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7 1992

ENVIRONMENTAL PROTECTION AGENCY ACT, 1992

PART I

Preliminary and General

Short title.

1. —This Act may be cited as the Environmental Protection Agency Act, 1992.

Commencement.

2. —(1) Part I (other than section 18 (1)), Part II (other than section 43 ), Part III , Part IV (other than section 93 ) and Part VI will come into operation on the passing of this Act.

(2) The remaining provisions of this Act shall come into operation on such day or days as may be fixed therefor by any order or orders of the Minister, either generally or with reference to any particular purpose or provision or with reference to a particular area or areas, and different days may be so fixed for different purposes and different provisions of this Act and for different areas.

Interpretation.

3. —(1) In this Act, unless the context otherwise requires—

activity” means any process, development or operation specified in the First Schedule ;

the Act of 1963” means the Local Government (Planning and Development) Act, 1963;

authorised person” means a person who is—

(a) appointed in writing by a Minister, a local authority or the Agency or by such other person or body as may be prescribed, as the case may be, to be an authorised person for the purposes of this Act or any Part or section thereof, or

(b) appointed in writing to be an authorised person pursuant to regulations under this Act by a person specified in those regulations;

development” has the meaning assigned to it by section 3 of the Act of 1963;

disposal”, in relation to waste, includes the collection, sorting, carriage, treatment, storage and tipping above or under ground, and the transformation operations necessary for its recovery, reuse or recycling;

emission” means—

(a) an emission into the atmosphere of a pollutant within the meaning of the Air Pollution Act, 1987 ,

(b) 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,

(c) the disposal of waste, or

(d) noise;

employee of the Agency” does not include the Director General or other director of the Agency;

enactment” includes any instrument made under an enactment;

environmental medium”, “environmental pollution” and “environmental protection” have the meanings respectively assigned to them by section 4 ;

established activity” means an activity—

(a) in respect of which a permission under Part IV of the Act of 1963 is granted prior to such day (in this paragraph and in paragraph (b) referred to as “the relevant day”) as may be prescribed by the Minister and which on the relevant day has not ceased to have effect, in accordance with the provisions of sections 2 and 4 of the Local Government (Planning and Development) Act, 1982 , or

(b) which is, on the day immediately prior to the relevant day, or was, at any time during the period of twelve months ending on the day immediately prior to the relevant day, carried on, other than an activity which involves or is associated with an unauthorised structure or an unauthorised use within the meaning of the Act of 1963;

functions” includes powers and duties;

local authority” means—

(a) in the case of the administrative county of Dublin, other than the borough of Dún Laoghaire, the council of the county of Dublin,

(b) in the case of the borough of Dún Laoghaire, the corporation of the borough,

(c) in the case of a county borough, the corporation of the county borough, and

(d) in the case of any other administrative county, the council of the county,

and references to the functional area of a local authority shall be construed accordingly;

the Minister” means the Minister for the Environment;

monitoring” includes the inspection, measurement, sampling or analysis for the purposes of this Act of any emission, or of any environmental medium in any locality, whether periodically or continuously;

noise” includes vibration;

occupier”, in relation to any premises, includes the owner, a lessee, any person entitled to occupy the premises and any other person having, for the time being, control of the premises;

person in charge” includes an occupier of a premises or a manager, supervisor or operator of an activity;

planning authority” has the meaning assigned to it by the Act of 1963;

plant” includes any equipment, appliance, apparatus, machinery, works, building or other structure or any land or any part of any land which is used for the purposes of, or incidental to, any activity specified in the First Schedule ;

premises” includes any messuage, building, vessel, structure or land (whether or not there are structures on the land or whether or not the land is covered with water) or any hereditament of any tenure, together with any out-buildings and curtilage;

prescribed” means prescribed by regulations made by the Minister;

public authority” means—

(a) a Minister of the Government,

(b) the Commissioners of Public Works in Ireland,

(c) a local authority for the purposes of the Local Government Act, 1941 ,

(d) a harbour authority within the meaning of the Harbours Act, 1946 ,

(e) a health board established under the Health Act, 1970 ,

(f) a board or other body established by or under statute,

(g) a company in which all the shares are held by, or on behalf of, or by directors appointed by, a Minister of the Government, or

(h) a company in which all the shares are held by a board, company, or other body referred to in paragraph (f) or (g) of this definition;

public place” includes any place to which the public have access, whether by right or by permission, or whether subject to, or free of charge;

sanitary authority” means a sanitary authority for the purposes of the Local Government (Sanitary Services) Acts, 1878 to 1964;

statutory undertaker” has the meaning assigned to it by the Act of 1963;

vessel” means a waterborne craft of any type, whether self propelled or not, and includes an air cushion craft and any structure in or on water;

waste management plan” means a waste plan prepared under Article 4 (2) of the European Communities (Waste) Regulations, 1979, or a special waste plan within the meaning assigned to it under the European Communities (Toxic and Dangerous Waste) Regulations, 1982;

works”, in relation to sections 90 , 106 and 107 , has the meaning assigned to it by the Act of 1963.

(2) In this Act a reference to a section, Part or Schedule, is a reference to a section, Part or Schedule of this Act, unless there is an indication that a reference to any other enactment is intended.

(3) In this Act a reference to a subsection, paragraph or subparagraph is a reference to the subsection, paragraph or subparagraph of the provision in which the reference occurs, unless there is an indication that a reference to some other provision is intended.

(4) In this Act a reference to any enactment shall be construed as a reference to that enactment as amended or adapted by or under any subsequent enactment.

(5) This Act applies, inter alia, to activities operated by or in the charge of the State.

Environmental protection, environmental pollution and environmental medium.

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.

(2) In this Act “environmental pollution” means—

(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) the disposal of waste in a manner which would endanger human health or harm the environment and, in particular—

(i) create a risk to waters, the atmosphere, land, soil, plants or animals,

(ii) cause a nuisance through noise or odours, or

(iii) adversely affect the countryside or places of special interest,

or

(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, land, soil and waters;

waters” has the meaning assigned to it by the Local Government (Water Pollution) Act, 1977 .

Best available technology not entailing excessive costs.

5. —(1) Subject to subsection (3), a reference in this Act to the use of the best available technology not entailing excessive costs to prevent or eliminate, or where that is not practicable, to limit, abate or reduce an emission from an activity, shall be construed as meaning the provision and proper maintenance, use, operation and supervision of facilities which, having regard to all the circumstances, are the most suitable for the purposes.

(2) For the purposes of subsection (1), regard shall be had to—

(a) in the case of an activity other than an established activity—

(i) the current state of technical knowledge,

(ii) the requirements of environmental protection, and

(iii) the application of measures for these purposes, which do not entail excessive costs, having regard to the risk of significant environmental pollution which, in the opinion of the Agency, or any other licensing authority in relation to section 111 , exists;

(b) in any other case, in addition to the matters specified in paragraph (a)

(i) the nature, extent and effect of the emission concerned,

(ii) the nature and age of the existing facilities connected with the activity and the period during which the facilities are likely to be used or to continue in operation, and

(iii) the costs which would be incurred in improving or replacing the facilities referred to in subparagraph (ii) in relation to the economic situation of activities of the class concerned.

(3) (a) The Agency may, from time to time as occasion demands, specify the best available technology not entailing excessive costs for preventing, limiting, eliminating, abating or reducing such emissions as may be specified either from 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.

(b) Where the Agency specifies the best available technology not entailing excessive costs in relation to an emission from an activity as provided for in paragraph (a), a direction issued under section 5 (3) of the Air Pollution Act, 1987 , related to such emission shall cease to have effect in relation to such emission.

(4) Whenever the Agency issues a specification under subsection (3), it shall cause, as soon as may be—

(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 issue of the specification to be published in Iris Oifigiúil and

(c) 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 the copy.

(5) Section 5 of the Air Pollution Act, 1987 , is hereby amended by the insertion of the following subsection after subsection (4):

“(4A) Directions under subsection (3) shall not be issued in relation to an activity for the purposes of the Environmental Protection Agency Act, 1992, or in relation to any process, development or operation as regards which an order has been made, and remains in force, under section 95 of the said Act.”.

(6) In this section—

facilities” includes plant and premises;

an emission from an activity” includes a release of a genetically modified organism as defined in section 111 ;

activity” includes any process or action involving a genetically modified organism.

Regulations.

6. —(1) The Minister may make regulations prescribing any matter or thing which is referred to in this Act as prescribed or to be prescribed or in relation to any matter referred to in this Act as the subject of regulations or for the purpose of giving full effect to this Act.

(2) Regulations made under this Act may make different provisions in relation to different areas, different circumstances and different classes of cases.

(3) Every regulation made under this Act shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the regulation is passed by either such House within the next twenty-one days on which that House has sat after the regulation is laid before it, the regulation shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

Orders.

7. —(1) The Minister may, by order, revoke or amend any order made by him under this Act, other than an order under section 2 , 19 (2) or 32 (1).

(2) The Minister may, by order, after consultation with the Agency, revoke or amend the First Schedule or the Second Schedule .

(3) Where it is proposed to make an order under subsection (2) or under section 21 (6) (a), 100 , 101 or 102 a draft of the order shall be laid before each House of the Oireachtas and the order shall not be made until a resolution approving of the draft has been passed by each such House.

(4) Every order made under this Act, other than an order made under subsection (2) or (3), shall be laid before each House of the Oireachtas as soon as may be after it is made.

Offences.

8. —(1) Any person who contravenes any provision of this Act or of any regulation made under this Act or of any order made under this Act or of any notice served under this Act shall be guilty of an offence.

(2) Where an offence under this Act is committed by a body corporate or by a person acting on behalf of a body corporate and is proved to have been so committed with the consent, connivance or approval of, or to have been facilitated by any neglect on the part of any director, manager, secretary or any other officer of such body, such person shall also be guilty of an offence.

(3) In this section, a reference to the contravention of a provision includes, where appropriate, a reference to a refusal, or a failure, to comply with that provision.

Penalties.

9. —(1) A person guilty of an offence under this Act shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000, or to imprisonment for any term not exceeding twelve months or, at the discretion of the court, to both such fine and such imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £10,000,000 or to imprisonment for a term not exceeding ten years or, at the discretion of the court, to both such fine and such imprisonment.

(2) In imposing any penalty under subsection (1) the court shall, in particular, have regard to the risk or extent of damage to the environment arising from the act or omission constituting the offence.

(3) Where a person, after conviction of an offence under this Act, continues to contravene the provision, he shall be guilty of an offence on every day on which the contravention continues and for each such offence he shall be liable to a fine, on summary conviction, not exceeding £200 or, on conviction on indictment, not exceeding £100,000.

Payment of certain fines to Agency.

10. —Where a court imposes a fine or affirms or varies a fine imposed by another court for an offence under this Act, prosecuted by the Agency, it shall, on the application of the Agency (made before the time of such imposition, affirmation or variation), provide by order for the payment of the amount of the fine to the Agency and such payment may be enforced by the Agency, as if it were due to it on foot of a decree or order made by the court in civil proceedings.

Prosecution of offences.

11. —(1) An offence under this Act may be prosecuted summarily by the Agency.

(2) Notwithstanding subsection (1), the Minister may, by regulations, provide that an offence under this Act, specified in the regulations, may be prosecuted summarily by such person (including the Minister) as may be so specified.

(3) Notwithstanding the provisions of section 10 (4) of the Petty Sessions (Ireland) Act, 1851, summary proceedings for an offence under this Act may be commenced—

(a) at any time within twelve months from the date on which the offence was committed, or

(b) at any time within six months from the date on which evidence sufficient, in the opinion of the person by whom the proceedings are initiated, to justify the proceedings, comes to such person's knowledge,

whichever is the later: provided that no such proceedings shall be initiated later than five years from the date on which the offence concerned was committed.

(4) For the purposes of this section, a certificate signed by or on behalf of the person initiating the proceedings as to the date on which evidence relating to the offence came to his knowledge shall be prima facie evidence thereof and in any legal proceedings a document purporting to be a certificate issued for the purposes of this subsection and to be so signed shall be deemed to be so signed and shall be admitted as evidence without proof of the signature of the person purporting to sign the certificate, unless the contrary is shown.

Cost of prosecutions.

12. —Where a person is convicted of an offence under this Act committed after the commencement of this section, the court shall, unless it is satisfied that there are special and substantial reasons for not so doing, order the person to pay to the Agency the costs and expenses, measured by the court, incurred by the Agency in relation to the investigation, detection and prosecution of the offence, including costs and expenses incurred in the taking of samples, the carrying out of tests, examinations and analyses and in respect of the remuneration and other expenses of directors, employees, consultants and advisers.

Powers of authorised person.

13. —(1) An authorised person shall, for any purpose connected with this Act, be entitled, at all reasonable times, to enter any premises and to bring therein such other persons (including members of the Garda Síochána) or equipment as he may consider necessary for the purpose.

(2) Subject to subsection (6), an authorised person shall not, other than with the consent of the occupier, enter into a private dwelling unless he has given to the occupier of the dwelling not less than 24 hours notice in writing of his intended entry.

(3) Every authorised person shall be furnished with a certificate of his appointment and, when exercising any power conferred on him by or under this Act, the authorised person shall, if requested by any person affected, produce the certificate to that person.

(4) Whenever an authorised person enters any premises pursuant to this section, he may therein—

(a) make such plans, take such photographs and carry out such inspections,

(b) make such tests and take such samples,

(c) require from the occupier of the premises or any person employed on the premises or from any other person on the premises such information, or

(d) inspect such plant, vehicles, records and documents,

as he, having regard to all the circumstances, considers necessary for the purposes of, and exercising any power conferred on him by or under, this Act.

(5) Any person who—

(a) refuses to allow an authorised person to enter any premises or to take any person or equipment with him in the exercise of his powers under this section,

(b) obstructs or impedes an authorised person in the exercise of any of the powers conferred on him by this section,

(c) gives, either to an authorised person or to the Agency, information which is false or misleading in a material respect, or

(d) fails or refuses to comply with any requirement of this section,

shall be guilty of an offence.

(6) Where an authorised person in the exercise of his powers under this section is prevented from entering any premises, or where he has reason to believe that evidence related to a suspected offence under this Act may be removed or destroyed, the authorised person or the person by whom he was appointed may apply to the District Court for a warrant authorising such entry.

(7) The Minister may make regulations for the purposes of this section.

(8) Without prejudice to the generality of subsection (7), regulations under this section may provide for all or any of the following matters—

(a) the taking of samples and the carrying out of tests, examinations and analyses,

(b) the specification of the classes of persons to be responsible for taking such samples and for the carrying out of such tests, examinations and analyses, or

(c) the specification of the certificate or other evidence to be given of the result of any such test, examination or analysis and the class or classes of person by whom such certificate or evidence is to be given.

(9) Any certificate or other evidence given or to be given in respect of any prescribed test, examination or analysis of any sample shall in relation to that sample be evidence, without further proof, of the result of the test, examination or analysis unless the contrary is shown.

Service of notices.

14. —(1) Any notice required to be served or given by or under this Act shall be addressed to the person concerned and served or given in one of the following ways—

(a) by addressing it to him by name and delivering it to him,

(b) by leaving it at the address at which he ordinarily resides,

(c) by sending it by post in a prepaid registered letter addressed to him at the address at which he ordinarily resides,

(d) if an address for the service of notices has been furnished by him, by leaving it at, or sending it by prepaid registered post addressed to him to, that address, or

(e) where the address at which he ordinarily resides cannot be ascertained by reasonable inquiry and notice is required to be served on, or given to, him in respect of any premises, process, works or development, by delivering it to a person over the age of 16 years employed thereon or resident in the premises, or by affixing it in a conspicuous position on or near the premises, process, works or development.

(2) Where the name of the person concerned cannot be ascertained by reasonable inquiry, a notice under this Act may be addressed to “the occupier”, “the owner” or “the person in charge”, as the case may be.

(3) For the purposes of this section, a company registered under the Companies Acts, 1963 to 1990, shall be deemed to be ordinarily resident at its registered office, and every other body corporate and every unincorporated body shall be deemed to be ordinarily resident at its principal office or place of business.

(4) A person shall not at any time during the period of three months after a notice is affixed under subsection (1) (e) remove, damage or deface the notice without lawful authority.

Immunity of Agency.

15. —No action or other proceedings shall lie or be maintainable against the Agency or any body referred to in section 44 or 45 for the recovery of damages in respect of any injury to persons, damage to property or other loss alleged to have been caused or contributed to by a failure to perform or to comply with any of the functions conferred on the said Agency or body.

Indemnification of Director General, directors and other persons.

16. —Where the Agency is satisfied that the Director General or other director or authorised person appointed by the Agency, or any other employee of the Agency has discharged his duties in relation to the enforcement of the relevant statutory provisions in a bona fide manner, it shall indemnify the Director General or other director or authorised person of the Agency or any other employee of the Agency, against all actions or claims howsoever arising in respect of the discharge by him of his duties.

Expenses of Minister.

17. —The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

Amendment of Act of 1963 and Air Pollution Act, 1987.

18. —(1) Section 51 of the Act of 1963 is hereby repealed.

(2) The Air Pollution Act, 1987 , is hereby amended as provided for in the Third Schedule .