Integrated Pollution Prevention and Control (IPPC)

Environmental Science and the Law - Integrated Pollution Prevention and Control – © Brian Foley, 2006.

Integrated Pollution Prevention and Control

The Rationale of Integrated Pollution Prevention and Control

As we have seen, there are many different pieces of legislation which govern many different activities. For example, there are discrete “sets” of rules which govern waste management, air pollution, water pollution, conservation and so on. In some cases, regulation is retrospective in the sense that it creates fines and offences for acts of pollution. However, environmental regulation is not only achieved through the retrospective application of the criminal law, but through the prospective requirements, in some cases, for particular types of activity to undergo some form of licensing. For example, under the Local Government (Water Pollution) Acts 1977-1990, a licence could be obtained to engage in the discharge of trade or sewage effluent into waters, provided that such discharge would, of course, comply with the relevant water standards.

The licensing model, however, throws up relatively obvious problem. If the legislation established completely independent licensing regimes, the one may find oneself having to apply for both a water pollution licence, as well as a licence under the Air Pollution Act, 1987, and perhaps a waste licence.

There is an argument that an integrated approach should be taken whereby particular activities which may cause pollution must be licensed through a central process which takes into account all the possible environmental problems which may be caused – i.e. a single “integrated pollution licence” which is granted to licence the carry on of particular activities and impose limitations on emissions and pollution produced thereby. In this way various polluting activities can be monitored and licensed on a highly individuated basis.

The idea of what we now refer to as “Integrated Pollution Prevention and Control” (IPPC) is based on a combination of the two points made above. IPPC is, essentially, a licensing regime whereby particular activities must apply to the EPA for IPPC licences which govern the carrying on of activities from a wide range of environmental perspectives imposing limitations and controls on emissions to air, water and land (including odour emissions), noise emissions and also in relation to energy use, the use of raw materials and aspects of waste management.[1] The point is simply to create a one-stop-shop approach whereby particular kinds of activities can be controlled and regulated through a central, and near catch-all system.

The last point is very important – IPPC is activity-centric in the sense that certain defined activities (e.g. some types of poultry rearing etc) are required to seek IPPC licences where they meet specific requirements. The list of activities can be found in the First Schedule to the Environmental Protection Agency Act, 1992 (as amended by the Protection of the Environment Act, 2003).

IPPC v IPC

The name “Integrated Pollution Prevention and Control” is the new label for what we used to call “Integrated Pollution Control” (IPC). IPC was the system operated under the Environmental Protection Agency Act, 1992 which began operation on May 16, 1994. As described above, IPC was concerned with regulation-through-licensing of various activities which may pollute the environment in many different ways. Originally, the IPC regime was introduced on a phased basis with some “breathing space” given to the relevant activities – i.e. it did not automatically and immediately apply to all activities listed in the First Schedule to the 1992 Act. This phased introduction ended on January 8, 2002 which was the last date for applications for the last remaining activity which was the operation of peat fired power stations.

The IPC regime was covered by Part IV of the Environmental Protection Agency Act, 1992. This part, among other things, set out the requirements which activities listed in the First Schedule had to be met in order to obtain an IPC licence. The main provision in respect of granting such a licence was s.83(3) which provided that the EPA could not grant a licence unless it was satisfied that:

§  Emissions from the activity would comply with air standards in force and also that they would comply with water pollution laws.

§  Noise emissions would comply with relevant noise regulations.

§  Any emissions would not cause significant environmental pollution.

§  The best available technology not entailing excessive costs would be used to prevent or eliminate (or where that is not practicable) to limit, abate or reduce emissions.

As you can see, central to the grant of the IPC licence was that the applicant could persuade the EPA that its activity would not breach existing regulations and that it would not generally cause significant environmental pollution. Moreover, the applicant would have to show that it would use the best available technology, so long as it did not entail excessive costs to eliminate or reduce environmental pollution. In essence, then, the application for an IPC licence could be viewed as a demonstration by the applicant that this particular polluting activity was in general “environmentally sound” (insofar, of course, as any polluting activity could be described as such).

In September 1996, Directive 96/61/EC came into effect at the European level which concerned the new system of Integrated Pollution Prevention and Control (IPPC). In essence, IPPC is the roughly same as IPC with three central regulatory differences.

1.  IPPC requires a consideration of broader issues than IPC. The IPPC licensing process expressly requires the EPA to consider a wider range of issues than the old s.83(3) did including (but not limited to) energy conservation and aspects of waste management. As noted above, IPC was generally concerned with emissions, but IPPC has a broader application.

2.  The range of activities which had to apply for IPC licensing has been extended under the IPPC regime.

3.  The IPC regime used the best available technology not entailing excessive costs (BATNEEC) standard. The IPPC regime uses a more nuanced best available techniques standard, which would seem, on first glance, to be more onerous on the polluter. However, as we will see later, with one small difference, these amount to substantially the same standards.

In addition, two substantive changes are important.

1.  Energy conservation is now mandatory not only in relation to production processes, but in relation to pollution control itself. Under the IPC regime energy conservation rules would only be imposed in relation to the operation of production processes but under the IPPC regime, conservation is required in respect of the methods by which one seeks to limit pollution – i.e. the pollution control mechanisms put in place.

2.  Operators of activities will now have to demonstrate how and in what manner the sites of the activities will be returned to a decent environmental condition after they cease operations.

The legislative basis for IPPC in Ireland is still Part IV of the Environmental Protection Agency Act, 1992. However, Part IV was replaced in whole by s.15 of the Protection of the Environment Act, 2003 which, in essence, replaces the provisions governing the old IPC regime with the new IPPC regime modelled on Directive 96/61/EC.

Activities For Which IPPC Licences are Required

Generally speaking, if you wish to carry on an activity specified in the First Schedule to the Act, you need an IPPC licence. Therefore, and somewhat like the EIA/EIS regime, the IPPC regime is activity centric. That is to say that the requirement to apply for IPPC and to “prove oneself” in the sense that IPPC requires applies to certain specified activities. It should be noted that the new First Schedule to the 1992 Act is to be found in the Protection of the Environment Act, 2003 which replaces the old First Schedule to reflect the wider range of activities covered. Thus, if the activity is listed there, it requires an IPPC licence in order to operate. There are two exceptions to this.

First are “established activities” as defined in s.3 of the EPA Act, 1992. Basically, these are activities which had been granted planning permission previous to the coming into operation of the EPA Act, 1992 and those activities which had been carried on previous to the EPA Act, 1992 coming into force. These are “established” in the sense that they have been carrying on activities previous to the coming into force of the 1992 Act.[2]

Second, are activities covered by s.82(3) which deals with activities commencing within the transitional period between 30 October 1999 and the coming into force of the Protection of the Environment Act, 2003. In that case, you had six months from when the 2003 regime came into effect to apply for an IPPC licence, rather than having to do so immediately.

With those exceptions in mind, what then are the kinds of activities listed in the First Schedule? I won’t list them all here but some examples are as follows:

§  Activities involved in the production of asbestos

§  The operation of combustion installations with a rated thermal input equal to or greater than 50 MW

§  The production of pig iron or steel (primary or secondary fusion) including continuous casting, with a capacity exceeding 2.5 tonnes per hour.

§  The manufacture of glass including glass fibre with a melting capacity exceeding 20 tonnes per day or 5,000 tonnes per year.

§  The production of basic inorganic chemicals, such as ammonia, chlorine or hydrogen chloride, fluorine or hydrogen fluoride, carbon oxides, sulphur compounds, nitrogen oxides, hydrogen, sulphur dioxide, carbonyl chloride,

§  The rearing of poultry in installations, whether within the same complex or within 100 metres of the same complex, where the capacity exceeds 40,000 places.

As one can see, thresholds are used to determine what is subject to IPPC. You may recall from our examination of EIA, that there was a general residuary requirement for certain activities to be subjected to EIA even if they were below the relevant thresholds, but where, those activities may still cause “significant environmental effects”. There is no such concept of sub-threshold requirements here.

Overlap With Other Enactments

As we have seen, one of the points of the IPPC regime is to avoid over-lapping between differing licensing regimes such as under the air pollution legislation and the water pollution legislation. S.84, to put it bluntly, ensures that the IPPC regime itself does not overlap with other licensing regimes. Thus, if you need an IPPC licence, then you do not need to apply for a licence under the Air Pollution Act, 1987 (if you needed it), or under the Local Government (Water Pollution) Acts, 1977-1990 or under the Fisheries (Consolidation) Act, 1959. It is very important, however, to note that IPPC and waste management are separate – IPPC does not provide any licensing substitute for the Waste Management Act, 1996 regime. Rather, as we will see when we come to consider Waste Management in more detail, there are complicated provisions for deciding whether an activity which may straddle both waste management and IPPC licensing regimes requires either licence or the other.

The Licensing Process

Part IV also covers the relevant procedure for the making of applications including time limits for EPA determination, the information required to accompany an application, the conduct of investigations in the application and so on. We will not address these procedural matters in any detail. Rather, our concern will be with the matters which must be taken into account by the EPA in reaching its decision. As a preliminary note, it is important to note that not only can the EPA can refuse or grant a licence, but it can also grant a licence subject to specified conditions.

In making its decision, the EPA must consider

(a) any relevant air quality management plan under section 46 of the Air Pollution Act 1987, or water quality management plan under section 15 of the Local Government (Water Pollution) Act 1977, or waste management plan

(b) any relevant noise regulations under section 106 of the Environmental Protection Agency Act, 1992.

(c) any special control area order under section 39 of the Air Pollution Act 1987, in operation in relation to the area concerned.

(d) the policies and objectives of the Minister or the Government in relation to the prevention, elimination, limitation, abatement or reduction of emissions for the time being extant.

(e) (i) the environmental impact statement (if any) submitted with the application[3]

(ii) any submissions or observations made to the Agency in relation to the environmental impact statement,

(iii) any further information or particulars submitted in relation to the environmental impact statement in compliance with a notice given under regulations under section 89, and

(iv) where appropriate, the comments of other Member States of the European Communities in relation to the effects on the environment of the proposed activity, insofar as the statement, submissions, comments, observations, information or particulars relate to the effects on the environment of emissions from the activity,

(f) such other matters related to the prevention, elimination, limitation, abatement or reduction of emissions as it considers necessary.

If the EPA decides to grant the licence it must specify emission limit values (ELV’s) for environmental pollutants likely to be emitted from the activity in significant quantities. ELV’s are a little technical, but basically refer to the maximum emissions which are permissible from any activity. Emissions, in this context, are taken to refer to any direct or indirect release of substance, heat or noise inot the atmosphere, water or land.[4]