediation process for a mining project? What performance bonds, guarantees and other financial assurances are required?

The EPA licence application must set out a detailed CRAMP for the mine. The CRAMP sets out the requirements and costings for the closure of the mine and tailings facilities. The closure and remediation process will normally commence before operations cease in the mine. An environmental liabilities risk assessment will likely be carried out to ensure that adequate financial provisions are in place. Environmental liabilities are generally divided into two categories: known and unknown liabilities. Known liabilities are the liabilities expected to occur during the closure, restoration and aftercare of the mine. Known liabilities are quantified in the CRAMP, while unknown liabilities are quantified in the environmental liabilities risk assessment.

EPA-regulated facilities are required to put in place financial provisions to cover the costs and liabilities identified in the CRAMP. Once the costs of closure and remediation have been agreed with the EPA, there are several options available for financial provisions, depending on the situation. An insurance policy will normally be required to cover the unknown liabilities identified in the environmental liabilities risk assessment. An insurance policy may not cover the costs of known liabilities such as the closure of a mining facility.

Normally, a mining project will be required to put a mine closure bond in place to cover the known costs of closure and remediation. When executed, the bond is held under the control of the relevant planning authorities, the EPA and the Department.

The CRAMP is reviewed regularly to ensure that the estimates accurately reflect mine closure costs and that the financial provisions provided for the mining project are sufficient to cover such costs. The arrangements surrounding the closure of the Galmoy mine, particularly in relation to the design and management of the tailing management facility, are considered best practice in Ireland.

What are the restrictions for building tailings or waste dams?

Planning permission from the local planning authority and a licence from the EPA are required to build or extend a tailings or waste dam. The applicant must submit an environmental impact statement in accordance with the Environmental Impact Assessment Directive and a Natura 2000 impact statement in accordance with the European Communities (Birds and Natural Habitats) Regulations 2011 (SI 477/2011) may also be required. In addition, the local planning authority will decide to grant or refuse planning permission, which may be appealed to An Bord Pleanala.

The Waste Management (Management of Waste from the Extractive Industries) Regulations 2009 are the main legislation regulating the management of tailing or waste dams for mining projects. The EPA is responsible for enforcing compliance with these regulations. An extractive waste management plan will be reviewed by the EPA before granting a licence to build tailings or waste dams. Mines are normally inspected annually by the EPA, although larger mines may be inspected more regularly depending on the nature of their activities. When a mine is being closed, the EPA will be on-site regularly to assist with CRAMP implementation.

A suitably qualified independent consultant must provide a certificate confirming the structural soundness and stability of the tailings dam to the relevant planning authority following an independent audit of the site. This audit is normally carried out in accordance with the procedures included in the UK Reservoirs Act 1975 or other equivalent legislation. An acceptable independent consultant would be a member of the UK reservoir panel, or another equivalent, with proven experience in the design, operation and inspection of tailings dams.

The planning authorities may require an emergency response plan, which would provide details of any proposed tailings or waste dam.