Environmental Authorisations (Scotland) Regulations 2018 - proposed amendments: consultation analysis

6. Industrial Activities – Technical Provisions

We proposed that all existing Pollution Prevention and Control (Scotland) Regulations 2012 (PPC) activities will require an authorisation under the 2018 Regulations, though there were minor changes to the description of certain activities. We sought comments on the technical requirements of the industrial emissions activities set out in in Schedule 19-24, (question 18), and petrol vapour recovery activities (Schedule 28, question 22).

We sought comments on the proposed requirements in Schedules 25 and 27 (questions 19 and 21) which align with the requirements of the Energy Efficiency Directive and the Medium Combustion Plant Directive, respectively.

We requested comments on the industrial activity carrying out ‘other emissions activities,’ with technical requirements set out in Schedule 26, which include the current PPC Part B activities as well as some existing non- Industrial Emissions Directive (IED) PPC Part A activities (question 20).

We proposed one new GBR for crushing and screening activities (question 23) and, finally, asked for comments on the minor amendments relating to the PPC activities set out in Annex D (question 24).

6.1.1 Summary of responses

16 respondents provided a total of 46 responses to questions 18-24 relating to industrial emissions activities, with a total of 70 specific comments made.

General benefits of the proposals were noted by multiple respondees, for example mentioning the streamlined framework and integrated approach, automatic transfer for PPC permit holders, clearer alignment with EU activities and regulation being appropriate to level of risk for specified activities. General concerns raised by several respondees included the complexity of schedules potentially leading to confusion, and concerns around divergence across the UK between nations that could lead to different permit requirements for businesses across the border. One respondent was not supportive of any industrial activity producing emissions.

The majority of responses made specific comments seeking points of clarification on certain aspects of the proposed draft. For example, a number of respondents requested clarification around definitions of activities and key terms, clarification whether certain activities would be in scope of technical requirements and potential overlaps of regulation across different schedules for certain activities. Some respondees did not support the regulatory approach for certain applications (for example, in a social housing context).

Six comments were received regarding the proposed minor amendment in Schedule 19, paragraph 11(2), regarding the addition of wording to clarify that “SEPA may impose authorisation conditions requiring that decarbonisation measures are implemented”. Two respondees strongly objected to these changes, while others suggested changes to ensure that measures are appropriate, or requested further clarification.

Several respondees made comments and suggestions focused on processes, costs, and level of authorisation for certain activities.

Finally, there were several comments relating to the implementation, scope, and criteria to set Best Available Techniques. Not all of these referred to specific changes set out within this consultation.

6.1.2 Scottish Government response on the industrial activities technical provisions.

Following a detailed analysis of the consultation responses, Scottish Government does not plan to make changes to the proposed Regulations in response to the consultation responses received, except for the following minor amendment:

• The activity described in paragraph 69 of Schedule 26 (relating to fish ensiling activities) will be simplified.

The following points of clarification are provided in response to comments received.

Definitions and clarifications of scope: Definitions in the majority of schedules are taken directly from relevant EU directives and are equivalent to those in the PPC Regulations. The following additional points are offered as clarification. The 2018 Regulations rely on the comprehensive definition of “environmental harm” in the Regulatory Reform (Scotland) Act 2014 which we view as appropriate for an integrated regime. We can confirm that the GBR for crushing and screening will apply to brick, tile and concrete that meets the definition of waste, and allows storage, crushing and screening of those materials only at the place of production or use. Where material is moved off site to be recovered elsewhere or is imported to the site, this would be subject to waste controls. Where material is moved off site to be recovered elsewhere, this would be subject to waste controls. Schedules 25 and 27 implement relevant EU directives and do not represent a change in scope from the equivalent requirements under PPC Regulations, therefore there should not be any change in application of requirements to heating networks in a social housing context.

Clarity on EU alignment and potential Divergence from the UK: Environmental legislation is a devolved policy area and the 2018 Regulations seek to ensure the environment in Scotland is appropriately protected. The Scottish Government has committed to continuing to maintain alignment with the EU where appropriate and in a manner that contributes toward maintaining and advancing standards across a range of policy areas. Schedules 19 to 24 apply to activities within scope of the Industrial Emissions Directive. For Annex I to the IED activities, set out in schedule 20, Best Available Techniques conclusions (BATc) apply. Existing EU BATC continue to have effect in the UK through the EU Withdrawal Act 2018 until such time as they are reviewed. The BAT Common Framework agreement^[1] was developed following the UK's exit from the European Union. This agreement is a collaborative effort between the UK government and devolved governments to regulate pollution and establish a shared approach to using BAT across the UK. This framework, outlined in a Concordat, sets out how they will work together to decide on BAT. It covers international obligations, resolving disputes, decision-making processes, and focuses on setting BAT for the UK. The framework seeks to ensure consistency for UK industry while also acknowledging that different parts of the UK may need to establish their own rules regarding BAT.

Process and Cost of Authorisation: Charging schemes, and levels of authorisations for Schedule 26 activities are not set out within the regulations and will be determined by SEPA. SEPA has recently consulted on its proposed types of authorisation for waste management, water and industrial activities, and will be consulting separately regarding changes to its charging scheme. SEPA’s charging schemes are subject to the approval of the Scottish Ministers.

Overlap across schedules: An activity, such as an incinerator, can fall under different technical schedules because it is both a waste activity and an industrial emissions activity. We have set out the PPC schedules so that schedule 20 identifies the emissions activities to which Schedules 20-25 apply, and Schedule 26 relates to other emission activities, with Schedules 27 and 28 containing the specific requirements.

SEPA’s powers to impose decarbonisation measures. We acknowledge the concerns of several respondees relating to the addition of wording relating to SEPA’s powers to impose conditions relating to decarbonisation measures. SEPA already has powers relating to decarbonisation, and the amendment set out under Schedule 19, paragraph 11(2) is a clarification, and not an addition to the scope of SEPA’s existing powers. SEPA has various duties and functions relating to decarbonisation, for example under the UK Emissions Trading Scheme, the Public Bodies duties set out under the Climate Change (Scotland) Act 2009, and under existing PPC (Scotland) Regulations 2012. Scottish Government and SEPA recognise the benefits of an integrated approach to decarbonisation regulation in order to avoid unnecessary duplication and to maximise the effectiveness of any interventions.

Other miscellaneous. Specific comments were received on generators and other ‘new activities,’ responses to these are covered under the relevant sections above.