LLM Environmental Governance and Regulation 2010/11 Integrated Pollution and Prevention Control

1. LLM Environmental Governance and Regulation 2010/11Integrated Pollution and Prevention Control Richard Macrory

2. Silos into Holism • Strategic Environmental Assessment (plans/programmes) • Environmental Impact Assessment (proposed projects) • Integrated Pollution Control (operations) • Life Cycle Assessment (products)

3. WHAT CAN INTEGRATION IMPLY? • Improved administrative co-ordination • Administrative restructuring (single agency) • Better linkages between different consent systems/One stop consent • Cross media pollution assessment • Wider integration of environmental concerns (cf OECD 1991 Life Cycle assessment) • Trans-sectoral integration of environmental concerns (Art 6 Treaty concepts)

4. OECD 1991 Monograph Integrated Pollution Control implies a shift in focus for decision making: Away From Towards Water Substance Air Source Land Region

5. POLICY DEVELOPMENT • Clean Air Legislation : previous analysis + ignition event (Great London Smog) = legislative change • Integrated Pollution Control : previous analysis (RCEP) + unexpected alignment (Cabinet Office Regulatory Reform) = legislative change)

6. UNITED KINGDOM APPROACHES • 1976 5th Report Royal Commission advocates cross media approach (BEST PRACTICABLE ENVIRONMENT OPTION) • 1982 Government rejects legal change • 1986 Cabinet office say integration good for efficiency and saves money • 1990 New legislation INTEGRATED POLLUTION CONTROL for certain industries Part I Environmental Protection Act 1990 • 1995 New integrated ENVIRONMENT AGENCY set up under Environment Act 1995 • 1999 New legislation implements IPPC Directive - Pollution Prevention Control (England and Wales) Regs 2000

7. PARRALLEL APPROACHES AT European Union Level • 1984 Air Framework Directive (BATNEEC technology) • 1988 Large Combustion Plant Directive • 1991 Commission consults on proposal for IPPC Directive • 1993 Draft Directive published • 1995 Council agrees Directive 1996/96/61 • 1999-2007 New plants enter regime • 2007 Deadline for existing plants

8. IPPC Directive 1996 96/61 • Applies to specified classes of industries • Avoid top-down approach, over-prescriptive • Operators work out best approaches within broad framework (reflexive law) • Best Available Technology still core but who determines? • Local discretion – how does one enforce?

9. Implementation of Directive in England and Wales • PPC Regulations 2000 gradually replace Part I EPA by 2008 • Part A(1) processes (multi-media) - Environment Agency • Part A(2) (multimedia) Part B processes (emissions into air) - local authority • Environmental Permitting Regs 2007 (2007/3538) replace from April 2008

10. Permit style regulation • Permit to operate installation (reg 12) • Authority takes in account general principles when setting conditions and must include conditions as specified in(Sched 7) • Periodic Review at any time and required in certain circumstances (reg 34) • Strict liability offence to operate without permit or in breach of conditions (reg 38) - either/or offence

11. Sched 7 General principles of PPC authorization which must be taken into account by regulator setting conditions of permit • All appropriate preventative measures taken against pollution* in particular through application of BAT • No significant pollution caused • Waste production avoided, recovered, but if not technically/economically possible, disposed on environmentally safely • Energy used efficiently • Measures taken to avoid accidents • On cessation measures taken to return site to satisfactory state • * pollution includes noise

12. BEST AVAILABLE TECHNIQUES - (Art 3 of Directive) Most effective and advanced state in development of activities and their operation which indicate practical suitability of particular techniques for providing in principle the basis for emission limits values designed to prevent or if that is not practicable, to reduce emissions and impact on environment as a whole Also special consideration must be given to criteria (low waste technology, technological advances, ect.)

13. BEST AVAILABLE TECHNIQUES • ‘best’ = most effective for a high general level of environmental protection (art 2) • ‘available’= techniques developed on a scale allowing implementation in relevant sector under economical and viable conditions, taking into account costs and advantages whether or not the techniques used or produced in the United Kingdom as long as reasonably available to operator • ‘techniques’ = technology and design and operation

14. BEST AVAILABLE TECHNIQUES • Art 11 Member States to ensure that authorities kept informed of developments in BAT • Art 13 Authorization to be updated where substantial change in BAT • Art 16 Commission shall organize exchange of information on BAT

15. BREF NOTES • Guide to what is ‘best available techniques’ for different sectors • Technical working groups with nominated experts from Member States, industry representatives and environmental NGOs • Final responsibility for BREFS rests with Commission • May contain dissenting views • Not legally binding

16. BAT Reference (BREF) NOTES • EUROPEAN INTEGRATED POLLUTION AND PREVENTION CONTROL BUREAU (Seville, Spain) • http://eippcb.jrc.es/ • Exchanges technical information • Establishes TECHNICAL WORKING GROUPS to produce BREFs

17. BREF NOTES • Note that Directive as such makes no mention of them • But sometimes treated as quasi-legally binding • Highly technical, unelected bodies determining these, without the political protection rules governing delegated committees within EU system • Do the public and NGOs really influence?

18. INTEGRATION in IPPC Directive/PPC Regs (1) • BPEO type of integrated pollution assessment (cross media transfer):- Art 2(11) definition of BAT – reduce impact on environment as a whole (reg 3(1)) Art 9 (permit conditions) permit goal a high level of environmental protection as a whole (reg 12(1)(b)(ii)) Art 9(3) emission limits – have regard to potential to transfer pollution (reg 12(2))

19. INTEGRATION IN IPPC (2) • Administrative Co-ordination:- Art 7 Member States to ensure that conditions and procedures are ‘fully co-ordinated’ where more than one competent authority involved

20. INTEGRATION IN IPPC (3) • Wider Integration of environmental concerns (OECD Life Cycle):- Inclusion of requirement to use energy efficiency Inclusion of requirement to avoid waste production or recovered where technically and economically possible

21. R on application of Rockware Glass v Chester City Council & Quinn Glass [2005] EWHC 2250 • Should regulator take the choice of process by applicant as a given? No, if another process BAT.

22. Learning Curves in UK on Integrated Pollution Control scheme introduced 1990 • Industries initially make many poor application • Environmental assessment studies produced for land use planning decisions ill suited in this context • Regulator in 1992-3 attempted ‘objective’ methodology to test least impact on environment overall, but now applies less mechanistic approach and more judgmental

23. EC INDUSTRIAL EMISSIONS DIRECTIVE • Proposed by Commission to consolidate and update a number of key industrial directives including IPPC • Raises status of BAT notes • 25 June 2009 Council agrees political agreement- reinserts flexibility in BAT (ENV 461 CODEC 898) • “BAT conclusions shall be reference was setting the permit conditions.” • Reference to derogations for local geographical circumstances delete.