Written answers
Tuesday, 3 October 2017
Department of Communications, Climate Action and Environment
Environmental Protection Agency Reports
Catherine Connolly (Galway West, Independent)
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497. To ask the Minister for Communications, Climate Action and Environment further to Parliamentary Question No. 711 of 11 April 2017, if he will provide a copy of the report on the outstanding recommendations; and if he will make a statement on the matter. [41531/17]
Denis Naughten (Roscommon-Galway, Independent)
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The Review of the Environmental Protection Agency was completed in 2011 and found that the EPA overall has provided ‘considerable benefit for Ireland’s environment and for the health and well-being of its people.' The assessment of the EPA was structured under a number of themes including:
- Governance,
- Internal Structure and Resources;
- Licensing and Enforcement;
- Assessment and Monitoring;
- Environmental Research and Information;
- Relationship with Stakeholders; and
- Legislative Framework.
An Action Plan was developed to consider and address the 58 recommendations contained in the Review. An Implementation Report was published in 2014 and is still available on the EPA website. This Report outlines the follow-up actions taken by 2014 in relation to each of the 58 recommendations. It shows that 43 of the recommendations were fully completed, with the remaining 15 “in progress”.
The recommendations remaining are generally more complex or rolling in nature, some with a variety of possible solutions, and/or requiring further consultation and possibly primary legislation. Furthermore, in the case of a small number of these recommendations, on fuller consideration of the potential implications of their implementation on the effectiveness of the EPA to carry out its important statutory functions, or where practical or technical issues have been identified, it is not proposed to implement them at this time.
My Department has liaised with the EPA on the Recommendations and the following is the position in relation to each of the 15 recommendations referred to above.
| REVIEW RECOMMENDATIONS | IMPLEMENTATION ACTIONS UNDERTAKEN OR PROPOSED |
|---|---|
| 7.1.1 Consideration should be given to carrying out a wider review of environmental governance in Ireland so that issues of suggested fragmentation in structures and processes can be examined more fully. This exercise, which should take account of other review/reform programmes of relevance, including in relation to local government, could be particularly useful in supporting the effort to address infringements of EU environmental legislation where, although significant improvements have been achieved in recent years, considerable further work remains to be done, work which must continue to be accorded the highest possible priority. | Issues are being addressed as they arise, for instance in the context of ongoing reform of the Local Government sector and the establishment of Irish Water, which will result in improved environmental governance. A review of environmental governance would be a valuable exercise. However, such a review would require concentrated engagement by a range of stakeholders, Government Departments, Local Authorities and other public bodies over a considerable period, to ensure a thorough and wide-ranging review. |
| 7.1.3 The proposed wider review of environmental governance would also be the most appropriate context in which to consider whether a specialist Environment Court/Tribunal and/or a system of administrative sanctions should be put in place (taking into account the experience of such systems recently introduced in England and Wales) and if so, what form such mechanisms and measures might take. | The then Department of Environment, Community and Local Government in 2014 undertook a public consultation process regarding implementing Article 9 of the Aarhus Convention. This consultation sought to initiate discussion on a review of domestic provisions implementing Article 9 with a view to improving clarity and ensuring on-going effectiveness of the implementing measures. This consultation provided an opportunity for all to input into the process of further enhancing the legislation including consideration on whether mechanisms such as a specialist Environmental Court/Tribunal/Administrative Sanctions etc. should be put in place. Due to the complex challenges involved, it is not proposed to proceed with any such initiative. |
| 7.3.1 The EPA, in deciding on the appropriate enforcement action in individual cases, should always take into account the strong deterrent effect of prosecutions and should pursue the prosecution route to optimum effect. | As part of its enforcement policy, the EPA considers and uses a range of enforcement tools including issuing non-compliances to formal enforcement processes such as prosecutions. Details of prosecutions taken by the EPA are published on the EPA website www.epa.ie |
| 7.3.2 There is a strong case for the EPA’s licensing process to include formal requirements in relation to Health Impact Assessment. The proposed Advisory Committee on the interface between the environment and human health (Recommendation 7.2.7) should, as a matter of priority, make urgent recommendations about the most appropriate way to address this issue. This Committee should also assess and make recommendations in respect of the inclusion of health factors in risk assessment for prioritising enforcement. | The new EIA Directive (2014/52/EU) requires that, as part of the assessment to be carried out when undertaking an Environmental Impact Assessment, consideration must be given to the likely significant impacts on “...human health and populations...”. In preparation for the transposition and implementation of the new Directive, the EPA has set up a Working Group, whose purpose is to develop a methodology to be followed by regulators who perform EIA, to ensure that relevant impacts related to human health and populations will be included in the assessment process. This will not constitute the formal Health Impact Assessment (HIA) process, but will, in line with advice from the EU Commission, incorporate the likely impacts associated with the emissions from the activity to be permitted. The implementation of the EIA Directive in Ireland is being led by the Department of Housing, Planning and Local Government. The Department of Communications, Climate Action and Environment is preparing any necessary regulatory changes. |
| 7.3.3 While due regard should be given to the interests of SMEs and smaller agricultural units, the level of EPA licence fees should be routinely reviewed and the Group notes that these are due for upward revision. | The EPA fee structure was reviewed in late 2012. On the basis of that review, a number of provisions were included in the Environment (Miscellaneous Provisions) Act 2015 to provide for new licence fee categories. It should be noted that the level of EPA licence application fees are set in statute by the Oireachtas. There are no plans at this time to further review EPA licence fees. |
| 7.3.4 Currently, the EPA is restricted in its power to review part of an IPPC licence. Where this will not compromise environmental protection, and subject to appropriate public participation, the EPA should be given the power to undertake partial reviews of existing licences (see also 7.6.10). | The EPA has collaborated with the Department of the Environment and other interested parties, including legal experts and IBEC representatives, to examine the feasibility of legislating for a limited review procedure for EPA licences. To date, there is no clear line-of-sight to a legal basis for the carrying out of such limited reviews, and the possibility of such limited reviews is contingent upon new primary and secondary legislation. |
| 7.3.5 The EPA should be allowed greater access to the past records of licence applicants generally through a strengthening of relevant legislative provisions. | All documentation related to the making of an application to the EPA for any licence, permit, consent or authorisation, is available on the EPA website. In relatively rare circumstances, confidential information of a very sensitive nature is not posted to the EPA web pages, but such withholding of information is very much the exception. Since 2004, the EPA has made its application documentation available to the public, on-line. |
| 7.3.8 In order to facilitate greater public participation in licensing matters generally, the legislative framework should make provision for experts to give evidence via video-conferencing. | There are no proposals at this time, but provision for experts to give evidence via video-conferencing may be considered in future legislative provisions. |
| 7.6.2 Sections 52(1) and (2) of the 1992 Act should be revised and updated in light of the EPA’s expanded remit and the principles underlying contemporary environmental regulation and should include specific references to the EPA’s responsibilities in respect of water protection, climate change and its contribution to the conservation of biodiversity and to environmental sustainability. | This is acted on, as appropriate, on a case by case basis as need arises. (See 7.6.1). Under the Radiological Protection (Miscellaneous Provisions) Act 2014, the functions formerly performed by the Radiological Protection Institute of Ireland (RPII) are now performed by the EPA since 1 August 2014. |
| 7.6.3 The EPA’s absolute statutory immunity should be revised. | A number of other state agencies currently have statutory immunity, including the Health and Safety Authority and the National Asset Management Agency, which was provided for under legislation as recently as 2009. It will be particularly important to examine the potential impact of any change in this provision on the ability of the EPA effectively to discharge its statutory functions. Such change could set a precedent for other State agencies and, therefore, could not be considered in isolation. |
| 7.6.4 The EPA should be subject to the Ombudsman’s jurisdiction in respect of alleged maladministration. Appropriate resources must be made available to the Office of the Ombudsman to enable it to deal effectively with any significant increase in its workload that may arise. | In respect of the EPA falling within the remit of the Ombudsman‘s jurisdiction, the EPA Review Group recommended that it should do so in respect of issues of maladministration only. In the context of the drafting of the Ombudsman (Amendment) Act 2012, the then Department of the Environment, Community and Local Government engaged extensively with the Department of Public Expenditure and Reform and the Office of the Attorney General on this issue in order to achieve an acceptable legislative wording to enable administrative procedures fall within the legislation, but excluding the quasi-judicial functions of the EPA. A satisfactory form of wording was not finalised and the EPA remains an exempt Agency for the purposes of the Act. |
| 7.6.5 The rules governing legal costs in certain environmental litigation (section 50B Planning and Development Act 2000, as amended) should be kept under review. Concerns about access to environmental justice should be examined in the context of a wider review of environmental governance. | It is noted that the rules governing legal costs under Section 50B of the Planning and Development Acts as amended now apply i.e. that each party bears its own costs in judicial review proceedings of any decision/action/failure to take action to a law pursuant to a law of the State that gives effect to the EIA Directive, SEA Directive and the IPPC Directive. As case law on the 2011 cost rules evolves, the rules are kept under review, in conjunction with relevant case law from the CJEU (Courts of Justice, European Union). Any proposed amendments will be subject to a broad public consultation process, as appropriate. |
| 7.6.9 Current legislation relating to contaminated land should be reviewed to develop a coherent, dedicated legal regime to address the various challenges that arise in this context, including guaranteeing that site operators make provision to meet any liabilities arising from their activities. Regulatory bodies should also ensure that sufficient controls are in place to avoid and militate against such situations arising. | Following the review of previous arrangements, the EPA published Guidance on the Management of Contaminated Land and Groundwater at EPA Licensed Sites in July 2013. Following a public consultation in 2013, updated Guidance on Assessing and Costing Environmental Liabilities was published by the EPA in 2014. The EPA has a programme in place to ensure that licensed sites make financial provision for future liabilities, closure and aftercare costs. To date, the EPA has secured €500 million in financial provision from licensed sites and is prioritising sites with known closure and aftercare costs (such as landfills and mines) and sites with potential high liabilities in the event of an incident. The EPA is also focussed on reducing risks and liabilities at licensed sites by ensuring remediation programmes are implemented at sites with significantly contaminated soil or groundwater. Using a risk based approach, the EPA’s focus is on sites which pose a risk to human health, or which pose a threat to the achievement of the water framework directive objectives. While these measures significantly reduce the risk of the State having to cover the liabilities of sites in the event of abandonment, the EPA has recently begun discussions with the department of Communications, Climate Action and Local Government to put a framework in place for dealing with contaminated sites which fall to the state for clean-up. |
| 7.6.10 Consideration should be given to making provision for amendments to IPPC and waste licences in certain limited circumstances (beyond clerical and technical amendments) without the necessity for a full licence review. | The then Department of the Environment, Community and Local Government initiated an examination of this proposal in conjunction with the EPA. It found it a difficult area to draw a balance between an amendment versus a review, without making the process arbitrary. All licences and reviews require a sound legislative basis. Any proposals in this regard will be communicated to stakeholders prior to implementation. |
| 7.6.11 Consideration should be given to providing for appeals in relation to air pollution licences to be made to the EPA rather than An Bord Pleanála. | The Environment (Miscellaneous Provisions) Act of 2015 transferred from An Bord Pleanála, to the EPA, the power for, and responsibility for the adjunction of Air Pollution Acts Licence Appeals. Further legislative amendment will be required to transfer the fee arrangements for such appeals to completely close out this action. |
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