Environmental Protection (Miscellaneous Provisions) Bill 2024

On 11 June 2024, the Government approved the General Scheme of the Environment (Miscellaneous Provisions) Bill 2024.

This bill is intended to make amendments to the Environmental Protection Agency Act 1992 ("the 1992 Act"), the Waste Management Act 1996 ("the 1996 Act") and the Circular Economy and Miscellaneous Provisions Act 2022. The purpose of the Bill is to provide more flexibility to the Environmental Protection Agency ("the Agency") to efficiently regulate lower risk activities and minor changes to licences.

The Bill aims to change the regulations surrounding licensing applications. The Bill proposes a new procedure by which the Agency may, in exceptional circumstances, grant an exemption from the requirements of the Environmental Impact Assessment ("EIA") Directive. The Applicant may request the Agency to grant an exemption where the application of those requirements would adversely affect the purpose of the development, and the objectives of that Directive can be achieved by other means. This provision is in keeping with and provided for under Article 2(4) of the EIA Directive. The procedure requires notice to be given to the public, any state party to the Transboundary Convention concerned with the development and the European Commission.

The Bill seeks to introduce a stand-alone definition for emergency licence applications. It is intended that the Agency can deal with an emergency application in a different manner to an application for a licence as defined at Section 83(2A) of the 1992 Act.

An Amendment to section 83 of the Act of 1992 will oblige the Agency to reach a decision on an emergency application within a set timeframe. The Agency will also have to detail in their Annual Report the number of decisions they made within and outside of those time frames. By providing definite timeframes for licensing decisions, the Bill's aim is to ensure timely approvals or rejections.

The timelines proposed are as follows:

• Where the application for a licence is made at the same time as an application for planning consent, a 26 week period is being proposed after the planning permission has been granted and the time for appeal has elapsed. Where the appeal has been submitted, 26 weeks after that appeal decision has been made and the time for judicial review has expired.
• Where the application for a licence is made post planning process then the timeframe proposed is 52 weeks after the planning permission has been granted and the time for appeal has elapsed. Where an appeal has been submitted 52 weeks after that appeal decision has been made and the time for judicial review has expired.
• A period of 16 weeks is being proposed for limited licence reviews where planning is not required (limited licence reviews are not permissible where EIA is required)."

These statutory timelines require the Agency make a final determination on a licence application including an application for review or revised licence.

The proposed Act would also introduce a provision to enable the Agency to set out general binding rules that apply to any person that performs an activity requiring a licence under Part IV. Where general binding rules apply the applicant would not be required to seek a licence to perform the activity but would be required to register specific details of the activity with the Agency. This would be based on risk and there may be some exemptions.

The current statutory regime does not allow the Agency to carry out a limited type of review. By virtue of its absence the Agency, has taken the view that any change may have a cumulative impact on emissions and that therefore, a full review of the site must be undertaken. The Bill aims to fill this gap in the legislation by allowing the Agency to limit its review of a licence when it receives an application.

The Bill also inserts a new provision to enable the Agency to expand its consultation as it sees fit to include a planning authority and other persons for alterations to waste licences. Introducing enabling provisions for the Agency to recognise and grant a derogation from EIA in emergency circumstances within the context of Articles 1(3) and 2(4) of the EIA Directive.

Importantly, the legislation does not propose to change the current environmental assessment process and the Agency will remain a competent authority for the purpose of the EIA Directive and the Habitats Directive. It is expected that the provisions in the Bill will enable the Agency to be more efficient and effective in its determinations by providing reduced timelines for decision making and providing for limited reviews in certain circumstances.

The proposed legislation will have considerable impact on resources at the Agency by introducing deadlines, this is estimated to cost an additional €7 million a year. However, the impacts are expected to be positive as there will be a more coordinated approach across the planning authorities, An Bord Pleanála and the Agency^.1

The Bill is currently undergoing the legislative scrutiny process, and there is an outside timeframe of 12 months for the Dail and Seanad to enact a Bill. 

¹ Regulatory Impact Analysis (RIA) , www.gov.ie/pdf/?file=https://assets.gov.ie/296133/80a0974c-9f18-4514-b711-0eb57654c21a.pdf#page=null

Written by: Jonathan Moore and Niamh McDonnell