Up in the air - the impact of the IED

The Environment Agency's Jackie Taylor outlines what firms need to known about the new EU legislation on industrial emissions

The Industrial Emissions Directive (2010/75/EU) (IED) came into force on 6 January 2011. It aims to provide a single coherent legislative regime for discharges by removing previous ambiguities and inconsistencies across member states, promoting cost effectiveness and encouraging technological innovation.

The IED replaces seven existing directives – on integrated pollution prevention and control (IPPC), large combustion plants (LCP), solvent emissions, waste incineration and the production of titanium dioxide – that the Environment Agency currently implements in England and Wales through the Environmental Permitting Regulations (EPR).

The IED imposes new requirements on some of the installations that the agency already permits and extends the scope of activities, meaning more installations are covered by the EPR. It will also see the deregulation of some installations that are subject to IPPC rules in the UK, but not in the rest of Europe.

The Directive is being implemented as an amendment to the EPR (and through the Pollution, Prevention and Control Regulations 2012 in Scotland). A consultation on transposing the IED by Defra and the Welsh government closed on 6 June 2012 and the revised EPR was due to come into force on 6 January 2013. The IED will be implemented over several years as follows:

• All new installations from 7 January 2013.
• Existing installations from 7 January 2014.
• Existing installations operating newly prescribed activitiesfrom 7 July 2015.
• LCPs must meet specific requirements from 1 January 2016.

The agency will regulate all Part A(1) activities, while local authorities are responsible for A(2) and Part B activities.

What’s changing?

The IED brings together existing directives so there is no fundamental overhaul of the current permitting system, permits or controls. Permits will still be issued under EPR and be called permits, and the associated charges are very unlikely to increase as a result of IED.

Proposed amendments to the activity schedule references in the EPR to meet the requirements of the IED include:

• Some activities that were not described in the IPPC Directive, but were nevertheless regulated in the UK under the IPPC regime, will move to be regulated as Part A(2) or Part B processes and be regulated by local authorities. Some will require a different type of environmental permit (for example, for a discharge to controlled waters) and a few will cease to be regulated. Defra and the Welsh assembly government have, however, chosen to continue to include some such activities in the EPR, even though they are not described in either the IPPC Directive or in the IED, due to their environmental risk.
• Removal of section 1.1A(1)(b), previously used for regulating the burning of many types of waste. In future, landfill gas engines will generally be regulated as activities directly associated with a landfill. Plants combusting biogas are likely to become waste activities, while plants combusting solid or liquid wastes are likely to be regulated under section 5.1, dependant on throughput. Smaller facilities will be regulated by local authorities, including those covered by the Waste Incineration Directive below the agency’s 3 terawatt hour (TWh) threshold, but above the 1 TWh threshold currently applied by local authorities.
• Section 5.3 has been rewritten to refer to the disposal or recovery of hazardous waste. It is now more specific about the types of activities treated as installations where the capacity exceeds 10 tonnes per day, and now includes the blending, mixing or repackaging of waste prior to other 5.3 activities.
• Section 5.4 has also been rewritten and now refers to the disposal or recovery of non-hazardous waste (or a combination of the two) as well as the pre-treatment of waste for incineration or co-incineration; the treatment of slags and ashes; and the treatment in shredders of metal waste (including waste electrical and electronic equipment and end-of-life vehicles and their components which were not previously included). This section also captures larger biological treatment operations, including mechanical biological treatment plants, anaerobic digestion facilities and composting sites.

Revised guidance

To aid the introduction of the IED, the agency is revising its guidance and permitting processes. It will be publishing new notes and best available techniques (BAT) conclusions documents, although existing BAT guidance for installation activities remains relevant until these are ready. Revisions to the application pack, including forms and guidance notes, were released in December 2012.

These revised forms cover all applications submitted from 7 January 2013. BAT guidance for some newly prescribed activities can be interpreted from the agency’s existing IPPC waste treatment and storage technical guidance.

Planned revisions to guidance documents RGN 2 (on understanding the meaning of regulated facility) and RGN 4 (on setting standards for environmental protection) will incorporate changes demanded by the IED to the definition of facilities and to baseline assessment requirements. H5 – the site condition report guidance – is also being updated.

The IED requires all applications to contain, as a minimum, a description of the condition of the installation site. Where applicable, a baseline report will also be needed containing information on the state of soil and groundwater contamination. New standard rules are being developed to simplify the permitting process (and reduce costs) for a number of activities, including: composting, anaerobic digestion and the treatment of waste ashes and slags.

The Directive will also necessitate some changes to the agency’s OPRA – operational risk appraisal – scheme. Changes to permitting costs were included in a recent consultation on agency charges, which closed on 9 December 2012.

Implementation process

The agency will be taking action to amend or alter a number of existing permits as a result of the IED. For example, variations to some permits will be needed to reflect changes to regulations that affect the activity schedule references. Also, permits for facilities that cease to be regulated will be dissolved through revisions to the EPR.

Changes to the charging structure for these sites – including refunds for reduced subsistence fees for the January-to-March period – are currently being assessed. Permits that in future will come under the control of a local authority are likely to be migrated in March for implementation in the new financial year.

All applications for new activities submitted from 7 January 2013 will need to demonstrate compliance with IED requirements. This includes the use of revised forms, assessment of activities new to installations against BAT standards and baseline assessments of site conditions in accordance with the revised H5 guidance. Decisions on these new sites will be posted on the agency website via, in due course, an electronic public register.

It is likely that additional data gathering by the agency will be required at the point of determination to satisfy the European Commission requirements. Some existing facilities may continue to be controlled as exemptions or waste activities until July 2015. They will then need to go through a re-permitting process to validate BAT.