Transposition of the industrial emissions directive in Scotland: consultation

IED Chapter II - installations subject to IPPC

Preamble

20. Chapter II of the IED contains requirements which apply to the conduct of any of the industrial activities listed in the Directive’s Annex I. They are largely very similar to those in the current IPPC Directive, but some clarify or extend those existing requirements.

Emission limit values

21. Article 15(3) requires the competent authority to set emission limit values that ensure that, under normal operating conditions, emissions do not exceed the emission levels associated with the Best Available Techniques ( BAT) as laid down in the decisions on BAT conclusions. Article 15(4) enables the competent authority, in specific cases, to set less strict emission limit values, but only where an assessment shows that the achievement of emission levels associated with the best available techniques as described in BAT conclusions would lead to disproportionately higher costs compared to the environmental benefits due to (a) the geographical location or the local environmental conditions of the installation concerned; or (b) the technical characteristics of the installation concerned. Article 24(1)(c) applies public participation requirements to the exercise of the derogation provided by Article 15(4) and the reasons for the derogation have to be documented in an annex to the permit.

22. We propose to transpose the requirements of Article 15(3) and (4) through the proposed regulation 16.

23. Please note that Article 24(1)(c), requiring public participation in respect of the proposed application of Article 15(4), will be transposed through the requirements in Schedule 4.

General binding rules

24. Taken together, Articles 3(8), Article 6 and Article 17 allow Member States to set ‘general binding rules’ ( GBRs). The Scottish Government considers that regulations 10-10F of the existing PPC Regulations on ‘standard rules’ already provide a framework which is consistent with these GBR provisions, and these are carried over as regulations 29 to 36 of the draft Regulations. It should be noted that Article 17(1) maintains the requirement of Article 9(8) of the IPPC Directive by requiring Member States to ‘ensure [through the use of GBRs] an integrated approach and a high level of environmental protection equivalent to that achievable with individual permit conditions’. Q4: Do you consider that, in particular sectors, further use of this approach could be made?

Baseline reports and site closure

25. Article 3(1)(f) of the IPPC Directive requires that installations are operated in such a way that ‘the necessary measures are taken upon definitive cessation of activities to avoid any pollution risk and return the site of operation to a satisfactory state’. The existing PPC Regulations require a ‘site report’ to be submitted at application for, and surrender of, a permit in order to demonstrate this. Article 11(h) of the IED maintains that requirement and so in principle no change is brought about by the latter. However, that Article refers to ‘satisfactory state’ defined in accordance with Article 22.

26. Much of Article 22 reflects the already-established practice, as required by the existing PPC Regulations. Guidance already exists from SEPA ^[6] on site condition reports. Article 22(2) explicitly requires the preparation of a ‘baseline report’, as defined in Article 3(19), but only where ‘the activity at the installation involves the use, production or release of relevant hazardous substances and having regard to the possibility of soil and groundwater contamination at the site of the installation’. That means that a baseline report will not necessarily be required for every installation subject to the IPPC requirements in Chapter II: even if ‘relevant hazardous substances’ are involved, SEPA has to take a view on whether they could actually cause contamination.

27. The site condition report, dating from the time the IPPC permit was first applied for, should generally remain valid even when the permit is subsequently updated. There should therefore be no need for submission of a completely new baseline report when an existing permit is updated for the first time after 7 January 2013. But it must be noted that Article 22(2) requires the baseline report to contain the information necessary to enable a quantified comparison to be made between the state of the site at cessation of activity and the baseline state. SEPA will need to check this when permits receive their first review under the requirements of Article 21. Q5: Do you envisage it being necessary to strengthen existing site condition reports? If so, in what way or ways, and at what cost? Operators should in any case bear in mind that it is in their interests to have a report which contains detail sufficient to minimise the risk of their being held responsible for contamination which in fact predated their permitted activity.

Emerging techniques

28. Article 3(14) defines ‘emerging techniques’ as ‘a novel technique for an industrial activity that, if commercially developed, could provide either a higher general level of protection of the environment or at least the same level of protection of the environment and higher cost savings than existing best available techniques’. Article 27(1) requires Member States, where appropriate, to encourage the development and application of emerging techniques.

29. The proposed regulation 4 would require SEPA, where appropriate, to exercise its functions so as to encourage the application of emerging techniques, in particular for those identified in BAT reference documents. We consider that SEPA can do this primarily through its dealings with operators who seek either new or varied permits for an activity in which an emerging technique is to be employed: SEPA will note that Articles 14(5) and (6) provide the basis for their permitting decisions in such situations. Q6: Do you have views on how SEPA can encourage the development and application of emerging techniques?

Waste management activities

30. Point 5.3(b) of the IED’s Annex I extends the coverage of non-hazardous waste management activities by IPPC to include specified recovery activities. Point 5.1 of that Annex specifies hazardous waste management activities by direct description rather than by reference to Annex II of what is now Directive 2008/98/EC on waste. These descriptions are in the proposed new Section 5.4 in Schedule 1 to the draft Regulations.

31. The IED’s definition of ‘waste’ in Article 3(37) uses that in Article 3(1) of the Waste Framework Directive ^[7] : ‘waste’ means any substance or object which the holder discards or intends or is required to discard. Please note that there is no reference in IED to Article 2 of the Waste Framework Directive, which excludes certain specified wastes from the scope of that Directive. Therefore technical units treating any material which is waste according to Article 3(1) of the Waste Framework Directive are subject to IPPC if their capacity exceeds the relevant threshold, even if the material is covered by the Waste Framework Directive’s exclusions. The wastes concerned are listed in paragraph 3 of Appendix A to this consultation paper. Q7: Do you have any uncertainties about which waste management activities are now subject to IPPC requirements?

Activities newly subject to IPPC - the ‘2015 installations’

32. Article 82(2) lists, by reference to the IED’s Annex I, activities which need to be permitted only from 7 July 2015 if they are carried out at installations which were in operation before 7 January 2013. Such installations are referred to here as the ‘2015 installations’. The activity descriptions concerned would be, in Part 2 of Schedule 1 to the draft Regulations, as follows:

33. Note that, for several of the activities tabulated above, some installations may already have IPPC permits as a result of interpretations already in place within Scotland, or because the installations concerned are already carrying out other Part A activities.

34. As explained in paragraph 31 and paragraph 3 of Appendix A, the definition of ‘waste’ in the IED is wider than in its predecessor because the exclusion of certain wastes from the Waste Framework Directive has not been carried over. As a result some waste activities that were not covered by the PPC Regulations because of the types of waste involved will now be included. Existing installations carrying out these activities will also be dealt with as ‘2015 installations’.