Scotland's variant of IPC differs from that in force in England and Wales not only in having been implemented 12 months later.
South of the border, HM Inspectorate of Pollution (HMIP) is clearly the lead authority in operating the IPC system. However, because of the overlap between its responsibilities and those of the National Rivers Authority (NRA) in protecting the water environment, provision was made under the Environmental Protection Act 1990 for the NRA both to be consulted on applications for IPC authorisations, and to be able to insist that authorisations should contain conditions dealing with liquid discharges which it considers necessary to safeguard water quality.
In Scotland, in contrast, no new regulatory body was created to apply IPC. Instead, the Government decided that arrangements should be made for the existing authorities - HM Industrial Pollution Inspectorate (HMIPI), which until now has been concerned primarily with air pollution control, and the seven river purification authorities (RPAs) - to decide on a case-by-case basis which of them should take the lead in applying and enforcing IPC. It is these arrangements which are fleshed out in the new regulations.
Under the rules, the lead or "enforcing" authority will be determined by reference to the prescribed substances released from a prescribed process and the environmental media into which those releases occur. The processes and substances prescribed for control under IPC throughout Britain were laid down in regulations issued 12 months ago (ENDS Report 194, pp 24-6).
The regulations go on to provide for consultation between the enforcing authority and the "consulted" authority. The latter will generally have two months to comment on applications for initial IPC authorisations and for any subsequent "variations" of these.
Consulted authorities will be able to propose conditions for inclusion in authorisations, and in specified circumstances may require the enforcing authority to include the conditions which they recommend.
Those circumstances are where a consulted authority "reasonably believes" that the conditions which it is proposing will achieve the basic statutory objectives of IPC. In such cases, HMIPI - where it is the authority consulted by an RPA - will be able to insist on conditions to control releases of prescribed substances to land, while an RPA will, conversely, be able to insist on conditions governing the release to water of a prescribed substance or any other substance which may cause harm where it is consulted by HMIPI.
However, the regulations also provide for the enforcing authority to reject conditions upon which a consulted authority is insisting where the former "reasonably believes" that they would be inconsistent with the 1990 Act's requirement that the "best practicable environmental option" (BPEO) must be selected in order to minimise the pollution which may be caused to the environment as a whole.
This scheme appears not to make explicit provision for the RPAs to insist on the inclusion of conditions in an authorisation which it believes are needed to ensure compliance with a statutory environmental quality objective. In England and Wales, the NRA has the power under section 28 of the 1990 Act to insist that any conditions it proposes for this purpose are included in authorisations, but it would appear that in Scotland HMIPI could in principle reject an RPA's representations if it considered that its duty to select the BPEO is overriding.
The consultation arrangements will also apply where an enforcing authority is minded to take enforcement action. In cases where it intends to vary or revoke an IPC authorisation or to serve an enforcement or prohibition notice, it will first have to notify the consulted authority of its intention to do so. The latter would then have one month in which to identify any additional grounds for taking such action.
This appears to be a recipe for delay, but the regulations go on to provide that an enforcing authority may take enforcement action either without consulting or before expiry of the one-month consultation period "if it considers it expedient to do so in order to prevent or minimise an imminent risk of serious pollution to the environment."