Integrated Pollution Prevention and Control (IPPC)



Integrated Pollution Prevention and Control

The Rationale of Integrated Pollution Prevention and Control

As we have seen, there are many different pieces of legislation which govern many different activities. For example, there are discrete “sets” of rules which govern waste management, air pollution, water pollution, conservation and so on. In some cases, regulation is retrospective in the sense that it creates fines and offences for acts of pollution. However, environmental regulation is not only achieved through the retrospective application of the criminal law, but through the prospective requirements, in some cases, for particular types of activity to undergo some form of licensing. For example, under the Local Government (Water Pollution) Acts 1977-1990, a licence could be obtained to engage in the discharge of trade or sewage effluent into waters, provided that such discharge would, of course, comply with the relevant water standards.

The licensing model, however, throws up relatively obvious problem. If the legislation established completely independent licensing regimes, the one may find oneself having to apply for both a water pollution licence, as well as a licence under the Air Pollution Act, 1987, and perhaps a waste licence.

There is an argument that an integrated approach should be taken whereby particular activities which may cause pollution must be licensed through a central process which takes into account all the possible environmental problems which may be caused – i.e. a single “integrated pollution licence” which is granted to licence the carry on of particular activities and impose limitations on emissions and pollution produced thereby. In this way various polluting activities can be monitored and licensed on a highly individuated basis.

The idea of what we now refer to as “Integrated Pollution Prevention and Control” (IPPC) is based on a combination of the two points made above. IPPC is, essentially, a licensing regime whereby particular activities must apply to the EPA for IPPC licences which govern the carrying on of activities from a wide range of environmental perspectives imposing limitations and controls on emissions to air, water and land (including odour emissions), noise emissions and also in relation to energy use, the use of raw materials and aspects of waste management.[1] The point is simply to create a one-stop-shop approach whereby particular kinds of activities can be controlled and regulated through a central, and near catch-all system.

The last point is very important – IPPC is activity-centric in the sense that certain defined activities (e.g. some types of poultry rearing etc) are required to seek IPPC licences where they meet specific requirements. The list of activities can be found in the First Schedule to the Environmental Protection Agency Act, 1992 (as amended by the Protection of the Environment Act, 2003).

IPPC v IPC

The name “Integrated Pollution Prevention and Control” is the new label for what we used to call “Integrated Pollution Control” (IPC). IPC was the system operated under the Environmental Protection Agency Act, 1992 which began operation on May 16, 1994. As described above, IPC was concerned with regulation-through-licensing of various activities which may pollute the environment in many different ways. Originally, the IPC regime was introduced on a phased basis with some “breathing space” given to the relevant activities – i.e. it did not automatically and immediately apply to all activities listed in the First Schedule to the 1992 Act. This phased introduction ended on January 8, 2002 which was the last date for applications for the last remaining activity which was the operation of peat fired power stations.

The IPC regime was covered by Part IV of the Environmental Protection Agency Act, 1992. This part, among other things, set out the requirements which activities listed in the First Schedule had to be met in order to obtain an IPC licence. The main provision in respect of granting such a licence was s.83(3) which provided that the EPA could not grant a licence unless it was satisfied that:

▪ Emissions from the activity would comply with air standards in force and also that they would comply with water pollution laws.

▪ Noise emissions would comply with relevant noise regulations.

▪ Any emissions would not cause significant environmental pollution.

▪ The best available technology not entailing excessive costs would be used to prevent or eliminate (or where that is not practicable) to limit, abate or reduce emissions.

As you can see, central to the grant of the IPC licence was that the applicant could persuade the EPA that its activity would not breach existing regulations and that it would not generally cause significant environmental pollution. Moreover, the applicant would have to show that it would use the best available technology, so long as it did not entail excessive costs to eliminate or reduce environmental pollution. In essence, then, the application for an IPC licence could be viewed as a demonstration by the applicant that this particular polluting activity was in general “environmentally sound” (insofar, of course, as any polluting activity could be described as such).

In September 1996, Directive 96/61/EC came into effect at the European level which concerned the new system of Integrated Pollution Prevention and Control (IPPC). In essence, IPPC is the roughly same as IPC with three central regulatory differences.

1. IPPC requires a consideration of broader issues than IPC. The IPPC licensing process expressly requires the EPA to consider a wider range of issues than the old s.83(3) did including (but not limited to) energy conservation and aspects of waste management. As noted above, IPC was generally concerned with emissions, but IPPC has a broader application.

2. The range of activities which had to apply for IPC licensing has been extended under the IPPC regime.

3. The IPC regime used the best available technology not entailing excessive costs (BATNEEC) standard. The IPPC regime uses a more nuanced best available techniques standard, which would seem, on first glance, to be more onerous on the polluter. However, as we will see later, with one small difference, these amount to substantially the same standards.

In addition, two substantive changes are important.

1. Energy conservation is now mandatory not only in relation to production processes, but in relation to pollution control itself. Under the IPC regime energy conservation rules would only be imposed in relation to the operation of production processes but under the IPPC regime, conservation is required in respect of the methods by which one seeks to limit pollution – i.e. the pollution control mechanisms put in place.

2. Operators of activities will now have to demonstrate how and in what manner the sites of the activities will be returned to a decent environmental condition after they cease operations.

The legislative basis for IPPC in Ireland is still Part IV of the Environmental Protection Agency Act, 1992. However, Part IV was replaced in whole by s.15 of the Protection of the Environment Act, 2003 which, in essence, replaces the provisions governing the old IPC regime with the new IPPC regime modelled on Directive 96/61/EC.

Activities For Which IPPC Licences are Required

Generally speaking, if you wish to carry on an activity specified in the First Schedule to the Act, you need an IPPC licence. Therefore, and somewhat like the EIA/EIS regime, the IPPC regime is activity centric. That is to say that the requirement to apply for IPPC and to “prove oneself” in the sense that IPPC requires applies to certain specified activities. It should be noted that the new First Schedule to the 1992 Act is to be found in the Protection of the Environment Act, 2003 which replaces the old First Schedule to reflect the wider range of activities covered. Thus, if the activity is listed there, it requires an IPPC licence in order to operate. There are two exceptions to this.

First are “established activities” as defined in s.3 of the EPA Act, 1992. Basically, these are activities which had been granted planning permission previous to the coming into operation of the EPA Act, 1992 and those activities which had been carried on previous to the EPA Act, 1992 coming into force. These are “established” in the sense that they have been carrying on activities previous to the coming into force of the 1992 Act.[2]

Second, are activities covered by s.82(3) which deals with activities commencing within the transitional period between 30 October 1999 and the coming into force of the Protection of the Environment Act, 2003. In that case, you had six months from when the 2003 regime came into effect to apply for an IPPC licence, rather than having to do so immediately.

With those exceptions in mind, what then are the kinds of activities listed in the First Schedule? I won’t list them all here but some examples are as follows:

▪ Activities involved in the production of asbestos

▪ The operation of combustion installations with a rated thermal input equal to or greater than 50 MW

▪ The production of pig iron or steel (primary or secondary fusion) including continuous casting, with a capacity exceeding 2.5 tonnes per hour.

▪ The manufacture of glass including glass fibre with a melting capacity exceeding 20 tonnes per day or 5,000 tonnes per year.

▪ The production of basic inorganic chemicals, such as ammonia, chlorine or hydrogen chloride, fluorine or hydrogen fluoride, carbon oxides, sulphur compounds, nitrogen oxides, hydrogen, sulphur dioxide, carbonyl chloride,

▪ The rearing of poultry in installations, whether within the same complex or within 100 metres of the same complex, where the capacity exceeds 40,000 places.

As one can see, thresholds are used to determine what is subject to IPPC. You may recall from our examination of EIA, that there was a general residuary requirement for certain activities to be subjected to EIA even if they were below the relevant thresholds, but where, those activities may still cause “significant environmental effects”. There is no such concept of sub-threshold requirements here.

Overlap With Other Enactments

As we have seen, one of the points of the IPPC regime is to avoid over-lapping between differing licensing regimes such as under the air pollution legislation and the water pollution legislation. S.84, to put it bluntly, ensures that the IPPC regime itself does not overlap with other licensing regimes. Thus, if you need an IPPC licence, then you do not need to apply for a licence under the Air Pollution Act, 1987 (if you needed it), or under the Local Government (Water Pollution) Acts, 1977-1990 or under the Fisheries (Consolidation) Act, 1959. It is very important, however, to note that IPPC and waste management are separate – IPPC does not provide any licensing substitute for the Waste Management Act, 1996 regime. Rather, as we will see when we come to consider Waste Management in more detail, there are complicated provisions for deciding whether an activity which may straddle both waste management and IPPC licensing regimes requires either licence or the other.

The Licensing Process

Part IV also covers the relevant procedure for the making of applications including time limits for EPA determination, the information required to accompany an application, the conduct of investigations in the application and so on. We will not address these procedural matters in any detail. Rather, our concern will be with the matters which must be taken into account by the EPA in reaching its decision. As a preliminary note, it is important to note that not only can the EPA can refuse or grant a licence, but it can also grant a licence subject to specified conditions.

In making its decision, the EPA must consider

(a) any relevant air quality management plan under section 46 of the Air Pollution Act 1987, or water quality management plan under section 15 of the Local Government (Water Pollution) Act 1977, or waste management plan

(b) any relevant noise regulations under section 106 of the Environmental Protection Agency Act, 1992.

(c) any special control area order under section 39 of the Air Pollution Act 1987, in operation in relation to the area concerned.

(d) the policies and objectives of the Minister or the Government in relation to the prevention, elimination, limitation, abatement or reduction of emissions for the time being extant.

(e) (i) the environmental impact statement (if any) submitted with the application[3]

(ii) any submissions or observations made to the Agency in relation to the environmental impact statement,

(iii) any further information or particulars submitted in relation to the environmental impact statement in compliance with a notice given under regulations under section 89, and

(iv) where appropriate, the comments of other Member States of the European Communities in relation to the effects on the environment of the proposed activity, insofar as the statement, submissions, comments, observations, information or particulars relate to the effects on the environment of emissions from the activity,

(f) such other matters related to the prevention, elimination, limitation, abatement or reduction of emissions as it considers necessary.

If the EPA decides to grant the licence it must specify emission limit values (ELV’s) for environmental pollutants likely to be emitted from the activity in significant quantities. ELV’s are a little technical, but basically refer to the maximum emissions which are permissible from any activity. Emissions, in this context, are taken to refer to any direct or indirect release of substance, heat or noise inot the atmosphere, water or land.[4]

The legislation expressly provides that ELV’s are to be measured at the point of emission from the activity.[5] Thus, it is not good enough to measure, for example, the general saturation levels in the area and attribute that to a particular activity – rather it is the point of emission and only that which counts.

It may also be noted that the EPA in carrying out any of its licensing functions may be required to have regard to particular factors in respect of other legislation. In this regard, Article 32(1) of the European Communities (Habitats) Directive, 1997 requires the EPA to ensure that principles of conservation are taken into account if the IPPC activity relates to what is known as “European site”. Equally, it should be noted that s.99I(4) of the EPA Act, 1992 now requires the EPA, where relevant, to have regard to any investigations that have taken place in relation to groundwater pollution.[6]

Before we leave the criteria to be considered, it may be noted in the British case of Levy v Environment Agency it was alleged that a decision to permit (i.e. grant IPC licence) for the burning of tyres had failed to take account of a particular government policy in existence at the time which, it was argued, did not look favourably on such an activity. As we have seen, the EPA must consider “the policies and objectives of the Minister or the Government in relation to the prevention, elimination, limitation, abatement or reduction of emissions for the time being extant.” However, it may be the case that policies are drafted in very general terms rather than specifying precise governmental or ministerial views on specific matters. Indeed, in Levy, the policy which it was alleged the British EPA had disregarded was specifically held by the court to be far too general and “non-legal” for the court to be able to hold that the EPA had not had sufficient regard to it.

Prohibition on Granting Licences in Certain Cases

Whereas we have just seen the criteria which the EPA must have regard to when deciding on an application for a licence, s.83(5) provides that the EPA cannot grant a IPPC licence unless it is satisfied that certain circumstances will not arise. These are that:

(i) any emissions from the activity will not result in the contravention of any relevant air quality standard specified under section 50 of the Air Pollution Act 1987, and will comply with any relevant emission limit value specified under section 51 of the Air Pollution Act 1987,

(ii) any emissions from the activity will comply with, or will not result in the contravention of, any relevant quality standard for waters, trade effluents and sewage effluents and standards in relation to treatment of such effluents prescribed under section 26 of the Local Government (Water Pollution) Act 1977,

(iii) any emissions from the activity or any premises, plant, methods, processes, operating procedures or other factors which affect such emissions will comply with, or will not result in the contravention of, any relevant standard including any standard for an environmental medium prescribed under regulations made under the European Communities Act 1972, or under any other enactment,

(iv) any noise from the activity will comply with, or will not result in the contravention of, any regulations under section 106 of the EPA Act, 1992.

(v) any emissions from the activity will not cause significant environmental pollution,

(vi) the best available techniques will be used to prevent or eliminate or, where that is not practicable, generally to reduce an emission from the activity,

(vii) having regard to Part III of the Act of 1996, production of waste in the carrying on of the activity will be prevented or minimised or, where waste is produced, it will be recovered or, where that is not technically or economically possible, disposed of in a manner which will prevent or minimise any impact on the environment,

(viii) energy will be used efficiently in the carrying on of the activity (this, it should be noted, is one of the key changes from IPC to IPPC – energy conservation is important at all stages in the process carried on by the activity).

(ix) necessary measures will be taken to prevent accidents in the carrying on of the activity and, where an accident occurs, to limit its consequences for the environment and, in so far as it does have such consequences, to remedy those consequences,

(x) necessary measures will be taken upon the permanent cessation of the activity (including such a cessation resulting from the abandonment of the activity) to avoid any risk of environmental pollution and return the site of the activity to a satisfactory state, and

(xi) the applicant or licensee or transferee, as the case may be, is a fit and proper person to hold a licence,

There are also other provisions in environmental law which are relevant here. Under the European Communities (Habitats) Regulations 1997, the EPA may not grant an IPPC licence unless it has decided that the activity will not adversely affect the integrity of the European Site either by being located in it, or by its emissions affecting it “from afar”. However, if this is the case, but if there are no alternative solutions and if the project needs to be carried out for “imperative reasons of overriding public interest”, the EPA can grant a licence.

S.83(6)(b)(ii) empowers the EPA to require evidence of an applicants ability to meet the financial requirements in running the installation and in meeting the requisite environmental standards.

BAT v BATNEEC

As we have seen, a core principle of the old regime of IPC and under the new IPPC regime is that the operators of the activity must show the EPA that certain techniques will be used to minimise or eliminate emissions. Under the old IPC regimes, the relevant principle was BATNEEC which referred to the best available technology not entailing excessive cost. Therefore, an applicant had to be in a position to show the EPA that such technology would be used to eliminate or prevent emissions. If, however, it was not possible to eliminate or prevent, then he had to show that the same technology would be used to minimise such emissions.

It is worth while pausing to consider the implications here. The applicants IPC licence would depend on demonstrating that certain technology would be used in an on-going manner to eliminate or minimise pollution. Clearly, the BATNEEC standard did not envisage that any technology which could limit or eliminate pollution be used, but rather that which did not entail excessive costs.

The BAT standard seems a little different. Under it, the applicant must show that the “best available techniques” are to be used. However, it could be pointed that the best available techniques may in fact entail excessive costs and thus, the standard seems to be substantially higher. However, Article 2(11) of the Directive define the “best available technology” as being the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques…It may be the case that the reference to “practical suitability” brings back the notion of “not entailing excessive costs” because it could be argued that a solution which “entails excessive costs” is not “practically suitable”.

So what does BAT require? Well, the BAT standard seems to start by asking us to look at what the most effective and advanced methods in the particular field of activity are for reducing or eliminating emissions. So, we would take, for example, poultry rearing, and look to the “best practice”. It seems we would then look to the practical suitability of that technique for the activity in question. This, it seems to me, means that the BAT standard is sector specific – i.e. i.e. we look at basically at the best practice in a particular field and see how it is operated, which in turn would suggest how practical it is for other applications. For example, we may look to poultry rearing and see a brilliant technique being used in a huge installation, which may not be practicable for a smaller one but which may not be suited at all to some other type of animal farming.

This, however, all proceeds on the language used in Directive 96/61/EC. S.5 of the EPA Act, 1992 (as amended by PEA, 2003) provides a somewhat different definition of BAT.

Under the s.5 definition “best” is defined as “the most effective [method] in achieving a high general level of protection of the environment as a whole”.

“Available” means “those techniques developed on a scale which allows implementation into the activity under economically and technically viable conditions taking into costs and advantages, whether or not the techniques are used and produced in the State, as long as they are reasonably accessible to the person carrying on the activity.

The Irish legislation also defines “techniques” and is interesting in the sense that it includes management here. This is quite important – you do not simply have to provide a building which uses the BAT to combat emissions and pollution, but the facility, it seems, must equally be managed with the same goal in mind – i.e. in relation to the minimisation, prevention or elimination of emissions.

The Irish and European understandings of BAT seem to be broadly similar. At root, it seems that the main issue is whether theoretically or practically available technologies or techniques are, in practical terms, suitable or can reasonably be regarded as practically possible for the particular application. A main issue here, of course, relates to costs.

Under the BATNEEC standard, the best available technology was to be used unless it entailed excessive costs. It has been argued that under this standard the “costs” of the emission preventing or reducing technology are the costs to the operator himself – i.e. how much will it cost for Mr. Operator to implement these costs. If they are excessive in relation to that operation, they are not required. On the other hand, it has been argued that, under BAT, a wider approach is to be taken into account. Suppose, for example, that an applicant argued that using a particular type of energy efficient fuel was too costly. It has been argued that whereas this may have “excused” him under BATNEEC, the BAT standard may allow the EPA to take into account the broader policy costs of, for example, a wide-spread industrial reliance on a particular type of fuel. In short, it seems quite arguable as to how one can use the BAT standard to “get in” broad policies in respect of conservation and environmental policy generally. The more subjective one makes the test, the less likely it is that you can use BAT to enforce general policy, and the more objective one makes it, the more people may object that it is failing to take into account the problems of costs on individual applicants. Unsurprisingly then, most argue that the key is the relatively general notion of “balance”.

The EPA has published guidelines on BAT in which it describes the essence of BAT as “the selection of techniques to protect the environment should achieve an appropriate balance between realising environmental benefits and the costs incurred by the person carrying on the activity”. In considering whether techniques amount to the BAT, s.5(3)(b) of the EPA Act, 1992 (as amended by s.7 of the Protection of the Environment Act 2003) directs the EPA to consider, for example

▪ The general state of scientific and technical knowledge

▪ The nature of the emissions concerned

▪ The need for waste management, minimisation and recycling through the use of low-waste technology

▪ Energy and water conservation

▪ Accident prevention

▪ Time lags in implementing BAT

▪ Likely costs and benefits of a measure

▪ Proportionality between the damaging nature of emission and the costs of prevention its actual emission.

The EPA also produces BAT “notes” in which it describes what it, at a particular time, believes the BAT in a particular sector to be. The legislation, however, provides these are not binding on the EPA in its decision making on licence applications. Thus, you could adhere to it BAT note published by the EPA, but still find the EPA deciding that what you offer does not come up to scratch on the BAT standard! This, however, is something of a tricky issue and can be explained as follows:

Section 5 of the EPA Act, 1992[7] allows the EPA to specify “in principle” the basis for particular ELV’s – i.e. an explanation why a particular ELV is set – which will include discussion of BAT. If these BAT notes are to be regarded as “in principle” what the EPA believes BAT to require, it may be difficult to see how they could disregard them at a whim. It would be a difficult question as to whether a wholesale departure from published BAT notes could be challenged in court, and something to think about in the context of the duty to give reasons discussed below.

The Hearing of the Licence Application and the Decision

The EPA, of course, has to reach a decision on the application. Generally speaking, this must be done within 8 weeks of the application.[8] As with other forms of environmental regulation, objections may be made to the grant of an IPPC licence. The rules governing the making of an objection are found in the Environmental Protection Agency Act (Licensing) Regulations 1994.

The decision is made in two stages. First, the EPA reaches a proposed determination which it does on the basis of the submissions of the applicant and other submissions received.[9] It is at this point then that objections may be made. If you make an objection, you may also request an oral hearing but the decision whether to hold one or not is entirely for the EPA.[10] Not very many oral hearings are actually held. If, however, a hearing is held, the EPA is not restricted to simply considering the objections, but rather it may consider matters beyond those raised by the objectors.[11] However, it must give advance notice of its intention to do so to the parties concerned to let them “answer the case”. Also, the EPA may conduct its own investigations in order to assist the determination of the claim.

The Standard of Decision and Ni hEili v Environmental Protection Agency

As we have seen, and in particular in regard to BAT, the EPA is going to have decide on some very complicated matters. Indeed, in relation to BAT, we have seen that decisions in relation to IPPC should, in principle, be cognisant of recent developments in the practice of environmental protection in particular sectors. That is the very essence of the decision on BAT.

Now, in regular court proceedings, there is an argument that it is entirely up to the parties to bring this kind of evidence. So, if this was a regular court decision, it could be argued that the applicant must bring all the evidence in relation to how a particular method would satisfy the BAT standard. The rationale here tends to be that the court is not an expert body, but simply an adjudicator between two different sides of an argument.

However, the EPA can reasonably be expected to have a far greater technical knowledge. In principle then, one would not expect the EPA to begin every hearing on a “clean slate” in the sense that it would be totally reliant on the applicant to bring evidence of BAT and relying solely on the objectors to counter that evidence. Equally, one must also expect the EPA to be more able to deal with holes in ones application than perhaps a regular court would.

Moreover, in regular court proceedings there is a perception that the argument which will ultimately lead to the courts decision is that which takes place in court. If, for example, the judge finds “new evidence” after the hearing, it is not really supposed to form part of his decision since it was not raised by the parties. On the other hand, if the EPA is expected to have a more involved role, one could argue that if new evidence comes to light after a hearing has concluded, then it should be considered so long as it bears on the matter at hand. For example, suppose after the hearing, a new journal article is published detailing an outstanding and inexpensive form of emission reduction in asbestos production. It could be argued that the EPA should have regard to this.

This, however, creates difficult issues in respect of natural justice and the basic principle that a person should always be entitled to answer a case which is made against him. By extension, if a licence was to be denied because such an article indicated that the BAT standard was not satisfied on the basis of “new” evidence, it would certainly be arguable that the decision was in breach of principles of natural justice unless the applicant was given a chance to respond to it.

Some of these arguments were addressed in the important High Court decision in Ni hEili v Environmental Protection Agency.[12] In this case it was argued that the EPA decision on the matter at hand did not reflect the cutting-edge of technology and research which was available at the time of making the decision in respect of a grant of an IPC for a hazardous waste incinerator.

It was argued that the EPA should be held to the strictest standards in respect of the scientific basis for its decisions and if it could be argued that its decision were not based on the best information available, that they were faulty and susceptible to challenge in court. The EPA should, it was said, make itself aware of all the relevant materials. In particular, it was argued that new material which would, all things being equal, have been very relevant for the EPA’s decision had come to light after the oral hearing which essentially made the EPA’s determination technically obsolete.

The Supreme Court rejected these arguments insofar as they were invoked to challenge the EPA’s determination. It held that whereas the EPA was bound to high professional standards, it could not be expected to be familiar with every publication in the field. Essentially, the courts decision was motivated by a desire to keep the work of the EPA within the field of practicality, and it specifically noted that onerous obligations in respect of “keeping up to date” would tend to slow down the EPA.

Reasons for a Decision

The EPA’s decisions on IPPC licences are subject to judicial review. Judicial review, as we have seen previously, is a general supervisory jurisdiction exercised by the High Court whereby administrative bodies are held to general rules in respect of the procedure whereby decisions are reached and in exceptional cases, in respect of the merits of their decisions.

It has been said before, that any body which is susceptible to judicial review is under a duty to give reasons for its decisions because those reasons allow the affected person to decide whether he or she should challenge the case before the High Court by way of judicial review. There are slight flaws with the logic of this position, but they need not detain us here. Suffice it to say that, as a general proposition, the duty to give reasons is sufficiently well established to count as a principle of natural justice in Ireland.

Article 28 of the Environmental Protection Agency Act (Licensing) Regulations 1994 reflected this for it provides that reasons for any determination must be given. Of course, this says nothing about the depth or quality of the reasons which must be given and this was considered in detail by the Supreme Court in Ni hEili v EPA.

As we have seen, Ni hEili v EPA concerned a challenge to the grant of an IPC licence for the incineration of hazardous waste. Now, it is important to note that the incineration aspect of the facility was, in fact, included in order to meet the previously applicable BATNEEC standards. What this means is that the incineration facility was actually being used as measure to reduce the emissions and pollution arising from the disposal of hazardous waste. In particular, it was supposed to offer a 90% limit on the emission of volatile organic substances. The plaintiffs argument (as most will be aware from the news and so on) was that the plant would also emit harmful dioxins.

The plaintiffs way of attacking the decision was to allege that the EPA had not provided adequate reasons for its decision. Now, the EPA had given reasons for its decision, but the allegation was that it should have given reasons in respect of all material aspects of its decision.

The Supreme Court made an important distinction between the reasons which the EPA employs to reach a proposed determination, and the reasons which the EPA employs when dealing with objections raised against that determination.

The Court seemed to hold that very low scrutiny would apply to the reasons which support a proposed determination, before objections are considered. This reflects, in short, a simple distinction between a decision which is “justified” and one which is “justifiable”. Basically, the Courts do not require the EPA or other environmental agencies to reach justified decisions – i.e. decisions which, on some independent assessment are “right”. Rather, they require them to reach justifiable decisions – i.e. those which can be seen to be supported by the reasoning employed even though we may disagree with that reasoning. So, in respect of these kinds of “pre-objection” reasons, the court would apply low scrutiny and basically let those reasons stand unless it could be shown per O’Keefe v An Bord Pleanala that no evidence supporting those reasons existed.

Now, in relation to the reasons offered for how the EPA deals with objections, the Court had a different conclusion. It held that the EPA must give specific reasons for the overruling or rejection of objections raised by persons who have “gone to the trouble and expense of formulating and presenting serious objections on a matter of intense public interest”. The Court held that this would not be met by simple and formulaic statements to the effect that “the EPA has considered and rejected this argument”. Rather, deeper reasons had to be given such that they could be viewed as “proper, intelligible and adequate”.

The Court further held that the extent and depth of the reasons required to be given would depend on the circumstances of each case. This is where it gets a little murky. In this case, a good deal of objections had been raised. These, however, had been dealt with by the inspector appointed by the EPA. An inspector can be appointed by the EPA to do much of the leg-work required before any determination is made. He listened to the objections and he dealt with them. The Supreme Court believed that the EPA’s decision was, in principle, a decision-accepting-the-inspectors-decision – i.e. adopting it. Thus, it seemed that the Court believed that whereas the EPA may not have expressly dealt with objections raised, by adopting the inspectors decision it did so indirectly, because it adopted the inspectors report which did deal with the objections. Thus, the EPA’s reasons for its decision could be found by tracing its decision into the conclusions of the inspector and it was not necessary to repeat those conclusions in the EPA determination

The Court did hold, however, that it may have been more appropriate had the EPA specifically referred to the report in its determination but held in conclusion that there was sufficient compliance with the duty to give reasons contained in the licensing regulations.

It is arguable that there are several core problems with the decision.

▪ The Supreme Court decision in Manning v Shackleton[13] suggests that the duty to give reasons is based on the rationale that express reasons allow the court to exercise its supervisory jurisdiction. In short, this simply means that without such reasons, the court will find it nearly impossible to review a decision, since it has no clue about what went on. If, however, the duty to give reasons is rationalised in this way, then it seems slightly odd that a decision could be sustained where a Court is required to trace the conclusions of the EPA into an inspectors report entirely on the basis of an assumption that the EPA did, in fact, approve the inspectors report in its entirety.

▪ The same problem manifests itself it you look at it from the objectors perspective. If the rationale for giving reasons is so that affected persons can figure out if they have a case for judicial review, then again, it seems difficult suggest that these same people must trace decisions of the EPA to the inspectors report and assume that the EPA, in fact, approved it even though it did not say so.

Challenging Decisions of the EPA Before the Court

S.87(10) of the EPAA, 1992 seems to envisage that decisions of the EPA can be challenged through “normal” judicial review and through “other legal proceedings”. This is somewhat difficult to reconcile with other aspects of environmental regulation whereby recourse to the courts is strictly circumscribed. If you recall, in order to start a judicial review application, you first need “leave” from the High Court to bring the application. Under planning legislation, as we have seen, there is special judicial review, with an increased standard required in order to get a grant of leave for judicial review. Moreover, under planning legislation judicial review is the only method to challenge decisions.

However, under the EPA Act, 1992 it seems that normal judicial review and other civil proceedings can be used. The main difference between normal judicial review and “special judicial review” used under the planning acts, is that the test for “leave” is not as difficult. In practice, it seems that judicial review is preferred largely because it is a far quicker remedy. In any event, the application must be taken within 8 weeks of the decision.

There is an important, but somewhat technical point here. As we have seen, judicial review proceedings come in two stages – the leave stage and the hearing. At the leave stage, one applies for “leave to apply for judicial review”. This is like a filter where the court sorts out those cases which should be allowed seek this remedy from those with no merit. Now, this leave stage is initiated by going into court to make an application which is known as an ex parte motion. It is ex parte, because the side seeking leave goes in alone – without notice to the “other side”.

So, you go into court – move this motion and hope the judge thinks you have established a case for judicial review and that you will get leave to start those proceedings.

Now, if judicial review must be taken within 8 weeks do we mean that the ex parte motion must be made within 8 weeks, or do we mean that everything has to be done such that the actual proceedings must be started within 8 weeks? In the latter case, then one would have to begin the ex parte procedure substantially within the 8 weeks, perhaps at 6 or 7 weeks in order to make time for the real proceedings to be begun.

In O’Connell v The EPA[14] Herbert J in the High Court held that relevant point is the ex parte motion. Thus, you must do this within 8 weeks which gives one a little more breathing space than if the entirety of proceedings had to be served within 8 weeks.

Herbert J in O’Connell also made a significant decision in respect of the overriding obligation of “promptness”. In conventional judicial review, as governed by the Rules of the Superior Courts, 1986 there are certain time periods within which certain applications must be made.

For example, if you look for certiorari (an order quashing another decision) you have to make that application within 3 months of the decision. However, this does not mean that you can wait until the last day to make it. Rather, the application must be made promptly within that period. Thus, if you are all ready to go within 2 weeks, and sit around for the next 10, its likely that your application will be rejected for lack of promptness. In O’Connell, Herbert J held that his obligation extended to the EPA Act, 1992. Thus, although the application for judicial review must be made within 8 weeks, there is an overriding obligation to act promptly within that period.

Review of Licences

IPPC licences are subject to review the at behest of either the licencee (holder of the licence) or the EPA itself. Unless the licensee consents or applies for review, this cannot take place within 3 years of the grant of the licence in the first place. There are two cases for review – those where review may be carried out (discretion for the EPA) and those where it must be carried out.

All IPC licences granted under the previous legislation fall within the “must” category. They must be reviewed under the criteria of the IPPC regime by the deadline of 30th September 2007.

Other than in that case a review must be carried out when under s.90 when

▪ Emissions from the activity are, or likely to be of such a significance than the existing ELV’s or equivalent limitations (e.g. on energy conservation etc) need to be reviewed.

▪ Substantial changes in BAT make it possible to reduce emissions without imposing excessive costs.

▪ The operational safety of the activity requires new or different techniques to be used.

▪ The review is required by other laws such as, for example, where new laws impose new limits on emissions.

A review may be carried out per s.90(4)(b) where

▪ there is a proposal to make a substantial change to the nature or extent of an emission,

▪ there has been a substantial change, which could not have reasonably been foreseen when the licence or revised licence was granted, in the condition of the environment or an environmental medium in the area in which the activity to which the licence or revised licence relates is situate,

▪ evidence, which was not available when the licence or revised licence was granted, has become available, or a new standard is prescribed relating to the contents or nature of the emission concerned or the effects of the emission on the environment.

There is special provision in s.98 for the reconstruction or alternation of installations which house relevant licensed activities. The person in charge of such an activity[15] shall give notice in writing to the EPA of any proposal to effect any alteration to, or reconstruction in respect of, the activity if such alteration or reconstruction would, or is likely to, change or increase emissions from the activity or cause new emissions therefrom.

If the EPA believe that such reconstruction of alteration would not substantially change or increase emissions from the activity or cause significant new emissions therefrom then it may review the licence.[16] If, on the other hand, the EPA believes that it would change or increase emissions from the activity or cause significant new emissions therefrom then it must review the licence.

The review procedure is quite similar to the application procedure itself. Of course, given that it’s a review there are some changes. For example, s.90(6) obliges the EPA to have regard to

▪ Any change in environmental quality in the area in which the activity where the licence is situate since the licence was granted

▪ The development of technical knowledge in relation to environmental pollution and the effects of such pollution since the licence was granted

It is important to note however, that what is going is a review, not the initial determination. Thus, in the words of an English court “it is not necessary to go through a BAT exercise right from scratch each time”.[17] A good example of this occurred in R v The EPA ex parte Gibson, Learn, Sellers and Petty.[18] In this case, two companies applied for modifications to IPC permits to allow them to engage the burning of a particular kind of fuel as part of their business. The variation was allowed without the stringency of application of BAT. It was alleged that this made the decision unlawful on the basis that the British EPA should have treated the applications for modification as being, essentially, applications to licence totally different activities. The Court basically held similarly to the quote above and said that the exhaustive BAT investigation was not necessary each time a modification or review came before the EPA. However, in this case, the evidence suggested that the modification was in fact an improvement in respect of how it further limited or reduced polluting emissions. It may be a different situation if it is not so clear that the modification or situation in review is not an improvement.

Transfer and Surrender

An IPPC licence can be transferred between persons but this must be supervised by the EPA and the EPA must be satisfied that the transferee will abide by relevant requirements and is a “fit person and proper person”.

A licence can be surrendered under s.95 but the EPA must be willing to accept the surrender. In deciding whether to accept the surrender (which of course means that one is no longer bound under ones IPPC obligations) the EPA may investigate the matter and take samples from the site. Basically, the EPA can accept a surrender if it is satisfied that the installation is not causing or likely to cause environmental pollution and if the site of the activity is in a satisfactory state.

What about pollution which may have been caused in the past? Well, the above requires that the state be left in a satisfactory sate. However, an installation, as we have seen in respect of the Habitats regulations, could conceivably have serious knock on effects beyond the site. It is conceivable that one could have both (a) an installation which is not or is not likely to cause any more pollution and (b) a “clean” site, but at the same time, have a serious mess down-wind. It does not seem that this would have to be “cleaned up” as part of the surrender.

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[1] Waste Management, as a whole, however, is a relatively separate regime which we will look at in more detail when we consider that topic.

[2] Although, it should be noted that s. 82(4) allows the Minister to enact regulations requiring any established activity to undergo the IPPC licensing regime.

[3] In this regard students should refer back to the notes on EIA. It may be recalled that we examined how under the Waste Management Act, 1996 the EPA has no independent power to decide on the need for an EIS, but that the Minister may, by regulation, require that applications for waste licences be accompanied by an EIS. See Waste Management (Licensing) Regulations 2004. S.89 of the Environmental Protection Agency Act, 1992 (as inserted by the Protection of the Environment Act, 2003) provides similarly that the Minister may, by regulation, require that certain applications for an IPPC licence submit an EIS. However, just as under the Waste Management (Licensing) Regulations 2004 the EPA, unlike the planning agencies has no decision making function in respect of whether an EIS is required. All it may do is apply the relevant regulations and see if one is required or not.

[4] S.3 EPA Act 1992, as amended by s.5 of the Protection of the Environment Act, 2003. Thus, whereas there not much noise regulation in Ireland in any general sense, the IPPC regime will provide a mechanism to regulate the noise levels of the activities which require IPPC licences.

[5] S.86(3).

[6] These may have taken place under Directive 80/68/EEC.

[7] As amended by s.7 of the Protection of the Environment Act, 2003.

[8] The same 8 week period can also run from different dates such as where the EPA requests more information in respect of an application. It then runs from the date of the receipt of the information, or on the end of the period set for the delivery of that information.

[9] S.87(2) of the Environmental Protection Agency Act, 1992.

[10] S.87(6)(a) of the Environmental Protection Agency Act, 1992.

[11] S.87(8)(a) of the Environmental Protection Agency Act, 1992.

[12] Unreported, Supreme Court, 10 June 2004.

[13] [1997] 2 ILRM 26.

[14] [2001 4 IR 494

[15] In this case it includes established activities.

[16] Or require a the person to apply for a licence in the case of an established activity.

[17] R v Daventry District Council [2000] EWHC 382.

[18] [1998] Env. L.R. 73.

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