EU Directive 96/61/EC on integrated pollution prevention and control (IPPC Directive) came into force on 30 November 1996. Member States are required to put into place legislation implementing the IPPC Directive by 31 October 1999. Following publication of the Department of the Environment Transport and the Regions’ (DETR) third consultation paper on IPPC, the Government has passed a framework act to implement the IPPC Directive and has published a fourth consultation paper containing draft implementing regulations. This article provides an update on the Government’s progress towards implementation and highlights the main outstanding issues.
Pollution Prevention and Control Act 1999
In accordance with proposals in the DETR’s third consultation paper the Government has passed framework or enabling legislation in the form of the Pollution Prevention and Control Act 1999 (PPC Act). The PPC Act received Royal assent on 27 July 1999. The intention in passing the PPC Act is to provide a single legislative basis for (1) regulation of IPPC installations and (2) remaining Integrated Pollution Control (IPC) and Local Authority Air Pollution Control (LAAPC) processes which fall outside the IPPC Directive. Accordingly the PPC Act empowers the Secretary of State to repeal the provisions currently governing IPC and LAAPC processes in Part I of the Environmental Protection Act 1990 (EPA) on such date or dates as may be appointed.
The PPC Act also empowers the Secretary of State to make regulations containing the detailed provisions under which the new system of regulation will operate. Schedule 1 of the PPC Act sets out the purposes for which regulations may be made by the Secretary of State. It leaves some flexibility for the Government in settling the detail of the regulations. This approach may have been adopted so that the UK could on the one hand show that primary implementing legislation is in place before the 31 October 1999 deadline while on the other hand leaving the final detail to regulations which will almost certainly not be approved by Parliament before 31 October 1999.
The PPC Act empowers the Secretary of State to make further regulations particular to offshore oil and gas installations. These will confer certain powers similar to those which apply in relation to shipping casualties under the Merchant Shipping Act 1995.
The PPC Act also contains provisions intended to resolve a problem which stems from the transition of waste disposal licences issued under the Control of Pollution Act 1974 (“COPA”) to site licences regulated under Part II EPA. This has little to do with the IPPC Directive, however, the PPC Act is being used as a vehicle for resolving a problem resulting from other legislation. The problem arises from the fact that many COPA waste disposal licences were granted for a limited duration. This is inconsistent with the principle under Part II EPA that site licences must remain in force until revoked or surrendered under the provisions of Part II EPA. Section 4 of the PPC Act contains some complicated provisions designed to address this problem.
Draft pollution prevention and control regulations
The DETR has published a further draft of the Pollution Prevention and Control Regulations (“PPC Regulations”) in its fourth consultation paper issued in August 1999. The fourth consultation paper provides the Government’s view and seeks consultation on a number of outstanding issues.
Guidance for industry
Consultees have continued to express concern that by virtue of the UK guidance being given statutory status there will be a loss of the site specific flexibility enjoyed under IPC and LAAPC guidance. The regulators are, however, merely required to have regard to the guidance in making a site specific assessment. They may depart from the guidance provided that reason is given for the departure. This is intended to ensure transparency of site specific permitting. The Government states that such a system has been successfully applied under the LAAPC regime without significant loss of site specific flexibility.
Where new or substantially changed installations require an IPPC permit before the relevant guidance is available existing IPC and LAAPC guidance will be used in conjunction with generic guidance being drafted by the Environment Agency in relation to new issues such as energy efficiency, site restoration and noise.
Simplified permitting - “trivial emissions”
The debate continues around the Government’s proposal for simplified permitting using standard permit conditions where installations are deemed to have minimal capacity to cause damage to the environment. It is acknowledged that all installations falling within Annex I to the IPPC Directive must have a permit regardless of triviality but the Government is continuing to consider simplified permitting and has requested the Environment Agency to draw up proposals for determining when the impact of an installation can be considered trivial.
Water protection - local authorities
In the third consultation paper the Government put forward options for ensuring protection of water in relation to those IPPC installations which will be regulated by local authorities. The latest draft of the PPC Regulations adopts (in accordance with the opinions of most consultees) the approach whereby the Environment Agency has the power to stipulate minimum standards for discharges to sewers and controlled waters. The local authority will be responsible for determining Best Available Techniques (“BAT”) as a whole but will not be able to set standards for discharges to sewers and controlled waters which are less stringent than those set by the Environment Agency.
Noise
The PPC Act amends Part III EPA so that the statutory nuisance powers of local authorities under Part III EPA will not apply to noise from PPC installations which are subject to integrated permits. The intention of this provision is to avoid double regulation. Local authorities have expressed some concern about these proposals. This exclusion, however, only limits the powers of local authorities in relation to noise to the extent regulated under PPC permits. Noise from the site which does not emanate from the PPC installation will still be subject to Part III EPA. In addition the exclusion will not affect the rights of members of the public to take action in the magistrates’ court in relation to statutory noise nuisances whether or not from an IPPC regulated source. There should, therefore, be no gap in enforcement powers in relation to noise.
Some local authorities have suggested that they be given the power to set minimum conditions for noise emissions in relation to installations regulated by the Environment Agency. The Government has rejected this suggestion on the basis that the Environment Agency has at least as much experience in industry related noise issues as the local authorities. As a compromise the Government has proposed that the Environment Agency be required to apply recommendations from local authorities in relation to noise unless it can provide justification for not doing so.
Site restoration
Under the PPC Regulations operators of installations subject to integrated permitting are required to remediate any contamination or pollution resulting from the operation of the installation. The Government has resisted suggestions that such site restoration should be to the standard of “suitable for use” set out in the new contaminated land provisions in Part IIA EPA. The Government takes the view that restoration should be to the condition of the site which existed prior to the grant of the PPC permit. The Government justifies this stance on the basis that unlike Part IIA EPA the site restoration requirements under the PPC Regulations are not to have retrospective effect and industry should therefore be responsible under this regime only for pollution or contamination resulting from its PPC activities. Further, to allow a suitable for use standard to be applied would be to tolerate a degree of pollution or contamination from an installation.
Transitional arrangements
From 31 October 1999 all new IPPC installations will be required to obtain a permit under the PPC Regulations. Existing installations which will be subject to integrated permitting are to be phased in between 31 October 1999 and 31 October 2007. The operators of those installations will be required to submit an application which must contain information on site conditions, noise and energy efficiency. The fourth consultation paper explains the Government’s proposed transitional arrangements (including timetabling) for the phasing in of existing installations.
Those current LAAPC processes which will not be subject to integrated permitting will nonetheless be reauthorised under PPC permits. This will be phased in before 31 October 2007 under a suitable programme taking into account the pressures on local authorities in complying with the PPC Regulations as a whole.
The charging scheme
The fourth consultation paper also sets out details of a proposed framework for the charges that may be levied by the Environment Agency. It sets out what the Government thinks should be the broad of principles but invites further consultation. A long term charging scheme for the new PPC regime is not expected to be in place before March 2001. Please see Update in Section 2 of this Bulletin.
Paul Sheridan and Daniel Chappell
CMS Cameron McKenna Environment Law group
