IE-2003-act-27 — Protection of the Environment Act 2003

PART 1 Preliminary and General 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. 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. 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 —(1) Each enactment mentioned in column (2) of Part 1 of Schedule 2 to this Act is repealed to the extent specified in column (3) of that Part.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. 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 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 ; 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.”. 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.”. 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.”. 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”. 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”. 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,”. 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.”. 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 .”. 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) ; PART 2 Amendment of Act of 1992 – CHAPTER 2 Integrated Pollution Prevention and Control Under Act of 1992 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: “PART IV Integrated Pollution Prevention and Control Licences. 82.—(1) In this section ‘previous Part IV’ means this Part as it had effect before the amendment of it by section 15 of the Protection of the Environment Act 2003 . (2) A person shall not carry on an activity, other than an established activity or an activity to which subsection (3) applies, unless a licence or revised licence under this Part is in force in relation to the activity. (3) ( a ) A person shall not continue to carry on an activity (other than an established activity) the carrying on of which— (i) commenced on or after 30 October 1999 but before the commencement of section 15 of the Protection of the Environment Act 2003 , and (ii) was not licensable under the previous Part IV but is licensable under this Part, unless, within the period of 6 months from the commencement of that section, a licence under this Part is in force in relation to it. ( b ) Paragraph ( a ) is without prejudice to paragraph ( c ). ( c ) The carrying on of an activity to which paragraph ( a ) relates shall, in the period before a licence in relation to the activity is granted or refused, be deemed not to have contravened the provisions of this Part provided that, within the period of 6 months referred to in paragraph ( a ), an application has been made for a licence in respect of that activity and the requirements of regulations made under section 89 in relation to the application for the licence have been complied with by the applicant therefor. (4) ( a ) The Minister may, by order, provide that an established activity of any class specified in the order shall not be carried on, on or after such date as may be specified in the order, unless a licence or revised licence under this Part is in force in relation to the activity. ( b ) Paragraph ( a ) is in addition to the circumstances specified in section 98 in which a licence is required under that section in respect of an established activity. (5) In the period (following the specification of a date by an order under subsection (4)) before a licence in relation to the established activity concerned is granted or refused, the requirements of any other legislation relevant to the activity shall continue to apply. (6) Notwithstanding the specification of a date by an order under subsection (4), the carrying on of an established activity to which the order relates shall, in the period before a licence in relation to the activity is granted or refused, be deemed not to have contravened the provisions of this Part provided that, before that specified date, an application has been made for a licence in respect of that activity and the requirements of regulations made under section 89 in relation to the application for the licence have been complied with by the applicant therefor. (7) Every licence and revised licence granted under the previous Part IV and in force immediately before the commencement of section 15 of the Protection of the Environment Act 2003 shall, without prejudice to subsections (10) and (11), section 92 and the other provisions of this Act, continue in force; for the avoidance of doubt, the provisions of this Part, and not of the previous Part IV, shall apply to such a licence. (8) Every application made under the previous Part IV for a licence, or the review of a licence or a revised licence, and every review of a licence or a revised licence commenced by the Agency of its own volition under the said Part IV, and not finally dealt with and determined or completed before the commencement of section 15 of the Protection of the Environment Act 2003 , shall continue to be dealt with by the Agency, and be determined or completed by it, as if the application were an application for a licence, or the review of a licence or a revised licence under this Part or, as the case may be, the review were a review commenced by the Agency of its own volition under this Part. (9) Every order made under subsection (2) (being subsection (2) of this section as it had effect in the previous Part IV) and in force immediately before the commencement of section 15 of the Protection of the Environment Act 2003 , shall continue in force as if it were an order made under subsection (4). (10) The Agency shall, not later than 30 September 2007, have done the following (which, by virtue of this subsection, it has power to do)— ( a ) examined the terms of every licence and revised licence to which subsection (7) applies and for the time being in force and determined whether, having regard to the provisions of the Directive and subsection (11), the licence or revised licence requires to be reviewed under this Part or be the subject of the exercise of the powers conferred by subsection (11), and ( b ) if— (i) it has determined that the licence or revised licence requires to be so reviewed, commenced such a review and exercised the powers conferred on it by this Part consequent on such a review, or (ii) it has determined that the licence or revised licence does not require to be so reviewed and subsection (11) does not apply and, accordingly, that no further action is required, declared in writing that it is of that opinion. (11) If the bringing into conformity with the Directive of a licence or revised licence to which subsection (7) applies can, in the opinion of the Agency, be achieved by amending one or more of the conditions of the licence (and the making of those amendments will not significantly alter the character of the licence) then, unless the Agency considers it ought nevertheless, in the public interest or because of other special considerations, carry out the review and exercise the powers referred to in subsection (10)( b )(i) in relation to the licence, the Agency shall have made, not later than 30 September 2007, those amendments of the conditions of the licence or revised licence (which, by virtue of this subsection, it has power to do). Determination of applications for licences. 83.—(1) Where an application is made to the Agency in the prescribed manner for a licence under this Part it may, subject to section 99A and to compliance with any regulations under section 89, grant the licence subject to such conditions as it considers appropriate or refuse the application. (2) Unless it considers that it is unnecessary to do so, the Agency shall carry out or cause to be carried out such investigations as it thinks appropriate or as may be prescribed— ( a ) prior to, and for the purposes of determining, any application made to it under this Part, ( b ) as part of the review of a licence or revised licence commenced by the Agency under section 90, or ( c ) for the purposes of section 82(10) or (11), and may require the applicant or the licensee, as the case may be, to defray or contribute towards the cost of any such investigation. (3) In considering an application for a licence or a revised licence, or the review of a licence or a revised licence under this Part, the Agency shall have regard to— ( a ) any relevant air quality management plan under section 46 of the Air Pollution Act 1987 , or water quality management plan under section 15 of the Local Government (Water Pollution) Act 1977 , or waste management plan, ( b ) any relevant noise regulations under section 106, ( c ) any special control area order under section 39 of the Air Pollution Act 1987 , in operation in relation to the area concerned, ( d ) the policies and objectives of the Minister or the Government in relation to the prevention, elimination, limitation, abatement or reduction of emissions for the time being extant, ( e ) (i) the environmental impact statement (if any) submitted with the application, (ii) any submissions or observations made to the Agency in relation to the environmental impact statement, (iii) any further information or particulars submitted in relation to the environmental impact statement in compliance with a notice given under regulations under section 89, and (iv) where appropriate, the comments of other Member States of the European Communities in relation to the effects on the environment of the proposed activity, insofar as the statement, submissions, comments, observations, information or particulars relate to the effects on the environment of emissions from the activity, and ( f ) such other matters related to the prevention, elimination, limitation, abatement or reduction of emissions as it considers necessary. (4) ( a ) In granting a licence or revised licence, the Agency shall, subject to section 86(3), specify in the licence or the revised licence emission limit values for environmental pollutants likely to be emitted from the activity in significant quantities, having regard to their nature and their potential to transfer from one environmental medium to another. ( b ) The Minister may make regulations for the purposes of this subsection. ( c ) Without prejudice to the generality of paragraph ( b ), regulations under this subsection may specify the principal polluting substances to which the Agency is to have regard in fulfilling its duty under paragraph ( a ). (5) The Agency shall not grant a licence or revised licence for an activity— ( a ) unless it is satisfied that— (i) any emissions from the activity will not result in the contravention of any relevant air quality standard specified under section 50 of the Air Pollution Act 1987 , and will comply with any relevant emission limit value specified under section 51 of the Air Pollution Act 1987 , (ii) any emissions from the activity will comply with, or will not result in the contravention of, any relevant quality standard for waters, trade effluents and sewage effluents and standards in relation to treatment of such effluents prescribed under section 26 of the Local Government (Water Pollution) Act 1977 , (iii) any emissions from the activity or any premises, plant, methods, processes, operating procedures or other factors which affect such emissions will comply with, or will not result in the contravention of, any relevant standard including any standard for an environmental medium prescribed under regulations made under the European Communities Act 1972 , or under any other enactment, (iv) any noise from the activity will comply with, or will not result in the contravention of, any regulations under section 106, (v) any emissions from the activity will not cause significant environmental pollution, (vi) the best available techniques will be used to prevent or eliminate or, where that is not practicable, generally to reduce an emission from the activity, (vii) having regard to Part III of the Act of 1996, production of waste in the carrying on of the activity will be prevented or minimised or, where waste is produced, it will be recovered or, where that is not technically or economically possible, disposed of in a manner which will prevent or minimise any impact on the environment, (viii) energy will be used efficiently in the carrying on of the activity, (ix) necessary measures will be taken to prevent accidents in the carrying on of the activity and, where an accident occurs, to limit its consequences for the environment and, in so far as it does have such consequences, to remedy those consequences, (x) necessary measures will be taken upon the permanent cessation of the activity (including such a cessation resulting from the abandonment of the activity) to avoid any risk of environmental pollution and return the site of the activity to a satisfactory state, and (xi) the applicant or licensee or transferee, as the case may be, is a fit and proper person to hold a licence, and, where appropriate, the Agency shall attach conditions relating to the matters specified in the foregoing subparagraphs to the licence or revised licence, and ( b ) where an environmental quality standard requires stricter conditions to be attached to the licence or revised licence than would otherwise be determined by reference to best available techniques either— (i) without attaching to the licence or revised licence conditions of an appropriate kind for the purpose of that standard, or (ii) where— (I) the proposed licensee or the licensee proposes, for the purpose of that standard, to take steps that are different from those that would be required by the imposition of conditions under subparagraph (i), and (II) the Agency is satisfied that those steps, or those steps with such modifications of them as it considers appropriate, are appropriate for the purpose of that standard, without attaching conditions to the licence or revised licence requiring those steps, or those steps as so modified, to be taken. (6) The Agency may, before it does any of the following things, namely— ( a ) decides whether to— (i) grant a licence or a revised licence, or (ii) effect a transfer of a licence or a revised licence, or ( b ) completes a review of a licence or a revised licence, require the applicant for the licence, the licensee in the case of a review (whether commenced by the Agency of its own volition or not), or the proposed transferee, as the case may be, to— (i) furnish to it such particulars in respect of such matters affecting his ability to meet the financial commitments or liabilities that the Agency reasonably considers will be entered into or incurred by him in carrying on the activity to which the licence or revised licence relates or will relate, as the case may be, in accordance with the terms of the licence or in consequence of ceasing to carry on that activity as it may specify, and (ii) make, and furnish evidence of having so made, such financial provision as it may specify (which may include the entering into a bond or other form of security) as will, in the opinion of the Agency, be adequate to discharge the said financial commitments or liabilities. (7) A person who, pursuant to a requirement made of him under subsection (6), furnishes to the Agency any particulars or evidence which he knows to be false or misleading in a material respect shall be guilty of an offence. (8) The Minister may make regulations for the purpose of subsection (6). (9) Without prejudice to the generality of subsection (8), regulations under that subsection may specify by reference to the type of activity to which the licence or revised licence concerned relates or will relate— ( a ) the nature of the financial provision that the Agency may require a person to make under subsection (6)(ii), ( b ) the matters to be had regard to by the Agency in determining the amount of financial provision that it may require a person to make under subsection (6)(ii). (10) A person shall not be entitled solely by reason of a licence or revised licence under this Part to make, cause or permit an emission to any environmental medium. Provisions supplemental to, and consequential on, section 83. 84.—(1) Where a licence or revised licence is required under this Part in respect of an activity, a licence under— ( a ) Part III of the Air Pollution Act 1987 , ( b ) section 4 or 16 of the Local Government (Water Pollution) Act 1977 , or ( c ) section 171 of the Fisheries (Consolidation) Act 1959 , shall not be granted in relation to such activity. (2) Where a licence or revised licence has been granted under this Part in respect of an activity, a licence under— ( a ) Part III of the Air Pollution Act 1987 , ( b ) section 4 or 16 of the Local Government (Water Pollution) Act 1977 , or ( c ) section 171 of the Fisheries (Consolidation) Act 1959 , shall cease to have effect in relation to such activity. (3) It shall be a good defence— ( a ) to a prosecution for an offence under any enactment other than this Part, or ( b ) to proceedings under— (i) section 10 or 11 of the Local Government (Water Pollution) Act 1977 , (ii) section 20 of the Local Government (Water Pollution) (Amendment) Act 1990 , (iii) section 28, 28A or 28B of the Air Pollution Act 1987 , (iv) section 57 or 58 of the Act of 1996, or (v) section 99H, to prove that the act complained of is authorised by a licence or revised licence granted under this Part. (4) For the purpose of this Part, a person shall be regarded as a fit and proper person if— ( a ) neither that person nor any other relevant person has been convicted of an offence under this Act, the Act of 1996, the Local Government (Water Pollution) Acts 1977 and 1990 or the Air Pollution Act 1987 prescribed for the purposes of this subsection, ( b ) in the opinion of the Agency, that person or, as appropriate, any person or persons employed by him to direct or control the carrying on of the activity to which the licence or revised licence relates or will relate has or have the requisite technical knowledge or qualifications to carry on that activity in accordance with the licence or revised licence and the other requirements of this Act, and ( c ) in the opinion of the Agency, that person is likely to be in a position to meet any financial commitments or liabilities that the Agency reasonably considers have been, or will be entered into or incurred by him in carrying on the activity to which the licence or revised licence relates or will relate, as the case may be, in accordance with the terms thereof or in consequence of ceasing to carry on that activity. (5) The Agency may, if it considers it proper to do so in any particular case, regard a person as a fit and proper person for the purposes of this Part notwithstanding that that person or any other relevant person is not a person to whom subsection (4)( a ) applies. (6) The references in subsections (4) and (5) to a relevant person are references to a person whom the Agency determines to be relevant for the purposes of considering the application or review concerned having had regard to any criteria that the Minister by regulations provides it is to have regard to in determining such a matter. Transboundary environmental impacts. 85.—(1) Where— ( a ) an activity in respect of which an application for a licence or the review of a licence or a revised licence has been made to the Agency, or ( b ) an activity the subject of a licence or revised licence a review of which under section 90 the Agency proposes to conduct, is likely to have a significant adverse effect on the environment in another Member State of the European Communities, the Minister shall inform that other state of the application or the review. (2) Where another Member State of the European Communities requests the State to provide to it information in relation to an activity licensable under this Part which, in the opinion of the first-mentioned state, is likely to have a significant adverse effect on that state's environment, the Minister shall request the Agency to provide that state with information in relation to the activity. (3) Where it comes to the notice of the Agency that an activity or a proposed activity in another Member State of the European Communities is likely to have a significant adverse effect on the environment in the State, the Agency shall inform the Minister of the matter and, when requested to do so by him, assess the matter and advise the Minister of the effect on the environment in the State of that activity. (4) The Minister may by regulations— ( a ) provide for specified procedures to be followed, additional to those specified by or under any other provision of this Act, with respect to— (i) the determination of an application for a licence or for the review of a licence or a revised licence, and (ii) the review by the Agency, of its own volition, of a licence or a revised licence, where such licence relates to an activity emissions from which are likely to have a significant adverse effect on the environment in another Member State of the European Communities, ( b ) provide for specified procedures to be followed by persons in the State in circumstances where it comes to the notice of such persons that emissions from an activity in another Member State of the European Communities, being an activity the operation of which requires a permit under the Directive, are likely to have a significant adverse effect on the environment in the State. (5) Without prejudice to the generality of subsection (4), regulations under that subsection may make provision for the following— ( a ) in respect of an activity to which subsection (1) or (2) applies— (i) requiring the Agency to notify the Minister that the activity is being carried on or is proposed to be carried on; (ii) requiring the Agency to submit information to the Minister regarding the activity; (iii) requiring the Agency to provide information to the other state concerned, its competent authority for the purposes of the Directive (in this paragraph referred to as the ‘competent authority of that state’) or other persons in that state; (iv) requiring the Agency to consult with the competent authority of that state; (v) requiring the Agency to take into consideration any comments from the state concerned, the competent authority of that state or any person in that state; (vi) enabling the attachment of conditions to a licence or revised licence in order to reduce or eliminate the possible adverse effects on the environment of another Member State of the European Communities; (vii) extending the period in which a decision is to be made under this Act or any other step is to be taken; (viii) requiring the Agency to inform the other state concerned of the decision under this Act and to provide to it information in relation to the decision; ( b ) in respect of an activity to which subsection (3) applies— (i) requiring the Agency to request the competent authority, for the purposes of the Directive, of the other state concerned (in this paragraph referred to as the ‘competent authority of the other state concerned’) to provide to it information regarding the activity or proposed activity; (ii) requiring the Agency to consult with the competent authority of the other state concerned; (iii) requiring the Agency to publish notices in relation to information provided to it pursuant to a request referred to in subparagraph (i); (iv) requiring the Agency to invite comments in relation to information as aforesaid and to forward such comments to the competent authority of the other state concerned in relation to the activity or proposed activity; (v) enabling the Agency to make submissions or observations to the competent authority of the other state concerned in relation to the activity or proposed activity. (6) The Minister may by regulations provide that this section shall apply to a Member State of the EEA as it applies to a Member State of the European Communities. (7) In subsection (6) ‘Member State of the EEA’ means a state that is a contracting party to the Agreement on the European Economic Area signed at Oporto on the 2nd day of May, 1992, as amended for the time being. Conditions attached to a licence. 86.—(1) Without prejudice to the generality of section 83(1), conditions attached to a licence or revised licence granted under this Part— ( a ) shall— (i) in accordance with section 83(4) and subject to subsection (3), include emission limit values for environmental pollutants likely to be emitted from an activity in significant quantities, (ii) specify requirements for the purpose of minimising pollution, including minimising the occurrence of pollution over long distances or in the territory of other states, and to ensure a high level of protection for the environment as a whole, (iii) if necessary, specify requirements concerning protection of the soil and groundwater, and the management of waste generated by an activity, (iv) specify appropriate requirements for the purpose of monitoring emissions, including the taking and analysis of samples, the making of measurements in accordance with specified methodologies and frequencies, the evaluation of the results of such monitoring in accordance with specified procedures and the keeping of records and the furnishing of information to the Agency or to any other specified person in relation to such monitoring and evaluation (and such requirements may include a requirement that the licensee confirm whether or not he has complied with the conditions attached to the licence or revised licence and, if he has not complied with any such condition, a requirement that he indicate in what respect he has not complied with the condition), (v) specify the measures to be taken other than in the circumstances that prevail during normal operating circumstances and, in particular, measures to be taken if there is a breakdown of any plant or other equipment or procedures which may affect emissions from the activity, including measures to be taken in relation to start-up, shutdown, leaks, malfunctions or momentary stoppages, (vi) specify that the Agency is to be informed without delay of any incident or accident significantly affecting the environment, and (vii) specify the measures to be taken, including as appropriate the duration of such measures, on and following the permanent cessation of an activity (including such a cessation resulting from the abandonment of the activity); ( b ) may (to the extent that the matter is not provided for by a condition under paragraph ( a ))— (i) specify as appropriate the nature, composition, temperature, volume, level, rate, method of treatment and location of an emission, (ii) specify the periods during which an emission may, or may not, be made, (iii) specify limits to the effects of an emission, (iv) specify the concentration of an environmental pollutant in an environmental medium or a deposition or discharge rate which shall not be exceeded, (v) specify any matters relating to the design, construction or dimensions of pipes, chimneys, flues, stacks or other outlets through which an emission is to be made, (vi) specify the means (including the provision, operation, maintenance and supervision of plant and other facilities and the use of specified procedures or codes of practice) to be used for controlling an emission, (vii) specify requirements or limits in relation to the amount or composition of any substance produced by or utilised in the activity in any period, (viii) require the provision, operation and maintenance of meters, gauges, manholes, inspection chambers and other apparatus and other means for monitoring the nature, extent and effects of emissions, (ix) specify the type of fuel to be, or not to be, used, as the case may be, (x) specify measures to be taken after an emission, which is not in accordance with other conditions attached to the licence or revised licence, has taken place, (xi) specify requirements in relation to the recovery or disposal of waste arising from the activity on land other than land on which the installation is situate and whether in the ownership or occupation of the licensee or not (including requirements with respect to the furnishing of information to the Agency in relation to the land for the time being being used, or land proposed to be used, for the purpose of such recovery or disposal), (xii) require the making of payments to the Agency in relation to costs incurred in relation to determining whether there has been compliance with the conditions attached to the licence or revised licence or not and in relation to steps taken for the purpose of the monitoring of, or otherwise in relation to, emissions, (xiii) require the payment to the Agency of a charge or charges prescribed under or calculated in accordance with section 99, (xiv) require the payment to the sanitary authority concerned of a charge in relation to a discharge to a sewer as provided for under section 99E, (xv) specify such other conditions or requirements, including requirements in relation to environmental management systems, which the Agency considers necessary for the purposes of the Directive, (xvi) specify the latest date by which a condition attached to the licence or revised licence is to be complied with, (xvii) provide for derogations of a temporary nature from the requirements of subsections (1)( a )(ii) and (3)( c ) if a rehabilitation plan, submitted to and approved by the Agency, is implemented in order to ensure that the said requirements will be complied with within 6 months from the date of its first being implemented and the plan will lead to a reduction of emissions, (xviii) specify, in cases where there are likely to be significant emissions to the environment, appropriate requirements for the purpose of monitoring the ambient environment, including the taking and analysis of samples, the making of measurements in accordance with specified methodologies and frequencies, the evaluation of the results of such monitoring in accordance with specified procedures and the keeping of records and the furnishing of information to the Agency or to any other specified person in relation to such monitoring and evaluation. (2) In determining the conditions to be attached to a licence or a revised licence in respect of an activity to which paragraph 6.1 or 6.2 of the First Schedule applies, the Agency shall— ( a ) for the purposes of subsection (1)( a )(i), take account of practical considerations appropriate to that activity, ( b ) for the purposes of subsection (1)( a )(iv), take account of costs and benefits. (3) ( a ) Emission limit values for substances shall, save where the Agency directs otherwise, apply at the point where the emissions leave the installation where the activity is being carried on, any dilution being disregarded in making any determination of them. ( b ) Emission limit values may, where appropriate, be supplemented or replaced by equivalent parameters or technical measures. ( c ) Without prejudice to section 83(5)( b ), emission limit values, and equivalent parameters and technical measures shall be based on the best available techniques, without specifying the use of any technique or specific technology, but taking into account the technical characteristics of the activity concerned, its geographical location and the local environmental conditions. (4) Without prejudice to section 83(5)( b ), the Minister may by regulations, after consultation with any other Minister of the Government who, in the opinion of the Minister, is concerned and the Agency— ( a ) require either— (i) the Agency, in the exercise of its powers under this Part, to attach, or (ii) the Agency, in the exercise of those powers, to consider the attachment of, the conditions referred to in subparagraph (i) or (ii), as appropriate, of paragraph ( b ) to a licence or a revised licence granted by it in respect of a specified class or classes of activity (and, accordingly, such conditions shall or may, as appropriate, be attached in place of the conditions that could otherwise be attached in accordance with the preceding provisions of this section), ( b ) specify the conditions that are to be the subject of— (i) the requirement under paragraph ( a )(i), and (ii) the requirement under paragraph ( a )(ii), and, in each case, those conditions shall comply with Article 9(8) of the Directive, ( c ) provide for any matters consequential on, or incidental to, the foregoing, ( d ) in addition to conditions that may be, or are required to be, attached to a licence or revised licence by reason of the foregoing or any other provision of this Part, enable the Agency to attach to a licence or revised licence in respect of a specified class or classes of activity such conditions as the Agency considers appropriate in the circumstances. (5) Nothing in subsection (4) shall be construed as enabling the Minister to exercise any power or control in relation to the performance by the Agency, with respect to a particular licence, of its functions under this Part. (6) A person who fails to comply with any condition attached to a licence or revised licence shall be guilty of an offence. (7) The Agency, or the sanitary authority, as the case may be, may recover the amount of any payment due to it arising from a condition attached to a licence or revised licence as a simple contract debt in any court of competent jurisdiction. (8) Where a permission under section 34 of the Act of 2000 has been granted or an application has been made for such permission in relation to development comprising or for the purposes of an activity, the Agency— ( a ) may consult with the planning authority in whose functional area the activity is or will be situate in relation to any development which is necessary to give effect to any conditions to be attached to a licence or revised licence and which the Agency considers is not the subject of a permission or an application for a permission under section 34 of the Act of 2000, and ( b ) may attach to the licence or revised licence such conditions related to the above-mentioned development as may be specified by the planning authority for the purposes of the proper planning and sustainable development of the area or stricter conditions as the Agency may consider necessary for the prevention, limitation, elimination, abatement or reduction of emissions. (9) Where a planning authority is consulted in accordance with subsection (8)( a ), the Agency may specify a period (which period shall not in any case be less than 3 weeks from the date of the request) within which observations must be made. (10) The Agency may, at any time after expiration of the period specified by it under subsection (9) for making observations, make its decision on the application or review. (11) Notwithstanding the requirements of Part III of the Act of 2000, works consisting of, or incidental to, the carrying out of development referred to in paragraph ( a ) of subsection (8) in respect of which conditions have been attached under paragraph ( b ) of that subsection to the licence or revised licence concerned shall be exempted development within the meaning, and for the purposes, of the Act of 2000. Processing of applications for licences or reviews of licences. 87.—(1) Without prejudice to the requirements of any regulations under section 85 or 89— ( a ) where an applications is to be made to the Agency for a licence under section 83, or the review of a licence or a revised licence under section 90, the applicant shall notify in writing the planning authority in whose functional area the activity is or will be situate and such other person (if any) as may be prescribed, and shall publish or give such notices as may be prescribed under section 89, and ( b ) where the Agency proposes to review a licence or revised licence under section 90 of its own volition, it shall publish or give such notice as may be prescribed under section 89, and shall notify in writing the licensee and the planning authority in whose functional area the activity is situate and such other person (if any) as may be prescribed, of its intention to review the licence or revised licence. (2) Before making its decision under section 83 on an application for a licence, or under section 90 on the review of a licence or revised licence (including such a review conducted by it of its own volition), the Agency shall notify— ( a ) the planning authority in whose functional area the activity is or will be situate, ( b ) the applicant or the licensee, as the case may be, ( c ) any person who made a written submission in relation to the application or the review, and ( d ) such other persons as may be prescribed, and that notification shall indicate the manner in which the Agency proposes to determine the application or the review and, where it is proposed to grant a licence or revised licence, specify where a copy of the proposed licence or proposed revised licence may be obtained. (3) A notification provided for under subsection (2) shall, without prejudice to the requirements of any regulations under section 85, be given within the period of 8 weeks beginning on the date of receipt by the Agency of the application for a licence under section 83 or for the review of a licence or revised licence under section 90 or, in the case of a review of a licence by the Agency under section 90 of its own volition— ( a ) unless paragraph ( b ) applies, on the date of publication of the notice under subsection (1)( b ), in relation to the review, ( b ) if the Agency has required under section 90(7) documents, particulars or other information to be furnished, on the date on which that requirement is complied with or, if that requirement is not complied with within the period specified in the requirement in that behalf, on the date immediately following the expiry of that period. (4) The Agency shall, in relation to an application for a licence, or the review of a licence or revised licence— ( a ) in case no objection is taken against the proposed determination as indicated under subsection (2), or ( b ) in case an objection or objections is or are taken against the proposed determination as indicated under subsection (2) and the objection or objections is or are withdrawn, make its decision in accordance with the proposed determination as indicated under subsection (2) and, where it is proposed to grant a licence or revised licence, grant the licence or revised licence as soon as may be after the expiration of the appropriate period. (5) Any person may, subject to compliance with the requirements of any regulations under sections 89 and 99A at any time before the expiration of the appropriate period, object to the proposed determination as indicated under subsection (2), and shall include with the objection the grounds for the objection. (6) ( a ) A person making an objection under subsection (5) may request an oral hearing of the objection. ( b ) (i) A request for an oral hearing of an objection shall be made in writing to the Agency and shall be accompanied by such fee (if any) as may be payable in respect of such request in accordance with regulations under section 99A. (ii) A request for an oral hearing of an objection which is not accompanied by such fee (if any) as may be payable in respect of such request shall not be considered by the Agency. ( c ) A request for an oral hearing of an objection shall be made before the expiration of the appropriate period, and any request received by the Agency after the expiration of that period shall not be considered by it. (7) An objection, or a request for an oral hearing under subsection (6), shall be made— ( a ) by sending the objection or request by prepaid post to the headquarters of the Agency, or ( b ) by leaving the objection or request with an employee of the Agency, at the headquarters of the Agency, during office hours, or ( c ) by such other means as may be prescribed. (8) ( a ) Where a request for an oral hearing of an objection is made in accordance with subsection (7), or otherwise where an objection has been made, the Agency shall have an absolute discretion to hold an oral hearing in relation to the objection and the related matters and, if it decides to hold such a hearing, it shall give notice in writing of that decision to— (i) the applicant, or in the case of a review, the licensee, (ii) the local authority in whose functional area the activity the subject matter of a licence application or review will be or is situate, (iii) any person who requested an oral hearing, and (iv) such other person as may be prescribed. ( b ) Where the Agency decides not to hold an oral hearing under this subsection, it shall give notice in writing of its decision and of the reasons for the decision to the person who requested the oral hearing. (9) It shall be a duty of the Agency to ensure that a decision by it to hold an oral hearing, and a decision by it on the application for a licence or on the review referred to in subsection (2) of a licence or revised licence whether or not an oral hearing has been held, shall be given as expeditiously as may be and for that purpose the Agency shall take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the consideration of objections. (10) A person shall not by any application for judicial review or in any other legal proceedings whatsoever question the validity of a decision of the Agency to grant or refuse a licence or revised licence (including a decision of it to grant or not to grant such a licence on foot of a review conducted by it of its own volition) unless the proceedings are instituted within the period of 8 weeks beginning on the date on which the licence or revised licence is granted or the date on which the decision to refuse or not to grant the licence or revised licence is made. (11) The