LegalizeProtection of the Environment Act 2003
PART 1 Preliminary and General
1 Short title and collective citations.
1.—(1) This Act may be cited as the Protection of the Environment Act 2003.
(2) The Act of 1992 and Part 2 of this Act may be cited together as the Environmental Protection Agency Acts 1992 and 2003.
(3) The Waste Management Acts 1996 and 2001 and Part 3 of this Act may be cited together as the Waste Management Acts 1996 to 2003.
(4) The Litter Pollution Acts 1997 and 2001 and Part 4 of this Act may be cited together as the Litter Pollution Acts 1997 to 2003.
2 Commencement.
2.—This Act shall come into operation on such day or days as the Minister may appoint by order or orders either generally or with reference to any particular purpose or provision and different days may be so appointed for different purposes or different provisions.
3 Repeals and revocations.
3.—(1) Each enactment mentioned in column (2) of Part 1 of Schedule 2 to this Act is repealed to the extent specified in column (3) of that Part.
(2) Each statutory instrument mentioned in column (2) of Part 2 of Schedule 2 to this Act is revoked to the extent specified in column (3) of that Part.
4 Definitions.
4.—In this Act—
“Act of 1992” means the Environmental Protection Agency Act 1992;
“Act of 1996” means the Waste Management Act 1996;
“Act of 1997” means the Litter Pollution Act 1997;
“Minister” means the Minister for the Environment, Heritage and Local Government.
PART 2 Amendment of Act of 1992
CHAPTER 1 Amendment of Sections 3, 4, 5, 6, 7, 9, 13, 14, 63 and Part III of Act of 1992
5 Amendment of section 3 of Act of 1992.
5.—The following sections are substituted for section 3 of the Act of 1992:
| “Interpretation. | 3.—(1) In this Act, except where the context otherwise requires— ‘activity’ means any process, development or operation specified in the First Schedule and carried out in an installation; ‘the Act of 1996’ means the Waste Management Act 1996; ‘the Act of 2000’ means the Planning and Development Act 2000; ‘the Agency’ shall be construed in accordance with section 19(1); ‘atmosphere’ means the gaseous envelope surrounding the earth, and includes air; ‘authorised person’ means a person who is appointed in writing by the Minister, a local authority, the Agency or such other person as may be prescribed to be an authorised person for the purposes of this Act or any Part or section thereof; ‘development’ has the meaning assigned to it by section 3 of the Act of 2000; ‘the Directive’ shall be construed in accordance with section 3A(1); ‘disposal’, in relation to waste, has the meaning assigned to it by the Act of 1996; ‘emission’ means, in relation to an activity referred to in Part IV or IVA, any direct or indirect release of substances, heat or noise from individual or diffuse sources in the activity into the atmosphere, water or land, and includes— (a) an emission into the atmosphere of a pollutant within the meaning of the Air Pollution Act 1987, (b) the release of a greenhouse gas or a precursor of a greenhouse gas into the atmosphere, (c) a discharge of polluting matter, sewage effluent or trade effluent within the meaning of the Local Government (Water Pollution) Act 1977, to waters or sewers within the meaning of that Act, or (d) waste, but does not include a radioactive substance within the meaning of Council Directive 96/29/Euratom[^1], a genetically modified micro-organism within the meaning of Council Directive 90/219/EEC[^2] or a genetically modified organism within the meaning of Directive 2001/18/EC of the European Parliament and of the Council[^3]; ‘emission limit value’ means the mass, expressed in terms of a specific parameter, concentration or level of an emission, or both a specific concentration and level of an emission, which may not be exceeded during one or more periods of time; ‘employee of the Agency’ does not include the Director General or other Director of the Agency; ‘enactment’ includes any instrument made under an enactment; ‘environmental impact statement’ has the meaning assigned to it by the Act of 2000; ‘environmental protection’, ‘environmental pollution’, ‘environmental medium’ and ‘environmental quality standard’ have the meanings respectively assigned to them by section 4; ‘established activity’ means— (a) an activity which on 29 October 1999, or such other date as may be prescribed in relation to the activity, was being carried on and did not involve or have an association with unauthorised development within the meaning of the Act of 2000, or (b) an activity— (i)in respect of which permission under section 34 of the Act of 2000 had been granted, or an application for such permission had been made, before 30 October 1999, or such other date as may be prescribed in relation to the activity, and (ii)which on 29 October 2000, or such other date as may be prescribed in relation to the activity— (I) was being carried on, and (II) did not involve or have an association with unauthorised development within the meaning of the Act of 2000; ‘functions’ includes powers and duties; ‘greenhouse gas’ means— (a) carbon dioxide, methane, nitrous oxide, sulphur hexafluoride, any hydrofluorocarbon or any perfluorocarbon, and (b) such other gases as may be prescribed, in so far as the emission of any such gas contributes to global climate change; ‘installation’ means a stationary technical unit or plant where the activity concerned referred to in the First Schedule is or will be carried on, and shall be deemed to include any directly associated activity, whether licensable under this Part or not, which has a technical connection with the first-mentioned activity and is carried out on the site of that activity; ‘land’ includes soil; ‘local authority’ means— (a) in the case of a city, the city council, and (b) in the case of a county, the county council, and references to the functional area of a local authority shall be construed accordingly; ‘the Minister’ means the Minister for the Environment, Heritage and Local Government; ‘monitoring’ includes the inspection, measurement, sampling or analysis for the purposes of this Act of any emission, or of any environmental medium in any locality, whether periodically or continuously; ‘noise’ includes vibration; ‘occupier’, in relation to any installation or premises, includes the owner, a lessee, any person entitled to occupy the installation or premises and any other person having, for the time being, control of the installation or premises; ‘person in charge’ includes an occupier of an installation or premises or a manager, supervisor or operator of an activity; ‘planning authority’ has the meaning assigned to it by the Act of 2000; ‘plant’ includes any equipment, appliance, apparatus, machinery, works, building or other structure or any land or any part of any land which is used for the purposes of, or incidental to, any activity specified in the First Schedule; ‘premises’ includes any messuage, building, vessel, structure or land (whether or not there are structures on the land or whether or not the land is covered with water) or any hereditament of any tenure, together with any out-buildings and curtilage; ‘prescribed’ means prescribed by regulations by the Minister under this Act; ‘previous Part IV’ shall be construed in accordance with section 82(1); ‘public authority’ means— (a) a Minister of the Government, (b) the Commissioners of Public Works in Ireland, (c) a local authority for the purposes of the Local Government Act 2001, (d) a harbour authority within the meaning of the Harbours Act 1946, (e)(i)a health board, (ii)the Eastern Regional Health Authority, or (iii) an Area Health Board established under the Health (Eastern Regional Health Authority) Act 1999, (f) a board or other body (but not including a company under the Companies Act 1963 to 2001) established by or under statute, (g) a company under the Companies Acts 1963 to 2001, in which all the shares are held— (i)by or on behalf of a Minister of the Government, (ii)by directors appointed by a Minister of the Government, or (iii) by a board or other body referred to in paragraph (f) or by a company to which subparagraph (i)or (ii)applies, (h) such other body as may be prescribed for the purposes of any provisions of this Act; ‘public place’ includes any place to which the public have access, whether by right or by permission, or whether subject to, or free of charge; ‘recovery’, in relation to waste, has the meaning assigned to it by the Act of 1996; ‘sanitary authority’ means a sanitary authority for the purposes of the Local Government (Sanitary Services) Acts 1878 to 2001; ‘soil’ means the top layer of the land surface of the earth that is composed of disintegrated rock particles, humus, water and air; ‘statutory undertaker’ has the meaning assigned to it by the Act of 2000; ‘vessel’ means a waterborne craft of any type, whether self propelled or not, and includes an air cushion craft and any structure in or on water; ‘waste management plan’ means a waste management plan or a hazardous waste management plan within the meaning of the Act of 1996 that is for the time being in force; ‘waters’ has the meaning assigned to it by the Local Government (Water Pollution) Act 1977; ‘works’, in relation to sections 106 and 107, has the meaning assigned to it by the Act of 2000. (2) In this Act a reference to— (a) the date on which a licence or revised licence is granted is a reference to the date on which the licence or revised licence is sealed with the seal of the Agency, and (b) the date on which a decision by the Agency to refuse a licence or a revised licence is made is a reference to the date on which that decision, as reduced to writing, is so sealed. (3) In this Act a reference to a section, Part or Schedule, is a reference to a section or Part of, or a Schedule to, this Act, unless it is indicated that reference to some other enactment is intended. (4) In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless it is indicated that reference to some other provision is intended. (5) In this Act a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under this or any subsequent enactment. (6) The activities to which this Act applies include activities operated by or in the charge of the State. |
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| Community act given effect to by certain amendments of this Act. | 3A.—(1) The purposes for which the amendments of this Act by the Protection of the Environment Act 2003 are made include the purpose of giving effect to Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control[^1] (in this Act referred to as ‘the Directive’). (2) The Agency shall be the competent authority for the purposes of the Directive. (3) As competent authority for the purposes of the Directive, the Agency shall, amongst other things— (a) keep itself informed of developments in best available techniques, (b) maintain such data and information, provide for the supply of data to the Commission of the European Communities and undertake such reporting as may be necessary for the proper implementation of relevant Community acts (including compliance with the requirements of Articles 15 and 16 of the Directive), (c) when requested to do so by the Minister, participate in the Committee to assist the Commission of the European Communities on the basis provided for in Article 19 of the Directive. |
| Power to amend First Schedule in certain circumstances. | 3B.—The Minister may by regulations amend the First Schedule if either or both of the following conditions is or are satisfied— (a) as a result of an act adopted by an institution of the European Communities, the continued operation of that Schedule and section 82 would, unless such amendment were to be made, not be in conformity with that act, (b) the amendment proposed to be made does not, in the opinion of the Minister, involve any deviation from the principles or policies of that Schedule and section 82.”. |
6 Amendment of section 4 of Act of 1992.
6.—The following section is substituted for section 4 of the Act of 1992:
| “Environmental protection, environmental pollution, environmental medium and environmental quality standard. | 4.—(1) In this Act ‘environmental protection’ includes— (a) the prevention, limitation, elimination, abatement or reduction of environmental pollution, and (b) the preservation of the quality of the environment as a whole. (2) In this Act ‘environmental pollution’ means the direct or indirect introduction to an environmental medium, as a result of human activity, of substances, heat or noise which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment, and includes— (a) ‘air pollution’ for the purposes of the Air Pollution Act 1987, (b) the condition of waters after the entry of polluting matter within the meaning of the Local Government (Water Pollution) Act 1977, (c) in relation to waste, the holding, transport, recovery or disposal of waste in a manner which would, to a significant extent, endanger human health or harm the environment and, in particular— (i)create a risk to the atmosphere, waters, land, plants or animals, (ii)create a nuisance through noise, odours or litter, or (iii) adversely affect the countryside or places of special interest, (d) noise which is a nuisance, or would endanger human health or damage property or harm the environment. (3) In this Act ‘environmental medium’ includes the atmosphere, waters and land. (4) In this Act ‘environmental quality standard’ means the set of requirements which must be fulfilled at a given time by a given environment or environmental medium or any part thereof, as specified in any enactment or enactments, or in any act or acts adopted by an institution of the European Communities.”. |
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7 Amendment of section 5 of Act of 1992.
7.—The following section is substituted for section 5 of the Act of 1992:
| “Best available techniques. | 5.—(1) A reference in this Act to best available techniques shall be construed as a reference to the most effective and advanced stage in the development of an activity and its methods of operation, which indicate the practical suitability of particular techniques for providing, in principle, the basis for emission limit values designed to prevent or eliminate or, where that is not practicable, generally to reduce an emission and its impact on the environment as a whole. (2) In subsection (1)— (a) ‘best’, in relation to techniques, means the most effective in achieving a high general level of protection of the environment as a whole; (b) ‘available techniques’ means those techniques developed on a scale which allows implementation in the relevant class of activity specified in the First Schedule, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced within the State, as long as they are reasonably accessible to the person carrying on the activity; (c) ‘techniques’ includes both the technology used and the way in which the installation is designed, built, managed, maintained, operated and decommissioned. (3) (a) For the purposes of subsection (1), the Agency— (i)may from time to time as occasion requires, and (ii)shall in accordance with any regulations made by the Minister, specify best available techniques to provide, in principle, the basis for emission limit values for an activity or activities of a particular class or description, and regard shall be had in the administration of this Act to any such specifications. The Agency, in preparing any such specification, may, by publication of a notice in such manner as it thinks appropriate, invite submissions or observations to be made to it in relation to the terms of the proposed specification. (b) In specifying best available techniques in accordance with paragraph (a) or otherwise determining best available techniques for the purposes of this Act, the Agency shall, having regard to the likely costs and advantages of measures and to the principles of precaution and prevention, consider in particular— (i)the use of low-waste technology, (ii)the use of less hazardous substances, (iii) the furthering of recovery and recycling of substances generated and used in the process and of waste, where appropriate, (iv) comparable processes, facilities or methods of operation, which have been tried with success on an industrial scale, (v)technological advances and changes in scientific knowledge and understanding, (vi) the nature, effects and volume of the emissions concerned, (vii) the commissioning dates for new or existing activities, (viii) the length of time needed to introduce the best available techniques, (ix) the consumption and nature of raw materials (including water) used in the process and their energy efficiency, (x) the need to prevent or reduce to a minimum the overall impact of the emissions on the environment and the risks to it, (xi) the need to prevent accidents and to minimise the consequences for the environment, and (xii) the information published by the Commission of the European Communities pursuant to any exchange of information between Member States and the industries concerned on best available techniques, associated monitoring, and developments in them, or by international organisations, and such other matters as may be prescribed. (4) Whenever the Agency prepares a specification under subsection (3), it shall, as soon as may be, cause— (a) a copy of such specification to be sent to the Minister, each local authority, An Bord Pleanála and such other bodies, if any, as may be prescribed, (b) notice of the preparation of the specification to be published in Iris Oifigiúil, (c) notice of the preparation of the specification to be given to every person who made to the Agency submissions or observations concerning the specification in response to an invitation of the Agency made under subsection (3)(a), and (d) a copy of the specification to be made available to every person who makes application for such a copy on payment of such fee (if any) as the Agency shall fix not exceeding the reasonable cost of making such a copy.”. |
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8 Amendment of section 6 of Act of 1992.
8.—Section 6 of the Act of 1992 is amended—
(a) by inserting in subsection (3) after “Every regulation made under this Act”, “(other than regulations made under section 99)”, and
(b) by inserting the following subsection after subsection (3):
“(4) Where it is proposed to make regulations under section 99, a draft of the regulations shall be laid before each House of the Oireachtas and the regulations shall not be made until a resolution approving of the draft has been passed by each such House.”.
9 Amendment of section 7 of Act of 1992.
9.—Section 7 of the Act of 1992 is amended in subsection (2) by substituting “In addition to and not in substitution for the power conferred by section 3B, the Minister may” for “The Minister may”.
10 Amendment of section 9 of Act of 1992.
10.—Section 9 of the Act of 1992 is amended—
(a) by substituting in subsection (1)(a) “€3,000” for “£1,000”,
(b) by substituting in subsection (1)(b) “€15,000,000” for “£10,000,000”,
(c) by inserting in subsection (2) after “environment”, “, and any remediation required,”, and
(d) by substituting in subsection (3) “€1,000” for “£200”, and “€130,000” for “£100,000”.
11 Amendment of section 13 of Act of 1992.
11.—Section 13(4) of the Act of 1992 is amended—
(a) in paragraph (a), by inserting after “photographs”, “,record such information on data loggers, make such tape, electrical, video or other recordings”,
(b) in paragraph (b), by substituting “, make such copies of documents and records (including records held in electronic form) found therein and take such samples” for “and take such samples”,
(c) in paragraph (c), by substituting “such information,” for “such information, or”,
(d) in paragraph (d), by substituting “(including records held in electronic form) and documents, or” for “and documents,”, and
(e) by inserting the following paragraph after paragraph (d):
“(e) remove and retain such documents and records (including records held in electronic form) for such period as may be reasonable for further examination,”.
12 Amendment of section 14 of Act of 1992.
12.—Section 14(1) of the Act of 1992 is amended—
(a) by deleting “or” after paragraph (d),
(b) by substituting in paragraph (e) “development, or” for “development.”, and
(c) by inserting the following paragraph after paragraph (e):
“(f) by such other means as may be prescribed.”.
13 Amendment of section 63 of Act of 1992.
13.—The following section is substituted for section 63 of the Act of 1992:
| “Performance of statutory functions by local authorities. | 63.—(1) The Agency may request a local authority to furnish, within a specified period, to it information in relation to the performance by the authority, either generally or in a specific case, of a statutory function of that authority in relation to environmental protection and the authority shall comply with such a request. (2) The Agency may, having notified the local authority of its intention to do so, carry out an assessment of the performance by a local authority, either generally or in a specific case, of a statutory function of that authority in relation to environmental protection; for that purpose the authority shall comply with any request for the furnishing to the Agency of information, records or reports or the results of any monitoring by the authority, or, in connection with the foregoing, the affording to the Agency of access to any premises occupied by the authority, made by the Agency during the course of such assessment. (3) Having exercised its powers under subsection (1) or (2), and having considered any information furnished to, or otherwise coming into the possession of, it in consequence of that exercise, the Agency may, with a view to ensuring the satisfactory performance by the local authority concerned of the function in question, do all or any of the following— (a) issue such advice and recommendations to the authority as it considers necessary, (b) provide, on such terms and conditions as may be agreed, such assistance, support or guidance as the Agency considers, in consultation with the authority, would be helpful, (c) without prejudice to any of its powers under this Act or any other enactment, issue to the authority the terms of a direction (‘the proposed direction’) it proposes to issue, under subsection (5), to the authority requiring it to carry out, cause to be carried out, or arrange for, within a specified period, such action related to the function in question as the Agency considers necessary for the purposes of environmental protection. (4) The proposed direction shall specify a period within which the local authority may make observations to the Agency in relation to the proposal to make the direction (and the authority may make such observations within that period accordingly). (5) After the expiration of the period referred to in subsection (4) and consideration of any observations made by the local authority under that subsection, the Agency may confirm, with or without modification, or decide not to confirm its proposal to make the direction concerned, and, in a case where the proposal is confirmed, the Agency shall issue to the authority the direction concerned accordingly and the authority shall comply with the direction within the period specified therein. (6) Notwithstanding anything in this section, where the Agency is of the opinion that the failure of a local authority to perform in a satisfactory manner a statutory function of the authority in relation to environmental protection is resulting in significant environmental pollution, or in a real and imminent risk of such pollution, the Agency may direct the authority to carry out, cause to be carried out, or arrange for, within a specified period, such action related to the function in question as the Agency considers necessary for the purposes of preventing, limiting, eliminating, abating or reducing such pollution, and the authority shall comply with such a direction. (7) Where a local authority fails to comply with a direction issued under subsection (5) or (6), the Agency may carry out, cause to be carried out, or arrange for, such action related to the function in question as it considers necessary to ensure compliance with the direction and the costs of such action may be recovered by the Agency from the authority as a simple contract debt in any court of competent jurisdiction. (8) A local authority shall be guilty of an offence if it— (a) fails to comply with a request under subsection (1) or (2), or (b) fails to comply with a direction under subsection (5) or (6). (9) The Minister may, with the consent of such other (if any) Minister of the Government as the Minister considers appropriate having regard to the functions of that other Minister, make regulations enabling the Agency to exercise, in relation to a public authority (other than a local authority within the meaning of this section) that, in the opinion of the Minister, performs a statutory function in relation to environmental protection, the powers conferred on the Agency by this section in relation to a local authority. (10) Nothing in this section shall be construed as enabling the Agency to exercise any power or control under this section in relation to the making of a decision on an application for a permission under section 34 of the Act of 2000. (11) In this section, ‘local authority’ has the meaning assigned to it by the Local Government Act 2001.”. |
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14 Environmental inspections.
14.—The following section is inserted after section 81 of the Act of 1992:
| “Regulations in relation to environmental inspections. | 81A.—(1) The Minister may, for the purposes of environmental protection, make regulations providing for the carrying out by the Agency or a local authority of environmental inspections in connection with the performance of a statutory function of the Agency or a local authority in relation to environmental protection. (2) Without prejudice to the generality of subsection (1), regulations under this section may make provision for all or any of the following— (a) the organisation and carrying out of environmental inspections, (b) the preparation of plans for environmental inspections, the procedures to be followed in the preparation of such plans, the scope and contents of such plans, arrangements for their review, and the period in respect of which they are to apply, (c) the frequency of site visits and the matters to be examined in the course of such visits, (d) the preparation of reports following site visits and the making of the reports publicly available, and the time within which each of those things is to be done, (e) the investigation of incidents giving rise, or likely to give rise, to environmental pollution. (3) In this section— ‘environmental inspections’ shall be construed in accordance with European Parliament and Council Recommendation of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States [^(1)]; ‘local authority’ has the meaning assigned to it by the Local Government Act 2001; ‘site visit’ means a visit to a site at which there is being, or has been, carried on any activity (whether an activity within the meaning of this Act or not), being a visit which the Agency or the local authority, as the case may be, may make in exercise of the powers conferred on it by any enactment (other than this section).”. |
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CHAPTER 2 Integrated Pollution Prevention and Control Under Act of 1992
15 Substitution of new Part for Part IV of Act of 1992.
15.—The following Part is substituted for Part IV of the Act of 1992:
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