Post-Brexit: What impact will we see on Industrial Emissions Regulations & Permitting Conditions?
On 31st January 2020 the UK officially left the European Union after passing the European Union (Withdrawal Agreement) Act 2020 and ratifying the Brexit Withdrawal Agreement.
A number of the UK’s current regulations across commerce and industry stem from EU Directives, with many of these still under consultation for how they may change following the departure from the EU. This includes regulations and permitting conditions governing industrial emissions, which are currently designed to be aligned with the Industrial Emissions Directive (2010/75/EU).
In this article we explore what may change in relation to industrial emissions regulations in the UK, and what these changes may include.
* For the purposes of this article we will be focusing on England and Wales.
Development of UK Industrial Emissions Regulations
The history and systems of industrial emissions regulations in the UK are complex, with layers of prior EU Directives and UK regimes feeding into the permitting system we currently adhere to today. Regulations for England & Wales differ to those of Scotland & Northern Ireland, though they are similar in their approach and application.*
The current Environmental Permitting Regulations 2016 (incorporating consequent amendments) are the regulations currently followed within England and Wales. It helps to understand how they evolved into their modern day format.
The role of the IED (Industrial Emissions Directive)
The Industrial Emissions Directive 2010/75/EU is the main EU instrument for regulating pollutant emissions from industrial installations. Introduced in 2011 it incorporates a number of previous Directives, including the IPPC Directive. It aims to protect both human and environmental health by reducing harmful industrial emissions across the European Union – primarily through the optimum application of Best Available Techniques (BAT).
- Use of BAT – Any EU member state individual regulative or permitting regime must be based on the BATs defined within the BREFs documents related to the Directive. All BATs are determined by a committee of experts from industry, experts and environmental organisations from each member state, to ensure a balance between the regulation and its application in real industrial operations. The European IPPC Bureau is in charge of this committee at the Research Centre in Seville.
- An Integrated Approach (all application of the regulations should consider land, water, air emissions, waste generation, use of raw materials, noise, safety, energy efficiency and restoration of sites.
- Inspections – the Directive mandates that these must take place every 1-3 years within any member local regime
- Flexibility – all competent member local authorities are permitted to reduce emission values where it is shown that disproportionately high costs would be incurred by those industries who must implement them that would not outweigh any environmental benefits.
- Public Participation – all members of the public should have the right to be involved in any decision-making related to application of the IED and local regimes.
IED Relationship to BREFs and BAT
Within the IED are a series of BREF documents, with BREF being an abbreviation of “Best Available Technique (BAT) Reference Document.”
BREFs are formulated as a result of IED consultation processes and information exchanges between various industry stakeholders from across the member states, including industry and environmental experts.
These stakeholders are able to apply real-world expertise and application of the guidance to formulate a series of reference documents for local implementation.
Within these reference documents (BREFs) are specific descriptions of industrial processes, operating conditions and emission rates & thresholds that should be applied to industrial activities to meet the aims of the IED.
Within the BREFs are the BAT Conclusions.
BAT Conclusions are the final evaluations of Best Available Techniques which specify the reference points used to set permitting conditions for Installations included within the IED (Annexe 1).
Local regulators across the EU (e.g. the Environment Agency in England) then use BATs to decide their own, domestic permitting conditions, including thresholds, consumption levels, application techniques and emissions levels. There is a specific BREF for the “Monitoring of Emissions to Air and Water from Installations”, coined (ROM).
The EP Regulations 2016 then applies these BATs within its regime to prevent (or reduce to acceptable levels) emissions and waste production. This relationship is represented in the below diagram.
The Environmental Permitting Regulations 2016
The main environmental regime of both England and Wales, the EP Regulations 2016 ensure adherence to the various UK and EU legislation and Directives (including IED and associated BREFs) through a cross-sector and integrated (air, water, land, waste) permitting approach.
The regime is regulated by the Environmental Authority (EA) in England and the National Resources Body for Wales (NRW) and the following sectors are included within the regime:
- Manufacturing
- Power Generation
- Waste Management
- Radio-active Substances
- Mining and Water Services
Industrial sites that fall under EP Regs are known as “Installations” and must hold a permit to operate. The permit includes the specific application of BAT that the Installation must adhere to in order to eliminate or reduce pollution to harmless levels.
A site is typically classed as an Installation if its activities or facilities fall under one of the following categories (in line with listed activities within Annexe 1 of the IED.) Any activity that could pollute the air, water or land, increase flood risk or adversely affect land drainage is included, including the following specified activities (as per Government Environmental Permitting Guidance ):- “If you class as an ‘Installation’ – an industrial facility, manufacturer or other business that produces potentially harmful substances, for example a landfill site, a large chicken farm, a food factory, a furniture factory, a dry cleaners or a petrol station
- If you are a waste operation – a site where waste is recycled, stored, treated or disposed of
- If you are a mining waste operation – a site which manages waste produced from mines or quarries
- If you are a medium combustion plant or specified generator
- If you are a small waste incineration plant – where certain types and quantities of waste are burned
- If you are a mobile plant – plant that’s designed to move or be moved, for example a machine that’s moved onto a site to clean contaminated soil
- If you carry out a solvent emission activity – releasing organic solvents directly or indirectly into the air
- If you carry out an activity that involves radioactive substances
- If your activity carries the risk of flood e.g. working in/under/over/near a main river, near a flood defence on main river, in the flood plain of a main river or near a sea defence
- If you are a stand-alone water discharge activity that involves releasing polluting liquids to surface water such as rivers or streams**
- If you are a stand-alone groundwater activity that involves releasing polluting liquids directly or indirectly to water underground**”
Part A1 Installations
A1 Installations are typically classed as those sites conducting industrial processes. For example, food & beverage plants, intensive farming sites, refineries or those involving landfill waste disposal, hazardous waste treatment and incineration of waste. Part A1 Installations are usually identified as having more potential for pollution across land, air, water and other environmental considerations. Part A1 Installations include two types of permit – standard or bespoke – depending on the specific activities carried out at the site.
Part A2 & B Installations
The comparatively less polluting activities identified as Part A2 or Part B (emissions to air, under the Local Air Pollution Prevention & Control Regime) are typically classified as having one or more of the following activities.
- “Refining gas
- Metal works, e.g. producing pig iron or steel, casting ferrous metal, operating forge hammers or applying fused metal coatings
- Melting non-ferrous metals
- Surface treating metals and plastic materials
- Grinding cement clinker or metallurgical slag
- Glass manufacturing
- Cellulose fibre reinforced calcium silicate board manufacturing
- Ceramic product manufacturing, including roof tiles and bricks
- Non-hazardous or animal waste incineration
- Manufacturing wood based boards, eg plywood
- New tyre manufacturing
- Disposing of or recycling animal carcasses or waste”
Some Installations may have multiple activities at one site and each activity must be covered within permitting.
The regulator for activity types is defined as follows. Other environmental regulators include Natural England, HSE (nuclear, oil & gas) and sewerage undertakers (for trade effluent discharge consents)
Environment Agency/National Resources Body for Wales
- Part A1 Installations
- Waste mobile plants
- Waste operations (including some Part B Installations and Park B mobile plants)
- Radioactive substance activities
- Water discharge activities
- Groundwater activities
- Flood risk activities on main rivers
Local Councils/Authorities
- Part A2 Installations (including associated waste operations, water discharge or groundwater activities)
- Most Part B Installations and Part B mobile plant
- Small waste incineration plants
- Solvent emission activities
- Flood risk activities on ordinary watercourses (where there is no Internal Drainage Board)
Current Enforcement
What May Change with Environmental Permitting after Brexit?
The EU Withdrawal Act 2018 included provision for the ongoing application of EU environmental law, including the BAT Conclusion Implementing Decision, meaning that the BREF and BAT documents have continued to apply. The end of the transition period (December 2020) saw the introduction of the Environmental Permitting (England and Wales) (Amendment) (EU Exit) Regulations 2019 (SI 2019/39). This new version included a revised Schedule 1A, which modified the effect of in excess of 300 cross-references to EU Directives found in the previous 2016 version. Most modifications were simply to change the regulatory bodies responsible for the permitting regulations. A full list of modifications can be found here
The United Kingdom has been an active participant in many global, national and EU environmental initiatives to date, including the EU ETS (EU Emissions Trading Scheme) and the UN Paris Agreement. During the transition period of Brexit it has continued to participate in these initiatives and, going forward, the UK will still need to meet international environmental and climate change commitments, with a number of domestic initiatives already in place including The 25-year Environment Plan, Clean Growth Strategy, The Clean Air Strategy, Clean Air Plan for Wales and Cleaner Air for Scotland. Water abstraction has been a key focus for the government, with a current aim of bringing the existing water abstraction and impounding licensing systems into the Environmental Permitting regime by 2023.
DEFRA Consultation Process
In 2021 a consultation process took place for the future of BATs within the UK via DEFRA. The consultation included a proposed framework and approach for ensuring an ongoing collaborative approach to BATs within the UK. Included in the framework were processes for collating and sharing technical views and the determination and evaluation of future BATs. It asked for stakeholders to provide their views on policy design, governance, public participation and evaluation for the future development of BATs. Full details within the consultation can be found here
The consultation highlighted the commitment of the UK nations to provide a future regime for the development of BATs that would be based on the same principles that have applied since the concept was introduced “A transparent, collaborative, data and evidence-led process that safeguards and builds on the high levels of environmental protection already in place across the UK.” Although the consultation did recognise that air quality is a devolved policy area and national governments such as Scotland may set differing BATs, it proposed that a largely common approach would be taken.
Included within the consultation was a proposal for a new governance structure, termed the Standards Council, which would be made up of representatives from UK government and devolved administrations, with a new Regulators group (Environment Agency, Natural Resources Wales, Northern Ireland Environment Agency, Scottish Environment Protection Agency and OPRED) providing technical advice and Technical Working groups (industry representatives, those with technical expertise) to represent each new BAT.
The proposed process for development of BATs was as follows:
- Standards Council instigates development of sector ‘Best Available Techniques’
- Standards Council commissions Regulators Group to commence technical review of sector ‘Best Available Techniques’
- Regulators Group commissions Technical Working Group (TWG)
- Call for Evidence
- Development and recommendation of ‘Best Available Techniques’ by TWG
- Standards Council forms view and holds Public Consultation on ‘Best Available Techniques’
- Review and publication of Government Response and final ‘Best Available Techniques’
- Adoption of ‘Best Available Techniques’ by appropriate bodies
The consultation proposed the continued inclusion in the new BATS regime of the following sectors:
- Iron and steel production
- Manufacture of glass
- Tanning of hides and skins
- Production of cement, lime and magnesium oxide
- Production of Chlor-alkali
- Production of paper, pulp and board
- Refining of mineral, oil and gas
- Wood-based panels production
- Non-ferrous metals industries
- Common waste water in the chemical sector
- Large combustion plants
- Intensive rearing of poultry and pigs
- Production of large volume organic chemicals
- Waste treatment
- Food, drink and milk industries
- Waste incineration
- Surface treatment with organic solvents
It also proposed the consideration of the following sectors through the new UK BATs regime:
- Ferrous metal processing industry
- Waste gas treatment in the chemicals sector
- Textiles industry
- Slaughterhouses and animal by-products industries
- Smitheries and foundries industry
- Ceramic manufacturing industry
The consultation also proposed the incorporation of new sectors into the scope of BATs, including:
- Large volume inorganic chemicals (LVIC)
- Surface treatment of metals and plastics (STM)
Within the proposal there was recognition that businesses must be able to rely on stability of the regime in order to have confidence in ongoing investment and operations decisions. The proposed policies for implementation of BATs largely retained the same structure as the current regime, for example, the 4-year timeframe of implementation. One area of change proposed however was the setting of emission limit values within permitting. Currently the IED stipulates that these should be set at the top (least stringent) of the range. This is proposed to be amended in England and Wales to give the regulator discretion to select the most appropriate value within the BATs emission levels range, with the change to take effect only at the usual point at which an Installation would be due to have its permit reviewed. The aim of this amendment is to give greater opportunity for regulators to reduce emissions where appropriate. Full details can be found in sections 28 and 29 of the consultation.
Our experienced team maintain up-to-date knowledge and application of all emissions limits for company permitting, with the know-how to implement factory changes to ensure compliance.
Contact us for support in this area.
What Happens Next?
Details of the new BATs regime were due to be issued by the end of 2021 following the consultation process but, to date, these have not yet been published.
Although it is currently unknown how much will change from the consultation paper what is evident is that the UK will continue with its commitment to environmental protection and the reduction of climate change. Various environmental reforms are already planned or in place and Environment Act 2021 paved the way for the introduction of a new body for environmental standards – the Office for Environmental Protection.
The government Clean Air Strategy 2019 has already set out actions for the future development of Best Available Techniques for industrial emissions within the UK and the 25-year environment plan highlighted the government’s aim to use Brexit as an opportunity to reform and improve some policies, including agriculture and fisheries management. It is clear that the intention is to use “green Brexit” to streamline currently devolved policies and regimes into more unified systems.
With regards to Environmental Permitting, at least in the short term, most of what exists today will largely remain the same, but with powers transferred from EU to national bodies and regulators. That said, we should expect new sectors to be incorporated into BATs and, importantly for industrial operators, there is the question of whether the new emissions levels setting will be introduced and how much impact this will bring.