President Obama Speaks to Environmental Protection Agency Staff
The Environmental Protection Agency
Introduction
The Environmental Protection Agency Act 1992 (the Act) provided for the establishment of the Environmental Protection Agency (the Agency). The Act was amended by the Protection of the Environment Act 2003 (the 2003 Act).
Definitions
Section 3(1) of the Act (as amended by the 2003 Act) contains a number of important definitions, including the following:
An ‘activity’ means: any process, development or operation specified in the First Schedule and carried out in an installation.
An ‘authorized person’ is:
(a) A person who is appointed in writing by a Minister, a local authority, the Agency, or by such other person as may be prescribed to be an authorized person for the purposes of [the] Act or any Part or section thereof.
‘Development’ has the meaning assigned to it by s 3 of the Planning and Development Act 2000 (the 2000 Act). ‘Disposal’ has the meaning assigned to it in the Waste Management Act 1996 (the 1996 Act). An ‘emission’ 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 (the ‘Water Pollution Act 1977’) to waters or sewers within the meaning of that Act, or
(d) Waste. ‘Environmental protection’ is defined as including:
(a) The prevention, limitation, elimination, abatement or reduction of environmental pollution, and
(b) The preservation of the quality of the environment as a whole.
‘Environmental pollution’ 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 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, soil, plants or animals,
(ii) Create a nuisance through noise, odors’ or litter, 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.
‘Environmental medium’ is defined as including: the atmosphere, waters and land.
An ‘established activity’ means:
(a) An activity which on 29 October 1999, or such other date as may be prescribed in relation to the activity, was being carried on and did not involve or have an association with unauthorized development within the meaning of the 2000 Act, or
(b) An activity:
(i) In respect of which permission under section 34 of the 2000 Act has been granted, or an application for such permission had been made, before 30 October 1999, or such other date as may be prescribed in relation to the activity, and
(ii) Which on 29 October 2000, or such other date as may be prescribed in relation to that activity, was being carried on and did not involve or have an association with unauthorized development within the meaning of the 2000 Act.
The ‘Minister’ is defined as meaning the Minister for the Environment, Heritage and Local Government. An ‘occupier’ for the purposes of the Act, in relation to any premises includes: the owner, a lessee, any person entitled to occupy the installation or premises and any other person having, for the time being, control of the installation or premises.
The ‘person in charge’ includes: an occupier of an installation or premises or a manager, supervisor or operator of an activity.
‘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 message, building, vessel, structure or land (whether or not there are any 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.
A ‘public authority’ means:
(1) A Minister of the Government;
(2) The Commissioners of Public Works in Ireland;
(3) A local authority for the purposes of the Local Government Act 2001;
(4) A harbor authority within the meaning of the Harbours Act 1946;
(5) A health board, the Eastern Region Health Authority or an Area Health
Board established under the Health (Eastern Regional Health Authority) Act 1999;
(6) A board or other body (but not including a company under the Companies Acts 1963 to 2001) established by or under statute;
(7) A company under the Companies Acts 1963 to 2001, in which all the shares are held:
(i) By or on behalf of a Minister of the Government,
(ii) By directors appointed by a Minister of the Government, or
(iii) By a board or other body referred to in paragraph (6) or by a company to which subparagraph (i) or (ii) applies;
(8) Such other body as may be prescribed for the purposes of any provision of [this] Act.
A ‘sanitary authority’ means:
A sanitary authority for the purposes of the Local Government (Sanitary Services) Acts 1948 to 2001. A ‘waste management plan’ means a waste management plan or a hazardous waste management plan within the meaning of the 1996 Act, which is for the time being in force.
Definition of ‘best available techniques’
Section 5(1) of the Act, as amended by s 7 of the 2003 Act, provides that a reference 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 sustainability of particular techniques for providing, in principle, the basis for emission limit values designed to prevent or eliminate or, when that is not practicable, generally to reduce an emission and its impact on the environment as a whole.
Section 5(3)(a) of the Act provides that the Agency may, from time to time as occasion requires and shall in accordance with any regulations made by the Minister, specify the 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 to the administration of the Act to any such specifications.
Offences
Section 8(1) of the Act provides that any person, who contravenes any provision of the Act, or any regulation or order made under the Act, or any notice served under it, shall be guilty of an offence.
According to s 8(2), where an offence under the 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 be facilitated by any neglect on the part of any director, manager, secretary or any other officer of such body corporate, that person shall also be guilty of an offence.
Prosecution of offences
According to s 11(1) of the Act, an offence under the Act may be prosecuted summarily by the Agency.
By virtue of s 11(2), the Minister may, by regulations, provide that an offence under the Act, specified in the regulations, may be prosecuted summarily by such person (including the Minister) as may be so specified.
Section 11(3) states that summary proceedings for an offence under this Act, may be commenced:
(a) At any time within 12 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 that person’s knowledge, whichever is the later? However, no such proceedings shall be initiated later than five years from the date on which the offence in question was committed.
Costs of prosecutions
Section 12 of the Act provides that where a person is convicted of an offence under the Act committed after the commencement of the section, the court shall, unless it is satisfied that there are special and substantial reasons for not doing so, 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.
Establishment of the Agency
Part II of the Act deals with the establishment of the Agency and deals with matters such as its staff, consultants and advisors and its funding. Section 19(1) states that the Agency shall be established to perform the functions assigned to it by or under the Act. Section 19(2) provides that the Agency shall stand established on such day as the Minister appoints by order. According to s 19(3), the Agency shall consist of a Director General and four other directors.
Establishment of regional environmental units
The Agency is required by s 43(1) of the Act to establish such a number of regional environmental units as may be approved by the Minister and shall, as far as is practicable, arrange for the performance of its functions or particular functions through such units.
Agreements between the Agency and other public authorities
By virtue of s 45(1) of the Act, where the Agency is of the opinion that any function or any service which may be exercised or performed by it should be exercised or performed on its behalf, whether generally or in a particular case, by a public authority, and the public authority is able and willing to exercise or perform the function or service, the Agency and the public authority may enter into an agreement that the function or service shall be so exercised or performed on behalf of the Agency by the public authority.
Functions of the Agency
The functions of the Agency are set out in s 52(1). These include:
(a) The licensing, regulation and control of activities for the purposes of environmental protection;
(b) The monitoring of the quality of the environment, including the establishment and maintenance of databases of information related to the environment and making arrangements for dissemination and availability to the public of such information;
(c) The provision of support and advisory services for the purposes of environmental protection to local authorities and other public authorities;
(d) The promotion and co-ordination of environmental research and the carrying out, or arranging for such research;
(e) Liaising with the European Environment Agency; and
(f) Such other functions in relation to environmental protection as may be assigned or transferred to it by the Minister under s 53 or 54 of the Act, including functions arising from European Community obligations, or any other international convention or agreement to which the State is, or becomes a party.
The Agency is obliged by s 52(2), in carrying out these general functions, to have regard to the following environmental principles. It must:
(a) Keep itself informed of the policies and objectives of public authorities whose functions have, or may have, a bearing on matters with which the Agency is concerned;
(b) Have regard to the need for a high standard of environmental protection and the need to promote sustainable and environmentally sound development, processes or operations;
(c) Have regard to the need for precaution in relation to the potentially harmful effect of emissions, where there are, in the opinion of the Agency, reasonable grounds for believing that such emissions would cause significant environmental pollution;
(d) Have regard to the need to give effect, in so far as it is feasible, to the ‘polluter pays’ principle, as set out in the EC Recommendation 75/436/EURATOM, ECSC, EEC, regarding cost allocation and action by public authorities on environmental matters; and
(e) Ensure, in so far as is practicable, that a proper balance is achieved between the need to protect the environment (and the cost of such protection), and the need for infra-structural economic and social progress and development.
Assignment of additional functions
Section 53(1) of the Act gives the Minister power, following consultation with the Agency and with any other Minister of the Government who, in the opinion of the Minister is concerned, to make regulations assigning to the Agency, such additional functions in relation to environmental protection as, from time to time, he considers appropriate.
Transfer of functions
The Minister may, following consultation with the Agency, make regulations, pursuant to s 54(1) of the Act, providing that any function in respect of environmental protection conferred on a public authority under any enactment specified in the Second Schedule to the Act shall, where the Minister is satisfied that the function could be more effectively performed by the Agency, in addition to, or in lieu of, being performed by that public authority, be performed by the Agency with effect from the date specified in the regulations.
Advisory functions in relation to Ministers of the Government
According to s 55(1) of the Act, the Agency may, and must when requested by a Minister of the Government, give information or advice or make recommendations for the purposes of environmental protection to any such Minister on any matter in relation to his functions or responsibilities and that Minister must have regard to any such information or advice given or recommendations made.
Section 55(2) (a) gives examples of the matters which the Agency may do, pursuant to s 55(1) of its own volition, and must do when requested by a Minister of the Government, such as:
(a) Preparing and submitting to the Minister concerned an assessment of any proposal for any treaty governing the European Community or any act of the institutes of the European Community or other international convention or agreement to which the State is or may become a party which is of relevance to the protection of the environment or a proposal for the amendment or implementation of any such treaty, article, convention or agreement;
(b) Advising the Minister concerned in relation to any proposals for legislative change of any other policy matters concerning environmental protection and related matters;
(c) Submitting to the Minister concerned any proposals it may consider appropriate for amendment of any enactment or for new enactments in relation to environmental protection;
(d) Preparing and submitting information to, or advising, the Minister concerned in relation to guidelines, standards and other matters, including management of coastal areas, in relation to environmental protection; and
(e) Reporting on, and making recommendations to the Minister concerned on particular environmental issues or problems.
Section 55(2)(b) of the Act provides that the Agency may, and must when requested by the Minister, make recommendations to the Minister in relation to any modification or extension of the functions of the Agency which it considers appropriate.
Section 55(3) of the Act gives the Minister power, by order, after he has consulted any other Minister of the Government concerned, to provide that a function performable by the Agency under s 55(1) or 55(2)(a) of the Act shall also be performable in relation to any other public authority for which that other Minister is responsible. 4.8.4 Advisory functions in relation to local authorities By virtue of s 56(1) of the Act, the Agency may, and must when requested by the Minister, give information or advice to make recommendations for the purposes of environmental protection to a local authority, or local authorities generally, in relation to the performance of any of its or their functions. The local authority or local authorities must have regard to any such information or advice given or recommendations made.
Assistance to local authorities
The Agency is required by s 57(1) of the Act to provide such general support and assistance for the purposes of the environmental protection to local authorities in relation to performance of any of their functions as it considers necessary and feasible. Section 57(2) of the Act provides that the Agency may, for the purposes of s 57(1), make arrangements with a local authority on such terms and conditions as may be agreed, for the provision of services, including services relating to staffing and equipment, to that local authority.
Drinking water
The Agency may require a sanitary authority, pursuant to s 58(1)(a) of the Act, to submit to it, in such manner and at such times as it may direct, such specified information about the monitoring of the quality of water intended for human consumption pursuant to the European Communities (Quality of Water Intended for Human Consumption) Regulations 1988, or any enactment amending or replacing those regulations, or any other enactment relating to drinking water as may be prescribed. The Agency is required by s 58(2) of the Act to prepare and submit to the Minister an annual report on such monitoring, and an assessment of the results, together with any recommendations which it considers appropriate.
Sewage or other effluents
The Minister is given power by s 59(1) of the Act for the purposes of environmental protection, and, in particular for the purposes of giving full effect to Directive 91/271/EEC (concerning urban waste-water treatment), to make regulations for the collection, treatment, discharge or disposal of sewage or other effluents to waters from any plant or drainage pipe vested in, or controlled or used by, a sanitary authority for the treatment of drinking water, or any plant, drainage pipe or sewer used by a sanitary authority for the treatment and disposal of sewage or other effluents.
Section 59(7) states that it shall be a good defense to a prosecution for an offence under any enactment other than the Act that the act constituting the alleged offence was in compliance with a standard or other requirement specified under s 59(2)(c), or an authorization granted under this section. 4.8.8 Monitoring in relation to a sanitary authority’s effluents
Section 61(1)(a) of the Act provides that a sanitary authority in which is vested or which has control over or the use of any plant, sewer or drainage pipe from which effluent is discharged to waters and in respect of which standards or other requirements have been prescribed or an authorization issued under s 59, or criteria and procedures have been specified under s 60, shall carry out, or cause to be carried out, such monitoring of the effluent or of the waters concerned or in connection with the management or operation of the plant, sewer or drainage pipe:
(i) As may be necessary or prescribed under s 59(2)(e) of the Act to assess compliance with standards or other requirements prescribed, or authorization issued, under s 59 of the Act; or
(ii) As the Agency shall direct in relation to criteria and procedures specified under s 60 of the Act, and shall transmit the results of such activity to the Agency in such manner and at such times as the Agency shall direct.
Where the Agency is of the opinion that the monitoring being carried out by the sanitary authority in accordance with the provisions of s 61(1)(a) of the Act is inadequate, or is not satisfied with the response of the sanitary authority to a direction under s 61(1)(a), it is required by s 61(2) to consult with the sanitary authority concerned. If the Agency still is dissatisfied with the response after such consultation, the Agency must carry out, cause to be carried out, or arrange for the monitoring concerned. The costs of the monitoring may be recovered by the Agency from the sanitary authority in question as a simple contract debt in any court or competent jurisdiction.
Landfill sites for waste disposal
The Agency is required by s 62(1) of the Act as soon as is practicable, for the purposes of environmental protection, to specify and publish information in respect of criteria and procedures for the selection, management, operation and termination of use of landfill sites for the disposal of domestic and other waste. Section 62(2) of the Act gives examples of the types of matters to which the criteria and procedures may relate, such as:
(a) Site selection;
(b) Design and bringing into operation of sites;
(c) Impacts on the environment;
(d) Operational guidelines, including classification of wastes and establishment of acceptance criteria for landfill;
(e) Acceptance of different classes of waste at different classes of sites;
(f) Fire, pest and litter control;
(g) Appropriate recovery, re-use and recycling facilities; and
(h) Termination of use and subsequent monitoring.
Section 62(5) of the Act provides that where criteria and procedures which are specified under that section relate to a landfill site managed or operated by alocal authority, the local authority concerned must, when necessary, take steps as soon as is practicable to ensure that the management or operation of that landfill site complies with the specified criteria and procedures.
Monitoring activities of public authorities
Section 68(1) of the Act requires the Agency to exercise general supervision over the monitoring carried out by local authorities (and such other public authorities as may be prescribed) for the purpose of any enactment relating to environmental protection.
The Agency is further required by s 68(2) to keep itself informed of the nature and extent of the monitoring carried out by each local authority and by each public authority prescribed under s 68(1).
For the purposes of s 68(2), the Agency is given power by s 68(3) to require a local authority or other public authority prescribed under s 68(1) to provide information within a specified period on matters such as:
(a) The number and location of places at which monitoring is being carried out and the frequency of such monitoring;
(b) The manner in which samples and measurements are taken and analyses are carried out;
(c) The equipment being used for the purposes of taking such samples and measurements or of carrying out such analyses;
(d) The results of such monitoring; and
(e) The local authority or public authority, as the case may be, must not unreasonably withhold the information sought.
Environmental quality database
A duty is imposed on the Agency by s 69(1), following consultation with such persons or bodies as may be prescribed, to establish and maintain, or arrange to have established and maintained, a database in respect of the quality of the environment. Section 69(2) of the Act provides that the database must include information on matters such as:
(a) Ambient air quality;
(b) The quality of inland waters, estuarial and coastal waters, and ground waters;
(c) Soil quality;
(d) Noise levels; and
(e) Inventories of emissions to the environment.
The Agency may require any public authority to make available to it, in accordance with s 69(3) of the Act, any information in respect of environmental quality which is in the possession or control of that public authority. The Agency is also empowered by s 69(4)(a) to make arrangements for information in relation to environmental quality which is held by any person or body to be sent to it on such terms and conditions as may be agreed and for such information to be included in the database. Furthermore, the Agency may compile and maintain a register of sources of data in relation to the quality of the environment pursuant to s 69(4)(b) of the Act. The register in question must be available for inspection by the public free of charge at the Agency’s headquarters during office hours.
Environmental audits
Section 74 of the Act deals with environmental audits. An ‘environmental audit’ is defined in s 74(1) as being: in relation to any process, development or operation, a systematic, documented and objective periodic assessment of the organizational structure, management systems, processes and equipment pertaining to, or incidental to, that process, development or operation, for the purposes of environmental protection and, in particular for the purposes of:
(a) Facilitating management control of practices which may have an impact on environmental protection;
(b) Assessing compliance with enactments relating to environmental protection and with such environmental conditions as may be attached to any license or permit granted or issued in connection with the aforesaid process, development or operation; and
(c) Minimsing the impact of the process, development or operation on the environment.
Codes of practice
The Agency is given power by s 76(1) of the Act to prepare and publish codes of practice, or approve of a code of practice, or part of one, which is drawn up by another body, for the purpose of providing practical guidance in relation to compliance with any enactment or otherwise for the purposes of environmental protection. The Agency is also empowered by s 76(4) to revoke or revise all or part of any code of practice which it has prepared or published. It may also withdraw its approval of any code of practice or part of one.
Labeling of products and services
Section 78(1) of the Act requires the Agency, if it considers it necessary or desirable to do so, having regard to any act of any institution of the European Community relating to a European Community labeling scheme, to establish, or arrange for the establishment of, a scheme or schemes for the use of a special symbol or symbols on the labels of specified products, or in connection with specified services, which meet specified criteria and standards in respect of their impact on the environment.
The Agency is given a number of powers by s 78(2) of the Act, in relation to the establishment of a labeling scheme, such as the power to:
(a) Set the criteria and standards under which a special symbol can be used on the labels of products or in connection with services;
(b) Provide for procedure and other matters in relation to the use, or an application of an appeal against the refusal for the use, or for the withdrawal, of a special symbol;
(c) Provide for charges for the carrying out of tests or analyses;
(d) Determine the product categories or services to which such a scheme would apply; and
(e) Prepare and publish periodic reports on, and publish details of, the scheme.
According to s 78(4) of the Act, it shall be an offence:
(a) To use a symbol provided for in a scheme under that section, or under a European Community environmental labeling scheme in force in the State, or a similar symbol, on the labeling of a product or in connection with a service which has not been approved under the scheme or for which the approval has been withdrawn or, if approved, no longer meets the standards or criteria of the scheme; or
(b) For a person to make a statement of claim in writing or otherwise in connection with the use, or an application or an appeal against a refusal for the use, or for the withdrawal, of a special symbol which to his knowledge is false or misleading in a material respect.
General policy directives
The Minister is given power by s 79(1) of the Act, whenever he thinks proper, to give such general directives in writing to the Agency as to policy in relation to environmental protection. Section 79(2) requires the Agency, in performing its functions, to adhere to any directions given by the Minister under that section.
However, s 79(3) provides that nothing in s 79 shall be construed as enabling the Minister to exercise any power or control in relation to the performance of any particular service of the Agency of a function assigned to it by or under the Act.
