Waste Management Act 1996

Grant of waste licences.

40

40.(1) (a) On application being made in that behalf to it, the Agency may grant to the applicant a waste licence subject to, or without, conditions or refuse to grant to the applicant such a licence.

(b) This subsection is subject to sections 42 and 50 and regulations under section 45.

(2) Subject to subsection (5), in considering an application for a waste licence or in reviewing, pursuant to this Part, a waste licence, the Agency shall—

(a) carry out or cause to be carried out such investigations as it deems necessary or as may otherwise be prescribed for the purposes of such consideration or review,

(b) have regard to—

(i) any relevant air quality management plan under section 46 of the Act of 1987, or water quality management plan under section 15 of the Local Government (Water Pollution) Act, 1977, or waste management plan or hazardous waste management plan under Part II,

(ii) F158[(I) the particulars submitted with the application including the F159[environmental impact assessment report] (if any) submitted under and in accordance with F160[this Part, or with] a requirement of, or made pursuant to regulations under, section 45 and any other material including maps and plans,]

(II) any submissions or observations made to the Agency in relation to the F159[environmental impact assessment report],

(III) such supplementary information (if any) relating to F161[such report] as may have been furnished to the Agency by the applicant or licence holder under and in accordance with F160[this Part, or with] a requirement of, or made pursuant to, regulations under section 45,

(IV) where appropriate, the views of other Member States of the European Communities in relation to the effects on the environment of the proposed activity,

F162[(iii) such other matters related to the prevention, limitation, elimination, abatement or reduction of environmental pollution from the activity concerned as it considers necessary,

(iv) the policies and objectives of the Minister or the Government in relation to waste management for the time being extant, and

(v) such other matters as may be prescribed.]

F163[(2A)(a) In this subsection:

application for a waste licence means an application made to the Agency

(i) for a waste licence under section 40, or

(ii) by the holder of the waste licence for a review under section 46 of the waste licence;

F164[environmental impact assessment in relation to an application for a waste licence, means a process in respect of the proposed activity

(i) consisting of

(I) the preparation of an environmental impact assessment report in accordance with section 40(2A)(d),

(II) the carrying out of consultation with the public, public authorities and where applicable, another Member State,

(III) the examination by the Agency of the information presented in the environmental impact assessment report, any supplementary information provided by the applicant in accordance with section 40(2A)(e) and any relevant information received in written submissions made in accordance with regulations under section 45, or objections made to the Agency under section 42(3),

(IV) the reaching by the Agency of a reasoned conclusion on the significant effects of the proposed activity on the environment, and

(V) the integration by the Agency of its reasoned conclusion into its decision under section 42(11A),

and

(ii) including an examination by the Agency to identify, describe and assess the direct and indirect significant effects of the proposed activity, including the expected effects derived from the vulnerability of the activity to risks of major accidents and disasters relevant to it, on

(I) population and human health,

(II) biodiversity, with particular attention to species and habitats protected under Council Directive 92/43/EEC of 21 May 19923 and Directive 2009/147/EC of the European Parliament and of the Council of 30 November 200944,

(III) land, soil, water, air and climate,

(IV) material assets, cultural heritage and the landscape, and

(V) the interaction between the factors mentioned in clauses (I) to (IV);]

F165[environmental impact assessment report means a report prepared by competent experts which contains the following information:

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

(ii) a description of the likely significant effects of the proposed activity on the environment;

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

(iv) a description of the reasonable alternatives studied by the applicant which are relevant to the proposed activity and its specific characteristics, and an indication of the main reasons for the option chosen, taking into account the effects of the proposed activity on the environment;

(v) any additional information specified in paragraph 2 of Schedule 6 to the Planning and Development Regulations 2001 (S.I. No. 600 of 2001) that is relevant to the specific characteristics of the proposed activity and to the environmental features likely to be affected;

(vi) a non-technical summary of the information referred to in subparagraphs (i) to (v);

(vii) a reference list detailing the sources used for the descriptions and assessments included in the report.]

F165[(aa) In carrying out an environmental impact assessment under this subsection, the Agency shall, where appropriate, coordinate the assessment with any assessment of the proposed activity under Council Directive 92/43/EEC of 21 May 19923 or Directive 2009/147/EC of the European Parliament and of the Council of 30 November 20094.]

(b) The Agency as part of its consideration of an application for a waste licence shall ensure before a waste licence is granted, and where the activity to which such waste licence relates is likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location, that, in accordance with this subsection and section 42(1A) to F166[(1I)], the application is made subject to an environmental impact assessment as respects the matters that come within the functions of the Agency including the functions conferred on the Agency by or under this Act.

F164[(c) Subject to paragraph (b) and section 42(1A) to (1l), an environmental impact assessment shall be carried out by the Agency in respect of an application for a waste licence relating to an activity, where development comprising or for the purpose of the activity is:

(i) of a class specified in Part 1 or Part 2 of Schedule 5 to the Planning and Development Regulations, 2001 and either

(I) such development would equal or exceed, as the case may be, any relevant quantity, area or other limit specified in Part 1 or Part 2, or

(II) no quantity, area or other limit is specified in that Part in respect of the development concerned,

or

(ii) of a class specified in Part 2 of Schedule 5 to the Planning and Development Regulations 2001 but does not equal or exceed, as the case may be, the relevant quantity, area or other limit specified in that Part and the Agency, in exercise of the powers conferred on it by regulations under section 45, determines that the proposed activity is likely to have significant effects on the environment.]

F164[(d) Subject to section 42(1A) to (1l), an applicant for a waste licence shall submit an environmental impact assessment report to the Agency in respect of an application that is subject to an environmental impact assessment under paragraph (c) and where applicable, such report shall

(i) with a view to avoiding duplication of assessments, take into account the available results of other relevant assessments of the effects on the environment carried out pursuant to European Union legislation, and

(ii) be based on an opinion issued by the Agency in accordance with regulations under section 45.]

(e) The Agency shall request the production by the applicant of any additional or supplemental information F167[, including information specified in paragraph 2 of Schedule 6 to the Planning and Development Regulations 2001,] that it considers necessary to enable it to carry out an environmental impact assessment as required under this section.

(f) In relation to an application for a waste licence to which paragraph (d) refers

(i) the Agency shall consider the content of the F159[environmental impact assessment report] and any other material including maps or plans submitted as part of the application for a waste licence and determine whether that content adequately identifies, describes, and assesses the direct and indirect effects of the proposed development, and

(ii) if the Agency determines that the F159[environmental impact assessment report] and other material does not so adequately identify, describe or assess, the Agency shall give notice in writing to the applicant for the licence requesting further information, which notice shall

(I) identify the manner in which the content of the F159[environmental impact assessment report] and other material is inadequate, and

(II) require the applicant for the licence to furnish to the Agency additional information required to correct the inadequacy so identified.

(g) In carrying out its consideration of an application for a waste licence and in carrying out an environmental impact assessment F167[, the Agency shall ensure that it has, or has access as necessary to, sufficient expertise to examine the environmental impact assessment report, and] the Agency may have regard to, and adopt in whole or in part, any reports prepared by its officials or by consultants, experts or other advisors.]

(3) F168[]

(4) The Agency shall not grant a waste licence unless it is satisfied that—

(a) any emissions from the recovery or disposal activity in question (“the activity concerned”) will not result in the contravention of any relevant standard, including any standard for an environmental medium, or any relevant emission limit value, prescribed under any other enactment,

(b) the activity concerned, carried on in accordance with such conditions as may be attached to the licence, will not cause environmental pollution,

F169[(bb) if the activity concerned involves the landfill of waste, the activity, carried on in accordance with such conditions as may be attached to the licence, will comply with Council Directive 1999/31/EC on the landfill of waste,]

F170[(bbb) if the activity concerned involves the storage of metallic mercury considered as waste, the storage shall be

(i) carried on in accordance with such conditions as may be attached to the licence, and

(ii) comply with Council Directive 2011/97/EU of 5 December 2011 amending Directive 1999/31/EC as regards specific criteria for the storage of metallic mercury considered as waste.]

(c) the F171[best available techniques] will be used to prevent or eliminate or, where that is not practicable, to limit, abate or reduce an emission from the activity concerned,

F172[(cc) the activity concerned is consistent with the objectives of the relevant waste management plan or the hazardous waste management plan, as the case may be, and will not prejudice measures taken or to be taken by the relevant local authority or authorities for the purpose of the implementation of any such plan,]

(d) if the applicant is not a local authority, the corporation of a borough that is not a county borough, or the council of an urban district, subject to subsection (8), he or she is a fit and proper person to hold a waste licence,

(e) the applicant has complied with any requirements under F173[section 53,]

F174[(f) energy will be used efficiently in the carrying on of the activity concerned,

(g) any noise from the activity concerned will comply with, or will not result in the contravention of, any regulations under section 106 of the Act of 1992,

(h) necessary measures will be taken to prevent accidents in the carrying on of the activity concerned and, where an accident occurs, to limit its consequences for the environment,

(i) necessary measures will be taken upon the permanent cessation of the activity concerned (including such a cessation resulting from the abandonment of the activity) to avoid any risk of environmental pollution and return the site of the activity to a F175[satisfactory state,]]

F176[(j) the intended method of treatment is acceptable from the point of view of environmental protection, in particular when the method is not in accordance with section 32(1).]

(5) Where a waste licence is granted in relation to an activity, a licence under—

(a) Part III of the Act of 1987,

(b) section 4 or 16 of the Local Government (Water Pollution) Act, 1977, or

(c) section 171 of the Fisheries (Consolidation) Act, 1959,

shall not be granted in relation to such an activity, and any such licence that is in force in relation to such an activity shall thereupon cease to have effect in relation thereto.

(6) (a) Where a waste licence is granted in relation to an activity, and a foreshore licence has been granted under the Foreshore Act, 1933, in relation to the same activity, any conditions attached to that foreshore licence shall, in so far as they are for the purpose of preventing environmental pollution, cease to have effect.

(b) The grant of a licence under the Foreshore Act, 1933, in relation to any activity shall not prejudice, affect or restrict in any way the application of any provision of this Act to such an activity.

(7) For the purpose of this Part, a person shall be regarded as a fit and proper person if—

(a) neither that person nor any other relevant person has been convicted of an offence under this Act F177[, the Act of 1992, the Local Government (Water Pollution) Acts 1977 and 1990 or the Act of 1987] prescribed for the purposes of this subsection,

(b) in the opinion of the Agency, that person or, as appropriate, any person or persons employed by him or her to direct or control the carrying on of the activity to which the waste licence will relate has or have the requisite technical knowledge or qualifications to carry on that activity in accordance with the licence and the other requirements of this Act,

(c) in the opinion of the Agency, that person is likely to be in a position to meet any financial commitments or liabilities that the Agency reasonably considers will be entered into or incurred by him or her in carrying on the activity to which the waste licence will relate in accordance with the terms thereof or in consequence of ceasing to carry on that activity.

(8) The Agency may, if it considers it proper to do so in any particular case, regard a person as a fit and proper person for the purposes of this Part notwithstanding that that person or any other relevant person is not a person to whom subsection (7) (a) applies.

(9) The references in subsections (7) and (8) to a relevant person are references to a person whom the Agency determines to be relevant for the purposes of considering the application concerned having had regard to any criteria that the Minister by regulations provides it is to have regard to in determining such a matter.

(10) A waste licence granted to a person under this Part may not be transferred to another person, other than under and in accordance with section 47.

(11) A person shall not be entitled solely by reason of a waste licence under this Part to make, cause or permit an emission to any environmental medium.

(12) It shall be a good defence—

(a) to a prosecution for an offence under any enactment other than this Part, or

(b) to proceedings under—

(i) section 10 or 11 of the Local Government (Water Pollution) Act, 1977,

(ii) section 20 of the Local Government (Water Pollution) (Amendment) Act, 1990,

(iii) section 28, 28A or 28B of the Act of 1987,

(iv) section 57 or 58,

to prove that the act complained of is authorised by a waste licence granted under this Part.

(13) (a) A holder of a waste licence shall, within a period of 1 month after the cesser of the activity to which the licence relates, give notice in writing of that fact to the Agency.

(b) A person who fails to comply with paragraph (a) shall be guilty of an offence.

Annotations

Amendments:

F158

Substituted (30.09.2012) by European Union (Environmental Impact Assessment) (Waste) Regulations 2012 (S.I. No. 283 of 2012), reg. 5(1)(a), in effect as per reg. 1(2).

F159

Substituted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 4(a).

F160

Inserted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 8(a)(i), (ii).

F161

Substituted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 4(b).

F162

Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(b), S.I. No. 393 of 2004.

F163

Inserted (30.09.2012) by European Union (Environmental Impact Assessment) (Waste) Regulations 2012 (S.I. No. 283 of 2012), reg. 5(1)(b), in effect as per reg. 1(2).

F164

Substituted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 8(b)(i), (iv), (v).

F165

Inserted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 8(b)(ii), (iii).

F166

Substituted (26.11.2013) by European Union (Environmental Impact Assessment) (Waste) Regulations 2013 (S.I. No. 505 of 2013), reg. 3.

F167

Inserted (14.04.2020) by European Union (Waste Management) (Environmental Impact Assessment) Regulations 2020 (S.I. No. 130 of 2020), reg. 8(b)(vi), (vii).

F168

Deleted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(c), S.I. No. 393 of 2004.

F169

Inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(d).

F170

Inserted (21.02.2013) by European Communities (Metallic Mercury Waste) Regulations 2013 (S.I. No. 72 of 2013), reg. 2(b).

F171

Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 21, S.I. No. 393 of 2004; subject to a saver in s. 59.

F172

Inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(e), S.I. No. 393 of 2004.

F173

Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(f), S.I. No. 393 of 2004.

F174

Substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(g), S.I. No. 393 of 2004.

F175

Substituted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011 ), reg 20(a).

F176

Inserted (31.03.2011) by European Communities (Waste Directive) Regulations 2011 (S.I. No. 126 of 2011 ), reg 20(b).

F177

Inserted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(h), S.I. No. 393 of 2004.

Editorial Notes:

E445

Application for waste licence under section made subject to European Union (Environmental Impact Assessment) (Waste) Regulations 2012 and European Union (Environmental Impact Assessment) (Waste) Regulations 2013 (30.09.2012) by European Union (Environmental Impact Assessment) (Waste) Regulations 2012 (S.I. No. 283 of 2012), reg. 11, in effect as per reg. 1(2), and (26.11.2013) by European Union (Environmental Impact Assessment) (Waste) Regulations 2013 (S.I. No. 505 of 2013, reg. 7.

E446

Provisions concerning costs of certain proceedings relating to waste licences granted pursuant to section prescribed (23.08.2011) by Environment (Miscellaneous Provisions) Act 2011 (20/2011), ss. 3, 4, 6 and 7, S.I. No. 433 of 2011.

E447

Power pursuant to section exercised (12.07.2004) by Waste Management (Licensing) Regulations 2004 (S.I. No. 395 of 2004), in effect as per reg. 1(2).

E448

Power pursuant to section exercised (23.06.2000) by Waste Management (Licensing) Regulations 2000 (S.I. No. 185 of 2000).

E449

Previous affecting provision: subs. (2)(b)(ii)(I) substituted (12.07.2004) by Protection of the Environment Act 2003 (27/2003), s. 35(a), S.I. No. 393 of 2004; substituted as per F-note above.

E450

Previous affecting provision: application of subs. (1) restricted (3.07.2003) by European Communities (Incineration of Waste) Regulations 2003 (S.I. No. 275 of 2003), reg. 5; revoked (7.01.2014) by European Union (Waste Incineration Plants and Waste Co-Incineration Plants) Regulations 2013 (S.I. No. 148 of 2013), reg. 25(b), in effect as per reg. 25(b).

E451

Previous affecting provision: pursuant to section exercised (23.08.2001) by Waste Management (Licensing) (Amendment) Regulations 2001 (S.I. No. 397 of 2001); revoked (12.07.2004) by Waste Management (Licensing) Regulations 2004 (S.I. No. 395 of 2004), art. 2 and sch. 1, in effect as per art. 1(2).

E452

Previous affecting provision: power pursuant to section exercised (19.05.1998) by Waste Management (Licensing) (Amendment) Regulations 1998 (S.I. No. 162 of 1998); rendered obsolete by revocation of S.I. No. 133 of 1997, see below.

E453

Previous affecting provision: pursuant to section exercised (27.03.1997) by Waste Management (Licensing) Regulations 1997 (S.I. No. 133 of 1997); revoked (23.06.2000) by Waste Management (Licensing) Regulations 2000 (S.I. No. 185 of 2000), reg. 50; subject to transitional provision in reg. 51.

E454

Previous affecting provision: subs. (2A)(c), (d) amended (26.11.2013) by European Union (Environmental Impact Assessment) (Waste) Regulations 2013 (S.I. No. 505 of 2013), reg. 3; subsection substituted as per F-note above.