|
|
|
|
ROLE OF GUIDANCE NOTES
5. A number of consultees seemed to fear that the Government’s proposals for statutory guidance notes would result in a prescriptive form of control, with the consequent loss of the site specific flexibility of IPC and LAPC. This is not the intention. The guidance notes will be non-prescriptive, providing indicative standards for both new and existing plant with upgrading timetables for the latter. The guidance is for the regulators to have regard to in making a site-specific assessment. The more complex or novel the installation is, the more likely it is to depart from the indicative standard in the guidance note and have a unique site-specific determination. The accompanying requirement for any departure from the guidance note to be explained is to make sure that this site specific permitting process operates in a transparent way. Statutory guidance has been successfully used for LAPC processes since 1991, without significantly impeding the site-specific nature of that regime. The guidance will be amended and updated as appropriate to reflect new developments in technology.
6. A number of consultees observed that new and substantially changed installations might need an IPPC permit before the relevant sectoral guidance was available. It is an inevitable result of the way the Directive applies to new and substantially changed installations and the Government’s decision that national sector guidance should be based on the BAT Reference document (BREF), that complete guidance notes cannot be available from the outset. However, a good deal of guidance already exists because of the coverage of IPC. To build upon this, generic guidance is being prepared by SEPA to cover the new issues such as energy efficiency and noise. Interim guidance is also being prepared for the intensive farming and food and drink installations which are new to the regime.
REGULATING PROCESSES WITH MINIMAL CAPACITY TO DAMAGE THE ENVIRONMENT
7. The majority of consultees supported the Government’s proposal that installations deemed to have a trivial environmental impact should be subject to a streamlined permitting procedure using standard permit conditions. Those who did not, generally thought that the proportionality principle applying to European legislation could be used to support an interpretation that processes with "trivial" emissions did not need a permit at all. The Directive, however, makes it quite clear that all installations caught by Annex I to the Directive must have an IPPC permit. The proportionality principle can be used to challenge Community action, including legislative action, and those responsible for drawing up the list of activities in Annex I will have borne this principle in mind when deciding on which activities to include in the list and the need for any thresholds. The proportionality principle cannot now, however, be used to justify an implied triviality threshold in Annex 1 in the absence of any textual support for such an interpretation.
8. A large number of respondents felt, as anticipated, that very few installations were likely to have a trivial environmental impact given the wide range of impacts covered by IPPC. In the light of responses received, the Scottish Executive has asked SEPA to draw up proposals for determining when an installation is to be regarded as trivial.
REVIEW PERIODS
9. The Government’s proposal that review periods should vary for different sectors received overwhelming support, as did the majority of the criteria the Government put forward. The exception was possession of an EMS or ISO14001-type accreditation which, as a number of consultees pointed out, is an installation-specific rather than sectoral consideration. The Scottish Executive proposes that sectoral guidance notes should indicate a suitable review period or periods for the types of installation covered by each note. Factors specific to an installation, such as ISO14001 accreditation, will not affect the frequency with which the permit is reviewed but may be relevant to other aspects of regulation such as inspection frequency.
SUBSTANTIAL CHANGE
10. Consultees generally agreed with the proposals for handling substantial changes. Public consultation will only be required if the change has a significant negative effect on the environment unless SEPA considers it to be a contentious case.
STANDARD PERMIT CONDITIONS
11. A number of sectors put themselves forward as potential candidates for standard permit conditions. SEPA will be taking this matter forward as it develops proposals for sector specific guidance. The Scottish Executive will also encourage SEPA to develop proposals for General Binding Rules in close consultation with stakeholders. It is expected that these will be more applicable to Part B Installations, and in particular to those categories which cover generally similar activities. This could also mean that operators of certain categories of installations could apply to be registered under General Binding Rules rather than making a specific application for authorisation.
APPEALS
12. Consultees generally supported the proposal that a hearing in the case where a decision of Scottish Ministers is quashed on judicial review should be at Scottish Ministers’ discretion. Those who did not seemed not to realise that Scottish Ministers would still have discretion to order a fresh hearing, for instance where the interests of natural justice suggested such a course of action.
DEFINITION OF AN "INSTALLATION"
13. Consultees accepted the Government’s proposed definition of an "installation", which is defined in the Directive and will be defined in the PPC regulations. Many consultees said they would welcome further clarification as to how the definition would work, including some examples. Part 5 of this consultation paper, which contains a draft list of activities to be regulated, accordingly begins with an extended discussion of this topic including some worked examples.
NOISE
14. The Government’s proposals for the control of noise drew some criticism from local authorities who feared that they would lose the ability to take enforcement action upon receipt of a complaint about noise from an IPPC installation. The removal of statutory nuisance to IPPC installations is to avoid "double jeopardy". The way it does this is consistent with the existing IPC regime whereby, under section 79(10) Environmental Protection Act 1990, a local authority is prevented from bringing proceedings under Pt III of the Act if they can be brought under Part I. The proposals will not, however, restrict the scope of an aggrieved person to take action under section 82 of the 1990 Act.
15. A number of local authorities suggested that they should be able to insist on minimum conditions relating to noise in permits for installations to be regulated by SEPA. Local authorities are recognised as having expertise in noise control. This is particularly true in terms of investigating noise complaints and taking enforcement action under the statutory nuisance provisions. However, local authorities do not generally have experience of setting noise conditions as part of an integrated permitting system and their experience in designing noise out of such installations before they are permitted is at least matched within SEPA. To reflect this, the Scottish Executive’s approach will be for SEPA to take on board any recommendations made by the local authority unless they have good reason not to. Any departure from their recommendations will need to be clearly explained. The Executive’s wishes will be made clear to SEPA in guidance.
16. Consultees also raised concerns about the proposal to disapply the statutory nuisance provisions and feared that there would be an enforcement gap for dealing with "non process" noise. The way the provision is disapplied will still allow activities on sites which are not covered by IPPC to be regulated under the statutory nuisance provisions. For instance, a barking dog or burglar alarm would not be covered by the regulations, as they do not form part of the installation. In such cases the noise would continue to be regulated as a statutory nuisance by the local authority. As discussed above, proceedings for statutory nuisance are only barred where proceedings might be taken under pollution control powers, so there is no "enforcement gap".
SITE RESTORATION
17. Comments on site restoration fell into two main groups. Many consultees queried the required standard of remediation, suggesting that IPPC sites should remediate any contamination to the same standard of "suitable for use" as is to be introduced with the contaminated land regime itself. The Scottish Executive does not agree. There is a significant difference between historic contamination, the origins of which may be unknown, and whose scale may in some cases be so great that prioritisation is needed according to the intended use of the site concerned, and contamination arising in the future from installations which are subject to environmental regulation. Site contamination at IPPC installations should not arise in the first place, but if it does, the reference point for remediation should be the condition of the site before the pollution incident happened, not a potential future use. To employ the "suitable for use" standard in these circumstances would be to accept the further significant degradation of the soil and land.
18. The second group of comments concerned the site condition reports. SEPA propose to take this matter forward with the production in the autumn of guidance on the characterisation and assessment of sites. The guidance will be aimed at promoting a consistent approach to site characterisation under the regime. However as it will be presumed that any contamination identified at site closure which is not recorded in the original site condition report has been caused during the operation of the permitted activity, it is in the operator’s interest to ensure that the initial site survey is comprehensive in nature.
ENERGY EFFICIENCY
19. The Government indicated in the third Consultation Paper that the integration of the Directive’s requirements for energy efficiency is to be met mainly through site-specific permit conditions based on lists of technologies and benchmarks of cost-effective energy efficiency developed by ETSU, the DETR’s energy efficiency consultants. It also proposed that negotiated agreements might offer an alternative means of delivering the energy efficiency requirement for clearly defined groups of installation.
20. In the March 1999 Budget, the Chancellor announced a climate change levy to apply to the business use of energy. The Government recognises the need for special consideration to be given to the position of energy intensive industries given their energy usage, the introduction of IPPC, and their exposure to international competition. The Chancellor therefore offered the prospect of a substantially lower rate of levy for sectors which enter into agreements meeting the Government’s criteria. Ideally participation in any such agreement would provide assurance that the energy efficiency requirements of IPPC had been met. Whether this can be achieved however, will depend upon the nature of any agreements which are reached. The Government is currently discussing proposals for such agreements with the main sectors concerned and is also considering the extent to which these agreements might be used to demonstrate compliance with the IPPC energy efficiency requirement.
|
|
|