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Changes to EPA Licensing Proposed

The Irish Government approved the General Scheme of the Environmental Protection (Miscellaneous Provisions) Bill 2024 on 11th June 2024. This Bill has been drafted with the intention of restructuring the licensing system that is currently governed by Environmental Protection Agency (EPA) under the EPA Act 1992, as amended and associated EPA (Industrial Emissions) (Licensing) Regulations 2013 (S.I. No. 137/2013), as amended. This article will compare the current licensing system with the changes proposed by this Bill.

Current IE/IPC Licensing Process

From the time that an IE/IPC licence (or licence review) application is submitted online, the EPA will notify all statutory consultees, publish the application on its website, assess the application and request further information if necessary. Submissions may be made by any interested parties at this time. Once all requests to the applicant have been complied with, the Agency then has 8 weeks to assess the application before making a “Proposed Determination.” This assessment period may be extended in certain circumstances, at which point the EPA will make an extension request to the applicant.

Once a proposed determination is made, the Agency will publish a notice in an appropriate newspaper, notify anyone who made a submission, publish the proposed determination on the EPA website and notify statutory public bodies. Within 28 days of the publication of the proposed determination, anyone (including the applicant) can submit an objection and request an oral hearing. The EPA will consider all objections and oral hearing requests. If no valid objection is made during this period, the Agency will issue the “Final Determination.”

Due to the backlog in the EPA, it is not uncommon for applicants to take up to three years to get to a final determination from the EPA. The current application process has faced criticism for its inefficiency, with certain minor amendments to existing licences (e.g., increase in specified emissions for any emission parameter, addition of a new main emission point to a licence) necessitating a review of the IE/IPC Licence.

This prolonged application process makes it extremely difficult for operators to secure the necessary investment for new facilities or to upgrade/expand existing facilities due to the uncertain timeframes for obtaining a decision on either a new licence application or the revision of a licence from the EPA.

Key Changes and their Implications

This Bill proposes to address the lengthy regime associated with licence applications (i.e., Industrial Emissions, Integrated Pollution Control and Waste Licences) by reducing the administrative burden on the EPA. It is proposed to reduce this administrative burden by providing more options for the Agency to efficiently manage minor changes to licences and regulate lower risk activities, while ensuring that the appropriate level of environmental protection is maintained.

Limited Licence Reviews:

Licensees looking to make minor changes to their operations will no longer be subjected to a full licence review. The proposed Bill introduces the concept of a ‘limited review’ to the scope of licence reviews, allowing the EPA to focus on the specific proposed changes rather than conducting a full review of the licence. This will only apply where an Environmental Impact Assessment (EIA) is not required; consultation is not required under the Industrial Emissions Directive (IED); and the proposed changes to the licence are not considered to be ‘substantial’. Under Directive 2010/75/EU, a substantial change is defined as “a change in the nature or functioning, or an extension, of an installation or combustion plant, waste incineration plant or waste co-incineration plant which may have significant negative effects on human health or the environment.”

Statutory Timelines for Licensing Decisions:

One of the major improvements is the proposed introduction of statutory deadlines for the EPA to make determinations on licence applications. The complexity of the activity and associated environmental impact will dictate the timeframe from application to the grant of a licence:

  • A period 16 weeks is proposed for limited licence reviews where an EIA is not required and the proposed change is not considered to be substantial by the Agency. Where an application is subject to planning permission, the 16 week period will commence after the appeal period, including judicial review, has been completed. Under a limited licence review, the EPA will be enabled to carry out a review on particular aspects of the licence (i.e., limited licence review);
  • Where the application for a licence review is made at the same time as an application for planning consent, a period of 26 weeks is being proposed after the planning permission has been granted and the time for appeal has elapsed. Where an appeal has been submitted, the 26 week period will commence after the appeal decision has been made and the time for judicial review has elapsed. This is applicable to licensable activities which the EPA considers unlikely to have a significant impact on the environment;
  • Where the application for a licence is made post planning process, a period of 52 weeks is being proposed after the planning permission has been granted and the time for appeal has elapsed. Where an appeal has been submitted, the 52 week period will commence after the appeal decision has been made and the time for judicial review has elapsed. This is applicable to licensable activities which the EPA considers likely to have significant environmental impacts.

General Binding Rules for Lower Risk Activities:

The proposed Bill will allow the EPA to establish ’General Binding Rules’ (GBRs), which will apply to lower-risk activities, eliminating the requirement for a formal IE/IPC Licence. Operators of such activities will instead register their activities with the EPA and comply with standardised conditions/rules. An example of a similar regime is the current requirement to register medium combustion plants with the EPA. The proposed introduction of GBRs will reduce the administrative burden on the Agency, while ensuring that appropriate environmental protections are maintained for these activities. Operators of activities with lower associated environmental impacts will find this particularly useful as it removes the need for formal licence applications, making the compliance process quicker and more cost-effective. This will simplify the licensing process for lower-risk activities, saving time and resources while maintaining environmental safeguards. It is noted that significant consultation with stakeholders will be required to develop GBRs and could therefore take up to 2 years to be finalised.

Why This Matters for Licensees and Applicants

For industrial facilities, these proposed reforms may reduce uncertainty and delays in securing licences or making necessary operational changes. The ability to carry out limited licence reviews should make it easier to facilitate operational changes while maintaining compliance.

The potential for more efficient licensing processes will assist quicker investment in critical infrastructure in Ireland, helping industries adapt and grow in a sustainable manner.

The General Scheme for the Bill proposes some very practical changes to the EPA’s licensing system. These changes are expected to simplify certain licence applications, and to remove the requirement to obtain a licence for certain types of lower risk activities. The General Scheme will be the basis of the Environment (Miscellaneous Provisions) Bill 2024. The Bill is expected to be brought to Government in early 2025. It will then be published and introduced in the Oireachtas.

It should be noted that there are a number of unknowns in relation to the proposed changes to the IE/IPC licensing system at this stage. Further details are not expected to be released on the proposed implementation of the Bill until approved by Government. Some of the unknowns are outlined below:

  • It is not yet known whether the statutory timelines for licensing determinations commence once an application is submitted, or once the Agency is satisfied that it has received all necessary information to process the licence application. This means that it may be the case that the commencement of the proposed statutory timelines will be at the discretion of the Agency;
  • There has been no indication as to whether the proposed statutory timelines account for objection phases, both for the public and for the applicant. If objection phases are not proposed as part of this restructuring of the licensing system, it will have negative impacts on applicants. The opportunity to object to certain conditions of a proposed determination is critical to applicants as there may be sections of a proposed determination which contain clerical errors or which do not apply to the installation. The removal of an objection phase would mean that there would be no opportunity to correct errors in a licence during the application stage. This could lead to subsequent change requests (i.e., Condition 1.4, Technical Amendment, or Licence Review) submitted by the licensee at a later date, thereby increasing the administrative burden on the Agency;
  • The proposed Bill does not specifically identify the exact “lower-risk activities” that will be applicable to GBRs. Provided that this Bill is approved by Government, it is anticipated that the EPA will determine the activities that will be subject to GBRs at a later date.

For more information on the proposed Environmental Protection (Miscellaneous Provisions) Bill 2024, please click here.

December 2024