EPA Charges Update
EPA Guidance Note on Charges
In 2011, the EPA published a Guidance Note on Charging Policy and Enforcement Charges. This outlines how the EPA is authorised to charge both for applications for licences under Section 94 of the EPA Act, 1992 and Section 50 of the Waste Management Act 1996 and enforcement charges. Application charges are a one-off payment made for an application for a licence, whereas enforcement charges can be ongoing once a facility is licensed. Conditions can be included in licences stating that the Agency may require payments for enforcement. The amounts to be paid with an application are set out in legislation and can include the application fee, objections (1st and 3rd party), oral hearings, etc. unless there is specific legislation that allows for some variance. In some cases, the amounts paid for licensing fees may be reduced at the discretion of the EPA. However, the amounts to be paid for enforcement are changeable and are at the discretion of the EPA, depending on the risk of the site. There are multiple principles that the EPA use in setting enforcement charges. These principles are as follows:
Polluter Pays Principle (PPP)
The theory behind the PPP is that the operator pays for the enforcement service as they are the one that is carrying out activities that require an enforcement system;
Risk-Based Charging
Different activities are categorised into different enforcement risk categories depending on the nature and size of the activity, their enforcement history and other factors. There can also be site-specific issues that can result in additional/differing charges. This category is the main factor used in setting enforcement charges;
Burden Sharing
The EPA strives to evenly distribute the cost of enforcement as much as possible between facilities of equivalent environmental risk. This may mean certain facilities would be paying the same amounts while getting additional/fewer inspections and/or compliance assessment time specific to their facility;
Ring-fencing of Costs
The Agency should ensure that the income from enforcement charges is only used for enforcement and compliance-related activities. The income should not be used for any other activities carried out by the Agency;
Appropriate Cost Recovery
The Agency ensures that only costs that are considered appropriate will be recovered. These costs include those for direct enforcement, monitoring of licenses and indirect costs associated with these services;
Balance
If there is any over or under-spending from a charging scheme, the benefits of efficiency savings will be taken into account when annual charges are set for the following financial year.
Several activities are funded by enforcement charges within the Agency. These include compliance checking activities such as inspections, auditing, sampling, analysis, investigations, compliance assessments, etc., communications activities such as reporting, guidance development and publishing, technical presentations and advice, etc. and enforcement activities such as issuing enforcement notices, licensee interaction, checking of compliance data and legal services. There are direct costs and indirect costs associated with these activities.
The activities that are not funded by enforcement charges include any monitoring that is required to be carried out due to European Directives, research and policy work not directly associated with licensing enforcement, pension costs, etc.
The guidance sets out how enforcement charges are calculated for Integrated Pollution Control/Industrial Emissions (IPC/IE), waste, wastewater discharge (WWD) and genetically modified organisms (GMO) licenses. IPC, waste and WWD enforcement costs are primarily calculated using a daily rate for enforcement staff (salaries, expenses, services, etc.), the number of days estimated for a typical activity (depending on enforcement category) and the cost of emission monitoring (including special investigations, complaints, investigations and compliance assessment). This reflects both direct and indirect costs.
In August 2019, the EPA published an update to the guidance. This note consists of a guide on how to request clarification on charges, how to request credit and a section on Frequently Asked Questions (FAQs).
The note focuses on how licensees can query the amounts they are being charged by the EPA and how to submit credit requests for several reasons which are outlined below. The reason for credit requests, as outlined in the guidance note, may include:
- An inappropriate risk category has been applied to the facility/activity;
- The EPA has charged for air emission monitoring, but no monitoring has been carried out by the agency or a representative;
- The licensee has surrendered their licence, ceased operations or the activity has been substantially changed;
- The charges are resulting in a disproportionate burden on the activity.
The EPA also clarifies that:
- Only queries that are accompanied by full and complete information will be considered;
- The licensee will only be allowed one clarification and one credit request per year;
- Applying for a request for clarification or credit will not delay enforcement actions to recover outstanding fees;
- The decision on a query/clarification is final.
Concerning the clarification of charges, there are several published guidance documents available that may clarify the query. The EPA recommends that these documents are reviewed before making a clarification request:
The EPA requests that queries are made in the form of a completed note, the template for which is in the new guidance document. The note should be submitted to the EPA either through the EDEN portal or emailed to OEEChargeQUERIES@epa.ie.
Environet can assist licensees on any of the above issues. For assistance or to get more information please contact us.
February 2020