Transposition of the industrial emissions directive in Scotland: consultation

APPENDIX A - Other points to note about the IED

IPPC ‘general principle’ on waste prevention

1. Article 11(e) modifies the IPPC Directive’s general principle concerning waste from IPPC installations so as to align with Directive 2008/98/EC. Whereas they previously had to be operated such that-

‘where waste is produced, it is recovered or, where that is technically and economically impossible, it is disposed of while avoiding or reducing any impact on the environment’,

under the IED, installations must be operated such that-

‘where waste is generated, it is, in order of priority and in accordance with Directive 2008/98/EC, prepared for re use, recycled, recovered or, where that is technically and economically impossible, it is disposed of while avoiding or reducing any impact on the environment’.

2. This is implemented through regulation 14 of the draft Regulations.

Wastes not excluded from subjection to the IED

3. As described in paragraph 31 of this document, wastes excluded from the scope of the Waste Framework Directive (2008/98/EC) by its Article 2 are not excluded from the relevant requirements of the IED. Those requirements are in Chapter II - through the inclusion of waste management activities in Annex I - and in Chapter IV on waste incineration and co-incineration. The wastes concerned are:

In all cases:
(a) gaseous effluents emitted into the atmosphere;
(b) land (in situ) including unexcavated contaminated soil and buildings permanently connected with land;
(c) uncontaminated soil and other naturally occurring material excavated in the course of construction activities where it is certain that the material will be used for the purposes of construction in its natural state on the site from which it was excavated;
(d) radioactive waste;
(e) decommissioned explosives; and
(f) faecal matter, if not covered by paragraph (b), straw and other natural non-hazardous agricultural or forestry material used in farming, forestry or for the production of energy from such biomass through processes or methods which do not harm the environment or endanger human health.

To the extent that they are covered by other EU legislation:
(a) waste waters;
(b) animal by-products including processed products covered by Regulation (EC) No 1069/2009, except those which are destined for incineration, landfilling or use in a biogas or composting plant;
(c) carcasses of animals that have died other than by being slaughtered, including animals killed to eradicate epizootic diseases, and that are disposed of in accordance with Regulation (EC) No 1069/2009; and
(d) waste resulting from prospecting, extraction, treatment and storage of mineral resources and the working of quarries covered by Directive 2006/21/EC on the management of waste from extractive industries.

Without prejudice to obligations under other relevant Community legislation, sediments relocated inside surface waters for the purpose of managing waters and waterways or of preventing floods or mitigating the effects of floods and droughts or land reclamation if it is proved that the sediments are non-hazardous.

Site closure

4. Article 22(3) requires the operator to remediate contamination identified as such by reference to the baseline report, although no deadline for remediation is given. Article 22(4) applies where the operator has not been required to produce a baseline report (for example, because the activity was deemed not to involve relevant hazardous substances) and similarly requires remediation to deal with contamination resulting from the permitted activities.

5. These Article 22(3) and (4) requirements are already embodied in current regulatory practice in Scotland. Regulation 41(1) of the draft Regulations provides that an operator may apply to SEPA to surrender a permit, in whole or in part. Regulation 41(5) provides that SEPA must accept the surrender if it is satisfied that such steps (if any) as are appropriate have been taken (a) to avoid a pollution risk resulting from the operation of the installation or mobile plant; and (b) to return the site to a satisfactory state, having regard to the state of the site before the facility was put into operation. So the permit remains in force - and with it the enforceable obligation to comply with all its conditions and to pay annual subsistence charges - until the regulator is satisfied that any necessary remediation is complete.

Disposal or recovery of non-hazardous waste - exclusion of activities covered by the Urban Waste Water Treatment Directive

6. Point 5.3(a) and (b) of Annex I of the IED each exclude activities covered by the Urban Waste Water Treatment Directive ^[12] . Our view is that this excludes all activities conducted at sewage works for the treatment of ‘domestic waste water or the mixture of domestic waste water with industrial waste water and/or run-off rain water’ ^[13] and ‘residual sludge, whether treated or untreated, from urban waste water treatment plants’ ^[14] so long as they are dedicated to that treatment. Anaerobic digestion plants used for sludge treatment will therefore be covered by the exclusion, unless those plants also treat other waste material not derived from the sewage treatment process. However, the European Commission may express a view on this issue.

Installations producing foodstuffs

7. Point 6.4(b) of Annex I clarifies how the threshold for such installations must be determined. There are changes to how the ‘product production capacity’ is calculated for vegetable processing. What is prescribed is very similar to the approach SEPA already takes for other industries such as the meat sector, i.e. the theoretical maximum design capacity of the installation ^[15] . There is also a threshold for seasonal vegetable processing and for combined animal/vegetable processing.

Definition of poultry

8. Under Article 3(23) of the IED, ‘poultry’ is defined, by reference to other EU legislation ^[16] , as ‘fowl, turkeys, guinea fowl, ducks, geese, quails, pigeons, pheasants, partridges and ratites reared or kept in captivity for breeding, the production of meat or eggs for consumption, or re-stocking supplies of game’. The inclusion of that definition plainly has no consequences for the current application of IPPC to the rearing of chickens, laying hens and broilers, turkeys, ducks or guinea fowl, where there are more than 40,000 places in a technical unit. But it is necessary to consider whether the game birds mentioned in this definition are subject to IPPC through point 6.6(a) of Annex I of the IED.

9. Initial investigations indicate that in most instances of the rearing of game, a combination of an exceptionally short season (typically some seven weeks in late spring/early summer), stocking densities that are significantly lower than any covered by animal welfare recommendations, and limited access to housing which is in nearly all cases only temporary in nature, make it unlikely that any significant environmental pollution would result. We therefore take the view that only those game bird farms which are similar in nature (in terms of length of rearing season, stocking density, and nature of housing) to poultry farms already regulated by SEPA as Part A installations, may become subject to the IED. We understand that very few (if any) game bird farms are of such similar nature.

Waste incineration

10. Article 42(1) removes the waste incineration provisions from gasification and pyrolysis plants ‘if the gases resulting from this thermal treatment of waste are purified to such an extent that they are no longer a waste prior to their incineration and they can cause emissions no higher than those resulting from the burning of natural gas’. It should be noted that such plants may still be subject to the IPPC requirements in Chapter II of the IED if the activity they carry out falls within Annex I - for example, point 1.1 (combustion with a rated thermal input of 50 MW or more), 1.4(b) (gasification in an installation with a rated thermal input of 20 MW or more) or points 5.1(a) or 5.3(a)(ii) (physico-chemical treatment of waste).

Large combustion plants - transitional national plan

11. The establishment of a transitional national plan for the United Kingdom is being taken forward separately by Defra ^[17] , in consultation with the Scottish Government and the devolved administrations in Wales and Northern Ireland.

Large combustion plants - limited life time derogation

12. Operators of existing large combustion plants which qualify for the derogation provided by Article 33 are reminded that they have until January 2014 to provide a written declaration to the Scottish Environment Protection Agency of their intention to take it.

Large combustion plants - aggregation rules

13. Article 29(3) changes the aggregation rules so that plants with a rated thermal input below 15 MW shall not be considered when calculating the total rated thermal input of a candidate large combustion plant. However, it should be noted that such plants will still need to be taken into account by the regulator when determining the aggregate rated thermal input to establish whether a combustion plant has a rated thermal input of 50 MW or more and so subject to the IPPC requirements of Chapter II of the IED, in accordance with the first introductory sentence to Annex I.

Titanium Dioxide

14. Chapter VI and Annex VIII of the IED contains special provisions for installations producing titanium dioxide. These replace the requirements of Directives 78/176/EEC, 82/883/EEC and 92/112/EEC which all relate to the titanium dioxide industry.

15. While titanium dioxide installations would be covered by the PPC Regulations, the specific requirements of these existing Directives are not currently expressly transposed in Scots law, there being no titanium dioxide industry nor any realistic likelihood of one being established. Nevertheless, this represents a technical non-compliance with the requirement to transpose these Directives. Regulation 19 of the draft Regulations therefore contains requirements which give effect to the special provisions of articles 66 to 70 of the IED dealing with installations producing titanium dioxide. It is not expected that these will have any practical impact in Scotland.

Use of Directions

16. A number of aspects of the existing Directives have been implemented not through the PPC Regulations but by means of Directions issued by the Scottish Ministers to SEPA, for example requiring SEPA to include certain conditions in permits for particular types of installation. While these are available on the Scottish Government website, they are not particularly accessible, and add to the number of pieces of legislation that need to be consulted. We have therefore taken the opportunity to incorporate the material from these Directions into the draft Regulations - in particular see regulations 18 and 26.