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The Meaning of BATNEEC
6.1 The term BATNEEC (or formulations which are equivalent in meaning) is gaining increasing currency in international legislation and agreements relating to environmental protection. The most notable documents are the EC Air Framework Directive (841360) and the EC Dangerous Substances Directive (761360) and the "daughter Directives" which follow from them. The European Community Directives use the term "best available technology". The Environmental Protection Act uses the term "best available techniques". "Techniques" are intended to include technology, but in addition to hardware are intended to include operational factors.
6.2 All IPC processes under Part 1 of the Act are subject to the BATNEEC requirements. In general terms what is BATNEEC for one process is likely to be BATNEEC for a comparable process. But in each case it is in practice for the enforcing authority (subject to appeal to the Secretary of State) to decide what is BATNEEC for the individual process taking into account variable factors such as configuration, size and other individual characteristics of the process in doing so. Guidance on what constitutes BATNEEC may be provided to assist both inspectors in the field and operators as required. This may take the form either of advice on specific processes or, in more general text, discussion of ts of discharge, methods of emission abatement etc.
6.3 It should always be borne in mind that BATNEEC is one of a number of objectives set out in section 7 of the Act (see paragraphs 3.6 to 3.10 above) which must be achieved and in respect of which conditions will be included in an authorisation.
"BAT"
6. 4 It is helpful to consider the words "best available techniques" separately and together.
6.5 "Techniques'.' is defined in section 7(10) of the Act. The term embraces both the process and how the process is operated. It should be taken to mean the concept and design of the process, the components of which it is made up and the manner in which they are connected together to make the whole. It also includes matters such as numbers and qualifications of staff, working methods, training and supervision and also the design, construction, lay-out and maintenance of buildings.
6.6 "Available" should be taken to mean procurable by the operator of the process in question. It does not imply that the technique is in general use, but it does require general accessibility. It includes a technique which has been developed (or proven) at a scale which allows its implementation in the relevant industrial context with the necessary business confidence. It does not imply that sources outside the UK are "unavailable". Nor does it imply a competitive supply market. If there is a monopoly supplier the technique counts as being available provided that the operator c-an procure it.
6.7 "Best" must be taken to mean most effective in preventing, minimising or rendering harmless polluting emissions. There may be more than one set of techniques that achieves comparable effectiveness - that is, there may be more than one set of "best" techniques.
"NEEC"
6.8 "Not entailing excessive cost" (NEEC) needs to be taken in two contexts, depending on whether it is applied to new processes or existing processes.
New Processes
6.9 It is expected that, for new processes, best available techniques will be used modified only by economic considerations where the cost of applying them would be excessive in relation to the nature of the industry and the environmental protection to be achieved. The extent to which economic factors may be taken into account is in the end for the Secretary of State to decide on appeal.
Existing Processes
6.10 In relation to existing processes, the enforcing authority will be concerned with establishing timescales over which old processes will be upgraded to new standards (or decommissioned).
6.1.1 Even though it relates to a single medium, the approach adopted in the EC Air Framework Directive is considered helpful in relation to the operation of IPC across all three me
6.12 Article 12 of the Directive, for example, which applies to all plants requiring an authorisation in accordance with the Directive, requires, where necessary, the imposition of appropriate conditions in authorisations, taking account of developments not only in technology but also of any changes in the understanding of the environment. Such conditions must also take account of the economic circumstances of the industrial sector concerned and should not impose excessive cost on any single plant.
6.13 Article 13, which applies only to processes existing prior to July 1987, requires certain factors to be taken into account:
"In the light of an ex nation of developments as regards best available technology and the environmental situation, the Member States shall implement policies and strategies, including appropriate measures, for the gradual adaptation of [specified] existing plants to the best available technology, taking into account in particular:
Release Levels
6.14 Clearly BATNEEC may be expressed in technological terms - ie a requirement to employ specified hardware. It may also be described in terms of emission standards. Having identified the best techniques and the release levels they are capable of producing, it will be possible to describe BATNEEC by a performance standard: that is, a technique which produces release levels of X or better where X are the values yielded by the identified BATNEEC. The expression of BATNEEC in these terms has the benefit of not constraining the development of cleaner techniques or of restricting unduly operator's choice of means to achieve a given standard.
The Promulgation of BATNEEC
6.15 The enforcing authority determining the case must decide what is BATNEEC in relation to each application, and translate that decision into conditions to be included in the authorisation. There must, however, be broad consistency in these decisions, especially between processes of the same kind. It is important for process operators and the public that BATNEEC is determined and applied in a transparent, rational and consistent way. This will be achieved not only by promulgation of each authorisation on publicly available registers but also through the publications of the enforcing authorities.
Best Practicable Environmental Option (BPEO)
6.16 The Royal Commission on Environmental Pollution first outlined in concept of BPEO in its 5th Report. - A BPEO approach was described as meaning the reduction or modification of waste generation and the direction of what waste remained to the environmental medium in which the least overall damage would be done. In its 12th Report, the definition of BPEO was refined thus:
"A BPEO is the outcome of a systematic consultative and decision making procedure which emphasises the protection of the environment across land, air and water. The BPEO procedure establishes, for a give set of objectives, the option that provides the most benefit or least damage to the environment as a whole, at acceptable cost, in the long term as well as in the short term."
The Role of Guidance Notes published by the Chief Inspector, HMIP for application in England and Wales
6.17 Over two hundred such notes are to be published by HMIP who have undertaken to review and update them as necessary at regular intervals. All will have a s r structure thus:
Each will
a. set out the reasons for designating the process for IPC control;
b. record all the regulatory standards applicable to the process;
c. describe the standards that HMIP will expect;
d .describe how these standards may be achieved;
e. give guidance on what will constitute a substantial change.
6.18 These Notes represent an important source of information for the Scottish enforcing authorities and for applicants seeking authorisation under IPC in Scotland. They have however been prepared for application under the regulatory structure in England and Wales. In Scotland the enforcing authorities will take note of their contents but may also promulgate different or alternative guidance for application in Scotland.
6.19 The enforcing authority will always be ready to consider with potential applicants the standards that are likely to be imposed for any given process in order that they can frame applications accordingly. Pre nary discussion of such standards will be handled by the enforcing authority headquarters staff rather than the local inspector, and correspondence should in the first instance be so addressed. This will ensure consistency in areas where formal written guidance does not yet exist.
6.20 Whether published guidance is available, or guidance on standards is supplied for a particular case or purpose (as per the previous paragraph), that guidance will not prejudice the final decision on a particular application which will be taken following consideration of the applicant's case and any representations from the public and the statutory consultees.
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