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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Rockware Glass Ltd, R (on the application of) v Chester City Council & Anor [2005] EWHC 2250(Appendix 3) (Admin) (24 October 2005) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/2250(Appendix_3).html Cite as: [2005] EWHC 2250(Appendix 3) (Admin)

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APPENDIX 3

Chapter 12 of "Secretary of State's Guidance; General Guidance Manual on Policy and Procedures for A2 and B Installations" (March 2003)

Best Available Techniques (BAT)

12.1      The EPA Part B regime had the objective of ensuring that BATNEEC was used to prevent or minimise emissions of specified substances and to render harmless emissions of all substances. The LAPPC regime is similarly concerned with preventing, or where that is not practicable, reducing emissions into the air (regulation 8(4)). The essence of the LA-IPPC regime, however, is achieving a high level of protection of the environment taken as a whole (regulation 8(3)). In the case of both the new regimes this is achieved by, among other things, requiring operators to use the best available techniques (BAT) (regulation 11(2)). This, together with a consideration of local circumstances, provides the main basis for setting limit values (ELVs).

What's the difference between BAT and BATNEEC?

12.2      BAT and BATNEEC, although different concepts which must be applied under the relevant regimes, will frequently lead to a requirement to apply the same techniques. Whereas the consideration of 'excessive cost' was included within the decision making process for BATNEEC, it is inherent in the decision concerning BAT (see regulation 3, and schedule 2 to the regulations replicated in Annex VIII). This is described further in 12.7 below. The BAT approach requires that the cost of applying techniques is not excessive in relation to the environmental protection they provide. It follows that the more environmental damage BAT can prevent, the more the local authority can justify requiring the operator to spend on it before the costs are considered excessive.
12.3      If emissions would cause serious harm even after applying BAT, the local authority may impose stricter permit conditions or refuse the permit altogether. This would be the case where, for example, an Environmental Quality Standard (EQS) made to implement European legislation would be breached and should be considered carefully where any other EQS is threatened. Stricter emission limit values are always required in this case. (see Chapter 15).
12.4      The local authority may impose additional permit conditions on LA-IPPC installations to reflect other provisions in the PPC Regulations, such as the general principles set out in Regulation 11. This means that the overall standards may include not only emission limit values (ELVs) based on BAT (or stricter ELVs where necessary), but also conditions relating to, for example accident prevention in relation to LA-IPPC.
12.5      Local authorities are obliged to have regard to any guidance issued to them by the Secretary of State when determining BAT. BAT for each installation should be assessed by reference to the appropriate sector guidance note, whether for A2 or B installations. These guidance notes should be regarded by local authorities as their primary reference document for determining BAT in drawing up permits and authorities should be able to justify any deviations from them. In general terms what is BAT for. This chapter provides guidance on the definition of BAT, assessing BAT and its use in permit conditions. It is relevant to the regulation and operation of LA-IPPC and LAPPC installations, where indicated. one installation is likely to be BAT for a comparable installation. But in each case it is in practice for local authorities (subject to appeal to the Secretary of State) to decide what is BAT for the individual installation and the local authority should take into account variable factors such as configuration, size and other individual characteristics of the installation in doing so.
12.6      In some cases, the local authority will need to take account of other legislation given effect through LAPPC or LA-IPPC activities, such as coating activities as affected by the EU Solvent Emissions Directive. These requirements must be met through LAPPC/LA-IPPC permits irrespective of whether they reflect what is BAT. In most cases, the constraints imposed by other legislation are minimum obligations, without prejudice to any stricter conditions that may correspond to BAT or the other LA-IPPC and LAPPC requirements. The relevant sector guidance notes will identify and advise on any EU Directives, unless they arise after publication where the normal procedures will be used to advise/direct operators and local authorities.

Meaning of "best available techniques"

12.7 Regulation 3(1) defines BAT as "the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole". 12.8      Availability: Where there is a choice, the technique that is best overall will be BAT unless it is not an 'available technique'. There are two key aspects to theavailability test:

a) what is the balance of costs and advantages? This means that a technique may be rejected as BAT if its costs would far outweigh its environmental benefits; and

b) can the operator obtain the technique? This does not mean that the technique has to be in general use. It would only need to have been developed or proven as a pilot, provided that the industry could then confidently introduce it. Nor does there need to be a competitive market for it. It does not matter whether the technique is from outside the UK or even the EU.

Implied BAT

12.9      Under Regulation 12(10)-(11), there is an implied duty on the operator to use BAT to prevent or reduce emissions that are not covered by specific permit conditions. This is intended to cover the most detailed level of plant design and operation where, in particular, the operator will usually be in the best position to understand what pollution control means for an installation in practice.

Basic principles for determining BAT

12.10      As stated above, determination of what is BAT must ultimately be made on a case-by-case basis and taking into account that individual circumstances may affect BAT judgements and what are the appropriate permit conditions. The following paragraphs describe the steps that would be necessary if starting such an exercise from scratch. However, where sector guidance notes are available, they will have taken account of options and it may be quite adequate to rely on those notes as a baseline for what is BAT (as well as, where appropriate, what is necessary to achieve the relevant EU Waste Framework Directive objectives), in a given situation. Any additional assessments and option identification should be undertaken as seems necessary having regard to the specific facts of the particular case, including the precise size and configuration of the installation and activities, the actual production process used, and the location of the installation. It is envisaged that such assessments are likely to be more extensive for LAIPPC installations, which will generally be more complex and are being regulated in relation to a wider range of environmental impacts. For LAPPC installations, it is envisaged that assessments will be similar in extent to those undertaken currently for LAPC and broadly-speaking what is BAT/BATNEEC for one activity in a sector is likely to be BAT/BATNEEC for a comparable activity. In all cases, local authorities, in determining applications, should take account of the relevant factors set out in Schedule 2 to the regulations (see Annex VIII). They may in subsequent proceedings be required to demonstrate that they have done so and produce any written notes or report setting down the considerations relied on prior to taking their decision. Also, for the sake of transparency and accountability, they should be in a position to justify their decisions to the operator (see also paragraph 13.17).
12.11      The basic principles for determining BAT involve identifying options, assessing environmental effects and considering economics. The principles of precaution and prevention are also relevant factors for determinations. Determining BAT involves comparing the techniques that prevent or reduce emissions and identifying the best one in terms of the one which will have the lowest impact on the environment. Alternatives should be compared both in terms of the primary techniques used to run the installation and the abatement techniques used to reduce emissions further.

Environmental assessment.

12.12      Once the options have been identified there should be an assessment of their environmental effects. It should focus particularly on the significant environmental effects – both direct and indirect. It should also look at the major advantages and disadvantages of techniques used to deal with them. Account should be taken, in particular, of the various factors listed in Schedule 2 to the PPC Regulations, reproduced in Annex VIII, some of which are detailed in paragraph 12.15 below. This should help to rank techniques according to their overall environmental effects.
12.13      The main focus of any environmental assessment will be the effects of releases. The assessment should identify and quantify possible releases of polluting substances into any media. It should also quantify their effects. Most attention should be paid to large-scale releases and releases of the more hazardous pollutants. These are likely to have the most significant effects. Conversely, any releases at levels so low that they are unlikely to have any serious effects need not be assessed. A list of the main polluting substances is in Annex VII, which reproduces Schedule 5 to the PPC Regulations. However, as this is just indicative, consideration should be given to other substances capable of causing pollution in the same way.
12.14      IPPC is also concerned with emissions of heat, vibrations and noise. As with substances, however, a detailed assessment is only needed if there is a known or anticipated problem. Chapter 16 contains advice on noise and vibration.
12.15      The environmental assessment of options should also take account of the other issues covered by IPPC as listed in Schedule 2 to the PPC Regulations (see Annex VIII)

a) Consumption and nature of raw materials.

Consideration should be given to options that use fewer resources, or those that use materials that are less likely to produce hazards or pollution risks. For example, in relation to a Part A2 activity, the use of a purer raw material could lead to lower releases of contaminants. Water (a matter for the Environment Agency under regulation 13) is also a raw material, and the assessment should consider how much each option needs where appropriate, and the environmental consequences of any abstraction.

b) Energy efficiency. Consideration should be given to the effect different options would have on energy consumption and efficiency. Care should be taken that the pollution abatement systems do not use excessive energy compared with the emission reductions they achieve. Installations in a Climate Change Agreement or a UK Emissions Trading Scheme Direct Participant Agreement will still have to meet basic energy consumption and efficiency requirements in their applications – see chapter 14.

c) Waste issues. The assessment of options should cover the amount of waste they produce and the possibility of preventing waste, recovering it or disposing of it safely. It may be preferable to permit a slightly higher level of releases if this greatly reduces the volume of waste, especially if the waste is particularly hazardous. However, this should not simply transfer pollution from one medium to another, which is precisely what LA-IPPC is meant to avoid. The main goal should be to identify techniques that minimise all types of waste and releases at source.

d) Accidents. Consideration should be given to the environmental hazards posed by possible accidents and their associated risks. This should include the practicality of measures to reduce risks and hazards and to respond to any accidents. In comparing the effectiveness of techniques to prevent emissions, consideration should not be limited to looking at normal operations, but also at the possibility of unintentional releases.

e) Site restoration. Consideration should be given to whether options risk polluting the site. This should include planning ahead for decommissioning and restoring the site upon closure. For example, siting pipelines and storage tanks above-ground rather than underground would make leaks easier to detect and removal of pollution risks more straightforward.

12.16      In some cases, where options have been based on environmental assessments, a judgement will need to be made about the relative significance of different environmental effects, sometimes in different media. In comparing these, certain basic parameters may help to reach a conclusion. For example, long-term, irreversible effects are worse than short-term reversible ones, if all other factors such as immediate severity are equal. However, these comparisons will often be an inexact science. In ranking options, therefore:

a) all assumptions, calculations and conclusions must be open to examination;

b) generally using simple numerical analyses to compare or aggregate different types of environmental effects should be avoided, except where there are recognised ways of doing this. Individual effects within options should be assessed quantitatively where possible. However, the overall assessment and comparison of options should normally include significant qualitative elements; and

c) expert judgement should be used alongside the particular constraints of the appraisal system, so that common sense conclusions are reached.

Economic assessment

12.17      Once the options have been ranked, the best techniques will be BAT unless economic considerations mean that they are unavailable. The cost assessment should include operating costs as well as capital costs. This should include any cost savings. For example, using a purer raw material may be more expensive at first, but may save money overall by improving quality or producing less waste.
12.18      An objective approach needs to taken to balancing costs and advantages when assessing what is BAT. The lack of profitability of a particular business should not affect their determination. For example, if it has been established that a particular technique constitutes BAT for certain types of installation, then local authorities should normally impose the ELVs that correspond to the use of that technique in all permits. There may be some cases where local authorities should authorise different standards, for example because the balance of costs and benefits is different. However, it would not be right to authorise lower standards, or to delay the achievement of BAT-based standards, just because an operator argued for this on the basis of its own financial position. Conversely, local authorities should not impose stricter standards than BAT just because an operator can afford to pay more.

Determining BAT, BREF notes and sector guidance notes

12.19      Article 16(2) of the IPPC Directive states that Member States should exchange information on BAT. The Commission will publish the results as the BAT Reference documents (BREF notes). The BREF notes will not contain any binding requirements, but Member States are to take account of them in their own determinations of BAT and therefore they will be reflected in the sector specific guidance to be published as a series of notes as a continuation of the PG notes issued in respect of the EPA regime.
12.20      The operator may not agree with a local authority's decision. The authority should decide whether to accept any arguments the operator may have made for not following the indicative requirements. Local authorities must be able to explain any cases where they have permitted any deviation so that the permitting process remains open and transparent.
12.21      Sector specific guidance notes will be updated from time to time, including whenever BREF notes are amended. However, operators and local authorities should take account of any new developments in techniques after a guidance note is published.
12.22      Where there is no domestic guidance available, operators and regulators should refer directly to the relevant BREF notes. This is also the case if a BREF has been updated but the domestic guidance has not. Where the BREF contains clear performance standards, an operator should again justify any proposed deviation from them.
12.23      Of course, although indicative standards in BREF notes or domestic guidance may often be expressed in terms of parameters such as ELVs, techniques for achieving those standards may vary. Operators are encouraged to find better ways of operating installations than relying solely on benchmark standards in guidance.
12.24      If neither a BREF note nor domestic guidance has been published when an operator makes an application, operators and local authorities will have to assess BAT based on other sources of data, for example guidance from previous regulatory regimes.
12.25      Environmental plans, such as local air quality management plans, may also provide relevant information. Where there is concern or doubt about the sensitivity of the local environment, operators may want to contact the relevant local authorities, and possibly statutory consultees, to find out more about the location and nature of protected areas.

Determining BAT for new and existing installations

12.26      For a new installation, the best techniques will normally be BAT. However, sitespecific factors may justify a different conclusion from the normal understanding of what techniques constitute BAT. For example, if a technique selected as BAT in normal circumstances were to require direct water abstraction, then it might not be right to apply it to an installation near a particularly sensitive river.
12.27      The principles for determining BAT will be the same for existing installations as for new ones. However, the final standards may be different. In general terms, local authorities should be concerned with establishing timescales for upgrading existing installations to new standards, or as near to new standards as possible, having regard to the timescales and any other related guidance contained in the relevant sector guidance note. Thus permit conditions should be written in terms of complying with specified standards and requirements from a specified date onwards. (One instance where local circumstances may make full upgrading to new installation standards inappropriate is where an existing installation operates very close to that standard already, but is using different plant or processes than envisaged in the guidance. Replacing the old plant with the new techniques may produce only a small decrease in releases, but a disproportionate increase in costs. Therefore the change would not be appropriate. However, if the operator was to carry out a major modification anyway (for example a substantial change), the new plant standards might be applicable.)

Planned closure of existing installations

12.28      If an installation is scheduled for closure and its effects are not excessive in respect of other aspects of the PPC Regulations, it might be appropriate for the regulator to impose only limited BAT controls. This is because releases from the installation over its remaining life might not justify significant expenditure on reductions. Local authorities should assess this on a case-by-case basis. In such cases, however, it is important that the installation does in fact close down as scheduled, since this is part of the BAT determination. Therefore, to safeguard against the eventuality that the operator wants to continue operating beyond the agreed closure date, local authorities are best advised to include in the permit, to come into effect on the closure date, some or all of the conditions they would include for a new plant. Likewise, if the existing plant closed down and the operator sought to re-open it, it should then be treated as a new installation.

Thornby Farms Court of Appeal case

12.29 Local authorities and operators should be aware of a recent Court of Appeal judgement (R v Daventry Council, ex parte Thornby Farms Ltd, judgement given on 22 January 2002), which addressed the issue of whether tighter limits than those specified in statutory guidance should be imposed in cases where such limits have been achieved. The case related to guidance on animal carcass incinerators (PG5/3) issued by the Secretary of State under the Local Air Pollution Control system. 12.30      The judgement (www.courtservice.gov.uk/judgmentsfiles) includes the following passage:

"…There is no evidence that setting the levels actually achieved upon monitoring would increase costs and relying on a Government specified upper limit does not ensure that the best available technique is being used. Enquiry as to whether it was realistic to impose the levels found upon monitoring, or some other levels, does not involve 'going through a BATNEEC exercise from scratch'.

It may or may not have revealed the need for margins to cover less favourable operating conditions or other contingencies. The obligation is to use the incinerator effectively, in terms of reducing pollution, and the need for substantial margins cannot, in the absence of evidence, be assumed…." 12.31      The judgement makes a general point that tighter limits than in the guidance can represent BATNEEC. This raises a more detailed implication. The process and sector guidance notes typically allow less frequent monitoring to be undertaken where emissions are substantially below the specified limit value. However, if the authorisation or permit contains a condition with a much lower limit value, this may mean that the reduced monitoring allowance can no longer apply. One of the options open to authorities in these circumstances would be to include two conditions: one which imposes the tighter limit value, and the other which specifies that monitoring frequency should be judged against compliance with the less stringent limit in the guidance.

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