I1

Hoey & Denning Solicitors High Street Tullamore Co. Offaly.

Date: 16/09/09

1 Environmental Protection Agency An Ghniomhorteorht urn Choornhmi Comhrhooil

Regional Inspectorate McCumiskey House, Richview, Clonskeagh Road, Dublin 14, Ireland

Cigireacht Reigiunach, Teach Mhic Churnascaigh Dea-Radharc. B6thar Chain Sceach Baile Atha Cliath 14, tire

T: t353 1 268 0100 F: +353 1 268 0199 E: info@epa.ie W: w.epa . i e

LoCall: 1890 33 55 99

Re: PO720-02 Mr Robert Dowley Installatiodcorrespondence address: Mr Robert Dowley, Tybroughney Pig Farm, Pilltown, Co. Kilkenny.

Dear S ir/Madam

Further to your letter, received by the Agency on the 7‘h August 2009, submitted in response to the Agency notice, dated 1 3‘h July 2009, issued in accordance with Article 1 1 (2)(b)(i) of the EPA (Licensing) Regulations 1994 to 2004.

You appear to seek an opinion as to interpretation of the Environmental Protection Agency Act. It is not the function of the Agency to provide legal advice to applicants or potential applicants. It is the view of the Agency that information to demonstrate adequate recovery capacity for the slurry generated on site is required in order to comply with the EPA Acts, and we should refer you to the judgment of the High Court in Brady v. Environmental Protection Agency in this respect.

Article 10 of the EPA (Licensing) Regulations 1994 to 2004 states that “An application for a licence shall be submitted to the headquarters of the Agency and shall be in such form as may be determined by the Agency”. In addition Section 83(5)(a) of the EPA Acts 1992 to 2007 state: “The Agency shall not grant a licence or revised licence for an activity unless it is satisfied that (v) any emission from the activity will not cause significant environmental pollution.” The Agency considers that information regarding the recovery of slurry/manure generated at your installation must be provided in support of an IPPC Licence application despite the requirements S.I. 378 of2006

The format of the information necessary to demonstrate adequate recovery capacity for the slurry generated is as outlined in correspondence between the Agency and the IFA in 2008, details have been copied to your client previously, see copy of the letter dated the 30th March 2009 attached.

‘The Agency notes that a licence application was previously submitted to the Agency in relation to your clients pig farm located at Tybroughney Pig Farm, Pilltown, CO Kilkenny, under your clients name. ’This licence application was returned to the applicant in August 2008 in accordance with Article 11(2)(b)(i) of the EPA Acts 1994 to 2004. ‘The Agency notes that a letter was issued to Mr. Robert Dowley, Tybroughney Pig Farm, Pilltown, CO Kilkenny, dated the 12Ih January 2009 and

another letter was issued to Mr Robert Dowley, dated the 30th March 2009. The Agency considers that these letters clarify the information deemed necessary regarding the recovery of slurry/nianure generated at your clients installation (for your convenience please find attached the letters dated the 12'h January 2009 and 30'h March 2009).

You seek all reports and documentation prepared by the Agency in relation to your clients licence application, PO720-02. Attached is a copy of the Inspector's Report submitted to the Board of the Agency, recommending rejection of your clients IPPC licence application, PO720-02. The Board approved the recommendation at their meeting on the 7'h July 2009. Attached also is an extract from that Board meeting in relation to your clients IPPC licence application. The Inspector's Report made reference to the previous licence application submitted in relation to your clients installation, PO720-01,

The Agency considers that the agreement reached with the IFA in 2008 represents Best Available Techniques (BAT) in relation to the recovery of sluny/manure arising on intensive agricultural activities which are required to hold an IPPC licence.

Q)

For your information all correspondence in relation to your clients licence application, P0720-02, is available to view and download from the EPA website (www.epa.ie), also note that all correspondence in relation to licence application PO720-01 in relation to your clients pig farm is also available on the EPA website.

Please note that unless your client applies for a licence, and provides the information necessary to satisfy the Agency that the application complies with Article 10 of the EPA (Licensing) Regulations 1994-2004, proceedings may be instituted against your client for operating without a licence.

Yours sincerely

Programme Manager - Environment Licensing Programme

a.

Reg. No. 1'0730-01

Your qur$riorrr 4 and 3 appear la reek an opiniun us IO inrerprelation of the Enrironn!emaI holeclion h g m y Act It 15 nut lhe function of Ihc Agency to provide legal advicc io licencc applicanrs or pultntirl upplisani:. 11 ih thc view or the Agency thuc informicion lo demonscrnte &quale rccosev cspaciiy Fm the r ! u q gcrrcratrd tin sire is required in order 10 comply with the ALL and stc should d e r you io the judyemenl ofrhe High Coun in Hrudy \ , Envirunmental Prolrvtion Agens?. in thi.: r r s p w .

Your qucslionr i and 8 seek docurnens prcparcd by thhe Agency in relation lo your applicarron. tiowever JS you iievcr rubmiavd a valid application this docwncntauon ul~l mtnimul. hllached is a copy uithc mcma suhmittcd to Ihc Ilrrutrl. recolnnicndlng re)ecrion oidr-vrs incomplete licence applicalionr. the h 4 r d apprwcd thc rccommendatiun at their mccting on the h September 2007

Follouing rejection ol'yovr Jppfication. j o u are odvkrd that you should milkc a new iippiicalion for a liccncc. lr! uc Iirupnsc t u icco~cr your pigcry's dun-) by landsprcadlng. yo11 shoitld submit a propriwl in ltne with rhe Agency's currcnr practice. u h d t is sur out in rhe :rtWchcd lcrier issued by ihc Irish f~rnir.rr\hrruciulion in Junu:q 2 0 0 8 ;md i lunher clarificaucm nlp011ils also atlachcd. ?'he

,cr.cj is rntirfied.tltai the% urtongciiients nred the RCJI Avnilahlc 'Techniques burndud for dealing tkt~ slurry Any aliematire propxals yclu suhinit will he cunsidcred. but tnuy nai Dc ~fccptoblc. Picase note thit unlesc gou apply for a licencc. procccdtnys niay bo instituted egoinst yuu for upwaling willrout B Iiccilcc.

a Mr. Kokrt Dowley l’ybmugtiney Pig I:ami l’ybrougii ncy I’iltown Co. Kilkenny

30” March 2009 Our Ref: PO720-01

Ucar Mr. Dowley,

The Agency acknowledges rcceip( of p u r fetter, reccivcd on the 17’” Febnrary 2009. In your letter you seek responses to thc following three p in t s und ctt least Item 2 of your previous letter:

11) Docs tl& EPA und ils ugcnts rrcognise (ind irknnwledge tlrot ihu moriugenieni t r r d risc ifl rill frrlilisers on Jkrnrlund in crll huldinys irr h e Slate is nitw cmtrolld hy reference lo rht stcnidmh prescribed in XI. J 78 (4 2006;

?be XP.4 and ifs ngents ri*cognisr und ucknon~ledfir Ora lhc controlv Imivided /or in XI. 378 (+f2006, in rclirion io ihe uw ojpig nrutiurr priidiimi in U holding nrc .similar io irnd no moro omrow Ihuti ilit cun~rol,s in reidon lo mmw produced I1.v other furnred urtimals in the ,some holding:

c) 1)or.s iht! KPA nnd ils o p / , s rccujinisr und aelcknoivlwY$y lhur lhr conirolr p r o i ~ ~ d d Fir in S.I. 378 of2006. in relafiou io the u.w qfpig mnnuro tofcrlilhcfornrlanrf in N tioldiny, upply rvpally und similrrly to the occupiers of uN IiddinfF in (he .VtiJte.

b)

ltcm 2 of previous letter A clew and precisr refermce lo, und slu~enrenl i$ [he prrrt(.~)~s:urrb-irrlicle.~(s) of Article IO f)j rhc licensing Regularions thot tlic A/Jp/il’ml. or d~~cun~crrtmtiorr submitted cfuring lhe procwsing rfrhe Application, did mil conloin.

S.I. 378 of 2006 is national legislatioo, which the Agency is aware of‘ and recogriiscs fully. Pig rearing activities, which exaud the licensing Ifiresholds spccificd in the First Schedule of the EI’A Acts I Y W to 2007. arc wquired to hold an IPPC Liccncc. S.I. 378 of 2006 does no1 negate a licensee’s obligation to hold a licence. ‘l’lie Apricy considers il ncwsstuy for n licence applicant to deniuns~ntte tho1 they have adequatc recovery capscity available for tho recovery of‘ slunylmanun: generated at their installation. ’I’he ncccptable arrangement for deiiwnstnitioii UT such rccovcly capacity WHS agreed IO, ILllowiny prolongccd ncyotialion. bctween the Agency and the IPA, as.the lamer representativu body. 1)etails of the agreed arriuigerneiits wvcrc iiitachcd lo the Agency response to you dated lhe 12” January 2009. ‘I’he amrigernenr agreed does not requim the license applicant to control or muage third pwly f‘annland. Regardless of whether or not you align yourself with tlie terms nf the agreement reached with fhe [PA, die Apncy requircs you to submit a Nutrient Manngetiient Plan lo thc satisfuctiori of the Agency, which tlernonstratcs adequate rwovcry mpacity for sliiny/manure yenerxted.

Aiticlt: IO orthe I3’A (1,icensinfi) Kcpulationb 1994 lu 2004 ,(atus that “An applicafion for a licwce sliitll be stibmittcd to the headqimters of the Agcncy and .;In11 be in such form as may

he tle!criiiined by the Agency". In addition Section 83(S)(a) of the Iil'A Acts 1992 lo 2007 state: "'l'hc Agcncy rlinll 1 1 0 1 p n t 11 licciicc or mvised licence for 811 activity nnless it is sqtisfied that (v) any emission' frain thc activity will not cwsc significant mvironrnen!al pollution." The Agency considen that infom~atiori regartling the recovery of slurrylninnure peiicrnlcd at your installation inii?t be provided in suppon of an IIW Licencc :rpplication dcspitc the requircnicnls S.I. 3 7 8 of1006.

Atlachcd pleilscr fiiid n copy of thc fdlwving lclter$, which are cclnsidered ro reprcwnl the agreed m:tngenients (nflecincnt) bc?wccn thc IFA and Agency:

I.ctter lroin the Agcncy to the II'A ( I 4Ih January 2008); I.cucr froin IIA to All Pig and I'uullr). Prtxfucers (25Ih J:inuary 2008); 1.ctter from the Agency lo I iccnwJ Pig and Poiillry inshillntiws (26" March 2008); ;tnd Letter of clarification siibinitted to the Agency lioin IF4 (23" October 2008).

'l'hc Agency believes that il cannot clarily the position iiinlier and \*.elcomes your cotniriilinciil to mdkillg a, licciire application within 3 wccks of the (lale on which you receive it response to your questions. 'l'hc Agency must hring to your attcntion that unless you apply for Y liccncc, prtxccdiiigr inay In! iristitutrd against you Cur iiperxting widiou! n liceiicc.

0

Yours s i y r c l y . c7 I .aura Burke 1)ircctor I<iivironmcntal 1 .iccnsing Prograniinc C)IEcu ofClirir:tre Licerising & Hcsoiircr L i s

Y

14 Jan 2008

Pleaso fiud attached a iummary table showing wh31 is required of IPPC applicants find licensees in the pig and pottltry snctor us disciisscd and agreed at our meeting on I 1 JRllUtlly.

I believe ttiat h e arrangements DIT fair and nasonabla md avoid duplication 1 1 1 Ibis highly tegulatetl m u , I rrotrfd like to thank you fo; your continued cffurts lo read! U

solution to this long-nniiiiig issue and I look forwnrd to the new a r rmp ien t s liein[: implemented in full b) the intensive agriculture sector.

Yours siiicercly,

4 c c

's i I 'n

i ; i I

____...__I- --.-.

I

The proceduru and arrangements are (19 follows: No Submitted lo EPA Retained by EPA Returned

and placed on lo f l e Licensee

I Annual production of manure and N & Yes

2 Summary table of customer fanners. NM Yes

P content.

3 Map (1:5O,OOO scale) showing locations YeS of farms.

4 1 Nutrient Management Plans for dl lands No Yes / demonstrating adequate capacity for i rccovcry ofthe material at I above. 'Orr

that lands have been inspected and am suihble for landspreadjng

5 Declaretion by suitably qualified p a w n YeS

6

7

- .VT& 1: Updated% required IO include ahditicnal lands acquired during h e

'+ The Irish Farmers' Associahon 1 _.I^.. .. _......._ ... . . ,"., . ... ... , . IRISH FARM CENTRE, BLUEBELL, DUBLIN 12. !el' I l J i ] 450 oca fm (0:) 455 l M 3 Emad mstinostor@ifa.ie Web w ila e

Retained by lice= on-sk

YeS

Yes

Yes

Yes

Yes

I

Maps (1 : 10,560 scale) showing the land to be used.

Manun: register showing details of all nmnurc dispatched for landsprcading.

-__.. - year.

k:Ial)srution on tl ievr p i n t s :

'fbc mnud prutluL,lion of iriariurc and [he N A P cuii1mt should he culculatcd OS per tl!r Ni~r:t~es Kc:gtil;itions (S.I. 378 of 20061.

' h e Si~mi i i~ i ry [able oi'casromcr Fmiers: :\ codecl lisT (eurmplz ntlislied) inust hc conil?ilid hy pip wid poultr). proJuccrs s1:d zcni IO thc I:PA at Ihe Ibeqinriing cltench !c,ir. P i d u c u r s c.111 :~iiiciiJ itiis lish duriiiy I I ! ~ )ci!r \(I incluJc iicw ciish)r!crs ;is may >:!se rroiii lime LCI timu.

A register o f inanurc mowmenis is requircd under SI. 378 oi'?006. A record of qiiuitities and dispatch to each cusionier farmer i n i ~ q t he recorded :md held on the producer's fitrm. This conlidcntial information is to be maintained on the producer's farm and is no1 submitted lo the Agency but may be inspected hy Agency personnel on site.

A Mop ( I :50,000 scale) showing the location of customer farms mwc be submitred lo '!he EPA for their records+yhch farm is denoted by n dot.

In assessing the quantity nnnual nitrogen and phos from DAFF is the uyreedjblasir for calculation.

7-7 ure that can be delivered to Q cusomer famier, the s statement, which every livestock fanner receives

er hns ndditional livestock other than bovines (e.g. nal nutrients must be included.

customer farmem cm use orgunic fertilizer up to the r various crops under S.I. 378 o f 2006.

custome~s fa&wd a copy of these maps mug be mainlained on the pig or poultry unit. Ijhqc maps are confidential and arc not submitted to the agency hut m& be inspected by Agency personnel on site.

1. 1 3. Area aid mapsl(ili10.560) can be used to determine the area of thc

The Agency requires a farms are suitable for I agricultural scicncc graduates, 'l'eagasc &visors and reps planners.

Licensees adhering to th in any existirig or pendiri

Yours Sinccrcly,

n by a suitably qualified person that thc cusforner ing o f organic manure. Such persons include

I . I ! / I 1s c m cite such adherence as a good defence

Expectet] Customer I..ist 2008'

I,icence Rep. Nilmher:

TOTAL

26‘” March 2008 Our Ref:

RE: EPA Licensing of intensive Pig & Poultry Seetnr

Dear

The 1;ible overleaf clarifies the information required from IPC/II’I’C licensees md IPPC applicants, who wish to cany out landspreading as a mews of recovery of slurryimmure generated from their installation. It is issued following agrecmenl between the Agency and the 1FA in recent weeks on the information required by the Agency froin the intensive agriculture sector. The table links to guidance previously issued CO this sector by the Agency on 21” June 2007.

Please contact the inspector for your facility i f you have queries in relation to this correspondence.

Yours sinccrcly,

Mr Kierdn O’Brirn I’rogramme Manager Oflice of Environmental Enfurcement

...........

I

W

e d 9

1----

-. t-- I

......

I r-

. .

'4. ' Farm Customer Organic N produced on

Hectares DAFF N%P Slatemcnt) Code farm- customa farm (as per

a Rquiremcnt of Total N kg customer fanu to delivered. Lnpoct o r g d c N (up to 17Okgfla)

CLIMATE, 1 OF OFFICE LICENSING & RESOURCE USE

1 TO: DIRECTORS

1 FRQM: Yvonne Furlong - Environmental Licensing Programme 11 DATE: 2/07/2009

RE: Assessment of Mr . Robert Dowley, Tybroughney, Pi l town, Co. Kilkenny Applicat ion - Reg. No . PO720-02.

Application Details

An application for an IPPC licence under Class 6.2 “The rearing of pigs in an installution, whether within the sume complex or within 100 metres of the same complex, where the capacity exceeds 285 places for sows in an integrated unit” was received from Mr. Robert Dowley on 20th May 2009.

The installation was the subject of an earlier application from Mr. Robert Dowley, Reg. No. PO720-01, A Notice in accordance with Article 1 1 (2)(b)(i) of the EPA (Licensing) Regulations, 1994 to 2004 was issued on 21” August 2008 rejecting the application, Reg. No. PO720-01. This notice was sent on the basis that the application and documentation submitted in support of the application did not contain the necessary information for the Agency to satisfy itself that the application complied with Article 10 of the licensing regulations or to allow it to make a decision on the application in the absence of the information.

In the previous application (Reg. No. PO720-OI), the applicant had identified that slurry from the installation was to be landspread on third party farms as a means of recovery of the slurry. In order for the Agency to consider the landspreading operation as an appropriate means of recovery of the slurry, the Agency requested details of the lands involved. However, the applicant failed to submit the required detai 1 s.

The current licence application (PO720-02) does not include any details of the proposed landspreading of slurry generated at the installation and does not provide the information as agreed between the Agency and the IFA in correspondence in 2008, see attached:

The applicant states the following in Attachment No. E.3.B of the application: “The application contains no proposal in relation to “landspreading of pig slirrry or iir relrtion to upplicntion rates, periods of application and inode of application, as there is no landspreading in the installation, and crll those cletails are the responsibility of the occupiers of holdings who acquire consignments of manure pain the installotion for their use, in circiirnstrrnces where their use is controlled under regirlations prescribed SI I01 of 2009. The applicant does not and cannot control, or pretend to control, actions or practices qf others outside the installntion. ”

Recommendation It is considered that the Agency cannot proceed to assess the licence application in the absence of information relating to emissions from the activity, which includes the landspreading of slurry. While the Agency agrees that the Nitrates Regulations, S.I. No. IO 1 of 2009 is the statutory instrument, which controls landspreading practices in order to protect waters against pollution from agricultural sources, it remains the case that the applicant has failed .to adequately demonstrate to the Agency that there is adequate recovery capacity available for the slurry generated at the installation.

In the circumstances, I recommend that the licence application PO720-02 be rejected in accordance with Article 11(2)(b)(i). Please find attached a recommended draft Article 11(2)(b)(i) letter, which will be issued to the applicant if approval to do so is forthcoming from the Board of the Agency.

Signed: Yvonne Furlong

Date: 02/07/2009

Extract from the 58.fb Licensing Meeting of the Agerrcy, held on Th July N U Y , in Heudquwtcrs, Jolrnstonw Castle Estate, CO Wexford

4. Rejection uf IPYC Licence Applicrtioou M r Roberf Duwley - Reg No PO720-02 'I'he Directors considered n recorninendation from rhe Oflice of Climote. I.icensing and Resource [!se to reject rhe incornplere licciice application received from Mr. Robert Ihwlcy for an intcnsivc agriculture unit (Class h.?) tit Tybmughney, Piltown,-Co Kilkenny. Following discussion, and based on thc information belbre them, thc Directors approved ' the recoinrncndution as detailcd in the Mcmor*ndum detcd 2 July 2009. 11 was noted that OCLR will liaise wilh the lnrernal Lcgal 'learn. OEE,-to fimlise the wording of rlie notiticstinn to he issued IO rhe applicant.