Tony Higgins

Enviroconsult2013@gmail.com

Legislation Update

• Aims– PPC

• Outline the changes in domestic legislation brought about by the IED

• Touch on the local drivers better regulation/red tape challenge background

• It will highlight the removal of gold-plating of some EC regulation in English/UK regs.

• Addressing key basic changes for waste incineration and solvent plants

• Review National differences in implementation of the IED into domestic legislation.

– Planning• Highlight changes to planning guidance and impact on industry

Implementation of IED• The implementation of IED has been heavily

influenced by the Better Regulation and cutting red tape agendas.

• The principle thrust has been to level the playing field with Europe and regulate just what needs regulating through permitting

• Devolved administrations have handled the implementation differently… Scotland has its own regime, Northern Ireland and

Wales are basically the same, England is different…

Changes to the Regs

• English changes summary:– Integrated Pollution Prevention and Control (IPPC) Directive

is somewhat strengthened by the IED Directive, implementing BAT AEL’s (Associated Emission Level)*.

– The requirements of the Waste Incineration (WID) and Solvent Emissions (SED) Directives remain virtuallyunchanged. (example later)

– Large combustion plant requirements are significantly tightened, not directly relevant to LA’s specifically unless you have a direction (there are a couple!).

– Generic BAT has been removed where permits are required ONLY because of SED or WID provisions. More of that later!

– New industry sectors moved into LA regulation

BAT AEL definition

• Article. 3.12 (IED): definition – BAT-AEL means the range of emission levels

obtained under normal operating conditions using a best available technique or a combination of best available techniques, as described in BAT conclusions, expressed as an average over a given period of time, under specified reference conditions

• Generally accepted to indicate a tightening of standards.

BAT AEL implementation

• Whilst there are no fundamental changes, the drafting is tighter and more prescriptive than under IPPC. Article 15(3) of the (IED) Directive states:– “The competent authority shall set emission limit

values that ensure that, under normal operating conditions, emissions do not exceed the emission levels associated with the best available techniques as laid down in the decisions on BAT conclusions…”

– Cant wait for DEFRA!!! They only need to reach BAT conclusions within 4 years... And BAT AELs still need to be site specific!

Part A2: BAT-AELs, ELVs and derogations

• Members States (MS) should already be setting emission limit values (ELVs) in line with BAT no change to existing requirements.

• Under the IED, the requirement to apply BAT-associated emission levels (BAT-AELs) applies only where they are set out in the published BAT Conclusions. (This is the reason for scaling back BAT provisions for some sectors!)

• It is only under these circumstances that the need for a derogation can arise and in such cases the onus is on the operator to make the case for a derogation to the regulator.

• Any derogation requires public consultation. The reason for granting the derogation must be attached to the permit and made publicly available. The rationale must be robust in case of any appeal. Justification Required!

Part A2: BAT-AELs, ELVs and derogations

• BAT-AELs and emission limit values (ELVs) are not the same thing. Permit ELVs are the end result of a process that starts with BAT-AELs and then takes into account site specific conditions.

• Derogations can apply where technical and economic imperatives demand but must be of limited duration. (though conceivably that duration could the duration a company is on a particular site (due to physical/technical constraint)

• BAT Conclusions (BAT AELs) are published as summaries of BREFs. BREFs are drafted by technical authors in the IPPC bureau in Seville. In the absence of specific DEFRA guidance the BREF is applicable directly

Part A2: BAT-AELs, ELVs and derogations

• BAT Conclusions for the iron & steel, glass and tannery sectors are already published.

• Cement and lime sector have been published very recently.

• Following publication regulators have 4 years to update permits if necessary.

• Business as usual until BAT Conclusions are published.

• NB: For the new activity of wood preservation, it’s up to LA’s to develop BAT working with LAU, DEFRA, Welsh Government and each other and using the existing Wood Preservation Association (WPA) guidance.

Sector Date for BAT conclusions

Non-ferrous metals March 2014? (consultation Nov 12)

Wood-based panels 2015?

Surface treatment 2016?

Waste incineration 2017?

Wood preservation 2017?

Ferrous metal processing 2017?

New Activities

• New Activities– Some activities are new to IPPC regulation. These

are:• for Part A(1):

• gasification or liquefaction of fuels other than coal;

• biological processing of chemicals;

• certain waste recovery or disposal activities; e.g. waste shredders;

– and for Part A(2);• preservation of wood and wood based products with

chemicals with a throughput >75m3 per day.

Changes to Part 2 of Schedule 1 to the EPR

• DEFRA has produced an ‘unofficial consolidation’ of the relevant parts of the EPR 2010 as amended by the 2013 Regulations.

• Changes made - In particular of changes to Sections 3.1, 5.1, 6.1 and 6.6 of Part 2 of Schedule 1.

• http://www.defra.gov.uk/industrial-emissions/files/EPR-Regs-2013-consol-changes-RV-April-2013.pdf .

Other Changes to the EPR

• Revisions to Part 1 of Schedule 1 to reflect changes elsewhere. – Schedule 7 remained in force for existing

installations until 7 January 2014 (to maintain coverage of existing Part A installations by the IPPC Directive)

– It was replaced by Schedule 7A which applies Chapter II of the Directive to existing installations, but Schedule 7A applied immediately to any new installations (some changes applied).

– Schedule 13A now applies for all waste incineration plants and is virtually unchanged .

– (New) Schedule 14 on solvent activities (virtually unchanged). However, note that, for installations subject only to Schedule 13A or Schedule 14, there is now in England no general requirement to apply BAT. Note also that the consultation proposal to set up a registration system for solvent activities has not been included.

• Schedule 8 rewritten to signpost to the new IED articles, has exactly the same effect as the previous Schedule 8.

WIDAll waste incineration and co-incineration activities above the IPPC thresholds (10 tonnes/day hazardous waste, 3 tonnes/hour non-hazardous) are now for regulation by the Environment Agency or (since 1 April) National Resources Wales. Incineration and co-incineration plants with a capacity below the relevant threshold are now defined as small waste incineration plants (“SWIPs”) and are to be regulated by the local authority, unless a Direction making LA Responsible for A1 Installation is in place

(there are several and

more are likely?).

WID• Note that activities carried out in SWIPs are, in England,

neither Part A nor, unless only specified types of waste are incinerated , Part B. They are subject to regulation only as set out in Schedules 13 (for existing plants) or 13A (for new plants and, from 7 January 2014, for existing plants). For new SWIPs, local authorities in England will therefore need to prepare permits solely on the basis of Schedule 13A.

• In Wales, however, in addition to the Schedule 13/13A requirements, SWIPs are subject to Schedule 8. Local authorities in Wales will need to prepare permits for new SWIPs accordingly. For charging purposes, SWIPs are regarded as A(2) installations. IMPLICATIONS!

Solvent emission (SE) activities

• SED is dead, long live SE (it’s the same!)

• SE activities are no longer Part B. – Schedule 14 covers them. Section 7 of Part 2 of Schedule 1 removed. SE

activities in themselves are subject only to the requirements of Chapter V and Annex VII of the Directive.

– In England, Part B requirements do not apply if only a SE activity is carried out at the installation.

– In Wales, paragraph 1(2) of the new Schedule 8 has the effect of applying Part B requirements to every SE activity. So Schedule 8 + 14

– Note also that, in both England and Wales, Part B activities in which solvents are used – notably Part B of Section 6.4 – remain as Part B and thus subject to Part B requirements.

• So if the installation falls into another part B section e.g. 2.1 then Part B applies!

Practical application of SE activities• There is no requirement to vary the permits of installations in England

carrying out only solvent activities in order to remove the Part B requirements: any conditions relating to it in permits will simply now be unenforceable by virtue of Regulation 55 of the Amendment Regulations 2013. [adds potential confusion given the possible influence of section 6.4]

• Registration for SE activities. The 40 consultation responses addressing this issue were generally against registration… as permit requirements are already kept to a minimum. However, the DEFRA Minister Lord de Mauley said the following in the Lords Grand Committee :

– “We continue to explore with the local authority regulators how further simplification can be made in the current permitting requirements and the associated compliance assessment procedures. That exploration will include further review of the case for a registration system. If a case is found, we will further amend the regulations at the first available opportunity.”

Theoretical…

Pre – IED Wood Coating

Assembly

Raw material

storage

Waste

Storage

Coating

activity+mix

Air Dry

Wood

treatment

Stoving/

curing

Wood

Preparation

Post – IED Wood CoatingRaw material

storage

Waste

Storage

Coating activity

(including paint

mixing)

Stoving/

curing

Air Dry

Wood

treatment

Legacy Activities• “Legacy” Activities

– Legacy Activities are those currently regulated as Part A but not covered by the IPPC Directive or Chapter II and Annex I of the IED. Some have been removed but others have been retained due to their potential environmental impact. The unofficial consolidation of the EPR as amended by the 2013 amendments shows those which have been removed. (Some waste activities, some incineration and some combustion).

– A few Part A activities transfer to Part B. In these cases, regulation 55(2) of the Amendment Regulations 2013 disapplies the multimediasuperfluous conditions. It is therefore envisaged that, in the short term, LAs take on the permits from the Agency and simply, in effect, cross out that which no longer applies.

– The Agency will assist in the transition including, where necessary, by participation in joint site visits. (not aware that we have any identified)

– Installation moving from Part A(1) to Part A(2), there is no urgent need to change unless some other permitting issue drives more rapid action.

Energy Efficiency Directive• Energy Efficiency Directive (EED)

– The EED has to be transposed by 5 June 2014.

– Article 14 EED, any new or modified combustion plant with a total rated thermal input of greater than 20 MW will have to have a cost benefit analysis on whether combined heat and power is feasible.

– Defra and Welsh Government are currently drawing up proposals for transposing the Article 14 requirements through (yet further!) amendment of the EPR.

– One issue to be considered is whether local authorities would wish to take on the Article 14 requirements for installations in the 20 to 50 MW range. Probably yes!

– The next step (Probably 2017) will see similar requirements for plant >1MW but there is still confusion as to whether this is to be aggregated.

Summary

• IED implemented into legislation is actually simpler for most industry sectors…

• Problem areas are those reliant on other (external) factors i.e.. End of Waste Protocol (more of that later!)

• Differences between devolved authorities is down to government policy, red tape challenge etc. Creates confusion, and is setting different standard across UK. (will we see firms moving to English authorities where BAT doesn’t apply?)

• No formal consolidation of regs does leave some doubts

Planning

• The National Planning Policy Framework NPPF removed over 2000 pages of specific planning guidance and replaced with 65.

• Changes to the permitted development regulations allow B2 general industrial to converted to Offices, and offices to be converted to Flats (residential) without planning consent*.

• Where planning permission is required the focus is on demonstrating sustainability.

National Planning Policy

Local Planning Policy**

General Guidance Manual Chapter 5

Policy Guidance PG09

Technical Guidance TG09

DEFRA Noise Policy Statement

for England

DEFRA Odour Guidance etc.

• Town & Country Planning Act 1990– Controls land use

– Controls new development

• Environmental Protection Act 1990– Nuisances

– Contaminated land

• Environment Act 1995– Air quality controls

• Pollution Prevention and Control Act 1999– Primary industrial pollution control legislation

The background

Incre

asin

g le

vel

of p

rote

ctio

n

Environmental Standards

Le

vel o

f Pro

of re

qu

iredLocal Planning Control

PPC / EPRStatutory Nuisance Criminal Sanction

‘Beyond all reasonable doubt’

Civil Sanction

‘Balance of Probabilities’

Regulatory Gap Public Expectation

Summary• The NPPF allows changes of use without planning consent as permitted.

This may impact on business.

• The planning process provides opportunities for planning to effect environmental improvement - sustainability

• NPPF specifically precludes LPA’s from placing environmental restrictions on activities that are proactively regulated by other agencies

• NPPF implicitly allows for LPA’s to consider Nature, Scale and Massing of development within the wider planning context irrespective of proactive regulation. This is a change to the former explicit guidance in PPS23

• The NPPF specifically mentions that unreasonable burdens should not be placed on existing industry from new development– Example. An application to place a new foundry adjacent to residential

premises could not be refused on environmental grounds if the foundry could demonstrate compliance with polluting emissions (for normal operations) to the satisfaction of the regulator and that it was sustainable development. The LPA could refuse consent if the residual pollution, scale of the operation, or number of foundries/industry in the area created conditions that cumulatively were unacceptable.