"It would be easy," according to Dr David Slater (Director, Environmental Protection, Environment Agency), "to adopt a parochial attitude towards [the IPPC Directive's] requirements for change - seeing them as burdensome yet inconsequential - which might justify a minimalist approach to implementation of IPPC.
"Such a stance, however, would be shortsighted and would overlook the many opportunities presented by the Directive," he told a joint CBI/National Society for Clean Air conference in London on 15 July. "In particular, the Directive can be used as a catalyst for more effective, efficient and holistic control [and] has the potential to become a central part of the suite of policy tools used to pursue sustainable development."
Which of these two approaches will prevail remains to be seen. The main consultation paper on IPPC, issued by the Department of the Environment, Transport and the Regions (DETR) on 15 July, deals with the main issues in a general way.1 More details of official thinking on the implications of IPPC for the intensive livestock sector were given in a paper from the Ministry of Agriculture, Fisheries and Food (MAFF) in which a minimalist approach is somewhat in evidence.2The main features of the Directive and its likely implications for UK practice were set out in ENDS Reports 245 (pp 38-39 ) and 248 (pp 35-37 ). Member States have until October 1999 to transpose its provisions into domestic law.
A key uncertainty is whether the Directive will be implemented by primary or secondary legislation. With the latter route, the Government would have difficulty in making changes to a central feature - sectoral affordability (see below) - of the UK's own IPC regime on which the DETR has canvassed views. It would also have to keep under IPC some 200 plants - mainly research and tar distillation processes - which are not covered by the IPPC Directive, making for a messy two-tier regime.
However, the prospect that the Directive will be implemented by primary legislation does not appear strong. In order to meet the October 1999 deadline, the DETR would have to get a slot for an environment Bill in the 1998/9 parliamentary session. Other Departments may argue that this would be premature, coming just three years after the Environment Act 1995.
A further uncertainty, on which the consultation paper sheds no light, is whether the Government will allow all existing processes not currently regulated under IPC but subject to the IPPC Directive to remain outside the new regime until 2007 - the EC deadline - or bring them under control in a phased programme after 1999. In negotiations on the Directive the UK voiced concern that other Member States might make full use of the long lead-in to 2007, disadvantaging UK companies subject to IPC - but the resource implications of a phased programme may lead it to forget that argument.
Widening the net
Some 2,000 processes are subject to IPC in England and Wales, along with a couple of hundred in Scotland. The IPPC Directive applies to "installations" and not processes, and these numbers will translate into around 1,000 installations. According to DETR estimates, about another 7,000 installations will come under IPPC in England and Wales. These are:
The resource implications of applying a complex new regulatory system to many installations are potentially considerable. Dr Slater suggested that the Agency will need to develop "a smarter way of working" and a more risk-based approach to regulation if it is to cope within any realistic increase in resources - though it is far from settled how many additional installations will come under its control.
Coordinated Pollution Control
A new form of regulation, Coordinated Pollution Control (CPC), is canvassed in the DETR paper as an alternative to passing responsibility for all the additional installations to the Agency - indeed, it suggests that some less complex processes currently regulated under IPC could move to CPC.
CPC would require the designation of one regulator as the "lead regulator" to achieve the integrated permitting procedures required by the Directive. This might be the Agency, a local authority or even a water company for processes discharging to sewer - though the paper adds that the Government "would need to be convinced" that they were well placed for this task.
Other essential features of CPC would be statutory requirements for mutual consultation between the regulators involved, and for each regulator to take into account the others' views. A formal mechanism for resolving disputes between them would also be necessary. And responsibilities for inspection arrangements would have to be clarified.
Reading between the lines, the DETR itself does not appear in favour of CPC. The paper points to a similar system operated in Scotland for four years until 1996 in which IPC permitting was carried out jointly by the river purification authorities and HM Industrial Pollution Inspectorate. The arrangements, the paper notes, proved "cumbersome", and similar mechanisms for implementing IPPC would entail even greater complexity.
However, an argument against giving the Agency responsibility for all IPPC processes was voiced at the CBI/NSCA conference - by, among others, Environment Minister Michael Meacher. This is the "democratic deficit", or alleged lack of local accountability of the Agency. However, Mr Meacher appeared to play down the possibility that the Government's plans for a new tier of regional authorities will be developed quickly enough to enable them to have a role in implementing IPPC.
The Agency itself has made it clear to the DETR that CPC would entail a fragmentation of control as well as a step away from "one stop shop" regulation. It is known to be backed by some sectors - including the livestock industry, which does not want to be regulated by local authorities.
The detailed issues raised by the consultation paper include:
According to the DETR, the requirement is likely to mean "at a minimum" that operators will have to "take up all energy efficiency measures which are cost effective on normal commercial criteria." The last three words are likely to provoke interesting arguments over what is an acceptable pay-back period. Moreover, the paper adds that "it could be argued that the balance of costs and benefits might suggest that operators should be required to go further than implementing cost effective measures."
Industrial operators may have been relieved to hear from Dr Slater that the Directive's provisions on energy efficiency "may also offer greater scope for regulators to weigh the environmental benefits of pollution abatement against the energy requirements and associated environmental impacts which that abatement entails" - a more holistic view pushed by some environmental groups concerned about quarrying of limestone to feed power station desulphurisation systems.
The DETR's paper also notes that the Government is exploring the concept of negotiated agreements as a means of improving industrial energy efficiency. A pilot agreement is currently under discussion with the chemical industry (ENDS Report 269, pp 4-6 ). However, the legality of using such agreements to implement a Directive is in some doubt.
The DETR has proposed that the requirement could be implemented by making it a permit condition that operators report to the regulators on the state of their sites before closing down an operation. Any clean-up measures could then be taken under the contaminated land provisions of the Environment Act 1995.
However, it is debatable whether the 1995 Act's "suitable for use" philosophy - in which land remediation measures are generally related to the next use to be made of a contaminated site - meet the Directive's requirements for avoidance of "any" pollution risk or its general emphasis on a "high level of environmental protection". The DETR's approach also suggests that restoration of sites could be postponed indefinitely, whereas the Directive implies that this should be done immediately on cessation of activities.
However, this interpretation is open to question because the Directive's requirements on prevention and minimisation of releases apply to a much wider range of pollutants than the UK's list of prescribed substances. Thus, say, a paper mill which escaped control under IPC because it discharges trivial quantities of a particular "red list" chemical may not only be subject to IPPC, but be required to use BAT to prevent and minimise discharges of a much wider range of pollutants.
Phil Roberts of ICI told the CBI/NSCA conference that the change provides an opportunity to amend the current practice of many separate authorisations for individual processes on complex sites. An alternative would be to have an overview document for an installation, with subsidiary documents for individual production units, as in the "major hazards" regime.
A shift of this kind would have implications for the present system in which IPC charges are based on the number of "components" of a process. Dr Slater told the conference that he would welcome a move from this system, which was thrust on the Agency's predecessor, to a "polluter pays-type regime".
Other changes which the Directive will force in IPC include a requirement on regulators to take noise, vibration, and consumption of raw materials into account when setting permit conditions. The DETR foresees no difficulty "in principle" in doing this, though it acknowledges that regulators may need additional expertise - while Mr Meacher warned about the permitting process "silting up with complexity".
Spacing out permit reviews
The DETR has also canvassed views on a possible extension of the current statutory requirement for IPC permits to be reviewed every four years. The Directive stipulates only a "periodic" review of permit conditions, but a change in UK practice would not be dictated by the Directive but be a home-grown deregulatory measure. It may, though, enable the Agency to make a better fist of its permit review programme.
The consultation paper also invites views on other changes to UK practice which are not dictated by the Directive:
The paper invites views on three options: retain sectoral affordability, abandon it immediately, or phase it out gradually. It provides its own answer: that because of uncertainty about what a shift to a cost/benefit approach would entail for particular sectors, and because valuation of costs and benefits is a "relatively inexact science", any such move should be approached "with considerable caution." However, the DETR has support from the Treasury for dropping affordability - though not from the Department of Trade and Industry.
The paper proposes that the Agency should be ordered to set clear "indicative" performance standards and upgrading deadlines for existing plant in future guidance. To back this up, inspectors might be required to justify publicly any departures from these standards and deadlines, after receiving "cogent" reasons from operators why this should be done.
MAFF's consultation paper raises interesting questions. It canvasses views on a range of technical requirements for pig and poultry units which will not be applied to existing plant for up to ten years. The consultation list is extremely narrow, being confined largely to farming and countryside groups. Manufacturing industries - especially those emitting ammonia or nitrous oxide - may wish to take an interest in the proposals because they would achieve only very small reductions in emissions of both gases, possibly shifting the burden of meeting future reduction targets to other sectors.
Abating livestock emissions
The technical proposals in the paper are based largely on an existing voluntary code of good agricultural practice on air pollution. It is not clear how MAFF applied the Directive's requirements on BAT in putting these forward, but the upshot is that estimated ammonia emissions from the pig and poultry sectors would be cut by around 12%. Other benefits - notably reductions in odour and nitrous oxide emissions and in nutrient leaching to water - will also occur, but are unquantified.
This would be achieved at an estimated annual cost to some 980 producers of £11.7 million. However, £5 million of this expenditure will only build up slowly because MAFF has assumed that upgrading of livestock buildings - a major emission source - will be done at the end of their normal lives.
MAFF's paper contains other controversial proposals. For example, its preference for disposal of livestock manure to land is to set a uniform limit of 250kg of total nitrogen per hectare per year averaged over the area of crops and grass on a farm.
MAFF has only proposed as an alternative an approach which would require farmers to match manure application rates to crop nitrogen requirements in order to reduce nitrate leaching and emissions of nitrous oxide, and to take account of the phosphorus content of both manures and soils in determining application rates in order to reduce risks of phosphate leaching into watercourses. This would be more costly to regulators and farmers - but no attempt to weigh costs against benefits is made in the paper. The argument over this issue is only one of many to come over the implications of IPPC.