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 the
availability 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.