Energy (Miscellaneous Provisions) Act 2012

“Improvement plan.

9JA.— (1) Where the Commission is of the opinion that a LPG undertaking or a natural gas undertaking or a person under the control or on behalf of that undertaking—

• (a) is not operating in accordance with the LPG or natural gas safety regulatory framework under section 9(1G), or

• (b) is contravening or has contravened or is failing to comply with or has failed to comply with any other requirement of this Part,

the Commission may give a direction in writing to the LPG undertaking or the natural gas undertaking concerned requiring it to submit to the Commission, within the time period stated in the direction, a plan (in this section referred to as an ‘improvement plan’) specifying the remedial action proposed to be taken by the LPG undertaking or the natural gas undertaking to rectify the matters set down in the direction.

• (2) Where an improvement plan is submitted in accordance with subsection (1) or re-submitted under paragraph (b), the Commission shall, within 30 days, write to the LPG undertaking or the natural gas undertaking—

  • (a) stating that the Commission is satisfied with the remedial action proposed to be taken, or

  • (b) if the Commission is not satisfied that the remedial action proposed to be taken is adequate, directing that the plan be revised and re-submitted to the Commission within a specified time period.

• (3) The Commission may withdraw a direction under this section at any time before a date specified in the direction and may extend and further extend such date.

Improvement notice.

9JB.— (1) Where the Commission is of the opinion that—

- (*a*) a LPG undertaking or a natural gas undertaking has failed to comply with a direction to submit or implement an appropriate improvement plan under section 9JA, or

- (*b*) a LPG undertaking or a natural gas undertaking or a person under the control of or on behalf of that undertaking—

    - (i) is not operating in accordance with the LPG or natural gas safety regulatory framework under section 9(1G), or

    - (ii) is contravening or has contravened or is failing to comply with or has failed to comply with any other requirement of this Part,

      the Commission may serve a written notice (in this section referred to as an ‘improvement notice’) on that LPG undertaking or natural gas undertaking.

• (2) An improvement notice shall—

  • (a) state that the Commission is of the opinion referred to in subsection (1),

  • (b) state the reasons for that opinion,

  • (c) where applicable, state that the LPG undertaking or natural gas undertaking has failed to submit or implement an improvement plan,

  • (d) direct the LPG undertaking or natural gas undertaking to remedy the alleged contraventions or the matters occasioning that notice by a date specified in the notice, which shall not be earlier than the period within which an appeal may be brought under subsection (5),

  • (e) contain details of the consequences, under this section of a failure to comply with the notice,

  • (f) include information regarding the making of an appeal under subsection (5), and

  • (g) include any other requirement that the Commission considers appropriate.

• (3) An improvement notice may include directions as to the measures to be taken to remedy any contravention or matter to which the notice relates or otherwise comply with the notice.

• (4) Where the Commission proposes to serve an improvement notice, it shall notify the LPG undertaking or natural gas undertaking concerned in writing of its intention to serve the improvement notice and the LPG undertaking or natural gas undertaking concerned may, within 21 days of such notification, make representations to the Commission, which shall consider them.

• (5) Where the Commission decides, having considered any representations made to it under subsection (4), to serve an improvement notice, a LPG undertaking or natural gas undertaking which is aggrieved by such improvement notice may, within the period of 14 days beginning on the day on which the notice is served on it, appeal to the High Court against the notice and in determining the appeal the Court may—

  • (a) if it is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice with or without modification, or

  • (b) cancel the notice.

• (6) Where an appeal against an improvement notice is taken, the notice shall, unless cancelled by the High Court, take effect on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

• (7) Where no appeal is taken against an improvement notice, the notice shall take effect on the expiration of the period during which such an appeal may be taken or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

• (8) The Commission may withdraw an improvement notice at any time before the date specified in it under subsection (2)(d) and the Commission may extend or further extend that date at any time when an appeal against the notice is not pending.

• (9) A person who fails to comply with an improvement notice commits an offence and is liable—

  • (a) on summary conviction, to a class A fine, or

  • (b) on conviction on indictment, to a fine not exceeding €25,000.

  Prohibition notice.

  9JC.— (1) Where the Commission is of the opinion that an activity being or likely to be carried on by or under the control or on behalf of the holder of a LPG safety licence or a natural gas undertaking involves a substantial risk to safety, the Commission may serve a notice (in this section referred to as a ‘prohibition notice’) on that holder or natural gas undertaking.

• (2) A prohibition notice shall—

  • (a) state that the Commission is of the opinion referred to in subsection (1),

  • (b) state the reasons for that opinion,

  • (c) specify the activity, or the infrastructure, in respect of which that opinion is held,

  • (d) where, in the opinion of the Commission, the matter involves a contravention, or is likely to involve a contravention, of the requirements of this section, specify the provision or provisions concerned and the reasons for that opinion,

  • (e) prohibit the carrying on of the activity concerned until the matters which give rise or are likely to give rise to the risk are remedied, and

  • (f) contain details of the consequences under this section of a failure to comply with the notice.

• (3) A prohibition notice may include directions—

  • (a) as to the measures to be taken to remedy any contravention or matter to which the notice relates or to otherwise comply with the notice, and

  • (b) to bring the notice to the attention of any person affected by it, or to the attention of the public generally.

• (4) A prohibition notice shall take effect—

  • (a) if the notice so declares, immediately the notice is received by the holder of the LPG safety licence or natural gas undertaking or the person on whom it is served,

  • (b) if no appeal is taken against the notice, on the expiration of the period during which such an appeal may be taken or on the day specified in the notice as that on which it is to come into effect, whichever is the later, or

  • (c) in case an appeal is taken (unless the notice is cancelled by the High Court) on the day next following the day on which the notice is confirmed on appeal or the appeal is withdrawn or on the day specified in the notice as that on which it is to come into effect, whichever is the later.

• (5) The bringing of an appeal against a prohibition notice which is to take effect in accordance with subsection (4)(a) does not have the effect of suspending the operation of the notice unless—

  • (a) the appellant applies to the High Court to have the operation of the notice suspended until the appeal is disposed of, and

  • (b) on such application, if it thinks proper to do so, the Court directs that the operation of the notice be suspended until the appeal is disposed of.

• (6)

  • (a) The holder of a LPG safety licence or natural gas undertaking which is aggrieved by a prohibition notice may, within the period of 7 days beginning on the day on which the notice is served on it, appeal to the High Court against the notice and in determining the appeal the Court may—

    • (i) if it is satisfied that in the circumstances of the case it is reasonable to do so, confirm the notice with or without modification, or

    • (ii) cancel the notice.

  • (b) Where on the hearing of an appeal under this section a prohibition notice is confirmed, notwithstanding subsection (4), the High Court by which the appeal is heard may, on the application of the appellant, suspend the operation of the notice for such period as in the circumstances of the case the Court considers appropriate.

• (7) The Commission may at any time withdraw a prohibition notice.

• (8) A person who fails to comply with a prohibition notice commits an offence and is liable—

  • (a) on summary conviction, to a class A fine, or

  • (b) on conviction on indictment, to a fine not exceeding €25,000.

  Restricting or prohibiting LPG or natural gas activities in emergencies.

  9JD.— (1) Where the Commission considers that the risk to the safety of—

  • (a) human life,

  • (b) a piped LPG distribution network or natural gas infrastructure, or

  • (c) property not in the ownership of the holder of a LPG safety licence or natural gas undertaking concerned,

  is so serious that any of the activities of a LPG or natural gas undertaking should be restricted or should be immediately prohibited until specified measures have been taken to reduce the risk to a level which is as low as is reasonably practicable, the Commission may apply, ex parte, to the High Court for an order restricting or prohibiting the activities concerned.

• (2) The High Court may make such interim or interlocutory order as it considers appropriate, and the Court in considering whether to make the order shall consider whether the elimination or necessary reduction of the risk concerned could be achieved by the issue of an emergency direction or a prohibition notice.

• (3) Any order of the High Court under subsection (2) shall have effect notwithstanding the terms of any permission given under this Act or any other enactment for the carrying on of the activity concerned or, where the order refers to another person, the carrying out of an activity by such person.

• (4) On any application for the revocation or variation of an order made under this section, the Commission shall be entitled to appear, be heard and adduce evidence.

LPG safety licences.

9JE.— (1) For the purposes of ensuring LPG safety a person shall not make available LPG by way of a piped LPG distribution network for use by individual domestic final customers unless a LPG safety licence is in force in respect of the activity.

• (2) A person who contravenes subsection (1) commits an offence and is liable—

  • (a) on summary conviction to a class A fine, or

  • (b) on conviction on indictment to a fine not exceeding €500,000.

• (3) The Commission may, upon application to it, grant or refuse to grant to a LPG undertaking a LPG safety licence to make LPG available to final customers by way of a piped LPG distribution network.

• (4) A LPG safety licence is granted subject to such conditions as are specified in the licence.

• (5) An application for a LPG safety licence shall be—

  • (a) in writing and be in such form and contain such information as the Commission may request, and

  • (b) accompanied by such a fee, if any, as the Commission may determine under section 9JF to be appropriate, having regard to the application being made.

• (6) The Commission shall make information on such fees payable under subsection (5)(b) available on the request of an applicant for a LPG safety licence.

• (7) The Commission shall monitor the activities of a holder of a LPG safety licence to ensure that the holder complies with the terms and conditions of the licence.

• (8) The Minister may specify by regulations the criteria in accordance with which an application for a LPG safety licence in respect of any activity referred to in subsection (1) may be determined by the Commission.

• (9) The criteria specified by the Minister under subsection (8) may relate to any or all of the following:

  • (a) the safety of the piped LPG distribution network,

  • (b) the qualifications of an applicant, including the technical qualifications of the applicant, and

  • (c) any other criteria specified by regulations made under subsection (8).

• (10) A person shall comply with any request in writing from the Commission for additional information specified by regulations made under subsection (8).

• (11) A person undertaking any of the activities mentioned in subsection (1) on the commencement of this section shall apply for a LPG safety licence, within 3 months of such commencement or such other periods as may be agreed by the Commission.

• (12) A holder of a LPG safety licence shall—

  • (a) operate, maintain and develop such facilities or systems as may be required for the purpose of carrying out the activity for which it is licensed with due regard to safety and in accordance with the terms of the licence,

  • (b) provide the Commission with sufficient information to ensure that LPG activities licensed under this section may take place in a safe and secure manner, and

  • (c) provide all documents, records, accounts, estimates and other information, whether oral or written, requested from time to time by the Commission, in the form and at the times specified by the Commission, for the purpose of verifying that the holder of the licence is complying with the conditions of the licence, or as may be required by the Commission in the performance of its duties or functions imposed under this Act.

• (13) The Commission shall reach a determination on the issue of a LPG safety licence under subsection (1) as soon as practicable after it has completed its assessment but no later than 6 months after the date of receipt of all information including receipt of the additional information requested under subsection (9).

• (14) A LPG safety licence remains in force until it is revoked by the Commission or replaced by a new safety licence.

• (15) The Commission shall, as soon as practicable after the issue of a LPG safety licence to a LPG undertaking, ensure that a copy of that licence is published in the manner prescribed by the Commission.

• (16) Where—

  • (a) the holder of a LPG safety licence, requests the Commission to modify the terms or conditions of the licence, or

  • (b) the Commission is of the opinion that a LPG safety licence should be amended,

  the Commission may modify the terms or conditions of the licence.

• (17) The procedures to be followed before modifying LPG safety licences shall be as prescribed under sections 19 and 20 in regard to all licences and authorisations other than a modification made to give effect to an order under section 39 or 40.

Fees relating to applications for LPG safety licences.

9JF.— (1) Where a LPG undertaking submits an application for a safety licence it shall be accompanied by such fee, if any, as the Commission may determine to be appropriate, having regard to the nature of the designated LPG activity to which the safety licence relates.

• (2) The level of fees shall be structured to ensure that the fee relating to the licence is sufficient to enable the Commission to recover the reasonable costs and expenses which the Commission is likely to incur by reason of its consideration of the application concerned and matters directly pertaining to the application concerned including the costs and expenses incurred in determining conditions relating to the grant or the refusal to grant a LPG safety licence.

• (3) The Commission shall make information on the structure and methodology of how it has determined such fees available to the LPG undertaking concerned where requested to do so.

Regulations (LPG incident).

9JG.— (1) The Commission may make regulations relating to the reporting and investigation of LPG incidents.

• (2) Each of the following is a class of event or occurrence which is a LPG incident—

  • (a) the death of any person,

  • (b) injury to any person which requires medical attention to be given to such person in hospital other than as an out-patient, or

  • (c) loss or damage to any building, land or other property, where in the opinion of the LPG undertaking concerned the aggregate value of such loss or damage is in excess of €6,500,

  resulting from the use, misuse, abuse, leakage, combustion or explosion of LPG.”.

19. Amendment of Schedule to Act of 1999.

19.— (1) Schedule 1 (as amended by section 10 of the Act 2006) to the Act of 1999 is amended:

• (a) by substituting for paragraph 16 the following:

“16.— For the purposes of meeting expenses properly incurred by the Commission in the discharge of its functions under this Act, the Commission may make an order (in this Act referred to as a ‘levy order’) imposing a levy to be paid each year on such class or classes of—

• (a) energy undertakings,

• (b) petroleum undertakings, or

• (c) holders of LPG safety licences,

as may be specified by the Commission in the order and separate orders may be made under this paragraph in respect of electricity undertakings, natural gas undertakings, holders of LPG safety licences and petroleum undertakings and in respect of different classes of such undertakings.”,

and

• (b) in paragraph 25, by substituting for subparagraph (aa) (inserted by section 4 of the Act of 2010) the following:

• “(aa) ensure, as far as is reasonably practicable, that such accounts identify separately in regard to the gas, LPG, electricity and petroleum sectors all elements of cost and revenue, with the basis of their calculation and the detailed attribution methods used, related to the discharge of the Commission’s functions under this Act.”.

Chapter 6 Dissolution of Bord Gáis Éireann Subsidiary Companies and Transitional Provisions

20. Dissolution of Bord Gáis Éireann Subsidiary Companies and Transitional Provisions.

20.— (1) The Minister may by order or orders dissolve any or all of the companies mentioned in the Table to this section.

• (2) On the dissolution of a company under subsection (1) the following are transferred to Bord Gáis Éireann—

• (a) all rights and property (and rights to such property) held or enjoyed immediately before that day by the former company, and

• (b) all liabilities incurred before that day by the former company which had not been discharged before that day,

and, accordingly, without any further conveyance, transfer or assignment—

• (i) the said property, real and personal, shall, on that day, vest in Bord Gáis Éireann for all the estate, term or interest for which, immediately before that day, it was vested in the former company, but subject to all trusts and equities affecting the property and capable of being performed,

• (ii) those rights shall, as and from that day, be enjoyed by Bord Gáis Éireann, and

• (iii) those liabilities shall, as and from that day, be liabilities of Bord Gáis Éireann.

• (3) All moneys, stocks, shares and securities transferred to Bord Gáis Éireann by this section that, immediately before the dissolution, are standing in the name of the former company shall, upon the request of Bord Gáis Éireann, be transferred into its name.

• (4) Every right and liability transferred to Bord Gáis Éireann by this section may, on or after the dissolution, be sued on, recovered or enforced by or against Bord Gáis Éireann in its own name and it shall not be necessary for Bord Gáis Éireann to give notice of the transfer to the person whose right or liability is transferred by this section.

• (5) Every contract or agreement made between the former company, and any other person, which is in force immediately before the dissolution shall continue in force on and after that day and shall be construed and have effect as if Bord Gáis Éireann were substituted therein for the former company or, as the case may be, its trustee or agent acting on its behalf, and shall be enforceable against Bord Gáis Éireann.

• (6) Where, immediately before the dissolution, any legal proceedings are pending in any court or tribunal and the former company is a party to the proceedings, the name of Bord Gáis Éireann shall be substituted for that of the former company or, as the case may be, such trustee or agent thereof, and the proceedings shall not abate by reason of such substitution.

• (7) Final accounts of a former company shall be drawn up by Bord Gáis Éireann as soon as may be after the dissolution in such form as may be approved of by the Minister, and in respect of such period or periods as may be specified by the Minister.

• (8) Every order made by the Minister under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if a resolution annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly but without prejudice to the validity of anything previously done thereunder.

• (9) In this section—

“dissolution” means the day upon which a company is dissolved under subsection (1);

“former company” means a company dissolved under subsection (1) and includes any trustee or agent of the former company acting on behalf of the former company.

Table

Chapter 7 Amendment of National Oil Reserves Agency Act 2007

21. Amendment of National Oil Reserves Agency Act 2007.

21.— (1) In this section—

“Act of 2007” means the National Oil Reserves Agency Act 2007;

“Biofuels Act 2010” means section 3 of the Energy (Biofuel Obligation and Miscellaneous Provisions) Act 2010.

• (2) Section 44I (inserted by the Biofuels Act 2010) of the Act of 2007 is amended—

• (a) in subsection (1), by substituting “60 days” for “35 days”, and

• (b) in subsection (3), by substituting “35 days” for “28 days”.

• (3) Section 44J (inserted by the Biofuels Act 2010) of the Act of 2007 is amended in subsection (2), by substituting “14 days” for “28 days”.

• (4) Section 44K (inserted by the Biofuels Act 2010) of the Act of 2007 is amended by inserting after subsection (2) the following:

• “(2A) In order to count biofuel obligation certificates against the discharge of a biofuel obligation for any obligated period, the notice of transfer for those certificates must be submitted to the Agency within 81 days after the end of the obligation period concerned.”.

• (5) Section 44M (inserted by the Biofuels Act 2010) of the Act of 2007 is amended in subsection (1), by inserting after paragraph (c) the following:

• “(ca) the biofuel obligation account holder fails to comply with Regulation 7(4) of the European Union (Biofuel Sustainability Criteria) Regulations 2012 (S.I. No. 33 of 2012),”.

• (6) The following section is inserted after section 67 of the Act of 2007:

“Contingency planning for an oil supply disruption.

68.— (1) The Minister may prepare contingency plans to be implemented in the event of an oil supply disruption.

• (2) Each oil company and oil consumer shall assist and co-operate with the Minister, the Agency and relevant public bodies in the preparation of contingency plans for, and the response to, an oil supply disruption.

• (3) Each oil company and oil consumer shall, if so directed by the Minister, furnish to him or her and the Agency such information as he or she may require in respect of the preparation of contingency plans for, and response to, an oil supply disruption.”.

Chapter 8 Repeals

22. Repeals.

22.— The following are repealed:

• (a) section 11 of the Electricity (Supply) Act 1927,

• (b) subsection (2) of section 17 of the Gas Act 1976,

• (c) paragraph (c) of section 26 of the Energy (Biofuel Obligation and Miscellaneous Provisions) Act 2010, and

• (d) paragraph (c) of section 3 of the Petroleum (Exploration and Extraction) Safety Act 2010.