Transcript Mary Gurrie #envucc 2016

Delivering Environmental Outcomes
Mary Gurrie
26th April 2016
Introduction
 EPA role in regulating businesses
 Environmental outcomes
 Secure compliance
 Provide for liabilities
 Case study?
Regulating businesses
EPA interactions with business
 Licensing, Enforcement, National Waste Prevention Programme,
Emissions Trading, Producer Responsibility Initiatives, Research
 Regulate sole traders to large multi-nationals
 Regulation: compliance & continuous improvement
Scope of presentation
 Enforcement of waste and industrial licences (ca. 760)
 Focus on achieving compliance
(Licences: industrial, waste, urban wastewater, radiological,
genetically modified organisms, VOC)
EPA Strategy 2016-2020
 EPA Strategy 2016-2020 ‘Our Environment, Our Wellbeing’
 Goal to be a Trusted Environmental Regulator
Reduced environmental risks at EPA regulated facilities
through tailored interventions and by ensuring appropriate
financial provisions are in place.
Enforcement approach
 Risk based: the higher the risk the more focussed attention
 Sectoral: identify priorities for each sector e.g. food & drink,
waste transfer stations
 Priority sites: identify worst performing sites and target them
 Strategic priorities: contaminated sites, odour nuisance,
financial provision
How to achieve compliance?
 Spectrum of compliance
 Compliance promotion – guidance, webinars, communicating
priorities etc – make it easy
 Compliance monitoring – site visits, emissions monitoring,
complaints etc
 Enforcement – escalation process
Enforcement Powers
Revocations
Suspensions
Prosecutions on
Indictment
Injunctions
Summary Prosecutions
Statutory Notices and Directions
Warning Letters
Site visits
Networks, Advice and Guidance
Adapted from "Responsive Regulation: Transcending the deregulation debate“, Ayres and
Braithwaite (1992).
Prosecutions





110 cases concluded between 2009 and 2015 in district court
79 convictions, 12 Probation Act
10 cases in circuit court (through DPP)
Fines in circuit court range from €1,000 to €20million
Outcomes: prosecution usually leads to improved compliance,
investment, regularisation
What if offences and non-compliance continues?
 Range of enforcement options
 Prosecution of directors
Obligations on directors
Section 8(1) of the EPA Act and 9(1) Waste Management Act
Where an offence under this 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 have been facilitated by any
neglect on the part of any director, manager, secretary or any
other officer of such body, such person shall also be guilty of an
offence.
Holding directors to account




Show consent, connivance or neglect
Make directors aware of non-compliance
Compliance meetings
Direct correspondence e.g. site visit reports
Experience
 Directors do not want to be prosecuted
 11 cases since 2011 included directors – one conviction
 Probation Act often applied
Providing for liabilities
Lessons learned
- Irish Ispat
- Neiphin Trading Ltd
- Greenstar
Needed a strategy…
Legal Context
 Explicit requirement under both the Landfill Directive and
Extractive Waste Directive that financial provision is made for
liabilities
 Requirement for licensees to meet ‘fit & proper’ criteria
(a)…neither that person nor any other relevant person has
been convicted….[under relevant Acts]
(b)…has or have the requisite technical knowledge or
qualifications….
(c)…that person is likely to be in a position to meet any
financial commitments or liabilities…in carrying on the activity
...or in consequence of ceasing to carry on that activity.
Financial Provision
EPA’s Strategic Plan 2016 – 2020
 Reduced environmental risks at EPA regulated facilities
through tailored interventions and by ensuring appropriate
financial provisions are in place.
Two stages
 Assess and cost liabilities
 Put financial provision in place
Costing liabilities
Guidance on Assessing & Costing Environmental Liabilities (2014)
Known liabilities
• Closure, clean-up, aftercare, restoration
• Sites: landfills, mines, contaminated land
• CRAMP: Closure, Residuals & Aftercare Management Plan
Potential liabilities
• Incidents: spills, fires, explosions
• Sites: Seveso, large volume chemicals, waste facilities
• ELRA: Environmental Liabilities Risk Assessment
Securing Financial Provision
Guidance on Financial Provision for Environmental Liabilities (2015)
Principles
•
•
•
Secure (for the duration of the licensee’s obligations)
Sufficient (to cover the cost of all environmental liability risks)
Available (when required)
Acceptable FP Instruments
•
•
•
•
•
Secured fund
On-demand performance bond
Parent company guarantees
Charge on property
Environmental liability insurance
Current Position
 Programme in place to target facilities with highest liabilities
 Good progress on agreeing closure costs
 Progress on agreeing incidents costs since insurance became
acceptable
 Templates for various FP options are developed
 Costings agreed for 123 sites (closure) and 95 site (incidents)
 €110 million secured to date for 49 sites
 Securing FP is a strategic priority and, with all elements now in
place, EPA will be enforcing licence requirements
EPA v Greenstar Holdings Ltd
 Greenstar receivership in August 2012
 Loans of €80m called in by banks – led to a €12m “cash sweep”
 Certain assets in the group put into receivership; liabilities left
behind
 One landfill put into liquidation
 The funds to provide for closure and aftercare were taken by
creditor banks after the appointment of a receiver.
 The issue before the court was whether the monies collected
under section 53A “were required by law to be used solely” for the
statutory environmental purposes and were not available to
Greenstar for use otherwise.
EPA v Greenstar Holdings Ltd
 The court (Finlay-Geoghegan J) took the view that Article 8 of the
Landfill Directive indicated how effect was to be given to Article 10
 The provisions of national law implementing Article 8 “enable (and
possibly oblige)” the national authority to require the provision of
financial security to meet the aftercare obligations.
 Article 10 was only “directed to the computation of the price” to be
paid by waste producers.
 There was nothing in the words of Section 53A that placed a
restriction upon the use of the charges when collected.
 An appeal has been filed in the proceedings
Thank you for listening