Last reviewed 9 April 2013
Rick Gould describes how England and the devolved powers have applied the Industrial Emissions Directive (IED), and what differences this will make.
EU Member States had to transpose the Industrial Emissions Directive (IED) (2010/75/EU) by 7 January 2013. Typically, European directives allow Member States two years to apply EU legislation within national law, and both Scotland and Northern Ireland had met the deadline. However, the implementation of the IED in England and Wales was about six weeks late, as the implementing regulations were not published until 20 February 2013. While the same EU legislation applies to all parts of the UK, the implementation of the IED — and the Integrated Pollution Prevention and Control (IPPC) Directive (2008/1/EC), which it superseded — differs depending on its application in varying parts of the UK.
Pollution Prevention and Control (PPC) lives on
All four countries in the UK had originally applied IPPC through the PPC regime, through legislation made under the Pollution Prevention and Control Act 1999. The core statutory instrument was the Pollution Prevention and Regulations (England and Wales) Regulations 2000, with equivalent legislation in Northern Ireland and Scotland. However, in 2007, PPC installations in England and Wales were transferred to a new regulatory regime known as the Environmental Permitting Programme, applied through the Environmental Permitting (England and Wales) Regulations (EPR) 2007, which combined several regulatory regimes over the next three years. The Government republished the EPR in 2010 and has amended the regulations since then.
When the countries within the UK consulted on the implementation of the IED, it was expected that Northern Ireland and Scotland would apply it principally through amendments to the PPC regulations, while England and Wales would apply the new directive through changes to EPR 2010. In effect, this is what has happened, although the details differed.
The IED in Scotland and Northern Ireland
The IED combines seven directives, merging the directives for IPPC, incineration, large combustion plant, solvent emissions and three directives for the production of titanium dioxide. As there are very few titanium dioxide plants in the UK, the other four directives are arguably more important. However, as they were separate directives, Scotland and Northern Ireland, until late last year, had separate legislation for each of these in addition to the PPC regulations. For example, Scotland applied the Waste Incineration Directive through the Waste Incineration (Scotland) Regulations 2003 and the Large Combustion Plant (Scotland) Regulations 2002. There were similar regulations for England and Wales, although these were merged within EPR 2007.
In late 2012, Scotland published the Pollution Prevention and Control (Scotland) Regulations 2012, which made two significant changes in addition to applying the IED. Firstly, as the PPC regulations for Scotland have been amended several times since 2000, the new regulations include all the applicable amendments and therefore supersede all previous PPC regulations. Secondly, rather than make several amendments to related legislation such as the Waste Incineration (Scotland) Regulations 2003, the PPC regulations of 2012 include the requirements specified in the IED for waste incineration, solvent emissions and large combustion plant. In effect, the new regulations for Scotland reflect the approach taken within the EPR for England and Wales.
The new PPC Regulations for Scotland, therefore, largely mirror the contents of the IED and also combine several pieces of legislation. The IED changed the scope of the IPPC Directive; as the PPC Regulations of 2000 used Schedule 1 of the regulations to apply the scope of the IPPC Directive, the new scope of the IED is applied through an amended Schedule 1. At the same time, the new PPC regulations make a number of smaller amendments to related legislation, such as the Waste (Scotland) Regulations 2012.
Northern Ireland has applied the IED in a very similar manner, through the Pollution Prevention and Control (Industrial Emissions) Regulations (Northern Ireland) 2012. Like the Scottish PPC Regulations of 2012, the new regulations for Northern Ireland combine several pieces of legislation and all of the previous amendments to the PPC Regulations. However, there are some differences; for example, some of the changes in the Northern Irish regulations do not take effect until January 2014.
The IED in England and Wales
As expected, the IED has been applied in England and Wales through amendments to EPR 2010, implemented in the Environmental Permitting (England and Wales) (Amendment) Regulations 2013. However, unlike the new equivalent regulations in Scotland and Northern Ireland, it is harder to follow EPR 2010 because the 30-plus pages of the amending regulations have to be read alongside EPR 2010 in order to understand all of the changes. On the other hand, it is easier to see exactly how the IED changes the current regulations. The application of the IED within EPR 2010 can appear to be more complex than the PPC Regulations for Scotland and Northern Ireland, especially as there is a new class of incinerator under EPR 2010, known as Small Waste Incineration Plants (SWIPs). These are neither Part A1, A2 or B installations, but a new distinct category that will be regulated by local authorities. The situation will become clearer if and when the Department for Environment, Food and Rural Affairs (Defra) publishes consolidating regulations.
Fortunately, Defra, the Environment Agency and the Scottish Environment Protection Agency have all published briefing notes and guidance for the IED, with more to follow. The changes brought about by the IED are not as complex as they may seem when reading the legislation, especially the amending regulations for England and Wales. In simple terms, the IED strengthens the application of best available techniques, and introduces a few new categories of activity. At the same time, the UK included some legacy activities that are not within the scope of the IED. Some of the activities have been removed from EPR 2010, but will be regulated under other regulatory regimes.
Cross-sector Briefing on the IED, Environment Agency (2013)
FAQs on the Industrial Emissions Directive, SEPA 2012