2 Integrated pollution prevention and control: Pig and poultry installations

(a)Introduction

14.62 The emission of noxious substances other than smoke was originally regulated by the system of Integrated Pollution Control (‘IPC’) contained in Part 1 of the Environmental Protection Act 1990.

14.63 IPC was replaced in 2000 by the system of Integrated Pollution Prevention and Control (‘IPPC’), which implemented the EC Pollution Prevention and Control Directive of 1996.¹²⁸ The Directive’s requirements were implemented in England and Wales by the Pollution Prevention and Control (England and Wales) Regulations 2000.¹²⁹ This applied a licensing system administered by the Environment Agency for the majority of installations (referred to as ‘Part A(1) installations’). A small number of less polluting installations were controlled under IPPC by local authorities (‘Part A(2) installations’). All agricultural installations covered by IPPC were, however, Part A(1) installations, and therefore subject to Environmental Agency licensing. The IPPC Directive has itself now been replaced by the Industrial Emissions Directive of 2010.¹³⁰

14.64 The licensing system for pollution prevention and control permits has now been brought into the integrated environmental permitting system established by the Environmental Permitting (England and Wales) Regulations 2010,¹³¹ where it is administered by the Environment Agency alongside waste licenses and water discharge permits in a streamlined authorisation system.

(b)Scope of pollution prevention and control

14.65 The types of installation subject to pollution prevention and control, and the requirement for an environmental permit, in Part 2 of Sch 1 to the Environmental Permitting (England and Wales) Regulations 2010.¹³² The only agricultural installations covered by pollution control permitting are intensive pig and poultry rearing facilities. The environmental permitting regime will apply to any farm rearing pigs or poultry intensively in an installation with more than:¹³³

•40,000 places for poultry, including free range poultry;

•2,000 places for production pigs (over 30kg); or

•750 places for sows.

14.66 Pigs reared outdoors are excluded. All three categories are Part A(1) activities and will therefore require an environmental permit from the Environment Agency. The environmental permit will in most cases cover the entire farm, as the phrase ‘installation’ in the regulations covers not only the site of the unit where the Part A activities are actually carried (for example the poultry housing) but also any other location on the same site where any other directly associated activities are carried out which have a ‘technical connection’ with the regulated activities.¹³⁴

(c)The environmental permit

14.67 A permit from the Environment Agency is required in order to operate an installation that is subject to Part A (1). It is prohibited to operate any regulated facility except under, and to the extent authorised by, the permit granted by the Agency.¹³⁵ It is a criminal offence to operate an installation without a permit, or fail to comply with or contravene an Environmental Permit condition.¹³⁶ The Environmental Permit must be obtained before the installation is brought into operation.

14.68 There are provisions for public consultation on Environmental Permit applications set out in Sch 5 to the 2010 Regulations.¹³⁷ The regulator must advertise any application for a permit, or any variation in an existing permit that involves a substantial change, and must place the application in a pubic register where it can be consulted by members of the public.

14.69 The Environment Agency must make a decision on the Environmental Permit application within three months of its receipt, or within such longer period as may be agreed with the applicant.¹³⁸ The Agency must maintain public registers containing relevant information about applications, and their decision in each case.¹³⁹ When determining an application they must either grant or refuse the application. The applications will normally granted subject to conditions (as to which see below).¹⁴⁰ The Agency has a duty to refuse an application in two instances:¹⁴¹

•if they consider that the applicant will not be the person who will have control over the operation of the installation concerned after the permit has been granted, or

•if they do not consider that the applicant will ensure that the installation is operated so as to comply with the conditions that would be included in the permit.¹⁴²

14.70 When fixing the conditions to be included in an Environmental Permit the Environment Agency must have regard to the general principle that installations should be operated in such as way that all the appropriate preventative measures are taken, through the applicant of the Best Available Techniques (BAT), and that no significant pollution is caused.¹⁴³ In the case of Part A installations ( and these include al agricultural installations to which IPPC is applicable) they must also adhere to the additional general principles that waste production is avoided, or if produced is recovered or disposed of in a way that avoids or minimises impacts on the environment, that efficient energy use is promoted, and necessary measures are taken against accidents.¹⁴⁴ Specific conditions can be added for the purpose of ensuring a high level of protection for the environment as a whole, and will include emission limit values for individual pollutants.¹⁴⁵ Emission limit values will be based on the BAT standard for the description of installation involved,¹⁴⁶ taking account of local conditions, unless achieving a relevant environmental quality standard requires stricter emission limit values to be applied. Environmental Quality Standards are, for example, set in most EU water quality directives.

(d)Best available techniques

14.71 The IPPC Directive sought to take a holistic or integrated approach to pollution control, and the Environmental Permit will address all emissions to the environmental media (land, water, and air), using a combination of emission limit values, process standards and environmental quality standards. The regulator must exercise its powers under the 2010 Regulations in order to ensure a high level of protection for the environment, and to ensure compliance with the terms of the IPPC Directive.¹⁴⁸

14.72 As noted above, the system administers these controls using permit conditions that are based upon, and require the producer to adhere to, the use of the ‘Best Available Technique’ (‘BAT’) to prevent pollution. This is defined¹⁴⁹ to mean 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 this is not practicable, generally to reduce emissions and the impact on the environment as a whole. The definition is further broken down into several constituent parts:¹⁵⁰

•‘available techniques’ means those techniques that have even developed on a scale which allows implementation in the relevant industrial sector (here the pig and poultry industries) under ‘economically and technically viable conditions’, taking into account whether the techniques are produced or used in the UK, the const and advantages of their use, and whether they are reasonably accessible to the operator in question,

•‘best’ means the most effective techniques in achieving a high general level of protection for the environment, and

•‘techniques’ includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned.

14.73 The legal definition allows some discretion to the regulator in setting conditions based on BAT. In practice the conditions will be based on the Environment Agency’s Guidance Note for intensive pig and poultry farmers,¹⁵¹ which sets out in some detail supplementary guidance on both the conditions to be imposed in permits and the requirements on BAT in complying with them. The Environment Agency guidance is based on the BAT Reference Document (‘BREF’) for intensive Rearing of Pigs and Poultry produced by the European IPPC Bureau under the IPPC Directive.¹⁵²

(e)Manufacture of pesticides and fertilisers

14.74 The manufacture of pesticides and chemical fertilisers are Part A matters and therefore subject to IPPC and the requirement for an environmental permit from the Environment Agency.¹⁵³

(f)Enforcement

14.75 It has been noted above that it is a criminal office to operate an installation to which IPC applies without a permit, or in breach of the terms of a permit once issued.¹⁵⁴ In addition the Environment Agency have wide powers to serve enforcement notices, to suspend permitted activities and to either revoke a permit or vary its terms.¹⁵⁵ In the last resort they also have the power to revoke an Environmental Permit by issuing a revocation notice.¹⁵⁶ There is a right of appeal to the secretary of state against each of these measures, and ultimately (once administrative appeals procedures have been exhausted) their exercise can be challenged by judicial review in the courts.¹⁵⁷ It is a prerequisite for judicial review that the administrative appeal mechanisms in the regulations be completed unsuccessfully before action can be commenced in the courts.