This Report has been cleared for submission to the Boardby Programme Manager Marie O’Connor

Signed: _ _ Date: 6th August 2020

OFFICE OF ENVIRONMENTAL SUSTAINABILITY

REPORT OF THE TECHNICAL COMMITTEE ON OBJECTIONS TO PROPOSED DETERMINATION

TO: Directors Environmental Licensing FROM: Technical Committee Programme DATE: 06/08/2020 Objection to Proposed Determination for DAIRYGOLD CO- RE: OPERATIVE SOCIETY LTD AND TINE IRELAND LTD Mogeely, County , P25 Y996, IEL Reg: P1103-01

Application Details Class of activity: 7.2.1 - The treatment and processing of milk, the quantity of milk received being greater than 200 tonnes per day (average value on a yearly basis). Location of activity: Mogeely, , P25 Y996 Licence application received: 13 February 2019 PD issued: 19 February 2020 First party objection received: No Third Party Objection received: Yes Submissions on Objections Yes received: Regulation 36 (1) extension of 23 July 2020 time:

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Company Dairygold Co-Operative Society Limited (Dairygold) has been in operation at Mogeely since 1986, producing over 12,000 tonnes / year of cheese. The site is located on the outskirts of Mogeely, a village in east County Cork, 10km east of . The application relates to a new cheese manufacturing plant for the manufacture of Jarlsberg cheese, which is independently owned and operated by Norwegian company, TINE Ireland Limited (TINE). This expansion will result in an increase in cheese production at the installation to 37,500 tonnes / year by 2025. Both Dairygold and TINE made a joint licence application to the Agency to cater for this expansion. The main activities carried out at the site are raw milk processing and cheese making. The processes and unit operations associated with these activities include: milk intake and storage, raw milk processing (namely separation, and standardisation), processing of the milk into cheese (namely pasteurisation, coagulation, moulding & extruding and brining) and distribution of end products (cheeses) and by-products (liquid whey and cream). The installation will occupy an area of approximately 7.9 hectares. It will operate 24 hours a day, 7 days a week, however this will reduce during off peak months (November to February). The installation will employ approximately 161 permanent staff when fully operational. Forty-nine valid submissions were received in relation to the application and these were considered by the Board at PD stage. Consideration of the Objections The Technical Committee, comprising Jennifer Cope (Chair) and Eoin McCaffrey, has considered all of the issues raised in the objections and submission on objections and this report details the Committee’s comments and recommendations following the examination of the objections together with discussions with the inspector, Orla Harrington, who also provided comments on the points raised. This report considers the ten valid third-party objections, and one first party submission on objections. A third-party submission on objections from An Taisce is deemed to be not in accordance with Regulation 26(5) of the Environmental Protection Agency (Industrial Emissions)(Licensing) Regulations 2013 as amended and therefore has not been considered by the Technical Committee. Irish Water provided comments on objections. These comments have not been considered by the Technical Committee as they were received after the expiry period stated in the EPA notification letter. There was no first party objection. Four third party objections requested an oral hearing of objections. On 26 May 2020, the Board of the Agency approved the recommendation of the Licensing Inspector that an oral hearing of the objections was not required, and the reasons are set out in the Board Minutes which are available on the EPA website.

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The main issues raised in the objections and the submissions on objections are summarised below. However, the original objections and submissions on objections may be referred to for greater detail and expansion of particular points. First Party Objection There was no first party objection. One first party submission on the objections was received. Submission on objection Date Received Mr. Alan Beatty, Dairygold Co-Operative Society Limited 27/04/2020 and Tine Ireland Limited, Dairygold, Speciality Cheese, Mogeely, Co. Cork.

It is noted that the first party submission on objections states that “the submission on objection by An Taisce of 22 April 2020 is not in accordance with the Environmental Protection Agency (Industrial Emissions)(Licensing) Regulations 2013 and therefore should not be taken into consideration by the Agency as is it not a submission rather is a further new impermissible ground of objection, which the Agency acting lawfully ought not take into account.” Technical Committee Evaluation The TC considers that the submission on objections from An Taisce submits further submissions in relation the objection and further elaborates on the points made in the An Taisce objection. As stated above, the TC deems the third-party submission on objections from An Taisce to not be in accordance with Regulation 26(5) of the Environmental Protection Agency (Industrial Emissions)(Licensing) Regulations 2013 as amended and therefore has not been considered by the Technical Committee. Third Party Objections Ten third party objections were received. For convenience they are labelled Objection No.’s 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 respectively. The TC notes that a number of these objections included contributions from other parties but in their consideration the objections were considered in their totality and assigned to the name of the objector.

Objection No. 1 The points of objection relate to the Date Received following issues: Ian Lumley, • Environmental Impact Assessment 06/03/2020 Heritage Office, • Impacts of the project on greenhouse gas An Taisce, emissions, biodiversity, air pollution Tailor’s Hall, (ammonia) and water quality Black Lane, • Appropriate Assessment Dublin 8. • Site Suitability and prematurity of the licence

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Objection No. 2 The points of objection relate to the Date Received following issue: Mr Michael • Water Quality 12/03/2020 McPartland, Inland Fisheries Ireland , Sunnyside House, Macroom, Co. Cork.

Objection No. 3 The points of objection relate to the Date Received following issues: Mr Simon Mould, • Appropriate Assessment 13/03/2020 Save Cork Harbour • Water Quality campaign, • Flushing rate of the Channel Gortstoke, , Co. Cork.

Objection No. 4 The points of objection relate to the Date Received following issues: Mr Tony Lowes, • Environmental Impact Assessment 13/03/2020 Friends of the Irish • Impacts of the project on greenhouse gas Environment, emissions, biodiversity, air pollution Kilcatherine, (ammonia) and water quality , Co. Cork.

Objection No. 5 The points of objection relate to the Date Received following issues: Mr Paul Murphy, • Water Quality and Shellfish Directive 16/03/2020 Saleen & District • Flushing rate of the Great Island Channel Residents and pattern of water movements Association, • Alternatives, effluent treatments and Church Cottage, discharge locations East Ferry, Midleton, Co. Cork.

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Objection No. 6 The points of objection relate to the Date Received following issues: Miss Debby Hayes, • Appropriate Assessment 17/03/2020 Protect East Ferry • Water Quality Waters, • Effluent dispersion modelling, flushing East Ferry, rate of the Great Island Channel Midleton, • Alternatives, effluent treatments and Co. Cork. discharge locations

Objection No. 7 The points of objection relate to the Date Received following issues: Mr Peter Sweetman, • Environmental Impact Assessment 18/03/2020 Rossport South, • Appropriate Assessment Ballina, Co. Mayo, F26 T2P4.

Objection No. 8 The points of objection relate to the Date Received following issues: Mr Allan J Navratil, • Impacts of the project on greenhouse gas 18/03/2020 Harbour emissions, biodiversity, air pollution for a Safe (ammonia) and water quality Environment, • Appropriate Assessment Ballinacurra Hse, • Water Quality and Shellfish Directive Midleton, • Alternatives, effluent treatments and Co. Cork. discharge locations • Flushing rate of the Great Island Channel and pattern of water movements • Pipeline connection • Site Suitability

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Objection No. 9 The points of objection relate to the Date Received following issues: Mr David Hugh- • Environmental Impact Assessment 18/03/2020 Jones, • Appropriate Assessment Atlantic Shellfish • Water Quality and Shellfish Directive Limited, • Effluent dispersion modelling, flushing Rossmore, rate of the Great Island Channel and , pattern of water movements Co. Cork. • Alternatives, effluent treatments and discharge locations • Site Suitability and prematurity of the licence application • Performance of Midleton MWWTP, stormwater overflows and Rathcoursey outfall, and the pipeline connection

Objection No. 10 The points of objection relate to the Date Received following issues: Dr Gordon Reid, • Environment Impact Assessment 18/03/2020 Green Party/ • Appropriate Assessment Comhaontas Glas, • Water Quality and Shellfish Directive Bracken, • Effluent Dispersion Modelling, Flushing Boardee, rate of the Great Island Channel , • Alternatives, effluent treatments and Co. Cork. discharge locations

The Technical Committee wishes to clarify that any objection or submission on objection made to the Agency in relation to a licence application, can only be made to the Proposed Determination, as approved by the Board of the Agency. Therefore, points raised by the objectors in relation to the Inspector’s Report have been noted but are not discussed in detail in this report. The points of objection do not relate to specific conditions of the Proposed Determination, but rather relate to the issues listed below. For clarity any submissions on objections are dealt with in association with the issue to which they relate. The Technical Committee has grouped these objections based on the issues raised. B.1 Environmental Impact Assessment B.2 Impacts of the project on greenhouse gas emissions, biodiversity, air pollution (ammonia) and water quality B.3 Appropriate Assessment B.4 Water Quality and Shellfish Directive

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B.5 Effluent dispersion modelling, flushing rate of the Great Island Channel and pattern of water movements B.6 Alternatives, effluent treatments and discharge locations B.7 Site Suitability and prematurity of the licence application B.8 Performance of Midleton MWWTP, stormwater overflows and Rathcoursey outfall, and the pipeline connection As stated earlier, on 26 May 2020 the Board of the Agency decided not to hold an oral hearing of objections to the Proposed Determination. The objections and submissions on objections have been fully considered by this Technical Committee. B.1 Environmental Impact Assessment The view is expressed (for particular details see third party objection tables above) that there was a lack of adequate Environmental Impact Assessment under Council Directives 2011/92/EU and 2014/52/EU undertaken in relation to the activity. It is expressed that the cumulative and in combination impact of the discharge of effluent via a pipe from the installation to Cork harbour has not been assessed in accordance with the EIA Directive. It is expressed that as this is the last process in the EIA it must assess cumulative effects. Therefore “as respects the matters that come within the functions of the Agency, the EIA is flawed as the whole must be assessed.” The material before the Agency does not equip it to satisfy its obligations under the EIA Directive (Habitats Directive and EPA Act 1992 as amended). It is contended that 2014/52/EU EIA Directive applies from 16 May 2017 and the objector is of the opinion that the Agency is mistaken in assessing the licence application under the 2011 EIA Directive. Submission on Objection: Mr Alan Beatty, on behalf of the applicant, asserts: That there was sufficient evidence before the Agency to enable its decision under the EIA Directive. Technical Committee’s Evaluation: The Agency published its screening determination on 15 November 2019. In accordance with the EIA Screening Determination, the Agency has determined that the activity is likely to have a significant effect on the environment, and accordingly carried out an assessment for the purposes of EIA. The Inspector’s report addresses the cumulative effects of the emissions from the installation, Midleton MWWTP and Irish Distillers Limited. The TC notes that Irish Legislation entrusts the EIA process to a number of competent authorities, as provided for by the EIA Directive. Directive 2011/92/EU as amended by Directive 2014/52/EU came into effect on 16th May 2017. Article 3 of the 2014 Directive includes transitional provisions where the 2011 EIA Directive applies to applications initiated prior to this date. An EIS was submitted to the planning authority prior to 16 May 2017; and the planning authority carried EIA out under the 2011 EIA Directive requirements. The Agency carried out EIA on the same EIS and supplementary information. The TC notes the Agency reached a reasoned

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conclusion on the significant effects of the activity on the environment as contained in the IR and PD which is a requirement of the Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain public and private projects on the environment. Section 83(2A)(b) of the EPA Act 1992 as amended stipulates that where an activity is likely to have significant effects on the environment by virtue, inter alia, of its nature, size or location, that the EPA must ensure a licence application is made subject to an EIA as respects the matters that come within the functions of the Agency.” The Agency carried out a valid EIA of this project for matters within its jurisdiction. The TC is satisfied that the EIA undertaken by the Inspector included an examination, analysis and identification which identified, described and assessed the likely significant direct and indirect effects of the activity on the environment as respects the matters which come within the functions of the Agency. The assessment reached clear, precise and unambiguous conclusions and set out a reason in each instance. The TC is satisfied that the assessment of the activity carried out by the Agency for the purpose of EIA, as documented in the IR and in this TC report, is complete. Reason for Decision:

The TC proposes no change and has reached its conclusion for the following reason: An EIA has been completed in accordance with Section 83 of the EPA Act 1992 as amended, and is documented in the Inspector’s report and addenda. Recommendation: No change

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B.2 Impacts of the project on greenhouse gas emissions, biodiversity, air pollution (ammonia) and water quality. The view is expressed that the PD has not considered and mitigated the direct, indirect and cumulative impacts of the project on greenhouse emissions, biodiversity, air pollution (ammonia) and water quality from the milk feed source for the proposed plant. It is alleged that the EPA has failed to properly assess the “functional interdependence” between the proposed cheese factory and the source of the raw material- milk- as an indirect effect of the development. It is asserted that the EPA should require the applicant to address the impact of the expansion in milk production required to meet the proposed development, ensuring assessment of the required protection of human health, the natural environment, and the possibility of undermining Ireland’s international obligations through our Green House Gas emission targets.

Submission on Objection: Mr Alan Beatty, on behalf of the applicant, states:

P a g e 8 | 35 that the Objection by Mr Tony Lowe [objection no. 4] on behalf of Friends of the Irish Environment are similar to the issue raised by An Taisce [objection no. 1] regarding the impacts of milk supply. The applicant states that the environmental effects arising from agricultural activities are recognised and are being addressed by a range of actions which have been implemented at EU, National and Local level to address them, including the Nitrates Directive, Climate Action and Low Carbon Development Act 2015 and Origin Green. Food Wise 2025 is the current national strategy for the Irish agri-food sector and provides a framework for the sustainable growth of the sector across the entire supply chain from the primary producer level to processor and exporters. Food Wise 2025 was subject to a Strategic Environmental Assessment (SEA) and Appropriate Assessment (AA). The Food Wise report incorporates many of the sustainability and mitigation actions proposed during the SEA and AA process. The planned development in Mogeely will not require any increase of local on-farm milk supply. There is sufficient milk supply currently available to Dairygold to be used at the new expanded Mogeely facility. The expansion of the facility in Mogeely will however add processing capacity in an area of Ireland with strong milk supply, reducing the need to transport the milk further distances ( or Ballyragget) for processing, therefore offering a more sustainable economic activity by affording an opportunity to reduce the overall carbon footprint in the supply chain of the products. The applicant states that the Environmental issues which may cause ill health or reduced quality of life are inherent in EIA and have been covered within the EIS. All emissions from the facility will be required to comply with regulatory limits and will be controlled and licenced under the Industrial Emissions Licence by the EPA. Technical Committee’s Evaluation: The issue of the impacts from the milk feed source is outside the remit of the IE licence application. The TC contends that there is no “functional interdependence” between the installation and the milk supply. The milk supply could come from any supply source and it is therefore considered that the issue of milk supply does not form part of the project and therefore is not part of the EIAR. Food Wise 2025 (Department of Agriculture, Food and the Marine) sets out a ten- year plan for the agri-food sector and it contains overarching policies for the development of agri food. It also deals with the agri-food sector all along the supply chain from primary production to high value-added product development. Food Wise 2025 was the subject of a Strategic Environmental Assessment and Appropriate Assessment. An Environmental Impact Assessment has been completed in accordance with Section 83 of the EPA Act 1992 as amended and is documented in the Inspector’s report and addenda. The TC notes that an assessment for the purpose of EIA was carried out by the EPA before it issued its PD on the application. The Inspector’s report addresses the cumulative effects of the emissions from the installation. An

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assessment of cumulative effects was also addressed as part of the EIA carried out in the planning application process. The TC is satisfied that the EIA undertaken by the Inspector included an examination, analysis and identification which identified, described and assessed the likely significant direct and indirect effects of the activity on the environment as respects the matters which come within the functions of the Agency. The TC concludes that the EPA’s assessment has been clear and precise with no gaps or lacunae, and that the likely significant effects on the environment by virtue inter alia, of the activity’s nature, size or location have been assessed in full. The TC recommends no change to the PD.

Reason for Decision: The TC proposes no change to the proposed determination and has reached its conclusion for the following reason:

An Environmental Impact Assessment has been completed in accordance with Section 83 of the EPA Act 1992 as amended. The TC is satisfied that there is no “functional interdependence” between the installation and the milk supply. Recommendation: No change

⎯ ⎯ ⎯ ⎯ ⎯ ⎯ ❖⎯ ⎯ ⎯ ⎯ ⎯ ⎯ B.3 Appropriate Assessment 1. Licensing Process and Procedure It is alleged that the procedure in objecting to the EPA, who is the original body making the decision does not comply with the requirement to “have access to a review procedure before a court of law or another independent and impartial body (Article 11 of the EIA Directive). Reference is made to the Court of Justice Ruling C-243/15 in which it established that the authorization procedures such as the so called appropriate assessment pursuant to the Habitats Directive fall within the scope of Article 6(1)(b) of the Aarhus Convention. It is alleged that the procedure in relation to the Habitats Directive is not in accordance with EU law. 2. Natura Impact Statements (NISs) It is asserted that the NIS has not shown that adverse impacts on protected wildlife can be ruled out and that the applicant is obliged to proceed to Stage 3 (assessment of alternative solutions) of the AA process. It is alleged that the NIS is flawed and that there is no basis or source given for the claim that the discharge will undergo an 80% exchange rate on the ebb tide. It is alleged that no details on the effect of mitigation failure and how such failure will be rectified has been provided in NIS. 3. Concern expressed regarding adequacy of Appropriate Assessment A number of objections expressed concern that an adequate Appropriate Assessment under Council Directive 1992/43/EU was not undertaken in relation to the activity. It is

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expressed that the cumulative and in combination impact of the discharge of effluent via a pipe from the installation to Cork harbour has not been assessed in accordance with the Habitat Directive. A number of the objections consider that there have been no complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt and refer to ECJ rulings including C-127/02 Waddenzee, C404/09 and C258/11 to support their objection. In particular, a number of objections consider that the following do not remove all reasonable scientific doubt: • Best Available Techniques, • compliance with the Surface Water Regulations (SI272/2009), • the requirement that all storm waters exceeding trigger levels will be diverted for retention and suitable disposal, and • that the office of Environmental Enforcement is responsible for the enforcement of EPA licences issued to industry and is committed to taking action against those who flout the law but not order of the High Court. It is asserted that a large part of the inspector’s report relies on monitoring as a mitigation measure and that the inspector has failed to assess the validity of the mitigation measures proposed. Also, that emergency response requirements are not mitigation measures. Mr Sweetman refers to the Technical Amendment for D0056-01 in his objection and states that it is the same as D0029-01 which was found to be flawed in the High Court Sweetman v EPA. 4. An objection states that the paragraph on cross office consultation in the Inspector’s report “is not a proper record as required by the 2011 Regulations”.

5. Concerns are raised in relation to the assessment of the effects of the WWDL [D0056- 01 Midleton WWTP] on European sites under the Council Directive 1992/43/EU Habitats Directive. Submission on Objection: 1. Licensing Process and Procedure Mr Alan Beatty, on behalf of the applicant, contends that there was sufficient evidence before the Agency to enable it to make its decision to issue a Proposed Determination and notes that the AA [Appropriate Assessment] process is ongoing in the hands of the Agency until a Final Decision is made on this Proposed Licence. 2. Natura Impact Statements Mr Alan Beatty, on behalf of the applicant states that “the concerns relating to the Natura Impact Statement (NIS) and Appropriate Assessment process raised do not introduce any new or additional issues which had not previously been expressed in earlier submissions before the delivery of the Proposed Determination.” A number of objectors claim that the Appropriate Assessment process should not have stopped at stage 2 (the NIS), because the NIS is erroneous in its conclusion that there is no risk to the protected species of the Great Island Channel SAC and Cork Harbour SPA. For this reason, it should have been continued to “a further stage”. P a g e 11 | 35

Mr Alan Beatty, on behalf of the applicant specifically refers to the Irish Hydrodata report “Rathcoursey Outfall Investigation of the impact of treated waste water discharges arising from the Dairygold Mogeely Plant to Cork Harbour and the Malachy Walsh and Partners report “Evaluation of the Risk of Adverse Impact on Cork Harbour SPA and the Great Island Channel SAC” to support their case. Mr Alan Beatty, on behalf of the applicant states the report prepared by Malachy Walsh and Partners concludes that the discharge will not result in a significant change in typical species composition of this community type. The assessment on the SPA follows on from the conclusions reached in relation to habitats for which the SAC is designated. As, no significant change in water quality is predicted to occur, and as the species which make up the most important macroinvertebrate community type within the SAC (Mixed sediment to sandy mud with polychaetes and oligochaetes community), are considered to be not particularly sensitive to the changes in specified parameters which are predicted, it is considered that there will be no significant change in the typical species community of this habitat type. It follows that there will be no significant changes in terms of prey abundance or availability, for species of bird feeding on invertebrates within mudflat habitat. Mr Alan Beatty, on behalf of the applicant states that the scientific and technical information provided to the Agency shows that the proposed development would not adversely affect the integrity of the relevant European sites in view of its conservation objectives and the conservation status of its Special Conservation Interests (SCIs). Mr Alan Beatty, on behalf of the applicant states that the incorrect reference to an “ 80% exchange factor” in the NIS 2016 was inserted due to a misunderstanding and the applicant wishes to emphasise that this exchange factor nor any other exchange factor was used in any calculations for BOD, SS and nutrient increases put forward in the NIS nor did the exchange factor inform the conclusions of the NIS. The updated NIS (2019) did not refer to the “ 80% exchange factor” to correct the error. 3. Concern expressed regarding adequacy of Appropriate Assessment Mr Alan Beatty, on behalf of the applicant states the following: Substantial information including details on the characteristic of the wastewater; the EIS, the NIS (2017) and revised NIS (2019); the Irish Hydrodata Reports (2017 and 2019); and the Malachy Walsh and Partners report entitled ‘Evaluation of the Risk of Adverse Impact on Cork Harbour SPA (004030) and Great Island SAC (001058)’, were provided to assist the Agency in carrying out such an assessment. The detailed assessments undertaken and made available to the Agency scientifically demonstrate that the proposed discharges either alone or in combination with discharges from Midleton Municipal WWTP and Irish Distillers Ltd would not significantly change the water quality of the receiving waterbody and that the proposed development would not adversely affect the integrity of the relevant European sites in view of its conservation objectives and the conservation status of its Special Conservation Interests (SCIs).

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All relevant, realistic and practicable mitigation measures were referenced in the application documentation for consideration by the Agency, and it is noted that other measures contained in the submissions of third parties were also before the Agency, which will have considered them all, as is required under the EIA Directive as amended. The Surface Waters Regulations bring about a wide-ranging set of environmental standards for surface waters to prevent adverse impacts. Similarly, Best Available Technologies (BAT) are specific Industry Standards that have been established to prevent, eliminate or reduce an emission and its impact on the environment as a whole. Compliance with these would therefore diminish the potential and likelihood of significant adverse environmental effects. It is not considered a reasonable position that the measures, which have been specifically legislated for the purpose of achieving protection of the environment, should now be contested by the Objector as not viable scientific and technical information to also be considered and taken into account in the making of the Proposed Determination. Technical Committee’s Evaluation:

1. Licensing process and procedure As part of the licensing process all submissions and objections are taken into consideration in the decision-making process, the applicant and third parties can object to the proposed determination. All objections are available on the EPA website and circulated to other objectors to allow that submissions on objections can be made. The technical committee comprises staff other than those involved in the preparation of the proposed licence. The technical committee reviews the objections and submits recommendations to the Board of the Agency for its decision. An oral hearing can also be requested and in the case an oral hearing is held, an oral hearing report is submitted to the Board of the Agency for decision. The licence can then be appealed by judicial review. A report on The review of the Environmental Protection Agency in 2011 (The EPA Review Group, 2011), states the following: • “The EPA has put in place procedures aimed at ensuring that any objections to a proposed licence are addressed by a technical committee comprising staff other than those involved in the preparation of the proposed licence. • There is no other existing body in the State having the necessary breadth and depth of technical environmental expertise and the appropriate governance structures required of an independent external appeals process. • While comparisons are sometimes made with the planning process, where an appeals system is provided for, the Group considers that there is an important distinction between the consideration of broad and more subjective issues of proper planning and sustainable development which arise in the planning process and the considerations arising in IPPC /waste licence applications which are much more technical in nature.

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• As third party objections have been relatively few in number in recent years (from 2005 to 2009 there were between zero and five per annum in the case of proposed IPPC licences and between one and three per annum in the case of proposed waste licences), it would be difficult to justify the establishment of such a body, duplicating the technical expertise within the Agency itself.” The Review Group has concluded that, “while obviously not comparable with the separation that would be achieved in an external appeals process, a reasonable measure of separation is nevertheless achieved in the current EPA internal procedures for the consideration of objections to proposed licences.” Based on the above the TC considers the objection procedure is in line with national and EU law. 2. Natura Impact Statements The Agency published its Appropriate Assessment (AA) screening determination on 27 March 2019. In accordance with the AA Screening Determination, the Agency has determined that an Appropriate Assessment of the activity was required. The requirements of the Habitats Directive (92/43/EC) & Birds Directive (2009/147/EC) are considered as part of the Appropriate Assessment section of the Inspector’s report and addenda. In carrying out the AA on each of the designated European sites the Inspector took into account the Natura Impact Statement (2016) submitted by the applicant as part of the licence application and the updated NIS (2019) submitted on 07 June 2019 (which corrected errors in relation to tidal exchange factors). The TC notes that the Inspector’s Appropriate Assessment refers to Section 12 of the Inspector’s report which specifies the risks and associated safety measures relevant to the installation. The PD specifies that accident and emergency response procedures are put in place to control any impacts which could occur should any mitigation measures fail. The TC considers that complete, precise and definitive findings and conclusions are provided in Section 16 of the Inspector’s report, which concludes that the activity will not adversely affect the integrity of any European site. On the basis of those findings and the conclusions of the Inspector, the Agency decided in the PD that no scientific doubt remain as to the absence of adverse effects on the integrity of the European sites identified. Having reviewed the documents submitted as part of the licence application and the Inspector’s report and addenda, the TC agrees with the Inspector’s conclusion. Therefore, the TC considers that no adverse effects remain and Stages 3 and 4 of Appropriate Assessment are not relevant for this Appropriate Assessment. 3. Concern expressed regarding adequacy of Appropriate Assessment A number of objections expressed concern that an adequate Appropriate Assessment under Council Directive 1992/43/EU was not undertaken in relation to the activity. A number of the objections consider that there have been no complete,

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precise and definitive findings and conclusions capable of removing all reasonable scientific doubt. In particular, a number of objections consider that the following do not remove all reasonable scientific doubt: • Best Available Techniques, • compliance with the Surface Water Regulations (SI272/2009), • the requirement that all storm waters exceeding trigger levels will be diverted for retention and suitable disposal, and • that the Office of Environmental Enforcement is responsible for the enforcement of EPA licences issued to industry and is committed to taking action against those who flout the law but not order of the High Court. It is asserted that a large part of the inspector’s report relies on monitoring as a mitigation measure and that the inspector has failed to assess the validity of the mitigation measures proposed. Also, that emergency response requirements are not mitigation measures. The concept of Best Available Techniques is enshrined in the EPA Act 1992 as amended and the Industrial Emissions Directive (2010/75/EU). The PD specifies emission limit values (ELVs) which are in line with the BAT-AELs specified in the FDM CID1. This is BAT for the industry and is consistent with the protection of the environment and human health. All limits are considered compliant with the requirements of the Surface Water Regulations2. Design and mitigation measures have been proposed to ensure that risks from any potential for accidents or emergencies will be avoided or reduced and these measures are sufficient to ensure that an accident and emergency would not significantly negatively impact upon the qualifying interests of any European sites, nor on the achievement of their conservation objectives. The PD specifies that accident and emergency response procedures are put in place to control any impacts which could occur should any mitigation measures fail. The TC notes that the reasons in the Inspector’s report do not include monitoring as mitigation measures as asserted in some of the objections to the PD. Compliance assessment is an important part of the IED process and indeed associated monitoring is included in the BAT CID for the Food sector and all sectors. This involves monitoring (including self-check) to ensure compliance with a permit. The above form part of the Inspector’s assessment. Having reviewed the documents submitted as part of the licence application and the Inspector’s report and the addenda, the TC agrees with the Inspector’s conclusion that there is sufficient information to conclude beyond reasonable scientific doubt that the proposed project will not have any adverse effects on the integrity of any European sites.

1 Commissioning Implementing Decision of 12 November 2019 establishing best available techniques (BAT) conclusions for food, drink and milk industries, under Directive 2010/75/EU of the European Parliament and of the Council. 2 European Communities Environmental Objectives (Surface Water Regulations) 2009, as amended. P a g e 15 | 35

The Agency published its Appropriate Assessment (AA) screening determination on 27 March 2019. In accordance with the AA Screening Determination, the Agency has determined that an Appropriate Assessment of the activity was required. The requirements of the Habitats Directive (92/43/EC) & Birds Directive (2009/147/EC) are considered as part of the Appropriate Assessment section of the Inspector’s report and addenda. In addition, the ruling from CJEU references C- 258/11, C-127/02 Waddenzee and C404/09, form part of this assessment, as appropriate. In carrying out the AA, the Inspector took into account the Natura Impact Statement (2016) submitted by the applicant as part of the licence application and the updated NIS (2019) submitted on 07 June 2019 (which corrected errors in relation to tidal exchange factors). The Inspector concluded the AA as follows: An Inspector’s Appropriate Assessment has been completed and has determined, based on best scientific knowledge in the field and in accordance with the European Communities (Birds and Natural Habitats) Regulations 2011 as amended, pursuant to Article 6(3) of the Habitats Directive, that the activity, individually or in combination with other plans or projects, will not adversely affect the integrity of any European Site, in particular the European sites specified in Appendix 3 [Cork Harbour SPA (site code: 004030), Great Island Channel SAC (site code: 001058), Ballymacoda (Clonpriest and Pillmore) SAC (site code: 00007) and Ballymacoda Bay SPA (site code: 004023)], having regard to their conservation objectives and will not affect the preservation of these sites at favourable conservation status if carried out in accordance with this recommended determination [licence] and the conditions attached hereto for the following reasons:..... The AA carried out by the Inspector assessed the entirety of the activity individually and in combination with other plans and projects (Irish Distillers and Midleton MWWTP). As referred to above in the NIS section, the TC considers that complete, precise and definitive findings and conclusions are provided in Section 16 of the Inspector’s report, which concludes that the activity will not adversely affect the integrity of any European site. The TC considers that the EPA, in fulfilling its statutory function to make an Appropriate Assessment determination, has sufficient information before it to conclude beyond reasonable scientific doubt that the proposed activity will not have any adverse effects on the integrity of any European sites. Mr Sweetman states that the Technical Amendment for D0056-01 is the same as D0029-01 which was found to be flawed by Simon J in the High Court Sweetman v EPA. The TC notes there is no High Court case Sweetman v EPA in relation to the technical amendment for WWDL D0029-01 (Enniscorthy agglomeration). However, the TC notes there was a High Court case Peter Sweetman v the Environmental Protection Agency and Irish Water (in the matter of D0139-01 ) 2017/644/JR. The TC notes that Mr Justice Garrett J Simons delivered his judgment on 15 February 2019 and concluded that the EPA acted ultra vires in purporting to amend the licence by way of a technical amendment. The judgment did not make a determination in relation to the Habitat Directive issues. P a g e 16 | 35

The TC notes the changes authorised by the D0056-01 Midleton Technical Amendment was to reflect changes in legislation, occurrence of technical/clerical errors and provide further legal clarity to conditions attached to the WWDL. The TC has no further comment to make in this regard. 4. Cross Office Consultation The TC notes the cross office consultation paragraph in the Inspector’s report is in line with Agency practice and confirms that cross office consultation has occurred. The TC notes that details with regard to compliance and complaints under the existing licence is detailed in section 3 of the Inspector’s report. The Agency provides online access to a range of enforcement documentation that collectively provide substantive information on the Enforcement Status of EPA Licences which is available on the Agency website for public viewing. 5. Midleton Agglomeration WWDL (D0056-01) The Technical Committee wish to clarify that any objection or submission on objection made to the Agency in relation to a licence application, can only be made to the Proposed Determination, as approved by the Board of the Agency. The TC notes that the Environmental Impact Assessment and Appropriate Assessment took into account the impacts of the Midleton WWDL (D0056-01) by assessing cumulative impacts. The TC notes the points made in relation to assessment of the effects of the WWDL [D0056-01 Midleton WWTP] on European sites under the Council Directive 1992/43/EU Habitats Directive. However, appropriate assessment screening of the Irish Water WWDL (D0056-01) is outside the scope of this Technical Committee and therefore the TC have no further comment in relation to the WWDL D0056-01. Reason for Decision: The TC propose no change to the PD and has reached its conclusion for the following reason: The TC is satisfied that the Agency should adopt the report of the inspector, and this report, and that the assessment concludes that the activity will not adversely affect the integrity of any European site. Recommendation: No change

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B.4 Water Quality and Shellfish Directive 1. Concerns are expressed regarding the volume of the discharge and the impact of the waste water discharge from the installation, on the receiving water quality either alone or in combination with the other discharges, and the potential impact on the Shellfish designated areas and the habitats and species in the SPA and SAC, in particular fats, oils and grease (FOG), nutrient loading, suspended solids, ammonia and temperature. It is suggested that a study is required to assess the impact of prolonged exposure to FOG on the benthic organisms on which feeding birds are reliant.

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2. Concern is expressed that the monitoring, mitigation and preventative measures outlined in the application will not enable the activity to operate without causing environmental pollution. 3. The view is expressed that there was a lack of adequate assessment under the Shellfish Waters Directive (2006/113/EEC) undertaken in relation to the activity. The view is expressed that the proposed discharges at the Rathcoursey outfall, will render the shellfish toxic to mammalian consumption and will increase the frequency and scale of toxic algal blooms. 4. Inland Fisheries Ireland (IFI) (Objection No. 2) considers the Agency’s PD to be contrary to both the spirit and requirements of the Water Framework Directive, who aim to prevent deterioration of the status of each body of surface water and achieve good status. Furthermore, IFI considers that the status of the proposed trans hydrometric area transfer of effluent is in contradiction to the management of waters on a river basin district basis which is a foundation stone of the Water Framework Directive. Submission on Objection: Mr Alan Beatty, on behalf of the applicant, states: The detailed assessments undertaken and made available to the Agency scientifically demonstrate that the proposed discharges either alone or in combination with discharges from Midleton Municipal WWTP and Irish Distillers Ltd would not significantly change the water quality of the receiving waterbody and that the proposed development would not adversely affect the integrity of the relevant European sites in view of its conservation objectives and the conservation status of its Special Conservation Interests (SCIs). The Schedules of the Proposed Determination stipulates emission limits, monitoring and controls for the discharge prior to connection to the Irish Water infrastructure. Therefore, it is clear under the terms of the licence that the proposed Dairygold/TINE wastewater discharges are to be subject to authorisation and regulation by the Agency. Similarly, the existing discharge from the Rathcoursey Outfall has been subject to authorisation by the Agency and is limited under wastewater discharge licence (WWDL) register no D0056-01, held by Irish Water. The new treatment plant is capable of appropriately treating and removing the fats and greases from the raw effluent to acceptable discharge limit values. The residual concentrations of FOG (which are of milk origin) in the final treated discharged wastewater will be soluble and will not cause a build-up of fatty deposits in the area. Therefore, there is no risk to either to the quality of the receiving waterbody or ecological habitats as a result of the proposed discharge.

The EU Water Framework Directive (WFD) has specific objectives including: • Prevention of deterioration in the status of surface water bodies; and • Protection, enhancement and restoration of all surface water bodies with the aim of achieving good ecological and chemical status.

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The Irish Hydrodata Report (2019) clearly demonstrates that the proposed discharges from the Dairygold/TINE facility would result in negligible changes in the nutrient concentrations of the receiving waterbodies. The applicant provided figures in its submission on objection from the Irish Hydrodata report to show DIN and Phosphate concentrations arising for the present day Rathcoursey outfall (Midleton WWTP & IDL) and river inputs, and figures to show DIN and Phosphate concentrations arising for the future Rathcoursey outfall (Midleton WWTP, IDL and Dairygold/TINE) and river inputs. The applicant states that these figures illustrate that the combine future discharges do not significantly change either the distribution or the background concentrations of these nutrients in the receiving waterbody. Therefore, it can be concluded that the proposed Dairygold/TINE discharge will not: (i) cause the deterioration in the status of the receiving water body, either alone or in combination with other future discharges; or (ii) compromise the ability of the receiving waterbodies from achieving good status. The proposal to discharge to saline waters also represents a very positive benefit with the removal of the current discharge to the Kiltha river. Therefore, the proposal would not be contrary to the provisions of the WFD. Technical Committee’s Evaluation: A number of objections expressed concern over the impact that the waste water discharge from the installation may have on the water quality of the North Channel of Great Island in Cork and its proximity to and potential to impact the SAC and SPA and the Shellfish designated areas. In particular, the volume of discharge to be emitted and the impact of fats, oils and greases (FOGs), nutrient loading, suspended solids, ammonia and temperature. There is concern that the discharges at the Rathcoursey outfall, will render the shellfish toxic to mammalian consumption and will increase the frequency and scale of toxic algal blooms. No new issues or concerns in relation to water quality and to protection of shellfish waters have been raised in the objections. The concerns in relation to water quality and protection of shellfish waters and protection of human health were raised in the submissions and were addressed in the Inspector’s report and addenda which were considered by the Board of the Agency at the PD stage. The PD specifies emission limit values for the discharge of treated effluent from the installation, to protect the North Channel transitional waterbody and Shellfish designated areas. The PD requires continuous monitoring for flow, total oxidised nitrogen, temperature, pH and ammonia at the inlet to the tidal holding tank (emission point ref no. SEM1). The IR states that “All sanitary effluent from the installation will be treated at the Mogeely MWWTP (A0558-01) and therefore the discharge should not contain any faecal contaminants.” The treatment process at the installation includes UV disinfection and the PD specifies an emission limit value for faecal coliforms which is the same as that set in the WWDL D0056-01. If the meters/probes register an emission limit value exceedance an alarm activates, and

P a g e 19 | 35 staff are immediately notified. The treated effluent will be discharged south of the European sites (Great Island Channel SAC (001058) and Cork Harbour SPA (004030) via an existing diffuser at the Rathcoursey outfall. The PD requires a restriction on the period of emission from the installation. The TC considers that the monitoring, mitigation and preventative measures proposed will enable the activity to operate without causing environmental pollution, subject to compliance with the licence. The TC considers that the proposed increase in waste water volume at the Irish Water Rathcoursey outfall due to the discharges from the installation is large but the environmental significance has been assessed and it is not going to have an impact on the receiving water quality, however the Irish Water WWDL is outside the remit of the Technical Committee and therefore the TC have no further comment in relation to the WWDL D0056-01. The Water Framework Directive requires all Member States to protect and improve water quality in all waters so that we achieve good ecological status by 2015 or, at the latest, by 2027. It requires that management plans be prepared on a river basis and specifies a structured method for developing these plans. The TC notes that the Inspector’s report refers to the status of the North Channel, Owenacurra estuary and Cork Harbour. The Inspector’s report states that “part of the North Channel was designated as shellfish waters in 2009 approximately 1km from the outfall at Rathcoursey. Rostellan (North, South and West) shellfish waters are also located approximately 3km from the outfall at Rathcoursey.” The Inspector’s report states that “The implications of this discharge on Cork Harbour were investigated by Dairygold/TINE in a document entitled ‘Rathcoursey Outfall Investigation of the Impact of Treated Wastewater Discharges arising from the Dairygold Mogeely Plant to Cork Harbour’ dated 11 July 2019, which was submitted in support of the licence application. This study was originally prepared as part of the planning application (ref 16/7031) and potential impacts on Cork Harbour were assessed using calculations and hydraulic modelling methods. The results of this study state that the neap tide volume upstream of the outfall is approximately 10,490,455m3 indicating adequate dilution available in the vicinity of the outfall. Furthermore, the addition of the Dairygold/TINE treated effluent (at proposed limits) will increase the median background PO4 by <0.0002mg/l P indicating that the EQS for MRP will continue to be met. The EO Regs specifies DIN standards for coastal (Cork Harbour) but not for transitional (North Channel). The proposed BOD and suspended solids (SS) load from the installation are 100kg/day and 140kg/day respectively. Model results indicate that the loads will increase the 95%ile background BOD by less than 0.05mg/l (EQS of ≤4.0mg/l BOD for good status) and SS by a similar amount. There is no ecological standard for SS, so this parameter is not used in the determination of status of a waterbody.” The emissions associated with the installation is for a discharge to sewer and there are no direct emissions to water from the installation. The PD specifies ELV which

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are in line with the BAT-AELs specified in the FDM CID3. The PD specifies controls and monitoring for the emissions to sewer. Where a discharge is to sewer, it can be taken that, as the waste water discharge has been subject to authorisation by the Agency, the relevant environmental quality standards have been met through the emission limit values (ELVs) and conditions associated with that authorisation and has regard to the water quality standards and objectives for the receiving water and protected areas (including shellfish). Irish Water had access to all the information supplied in the licence application as well as the planning application and planning permission when assessing its consent for this discharge under Section 99E of the EPA Act 1992 as amended. It is Irish Water’s responsibility to ensure that it meets the limits and satisfies the conditions set in their waste water discharge licence. Setting controls and emission limit values (ELVs) on emissions and discharges is key to ensuring compliance with Urban Waste Water Treatment Directive, Water Framework Directive and Industrial Emissions Directive and environmental protection. Reason for Decision: The TC propose no change to the PD and has reached its conclusion for the following reason. The emission limits values and conditions as set in the PD can be considered to represent BAT for this installation and will not cause a breach of relevant Water Quality Standards. Recommendation: No change

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B.5 Effluent Dispersion Modelling, Flushing rate of the Great Island Channel and pattern of water movements 1. Effluent dispersion modelling It is the view that the modelling undertaken by Irish Hydrodata Limited on behalf of Irish Water was deficient in several respects and were diametrically different to the hydrodynamic papers of Cork Harbour put forward by the National University of Ireland Galway (NUIG). It is also the view that the Inspector’s Report largely ignored and failed to take into account the data supplied by the objectors in their submissions. It is alleged that the modelling demonstrates that nutrient loading from discharges from the Rathcoursey outfall would substantially increase, in particular that dissolved organic nitrogen (DIN) in the Great Island Channel would rise above 0.25mg/l for “good” water quality status. Furthermore, the effects of increased nutrients in the North Channel on the toxic algae Alexandrium minutum have not been modelled.

3 Commissioning Implementing Decision of 12 November 2019 establishing best available techniques (BAT) conclusions for food, drink and milk industries, under Directive 2010/75/EU of the European Parliament and of the Council. P a g e 21 | 35

2. Flushing rate of the Great Island Channel Concerns are raised that the flushing rate of the Great Island Channel does not adequately dissipate the effluent, instead it accumulates near the outfall, thereby impacting on the integrity of the European sites in this area. It is alleged that the EPA has not assessed scientific work carried out by NUIG Hydrodynamic team in 2005, 2011 and 2012 in relation to the high residence times which is considered more up to date scientific work in contrast to the work put forward by Irish Hydrodata which is based on work mainly from 1977 – 1993. It is suggested that the Inspector left some questions unanswered and the EPA is not prepared to listen to the public. It is suggested that deposits of oyster shells in the channel could not have occurred with a water exchange of anything over 6% (an exchange factor of 0.06), thereby refuting exchange rates at the Rathcoursey outfall quoted in the Irish Hydrodata Limited report. 3. Pattern of water movements It is suggested that the EPA dismissed evidence provided in relation to the pattern of water movements in Cork Harbour, high residence times, drogue and current meter results obtained. Submission on Objection: Mr. Alan Beatty, on behalf of the applicant, states: 1. Effluent Dispersion Modelling The Irish Hydrodata Report demonstrates that the proposed Dairygold/TINE discharges will not result in the waterbody failing to meet its objectives under the Water Framework Directive. This assessment used a 2D hydrodynamic model to simulate discharge diffusion, and dispersal and resultant concentrations. The model is specific to the Rathcoursey Point and used dye studies carried out at that location for calibration. The assessment/modelling simulation is worst case scenario and has considered both the existing and planned/permitted discharges from the Midleton WWTP and Irish Distillers Ltd facility in combination with the potential Dairygold/TINE discharges. Mr. Alan Beatty, on behalf of the applicant, refers to Mr. David Hugh Jones objections in which Mr Hugh-Jones: • disputes the Irish Hydrodata assessment of the exchange factor at Rathcoursey Point, • argues that modelling work by NUIG shows very long residence times in North Channel has been ignored by the Inspector, • asserts there is an east west flow in the North Channel, and that evidence submitted by him that contradicts the Irish Hydrodata model in the form of drogue tracking and current metering from December 2019 and January 2020 has largely been ignored by the Inspector. Mr. Alan Beatty, on behalf of the applicant, states that neither Mr. Hugh-Jones, nor the supporting objectors, introduce any new issues, different data or evidence in this objection. The applicant adds that these arguments have been previously presented in submissions and addressed in the Inspector’s Report and addenda. The

P a g e 22 | 35 applicant identifies that Mr. Hugh-Jones states in his own objection, that the current metering for January 2020 is very similar to the IH 1993 figure and so this confirms the data is not new and is consistent with data already available. 2. Flushing rate of the Great Island Channel Mr. Alan Beatty, on behalf of the applicant, states that the projected dissipation of the proposed Dairygold/TINE treated wastewater discharges in the Irish Hydrodata Ltd study does not rely solely on “a flushing or exchange factor”. Those projected increases are derived from a detailed computer model which has been calibrated using dye studies, drogues and current metering, as have all the other models. The drogue and current metering data is only a part of the overall data used to calibrate the models and the extensive dye studies carried out, particularly in 1977 and in 1993 specifically at the Rathcoursey outfall, have been accepted by the experts in numerical modelling of Cork Harbour, as being better than would normally be available for models of this nature. Those experts are unanimous in their praise of the basic data and confident that their models accurately reflect the processes of Cork Harbour. Dairygold/ Tine is satisfied with the quality of the IH model and with the robustness of the input data and results. We are satisfied that our proposed discharge will not have a significant impact on the receiving waters. Mr. Hugh-Jones disputes the Irish Hydrodata assessment of the exchange factor at Rathcoursey Point and also argues that modelling work by NUIG which shows very long residence times in North Channel has been ignored by the Inspector. The applicants state that Mr. Hugh-Jones had previously presented these arguments and the drogue and current metering results in previous submissions. The applicant states that the issue was addressed by the Inspector in her 13th February 2020 addendum to her report. 3. Pattern of water movements Mr. Alan Beatty, on behalf of the applicant, states that Mr. Hugh-Jones repeats his assertion that there is an east to west residual flow in North Channel and has included drogue tracks from December 2018 and current metering from January 2020 to support his claim that there is a residual east west flow in North Channel. The applicant asserts that much of this objection has been included in previous submissions (S005575, S005625, and S005903) and addressed by the Inspector in her 13th February 2020 addendum to her report. They further add that statements by Mr. Hugh-Jones in his objection regarding his drogue run data and the current metering submitted, confirms it is consistent with the previous Irish Hydrodata studies. Technical Committee’s Evaluation: 1. Effluent dispersion modelling The concerns relating to the Irish Hydrodata Ltd (IH) model can be summarised as follows: that the IH model is not accurate and that the 2D model is not appropriate for the terrain; that the IH model is based on historical studies from 1977 and 1993 and that the Inspector has failed to consider more recent studies carried out by NUIG in the assessment; and that additional drogue tracking run data and current

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metering submitted contradicting the IH assessment has been largely ignored by the inspector. The TC has reviewed the Inspector’s Report, previous submissions, objections, submissions on objections and modelling studies. No new substantial information or concerns in relation to the appropriateness of the modelling carried out by Irish Hydrodata Limited (IH) have been raised in the objections. The content of these objections was addressed in the Inspector’s Report and addenda which were considered by the Board of the Agency at the PD stage. The TC notes that 2D modelling has been identified as suitable in a number of studies of Cork Harbour including the IH model. The NUIG publication by Hartnett et al (2011)4 states that the “The majority of Irish estuaries are relatively shallow and vertically well mixed….it was therefore decided that the use of a two- dimensional (2D) depth-integrated modelling approach would be suitable for the development of a water quality model of such systems.” Mr. Hugh-Jones in his objection believes that drogue tracking and current metering data submitted by him has largely been ignored by the Inspector. The TC notes that Mr. Hugh-Jones included this data in previous submissions (Submissions numbers: S005903 and S005963). The TC further notes the submission of this data was addressed by the Inspector in their addendum to the IR dated 13th February 2020. In objection OS006023, Mr. Hugh-Jones asserts that current metering records received back from BIM in January 2020 “can be seen to be very similar to the IH 1993 figure”. In submission (S005964), Mr. Hugh-Jones responds to the applicant’s assertion that “The accuracy of the previous drogue runs is at least as good as these now presented”. Mr. Hugh Jones states “we quite agree and several of our runs followed the Irish Hydrodata simulation further than Weir Island”. The TC concludes that the data supplied is not new and is consistent with previous data available and was addressed in the Inspector’s report and addenda (13th February 2020). The IH model uses extensive dye tracing, drogue and tidal current studies carried out by M.C. O’Sullivan (1977)5 and by Irish Hydrodata (1993)6 to calibrate and construct its model. The TC notes that in the NUIG study by Hartnett et al (2011) the authors state in relation to the 1977 Cork Harbour Pollution Report by M.C. O’Sullivan that “A substantial proportion of the data used in this research for calibration and validation of the Cork Harbour model were obtained from the 1977 Cork Harbour Pollution Report (M.C. O’Sullivan, 1977)…..the availability of such a comprehensive dataset is unusual in most modelling studies and enabled the achievement of a high degree of accuracy in model predictions. Although written in 1977, its results could still be used as Cork Harbour is quite stable”. It is evident to the TC that the use of this historical data for Cork Harbour in the calibration and construction of their model is consistent with other recent such studies included in

4 Hartnett, M.Nash, S.Olbert, I (2012) 'An integrated approach to trophic assessment of coastal waters incorporating measurement, modelling and water quality classification'. Estuarine Coastal And Shelf Science, 112 :126-138. Nash, S,Hartnett, M,Dabrowski, T (2011) 'Modelling phytoplankton dynamics in a complex estuarine system'. Proceedings Of The Institution Of Civil Engineers-Water Management, 164 :35-54. 5 M.C. O’Sullivan Cork Harbour Pollution Report: A Report to Cork County Council. Cork Corporation and Cork Harbour Commissioners, Cork, Ireland, vol. I – VXII. 6 Irish Hydrodata Ltd, Midleton SS Marine Outfall Hydrographic Survey/Numerical Modelling Report 1993. P a g e 24 | 35 the objection. The TC further notes that the Irish Hydrodata study of 1993 included dye, drogue and current metering studies specific to the Rathcoursey outfall. The objection does not undermine the TC’s confidence in the Inspector’s assessment. The TC considers that the type of model and data used to calibrate it is consistent with similar such studies (NUIG 2011 & 2012) as included in the objection. The IH assessment states that the Owenacurra and rivers are the largest contributors of DIN. The TC notes the IH model states that the Rathcoursey outfall is calculated to account for less than 1% of all DIN input to the harbour. The proposed Dairygold/Tine contribution of 60kg/day equates to about 0.3% of all DIN entering the harbour waters on an average daily basis. The TC is satisfied that concerns in relation to the model raised in the objections were addressed in the Inspector’s Report and addenda and that sufficient evidence was provided for the Board of the Agency to make their decision. 2. Flushing rate of the Great Island Channel No new issues or concerns in relation to flushing rate of the North Channel Great Island channel have been raised in the objections. The concerns in relation to the flushing rate of the North Channel Great Island raised in the submissions were addressed in the Inspector’s report and addenda which were considered by the Board of the Agency at the PD stage. The TC notes that Irish Water is responsible for what goes into its pipeline. Wastewater emissions from the installation (P1103-01), wastewater from Irish Distillers (P0442-02) and Midleton WWTP (D0056-01) combine in this IW pipeline and are designed to discharge to the North Channel Great Island, on the ebbing tide via Rathcoursey outfall. The PD specifies operational controls of emissions from the installation. Condition 6.12.5 states: Treated trade effluent shall discharge via Rathcoursey outfall 90 minutes after high tide in and shall stop discharging from the Rathcoursey outfall 60 minutes prior to low tide time marked for Cobh. In relation to the timing for emission of treated effluent specified in the PD, the inspector’s report states that “This is considered the most appropriate timing for emission of treated effluent as the discharge will avoid the slack tide and discharge after high tide (during ebbing), ensuring the discharge will be flushed out of the channel, away from European sites (refer to diagram below).

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The TC has reviewed the NUIG research publications7 referred to in the objections and notes that the data to calibrate the NUIG Model of Cork Harbour are two dye releases carried out and recorded at Marino and Camden. The hydrodynamic model carried out by Irish Hydrodata is specific to the Rathcoursey discharge point in which dye studies were carried out for calibration. The TC notes that the Inspector consulted with the Agency’s office of Evidence and Assessment (OEA) and determined that flushing out to open sea of the treated effluent will occur provided certain criteria are met, these criteria are specified in the PD and are discussed in section 8 of the Inspector’s report. Based on the above the TC considers that sufficient evidence was provided for the Board of the Agency to make its decision. The TC recommends no change to the Proposed Determination. 3. Pattern of water movements No new issues or concerns in relation to water movements, drogue tracking data or current metering have been raised in the objections. Concerns that data included as

7 Hartnett, M,Nash, S,Olbert, I (2012) 'An integrated approach to trophic assessment of coastal waters incorporating measurement, modelling and water quality classification'. Estuarine Coastal And Shelf Science, 112 :126-138. Nash, S,Hartnett, M,Dabrowski, T (2011) 'Modelling phytoplankton dynamics in a complex estuarine system'. Proceedings Of The Institution Of Civil Engineers-Water Management, 164 :35-54. P a g e 26 | 35

part of previous submissions regarding water movements in the North Channel having been ignored in the Inspector’s assessment, have not been established. The concerns raised in the objection were previously addressed in the Inspector’s Report and addenda which were considered by the Board of the Agency at the PD stage. In relation to drogue tracking and current metering data submitted as part of the objection, the TC have discussed this in detail in the Effluent dispersion modelling Section above. For clarity the TC confirms that the data included in the objection by Mr. Hugh-Jones formed part of previous submissions (S005903 and S005963). The TC is satisfied that the Inspector has addressed the concerns raised in the Inspector’s Report in Section 6 and Section 8 and the addendum dated 13/02/2020. The objection asserts there is a residual tide to the west within the North Channel discovered during their drogue tracking and current metering studies and is in direct contradiction to the IH model. The TC notes that the Irish Hydrodata study of 1993 included dye, drogue and current metering studies specific to the Rathcoursey outfall which were applied in the IH model. Having reviewed the documents submitted as part of the licence application, the Inspector’s Report, the addenda, the submissions and the objections, the TC concludes that the objections do not undermine the TC’s confidence in the Inspector’s assessment. The TC are satisfied that the Inspector has addressed the concerns raised in the Inspector’s Report and addenda and that sufficient evidence was provided for the Board of the Agency to make their decision. Reason for Decision: The TC proposes not to amend the PD and has reached its conclusion on the basis of the following consideration: The TC is satisfied that the Inspector has comprehensively assessed and evaluated all relevant submissions and further information and set this out clearly in the Inspector’s report and addenda.

Recommendation: No change

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B.6 Alternatives, effluent treatments and discharge locations A number of objectors have proposed alternative options for high quality treatment and discharge to adjacent waterways or directly into the ocean rather than piping to Cork Harbour to prevent damage to the adjacent designated Shellfish Waters. Submission on Objection: Mr Alan Beatty, on behalf of the applicant, states: The proposed options set out in the objections for alternative treatment and disposal of wastewaters include:

i. A constructed wetland system of c.5.5ha would be sufficient to provide tertiary polishing of effluent prior to discharge into the river at the site ii. Willow crop irrigation of a land area of c.385ha P a g e 27 | 35

iii. Discharge via percolation through a willow filter system. An area of 22-170ha (depending on infiltration rates) would be suitable, as long as the effluent was treated to a suitable standard prior to the willow system. Flooding in the area may reduce the effectiveness of the percolation treatment on an occasional basis. The proposed options are not practical or viable for the following reasons:

• Disposal by means of constructed wetland with final discharge to surface waters at the site is not only impractical with regard to the extent of lands that would be required for such a proposal and the ability of the Applicants to acquire these lands but would also be unworkable due to proximal lands being within floodplains. • The area of lands that the Applicants would need to acquire for Willow crop irrigation is significant and there is no guaranteed attainment of these lands. Furthermore, the necessary transportation of treated effluent would be environmentally unsustainable. • The suggested area of lands that the Applicants would need to acquire for disposal of the treated wastewaters through a willow filter system is significant. The ability of the Applicants to obtain these lands is reliant on acquisition of consents outside of the Applicants control and thus is potentially unrealistic and undeliverable. Furthermore, even the proposer is uncertain of the reliability of the system. Mr. Alan Beatty, on behalf of the applicant, states that “Further clarification on this [alternatives] was provided by the Applicant to the Agency on 27 August 2019 as Unsolicited Further Information.” Technical Committee’s Evaluation: The matter of alternatives are addressed in Chapter 3 (Alternative Considered) of the EIS including the new treated effluent pipeline. According to the EIS the Kiltha River does not have the capacity to accept the increased volumes of treated waste water. Therefore, it is proposed to discharge the treated waste water into Cork Harbour at the Rathcoursey outfall. Information was provided by the applicant on 27 August 2019 which outlines alternatives to the discharge of waste water other than to Cork Harbour which included:

• Discharging further downstream of the River Womanagh/Kilta which were dismissed on environmental grounds due to insufficient capacity to accommodate the discharge volumes; • Infiltration to ground water (area liable to flooding); • Constructed wetland (impractical due to amount of land needed and lands being within floodplains. • Short rotation willow coppice and the use of grey water to irrigate farmland are also deemed unviable due to lands being within floodplain. • An existing feasible alternative outfall to the proposed outfall has not been made available to the developer by the competent authority.

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• The ability of the developer to provide a new alternative outfall is reliant on acquisition of consents outside of the developers control and thus is potentially unrealistic and undeliverable. The TC considers that the matter of alternatives has been adequately addressed by the applicant and in section 15 of the Inspector’s report. The Inspector’s report and addenda has addressed the matter of alternatives and the objections do not raise any new information in relation to alternatives that were not already considered by the Board at PD stage. The TC considers that the matter of alternatives meets the requirements of the EIA Directive. Therefore, the TC recommends no change to the proposed determination. Reason for Decision:

The TC propose no change to the proposed determination and has reached its conclusion for the following reason:

The matter of alternatives has been addressed in the licence application and in section 15 of the Inspector’s report. Recommendation: No change

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B.7 Site Suitability and prematurity of the licence application An Taisce (Objection No.1) states that the site suitability for intensified dairy processing activity has not been demonstrated in view of the proximity of a housing estate to the proposed plant, and the level of noise and odour complaints which the existing operation Dairygold has generated. It is alleged that the licence application is premature as the current Common Agricultural Policy (CAP) is to be renewed post 2020. Submission on Objection: Mr Alan Beatty, on behalf of the applicant, states: Site Suitability Site suitability issues have been considered by Cork County Council and An Bord Pleanála (ABP) as part of the planning process. In its determination to grant permission, the decision by An Bord Pleanála stated: ‘the proposed development would be in accordance with the provisions of Local Policy, would not seriously injure the residential amenities of the area, would not be prejudicial to public health and would be acceptable in terms of traffic safety and convenience. The proposed development would, therefore, be in accordance with the proper planning and sustainable development of the area’. Environmental issues which may cause ill health or reduced quality of life are inherent in EIA and have been covered within various chapters of the EIS. All emissions from the facility will be required to comply with regulatory limits and will be controlled and licenced under the Industrial Emissions Licence by the EPA. The Environmental Impact Statement submitted with the application fully assessed the implications on the receiving local environment pertaining to noise and odour impacts on nearby sensitive residential receptors.

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Alleged Prematurity

Mr. Alan Beatty, on behalf of the applicant, states that this argument is based on a reference to the case of Element Power v An Bord Pleanála [2017] IEHC 550, which was a Judicial review case where the High Court held that there was no power under the Planning and Development Act 2000 which enabled An Bord Pleanála to refuse to grant a planning permission on the basis that a development was premature solely due to the absence of guidance at national, regional or local level for the sector in which the development was intended to function. We would argue that the same applies here to the Agency. Technical Committee’s Evaluation: Site suitability The main source of potential odour from the installation is from the WWTP [which was upgraded] and a sludge dewatering plant. There were five complaints in 2018 in relation to odour from the installation, one of the likely causes was identified by the Agency as the WWTP. The applicant has installed one Odour Control Unit (OCU) to treat odorous air from the WWTP. The Inspector’s report assessed the odour emissions from the installation and states that “The odour assessment shows that based on the future operation of the upgraded WWTP odours will not be detected beyond the site boundary.” The PD specifies limits, monitoring and control requirements for the emission point OCU 1, based on EPA guidance (AG5), BAT for the dairy sector and modelling results. The PD requires that no emissions, including odours, shall result in impairment beyond the site boundary. The PD requires the licensee to implement odour management under its Environmental Management System. Odour is not expected to be an issue at the installation following upgrade of the WWTP. The Inspector’s report states that “there have been noise complaints received by the Agency in relation to the operation of this installation under the current licence (P0817-01)….. All complaints to date have been dealt with and closed off.” The noise impact assessment was assessed in the Inspector’s report. The IR identifies mitigation measures to be implemented by the applicant. The PD specifies that the licensee shall ensure that all running engines and refrigeration units of vehicles are switched off during loading, unloading and when the vehicles are parked between 9pm and 7am daily. All licensee vehicles servicing the site must be properly maintained so as to mitigate against noise. In order to prevent or where that is not practicable to reduce noise emissions, the licensee shall use one or a combination of the techniques listed in BAT 14. The PD species daytime, evening time and night time limits at noise sensitive locations and requires an annual noise survey. The PD requires the licensee to include a noise management plan as part of the Environmental Management System. The TC considers that the Inspector’s report has assessed the odour and noise emissions from the installation. The TC considers that with the controls in place and the new controls to be implemented and the requirements specified in the licence, the odour and noise emissions are addressed and recommends no change to the licence.

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Alleged Prematurity The TC considers that the renewal of the current Common Agricultural Policy is outside the remit of the IE licence and there are no grounds in the objections to impede the issue of the final licence to the applicant. Reason for Decision: The TC proposes no change to the licence and has reached its conclusions for the following reason: Emissions, including odours and noise are controlled to ensure there is no impairment of the environment beyond the installation boundary. Recommendation: No change

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B.8 Performance of Midleton WWTP, stormwater overflows and Rathcoursey outfall, and the pipeline connection 1. Performance of Midleton WWTP, stormwater overflows and Rathcoursey outfall Concerns are raised over the performance of the Midleton WWTP and that the Midleton agglomeration is hydraulically overloaded. It is suggested that it is operating above its design capacity and is responsible for a large number of stormwater overflows. It is further suggested there is lack of control & monitoring on the restricted discharges from Rathcoursey, and the holding tank and diffuser are not fit for purpose. 2. Pipeline connection It is suggested that where the Dairygold/TINE pipeline ties into the Midleton main drainage network at Bawnard there is the possibility of emergency discharges into the foreshore at this point. The view is also expressed that the pipeline has been constructed without local consultation. Submission on Objection: Mr Alan Beatty, on behalf of the applicant, states: 1. Performance of Midleton WWTP, storm water overflows and Rathcoursey outfall It is evident from both the objection now made by Mr. Hugh-Jones and his previous submissions that the key contention essentially relates to the existing licenced outfall at Rathcoursey and the overflows [stormwater overflows] to the Owenacurra from the Midleton Municipal Scheme. The Applicants (Dairygold/TINE) has, in its application and subsequent responses to RFIs, and in its earlier Planning Application and responses to issues raised there, fully addressed all aspects of possible impacts of the proposed discharge on the receiving waters and nearby SACs and other protected areas, and demonstrated that there will be no significant impacts. The Agency’s Inspector has examined these investigations and has accepted the findings.

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Dairygold/TINE wastewater discharges are to be subject to authorisation and regulation by the Agency. Similarly, the existing discharge from the Rathcoursey Outfall has been subject to authorisation by the Agency and is limited under wastewater discharge licence (WWDL) register no D0056-01, held by Irish Water. The necessary storage and controls for the Dairygold/TINE wastewater discharges will be provided remotely at Mogeely. The Proposed Determination stipulates emission limits, monitoring and controls for the discharge prior to connection to the Irish Water infrastructure. Therefore, accountability of the Dairygold/TINE wastewater discharges is clearly shown to be held by the Operators and will occur on site in Mogeely. All the information and data raised, by Mr. Hugh-Jones, regarding the flows to foreshore tank and diffuser has been included in previous submissions. Stormwater overflow The issue of stormwater overflows has been raised by Mr. Hugh-Jones in previous submissions and addressed by the Inspector Mr. Alan Beatty, on behalf of the applicant, notes that the storm water problem is caused by infiltration into the municipal sewage collection system in Midleton town and does not affect the capacity of the Rathcoursey outfall. Pipeline at Bawnard The 300 mm Φ pipe is a scour intended to assist in emptying down the pressure pipe should a repair become necessary. Liquid would be discharged to a tanker for treatment and not discharged to the tide as inferred. It is not an “emergency overflow”. Technical Committee’s Evaluation: 1. Performance of Midleton WWTP, storm water overflows and Rathcoursey outfall The concerns in relation to the performance of Midleton WWTP, stormwater overflows and the Rathcoursey outfall has been raised in submissions to the licence application and were addressed in the Inspector’s report and addenda which were considered by the Board of the Agency at the PD stage. The TC notes that the EPA Urban Waste Water Treatment in 2018 report (EPA, 2019) identifies Midleton WWTP as a priority area where improvements are needed to resolve environmental priorities. This report states that the European Court of Justice ruled that the collection system at Midleton is inadequate because it did not ensure that the collected waters were retained and conducted for treatment (EPA, 2019). However, the waste water from the installation is not further treated in the Midleton MWWTP, therefore the TC considers that the performance of the Midleton MWWTP, the stormwater overflows and the control of the combined emissions at the Rathcoursey outfall are outside the remit of the IE licence. The wastewater arising at the installation is treated in the onsite WWTP prior to discharge via emission points ref no SEM1 to a pipe under the control of Irish Water. P a g e 32 | 35

In addition to wastewater from the installation, waste water from Irish Distillers (P0442-02) and Midleton WWTP (D0056-01) combine in this IW pipeline and are designed to discharge to the North Channel, on the ebbing tide via Rathcoursey outfall. The TC notes that the potential impacts on Cork Harbour were assessed using calculations and hydraulic modelling methods. The results of this study state that the neap tide volume upstream of the outfall is approximately 10,490,455 m3 indicating adequate dilution available in the vicinity of the outfall which has been discussed in detail in the Inspector’s report and addenda. In accordance with the Waste Water Discharge (Authorisation) Regulations, 2007 as amended, the final combined effluent discharged at Rathcoursey is regulated by a WWDL (Ref. No. D0056-01) granted by the EPA to Irish Water for the Midleton agglomeration. Irish Water, under Section 99E of the EPA Act 1992 as amended, as amended, gave its consent for this discharge, specifying ELVs and certain other conditions and restricted periods of emission. It is Irish Water’s responsibility to ensure that the combined discharge meets the limits and satisfies the conditions set in the WWDL. Compliance is subject to enforcement by the Agency’s Office of Environmental Enforcement. The TC considers that the proposed increase in waste water at the Irish Water Rathcoursey outfall due to the discharges from the installation is large, but the environmental significance has been assessed and it is not going to have an impact on the receiving water quality. The Irish Water WWDL is outside the remit of the Technical Committee and therefore the TC have no further comment in relation to the WWDL D0056-01. 2. Pipeline connection It is suggested that where the Dairygold/TINE pipeline ties into the Midleton main drainage network at Bawnard there is the possibility of emergency discharges into the foreshore at this point. The applicant has clarified that pipeline the 300 mm pipe which joins the Midleton MWWTP flows at Bawnard T “is a scour intended to assist in emptying down the pressure pipe should a repair become necessary. Liquid would be discharged to a tanker for treatment and not discharge to the tide as inferred. It is not an “emergency overflow”. The TC considers that this addresses the objectors’ concerns and have no further comment to make in relation to this matter. The TC notes that Cork County Council granted permission for the most recent proposed development (planning ref 16/7031) on the 04 August 2017 subject to 32 conditions. The planning permission of relevance to the licence application included: ‘construction of a new cheese production facility and a significant upgrade of the existing Dairygold Food Ingredients facility, upgrade and expansion of the existing wastewater treatment plant, installation of an underground pipeline to convey treated water from the facility to a discharge point at an existing outfall at Rathcoursey West, Midleton, 10.6 kilometres to the south west of the facility’.

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The concerns in relation to consultation in relation to the pipeline were raised in the submissions and were addressed in the Inspector’s report and addenda which were considered by the Board of the Agency at the PD stage. The Inspector’s report states that “Matters relating to planning permission and consultation with local communities are within the remit of the planning authority and An Bord Pleanála only and are outside the remit of the Agency.” The PD requires the licensee to establish, maintain and implement a Public Awareness and Communications Programme to ensure that members of the public are informed and can obtain information at the installation, at all reasonable times, concerning the environmental performance of the installation. The public awareness and communications programme shall include a specific programme of outreach to interested local residents. Furthermore, applicants must publish/advertise notice of intention to make the licence application locally. As part of the licensing process all submissions and objections are taken into consideration in the decision-making process, the applicant and third parties can object to the proposed determination. All objections are available on the EPA website and circulated to other objectors to allow that submissions on objections can be made. Reason for Decision: The TC proposes no change to the proposed determination and has reached its conclusion for the following reason: The Irish Water WWDL is outside the remit of the Technical Committee and therefore the TC have no further comment in relation to the WWDL D0056-01. The TC considers the objection in relation to the pipeline has been adequately addressed. Recommendation: No change

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Environmental Impact Assessment Directive – Reasoned Conclusion Update The TC has reviewed the assessment in the Inspector’s Report and, taking into account all objections and submissions on objections received, and the contents of this TC report, the TC considers that the potential significant direct and indirect effects of the activity have been identified, described and assessed in an appropriate manner as respects the matters that come within the functions of the Agency, and as required by Section 83(2A) of the EPA Act 1992, as amended. It is considered that the monitoring, mitigation measures and preventative measures as proposed in the Inspector’s Report, will enable the activity to operate without causing environmental pollution, subject to compliance with the licence conditions included in the PD. Appropriate Assessment – Technical Committee Review

The TC has reviewed the inspector’s Appropriate Assessment screening in the Inspector’s Report and, taking into account all objections and submissions on objections received, and the content of this TC report, the TC is satisfied that the Inspector’s Report provides P a g e 34 | 35 an adequate examination and evaluation of the effects of the activity on the European Site(s) concerned, Great Island Channel SAC (001058), Cork Harbour SPA (004030), Ballymacoda (Clonpriest and Pillmore) SAC (000077) and Ballymacoda Bay SPA (004023), in the light of their conservation objectives.

Overall Recommendation It is recommended that the Board of the Agency grant a licence to the applicant

(i) for the reasons outlined in the proposed determination and (ii) subject to the conditions and reasons for same in the proposed determination, and (iii) subject to the amendments proposed and the reasons set out in this report.

Signed

Jennifer Cope for and on behalf of the Technical Committee

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