40A. — F91[(1) F92[(a) Where an application is made for consent under section 39A(1) or 40(1), as the case may be, in respect of a proposed pipeline that is of a class referred to in Part 1 of Schedule 5 to the Planning and Development Regulations 2001 (S.I. No. 600 of 2001), the proposed pipeline shall be the subject of an environmental impact assessment and, accordingly—

(i) where that proposed pipeline is a pipeline other than an upstream pipeline, the Board or the other person making the application to the Commission for consent under section 39A(1) in respect of that pipeline, shall submit an environmental impact assessment report in respect of construction and operation of that proposed pipeline to the Commission together with the application, and

(ii) where that proposed pipeline is an upstream pipeline, the Board or the other person making the application to the Minister for consent under section 40(1) in respect of that pipeline, shall submit an environmental impact assessment report in respect of the construction and operation of the proposed pipeline to the Minister together with the application.]

F93[(aa) The Minister shall not be obliged to consider an application referred to in paragraph (a) of this subsection until an F94[environmental impact assessment report] has been submitted in relation to the application.]

F92[(b) Where an application is made for consent under section 39A(1) or 40(1), as the case may be, in respect of a proposed pipeline that is of a class referred to in Part 2 of Schedule 5 to the Planning and Development Regulations 2001, the Commission, in the case of an application under section 39A(1), or the Environmental Assessment Unit, in the case of an application under section 40(1), shall determine, in accordance with this section, whether or not the proposed pipeline would be likely to have significant effects on the environment and, where it determines that the proposed pipeline would be likely to have significant effects on the environment, the Commission or the Environmental Assessment Unit, as the case may be, shall direct that the proposed pipeline concerned is to be the subject of an environmental impact assessment and the Board or the other person, as the case may be, shall submit an environmental impact assessment report in respect of the construction and operation of the proposed pipeline to the Commission or the Environmental Assessment Unit, as the case may be.]

F95[(bb) Without prejudice to paragraph (b), the Board or another person wishing to construct a pipeline that—

(i) is of a class referred to in Part 2 of Schedule 5 to the Planning and Development Regulations 2001, and

(ii) is other than an upstream pipeline,

may, in writing, request the Commission to determine, in accordance with this section, whether the pipeline proposed would be likely to have significant effects on the environment and, where such a request is made, the Commission shall determine, in accordance with this section, whether or not the proposed pipeline would be likely to have significant effects on the environment and, where it determines that the proposed pipeline would be likely to have significant effects on the environment, the Commission shall direct that the proposed pipeline is to be the subject of an environmental impact assessment and shall require the Board or the other person to make an application for consent under section 39A(1) to be accompanied by an environmental impact assessment report in respect of the construction and operation of the proposed pipeline.

(bc) For the purpose of enabling the Commission or the Environmental Assessment Unit, as the case may be, to make its determination under paragraph (b) or (bb), the Board or the other person, as the case may be, shall provide the information specified in Annex IIA to the Commission or the Environmental Assessment Unit, as the case may be, taking into account, where relevant, the available results of other relevant assessments of the effects on the environment of the proposed pipeline carried out pursuant to European Union legislation (other than the EIA Directive).

(bd) The information referred to in paragraph (bc) may be accompanied by a description of the features of the proposed pipeline and the measures, if any, envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.]

(c) F96[…]

F92[(d) Where a determination is being made under this section, the Commission or the Environmental Assessment Unit, as the case may be, shall make the determination on the basis of the information provided in the application for consent together with the information provided under paragraph (bc) and, where that information is accompanied by the matters referred to in paragraph (bd), those matters, having taken into account—

(i) the relevant selection criteria specified in Annex III,

(ii) where relevant, the results of preliminary verifications or assessments of the effects on the environment of the proposed pipeline carried out pursuant to any Act of the Oireachtas or under European Union legislation (other than the EIA Directive), and

(iii) where the proposed pipeline would be located on, or in, or have the potential to impact on—

(I) a European site within the meaning of Regulation 2 of the European Communities (Birds and Natural Habitats) Regulations 2011 (S.I. No. 477 of 2011),

(II) land designated as a natural heritage area under section 18 of the Wildlife (Amendment) Act 2000 (No. 38 of 2000),

(III) land established or recognised as a nature reserve within the meaning of section 15 or 16 of the Wildlife Act 1976 (No. 39 of 1976), or

(IV) land designated as a refuge for flora or as a refuge for fauna under section 17 of the Wildlife Act 1976,

the likely significant effects on the environment of the proposed pipeline on such site, area or land, as appropriate.]

F95[(dd) Where the Commission or the Environmental Assessment Unit, as the case may be, determines that a proposed pipeline, being of a class referred to in Part 2 of Schedule 5 to the Planning and Development Regulations 2001, would be likely to have significant effects on the environment, it shall specify, with reference to the relevant criteria listed in Annex III, the main reasons for that determination.

(de) Where the Commission or the Environmental Assessment Unit, as the case may be, determines that a proposed pipeline, being of a class referred to in Part 2 of Schedule 5 to the Planning and Development Regulations 2001, is not likely to have significant effects on the environment, it shall specify—

(i) with reference to the relevant criteria listed in Annex III, the main reasons for that determination, and

(ii) features of the proposed pipeline and measures (if any) proposed by the Board or the other person making the application, as the case may be, to avoid or prevent what would otherwise be significant adverse effects on the environment.

(df) Where the Commission or the Environmental Assessment Unit, as the case may be, specifies a feature of the proposed pipeline or a measure under paragraph (de)(ii) as a feature or measure relied on in making a determination under this section that an environmental impact assessment is not required in relation to the proposed pipeline, the Commission or the Minister, as the case may be, shall attach to any consent granted in respect of that proposed pipeline, the implementation of the feature or the carrying out of the measure as an environmental condition of that consent.

(dg) Subject to paragraph (dh), the Commission or the Environmental Assessment Unit, as the case may be, shall make its determination under paragraph (b) or (bb) as soon as possible and, in any event, subject to paragraph (dh), within 90 days from the date on which the Board or the other person making the application has submitted all the information required under paragraph (bc).

(dh) The Commission or the Environmental Assessment Unit, as the case may be, may, in exceptional cases, including where it is justified by the nature, complexity, location or size of the proposed pipeline, extend the 90 day period referred to in paragraph (dg) in order to make its determination and, in such cases, it shall inform the Board or the other person making the application in writing of the reasons justifying the extension and of the date when its determination is expected.]

F92[(e) The Commission or the Environmental Assessment Unit, as the case may be, shall—

(i) (I) give written notification to the Board or the other person making the application of its determination under this section and the reasons provided under paragraph (dd) or (de), as the case may be, and

(II) publish—

(A) on a website maintained by it, the determination and the reasons for it, and

(B) in a newspaper circulating in the State or locally, as it considers appropriate, a notice stating that the determination has been made, giving the reasons for that determination and identifying where information in respect of the determination can be found,

and

(ii) where publication is made in accordance with subparagraph (i)(II)—

(I) provide, both on the website and in the newspaper referred to in that subparagraph, information in relation to the procedure available for members of the public to review the substantive and procedural legality of the determination by way of judicial review under Order 84 of the Rules of the Superior Courts (S.I. No. 15 of 1986), and

(II) identify, on that website and in that newspaper, where practical information on the procedure referred to in clause (I) can be found.

(f) The Board or the other person, as the case may be, shall, when submitting an environmental impact assessment report in respect of the construction and operation of a proposed pipeline in accordance with this section, ensure that that report—

(i) is prepared by competent experts,

(ii) subject to paragraph (gg), contains the following information:

(I) a description of the proposed pipeline comprising information on the site, design, size and other relevant features of the proposed pipeline;

(II) a description of the likely significant effects on the environment of the proposed pipeline;

(III) a description of any features of the proposed pipeline and of any measures envisaged in order to avoid, prevent or reduce and, if possible, offset likely significant adverse effects on the environment of the proposed pipeline;

(IV) a description of the reasonable alternatives studied by the Board or the other person, as the case may be, which are relevant to the proposed pipeline and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects on the environment of the proposed pipeline;

(V) a non-technical summary of the information referred to in clauses (I) to (IV);

(VI) any additional information specified in Annex IV that is relevant to the specific characteristics of the proposed pipeline or type of proposed pipeline and to the environmental features likely to be affected,

and

(iii) takes into account the available results of other relevant assessments carried out in respect of the proposed pipeline under European Union legislation with a view to avoiding duplication of assessments.

(g) Where the Board or the other person, as the case may be, is required to submit an environmental impact assessment report in respect of the construction and operation of a proposed pipeline under this subsection, it may request the Commission or the Environmental Assessment Unit, as the case may be, to give it an opinion on the scope and level of detail of the information to be included in the environmental impact assessment report, and where it receives such a request, the Commission or the Environmental Assessment Unit, as the case may be, shall consult with the relevant specified bodies and, having taken into account the information provided by the Board or the other person, as the case may be, in particular on the specific characteristics of the proposed pipeline, including the location of the proposed pipeline and its technical capacity, and its likely impact on the environment, shall issue a written opinion on the scope and level of detail of the information to be included by the Board or the other person, as the case may be, in the environmental impact assessment report in accordance with paragraph (f).]

F95[(gg) Where the Commission or the Environmental Assessment Unit, as the case may be, issues an opinion under paragraph (g), the Board or the other person to whom the opinion is issued shall—

(i) prepare the environmental impact assessment report based on that opinion, and

(ii) include in the report the information that may reasonably be required by the Commission or the Environmental Assessment Unit, as the case may be, for reaching a reasoned conclusion on the significant effects on the environment of the proposed pipeline, taking into account current knowledge and methods of assessment.]

F92[(h) The issuing of an opinion under paragraph (g) shall not prejudice the exercise by the Commission or the Environmental Assessment Unit, as the case may be, of its powers under section 40A (5)(b) to require the Board or the other person to furnish it with specified additional information in relation to the likely effects on the environment of the proposed pipeline.]]

F92[(2) Where an environmental impact assessment report has been submitted to the Commission or the Environmental Assessment Unit, as the case may be, in accordance with this section, the Board or the other person shall, as soon as may be, publish in one or more newspapers circulating in the State, or locally, as it considers appropriate, a notice—

(a) stating that an application for consent under section 39A(1) or 40(1) has been made,

(b) stating that the proposed pipeline, including its construction and operation, is subject to an environmental impact assessment and that section 40A(7), where relevant, is applicable,

(bb) specifying the possible outcomes in respect of the application,

(c) indicating that—

(I) a copy of the application,

(II) a copy of the opinion (if any) issued by the Commission or Environmental Assessment Unit, as the case may be, in relation to the environmental impact assessment report,

(III) a copy of the environmental impact assessment report, and

(IV) any other information available to the Commission or Environmental Assessment Unit, as the case may be, for the purpose of the application,

are available on the website maintained by the Commission or the Department, as the case may be, and also indicating the place where they may be inspected free of charge and copies purchased on the payment of a fee which shall not exceed the reasonable cost of making such copies,

(d) stating the times and specifying a period, which shall not be less than 30 days in duration, during which the information referred to in subparagraph (c) may be so inspected or purchased,

(e) stating that during a specified period, which shall not be less than 30 days in duration, submissions may be made in writing to the Commission or the Environmental Assessment Unit, as the case may be, in relation to the likely effects on the environment of the proposed pipeline,

(f) stating that significant further information (if any) received by the Commission or the Environmental Assessment Unit, as the case may be, including information received under section 40A (5)(b), (if any), shall be published on the website maintained by the Commission or the Department, as the case may be, and will be available for inspection free of charge at the place referred to in paragraph (c) and that copies may be purchased on the payment of a fee which shall not exceed the reasonable cost of making such copies, and

(g) stating the address or contact point to which any submissions referred to in paragraph (e) are to be sent.]

F95[(2A) Where it is required, in accordance with subsection (1), to submit an environmental impact assessment report, the Board or the other person making an application for consent under section 39A(1) or 40(1) shall send to the Commission or the Minister, as the case may be, an electronic version of—

(i) the notice referred to in subsection (2),

(ii) the environmental impact assessment report submitted in accordance with this section, and

(iii) a map of the location of the proposed pipeline in respect of which the application is made to a scale of not less than 1:1000 in relation to built-up areas and 1:2500 in relation to all other areas, or such other scale as may be agreed with the Minister for Housing, Local Government and Heritage in a particular case, and marked so as clearly to identify the proposed pipeline and any associated structure to which the application relates.

(2B) The Commission or Environmental Assessment Unit, as the case may be, shall make an electronic version of the documents specified in subsection (2A) available to the public on its website.

(2C) The Commission or the Environmental Assessment Unit, as the case may be, shall send to the Minister for Housing, Local Government and Heritage, in electronic form, each of the following:

(a) the name of the applicant for consent under section 39A(1) or 40(1), as the case may be, together with a contact name, email address and telephone number for correspondence;

(b) a description of the location of the proposed pipeline;

(c) a description of the proposed pipeline;

(d) notice that the application for consent has been made to the Commission or the Minister, as the case may be, and that, in respect of an application made to the Minister, the environmental impact assessment in relation to that application will be carried out by the Environmental Assessment Unit;

(e) a map of the location of the proposed pipeline to a scale of not less than 1:1000 in relation to built-up areas and 1:2500 in relation to all other areas, or such other scale as may be agreed with the Minister for Housing, Local Government and Heritage in a particular case, and marked so as clearly to identify the proposed pipeline and any associated structure to which the application relates;

(f) a copy of the notice referred to in subsection (2);

(g) notification of the location where information in electronic form that relates to the application, including any determination under subsection (1)(b) or (bb), is available on the website of the Commission or the Department, as the case may be.]

(3) Copies of the F94[environmental impact assessment report] shall be available for purchase by interested persons for a fee not exceeding the reasonable cost of making a copy.

(4) Where an F94[environmental impact assessment report] has been submitted in accordance with a requirement of or under subsection (1) of this section, the Board or other person, as the case may be, shall, as soon as may be, furnish copies of the statement to the F97[relevant specified bodies], and shall indicate that submissions or observations may be made F98[F97[to the Commission or the Environmental Assessment Unit], as the case may be,] during F97[a specified period, which shall not be less than 30 days in duration,] in relation to the effects on the environment of the proposed pipeline.

(5) F99[(a) Where an F94[environmental impact assessment report] has been submitted in accordance with a requirement of or under subsection (1) of this section, F98[F97[the Commission or the Environmental Assessment Unit], as the case may be,] shall have regard to the said statement, to any submissions or observations made to him F97[during the specified period] in relation to the effects on the environment of the proposed pipeline, and to the views, if any, furnished by other Member States of the European Communities pursuant to subsection (7) of this section.]

F97[(b) Where an environmental impact assessment report in respect of the construction and operation of a proposed pipeline has been submitted in accordance with this section, the Commission or the Environmental Assessment Unit, as the case may be, may require the Board or the other person, as the case may be, to furnish it with specified additional information in accordance with Annex IV which is directly relevant to reaching a reasoned conclusion on the significant effects on the environment of the proposed pipeline.

(c) Where significant further information is received by the Commission or the Environmental Assessment Unit on foot of a requirement made under paragraph (b), the Commission or the Environmental Assessment Unit, as the case may be, shall—

(i) publish the information on its website, together with a notice stating that during a stated period submissions or observations in relation to that further information may be made in writing to it, and

(ii) send to each of the relevant specified bodies a copy of the information and shall inform the specified body concerned that during a stated period the body may make submissions in writing to it in relation to that information.]

(6) F97[(a) The Commission or the Minister, as the case may be, may, subject to paragraph (d) and where it is satisfied that exceptional circumstances justify so doing, by order, exempt an application from the requirement to prepare an environmental impact assessment report in respect of the construction and operation of a proposed pipeline where that requirement would adversely affect the purpose of the proposed pipeline.]

F100[(b) The Minister shall, in granting an exemption under paragraph (a) of this subsection, consider whether—

(i) the effects, if any, of the proposed pipeline on the environment should be assessed in some other manner, and

(ii) the information collected in the course of such assessment should be made available to members of the public,

and he may, by order, apply such requirements regarding these matters in relation to the application or notice, or the proposed application or notice, as the case may be, as he considers necessary or appropriate.

(c) Notice of any exemption granted under paragraph (a) of this subsection, of the reasons for granting such exemption and of any requirements applied under paragraph (b) of this subsection shall, as soon as may be,—

(i) be published in the Iris Oifigiuil and in one or more newspapers circulating in the area of the proposed pipeline, and

(ii) be given, together with a copy of the information, if any, made available to members of the public in accordance with the said paragraph (b), to the Commission of the European Communities.]

F101[(d) An exemption shall not be granted under paragraph (a) of this subsection in respect of an application or notice or a proposed application or notice relating to a proposed pipeline if another Member State of the European Communities, having been informed pursuant to subsection (7) of this section about the proposed pipeline and its likely effects on the environment in that State, has indicated that it intends to furnish views on the said effects.]

F102[(7) (a) Where the Minister considers that a proposed pipeline, which is the subject of an F94[environmental impact assessment report] in accordance with a requirement of or under subsection (1) of this section, would be likely to have significant effects on the environment in another Member State of the European Communities or a state which is party to the Transboundary Convention or where the other state concerned considers that the said pipeline would be likely to have the said effects and so requests, he or she shall, as soon as possible, send to that state—

(i) a description of the proposed pipeline and any available information on its possible effects on the environment in that state, and

(ii) information on the nature of the decision which may be taken,

and shall give that state a reasonable time to indicate whether it wishes to furnish views on the said effects.

(b) Where a Member State of the European Communities or a state which is party to the Transboundary Convention which has received information pursuant to paragraph (a) of this subsection indicates that it wishes to furnish views on the likely effects on the environment of the proposed pipeline, the Minister shall, if he or she has not already done so, send to that state—

(i) a copy of the F94[environmental impact assessment report], and

(ii) relevant information about the procedure for making a decision on the application or notice concerned.

(c) The Minister shall enter into consultations with a Member State of the European Communities or a state which is party to the Transboundary Convention to which information was sent pursuant to paragraph (b) of this subsection regarding the potential effects of the proposed pipeline on the environment in that state and the measures envisaged to reduce or eliminate such effects.

(d) The Minister shall notify a Member State of the European Communities or a state which is party to the Transboundary Convention to which information was sent pursuant to paragraph (b) of this subsection of his or her decision on the application or notice concerned.

(e) In this section "Transboundary Convention" means the United Nations Economic Commission for Europe Convention on Environmental Impact Assessment in a Transboundary Context done at Espoo, Finland on 25 February, 1991.]

(8) F96[…]

(8A) F96[…]

(9) The provisions of this section are without prejudice to F102[section 39A(6) or 40(4) of this Act].]