Implements and tools
The Pollution Prevention and Control Bill, having last month received Royal Assent, is now an Act of Parliament. In the second of IEM's reports on IPPC, the European Integrated Pollution Prevention and Control Directive, we turn to UK implementation and regulation.
The UK is required to transpose the IPPC Directive into domestic legislation by 30 October 1999, from which time new industrial installations will have to meet the Directive’s requirements. In the words of Herbert Aichinger, head of unit for industrial installations and emissions in the European Commission’s DGXI: “It is important to monitor closely the implementation of legislation. Otherwise it’s just a nice piece of paper.”
Door wide open
The Government, in implementing the IPPC Directive, had a choice of two legislative routes: legislation put in place under section 2(2) of the European Communities Act 1972; or primary legislation. The Government has opted for the latter, encompassing a broad, relatively short bill conferring upon the Secretary of State powers to make regulations providing for a new regime, in doing so leaving the door wide open for other pollution prevention innovations – notably emissions trading.
Where the current system regulates processes, of which there can be more than one on any particular site, the new regime will regulate entire installations, including all parts of an operation which are directly associated with, have a technical connection with, or could have an effect on pollution and emissions. The new regime will also broaden the scope of regulation to include such issues as energy efficiency, raw materials use, noise, vibration, waste minimisation, accident prevention and site remediation.
The concept of Integrated Pollution Control has been the basis of UK environment policy for nearly a decade, introduced by the Environmental Protection Act 1990 and the Environment Act 1995. Indeed, the IPPC directive itself is modelled to a large degree on the UK system. “It is,” said Lord De Ramsay, outgoing chairman of the Environment Agency, as proferred in a speech to the House of Lords, “an example of Britain leading the way in pollution control in Europe. In fact, we are in danger of becoming the clean man of Europe.”
Part I of the Environmental Protection Act 1990 contains both the Integrated Pollution Control (IPC) and the Local Air Pollution Control (LAPC) regimes. IPC considers the totality of emissions, in terms of processes and substances listed under Part A of the regulations, which followed EPA 1990. Under IPC, the Environment Agency regulates emissions to air, water and land from around 2,000 installations. Other – “Part B” – processes have been regulated under LAPC in England and Wales by the relevant local authority. LAPC, then, monitors atmospheric emissions only, with other media being regulated by their own specific regimes. Local authorities regulate emissions to air from around 13,000 installations, the potential of which to pollute land and water is less significant.
Single, coherent system
The purpose of the Pollution Prevention and Control Act, which repeals Part I of EPA 1990, is one of further integration; to enable, via regulations, the establishment of a single, coherent pollution control system which will avoid the potentially confusing situation, for both operators and regulators alike, of having three separate regimes: an IPPC regime; the IPC regime (applying to those processes falling within IPC but outside IPPC); and the LAPC regime (covering processes falling within LAPC but outside IPPC), operating concurrently.
In all, around 7,000 installations in the UK will be covered by the new regime, including: those presently regulated under IPC; some 1,500 of the 13,000 currently regulated under LAPC (the new regulations will also ensure that the remaining 11,500 remain part of “a coherent regulatory framework”); over 1,000 of the installations currently regulated by the Waste Management Licensing system established under part II of the 1990 act – predominantly landfill sites; and significant numbers of installations currently unregulated by either part I or II of EPA 1990. This final category consists mainly of large, intensive pig and poultry installations, plus large plants for the manufacture of food and drink products.
Significantly, the Government also intends to employ the Act to improve the environmental regulation of offshore oil and gas installations, including the implementation of the Oslo and Paris Commission’s (OSPAR) decision on the use and discharge of chemicals offshore, and the recommendation in Lord Donaldson’s report on the Sea Empress disaster, that the Secretary of State should have powers to direct operations following a pollution incident.
Thus far, the Government’s proposals for the implementation of the IPPC Directive have been the subject of three consultation papers, issued in July 1997, and in January and December of 1998. A fourth consultation paper, including a draft of the full regulations which the Secretary of State proposes to make under the Act, is already overdue.
In many Member States, as in the UK, different authorities are responsible for various areas of environmental concern. IPPC implementation means that, even if numerous different authorities are involved, their activities must be co-ordinated. Aichinger again: “The ideal which the Commission would like to achieve,” he says, “is a one-stop-shop for industry where industry can apply for one permit from one responsible authority which can issue one integrated permit. While the Commission cannot insist on this approach, we can promote it.”
Whilst in Scotland, the Scottish Environment Protection Agency (SEPA) will undertake regulatory responsibility for all installations, the second UK IPPC implementation consultation paper outlined four options for the involvement of English and Welsh local authorities in IPPC regulation, as follows:
- designation of the Environment Agency as the sole regulator for all IPPC regulations, with local authorities acting as statutory consultees;
- the Environment Agency to delegate some functions to local authorities, such as permitting certain installations, plus some enforcement and inspection functions;
- a division of regulatory responsibility, with the Environment Agency responsible for some of the ‘new’ IPPC installations and local authorities responsible for others; or
- co-ordinated pollution control (CPC, where, instead of having a single regulator – the EA – local authorities would continue to be responsible for emissions to the air, and the Environment Agency for all other emissions to land and water).
The majority of respondents – particularly the local authorities themselves and industry regulated by them – preferred option three. A significant number, however, pointed out that IPPC requires all emissions from installations to be regulated in an integrated way, and that the expertise of local authorities lies in regulating emissions to air, and not in water pollution, waste minimisation, energy efficiency or the choice of best available techniques, for example. The Government, in the third consultation paper, however, concluded that: “…local authorities have operated the LAPC regime capably, achieving a high rate of compliance with upgrading schedules, and that a regulatory role under IPPC will complement their new responsibilities for local air quality management.”
Thus, local authorities are to retain regulatory responsibilities for the 1,500 IPPC installations they currently regulate under the LAPC regime (with the exception of animal rendering plants, to be passed to the Environment Agency), as well as continuing to regulate emissions to air from the 11,500 non-Directive LAPC processes. The Environment Agency will remain a statutory consultee on all applications being dealt with by local authorities, and will be empowered to insist on the inclusion of conditions regulating discharges to water. Conversely, the Agency will be obliged to consult local authorities about noisy elements of IPPC applications. Ian Foulkes, head of Environmental Health, Consumer Protection and Building Control at the Local Government Association (LGA), told IEM: “We are very pleased with the proposed split in regulatory responsibilities under PPC, and particularly that the Government acknowledged local authorities’ previous success , especially when bearing in mind that one of the options would have ruled out local authority involvement altogether.
“Currently, local authorities are responsible only for air pollution. The new regime – one split along many agreed lines – broadens that role to one inkeeping with the objectives of IPPC.” Both the LGA and Environment Agency have acknowledged a training requirement to meet the increased scope of both organisations’ powers and responsibilities under the new regime. Mechanisms do, however, exist to protect that clause of PPC espoused by Lord Whitty: that of compliance burdens.
Following “overwhelming support” for sectoral guidance in response to the first two consultation papers, the Government is to issue sector specific guidance detailing “clear, indicative performance standards for both new and existing plant, with upgrading timetables for the latter”. Respondents also welcomed the proposal that, in order to protect the site-specific, flexible nature of regulation described by IPPC, and as a check on potentially over-zealous regulation prescribed by PPC, “the guidance notes could contain the ‘seeds of their own destruction’ in the form of pointers as to what might justify departures from the indicative standards in particular cases”.
Further, the Government has proposed that regulators develop standard permit conditions which, if followed by companies in a particular sector, will guarantee compliance with the requirements of IPPC. Such standards – permitted under the terms of the Directive – would be limited to sectors of an especially homogenous nature, where Best Available Techniques (see IEM July 1999) can be quickly and easily determined. However, in order to once again safeguard the site-specific approach, the use of standard permit conditions will be optional, with both operator and regulator able to opt out if specific situations demand it. Therefore – bearing in mind that standard conditions should lead to a lower cost of regulation – other things being equal – development of such conditions depends upon support from a critical mass of operators within a given sector.
IPPC implementation and resultant effectiveness, via its catchwords of site-specificity and flexibility, depends largely, it seems, on the same thing. A point conceded by Paul Leinster, the Environment Agency’s director of environmental protection: “The Agency’s aim is to ensure management and future regulation is carried out in a sustainable manner to achieve a balance between the needs of industry and the protection of the environment. We want the environment to be at the heart of industry’s thinking. This will be achieved by a coherent regulatory regime that is proportionate, practical and efficient, and which integrates business and environmental plans.”