On August 1, 2000, the Pollution Prevention and Control Act 1999 became law, replacing part one of the Environmental Protection Act 1990. This act concerns itself with the regulation of any industrial or business operation that involves “controlled activities”.
Although existing installations may continue under the original system of integrated pollution control (IPC), transitional provisions include a number of deadlines, up to March 2007, by which applications for permits under the new system must be made.
The new system of integrated pollution prevention and control (IPPC) has, at its heart, the same purpose as the previous IPC regime: to control pollution from the most potentially damaging or technologically complex processes, whether to air, land or water.
However, there are a number of significant differences under IPPC. Whereas the 1990 act applies to processes, the 1999 act and supporting regulations apply to installations. This enables a more integrated approach to pollution control, where consideration is given to the effect an individual process has on the entire facility.
But it may also give rise to some difficulties of interpretation. Where there is a physical connection between the individual processes, there should be little difficulty in identifying them both as elements of a single installation, but where a quarry is linked to a processing plant by a railway track, for instance, there will be queries as to whether this qualifies.
Installations will be divided into three categories, A(1), A(2) and B. In general terms, A(1) and A(2) are installations where there is significant potential for pollution. Operators of part A installations, which are regulated by the environment agency, must ensure that all emissions into land, water or air are properly controlled. By contrast, part B installations (regulated by the relevant local authority), are controlled only in respect of emissions into air.
IPPC takes several new environmental impacts into account. These include waste avoidance or minimisation, energy efficiency, accident avoidance and minimisation of noise, heat and vibrations. Installations seeking an IPPC permit will have to provide a higher level of protection.
IPPC will also apply to a wider range of industries. Industries that will now be affected include landfill sites, food and drink processes (including milk producers) and intensive farming – in addition to the industries that were already regulated under IPC, such as energy, metals, minerals, chemicals, waste management and related industries.
The tests used by the regulator when deciding whether to grant a permit have changed. Under IPC the main test is Best Available Techniques Not Entailing Excessive Cost (BATNEEC). This is used to prevent the release of prescribed substances or, where that is not practicable, to minimise their release or render them harmless. Under IPPC the test has become Best Available Techniques (BAT), but the objectives remain the same.
It is not yet clear whether the removal of a specific reference to cost is indicative of a change in thinking. The new definition will almost certainly ensure a high level of environmental protection, and it is possible that in doing so applicants will be able to rely less on cost arguments. Additional guidelines (to be known as BREF notes) are being prepared and in the intervening period IPC guidelines continue to be used. Supplementary guidance will also be issued by the environment agency, detailing some of the new factors to be taken into account, such as energy efficiency and accident avoidance.
Applicants for a permit must supply supporting information. The application will then be placed on a public register and the applicant will need to advertise the request, both in local newspapers and the London Gazette. The regulator must then decide whether to accept or reject the application, or place conditions on the grant of a permit. The regulator is also obliged to review any representations from the public or any individuals/bodies that must be notified. Anyone likely to be affected by the imposition of a condition on the grant of a permit (such as those who might be affected by on-going monitoring of the site) will fall into this latter category.
Once the consultation process has been concluded and the regulator's decision has been reached (four months have been provided for this) BAT will be enforced to ensure that appropriate preventative measures continue to be taken against pollution.
No significant pollution must be caused, energy must be used efficiently, measures must be taken to avoid accidents and to limit their consequences and waste production is to be avoided and, where produced, be recovered. Where this it is not possible, waste is to be disposed of in such a way that it will produce the least impact on the environment. If an installation is to be closed, necessary measures must also be taken to avoid any pollution risks and return the site in a satisfactory condition.
There are regulations that deal with enforcing compliance. Permits can be wholly or partly revoked. The regulator can either serve an enforcement notice requiring remediation of a breach, or a suspension notice where there is an imminent risk of serious pollution.
In some cases, the regulator can also take steps to remove the risk and recover the costs from the operator. In serious cases, operators can be prosecuted for a wide range of prescribed offences, especially failure to comply with a permit or a condition. Penalties on conviction can reach fines of up to £20,000 and/or six months' imprisonment for summary conviction or an unlimited fine and/or five years' imprisonment on indictment.
Senior personnel, such as directors, can also be found personally guilty should they have either consented to, or connived in, an offence committed by their company. They can also be found guilty if the offence is attributable to their negligence.
The new IPPC regime has potentially wide-ranging implications for many businesses, and great care should be taken to comply with all of the new requirements as soon as practicable.