Transposition of the industrial emissions directive in Scotland: consultation

IED Chapter I - 'Common Provisions'

9. Please note that Articles 1 to 9 of the IED apply to the Directive as a whole. This consultation paper highlight particular points amongst those Articles, but respondents - particularly those with installations not currently subject to the IPPC provisions ^[5] in the Directive’s Chapter II - should examine Chapter I as a whole in some detail.

Permits for operators of parts of an installation

10. Article 4(3) provides the option for a single permit to cover ‘several parts of an installation operated by different operators’, provided that the permit specifies the responsibilities of each operator.

11. Under the current PPC Regulations, a permit can be granted only to a person who will have control over the operation of the installation, or a part of the installation. So where there:

• is a sole operator of an entire installation, one permit is issued to that operator;
• are joint operators of an entire installation (i.e. more than one person operating in partnership), one permit for the entire installation is issued to the legal entity of the joint operators as defined in the partnership or joint enterprise agreement;
• are sole operators of different parts of an installation (for example, one person operates the main activity, another directly associated activity forming part of the installation), a permit is issued to each of the sole operators in respect of the activity or activities they operate.

12. However, the PPC Regulations do not provide for a single permit to be issued to operators who are not acting in partnership or other form of joint enterprise. A permit covering the activities of more than one distinct operator would still need to make the responsibilities of each operator within the installation completely clear, so that appropriate conditions could be included and, in the event of non-compliance, enforcement action could be taken in the same way as would be the case if the permit covered only a single operator. Only in that way could environmental protection be satisfactorily provided. A permit covering different operators would be highly complex in terms both of its content and the processes needed in making and determining the application.

13. The Scottish Government is therefore currently not minded to adjust the PPC Regulations so as to accommodate the option contained in Article 4(3) of the IED. Q1: Are you content with that? If not, can you demonstrate from a real example that allowing a permit to cover several parts of an installation operated by different operators will reduce overall regulatory burden whilst maintaining the environmental protection required by the IED?

Incidents and accidents

14. Article 7(c) requires the competent authority, in the event of any incident or accident significantly affecting the environment, to require ‘the operator to take any appropriate complementary measures that the competent authority considers necessary to limit the environmental consequences and to prevent further possible incidents or accidents’. This Article applies to all activities covered by the IED, not only those which are subject to IPPC.

15. Regulation 19 of the PPC Regulations already provides SEPA with the power to serve an enforcement notice which can specify steps to be taken if an operator ‘has contravened, is contravening, or is likely to contravene’ a permit condition. Those steps may be directed towards limiting environmental consequences and the prevention of further incidents or accidents.

16. However, it is conceivable that an incident or accident significantly affecting the environment may arise in circumstances where there is no breach or likely breach of a permit condition. Regulation 45 of the draft Regulations therefore empowers SEPA to issue enforcement notices in those circumstances. Q2: Do you agree with this approach. If not, why not?

Energy efficiency requirements upon installations in the EU-Emissions Trading Scheme

17. Article 9(2) continues the provision in the IPPC Directive that energy efficiency requirements need not be applied in the case of installations which are also subject to the EU emissions trading system (EU-ETS). The provision in the IPPC Directive is not currently transposed in the PPC Regulations, although regulation 9(9A) and (9B) implement the related requirement in Article 9(1) to not include emission limit values in respect of greenhouse gases emitted from installations subject to that system.

18. Regulation 9 of the draft Regulations therefore provides that SEPA will be able to exercise discretion on the application of energy efficiency requirements to EU-ETS installations. Q3:Are you content with the proposed way of transposing Article 9(2)? Note that Article 23(4) of the Waste Framework Directive requires the incineration or co-incineration of waste with energy recovery to take place with a high level of energy efficiency. This requirement, implemented through regulation 22, will still apply.

19. It should be noted that Article 9(2) applies not only to Chapter II ( IPPC) requirements but also to Chapters III (Combustion Plants), IV (Waste Incineration and Co-Incineration Plants), V (Solvents) and VI (Titanium Dioxide), although its relevance may be limited.