UK BAT (UK)

Industrial installations undertaking specific types of activity are required to use ‘best available techniques’ (BAT), which means the best economically and technically viable techniques to prevent, minimise and reduce emissions to air, water, and land.

BAT is used to determine the types of abatement technologies and methods that operators should put in place. BAT conclusions describe the best techniques and associated emission levels, which are the basis of the limits placed within environmental permits.

The UK Government, the Scottish Government, the Welsh Government, and the Department of Agriculture, Environment and Rural Affairs (DAERA) are putting in place a new regime for the development of ‘BAT’ across the United Kingdom (UK), following the UK’s exit from the European Union (EU).

Northern Ireland – any ‘Best Available Techniques’ determined in Northern Ireland will need to ensure account is taken of the Northern Ireland Protocol, which requires some specific activities that interact with the Single Electricity Market to continue to align with the EU Industrial Emissions Directive (IED).

BAT was adopted and applied across the European Union (EU) by the European Commission as BAT Conclusions (BATC) under the IED (Directive 2010/75/EU).

Existing EU BATC continue to have effect in the UK through the EU Withdrawal Act 2018. They are available in best available technique reference documents or BREFS.

The UK no longer needs to meet the requirements of new EU BATC issued after 31 Dec 2020.

30 August 2022 – Policy Paper – here.

BATC will be published as statutory instruments and used as the basis for permit conditions for industry.

The UK BAT system will take between 1 to 3 years to create a set of BATC depending on the complexity of the industrial sector. The order of BATC to be reviewed will be announced in advance.

UK BAT will be established by technical working groups (TWG) for the relevant industrial sectors.

The first 4 industry sectors to establish BATC groups will be:

1 Ferrous metal processing – galvanising (FMPG).

2 Ferrous metals processing – forming (FMPF).

3 Textiles (TXT).

4 Waste gas treatment in the chemicals sector (WGC).

The TWG’s will be established from September 2022. It is anticipated that the BATC for the industry sectors above will be published in the second half of 2023.

A new governance structure will also be established, with new independent bodies – called the Standards Council and the Regulators Group – consisting of government officials and expert regulators from all four nations of the UK.

A UK Air Quality Governance Group will also be established to oversee the work of the Standards Council and the delivery of the requirements under this new framework. Interested parties from industry, academia and civil society will be able to engage in the running of the BAT system through an advisory group being set up by the UK BAT Team.

Local councils currently play a major role in regulating industrial installations in England and Wales and have a clear interest in the impact emissions have on the health of local communities and the environment. The new regime will bring local councils into the BAT framework for the first time by involving them in the governance and standard-setting processes.

Some sectors in the UK had already begun a separate review process under the old EU BAT framework. These sectors will complete the BAT process, drawing on UK data submitted to the EU as a starting point, then tailor the BAT to meet UK circumstances.

Changes to EU Industrial Emissions Directive (EU)

The European Commission has announced today (5 April 2022) major changes (proposed) to the EU Industrial Emissions Directive (the IED).

Pollution prevention and control will continue to be based on the ‘Best Available Techniques’ (BAT) IED permitting process, but the framework will be enhanced by measures to boost effectiveness:

• Member State permitting authorities will be required to use tighter pollutant emission limit values when revising permits or setting new permit conditions. Currently, about 80% of permits stick to the lowest legally allowed values.

• Extending the IED’s coverage to additional livestock farming and industrial activities: new sectors with significant potential for high resource use or pollution will need to curb environmental damage at source by applying Best Available Techniques.

• Increased focus on energy, water and material resource efficiency and reuse, as well as promoting the use of safer and less toxic, or non-toxic chemicals in industrial processes.

The new sectors proposed for IED coverage include especially:

–   Extractive industry installations (mines), covering metals, rare earth metals and industrial minerals. Energy minerals, such as coal, and aggregate quarries are excluded.

–   ‘Giga-factories’ for electro-mobility batteries: a growth sector, relevant for the industrial transformation, and complementing the Batteries Regulation, for larger-scale plants.

The new rules will preserve the effective mechanism used to date to decide what Best Available Techniques are for the various industrial sectors, known as the Sevilla process. The Sevilla process is a participatory, transparent, science-based information exchange involving all industry, national and European Commission experts, and civil society to set mandatory emission limits of pollutants emitted by large agro-industrial installations. Environmental norms defined through the Sevilla process are published for each industrial sector in the Best Available Techniques Reference Documents – BREFs.

BREFs then become BATC documents, when agreed and published.

Details are here.

UK BAT Consultation (UK)

From 1st Jan 2021, EU BATC (best available techniques conclusions) documents will not be applicable in the UK (except in Northern Ireland under the Ireland/Northern Ireland Protocol of the Withdrawal Agreement).

The UK is now consulting on developing its own approach to the creation of UK BAT documents. Here (and online – here). The deadline is 18 April 2021.

A new governance structure is proposed to enable BAT a’ Best Available Techniques’ to be developed within the UK. This would be formed of a new Standards Council, made up of representatives from the UK Government and Devolved Administrations, a new Regulators Group that will provide technical advice to the Standards Council, and Technical Working Groups for each new ‘Best Available Techniques’ under consideration.

The Council would coordinate a rolling programme for review of ‘Best Available Techniques’ within the UK. The programme will be informed by the time since the industry sector last had a ‘Best Available Techniques’ review as well as technical insight on new and emerging techniques and ‘Best Available Techniques’ development in other regimes around the world. This includes considering when general guidance on ‘Best Available Techniques’ developed for new processes or for unique installations would benefit from being considered through the new system. The decision on the future timetable will be based on technical advice provided by the Regulators Group, and instigation of ‘Best Available Techniques’ development can be proposed by any Council member. It is proposed that ‘Best Available Techniques’ currently under review by the EU, where UK industry and experts have already been involved, should be considered by the UK process, once established.

The Regulators Group will support the Council and provide oversight of the work of the sector specific Technical Working Groups. It will develop and regularly review the technical principles that underpin ‘Best Available Techniques’ within the UK, apply those principles when reviewing each sector ‘Best Available Techniques’ and will make recommendations to the Council on ‘Best Available Techniques’. The Regulators Group membership would comprise of representatives from the Environment Agency, Natural Resources Wales, Northern Ireland Environment Agency and the Scottish Environment Protection Agency as well as the Offshore Petroleum Regulator for Environment and Decommissioning (OPRED) (for offshore oil and gas installations).

Further detail is set out in the consultation document.

Energy White Paper (UK)

I Blog posted this morning re the UK ETS. Publication of the UK ETS (which was already provided for in Law) is contained in the Energy White Paper (published today).

The Energy White Paper (CP 337) “Powering our Net Zero Future” is here.

It is a long document (170 pages) with many promises for consultations and targets.

A few I have singled out –

(1) significant strengthening of the Energy Performance Certificates system with an EPC target of C for domestic buildings by 2035 (and B for rented non-domestic buildings by 2030). Since most domestic properties are D or below, this is huge and will necessitate new law. Involvement of mortgage lenders is also being consulted on.

(2) re the UK ETS no further detail is given (other than is set out in my blog post this morning)

(3) an Industrial Decarbonisation Strategy to be published in Spring 2021

(4) targeting 40GW offshore wind by 2030, including 1GW floating wind, plus growing the installation of electric heat pumps from 30,000 per year to 600,000 per year by 2028

(5) commitment to make the UK continental shelf a net zero basin by 2050. This will necessitate a new legal approach

(6) commitment to join the UK to the World Bank’s ‘Zero Routine Flaring by 2030’

(7) a new strategy for the Oil & Gas Authority by end of 2020

(8) review of the Offshore Petroleum Regulator for Environment and Decommissioning

Industrial Emissions (BAT) (GB from 1st Jan 2021)

Yesterday, 14 Oct, the UK government issued a short guidance note on EU BAT (Best Available Techniques) from 1st Jan 2021 – here.

This confirms the UK will no longer be part of the EU-Sevilla BATC (binding BAT Conclusions) document production process from 1st Jan 2021.

The UK government note states –

it would make secondary legislation to ensure the existing BAT Conclusions continue to have effect in UK law after we leave the EU, to provide powers to adopt future BAT Conclusions in the UK and ensure the devolved administrations maintain powers to determine BAT through their regulatory regimes.

The UK government will put in place a process for determining future UK BAT Conclusions for industrial emissions. This would be developed with the devolved administrations and competent authorities across the UK. The UK government’s Clean Air Strategy for England sets out actions for determining future UK Best Available Techniques for industrial emissions.

The note makes no mention of Northern Ireland, where via the Withdrawal Agreement Ireland/Northern Ireland Protocol, the EU Industrial Emissions Directive, and the EU BATC process would stay applicable in Northern Ireland.