Duncan Laurence Environmental Page 1 of 9

Duncan Laurence Environmental Page 1 of 9

Law and the Environment

3rd Annual Seminar for Environmental Professionals

Faculty of Law, UCC, Cork. 14 April 2005

Recent Developments in IPPC Licensing, Waste Licensing and Waste Permits

Dr DUNCAN LAURENCE

Consultant, Duncan Laurence Environmental, Coolnagee, Forth Mountain, Wexford, Ireland

(00 353 53 47709 )

Introduction

The Protection of the Environment Act 2003’s (“2003 Act”) amendments to the IPPC and waste licensing elements of the Environmental Protection Agency Act (“EPA Act”) and Waste Management Act 1996 (“WMA”) became law in Ireland on 12 July 2004. Also entering into force in July 2004 were the Environmental Protection Agency (Licensing) (Amendment) Regulations 2004, the Environmental Protection Agency (Licensing Fees) (Amendment) Regulations 2004 and the Waste Management (Licensing) Regulations 2004. These provisions made some very significant changes to the systems of statutory authorisation set down by the EPA Act for major industry and by the WMA for most of the larger or otherwise significant waste facilities.

Many of these new provisions are EU-instigated, involving the somewhat belated transposition of the remaining elements of the Directive on Integrated Pollution Prevention and Control (Directive 96/61 - the “IPPC Directive”). What remains to be transposed is the Directive on End of Life Vehicles (Directive 2000/53), albeit that powers now exist in the Sections 53B to 53F of the WMA to make the relevant legislation. Also to be transposed – but by further primary legislation which is outside the bounds of the 2003 Act - is the Directive on Waste Electrical and Electronic Equipment (Directive 2002/96).

Also coming into effect in 2004 were certain amendments to the statutory basis for the issuing of waste permits and waste collection permits. While these amendments are intended to support forthcoming revisions to the Waste Management (Permit) Regulations 1998 and the Waste Management (Collection Permit) Regulations 2001, the proposals to change this secondary legislation have yet to be published by the Department of the Environment, Heritage and Local Government.

The purpose of this paper is to summarise the main changes to the licensing packages set out in the EPA Act and WMA. In the absence of an indication of the final form of the amendments to the waste permit and collection permit systems, it is not possible to set down further the nature of the proposed provisions in any detail at this time.

1.IPC/IPPC Licensing and Waste Licensing Boundaries

A consequence of the spilt between the licensing regimes set out in the EPA Act and in the Waste Management Act is the need to delineate between them. The 2003 Act redefines the boundary between Integrated Pollution Control (IPC) – now termed Integrated Pollution Prevention and Control (IPPC) - licensing and waste licensing, mainly for the reason that previous amendments were found to be both defective and had unexpected effects on IPC-licensed industry which also was involved in on-site waste management activities.

Sections 39A(1) and (2) of the WMA make clear that only a licence under the EPA Act or a waste licence – ie not both – is required where a waste recovery or disposal activity is “connected or associated with” a non-waste IPPC-licensable activity. It is left to the EPA to make a written determination as to which regime the activity should fall into. That decision is made on the basis of whether an IPPC-licensable activity is subsidiary to a waste recovery or disposal activity or vice versa. Whether one activity is subsidiary to the other is determined by specified criteria, such as the primary purpose of the activity, its size, environmental effects and so on. A prospective licence applicant can, before lodging a licence application, request the EPA to make such a declaration.

Section 39A goes hand-in-hand with amended Section 39(7) of the WMA. Section 39(7) excludes certain nominated waste management activities from needing a waste licence under Section 39(1). An exclusion for IPPC-licensed activities is contained in Section 39(7)(a). This specifies that a waste licence which would be otherwise required under Section 39(1) of the WMA is not needed in relation to:

• The processing, disposal or recycling of animal carcases and animal waste;
• Where the recovery or disposal of waste takes place on premises which, by reason of its non-waste related activities, is required to be subject to an IPPC licence.

2.BAT/BATNEEC

Following the IPPC Directive, the concept of BATNEEC - Best Available Techniques Not Entailing Excessive Costs - in the EPA Act and in the WMA is replaced by “BAT” - Best Available Techniques. Sections 40(4) of the WMA and 83(5) of the EPA Act require that, in order for a waste licence or IPPC licence to be granted, the EPA must be convinced that what is proposed constitutes BAT in relation to emission management.

While at first glance BAT may appear narrower than BATNEEC, the detailed definition in both Acts refers to “under economically and technically viable conditions, taking into consideration the costs and advantages …”. In other words, BAT does not mean “Best Available Technology”. Indeed, by referring to economic solutions, its meaning seems little different from what was hitherto required in relation to the “NEEC” element of BATNEEC.

Section 5 of the EPA Act requires the EPA to publish “BAT Notes”. No doubt most of the EPA’s BAT Notes will reflect the BREF note series for those activities subject to the IPPC Directive.

3.Decision Criteria for Granting IPPC Licences

The vires under which IPPC licences are granted is changed by the 2003 Act. As is the case with the amended waste licensing provisions (see later), the EPA is required to consider government policy in the carrying out of this function. Similarly, there have been changes to the mandatory requirements that must be satisfied for IPPC licences to be issued. Besides mandating compliance with BAT, the EPA is now forbidden from granting an IPPC licence unless the applicant is a “fit and proper person” (EPA Act, new Section 83(5)(a)(xi)).

While the concept of a licensee being a “fit and proper person” is entirely new in the context of IPPC licences, it is well-known to persons familiar with the WMA. An IPPC licence applicant is to be regarded as a fit and proper person only if three separate elements are satisfied (EPA Act, Section 84(4)):

• that neither the applicant nor the applicant’s associates have been convicted of contravening specified sections of the EPA Act, the WMA, the Local Government (Water Pollution) Acts 1977 & 1990 or the Air Pollution Act 1987. To be embraced by this provision, the convictions referred to are required to be prescribed in secondary legislation. Unlike waste (see below), this is achieved by Article 6 of the Environmental Protection Agency (Licensing)(Amendment) Regulations 2004;
• that the individuals to manage the facility have the requisite technical knowledge and qualifications;
• that the applicant is in a position to meet any financial commitments and liabilities involved in carrying on the activity under the licence, including those pertaining to the activity’s cessation.

This provision goes further than the IPPC Directive. Moreover, while the EPA has discretion to disregard minor or historic convictions for environmental offences (see EPA Act, Section 84(5)), the other elements may add considerably to the information required to be submitted by a licence applicant. They will particularly affect the scope of financial information to be lodged with an application. And in this respect, the applicant will need to steer a careful path between submitting comprehensive and meaningful documentation and not putting into the public domain competitor-sensitive material. While the EPA can be requested to regard some of this information as commercially confidential, this in turn needs to be squared against public demands about openness and transparency. Such demands become particularly acute in relation to controversial applications and in oral hearings.

Following Article 3 of the IPPC Directive, Section 83(5) of the EPA Act requires that an IPPC licence is only granted when energy is used efficiently and where waste production is minimised, prevented or, as a last resort, disposed of in manner which minimises environmental impact. The EPA also is required to ensure that necessary measures are in place to prevent accidents and to minimise their consequences, as well as having to be convinced that measures are proposed to both prevent environmental pollution when licensed activities cease and to return the site to a “satisfactory state”. Finally, under quite separate provisions contained in new Part IVA to the EPA Act, an IPPC licence cannot be granted unless there is compliance with the Groundwater Directive (Directive 80/68).

4.Decision Criteria for the Grant of a Waste Licence

When the EPA is determining a waste licence application, it has to apply the decision criteria which are set down in Sections 40(2) and 40(4) of the WMA. The obligations under Section 40(2) are less rigid, requiring that the EPA “shall have regard to” the matters specified. By contrast, the provisions in Section 40(4) are absolute, with the EPA being forbidden to issue a waste licence unless the various elements contained in that sub-section are fully addressed. The 2003 Act makes a number of additions to these provisions, thereby changing the statutory principles under which waste licence applications are judged:

• Consideration of Governmental Policy on Waste Management. The 2003 Act adds a further matter to which the EPA must have “regard to” when evaluating a licence application. The EPA must now also evaluate the proposal against the policies and objectives of the government.
• Compliance with the Landfill Directive. In order to ensure compliance with the Landfill Directive, an amendment to Section 40(4) of the WMA obligates the EPA not to grant a licence to a landfill site unless there is compliance with the Directive. Essentially, what the 2003 Act is doing here is moving into the WMA itself the provision which was hitherto contained in the now-superseded Waste Management (Licensing) Regulations 2000 - Article 37(3).
• Coordination with Waste Management Plans. New Section 40(4)(cc) requires that the EPA must not issue a waste licence unless there is consistency with the objectives of a waste management plan.
• IPPC Directive-Related Obligations. Besides the replacement of BATNEEC by BAT, four more requirements of Article 3 of the IPPC Directive have been added to Section 40(4) of the WMA. Hence, as well as the need to comply with Sections 40(4)(a)-(e) as before, the EPA is now mandated not to issue a waste licence unless:

• Energy will be used efficiently by the activity;
• Noise from the activity will comply with regulations made under Section 106 of the EPA Act;
• Necessary measures are taken to prevent accidents and, when accidents occur, measures are in place to limit environmental damage;
• Necessary measures will be taken to ensure the environment is protected in the event that the licensable activity ceases and to make certain that the site is returned to a satisfactory state.

• “Fit and Proper Person”. Under Section 40(4)(d) of the original WMA, a private sector waste licence applicant is not to be granted a waste licence if s/he is not a fit and proper person. One of the three criteria by which this was judged is whether the person has received convictions under the WMA. The 2003 Act potentially extends this provision to additionally embrace prescribed convictions incurred under the EPA Act 1992, the Local Government (Water Pollution) Acts 1977 & 1990 and the Air Pollution Act 1987. However, as convictions under the WMA are the only ones prescribed by the Waste Management (Licensing) Regulations 2004, the other offences still do not have application – an obvious contrast to the similar provision relating to IPPC licences.

5.IPPC and Waste Licensing

It has been noted that the 2003 Act contains a completely re-vamped Part IV to the EPA Act 1992. While these changes have been made partly to transpose the IPPC Directive, other modifications have been put in place to clear up some areas of difficulty that have arisen since IPC licensing came into effect. As will be seen, a number follow what was already extant in the WMA in relation to waste facilities. Besides the replacement of all of the provisions on IPC licensing, a number of amendments have also been made to the waste licensing package in the WMA.

Existing IPC and Waste Licences

The provisions set out in new Part IV of the EPA Act will pertain to all existing IPC licences (see Section 82(7)). This includes new powers relating to licence suspension, revocation, transfer and surrender (see below). The remainder of this paper will refer to both the older, and as yet unamended, IPC licences and the newer IPPC licences collectively as “IPPC licences”.

Following the IPPC Directive, the EPA is required to examine all existing waste and IPC licences to ensure conformance with the IPPC Directive. In accordance to the Directive, Section 82(10) of the EPA Act states that this has to be finalised by 30 September 2007 at the latest. Similarly, new Section 76 of the WMA sets down the 30 September 2007 deadline as the final date for the EPA to ensure that all existing waste licences comply with the Directive. If necessary, licence conditions may need to be reviewed.

The need to ensure full compliance with the IPPC Directive seems likely to place a significant burden on the EPA, particularly given that this process needs to be completed by the September 2007 deadline. A number of current IPC licences do not satisfy some elements of the Directive due mainly to an absence of conditions relating to accident prevention, efficient usage of energy and resources, and provisions on site decommissioning/restoration. For example, it has been suggested that 230 of the 337 IPC licences issued prior to July 2004 may be affected to a greater or lesser degree.

Unlike IPC licences, significantly fewer waste licences are likely to be affected. This is partly because the Directive embraces only a limited number of types of waste facility, with landfills being stated as complying with the IPPC Directive when there is compliance with the Landfill Directive (see Landfill Directive, Article 1(2)). Moreover, as waste licensing came into effect later than IPC licensing, the implications of the IPPC Directive were more obvious and could be more readily addressed when licence conditions were being drafted. However, in some cases, minor changes to those licences – such as the switch of the term BATNEEC to read BAT, the addition of conditions on the efficient use of energy, etc – need to be made.

New IPPC Licensees

The breadth and scope of IPPC licensing has been altered by the amendments to the EPA Act and the new First Schedule which lists licensable activities. The result is that more than 100 new applications are expected to be received by the EPA, including small poultry producers, lesser creameries, small piggeries and many of the larger animal feed producers.

IPPC and Waste Licence Application Determination Period

Under Section 87(3) of the revised EPA Act, the Agency is mandated to produce a proposed determination on an IPPC licence application with eight weeks. This is slightly different than hitherto, when the prescribed period was two calendar months. By contrast, the WMA continues to require that a decision on a waste licence is made “as expeditiously as may be” and that there are no unavoidable delays in processing the application (see WMA, Section 43(4)).

IPPC and Waste Licence Conditions

Section 86 of the EPA Act sets down a new statutory basis for IPPC licences. What is interesting is that, like the WMA hitherto (see WMA, Section 41(2)) but unlike the pre-July 2004 version of the EPA Act, conditions have now been specified as being mandatorily required to feature in all IPPC licences.

This type of licence condition can substantiated using discretionary powers which allow the EPA to include conditions on other issues. One of these – Section 86(1)(b)(xi) of the revised EPA Act – ensures that lands located away from a licensed activity can be embraced by the IPPC licence when they are affected by it. This provision puts on a much firmer statutory footing licence conditions relating to the intensive livestock and slaughtering sectors, when they are to control the landspreading of animal wastes on farmland situated away from the licensed premises.

Changing IPPC and Waste Licence Conditions, Licence Review, etc

Licence review procedures are contained in revised Section 90 to the EPA Act and in amended Section 46 of the WMA. Although the provisions in the two Acts are similar, there are some significant differences. There are also provisions which require existing waste and IPPC licences to be upgraded to meet the full requirements of the IPPC Directive.

IPPC Directive: Licence Review to Ensure Compliance by Existing IPC and Waste Licences

It has been noted that the both Acts mandate that full compliance with the IPPC Directive is required by September 2007 for facilities which were duly authorised prior to 12 July 2004. In this respect, IPC and waste licensees fall into four broad types:

• Licensees that are not subject to the IPPC Directive at all – an example is many smaller non-hazardous waste facilities – and where the licences will remain unaffected;
• IPC and waste licences which are already fully compliant with the Directive: again, these licences will remain unchanged;
• IPC and waste licences which require minor changes to ensure full compliance;
• Licences which need substantial amendment to ensure conformity with the Directive. This will mainly affect some of the older IPC licences.

The amended EPA Act and WMA both contain mechanisms which allows the EPA to carry out these changes. Minor changes which are exclusively related to implementing the requirements of the Directive can be made by way of powers contained in Sections 82(10) & (11) of the EPA Act or Sections 76(3) and (4) of the WMA. In such instances, the “normal” process of licence review is circumvented and there is, for example, no possibility of the EPA receiving valid submissions or objections from third parties. However, in the event that there are other elements of the IPC or waste licence that the EPA feels is necessary to amend, then a licence review is undertaken in the normal way.