The Industrial Emissions Directive (IED), which was required to be implemented in all member states by 7 January, will shortly be transposed in England and Wales through the Environmental Permitting (England and Wales) (Amendment) Regulations 2013 (EP Amendment Regulations 2013). A consultation was held last year with the government’s response being published in December 2012. Following the consultation, a finalised draft of the EP Amendment Regulations 2013 has been laid before Parliament and is currently awaiting approval.
A Commission review of the European legislation on industrial emissions led to it proposing a consolidation and recasting of various directives, in order to streamline permitting, reporting and monitoring requirements and reduce unnecessary administrative burden. The directives recast in the IED are those on large combustion plants (2001/80/EC); integrated pollution prevention and control (2008/1/EC); waste incineration (2000/76/EC); solvent emissions (1999/13/EC); and three directives concerning waste from the titanium dioxide industry (78/176/EEC, 82/883/EEC and 92/112/EEC). In most cases, the recast IED adopts the content of the component directives without substantive changes, but some requirements have been tightened or clarified.
Last year’s consultation on the transposition of the IED in England and Wales sought the public’s views on several specific points which were encountered when drafting the transposing regulations. Key points from the government’s response to the consultation, published in December 2012 and available on Defra’s website, include the following:
- Energy efficiency requirements – Defra and the Welsh Government decided that regulators should be given some discretion regarding the application of energy efficiency requirements to EU ETS installations. Guidance for regulators will be developed on how this discretion should be exercised.
- No option for a single permit to cover several activities at one installation. It was decided that the option offered in the IED, to allow a single permit to cover several parts of an installation operated by different operators, will not be adopted in England and Wales.
- Standard rules. Defra and the Welsh Government are to encourage regulators to develop more sets of standard rules, in consultation with the industry sectors concerned.
- BAT requirements - incineration and co-incineration installations not subject to IPPC. BAT requirements will be removed from incineration and co-incineration installations that are not subject to IPPC in England. In Wales, the BAT requirements for those installations will remain.
- Mobile plants. IPPC requirements will no longer apply to mobile plants.
- Wider enforcement powers in the event of incidents/accidents. The enforcement powers of regulators will be extended beyond permit breaches. Previously, regulators were empowered to serve enforcement notices which could specify certain steps that must be taken, if a regulator considered that an operator ‘has contravened, is contravening, or is likely to contravene’ an environmental permit condition. This power will be extended to cover circumstances where the regulator considers that an incident or accident significantly affecting the environment has occurred as a result of the operation of certain regulated facilities, namely Part A installations, waste incineration plants and solvent emission activities (i.e. it is no longer necessary for there to have been a breach or likely breach of a permit condition).
- Regulators for waste incineration and co-incineration. Local authorities will be given jurisdiction to regulate all waste incineration and co-incineration activities which are below the capacity thresholds contained in Annex 1 of the IED.
- Incentivising early permit applications - operators of installations carrying out activities newly subject to IPPC (“2015 installations”). The device for incentivising early applications proposed in the consultation will be implemented. The government will also encourage the Environment Agency to produce guidance and to participate in awareness-raising activities amongst operators. The Welsh Government will consider further the possibility of introducing an enforceable statutory deadline for permit applications – a further amendment in respect of Wales may be proposed to implement this.
- Unofficial consolidated regulations. Defra and the Welsh Government are to produce an unofficial consolidated version of the Environmental Permitting (England and Wales) Regulations 2010, which the EP Amendment Regulations 2013 will substantially amend, early this year. Defra is also said to be conscious of the need to keep the possibility of consolidating the Regulations under review.
- Guidance. In light of the uncertainties highlighted during the consultation, Defra and the Welsh government will consider strengthening formal guidance and other means of communication. Defra and the Welsh Government are also to discuss with the Environment Agency the provision of further guidance regarding which waste management activities are now subject to IPPC requirements given the uncertainties/misunderstandings raised in the consultation.
The draft EP Amendment Regulations 2013 have now been laid before Parliament for approval. In addition to their primary purpose of amending the Environmental Permitting (England and Wales) Regulations 2010 so as to transpose the IED, they also remove some unnecessary/defunct descriptions of industrial activities from Schedule 1 of the Environmental Permitting (England and Wales) Regulations 2010 and repeal three other statutory instruments which are said to have no current purpose.