As developments and land use progress there may be reasons to change the originally proposed delivery of a project, particularly for complex projects such as those regulated by the Environment Protection Authority (EPA). To have a rigid set of environmental conditions may impose unreasonable administrative burden on proponents and government through a lack of flexibility.
As new information becomes available it is reasonable to vary permit conditions to allow for adaptive regulation of industrial activities. More or less restrictive conditions may be imposed.
Section 44 of the Environmental Management and Pollution Control Act 1994 (EMPCA) sets out the roles in issuing Environment Protection Notices (EPNs). An EPN is one of only a few regulatory tools provided for in EMPCA.
The powers of the EPA Director to vary a permit via an EPN are not unfettered. The process requires the applicant to submit whatever material is requested by the EPA Director for assessment. The EPA Director sets out the grounds for why a variation to a permit is desirable and must have regard to what the fundamental use of the original approval is for.
There are two main types of EPNs:
In the recent Venture Minerals matter an EPN was issued under section 44(1)(d) of the EMPCA. This type of EPN serves to vary to conditions of a permit issued by the Planning Authority under the Land Use and Planning Approvals Act 1993 (LUPAA). Following environmental impact assessment, the EPA Board provides conditions to the Planning Authority for inclusion in a permit, should it be granted. Once the permit is issued the development must operate in accordance with those permit conditions. The conditions of a permit may be varied periodically, such as following an internal review by the EPA or if there is a change in the understanding of the impacts of the activity or operations at the site. These permits are linked to the land being developed or used.
Where the Director is satisfied it is necessary, another type of EPN may be issued to require remediation of environmental harm, and/or as a pro-active measure, requiring actions to prevent environmental harm occurring. An example if this is the February 2022 fire at the Rocherlea site of Recycal. After this incident, the Director, EPA issued two Environment Protection Notices (EPN) to prevent Recycal from discharging any water from their site, and to require a reduction of the stockpiles, testing of the shredder floc, and a stormwater management plan to be prepared, amongst other measures. These types of EPNs are served on the person responsible for the environmentally relevant activity.
Where an EPN is issued under section 44(1)(d) of EMPCA to vary the conditions of a permit there is a requirement in section 44(8) for all representors to be notified of the EPN and the reasons for varying the conditions.
All currently active EPNs and permits can be accessed via the LISTmap. Also, the EPA publishes the number of EPNs issued each financial year in its Annual Report.