New DoE guidelines on air pollution authorisations

Guidelines on the drafting of air pollution control authorisations have been issued to local authorities by the Department of the Environment (DoE). They break new ground in advising that operators' plans for upgrading existing processes to new plant standards may now be submitted in a phased programme. They also reinforce existing advice that authorisations will be unenforceable unless they are precise, and should not duplicate other statutory controls.

The guidelines were drawn up after the DoE had reviewed 57 of the early authorisations granted by local authorities under Part I of the Environmental Protection Act 1990. They have been sent to local authorities but are not available from the DoE. Copies may be available from the Institution of Environmental Health Officers in due course.

A guidance note on how authorisations should be drafted was issued by the DoE when the local authority air pollution control system came into force in April 1991 (ENDS Report 195, pp 28-29). Some features of this were amended by a guidance note in June (ENDS Report 209, pp 28-29 ).

Both these documents, as well as the 79 guidance notes which set down emission control rules for specific processes, were issued by the Secretary of State. The new guidelines circulated by the DoE to local authorities do not have the same formal status, although in some areas they amount to a significant alteration or amplification of the advice given by the Secretary of State.

According to the DoE, the standard of the 57 authorisations was generally good, even though they were mostly the first to be written by the 33 local authorities concerned. Nevertheless, the guidelines give numerous examples of defective authorisation conditions or approaches to drafting of authorisations.

Among the main issues dealt with in the guidelines are:

  • Upgrading programmes: For existing processes, the process guidance notes stipulate that operators should be obliged to submit, within 6-12 months of receiving their initial authorisations, programmes showing how they intend to upgrade their processes to new plant standards based on the "best available techniques not entailing excessive cost" (BATNEEC). The notes also contain upgrading deadlines which generally fall in the latter half of the 1990s.

    Some industries have objected to this requirement on the grounds that they cannot be expected to formulate upgrading strategies so many years ahead of the upgrading deadlines.

    For example, businesses using paints and other coatings based on organic solvents have the options of installing incinerators or other abatement techniques, or switching to lowor zero-solvent coatings. The latter is likely to be much the cheapest option, but such coatings have yet to be developed or proven commercially in many applications.

    The DoE has responded to these pressures in the new guidelines. It says that "the initial upgrading programme does not necessarily have to comprise a detailed statement of how the operator intends to meet the 'full' BATNEEC standards. It may be that the operator needs to undertake further investigation of alternative ways of meeting the standards. Authorities should be prepared to accept a submission which sets out a programme of further submissions, leading eventually to a detailed upgrading programme."

    The guidance adds that where this is done, authorities should issue a variation notice to insert deadlines for submission of the various elements of the upgrading plan into the authorisation. They have also been warned to bear in mind whether the timetable proposed by an operator will leave him sufficient time to complete the upgrading work.

    Another general point on which authorities are cautioned is that conditions specifying what standards an operator will have to meet after the upgrading deadline has passed should not be included in the initial authorisation. Instead, they should consider the upgrading programme submitted by the operator before varying the authorisation at a later stage.

  • Precision and enforceability: According to the DoE, "many" conditions in the 57 authorisations "tended not to contain sufficient detail or precision." This leaves both the operator and the public uncertain where they stand, and makes it more difficult to enforce compliance with authorisations.

    Examples of imprecise conditions included requirements for "regular" visual checks of emissions and the use of "suitable" arrestment plant. Another provided that the "aim" should be that emissions were free from offensive odours.

    As the DoE points out, an "aim" is not enforceable, while an operator's or a court's interpretation of what is "regular" or "suitable" may not be the same as a local authority's.

  • Residual duty: The 1990 Act includes a "residual duty" which is additional to specific conditions included in authorisations. This duty places the onus on the operator to ensure that BATNEEC is used to meet the objectives of the Act, and was drafted to cover issues such as training and maintenance which might be difficult to write into authorisations.

    However, the DoE's review of the 57 authorisations revealed that local authorities have made it a "common practice" to write specific conditions on matters which are best left to the residual duty. One such condition, for example, required arrestment plant to be "adequately maintained", while another provided that staff must receive the "necessary formal training and instruction".

    Not only would these conditions be difficult to enforce because of their vagueness, the DoE points out, but they also transfer the onus of proof from the operator to the local authority.

    The DoE's advice is that, where conditions are difficult to write with precision or could only be written if authorities had a good deal more information, the matter should be left to the residual duty. The operator's attention may be drawn to this by an explanatory note appended to the authorisation.

  • Overlap with other controls: Some authorisations included conditions which were not relevant to air pollution control. The most common of these dealt with the handling and storage of waste and the disposal of ash from clinical waste incinerators. These are matters for waste disposal licences.

  • Monitoring: Some authorisations contained excessive monitoring conditions. The DoE notes that the full monitoring requirements set out in the process guidance notes should be imposed on existing plants only as these are upgraded to new plant standards. In most cases, the only monitoring which an operator might be expected to undertake before upgrading should be "limited monitoring in order to have a better understanding of the existing emissions prior to considering the operator's upgrading programme."

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