S.I. No. 266/1988 - Air Pollution Act, 1987, (Licensing of Industrial Plant) Regulations, 1988.

S.I. No. 266 of 1988.

AIR POLLUTION ACT, 1987, (LICENSING OF INDUSTRIAL PLANT) REGULATIONS, 1988.

The Minister for the Environment, in exercise of the powers conferred on him by sections 10 , 30 , 31 , 33 , 34 and 35 of the Air Pollution Act, 1987 (No. 6 of 1987) hereby makes the following Regulations:—

1 Citation.

1. These Regulations may be cited as the Air Pollution Act, 1987 (Licensing of Industrial Plant) Regulations, 1988.

2 Commencement.

2. These Regulations shall come into operation on the 1st day of November, 1988.

3 Interpretation.

3. (1) In these Regulations:—

(a) any reference to a Schedule or article which is not otherwise identified is a reference to a Schedule or article of these Regulations;

(b) any reference to a sub-article or paragraph which is not otherwise identified is a reference to the sub-article or paragraph of the provision in which the reference occurs.

(2) In these Regulations—

"the Act" means the Air Pollution Act, 1987 ;

"applicant" means an applicant for a licence;

"appeal" means an appeal under section 34 of the Act;

"the Board" means An Bord Pleanala;

"licence" means a licence under the Act;

"party to an appeal" means—

(a) the appellant,

(b) the local authority which reviewed or decided to grant or refuse a licence in relation to which an appeal is made,

( c ) the applicant for a licence where an appeal is made by another person,

( d ) the occupier of an industrial plant where an appeal is made by another person in relation to a review of a licence for that plant;

"the register" means the register kept pursuant to section 17 of the Act;

"review" means a review under section 33 of the Act;

"revised licence" means a licence as revised pursuant to section 33 of the Act.

4 Licensing of industrial plant.

4. The 1st day of February, 1989 shall be:

( a ) the prescribed day for the purposes of section 30 (1) of the Act; and

( b ) the relevant day for the purposes of section 6 (2) (a) of the Act.

5 Licensing of existing industrial plant.

5. Existing industrial plant of any class specified in the First Schedule shall not be in operation on or after the 1st day of March, 1989 unless a licence under the Act is in force in relation to the plant.

6 Notice of intention to apply for a licence.

6. (1) Prior to making an application for a licence, the applicant shall publish in a newspaper circulating in the functional area of the local authority concerned notice of intention to make such application.

(2) A notice under sub-article (1) shall contain, as a heading, the words " Air Pollution Act, 1987 , Licensing of Industrial Plant", and shall—

( a ) state the name of the applicant and the name of the local authority to which application is being made,

( b ) state the nature and location of the industrial plant in relation to which application is being made, and

( c ) give a general description of the industrial process and of the emissions made or to be made from the plant.

7 Further notice and local authority notice.

7. (1) Where—

( a ) a period of more than two weeks has elapsed between the publication of a notice in pursuance of article 6 and the making of the relevant application, or

( b ) it appears to the local authority that any such notice does not comply with the provisions of article 6 or, because of its content or for any other reason, is misleading or inadequate for the information of the public,

the local authority may require the applicant to publish such further notice in such terms as they may specify and to submit to them such evidence as they may specify in relation to compliance with any such requirement.

(2) A local authority may publish notice of an application for a licence in such manner as they consider appropriate.

8 Application for a licence and investigation by local authority.

8. (1) An application for a licence shall be accompanied by—

( a ) a copy of the newspaper in which the relevant notice in pursuance of article 6 has been published,

( b ) such plans, in duplicate, and such other particulars as are necessary to describe the industrial plant and the point or points from which emissions are made or are to be made.

( c ) particulars of the nature, composition, temperature, volume and rate of emissions, the means to control such emissions, and the period or periods during which the emissions are made or are to be made.

(2) An applicant shall furnish such other particulars as the local authority may reasonably require for consideration of the application, including particulars of the quality of the ambient air, the effect of the emissions on such air and the results of any investigation made, or required by the local authority to be made, in relation to such matters.

(3) Where an applicant refuses or fails to comply with any requirement of a local authority under sub-article (2) within three months the local authority may determine the application.

(4) A local authority may carry out, or arrange to have carried out, such investigations as they consider necessary to enable them properly to determine an application and may require the applicant to defray or contribute towards the cost of any such investigations.

9 Fee for application for a licence.

9. A fee of £100 shall be paid to a local authority by an applicant in respect of an application for a licence.

10 Procedure on receipt of application.

10. On receipt of an application for a licence, a local authority shall—

( a ) stamp the documents with the date of their receipt, and

( b ) send to the applicant or the person acting on his behalf an acknowledgement stating the date of receipt of the application.

11 Inspection of documents.

11. A local authority shall make available for public inspection during normal office hours at the offices of the local authority, the application for a licence and any plans and other particulars submitted by the applicant to the local authority, including any particulars submitted in pursuance of article 8 (2), from the time of receipt of the relevant documents until the application or any appeal relating thereto is determined.

12 Period for decisions.

12. Where an application for a licence is made to a local authority in accordance with these Regulations and the requirements relating to the application of or made under these Regulations are complied with, the local authority shall determine the application within the period of two months beginning on the day of the receipt of the application or the day on which all of those requirements are complied with, whichever is the later.

13 Notice of decision to grant or refuse a licence.

13. (1) Where a local authority decide to grant a licence subject to, or without, conditions or to refuse an application, the local authority shall, in addition to complying with the requirements of section 32 (5) of the Act—

( a ) give notice of their decision to any person who made submissions or observations to them in relation to the relevant application,

( b ) give notice to every such person and to the applicant that an appeal may be made to the Board within the period prescribed in article 19 and that any such appeal shall be accompanied by the appropriate fee.

(2) A notice under sub-article (1) may, where the local authority so decide, be published in a newspaper circulating in their functional area.

14 Grant and form of licence or revised licence.

14. (1) Where—

( a ) no appeal is made to the Board against the decision of a local authority to grant a licence or a revised licence, or

( b ) any such appeal is withdrawn,

the local authority shall grant the licence or the revised licence as soon as may be and transmit it to the licensee.

(2) As soon as may be after the receipt from the Board of directions to grant a licence or a revised licence, the local authority shall grant the licence or the revised licence in compliance with the directions and shall transmit it to the licensee.

Form No. 1 in the Second Schedule, or a form substantially to the like effect, shall be the form of every licence, including a revised licence.

15 Application for a review of licence.

15. (1) An application by a licensee to a local authority to review a licence shall be made in writing and shall state the grounds on which it is made.

(2) A fee of £50 shall be paid to a local authority in respect of any application referred to in sub-article (1).

16 Notice of intention to review a licence.

16. (1) Where a local authority intend to review a licence they shall—

( a ) give notice of such intention to the occupier of the industrial plant, and

( b ) publish notice of such intention in a newspaper circulating in the functional area of the local authority.

(2) Every notice under sub-article (1) shall state that representations relating to the review may be made in writing to the local authority within one month of the date of the notice.

17 Information in relation to review of licence.

17. (1) Where a local authority give notice under article 16 (1) (a), the notice may require the occupier of the industrial plant to which the licence relates to submit such plans or other particulars as the local authority may specify for the purpose of the review.

(2) A local authority shall make available for public inspection during normal office hours at the offices of the local authority, any plans and other particulars submitted to the local authority in connection with the review, including any such plans or other particulars submitted in pursuance of sub-article (1) from the time of receipt of the relevant documents until the review or any appeal relating thereto is determined.

(3) Where a person refuses or fails to comply with any requirement of a local authority under sub-article (1) within three months the local authority may complete the review.

18 Local authority notice following review of licence.

18. (1) On completion of a review, the local authority shall give notice of their decision to the occupier of the industrial plant to which the licence relates and to any person who made representations in writing to the local authority pursuant to article 16 (2).

(2) A notice under sub-article (1) shall include a statement that an appeal may be made to the Board by any person within the period prescribed in article 19 and that any such appeal must be accompanied by the appropriate fee.

19 Prescribed period for appeals.

19. The prescribed period for the purpose of an appeal shall be—

( a ) in the case of an appeal relating to a decision to grant or, refuse a licence, the period of one month beginning on the date of the decision to grant or refuse the licence,

( b ) in the case of an appeal relating to the decision of a local authority on a review of a licence, the period of one month beginning on the date of the local authority's decision.

20 Form and content of appeal.

20. An appeal shall—

( a ) be made in writing,

( b ) state the subject matter of the appeal, and

( c ) state the grounds of appeal.

21 Fee for appeals.

21. A fee of £50 shall be paid to the Board by an appellant in respect of an appeal by him to the Board.

22 Fee for submission to the Board.

22. (1) Subject to sub-articles (2) and (3), a fee of £10 shall be paid to the Board by a person making submissions or observations to the Board as regards an appeal.

(2) Sub-article (1) shall not apply where the person by or on whose behalf submissions or observations are made is a party to an appeal.

(3) Where a fee has been paid under this article by or on behalf of a person or body of persons making submissions or observations as regards a particular appeal, a fee shall not be payable in respect of any further submissions or observations made by or on behalf of the same person or body of persons as regards that appeal.

23 Copy of appeal.

23. On receipt of an appeal the Board shall give a copy thereof to each other party to the appeal.

24 Documents, information, etc in relation to appeals.

24. (1) Where an appeal is made to the Board, the local authority concerned shall give to the Board such information or evidence in its possession or procurement as the Board may require for the purpose of determining the appeal including, in the case of an appeal relating to a decision to grant or refuse a licence, a copy of the application and of the plans and particulars which accompanied it and of any particulars furnished by the applicant pursuant to sub-article 8 (2) and the results of any investigations carried out pursuant to sub-article 8 (4).

(2) A party to an appeal (other than a local authority) shall give to the Board any document, information or evidence in his possession or procurement which the Board consider necessary for the purpose of determining the appeal.

(3) Where a person neglects or refuses to give the Board any document, information or evidence within such period as may at any time be specified by the Board, the Board may determine the appeal without such document, information or evidence.

(4) A copy of any document relevant to an appeal which is given to the Board by any party to an appeal shall be given by the Board to each party not already possessed of a copy of such document, or shall be made available for inspection at the offices of the Board or at the offices of the local authority concerned or at such other convenient place as the Board may specify and each party not possessed of a copy of the document shall be informed that it is so available for inspection.

25 Observations on appeals.

25. A party to an appeal to whom a copy of an appeal has been given under article 23 may, within such period as may at any time be specified by the Board, make in writing to the Board such observations on the appeal as he thinks fit and a copy of such observations shall be given by the Board to each other party to the appeal or, where a number of persons have made the appeal jointly, to any one of such persons.

26 Oral hearings.

26. (1) The Board shall have an absolute discretion to hold an oral hearing of any appeal.

(2) A party to an appeal may request an oral hearing of the appeal and any such request shall be made in writing to the Board.

(3) A person making a request to the Board for an oral hearing of an appeal shall, in addition to the fee prescribed by article 21, pay to the Board a fee of £50 in respect of the request.

(4) A request for an oral hearing may be withdrawn at any time.

(5) Where the Board is requested to hold an oral hearing of an appeal and decide, to determine the appeal without an oral hearing, the following provisions shall apply:

( a ) the Board shall serve notice of its decision on the person who requested such hearing and the notice shall require that person to make, within a period specified in the notice (being a period of not less than fourteen days beginning on the date of service of the notice), to the Board in writing such submissions (if any) as the person thinks fit in relation to the appeal, and

( b ) the Board shall not proceed to determine the appeal until after the expiration of the period as specified.

(6) Where the Board decide to hold an oral hearing, the Board shall inform each of the parties to the appeal and shall give each party not less than seven days notice of the time and place of the opening of the oral hearing or such shorter notice as may be accepted by all the parties to the appeal.

(7) The Board may, at any time before the opening of an oral hearing, alter the time or place of the opening of the hearing and, in the event of such alteration, the Board shall give each party not less than seven days notice of the new time and place or such shorter notice as may be accepted by all the parties to the appeal.

(8) Where the parties to an appeal have been informed that an oral hearing is to be held and where, following the withdrawal of a request for an oral hearing, or a decision by the Board, the appeal falls to be determined without an oral hearing, the Board shall give notice accordingly to the parties and shall not determine the appeal until seven days after the date of the giving of the notice or such longer period as the Board may specify in the notice.

(9) An oral hearing shall be conducted by the Board or by a person appointed for that purpose by the Board either generally or for a particular appeal.

(10) if, for any reason, the person appointed is unable or fails to conduct, or to complete the conduct of, an oral hearing, or, for any reason, is unable or fails to furnish a report on an oral hearing to the Board, the Board may appoint another person to conduct the oral hearing or to conduct a new oral hearing.

27 Procedure at oral hearing.

27. The Board or other person conducting an oral hearing shall have discretion as to the conduct of the hearing and in particular shall—

( a ) conduct the hearing without undue formality,

( b ) decide the order of appearance of the parties,

( c ) permit any party to appear in person or to be represented by another person, and

( d ) hear, if they think fit, any person who is not a party to the appeal.

28 Further provisions regarding oral hearings.

28. The provisions of section 82 (4), (5), (6) and (7) of the Local Government (Planning and Development) Act, 1963 shall apply as respects an appeal modified in the manner set out in the Table to this article.

TABLE

"(4) A person conducting an oral hearing of an appeal may require any officer of a local authority concerned to give to him any information which he reasonably requires for the purpose of the hearing, and it shall be the duty of the officer concerned to comply with the requirement.

(5) ( a ) A person conducting an oral hearing of an appeal may visit and inspect any premises to which the appeal relates.

( b ) A person shall not obstruct the exercise of the power conferred by this sub-section.

(6) A person conducting an oral hearing of an appeal may take evidence on oath and for that purpose may administer oaths, and a person giving evidence shall be entitled to the same immunities and privileges as if he were a witness before the High Court.

(7) ( a ) Subject to the following paragraph, a person conducting an oral hearing of an appeal may, by giving notice in that behalf in writing to any person, require that person to attend at such time and place as is specified in the notice to give evidence in relation to any matter in question at the hearing or to produce any plans, particulars, or other documents in his possession, custody or control which relate to any such matter.

( b ) The following provisions shall have effect for the purposes of the foregoing paragraph:

(i) it shall not be necessary for a person to attend in compliance with a notice at a place more than ten miles from his ordinary place of residence unless such sum as will cover the reasonable and necessary expenses of the attendance have been paid or tendered to him;

(ii) the local authority shall, at the request of the person conducting the oral hearing, pay or tender to any person whose attendance is required such sum as the person conducting the hearing considers will cover the reasonable and necessary expenses of the attendance;

(iii) any person who in compliance with a notice has attended at any place shall, save in so far as the reasonable and necessary expenses of the attendance have already been paid to him, be paid those expenses by the local authority, and those expenses, save as aforesaid, shall, in default of being so paid, be recoverable as a simple contract debt in any court of competent jurisdiction;

(iv) a person to whom a notice has been given shall not refuse or wilfully neglect to attend in accordance with the notice or shall not wilfully alter, suppress, conceal or destroy any document to which the notice relates or, having so attended, shall not refuse to give evidence or refuse or wilfully fail to produce any document to which the notice relates."

29 Reports.

29. Where in relation to an appeal an inspection is carried out or an oral hearing is conducted on behalf of the Board, by a person appointed for the purpose by the Board, the person so appointed shall make to the Board a written report on the inspection or hearing, as the case may be, and shall include in his report a recommendation relating to the matter with which the inspection or hearing was concerned, and the Board shall, before determining the appeal in relation to which the inspection was carried out or the hearing was conducted, consider the report, including any recommendation contained therein.

30 Adjournment or re-opening of oral hearing.

30. (1) Subject to sub-articles (2) and (3), the Board or other person conducting an oral hearing may adjourn or re-open any hearing or, notwithstanding that any party has failed to attend a hearing, proceed with the hearing.

(2) Notice of the time and place of the re-opening of an oral hearing or resumption of an oral hearing that has been adjourned indefinitely shall be given by the Board to each of the parties to the appeal not less than seven days before the said time unless all such parties accept shorter notice.

(3) Unless the Board consider it expedient to do so and so direct, an oral hearing shall not be re-opened after the report thereon has been submitted to the Board.

31 Vexatious appeals.

31. The Board shall have an absolute discretion to dismiss an appeal where, having considered the grounds of appeal, the Board is of opinion that the appeal is vexatious, frivolous or without substance or foundation.

32 Notice requiring statement of grounds of appeal.

32. (1) Where an appeal is made to the Board and the grounds of appeal are not stated in writing, the Board may serve on the appellant a notice:—

( a ) requiring him, within a period specified in the notice (being a period of not less than fourteen days beginning on the date of service of the notice) to submit to the Board a written statement of his grounds of appeal, and

( b ) stating that, in default of compliance with the requirements of the notice, the Board will, after the period so specified and without further notice to the person, declare that the appeal shall be regarded as having been withdrawn.

(2) Where a notice has been served under sub-article (1), the Board having considered the response (if any) to the notice, at any time after the expiration of the period specified in the notice and without further notice to the party on whom the notice has been so served, may if they so think fit, declare that the appeal to which the notice relates shall be regarded as having been withdrawn.

33 Power to declare appeals and applications withdrawn.

33. (1) Where the Board is of opinion that an appeal, or an application for a licence to which an appeal relates, has been abandoned, the Board may serve on the person who made the appeal or application, as may be appropriate, a notice stating that fact and requiring that person, within a period specified in the notice (being a period of not less than fourteen days beginning on the date of service of the notice to make to the Board a submission in writing as to why the appeal or application, as the case may be, should not be regarded as having been withdrawn.

(2) Where a notice has been served under sub-article (1), the Board may, at any time after the expiration of the period specified in the notice, and after considering the submission (if any) made to the Board pursuant to the notice, declare that the appeal or application to which the notice relates shall be regarded as having been withdrawn.

(3) Where pursuant to this article the Board declares that an application described in sub-article (1) shall be regarded as having been withdrawn:—

( a ) any appeal in relation to the application shall be regarded as having been withdrawn and accordingly shall not be determined by the Board, and

( b ) notwithstanding any previous decision by the local authority to grant a licence no licence shall be granted on foot of the application.

34 Power of Board regarding delays by parties etc. to appeals.

34. (1) Where the Board is of opinion that any document, particulars or other information is necessary for the purpose of enabling it to determine an appeal, the Board may serve on any person who is a party to the appeal, or on any other person who has made submissions or observations to the Board as regards the appeal, a notice—

( a ) requiring that person, within a period specified in the notice (being a period of not less than fourteen days beginning on the date of service of the notice) to submit to the Board such document, particulars or other information (which document, particulars or other information shall be specified in the notice), and

( b ) stating that, in default of compliance with the requirements of the notice the Board will, after the period so specified and without further notice to the person, determine the appeal.

(2) Where a notice has been served under sub-article (1), the Board, at any time after the expiration of the period specified in the notice, may, having considered the response (if any) to the notice, without further notice to the person on whom the notice has been so served determine the appeal.

35 Matters other than those raised by parties may be taken into account.

35. The Board may take into account matters other than those raised by the parties to an appeal in deciding the appeal provided that the matters are brought to the notice of those parties and they are accorded an opportunity of making observations thereon to the Board or, in the case of an oral hearing, the person conducting the hearing.

36 Notification by the Board of decision on appeal.

36. (1) The Board shall notify every party to an appeal of its decision on the appeal.

(2) Every notification under sub-article (1) to a person, other than a local authority, shall specify the nature of the decision, including any directions given to the local authority relating to the granting or refusing of a licence.

37 The register.

37. (1) The register shall be in Form No. 2 in the Second Schedule and shall contain the particulars specified therein.

(2) The prescribed fee for a copy of any entry in a register shall be

Article £5

FIRST SCHEDULE

CLASSES OF EXISTING INDUSTRIAL PLANT FOR WHICH A LICENCE IS REQUIRED

1. Plant for the manufacture of artificial fertilizers,

2. Plant for the manufacture of nitric acid.

3. Plant for the production of cement.

4. Plant for the extraction or recovery, by burning or by the application of heat, of aluminium, zinc, copper or lead, from any scrap metal or alloy, waste material or residue including scrap or waste cable.

5. Plant in which ammonia is used or evolved in any chemical process.

6. Plant in which chlorine is used or evolved in any chemical process.

7. Plant in which hydrochloric acid is used or evolved in any chemical process.

8. Plant for the incineration of solid or liquid chemical wastes.

9. Plant in which hydrogen sulphide is used or evolved in any chemical process.

10. Plant in which carbon disulphide is used or evolved in any chemical process.

SECOND SCHEDULE

Form No. 1

Article 15

AIR POLLUTION ACT, 1987

LICENCE IN RELATION TO INDUSTRIAL PLANT

Local Authority:............................................................ .....................

Reference Number in register:

To............................................................ .....................................

............................................................ ........................................

The ( )¹, in exercise of the powers conferred on it by the Air Pollution Act, 1987 hereby grants a licence²/a revised licence in substitution for licence dated reference number ²/to operate an industrial plant ( )³ located at ( )⁴ subject to the following conditions⁵.

..................................................

City/County Manager

Dated this day of 198 Order No...................................................

Directions for completing this form

1. Insert name of local authority.

2. Delete words which do not apply.

3. Insert name of industrial plant.

4. Insert location of industrial plant.

5. Delete if not subject to conditions.

Article 37

Form No. 2

AIR POLLUTION ACT, 1987

IN RELATION TO INDUSTRIAL PLANT

Local Authority:............................................................ .............................................

1. Licence reference number ............................................................ ............................................................ ........

2. Name and address of applicant............................................................ ............................................................

............................................................ ............................................................ ............................................................ .....

3. Location of the industrial plant............................................................ ..........................................................

4. Description of the industrial plant ............................................................ ......................................................

5. Description of emissions(s) ............................................................ ............................................................ .....

6. Date of grant of licence............................................................ ............................................................ ............

7. Conditions attached to licence ............................................................ ............................................................ .

............................................................ ............................................................ ............................................................ .......

7. If licence is a revised licence — reference number of previous licence .............................................

8. Notification by An Bord Pleanala of appeal:

Date .....................................................

An Bord Pleanala's reference .....................................................

9. Result of appeal ............................................................ ............................................................ ..............................

GIVEN under the Official Seal of the Minister for the Environment

this 14th day of October, 1988.

PADRAIG FLYNN,

Minister for the Environment.

EXPLANATORY NOTE.

These Regulations prescribe the 1st February 1989 as the day on or after which industrial plant other than existing industrial plant shall not be operated unless a licence under the Air Pollution Act, 1987 is in force in relation to the plant. The Regulations provide that existing industrial plant of any class specified in the First Schedule shall not be operated on or after 1st March 1989 unless a licence under the Act is in force in relation to the plant, and also provide for various procedural matters under the Act in relation to the licensing of industrial plants, appeals to An Bord Pleanala in relation thereto, register of licences, and fees for applications for licences and appeals. The Regulations come into operation on the 1st November 1988.